M.H. v. M.D.

Court File No.: Toronto DFO-18-15326

Date: October 10, 2019

Ontario Court of Justice

Before: Justice Alex Finlayson

Heard: May 3, 6, 17, 21, 2019; June 3, 2019; July 8 and 10, 2019; and September 27, 2019

Reasons for Judgment Released: October 10, 2019

Counsel

For the Applicant Father: Victoria Boger Mull

For the Respondent Mother: Laura Gregg and Robert Shawyer

PART I: NATURE OF THIS TRIAL

[1] This is my Judgment following a trial concerning a two-year old girl named H.D., born […], 2017. The principal issues at this trial concern custody, whether the mother should be permitted to relocate with the child to Edmonton, Alberta, and the father's access, depending on whether permission for the move is granted or not. If the move is allowed, the parties agree that there should be an adjustment of the final child support order of Justice Weagant dated July 11, 2018 to offset the increased costs of travel.

[2] The Applicant mother is M.D. She is 37 years old. She moved to Toronto in about 2012 or 2013 and has lived here since. At the time of her move here, she was struggling with drug addiction and mental health issues. She says she moved to Ontario to get away from triggers in Alberta and she wanted to pursue sobriety.

[3] The mother continues to pursue her sobriety. She takes methadone to manage an opioid addiction. She switched to suboxone when she was 3 months pregnant and took that during her pregnancy.

[4] The mother struggles with anxiety and depression. She is under the care of a physician who prescribes various medications for that. She hopes those difficulties will be alleviated if the move is permitted.

[5] The mother is in receipt of Ontario Works and certain other government benefits. Her financial resources are very limited.

[6] The Respondent father is M.H. He is 50 years old and he lives in downtown Toronto. The father's financial resources are also tight. He is in receipt of ODSP. The mother alleges that the father earns cash by doing drywall 'mudding' work on the side. She also says that, at least during their relationship, he dealt drugs.

[7] Like the mother, the father has also struggled with alcohol and drug misuse. He continues to consume alcohol, but he indicates that his consumption is moderate. He says never drinks in the presence of the child. He still consumes marijuana too, but says this is to help him sleep. He says he is permitted to smoke marijuana for medical reasons. He also smokes cigarettes. He does so in his apartment, but with the window open.

[8] A significant complicating factor in this case is that both the father and the child suffer from cerebral palsy. As a consequence, the father and the child have various mobility restrictions and other related health issues. In the past, the father had a motorized wheelchair that he used, at times, to get around, but this wheelchair was stolen. He has not yet been able to secure a new one, although an application for one is apparently in progress.

[9] Without his wheelchair, the father has worked hard to be able to get around. Still, he does so with some difficulty. The parties disagree about the extent to which the father's limitations impact his ability to have access with this child in an environment that is not supported. The mother is concerned that the father is at risk of falling with the child and injuring her.

[10] Unfortunately, the medical evidence concerning the father's current condition and limitations was somewhat deficient. The Court was able to observe the father's movements in the court room, however.

[11] On account of her cerebral palsy, H.D. is not yet ambulatory and that is an issue for the foreseeable future. Her prognosis is unknown. And her health care has not been properly managed to date for reasons that I will explain.

[12] The parents have a poor track record concerning their communication with each other. At this trial, I heard evidence of their historical drug use, both alone but also together. The mother made allegations that the father had been selling crack cocaine, sometimes to acquire baby supplies. Both parents discussed the arguments they had. The mother alleges that the father has an anger management problem. And most recently, the father's access to H.D. and to information about her medical condition have been areas of major concern.

[13] The father's access to the child since her release from the hospital at age 5 months has been problematic. The evidence at this trial revealed that a number of the father's visits have been cancelled for various reasons, often after the father had already made the lengthy journey across the city via TTC to get to the Children's Aid Society's offices in North Toronto to see H.D. The father says that many of these trips were as long as two-hour journeys for him, only for him to arrive at the Society's offices to find out that the mother would not be coming.

[14] Sometimes the father was not told in advance. At other times he did have advance warning. Sometimes the mother offered make up visits. Sometimes the make up visits happened; sometimes they did not.

[15] While the situation respecting access seemed to improve somewhat during this trial, after closing arguments, which I heard on July 10, 2019, the mother stopped facilitating access altogether. In late August, the father filed a 14B motion to the attention of the prior case management judge, seeking directions. When this motion was brought to my attention, I directed the parties to appear before me. In the result, on consent, the Court re-opened the trial and I permitted the parties to call additional evidence.

[16] Then, the parties did not call any additional evidence. Instead, on September 27, 2019, they tendered a Statement of Agreed Facts. On that date, the parties agreed to a new order for temporary access pending the release of this Judgment.

[17] Both parents identify as indigenous persons. The mother says that she has Mi'kmaq heritage but that she does not have "native status". She says her father and her sister have this background in common. The mother only recently met her sister online through Facebook. They communicate online. The father identifies as Cree and is a member of a band in British Columbia.

[18] It is important to both parents that they expose H.D. to their respective heritage and culture.

[19] The mother's wish to move to Edmonton is motivated by a number of factors. She comes from Edmonton. Her mother, her mother's partner and her brother still live there. The mother says that she is both isolated and overwhelmed living in Toronto, being a single parent with a young child with special needs. She says that if she is permitted to move, members of her family will offer her much needed support in terms of providing her with a place to live, assistance with child care and assistance with transportation to and from the child's various medical appointments. She may also be able to start working as a waitress or in retail at some point after her move, because she will have child care assistance from her family.

[20] Post-move, the mother proposes that the father be entitled to a minimum of one, two-week access visit in Edmonton each year. She says she will make the child available for access during that two-week period, each day for a minimum of 2 hours. During the trial, she indicated that her mother would supervise the father's visits in Edmonton, although her draft order does not indicate that as a pre-condition.

[21] The mother proposes that the father's travel to Alberta will be funded, at least in part, by the suspension of his child support payments. The mother's proposed draft Order also states that she will be responsible for taking the child to Toronto each year for one visit until H.D. turns 18.

[22] Yet during her testimony, she said she would only be willing to take the child to Ontario when H.D. gets older (she did not say how old). And during closing submissions, counsel indicated this was not part of the mother's plan in any event.

[23] In addition, the mother proposes that the father may have skype access twice a week for 20 minutes in a post-move scenario. As I will explain, at this time, the child has limited receptive language skills right now.

[24] The father tendered two draft orders, one in the event that the mother's request to move is granted, and a second in the event that it is not.

[25] In both scenarios, the father seeks joint custody of H.D. In the scenario where a mother is permitted to move, the father asks for two consecutive weeks of access with the child, in Alberta, during the summer months, plus a division of the other holidays, skype access at other times, and other ancillary terms.

[26] In the scenario where a move is not allowed, the father seeks day time access twice per week, supported by certain named individuals or other persons selected by the father, in his discretion, plus the division of various holidays and certain other ancillary terms.

[27] In my view, neither parents' proposals are either reasonable, nor viable.

[28] For the reasons that follow, the Court finds that the mother's relocation plan is ill conceived. The Court finds that the mother has overstated the family support that she will receive in Alberta. Moreover, she has no financial plan that would militate in favour of this move, and certainly not one that will provide for any meaningful access between H.D. and her father.

[29] In fact, the mother's plan is based on her making an application for social assistance in Alberta when she gets there, which she says will result in her receiving an increase to her social assistance that she receives in Ontario, albeit still an insufficient amount in light of her plan. In Alberta, she will pay a significant amount of her monthly social assistance income and tax benefits to her mother, for rent.

[30] The mother's plan for the father to have access to the child is not realistic either, both because of finances, and because it pays little regard to the child's and the father's physical limitations. Moreover, the track record concerning access in Ontario has been so poor that the Court is unable to conclude that, even if the financial and medical issues were not such an impediment in this case, that the father would actually see the child.

[31] The Court is very concerned about how the child's health has been dealt with. The Court has no confidence that the mother will get the necessary health care in place for this child, following a move. And the mother does not have a well thought out plan for the management of her own mental health once she gets to Edmonton.

[32] Likewise, the father's plan for access is also problematic and not realistic. To date, he has only had short periods of access with H.D. Visits have been cancelled, although not always on account of his actions. But nevertheless, that has resulted in him not having much contact with H.D. so far. Moreover, the father's visits to date have been supported either by workers from the Children's Aid Society of Toronto, his brother (whom the Court would not approve as a person appropriate to assist the father), or the mother herself. And the father's access to medical information about the child has been restricted such that the Court is not satisfied that he is yet fully apprised of her medical needs. Yet in both a post-move and a no-move scenario, the father proposes to spend prolonged periods of time with H.D.

[33] Although the father has proposed terms for his access to the child in Alberta were the move to be allowed, I have no hesitation in concluding that they are not financially viable. It is more likely than not that such access will simply not happen.

[34] The Court is concerned about the father's physical limitations in relation to his ability to care for the child in an unsupported environment. Given that H.D. also has a number of physical limitations, the Court finds that there would be a risk of physical harm to H.D. at this point, were the father not to have appropriate supports in place during his visits with her.

[35] For those reasons, about which I will elaborate in more detail in this Judgment, and based on the Court's overall determination of H.D.'s best interests, I would grant an order for joint custody. The father wishes to take on a greater role in the child's health care and he should be permitted to do so, both because the child's health has not been well managed to date, and because his greater involvement in the child's health care is a vital pre-condition to the father and the child being able to expand their contact with one another. When the child becomes school aged, her educational needs will likely be interrelated to her health needs. I do not see this as a case where health and education can be separated, making for example a parallel parenting order a viable option.

[36] In my view, it is also important for this child, who shares the same disability with her father, to have her father meaningfully involved in her life. In part because of his own life experience, the father is aware of the importance of treating the symptoms of cerebral palsy so that H.D.'s quality of life can be as good as possible. And when this child grows older, she may experience disappointment and feelings of sadness and loss about her physical limitations.

[37] The father, as a man with cerebral palsy, will be able to play an important role in helping the child navigate those feelings. But to do so, they need to enjoy a strong, established and healthy relationship with each other.

[38] Having first made the custody determination, I turn to the mobility issues in this case. I do not find it to be in H.D.'s best interests that the mother be permitted to move to Edmonton with her. The mother's request to move is denied.

[39] I would grant an order for regular weekly access between H.D. and the father, provided that the access is supported. There will undoubtedly come a time when the visits will no longer need to be supported. However, the evidentiary record before the Court at this time is deficient in a number of respects. The Court feels it has no choice but to place limitations on the father's contact with the child for now. However, the Court intends to order a review so that the parties may return to Court, with better evidence but also as H.D.'s needs change.

[40] I wish to re-iterate that the Court is concerned that H.D.'s immediate health needs are not being met. It is clear that the mother is not coping well. But a move to Alberta is a misguided attempt to fix that in my view. It is not the solution.

[41] The Court intends to issue a number of other directions, including requesting that the social worker from the Children's Aid Society, who had been previously involved with this family, continue to remain involved with this family.

PART II: PRIOR LEGAL PROCEEDINGS

[42] I begin this Judgment by reciting the prior legal proceedings in this case.

[43] The father commenced this proceeding in early February 2018. He says he did so to get a regular access schedule in place, as many of his visits with the child were being cancelled.

[44] The Court has made the following orders.

[45] On March 22, 2018, on consent, Weagant J. made a final order that the father had the right to the release of information about the child. On a temporary without prejudice basis, Weagant J. ordered that the father would have access at the Children's Aid Society's offices and that the father could have a named person attend with him. And Weagant J. also ordered disclosure of the Society's file to the parents.

[46] On July 11, 2018, on consent, Weagant J. made a final order that the father shall pay child support to the mother in the amount of $133.00 per month based on the father's ODSP income of $17,784.00 per month commencing June 1, 2018. He also fixed arrears of child support in the amount of $1,995.00 but indicated that the arrears were to be adjusted once the father provided copies of the money transfers he made to the mother. Otherwise, the father was to pay the arrears at the rate of $50.00 per month.

[47] On October 4, 2018, Weagant J. ordered that the father would have access to the child on a temporary without prejudice basis, on alternating Mondays from 2:00 pm to 4:00 pm at the Society's offices. Weagant J. also granted the father leave to bring a motion.

[48] The father did bring a motion. However, it never proceeded. On March 12, 2019, Justice O'Connell listed this case for trial before me. On March 25, 2019, a date scheduled for the return of the motion, Weagant J. adjourned it to the first day of trial as by that date, the trial had been scheduled.

[49] This matter came before me on April 2, 2019 for a Trial Management Conference. On consent, I adjourned the TMC for a short period of time as the lawyers wanted to have a trial preparation meeting amongst themselves, but I also gave further directions respecting the conduct of the TMC on the return date, and regarding the trial. I further scheduled a Settlement Conference to proceed before Justice Sirivar.

[50] On April 12, 2019, I completed the TMC Conference and issued a number of trial directions.

[51] On April 29, 2019, the parties appeared before Sirivar J. but the case did not settle.

[52] The trial before me began on May 3, 2019. I heard four days of evidence in May. On June 3, 2019, I alerted the parties to what I viewed to be certain evidentiary deficiencies. I then adjourned the trial to July 8, 2019 to permit the parties to call more evidence, if they saw fit.

[53] On July 8, 2019, they did not do so. Instead each filed a brief of documents with the Court. The briefs did not really assist the Court with the decision it must make.

[54] The trial concluded on July 10, 2019 and the Court reserved its Judgment.

[55] On August 23, 2019, the father filed a 14B motion seeking directions from Weagant J. Among other things, the father said in his motion materials that the mother was no longer allowing visits since the trial concluded, and that the Society was no longer supervising visits. I directed the parties to appear before me.

[56] After a number of endorsements, two separate attendances and a further 14B motion, the parties agreed to re-open the trial to call additional evidence. A date for that was set for September 27, 2019.

[57] Once again, on September 27, 2019, the parties chose not to call any further evidence. Instead, they agreed to submit into evidence a Statement of Agreed Facts for the Court's consideration. They agreed that pending the release of the trial decision, the father would have access for 5 hours on Sundays, to be assisted by his sister with pick ups and drop offs at Lawrence Square Mall. There are ancillary terms in the consent, including terms requiring the father to cooperate with the mother regarding the child's housing.

[58] The Statement of Agreed Facts does not explain what those terms about the mother's housing mean, or what is happening with her housing. As I will explain, the mother told the Court during her testimony in May 2019 that she would not have housing come September 2019.

[59] The Statement of Agreed Facts does say that the father's sister is a registered nurse in Ajax, though, that she has been a nurse for 19 years, and that she has experience with children with special needs, "including feeding tube." As I will explain, during the trial, I heard testimony from the father's brother, whom the father put forward as a person who could support the father's access visits. The Court does not approve the father's brother.

[60] The Statement of Agreed Facts of September 27, 2019 now says that the sister is prepared to assist the father's visits with the child and to assist the mother as needed. Regrettably, the Statement of Agreed Facts only provides limited information about the sister, and it does not provide any more information about her availability to do so.

PART III: FINDINGS OF FACT

A. The Parties' Relationship and Its Breakdown

[61] The parties began living together in April 2016. According to the father, the parties met in a bar and their relationship developed through those encounters in the bar. The mother had been living in a shelter and staying with a friend. Apparently, the mother had an argument with the friend, so she moved in with the father. The father says that after that, he tried to provide for the mother as best he could.

[62] The parties separated on November 12, 2016. On that date, the mother telephoned the police and alleged that the father was hurting her. The police came to the home and took the mother to a shelter, but no charges were laid against the father.

[63] The mother says that the father was "extremely" verbally abusive and controlling during the relationship. She said that he was an alcoholic and so he would go to a bar, drink and then come home belligerent.

[64] Both parents admit that they drank alcohol and smoked marijuana together during their relationship. It is not just the father who was dealing with addiction issues when the parents lived together. So did the mother, even though she had come to Ontario to pursue sobriety.

[65] In about October 2016, the mother discovered that she was pregnant. She says that in November 2016, she caught the father smoking crack cocaine in the bathroom. She says she learned that he had sometimes dealt crack cocaine. At another point in her evidence she said that he was selling crack cocaine in the bar. In any case, it was in November 2016, following this incident in the bathroom, that she began to slowly pack her belongings and that she developed a plan to leave the father.

[66] At this trial, the mother said that the father had sold crack cocaine to acquire baby supplies. For example, she said that one time, a person came to their home with baby lotion. The father traded crack cocaine for the baby supplies on that occasion.

[67] The father mostly avoided talking about any crack cocaine dealing, or his prior use of crack cocaine at this trial. He did say that he hasn't used crack cocaine in a "long, long time".

[68] What precipitated the ultimate separation on November 12, 2016 was that the parties had an argument that day. The mother says that the father shoved her down some concrete steps in front of their home. She says the father then followed her in his motorized wheelchair and tried to block her as she was leaving. It was in that context that she telephoned the police.

[69] The father says that he had come home that day to discover that the mother's belongings were all packed. And she already had arranged for a shelter bed. He questioned her about why she was packed, and she telephoned the police.

[70] The father says that the parents had a good relationship until the mother's friend, "Constance" had moved into the spare bedroom of their residence. "Constance" had broken up with her boyfriend, leading to her move in with the parties. The father also says that "Constance" created tension in the relationship and ultimately contributed to the deterioration of the relationship.

[71] "Constance" notwithstanding, the father agrees that the relationship was "rocky", although he says that was more so the case at the end of the relationship. Nevertheless, he does not see himself as abusive. He says he never told the mother what to do or not do, and there was no physical violence in the relationship. The father believes that the mother made false allegations of abuse to help get her housing.

[72] After November 12, 2016, the parties did not speak again until the mother telephoned the father at around the time of H.D.'s birth, to let him know that she had been born.

[73] The child remained in the hospital for 5 months given her health issues.

[74] The mother was with the child daily at the hospital, whereas the father only came to visit infrequently. The mother says that he came only about once every two weeks.

[75] The mother says that there were two incidents of conflict between the parents at the hospital.

[76] On one occasion, the father saw a photograph of a man holding H.D. The father became upset. According to the mother's initial account, the father was asked to leave the hospital, but she corrected her evidence at the trial, saying that he was only asked to leave the neo-natal intensive care unit, not the hospital.

[77] The mother says that on another occasion, she had taken the child out of the hospital for a walk. The father was also present for the walk. The mother says that during this outing from the hospital, the father tried to pick the child up. The mother tried to tell him not to do this. According to her, the father got upset, called her a "stupid junkie" and told her to "just shut up".

[78] The father admitted in cross-examination that he was not happy about the picture of the man holding the baby, saying that the man was a drug dealer and that there was a warrant outstanding for his arrest. He denied being asked to leave the hospital. He also denied having almost dropped the child during the walk.

[79] Nevertheless, in cross-examination, the father readily admitted that the parties yelled at each other during the relationship. He said there was a lot of arguing at the end of the relationship. He also admitted to having sometimes insulted the mother.

[80] The Court finds that this was a dysfunctional relationship, while it lasted. There has been ongoing conflict between the parents since the separation.

B. The Child's Health

[81] H.D. was born several weeks premature at the Sunnybrook Health Sciences Centre. She was diagnosed with cerebral palsy at around the time of her birth and she remained in the hospital for 5 months, as I have said.

[82] Dr. Kate Amiel is H.D.'s pediatrician. She became the child's pediatrician in about August of 2017, following H.D.'s release from the hospital, and consequent upon a referral from the hospital.

[83] Dr. Amiel testified at this trial.

[84] Dr. Amiel explained that cerebral palsy is a movement disorder caused by an insult to the brain, usually before birth, at birth or shortly after birth. Cerebral palsy is mostly a clinical diagnosis, based on a physician taking a history and physical examination, although there are head imaging findings that can be consistent with the disability.

[85] Cerebral palsy results in a person having difficulties with movement. Depending on its severity, cerebral palsy can result in speech, vision and hearing difficulties. It can also result in some intellectual difficulties.

[86] Dr. Amiel's current role in H.D.'s care is to monitor her weight and her general well-being, to monitor her development and her feeding, and to coordinate her medical care.

[87] Dr. Amiel explained that H.D. experiences significant delays in her gross motor skills. She is unable to sit up independently, she cannot walk and she cannot crawl. She also experiences significant delays in her fine motor skills. She is unable to eat without the assistance of a g-tube.

[88] H.D. has a limited receptive language skills. While she is social in that she engages and smiles, she is also delayed in this area too. Dr. Amiel has not observed H.D. experiencing pain, although she did advise the Court that some studies say that children with cerebral palsy do experience pain.

[89] H.D. had been prescribed two medications, omeprazole and phenobarbital. Dr. Amiel explained that omeprazole is standard for children fed by g-tube. It is to address acid reflux.

[90] Phenobarbital is an anti-seizure medication. It was prescribed in the neonatal intensive care unit to address H.D.'s irritability.

[91] During the summer of 2018, the child was "weaned off" both medications by the mother while not under medical supervision. I will come back to the significance of this later in this Judgment.

[92] H.D. also suffers from a condition known as plagiocephaly. This is the flattening of the back of the head.

[93] While Dr. Amiel was on maternity leave from January 2018 to October 2018, her practice was monitored by a locum physician named Dr. Wiley. The mother saw Dr. Wiley while Dr. Amiel was away. In his notes, Dr. Wiley indicated that surgery is required to correct plagiocephaly. The mother did not agree to surgery. I will come back to the significance of this later in this Judgment.

[94] In addition to Dr. Amiel's involvement in the child's medical care, following the child's release from Sunnybrook, H.D.'s care was transferred to the Holland Bloorview Kids Rehabilitation Hospital. At Holland Bloorview H.D. is now under the care of a developmental pediatrician, a physiotherapist named Dr. Milo-Mason, and optometrist named Dr. Farila Nazemi, she is supposed to see an occupational therapist and there is also apparently a g-tube specialist involved. She is under the care of the feeding clinic and she is awaiting a nutritionist. The child's attendance at Holland Bloorview for her various therapies and appointments has been problematic to say the least.

[95] More recently, Dr. Amiel referred the child to an allergist when the mother raised concerns about the child's possible allergy to dairy. The mother then missed at least one of the allergist's appointments.

[96] H.D. now has an epi-pen.

[97] Despite the difficulties, H.D. has an established multi-disciplinary health care team in place at Holland Bloorview to address her health needs. Dr. Amiel testified that having a multi-disciplinary health care team is generally helpful because a child's care will be coordinated. In short, she said it makes life easier as there will be fewer appointments.

[98] While Dr. Amiel is supposed to see the child monthly, she indicated that H.D.'s therapists would probably see her more often than that.

[99] According to the mother's trial affidavit sworn April 24, 2019, the child's appointments with Dr. Amiel used to be more frequent, but as H.D. has gotten older, those appointments have decreased "considerably". She says that the child now only sees Dr. Amiel once every four months.

[100] Dr. Amiel's testimony as to the frequency of the child's appointments contradicts the mother's evidence. Dr. Amiel said that she sees the child monthly. For a considerable period of time, this did not happen.

[101] As I will explain, the mother is having difficulty managing the child's health appointments. Coordinated care for this child is particularly important in a case like this.

[102] Dr. Amiel indicated that the child's prognosis is not certain. She was unable to say whether the child would require a wheelchair or not sooner or later in life. She did say that on a scale of 1 to 5, in terms of how severely this child is affected by cerebral palsy, that she would place H.D. at a 4.

[103] The child is not ambulatory. Dr. Amiel testified that mobility will be an issue for this little girl for the next 3 to 4 years. Dr. Amiel also told the Court, when speaking about the uncertainty of the future, that she has seen children with cerebral palsy not learn how to walk until as late as age 9.

[104] According to Dr. Amiel, early intervention for H.D. is crucial, including that H.D. have access to physical therapy, occupational therapy and speech and language therapy. Dr. Amiel's goals are to maximize H.D.'s development and to maximize her potential gains. Dr. Amiel wishes that the parents would adhere to any treatment plans. By the same token, she also feels it is important for this child to have two parents who love and care for her.

C. The Mother's Failure to Follow Through Regarding the Child's Medical Care and Therapies

(1) The Mother has Missed or Cancelled Important Medical Appointments

[105] The mother has missed or cancelled several medical appointments for the child.

[106] Again, while Dr. Amiel was on maternity leave from January 2018 to October 2018, Dr. Wiley stepped in. The last note of an appointment between the mother and Dr. Wiley was on July 19, 2018.

[107] Even after Dr. Amiel's return from maternity leave in October 2018, Dr. Amiel did not see H.D. again until March 15, 2019.

[108] I find that there were no pediatric appointments for this child between July 19, 2018 and March 21, 2019, some 9 months.

[109] Dr. Amiel testified that the mother was consistent with medical appointments for the child's first year of life (the first 5 months of which the child was hospitalized). But she said that there were periods after that where appointments either did not happen, or they got cancelled.

[110] Not only were there no pediatric appointments for a nine-month period, but Dr. Amiel also explained that there had been a "break" in appointments at Holland Bloorview too. Plus, the mother did not show up for an allergist's appointment for the child as I have said.

[111] On March 21, 2019, following her return from maternity leave, Dr. Amiel sent an email to Brigid Nelson, a Registered Nurse at the Holland Bloorview Hospital, and to Dr. Milo-Mason, the Holland Bloorview physiotherapist, regarding H.D.'s need for treatment. There was an agreement amongst the health practitioners that this family should be referred to multiple services at Holland Bloorview.

[112] Dr. Amiel explained that she did this because the child had not been receiving the needed therapies. She explained she was concerned about the missed appointments, also because the therapies are also supposed to be done at home on a daily basis. Moreover, she was concerned about the extent of the gap in treatment. She said it was her priority to get in touch with the therapists and to arrange for centralized services, something that is standard for all children with cerebral palsy.

[113] In April 2019, Dr. Amiel reported a missed medical appointment to Donna Hugh-Yeun, a social worker from the Children's Aid Society of Toronto who had been involved with this family for other reasons. She did this when the mother did not attend for the allergist's appointment.

[114] Since April 2019, Ms. Hugh-Yeun has been reminding the mother of H.D.'s appointments, and monitoring that the child has actually been going to medical appointments.

(2) The Mother Did Not Authorize the Child to Undergo Surgery for Plagiocephaly

[115] Regarding the child's plagiocephaly, in his note of April 26, 2018, Dr. Wiley advised the mother that early intervention could prevent more significant intervention later on, should the mother decide to intervene regarding the plagiocephaly in the future.

[116] During this trial, Dr. Amiel was asked whether "helmeting" was an alternative to surgery. Dr. Amiel explained that helmeting could have been used to prevent worsening of the condition, but helmeting is not a solution to remedy the plagiocephaly.

[117] Surgery has not been pursued (nor did I hear any evidence that a helmet was actually used).

(3) The Mother "Weaned" the Child Off Two Important Medications

[118] Regarding the mother having "weaned" the child off the two medications, this happened during Dr. Amiel's maternity leave too. In his note of July 19, 2018, Dr. Wiley documented that the mother did not think that the child had reflux. She also said that she could not afford the medication. As such, the mother stopped the medication on her own initiative.

[119] By the time of the July 19, 2018 appointment, it had been three weeks since the medication had been stopped. The note also indicates, "not under physician guidance", that the mother stopped giving the child phenobarbital too. She reported to Dr. Wiley that she had neither observed any behavioural changes in the child, nor any seizures.

[120] While Dr. Amiel confirmed that there had been no indication of any negative consequences from stopping the medication, she nevertheless expressed a concern at this trial about the medication having been stopped. Dr. Amiel said that generally medication should not be stopped without consultation with a physician. And regarding the acid reflux medication, she specifically said that she would not have taken the child off this medication, as most children with cerebral palsy have reflux. The child to this date is not taking the reflux medication.

(4) The Mother's Explanations

[121] The mother has offered a number of explanations for this behaviour. She explained that a "couple of times" she had panic attacks. She explained that she has really bad anxiety "quite often". While she says that she is stable on her medication, the panic attacks still happen. The mother also said she suffers from esophagitis, which makes it hard for her to swallow or breathe. Apparently she needs a scope but could not go for it due to her parental responsibilities respecting H.D.

[122] Regarding the Holland Bloorview appointments, the mother said she did not take the child to physiotherapy for "a few months" because of her anxiety, but she felt really "embarrassed and stupid". Even now that Dr. Amiel has re-established the child's health team, the mother said that there are "so many appointments". Because the mother said that she had to see Dr. Amiel and an allergy specialist, she cancelled two more Holland Bloorview appointments in recent times.

[123] In cross-examination, the mother admitted to not having followed up about surgery for the child's plagiocephaly either. She said she did not want the child to have surgery, that Dr. Wiley was "pressuring her", that the child's head is "fine" and that it "isn't that flat".

[124] The mother also admitted that she did not consult with Dr. Amiel prior to stopping the child's medication. She said the medication cost $75.00 per month and that it was not covered. The mother offered no evidence to corroborate this statement and the Court has some doubt as to whether this is true.

[125] In any event, the mother also said that the child was about to "out grow" her dose, that it wasn't hard to wean, and the child was "fine". When asked why the mother did not ask the grandmother, who is a pivotal part of the mother's post-move plan, for money for medication, the mother said "I also didn't want her on any medications anyways".

[126] The grandmother was asked about whether she had been made aware that the mother had missed appointments. She said that she had been made aware but that the mother had an appointment somewhere else, or that she got mixed up. She also said the mother was stressed and then said, "sometimes you can't always have a good day." The grandmother went onto complain about how frustrating the medical system is, because after these appointments were either cancelled or missed, there wouldn't be another appointment available for three weeks.

D. The Father's Attempts to Get Medical Information About the Child

[127] At the trial, the father complained that the mother has not shared important medical information about H.D. with him. For example, he says that he only found out, after the fact, that the child was hospitalized at Sickkids with an infected feeding tube.

[128] He says that he learned about various of the child's illnesses, and that the child was being cared for at Holland Bloorview, only when he read the mother's motion materials for the access motion, filed in February 2019, which did not proceed. And he only found out more recently that the child might have a dairy allergy, after repeatedly asking the mother about it.

[129] The father says he had difficulty getting documentation from third parties as well. He says that he made repeated requests to obtain medical documents from Dr. Amiel's office in April, May and September 2018, and that he only obtained H.D.'s chart just before the trial.

[130] The father says that health care staff would not take his phone calls and would not let him come in for meetings. His lawyer had to get involved to assist him.

[131] Just before the trial, the father was also able to obtain records from Sickkids, but only when he produced a Court Order authorizing him this access.

[132] Dr. Amiel indicated that the father had not made requests to her directly, but the requests came through counsel. She did say it was possible that he phoned directly while she was on maternity leave. Nevertheless, before agreeing to meet with the father, Dr. Amiel first spoke to both the mother and to Ms. Hugh-Yeun, to confirm that the father was entitled to information. Ms. Hugh-Yeun said he was. The mother told Dr. Amiel that the father was too, but that it was unlikely he would access it, since the parties do not communicate.

[133] Dr. Amiel met with the father on May 2, 2019. The purpose of the meeting was to give the father an update about H.D.'s condition and her ongoing medical care. Albeit she only had the one meeting with the father, Dr. Amiel formed the impression that the father appeared to be someone who cares about his daughter and wants to be involved in her life.

[134] The mother admitted that she never invited the father to the child's medical appointments. She said that would have been embarrassing, because she did not want the father "yelling". Yet more recently, the mother invited the father to an August 8, 2019 appointment at Holland Bloorview because "[the parents] are getting along now". I was told this during the trial.

[135] Then, after the trial ended, the mother stopped facilitating access between the father and the child such that the parties ended up returning to this Court on a motion.

E. The Mother's Mental Health and Drug Use

[136] The mother began using drugs in Edmonton as a younger person, when she was introduced to drug use by a friend with whom she used to work. The mother has used heroine, oxycontin, morphine, dilaudid, morphine and alcohol in the past.

[137] According to her Form 35.1 Affidavit in Support of Claim for Custody and Access sworn March 9, 2018, the mother was convicted of possession of marijuana in October 2015 (plus an assault back in 2005). She received sentences of 1-year probation, and 6-months of probation and a conditional discharge respectively for those offences.

[138] While she started using drugs with her former work friend, in 2008, the mother met her former partner, J.V. The mother says that relationship was "extremely unhealthy". J.V. enabled her, and encouraged her drug use.

[139] Although the mother ended the relationship with J.V. in 2012, she still moved with him to Toronto after that date. The mother explained that J.V. wanted to pursue his sobriety and have a fresh start in Ontario. Even though their relationship was over and the mother had just come out of a 6-month rehabilitation program, she decided to come with him to Toronto anyway.

[140] The mother relapsed after coming to Toronto. According to her, she ended up in a 2 to 3 day "detox" program at St. Joseph's Hospital. Thereafter, she started living in a shelter, and then with the father.

[141] The mother did not achieve the sobriety that she now says she enjoys, after her stay in the short "detox" program at St. Joseph's Hospital. As I have said, during the relationship with the father, they drank alcohol and smoked marijuana together. It appears that the mother only achieved sobriety around the time of her pregnancy.

[142] J.V. now lives in Hamilton. Surprisingly, the mother most recently had contact with him 6 months ago. The mother does not know whether he is sober now. Questions surrounding the mother's recent contact with J.V., and whether they have remained in contact more generally, were not explored further by either counsel at the trial.

[143] In her trial affidavit sworn April 24, 2019, the mother says that she has been sober for just over three years. She takes methadone regularly. It is administered at St. Joseph's Hospital by Dr. Alice Ordean, whom the mother says is a specialist who works with women who are pregnant and taking methadone. The mother switched to suboxone during her pregnancy.

[144] Dr. Ordean was not called to testify at this trial as to the mother's compliance with her methadone or other related issues.

[145] Prior to H.D.'s birth, the mother attended Narcotics Anonymous. She says she went to 90 meetings in 90 days, and then she attended Narcotics Anonymous less frequently for about 2 years thereafter. She also went to a program at "Breaking the Cycle", but she did that only twice.

[146] The mother says that a counsellor from Breaking the Cycle did come to her home for about two weeks. The mother says she wanted to return to Breaking the Cycle, but that she could not leave her home to do so, because of her anxiety.

[147] The mother no longer attends Narcotics Anonymous. She says she intends to do so in Edmonton, if she is able to move there. But she has not really looked into it. She has obtained a referral for a methadone clinic in Edmonton, however.

[148] The mother was diagnosed with anxiety and depression when she was about 12 years old. She now takes Zoloft for depression. She has taken that for about the last 3 or 4 years.

[149] Beginning in early 2019, she also takes Lyrica for anxiety.

[150] Dr. Ordean has prescribed those medications for her, but Dr. Ordean has also referred the mother to a family doctor. The mother said she has seen that family doctor twice regarding the medications. The mother testified that she finds the Lyrica to be helpful for her anxiety.

[151] The mother also obtained a referral to a psychiatrist in Ontario, but she did not really follow through with it. I am told that she only attended one psychiatrist's appointment. She said that she had to bring H.D. with her, so after that first appointment, she never went back.

[152] The mother has not obtained a referral for a psychiatrist in Edmonton. In fact, the mother presented very little evidence about how she intends to manage her mental health if the move to Alberta is permitted. She says that she will see a doctor in a medical clinic and will attend a community counselling center.

[153] The father is concerned that the mother will relapse if she returns to Edmonton. The mother says that will not happen.

[154] Before the mother came to Toronto, she used live with her mother (H.D.'s maternal grandmother). She explained that her mother has redecorated her old bedroom. That is the room in which H.D. will be staying. The mother says that the redecorating will decrease her memories of her former life and drug use in Edmonton and thus the risk of relapse. She also says, more generally, that she would not do anything that would risk H.D. being taken away from her.

[155] The maternal grandmother testified at this trial. If permission to move is granted, the mother intends to move back into a condominium owned by the grandmother. The grandmother and her partner will move into another property that they own nearby.

[156] I note that when the mother used to live with her mother in Edmonton, the grandmother had kicked her out. The grandmother testified that she imposed a 'no drinking and no drugs' rule back then, but the mother did not follow those rules. The grandmother said that one night the mother had come home either drunk or high, that she was behaving unreasonably, and that she was not following the house rules.

[157] So she asked the mother to leave. The grandmother explained that she could no longer tolerate this behaviour as it was affecting her life and her ability to work.

[158] Nonetheless, the grandmother is prepared to have the mother move back in. She says she will be surprised if the mother were to relapse, because she has been sober for 2 years. She also says that if there is a relapse, she will help the mother find a rehabilitation program and therapy, as opposed to kicking her out of her home, this time.

[159] Notably, the mother and the grandmother have not had any discussions about the new house rules, should the move be allowed. Nor has the mother even talked to the grandmother's partner about her plan to move back with H.D. The mother admitted that her relationship with the grandmother's partner is not a close one.

F. The Father's Physical Health

[160] The father has suffered from cerebral palsy since birth. He also has scoliosis.

[161] The father explained that he was in a motorcycle accident when he was younger and so in addition, he has pins in his knees and his shoulders.

[162] More recently he slipped and fell on some ice and shattered his ankle. He was in a wheelchair for about 5 or 6 months to recover from that.

[163] Apart from this recent injury, the father used to use a wheelchair sometimes, but mostly in the winters, and less so during the summer months. As I have said, sadly the father's wheelchair was stolen recently. The father tried to turn that into a positive. He said that when he still had the wheelchair, he had become somewhat 'lazy'. So he used the loss of his wheelchair as an opportunity to do more physiotherapy, so as to decrease his reliance on a wheelchair in general.

[164] The father says he is able to complete day to day tasks on his own, without assistance. He is able to walk, cook and clean on his own.

[165] The father admits that he has some mobility issues but he says those do not prevent him from caring for the child. He understands why the mother has concerns about his mobility, based on her observing him walk. But he says he has never fallen while holding H.D. The father says he knows his own limitations and would not put the child in harm's way. He also feels he understands H.D.'s needs, perhaps more so than the mother, because he shares the same medical condition with H.D.

[166] The father's family doctor, Dr. Abbas Ghavan-Rassoul, testified at this trial. Dr. Ghavan-Rassoul has been the father's doctor for about 1 year. He sees the father every 3 to 4 weeks. His role is to prescribe medication and to monitor the father's care. Unfortunately, Dr. Ghavan-Rassoul did not offer much evidence about cerebral palsy and how it impacts the father. That said, Dr. Ghavan-Rassoul did offer some evidence about it.

[167] Dr. Ghavan-Rassoul's evidence about the father's mobility was based on his observations of the father and his understanding as a physician about cerebral palsy. He said that the father is able to come to appointments and get in and out of the office. It is his opinion that most of the time the father manages well. He said that the father's condition is "relatively stable". He explained that in adults with cerebral palsy, there is generally not a lot of worsening in one's condition.

[168] That said, Dr. Ghavan-Rassoul has never assessed the father's ability to carry weight (such as a child). Appropriately, Dr. Ghavan-Rassoul also declined to comment on the father's ability to parent.

[169] Dr. Ghavan-Rassoul did say that travel for the father would be "somewhat difficult". In his opinion, the father would experience back pain if he were to be immobile, in closed quarters for a period of time, such as while on an airplane flying to Edmonton.

[170] The father takes a number of medications. Dr. Ghavan-Rassoul prescribes those medications for the father.

[171] The father takes gabapentin, which is a muscle relaxant used to decrease muscle spasms and pain, naproxen, percocet for pain management, pentazole to decrease stomach acid, and seroquel as well as another drug (the father could not remember the name) as a sleep aid.

[172] The father submits to urine testing to monitor his use of some of these prescriptions, in particular given that he takes Percocet. Dr. Ghavan-Rassoul testified that two of the father's recent tests were positive for cocaine and another sedative drug, which he had not prescribed. This evidence was not explored more fully by counsel, including the circumstances under which such positive tests were taken, or what they might mean. The Court heard no submissions from either counsel regarding what, if any weight, should be attached to that evidence.

[173] As I have said, the father also uses marijuana. He says he uses it as a sleep aid. Dr. Ghavan-Rassoul was unaware of medical marijuana use, and said he had not prescribed that for the father.

[174] In response to questions from the Court, the father explained that his mobility has increased over time. He says he went to physiotherapy to avoid having to return to a wheelchair. He is waiting for occupational therapy support, but he has started some of the exercises in the meantime.

[175] The father told the Court that when he was younger, he participated in both physiotherapy and underwent surgery. He did not learn to walk until he was four years old. He also learned how to write.

[176] The father explained that he was teased as a child by other children. Some other kids called him "stupid", and made other comments of that nature.

[177] The father explained that during recent access visits at the Children's Aid Society's offices, he has both picked up and carried H.D., and changed her diaper. Nevertheless, it is the mother's view that the father lacks insight into his mobility and limitations. She is also concerned that he has "shaky hands" and that he will be unable to feed her properly via the g-tube.

[178] Ms. Hugh-Yeun testified that on one occasion the father arrived for a visit at the Society's office and he was very wet. The father told her that he had fallen on the way to the visit.

[179] Ms. Hugh-Yeun expressed concern about the father's ability to walk while carrying H.D. It is her opinion that the father's visits need to be supported.

G. The Father's Drug Use and Other Personal History

[180] In his examination in chief, the father admitted to past and current drug use, including using with the mother during the relationship. The father also admitted that he used to deal drugs.

[181] The father has a criminal record for shoplifting, breach of probation and assault. He could not recall the sentences he received, but said that his criminal charges are 12 or 13 years old and there has been nothing since then.

[182] As I have said above, the father avoided talking about crack cocaine use and dealing during the trial. He did not specifically deny dealing or trading crack cocaine for baby supplies as alleged by the mother, however. He admitted to crack cocaine use implicitly, when he said that he has not used crack cocaine in a long time.

[183] The father also admitted that he used to have a problem with alcohol misuse. He explained that he went to a program at the Center for Addiction and Mental Health. Nevertheless, he still drinks alcohol, but he said he only does this "once in a blue moon" such as on his birthday. He told the Court he never drinks when he is with H.D.

[184] The father has two children from a previous relationship. He said their mother is deceased, and that the two children were raised by their maternal grandparents. He explained that he was in jail and/or in rehabilitation when the case concerning the two children went before a Court. He does not enjoy a relationship with his two children.

[185] In an emotional moment during his testimony, he said that he does not want H.D. to come looking for him when she is an adult. He admitted that he "messed up" and he wants to do the right thing respecting H.D. He wants to be involved in her life.

H. The Parents' Financial Circumstances

(1) The Mother's Financial Circumstances

[186] The mother did not file proof of the social assistance and benefits she received in 2017, 2018 or 2019 to date for use at this trial. Attached to her financial statement sworn March 9, 2018, included in the Trial Record, are her tax returns for 2014 to 2016, along with certain other dated documents. These years are prior to H.D.'s birth.

[187] According to the mother's financial statement sworn over one year prior to the trial, she receives social assistance payments of $400 per month and child tax benefits or tax rebates of $600 per month.

[188] According to her trial affidavit sworn April 24, 2019, the mother receives $700 per month from Ontario Works, $250 of which goes directly towards her rent. The mother also receives the Canada Child Benefit of $650 per month and every three months, H.D. receives $500 from the Ontario Assisted Device Program, earmarked for her feeding tube.

[189] Pursuant to Weagant J.'s Order of July 11, 2018, the mother also receives child support from the father of $133 per month, and payments towards arrears of $50 per month.

[190] I was told that the child support Order was never taken out, and so child support is not being paid through the Family Responsibility Office. The father has been paying the mother child support in cash. According to Weagant J.'s July 11, 2018 Order, the father was also at liberty to bring proof of past cash payments too and get a credit towards the arrears. In closing submissions on July 10, 2019, on consent, I was told that the father is entitled to a credit of $1,020.

[191] The mother's financial statement reveals that other than a television, she essentially has no assets. She owes $12,000 in OSAP debt.

[192] The mother lives in housing that she obtained when H.D. was about 1 month old. Her apartment building is operated through an Indigenous heritage organization.

[193] When the mother testified on May 21, 2019, she told the Court that she would have to move out of that housing by September of 2019. She said she received notice of this in approximately March of 2019.

[194] The mother was apparently given this notice to leave by way of a letter, but she did not produce the letter at the trial. Although it is based entirely on hearsay, the mother alleges that the letter states she is no longer able to stay in her housing. She says that she was only allowed to live there for 1 to 2 years, but she has now been there for 3 years.

[195] There is a housing worker in her building named "Kelly". The mother says that she did tell "Kelly" about the letter when she received it, but she also told her that she would probably be moving to Edmonton.

[196] The mother did not make an appointment with "Kelly" to start the process of looking for new housing in expectation of this move to Edmonton. She also says "Kelly" was "busy". As such, at this trial, the mother was unable to advise the Court as to what the wait list for new housing would be. She could not recall whether she had spoken to anyone at the Society about her concerns about housing either.

[197] By the May 21, 2019 date that she testified, the mother had taken no steps to find housing. No one called either "Kelly" or the author of the letter to testify at the trial.

[198] As I have said, the Statement of Agreed Facts that the parties filed on September 27, 2019 refers to the father being required to cooperate regarding the child's housing. I take it from that there are now some efforts being put into finding housing for the mother. But again, I was given no further details about what that actually means.

(2) The Father's Financial Circumstances

[199] Unless he has income from doing drywall work on the side, or from continuing to sell drugs, which I am unable to find based on this record before me, the father's income consists entirely of ODSP.

[200] The father receives $497 per month to assist with his rent, and $935 per month for his living expenses.

[201] No financial statement for the father was included in the Trial Record, so I have no other information about his expenses, or his assets and liabilities. Nonetheless, it is not seriously disputed that neither party has many financial resources.

[202] From the father's income, he pays child support of $133 per month and $50 per month towards arrears.

[203] The father now has stable housing. He told the Court that he had been on a wait list for it for about 10 years for subsidized housing. He now lives in a building with an elevator. His apartment has been modified to account for his disability. That includes bars around the shower and toilet. He also has a play pen for the child.

I. The Parents' Level of Communication

[204] The parents' ability to communicate with one another is poor. According to the mother, the father yells a lot. She says this usually happens on the telephone. She tried to communicate with the father via text message to avoid his yelling. She says the topics of their post-separation conflict have been child support and the father's access.

[205] The Society became involved in this case when the mother telephoned it, following H.D.'s birth. The mother says that she telephoned the Society because there had been no communication between the parents, and she needed help with the father's visits.

[206] Ms. Hugh-Yeun testified that she became involved to support the access visits. However, she is also supporting the mother, including monitoring that the child makes it to medical appointments. Since the trial, it has been brought to my attention (via the aforementioned 14B Motion and Statement of Agreed Facts) that the Society is no longer supervising access visits.

[207] Ms. Hugh-Yeun observed the parents to have poor communication. When visits did occur at the Society's offices, she explained that the parents would wait in separate rooms.

[208] Ms. Hugh-Yeun explained that the father gets frustrated easily. She said that one time the father was "ranting and raving" at the Society's office. She had to come down from her office to intervene.

[209] Ms. Hugh-Yeun explained that when the father gets frustrated, he becomes loud and unfiltered. But generally, once she would speak to him and explain the situation, he would calm down, after venting.

[210] Ms. Hugh-Yeun said more than once during her testimony that she understands, "where [the father] is coming from".

[211] A significant source of the father's frustration relates to his access visits getting cancelled. As I will explain, this has been a repeated pattern.

[212] That said, by the time of the trial there had been some, small improvement in the parents' communication. Although the father's visits were still being cancelled or rescheduled, the mother did agree to facilitate some visits in the community. Unfortunately, this did not last. After the trial, when the Society stopped supervising visits, the mother was no longer willing to do so in the community either.

[213] That led to the motion before the Court, while this Judgment was under reserve.

J. Problems with Access Prior To and After the Trial

[214] Following H.D.'s release from the hospital, the father started having supervised visits with her at Society's offices at 20 De Boers Drive in Toronto. 20 De Boers Drive is in North Toronto. The father lives downtown and is disabled. The father says that he commenced the proceeding to get a regular access schedule in place, as many of his visits with the child were being cancelled.

[215] There is a striking pattern of the father's access visits being cancelled based on the record before me. Sometimes make up visits were arranged, only to have those cancelled too. As I said earlier, the father's access was sometimes cancelled by the mother, after he had already made a lengthy journey across the city via TTC to get to the Society's offices, without advance warning.

[216] There were a number of missed visits between October 29, 2018 and April 2019, the month before this trial started. Some of the reasons for the cancellations were legitimate. For example, on some occasions the child was ill or had a medical appointment. One visit was scheduled on a holiday when the Society's office was closed so that had to be re-scheduled.

[217] At least twice the father cancelled visits, either because he had the flu or in one instance he shattered his ankle. Twice, he agreed to change the visits, such as when the maternal grandmother was visiting the mother leading up to this trial, or during Easter weekend in 2019, which enabled him to have the child at his home to introduce the child to his mother at his home.

[218] However, there are occasions where no reasons for the cancellations were given at all. And for other cancelled visits, the mother claimed at the trial that she had difficulty pushing the child's stroller in the snow. Twice, she felt that it was too cold for her to go outside with the child.

[219] The father did not see the child at all in the month of January. He admitted that he cancelled one visit because he had the flu but otherwise, he did not see the child. There were yet more visits cancelled in February, March and April 2019 for various reasons, some which are understandable, and some are not.

[220] By the time of the trial, the father had been bringing his brother, M.K. to some of his visits. M.K.'s role was to help support the father during visits.

[221] The father put forward M.K. as a person who is available and willing to support his access, were this Court to order that at the conclusion of the trial.

[222] At ¶ 10 of his affidavit sworn February 11, 2019, which was entered into evidence at this trial, M.K. said, "[t]he Children's Aid conducted a criminal records check on me, but I haven't received the results back. I am prepared to provide the court with my criminal record as soon as I receive the same. I note that the Applicant father is proposing that I assist during the visits due to his physical limitations. I will not be caring for the child alone."

[223] M.K. did not otherwise go on to state, in his trial affidavit, anything about his own knowledge of the contents of his criminal record.

[224] It was revealed at the trial, through the questioning of M.K. both during his examination in chief and in cross-examination, that:

(a) M.K. suffers from post-traumatic stress disorder relating to some childhood trauma;

(b) M.K. has current criminal charges for assault causing bodily harm and breach of probation outstanding;

(c) M.K. estimated that he had been convicted of approximately 50 offences in the past, about half of which offences he committed when he was a young person, and the other half as an adult;

(d) M.K. has been incarcerated in the past due to his criminal history;

(e) In connection with one of the criminal proceedings against him, M.K. went to Harbour Light Rehabilitation as part of a diversion program. However, he was kicked out of the program for getting angry and punching holes in the wall. He then went to jail; and

(f) M.K. has limited knowledge of the child's special needs, including how to feed her. He has never been involved in feeding her as a result.

[225] The Society did not complete a criminal record check for M.K. Ms. Hugh-Yeun asked M.K. to complete the necessary paperwork so that she could order a vulnerable persons screen/check relating to him. M.K. never brought back the paperwork.

[226] Ms. Hugh-Yeun was unaware of this history when she testified. When told about it during the trial, she indicated that she would have concerns.

[227] After hearing this evidence, the mother initially said she was uncertain about whether M.K. was an appropriate supervisor. Nevertheless, on a subsequent trial date, both parents left M.K. to care for the child while they were in trial. It is not my impression that M.K. has continued to be involved as a supervisor much since then.

[228] Regarding the missed visits, the mother admitted that in the last 6 months, there had been "quite a few" of them. When asked how she thought the visits being missed might affect H.D., the mother said that she did not think the child was affected. While the mother said she felt it was important to make up missed visits, she also admitted to having cancelled those too. She said that if a visit is cancelled because the father cancels it, she does not think she should be required to arrange a make up visit.

[229] As set out earlier, the father stopped having access after the trial. It did not resume until the Statement of Agreed Facts and the consent was signed on September 27, 2019. The first resumed visit according to that document was supposed to be October 5, 2019.

K. The Mother's Life in Toronto

[230] The mother describes a difficult life in Toronto. She is a single parent. At the time of trial, she was living in a bachelor's apartment, but as I have explained, her housing was uncertain. The mother wakes up with the child, makes her formula and feeds her. She says that she engages in exercises with H.D. They watch cartoons together. She takes H.D. out with her when she runs errands.

[231] The mother describes the difficulties in caring for a child like H.D. She has to be careful when bathing H.D. and she takes steps to avoid banging her head. She has developed strategies for brushing the child's teeth to hold H.D. up.

[232] The mother does not have any babysitting assistance. She says she has no realistic prospect of finding work, saving for a car or gaining her financial independence.

[233] She does not have a social network to rely upon.

PART IV: APPLICABLE LEGAL PRINCIPLES

A. Applicable Statutory Provisions

[234] I begin with the applicable sections of the Children's Law Reform Act, R.S.O. 1990, c. C.-12 as amended (the "CLRA") that apply to my determination in this case.

[235] Pursuant to section 21 of the CLRA, both parents are entitled to apply for an order respecting custody of or access to H.D. or determining any aspect of the incidents of custody.

[236] Section 20(1) of the CLRA says that except as otherwise provided in Part III of the legislation, both parents are equally entitled to custody of H.D.

[237] Section 20(5) provides that the entitlement to access to H.D. includes the right to visit with and be visited by the child and the same right as a parent to make inquiries and to be given information as to the health, education and welfare of the child.

[238] And section 20(7) sets out that an entitlement to custody, access or incidents of custody is subject to alteration by an order of the court or by separation agreement.

[239] Pursuant to section 24(1) of the CLRA, the merits this custody and access application are to be determined on the basis of H.D's best interests, in accordance with subsections 24(2) through (4).

[240] Section 24(2) requires the Court to consider all the child's needs and circumstances. Although the Court need not discuss every piece of evidence adduced at trial, the Court should generally consider these statutory factors in light of the evidence adduced at trial. See Van de Perre v. Edwards, 2001 SCC 60 ¶ 10.

[241] Section 24(3) requires the Court to consider a person's past conduct only: (a) in accordance with section 24(4); or (b) if the Court is satisfied that the conduct is otherwise relevant to the person's ability to act as a parent.

[242] Section 24(4) requires the Court, in assessing a person's ability to act as a parent, to consider whether the person has at any time committed violence or abuse against his or her spouse, a parent of the child, a member of the person's household or any child.

[243] Finally, pursuant to section 28(1) (a) and (b), the Court may grant custody of or access to H.D. to one or more persons, and the Court may determine any aspect of the incidents of the right to custody or access. Section 28(1)(c) indicates that the Court may make additional orders that it considers necessary and proper in the circumstances, which include a non-exhaustive list of 7 different orders.

B. Applicable Legal Principles in Mobility Cases

[244] Numerous mobility cases set out a number of legal principles that are relevant to the Court's decision in this case. The outcomes of these cases vary. Of course, each case depends on its facts to a certain degree.

[245] The leading case concerning mobility is Gordon v. Goertz, 1996 CarswellSask 199 (S.C.C.). Gordon v. Goertz concerned a parent's request to vary a previous custody order and to relocate from Saskatchewan to Australia. Although Gordon v. Goertz was decided as a variation pursuant to section 17 of the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.), its principles apply to cases decided under the Children's Law Reform Act. Further, its guiding principles apply at an original hearing, where no final order as to custody or access has yet been made. In such cases, there is no need to consider first the threshold of material change, because there is no order to be varied. See Bjornson v. Creighton, 2002 CarswellOnt 3866 (C.A.) ¶ 17-19.

[246] As explained at ¶ 18 of Bjornson v. Creighton, the guiding principles that are applicable at an original hearing are:

(a) The judge must embark on a fresh inquiry into what is in the best interest 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;

(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 and the most serious consideration;

(c) Each case turns on its own unique circumstances. The only issue is the best interest of the child in the particular circumstances of the case;

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

(e) More particularly, the judge should consider:

(i) the existing custody arrangement and relationship between the child and the custodial parent;

(ii) the existing access arrangement and the relationship between the child and the access parent;

(iii) the desirability of maximizing contact between the child and both parents;

(iv) the views of the child;

(v) the custodial parent's reasons for moving, only in the exceptional case where it is relevant to that parent's ability to meet the needs of the child;

(vi) the disruption to the child of a change in custody; and

(vii) the disruption to the child consequent on removal from family, schools and the community he has come to know.

[247] At the outset of this trial, each parent was equally entitled to custody pursuant to section 20(1) of the CLRA. A determination of custody is a necessary precondition for the Court to then go on to consider many of the aforementioned guiding principles listed in Gordon v. Goertz. In an original hearing such as this, the Court must determine the issue of custody first. See Bjornson v. Creighton at ¶19.

[248] That said, and while the Court's custody determination will be determined first, that does not necessarily resolve how the Court should consider and weigh the above-mentioned factors.

[249] For example, if this Court were to order joint custody, it may still be that one parent or the other would be considered the "custodial parent" for the purposes of the mobility analysis. Even in cases where the legal status is joint custody, the possibility that one parent may be, for the purposes of mobility, the primary caregiver is not foreclosed. See Burns v. Burns, 2000 NSCA 1 ¶ 27-33; see also Porter v. Bryan, 2017 ONCA 677 ¶ 15-16.

[250] There is a considerable discussion at ¶ 26-48 of Gordon v. Goertz as to whether the Court should begin the best interests' analysis with a "presumption in favour of the custodial parent". After canvassing the history of this notion and considering arguments for and against such a presumption, the Court held that no such presumption exists.

[251] However, at ¶ 48, McLaughlin J. stated, "[w]hile a legal presumption in favour of the custodial parent must be rejected, the views of the custodial parent, who lives with the child and is charged with making decisions in its interest on a day-to-day basis, are entitled to great respect and the most serious consideration. The decision of the custodial parent to live and work where he or she chooses is likewise entitled to respect, barring an improper motive reflecting adversely on the custodial parent's parenting ability". See also Rushinko v. Rushinko, 2002 CarswellOnt 1997 (C.A.) at ¶ 5-6; see also Porter v. Bryan, 2017 ONCA 677 at ¶ 12.

[252] Related to this concept are the custodial parent's reasons for the move and how to weigh these. The Court held at ¶ 23 of Gordon v. Goertz that a custodial parent's reasons for the move are relevant only if they impact the parents' ability to meet the child's needs.

[253] Lastly, the Court held that it should try to maximize contact with both parents as is consistent with the children's best interests. See Gordon v. Goertz at ¶ 24-25.

[254] Pursuant to section 16(10) of the Divorce Act, R.S.C1985, c. 3 (2nd Supp.), as amended, a Court must give effect to the principles that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact. Although there is no mention of the so-called "maximum contact" principle in the CLRA, this principle has long been applied in cases decided pursuant to provincial legislation. See Woodhouse v. Woodhouse.

[255] It will generally be an error for a trial judge to fail to refer to and apply the "maximum contact" principle, without providing any reason for departing from it, particularly where the trial judge makes findings of fact that suggest it ought to be applied. See Rigillo v. Rigillo, 2019 ONCA 548 ¶ 6-10.

[256] On its face, the maximum contact principle could be said to be completely inconsistent with a move.

[257] However, the Supreme Court also gave guidance about how to weigh this factor. As McLaughlin J. held at ¶ 24 of Gordon v. Goertz, and previously at ¶212-219 of Young v. Young, 1993 CarswellBC 264 (S.C.C.), the maximum contact principle is mandatory, but not absolute. The Court must respect it to the extent that such contact is consistent with the children's best interests. Further at ¶ 217 of Young v. Young, McLaughlin J. said the maximum contact does not mean daily contact. Nor does it mean that a custodial parent may not move. "Optimum access may simply not be in the best interests of the child for a variety of circumstances."

[258] Nevertheless, the maximum contact principle must be carefully weighed. The failure to attach appropriate weight to it is an error in principle. See Berry v. Berry, 2011 ONCA 705, 2011ONCA 705 ¶ 13-15.

C. Sole Versus Joint Custody

[259] It is trite that a joint custody order is generally only appropriate in cases where there is evidence of historical and appropriate communication between the parents. See Kaplanis v. Kaplanis.

[260] But just because one parent professes an inability to communicate does not preclude an order for joint custody. Nevertheless, where there is poor communication, joint custody should not be ordered in the hopes that two parents' communication will approve. There must be some evidence before the Court that, despite their differences, the parents are able to communicate effectively with one another.

[261] In cases involving very young children, the court must take into consideration the fact that the child is unable to easily communicate her physical, emotional, developmental and other needs. Accordingly, the need for effective communication between the parties in a joint custodial arrangement will be particularly pressing in such circumstances. No matter how detailed the custody order is, there will always be gaps and unexpected situations that will have to be address going forward.

[262] Despite that, courts are increasingly willing to order joint custody or some form of parallel parenting where such an order is considered necessary to preserve the balance of power between the parents, particularly in cases where both parties are caring and competent parents, but one party has been primarily responsible for the conflict between the parties.

[263] See Roloson v. Clyde, 2017 ONSC 3642 ¶ 59 in which Justice Chappel provides a helpful list of these factors to consider.

[264] Ultimately, the Court must determine the custody, mobility and access issues in this case in H.D.'s best interests, by considering the factors in sections 24(2) - (4) of the CLRA.

PART V: ANALYSIS

A. Analysis Respecting Custody

[265] My application of the relevant applicable legal principles leads me to the conclusion that the parents should have joint custody. I say this for the following reasons.

[266] There is no question that the parents have been largely unable to communicate to date. While there appeared to have been some improvement in their communication leading up to and during the trial in terms of arranging certain access visits, that appears to have unravelled after the trial ended.

[267] Yet almost all of the post-separation conflict has surrounded the father's access. And I find that the mother has been primarily responsible for that conflict.

[268] I do find that the father has lost his patience and has become frustrated. I find that he has raised his voice and yelled at times. However, the father has done this mostly when his access to H.D. has been cancelled.

[269] I repeat here again that the father is disabled. He has some significant mobility limitations. The Court finds it insensitive that the father was sometimes made to travel the long journey across the city on the TTC to see H.D., with whom he has not enjoyed much time to date, only to find out that his visit that day was not going to happen.

[270] The pattern of visits being missed, or cancelled, or rescheduled, is both problematic and inappropriate. While both parents share responsibility for some of this, the evidence revealed that the mother is more responsible than the father. During this child's first two years, there could have been more of an opportunity for the father to take on a greater role had the parents been more cooperative and made better efforts together. The father has missed out on some valuable time with the child.

[271] The father's efforts to see H.D. show his commitment to the child. Much of the mother's conduct respecting access reflects poorly on her views about the importance of the father's role in H.D.'s life.

[272] While the Court does not excuse or accept that the father's yelling was a justifiable response when he became frustrated, the Court also understands the father's frustration, much as Ms. Hugh-Yeun did.

[273] In addition to the problematic pattern of access that has unfolded, the Court is very concerned about:

(a) the mother's conduct in having the child miss months of pediatric and therapy appointments; and

(b) the mother's ill-informed decision to stop administering the child's medication; and

(c) the mother's failure to follow Dr. Wiley's advice about the child's plagiocephaly.

[274] The father has not been kept informed about the child's health and development, and he has had trouble getting access to health information, even when armed with a Court Order. In addition to persevering about his access visits, the father has further demonstrated a commitment to the child by taking a g-tube feeding course on his own, by scheduling an appointment with Dr. Amiel to learn about the child (once he was permitted to do so) and by obtaining various health records concerning her.

[275] The father still has more to learn about the child's needs, but the Court is confident that he will rise to that task if he is empowered to do so.

[276] The mother's struggles with her mental health have paralyzed her ability to meet this child's needs, at least at times. The mother did not call any evidence from a treating physician to speak to this, nor about what plan she should put in place for her own mental health, whether in Alberta or Ontario. But the evidence clearly established that the mother's depression, and particularly her anxiety, are impacting her functioning vis à vis meeting H.D.'s health care needs, and vis à vis her ability to facilitate the child's relationship with her father.

[277] Pursuant to section 24(4), I do not find that there has been violence or abuse committed by the father against the mother. First, I do not find physical violence in this case. I am unable to determine that the father pushed the mother on the steps in front of their residence on the day of separation as the mother has said. I note again that the police were called but the father was not charged. The father denied that he was abusive.

[278] I also am unable to find that the father was verbally abusive and controlling as the mother maintained. There is no dispute that this was a dysfunctional relationship, fuelled by substance misuse on the part of both parents, and that the parents' problems have been exacerbated by their limited resources. While each parent shared his and her perspectives with the Court about the relationship and the separation, I do not find this evidence rises to the level of violence and abuse to engage section 24(4).

[279] However, in accordance with section 24(3)(b), I do find that both parents' past conduct in certain respects is relevant to each parents' ability to act as a parent. In particular, I find the mother's mental health history and her failure to stake steps to better address it, the findings of fact that I have made about the parents' substance misuse and current drug use, the findings of fact that I have made respecting access, and the findings I have made about both parties' conduct in relation to the child's health needs to be relevant.

[280] I have considered these factors under section 24(3)(b), as well as in a best interests' analysis in making the joint custody order in this case.

[281] I appreciate that the mother has been the child's primary parent since her birth and that the father has had only limited access, supervised by either the Society, family members or the mother herself. Unquestionability, that would militate in favour of granting the mother custody in many cases.

[282] However, the father's limited access to the child to date is almost entirely because of his physical limitations, as well as the child's, and the conduct regarding access visits. Neither parent had the resources to get better supports into place such that the father's access could have expanded prior to trial. I am mindful that the father also sought to bring a motion for access, but that was adjourned to this trial.

[283] So while I consider the historical division of parenting, I do so also in light of the very serious concerns that the Court has about the child's health. I do not find the mother to be an appropriate sole custodial parent for this child, even in the absence of better communication between the parents.

[284] As I said at the outset of this decision, it is important for this child, who shares the same disability with her father, to have her father meaningfully involved in her life. There are two parents who love and care for H.D. and they should both be allowed to play a meaningful role. I agree with the father that because of his own life experience, he is aware of the importance of treating the symptoms of cerebral palsy so that H.D.'s quality of life can be as good as possible. If he is permitted to develop a strong and healthy relationship with her, the father will also be in a good position to help support H.D. emotionally too as she ages.

[285] I considered whether to make a parallel parenting order and award the mother sole custody, except with respect to health decisions, given the Court's concerns. However, in light of Dr. Amiel's evidence that children with cerebral palsy may suffer from intellectual difficulties, there is a risk that H.D. may have difficulties in school in the future. I am unable to sever the issues of health and education in this case as I view them as either actually, or very likely to be intertwined.

[286] I realize that there is the potential for parental conflict surrounding decisions about H.D.'s care in the near future. In light of that, I intend to make a very detailed order that will include a requirement that the parents follow the recommendations of health care professionals.

B. Analysis Respecting the Mother's Request to Relocate to Edmonton with the Child

[287] Although I have decided to make an order for joint custody, I consider the mother to be the child's primary parent for the purposes of the mobility question. As such, the mother's relationship with H.D. as her primary parent, and her reasons for the move, which I do find are advanced in relation to her ability to meet the child's needs, bear special consideration.

(1) The Mother's Reasons for the Move

[288] As I said at the outset of this Judgment, the mother's wish to move to Edmonton is motivated by a number of factors. The mother has become isolated in Ontario, she has a young child with special needs, and she seeks to move for the support of her family to provide her with housing, assistance with child care and with managing the child's health. She also seeks that assistance to enable her to become more financially independent.

(2) The Mother's Plan

[289] As set out earlier, the grandmother, her partner and the mother's brother all live in Edmonton. The mother plans to live in a two bedroom condominium/apartment. The condominium has a salt water pool, which the mother says will be beneficial for H.D.

[290] The mother intends to apply for social assistance when she gets to Edmonton. She believes she can get onto social assistance within one day.

[291] Although it was based on hearsay, the mother says her social assistance will increase to between $1,172 per month and $1,294 per month, compared to the $700 she now receives in Ontario. She will continue to receive the Canada Child Benefit of $650 per month, and she says she will be entitled to the Alberta Child Tax Benefit of $94 per month in addition.

[292] The mother did not say if there is an Alberta equivalent of the Ontario Assisted Device Program. In the absence of such evidence, presumably the $2,000 per year that she receives from Ontario will stop.

[293] Netting that out, this would mean that the mother would receive additional government assistance of about $5,500 per year in Alberta [1].

[294] The mother intends to be a stay at home parent. She has selected a school for her. She does not intend to enrol H.D. in daycare.

[295] The mother would rely on her mother, her mother's partner and her brother to assist with babysitting.

[296] The mother intends to look for part-time work as a waitress or in retail. Between 2002 and 2005, she worked as a waitress at Pizza Hut and Boston Pizza. She also worked in a library as a clerk and a storyteller at some point in the past. The mother does not have any current work experience. She has not worked at all since 2014.

[297] The mother obtained a number of names of health care providers for the child and then she took those to Dr. Amiel and asked her to make referrals. The mother's plan is to take H.D. to:

(a) pediatrician Dr. Mark Davidson, whose office is 10 minutes drive away from where she will live;

(b) physiotherapy appointments at Glenrose Rehabilitation Hospital, which she says is 11 minutes drive away from where she will live. The mother found out that this clinic cares for toddlers with cerebral palsy by speaking to a receptionist;

(c) the gtube clinic at the Sollery Children's Hospital. The mother also says this an 11 minutes drive away from where she will live; and

(d) the "Vision Center" at Westmount Center in Edmonton. The mother also chose this clinic after speaking to a receptionist there.

[298] Each of these medical facilities are housed in different buildings.

[299] Regarding her own care, the mother has a referral for a doctor in a medical clinic, she intends to access a community counselling center and she also obtained a referral for a methadone clinic in Edmonton. She has not sought a referral for a psychiatrist.

[300] And as I said earlier, the father is to visit the child for supervised access over multiple days during a two week period, supervised by the grandmother.

(3) The Mother's Social Isolation

[301] I accept that there can be psychological, social and emotional aspects of a move that will militate in favour of allowing it to occur. There is often a connection between the quality of a parent's psychological, social, emotional and economic well-being and the quality of the child's care-giving environment.

[302] However, the mother has taken very few steps to address her social isolation in Ontario. For the reasons I articulated earlier, the mother has not taken certain basic steps she to improve her mental health, or to form a connection to a community here.

[303] The mother explained that she has no friends in Ontario. She did talk about a group of women with children who meet in her apartment building. She participated in those gatherings, but only infrequently. The mother was quick to clarify that these women are not her friends.

[304] However, the mother does not have a social circle in Alberta either. While she talked about some contact with high school friends online, this is not an actual, established social circle. Whether in Alberta or in Ontario, the mother will have to start re-establishing or making friends, and developing a sense of community.

[305] On June 3, 2019, at the end of what would have been the last day of evidence, I indicated to both counsel that the Court was concerned about gaps in the evidence. I indicated that it would be helpful to hear about the availability of respite care, about Wheel Trans services, if available to these parents, I indicated that the parties should inquire about whether the Society would consent to continue supervising the father's visits, and I also suggested that the parties reach out to cerebral palsy associations to find out what assistance might be available to either parent.

[306] I indicated to counsel that they may wish to consider calling evidence about the availability of such resources, both in Ontario and in Alberta.

[307] The aforementioned evidence, especially concerning what might be available in terms of respite care in Ontario, could have been easily presented by one of the parties calling a social worker from Holland Bloorview to testify.

[308] Neither parent called any viva voce evidence of this nature. Instead, each presented a brief of documents printed off the internet. The briefs did not really assist the Court with the decision it must make.

[309] The briefs do not assist the Court in deciding what services are available for these parents and this child, nor what must be done to access such services.

[310] In the end, neither parent used the opportunity that the Court gave them to call this additional evidence. I was told during closing submissions that both parents have in fact applied for Wheel Trans. Mother's counsel objected to the Court asking specific questions about whether it could be used to transport both to health appointments and the like, as these logistics are not in evidence.

[311] The parents, and the mother in particular, should start taking steps to access whatever resources and services might be available to them, including respite care. They will need social work assistance to do so.

(4) The Mother Has Overstated the Support from Her Family

[312] The mother has overstated the support of her family.

[313] While the mother and the grandmother may have resumed their relationship since H.D.'s birth, there was very little of a relationship from after the time that the mother moved to Toronto until more recently.

[314] Again, the grandmother kicked the mother out of her home years ago as a result of the mother's addiction and consequent behaviour. The only time that the grandmother and the mother visited with each other, prior to H.D.'s birth, was when the grandmother was in Ontario for a trip. The trip was not to visit the mother. Rather she was here for a bowling tournament with her son. Since H.D.'s birth, the grandmother has visited four times. One of those times was for this trial.

[315] The mother admitted that she is not particularly close with her mother's partner. Notably, the partner was initially included on the mother's witness list for this trial, but in the end, the mother did not call the partner. The mother has not even spoken to her mother's partner about this move, although I am told the partner is aware of it.

[316] The mother and her younger brother are also not particularly close. The younger brother was not aware of many details of the mother's drug use history. They do not see each other regularly. They do speak more frequently in recent times, but this appears to be a new development, after H.D.'s birth. The brother has a roommate. He has not told the roommate that he might be babysitting H.D. in their shared apartment.

[317] The mother has not turned to her mother for financial assistance. The grandmother had sent the mother some money, randomly, since H.D.'s birth, but those amounts were very small. No one quantified the amounts for the Court. The mother did not even ask her mother for help with paying for the child's medications before stopping them.

(5) The Mother's Plan Is Not Financially Viable

[318] The mother has presented very little in terms of an educational or employment plan were she to move. She testified about certain educational pursuits in Ontario that she did not complete. While she said that she would like to complete some further education in Alberta, this was not a concrete part of her plan. Rather, her plan is to work as a waitress or in retail at some point in the future, but not right now.

[319] The mother's financial plan to move to Alberta involves accessing government assistance. She says she will receive an increased amount of about $5,500 per year in Alberta. However, the Court finds that any such increased amounts, if actually received, would be largely consumed by the mother's increased housing costs, before travel is even taken into account.

[320] In her trial affidavit sworn April 24, 2019, the mother indicates that she would be paying the grandmother rent. She says that her mother will only be charging her a "reduced rate" of $700 per month to cover the cover the condominium fees.

[321] At trial, I was told that the amount of the rent would be $1,000 per month. While there may be a grace period before the grandmother expects rent to be paid, the grandmother did confirm, during her viva voce evidence, that she intended to charge the mother.

[322] That is a considerable increase in the mother's housing costs. Even if the grandmother only charges the mother $700 per month, that offsets the increased social assistance benefits that the mother says are available to her in Alberta, almost in their entirely.

[323] In addition, the mother's plan is to waive the child support that she receives of $133 per month plus the $50 per month arrears payments, on account of the father's travel costs. That results in the mother being financially worse off in Alberta, by at least the child support amount, which is about $2,196 per year (with arrears) or $1,596 once the arrears are paid off.

[324] Further, the mother's initial plan provides that she would take the child to Ontario too. That proposal is not realistic, having regard to both the finances of this case and the child's health issues. And the mother is no longer willing to do this anyway.

[325] I did hear some evidence that the grandmother would assist with the cost of travel. No one, including the grandmother, committed to a precise amount.

[326] The grandmother makes $15.00 per hour and works 15 to 20 hours per week. She said that she may go back to school to retrain. She does have some savings and some real estate. The evidence I heard about the grandmother's ability or willingness to contribute is insufficient.

(6) Disruption to the Child

[327] I find this move would be far too disruptive for this child. Disruption to the non-residential parent's and child's relationships with each other is not the only measure of disruption. This move would be too disruptive to the child's health care too.

[328] There has already been a serious disruption in the provision of health care services for this child. H.D.'s development is already delayed. She has missed some much needed therapies. And her prognosis is at this point uncertain.

[329] By the time of the trial, Ms. Hugh-Yeun had been alerted to the issues regarding the child's health care, and Dr. Amiel had intervened to get coordinated and centralized care re-established. As a result, the child is again under the care of a team at the Holland Bloorview hospital. While the Court in no way comments adversely on the quality of the health care services in Alberta, the record was deficient about why the mother's proposals are actually comparable or better.

[330] Even still, the mother's plan for the child's care in Alberta does not provide for centralized care. While H.D.'s care may end up being coordinated by the pediatrician that the mother wishes to use, that would remain to be seen. Even if there are no wait lists for any of these Alberta practitioners, which the mother seemed to suggest was the case, this child's health care has already not been well managed. This child should not be subjected to any more delays, even small ones.

[331] The child's health care is being monitored in Ontario to ensure that she actually receives it. There is no plan in place to ensure that the mother will actually take the child to appointments in Alberta. There is no monitoring by an independent person.

(7) The Maximum Contact Principle

[332] In many cases, a request to move would be successful in a case where the non-primary parent had infrequent contact with the child. In this case, the father has not had a lot of contact for the reasons I have already expressed.

[333] Nevertheless, I have found that it is in the child's best interests to remain in Toronto. I have already found that the father has much to offer the child and that his relationship should be allowed to develop.

[334] Above, I indicated that it is more likely than not that the father's access will simply not happen if the move is allowed. I wish to elaborate about why I have made that finding.

[335] First, even with a child support savings of $2,196or $1,596 per year, I fail to see how the father can afford the cost of travel to Alberta. The mother suggested that the father could stay in a hostel when he came to Alberta. I find that to be inappropriate, particularly in light of the father's own health needs.

[336] Second, neither parent presented any concrete evidence of the travel costs for a two-week trip to Alberta. I was given very little information about airfares and the cost of hotels.

[337] Even if the father stayed in a very modest hotel, his travel costs will become very quickly unaffordable.

[338] The presentation of a reliable and detailed travel budget in a mobility case is key. It does not only involve providing the Court with some information about airfare and hotels, but it should include information about baggage fees, ground transportation to and from airports, food, and even activities for the parent and child during the visit. Presenting an accurate budget is all the more important when resources are so tight, such as in this case.

[339] Equally importantly, very little thought by the mother went into the fact that the father cannot sit for prolonged periods of time on a plane. The father has not been to Alberta since he was a child. He does not know his way around there. He will have physical difficultly getting to and from airports, let alone navigating an unknown city without financial resources.

[340] Even if the mother bringing the child back to Ontario for visits was actually a concrete aspect of the mother's plan, the Court heard very little evidence about the child's ability to tolerate travel between Alberta and Ontario. The Court did hear, from the mother, that even bathing and brushing the child's teeth is a challenge.

[341] The mother's plan that the grandmother supervise the father's visits in Edmonton is also inappropriate. The grandmother had never even met or spoken to the father by the time of the trial. And based on the recent history of access in this case, the Court has no confidence that the father's visits would actually happen if he were to travel all the way out to Alberta to see the child. Many of his visits did not happen when he traveled to North Toronto for them. The Court is concerned that neither the mother, nor the grandmother, value the father's important role as H.D.'s parent.

[342] H.D. is very young and her development is delayed. The proposal for Skype access does not provide a meaningful basis for this father and daughter to develop and foster their relationship either.

[343] For those reasons, I find that were a move to be allowed in this case, it would, in effect, become an insurmountable hurdle to the better development of the father-daughter relationship. I find that a move is contrary to the maximum contact principle and it is not in the child's best interests.

[344] In Ryall v. Ryall, 2009 ONCJ 687, Curtis J. allowed a mother to move with a very young 16 months old child to Suffolk, England, where the mother was originally from. This order was made in spite of the father's concern that he would not have a meaningful relationship with the young child.

[345] Of course, many cases in family law turn on their facts. In Ryall v. Ryall, the mother had a close relationship with her mother, with whom she planned to live. She had access to a large house, a social network, and job prospects that would enable to earn more income.

[346] The mother also proposed to return to Canada twice per year at her expense and offered to the father that he could stay at her house in the United Kingdom if he travelled there. She offered a meaningful financial plan, that included her waiving child support in the amount of $6,120 per year, which the father could use for travel expenses. She also was prepared to forgo spousal support in the amount of $600 per month, and the child's day care expenses would stop. All of those savings added up and could be used to fund the travel. Moreover, the father trusted the mother to facilitate the relationship. And the child in Ryall v. Ryall did not have special needs, as in this case.

[347] By contrast, MacDonald v. Robinson, 2013 ONSC 86, MacKinnon J. declined to allow a mother to relocate with a 2 year old child from Ontario to Nova Scotia. At ¶ 43, MacKinnon J. held that Ryall was distinguishable on its facts. In MacDonald v. Robinson, there was no evidence of a track record of the maternal grandmother and her daughter working together to look after the child. There was no persuasive evidence of employment for the mother upon which the Court could find the mother would be better off financially. And the child already had an established community here, even though she was only 2 years old.

[348] Likewise, in the case before me, there is no track record, no financially viable plan and a risk associated with a change to the child's health care. There is already an established health care team. And this Court finds it desirable that the father be able to continue to pursue his relationship with the child, which can only happen with the child in Ontario on the facts of this case.

(8) The Child's Views and Preferences

[349] One of the factors for this Court to consider as set out in Gordon v. Goertz is the child's views and preferences. Section 24(2) (b) of the CLRA provides that the Court shall consider the child's views and preferences, if they can reasonable be ascertained.

[350] Given the child's young age, this factor is not relevant.

(9) The Parents' Indigenous Heritage

[351] Both parents' indigenous heritage is important to each of them.

[352] However, this is not a factor that has particularly influenced this decision. A move to Alberta does not particularly enhance the mother's connection to her heritage. None of the members of the mother's family, whom she proposes to be part of her plan of care, identify as indigenous or engage in any indigenous traditions or cultural practices.

[353] The Court finds that both parents are able expose H.D. to his and her traditions and culture as they see fit during his and her parenting time. Both parents are able to do this in Ontario. Only the mother would be able to do so in Alberta given the problems with the father's access that I have highlighted.

C. The Father's Request for Access

[354] While the Court is denying the move, the Court also finds that the father's proposal for access in Ontario does not fully make sense. He proposes that he have access, twice per week, assisted by another person. Then for holidays, he asks for prolonged periods of time.

[355] The father has had very limited access with the child. For the reasons already expressed above, the Court finds that the father requires assistance during his access with the child at this time.

[356] To his credit, the father has taken steps to learn about the child's needs. This includes that he took a g-tube course at Sickkids on his own initiative. However, Dr. Amiel indicated that normally, when a child is in the hospital after birth and needs a g-tube, there will be a period where hands on practice is done by the parent with the child, under hospital supervision. Dr. Amiel told the Court that she would be willing to assist the father to set up appointments at Sickkids where he could practice with the child, but H.D. would have to be taken to those appointments.

[357] For the reasons expressed earlier, the Court does not approve the father's brother, M.K., to be the person providing assistance. It seems that the father may have put him forward because of limited other options, and on account of M.K.'s availability.

[358] As of September 27, 2019, as set out in the Statement of Agreed Facts, the father's sister has come forward. The parties have agreed to her. But the Court does not know whether she is consistently available. Therefore, the Court intends to order APCO as an alternative.

PART VI: ORDER

[359] Based on the foregoing, I make the following orders:

(a) The parents shall have joint custody of the child, H.D. born […], 2017;

(b) The mother's request to relocate with the child to Edmonton, Alberta is dismissed;

(c) The child's residence shall not be moved outside the City of Toronto without the consent of both parents, or a court order;

(d) Prior to making any major decisions concerning the child, including about her health, education and general well-being, the parties shall consult with one another. Decisions shall be made jointly;

(e) The child's pediatrician shall remain Dr. Kate Amiel and the child's other health care shall be provided by the Holland Bloorview hospital for so long as the treating health care professionals who are involved in H.D.'s care consider that to be appropriate. Neither parent shall change the child's health care providers without the other's consent;

(f) If the child requires medical care that is not provided by either Dr. Kate Amiel or by a health care professional at the Holland Bloorview hospital, then the parents shall cooperate with any referrals made by either Dr. Amiel or one of the treating health care professionals at the Holland Bloorview hospital to ensure that the child receives the appropriate care;

(g) Both parents shall follow the advice and recommendations of Dr. Amiel and the child's treating health care providers at the Holland Bloorview hospital as to the child's health, treatment and therapies. This shall include administering any medication, performing any therapies with the child, and surgery, should that be necessary;

(h) If there is any dispute between the parents as to an appropriate course of treatment after hearing from the appropriate health care professional, then that issue should be submitted to the Court. In such event, the parents should endeavour to obtain and submit a report outlining the medical treatment required, the reason for it and the benefits and risks associated with any course of recommended treatment;

(i) On March 22, 2018, Weagant J. made a final order that both parties have the same rights to the release of information about the child. So that all terms concerning the child's parenting are included in a single order, I will incorporate similar terms here. Therefore, both parents shall have the right to make inquiries and to be given information as to the health, education and welfare of the child;

(j) Both parents shall have the right to attend at all medical appointments, and any other appointments concerning the child. If there are any appointments currently scheduled, then both parents are to be informed of the dates, times and locations of the appointments. If either parent has such information, he or she shall immediately provide the other parent with this information;

(k) The parents shall schedule an appointment with Dr. Amiel that they shall attend together, to have a discussion about the next steps in H.D.'s care. This should also be done at the Holland Bloorview hospital if that is not yet done. The Court requests that Dr. Amiel assist the parents in setting up the appointment at Holland Bloorview, should Dr. Amiel determine that to be appropriate;

(l) The Court requests that Dr. Amiel arrange for an appointment for the father to learn about how to feed the child via her g-tube. The father shall attend as many appointments as are necessary for this purpose. The mother shall ensure that the child is brought to those appointments for the purpose of the father learning how to feed the child and to permit him to practice under medical supervision;

(m) The father should participate in the child's therapies and learn about them. If she determines it to be appropriate, the Court requests that Dr. Amiel request an appointment for the parents at the Holland Bloorview hospital for the father to learn about appropriate therapies for the child. The mother shall ensure the child is brought to any such appointment for this purpose;

(n) The parents shall meet with a social worker from the Holland Bloorview hospital or with Ms. Hugh-Yeun, or both. To the extent that this has not already been done, they shall each start the process to apply for respite care, Wheel Trans and any other benefits that may be available to either of them from the Ontario or Canadian government, any cerebral palsy associations, or from any other relevant source, for either of them or the child. In the father's case he should request whether there is respite care available to help him support his visits with the child set out below;

(o) The parents should also discuss, in consultation with the child's treating health care providers, whether enrolling H.D. in day care is appropriate and if so, what day cares are suitable. If it is appropriate, and the parents, but in particular the mother is willing to enrol the child in day care, then the parents should request assistance from an appropriate social worker with starting that application process. That step may provide the mother with additional parenting relief;

(p) If medication is prescribed by Dr. Amiel that is not covered by any health care plan, then the parents shall share the cost equally;

(q) The father shall have access to the child on Sundays for 5 hours and during the mid week on a day to be agreed upon or ordered by this Court for a period of five hours. The parties should strive to have the day of the week be the same each week;

(r) Regarding the Sunday visits, the father shall pick the child up at 11:00 am and he shall drop the child off at 4:00 pm in front of the Tim Horton's at Lawrence Square;

(s) Regarding the mid-week visits, the parties shall agree upon a consistent day and pick up and drop off times. If they cannot agree, then they shall submit a specific proposal by way of 14B Motion for the Court's consideration;

(t) The father's sister, A.I., shall be present with the father during his visits to support his visits. The father may have access with the child at his home provided that A.I. is present;

(u) The Court did not hear evidence as to A.I.'s availability or willingness to support the father during these visits on an ongoing basis. The Statement of Agreed Facts and temporary consent submitted on September 27, 2019 speaks about her involvement on Sundays only and that consent was submitted pending the release of this Judgment;

(v) As such, if A.I. cannot be present, then the father's visits shall not occur unless the parents agree on an appropriate alternate support person or the Court orders one. This is subject to the additional terms set out below;

(w) That said, it is not the Court's intention to have the father's access visits cancelled. So in the absence of better evidence, the Court will make an order for the involvement of Access for Parents and Children in Ontario;

(x) Therefore, if A.I. cannot be present and there is no agreement or order about an alternate support person, the father shall instead have access at Access for Parents and Children in Ontario. It may be that APCO is unable to facilitate visits twice each week for this many hours. So if APCO becomes necessary but it cannot accommodate the length of the visits specified in this Judgment, the father shall have access twice per week for as many hours as APCO is accommodate;

(y) An APCO order shall issue;

(z) In addition to the regular schedule, the father shall have the child on Christmas Eve from 11:00 am until 4:00 pm in odd numbered years and on Christmas Day from 11:00 am until 4:00 pm in even numbered years;

(aa) The child shall be with the mother on Christmas Day in odd numbered years and on Christmas Eve in even numbered years regardless of the regular schedule;

(bb) The father shall have the child on Father's Day, from 11:00 am until 4:00 pm in addition to the regular schedule;

(cc) The mother shall have the child on Mother's Day regardless of the regular schedule;

(dd) The holiday access is subject to the same terms requiring a support person to be present;

(ee) The parties shall cooperate to obtain any passport for the child or other government issued documents that she may require. The mother shall retain the documents but she shall provide a copy to the father;

(ff) If the mother wishes to travel to Alberta to visit her family, then she shall discuss her proposed trip with the father and provide him with the proposed travel itinerary and contact information while she is away. The parties shall endeavour to agree upon the trip. If so, the father shall provide his travel consent in writing. If the parties are unable to agree, then the issue of travel consent will have to return to Court;

(gg) The father's access to H.D. may be reviewed as H.D.'s medical condition changes, or as the father acquires the skills to provide for her care. If either parent seeks to return the issue of the father's access to Court on a review, then he or she should be prepared to present medical evidence as to the child's current condition as well as proper medical evidence as to the father's ability to handle the child's condition at the time. Ideally, the father will be able to participate in the child's physiotherapy at the Holland Bloorview hospital and so perhaps there will be some evidence from a physiotherapist or someone else from Holland Bloorview on a future review, none of which was presented at this trial;

(hh) On consent, the father shall be entitled to a credit of $1,020 towards any child support that is owing. An SDO shall issue;

(ii) The parents agreed at the outset of this trial that neither was seeking costs against the other. As such, there shall be no order as to costs; and

(jj) If any issues arise respecting the implementation of this Order, particularly as it concerns the implementation of the access Order, then I may be contacted.

[360] I wish to thank counsel for their assistance with this matter.

Released: October 10, 2019

Signed: Justice Alex Finlayson

[1] To arrive at the increased amount of government assistance that the mother says she would receive, I have taken the mid-point of her evidence about the amount of Alberta's social assistance, namely $1,233 per month (ie. $1,172 + $1,294 / 2) less the $700 that she receives in Ontario, plus I added the additional $94 per month that the mother says she would receive for the Alberta Child Tax Benefit. I then multiplied that by 12. From that number, I deducted the $2,000 annual amount of the Ontario Assisted Device Program that the mother now receives.