ONTARIO COURT OF JUSTICE

DATE: 2021 07 29 COURT FILE No.: 40939-20 Toronto

BETWEEN:

P L E Applicant

— AND —

O E Respondent

Before: Justice D. Paulseth

Heard on: July 19, 20, 21, 2021 Reasons for Judgment released on: July 29, 2021

Counsel: Jenna Di Lorenzo.......................................................................... counsel for the applicant Paul Cooper................................................................................ counsel for the respondent

Paulseth, J.:

Overview

[1] The parties are the parents of a daughter, S.E., born […], 2016. The parents met in 2015 and began to reside together shortly thereafter. They married on October 5, 2018 and separated early in 2020. They cannot agree on the date of separation.

[2] When S.E. was 3 years old, she was diagnosed with Autism Spectrum Disorder (ASD), medium functioning and non-verbal. In June of 2020, the child was again assessed and the ASD diagnosis was confirmed. The child was also diagnosed with Attention Deficit Hyperactivity Disorder (ADHD). The child has significant challenges in areas of social communication, reciprocity, non-verbal communication, and substantial restrictive repetitive behaviours.

[3] The child has resided primarily with the mother since separation. In September of 2020, mother and child moved to Nanaimo, British Columbia (B.C.). Mother said she had been telling the father for some time that she was planning to go to B.C. S.E. could not be admitted to junior kindergarten in Ontario (ON) due to her disability and the waiting list for services in BC was much shorter than in ON. Father signed a travel consent but said he thought it was for a holiday only.

[4] In November of 2020 father applied to the court in order to have the child returned to Ontario. Mother agreed that Ontario was the ordinary residence of the child and sought the court’s permission to stay in B.C. for one year.

[5] Following an urgent temporary hearing, the court allowed mother to remain in BC with the child with specific access to father and with the term that she return to Ontario by August 21, 2021.

[6] Mother now seeks to remain in BC and father is opposed.

Issues to be decided

1. Which parent should have final decision-making for SE? Should decision-making be shared?
2. Should mother be permitted to remain in BC with SE?
3. What are the best parenting time schedules for SE?
4. What is father’s income for the purpose of fixing child support under the Child Support Guidelines (CSG)?

Position of the Parties

[7] Father seeks joint decision-making, weekend and mid week parenting time. He is opposed to the child remaining in British Columbia (B.C.) He will pay child support on stated income of $24,000 a year with credit from February to December of 2020 of $600. a month. He offers to pay special expenses if the parents agree in advance in writing.

[8] Mother seeks to remain in British Columbia (B.C.) with sole decision-making authority and liberal access to father in Ontario. She seeks child support according to the guidelines on father’s imputed income of $60,000. of $556. a month from January 1, 2020

[9] Both parents agree to a support deduction order and annual disclosure.

Legal Framework

Jurisdiction

[10] The Ontario Court of Justice is a statutory court and not a court of inherent jurisdiction. This proceeding is governed by the Children’s Law Reform Act (the Act).

[11] The first issue to be determined is whether the case is to be decided under the Act as amended, effective March 1, 2021. The relevant amendments relate to the definitions of best interests and relocation. The parents have agreed that the new legislation will apply to this case.

[12] The changes to the Act mirror the federal changes to the Divorce Act which also came into effect March 1, 2021. The Divorce Act contained transitional directions under subsection 35.3, such that the new amendments would apply to all matters not concluded by February 28, 2021.

[13] Neither the Act nor any regulations attached to the Act contain any transition directions.

[14] The Legislation Act, RSO 2006, indicates in section 52 that if an act is amended, (or repealed or replaced) proceedings commenced under the former act shall continue under the amended one, in conformity with the amended one as much as possible.

[15] In interpreting this section of the Legislation Act, two decisions of higher courts are helpful:

(1) The Ontario Divisional Court in Sisulak v Ontario (Ministry of Community Safety and Correctional Services), 2011 ONSC 1486 indicated

38 The usual canon of construction is to the effect that new statutory or regulatory provisions that are procedural in nature have retrospective effect, while those that change substantive rights do not.

43 Section 52, on the other hand, affects procedural matters. Section 52(3) states that proceedings commenced under the former Act or regulation are to be continued under a new or amended one, in conformity with the new or amended one as much as possible. Section 52(4) provides that the procedure established by the new or amended Act or regulation is to be followed. There is no suggestion in these provisions that substantive rights that have crystallized are to be abrogated. Further, they do not say that the jurisdiction of a tribunal is to be expanded to include cases that arose before an amendment became effective, where the tribunal had no jurisdiction before.

and

(2) In Burlington Airpark Inc. v Burlington (City), 2017 ONCA 420, the Court of Appeal for Ontario similarly indicated

50 The second problem with Burlington’s argument is that, even if s. 52(3) does apply to municipal by-laws, its effect is merely to continue “proceedings commenced under the former Act or regulation”. There is nothing in s. 52 that can be read as continuing the substance of a repealed provision.

Application to this case

[16] There is no substantive relief from the former Act that has been repealed.

[17] Rights and responsibilities for children arising from custody, access and mobility provisions in the old statute are continued in the new statute. Those rights crystallized before the amendments and have not been repealed or abrogated to any substantial degree.

[18] The jurisdiction of this court continues under the new legislation.

[19] The parents, with counsel, have agreed upon and relied upon the new provisions in their preparation for this trial. That is not determinative of the issue but is very helpful. Agreement cannot necessarily confer jurisdiction.

[20] The purpose of the new amendments to the Act is to mirror the federal changes to the Divorce Act and to do so at exactly the same time as the federal changes come into effect – March 1, 2021. The goal is to have all children in Ontario treated the same when their parents separate.

[21] The amendments expand upon definitions and criteria relevant to children’s best interests, with particular attention to domestic violence and relocation issues. These additions are substantive rather than procedural.

[22] The terminology changes: such as, custody to decision-making and access to parenting time, are actually reflective of changes in practice in the family law field that have taken place over the past many decades.

[23] There are thousands of cases in Ontario under the Act every year. As a result of the pandemic, most of those cases that began in 2020 have continued after March 1, 2021. It is essential that the expanded benefits for children in the new legislation be applied equally to all Ontario children, “as much as possible”.

[24] The court will apply the amendments to the Act.

The Amendments

[25] On March 1, 2021, changes were made to the Act that apply to this case; specifically:

(1) Custody is now called decision-making and is defined as the responsibility for making significant decisions about a child’s well-being, including with respect to health, education, culture, language, religion, and spirituality and significant extra-curricular activities.

(2) Access is now called parenting time and is defined as the time a child spends in the care of a parent, whether or not the child is physically with the parent during that time. Unless ordered otherwise, a parent exercising parenting time has exclusive authority over day to day decisions during that time.

(3) Parenting orders must include a written parenting plan which includes those parts that the parents agree upon and any changes the court considers in the child’s best interests.

(4) The best interests of the child continue to be the only consideration. The definition is amended as follows:

(a) The court is to consider all factors related to the circumstances of the child and shall give primary consideration to the child’s physical, emotional, and psychological safety, security and well being;

(b) Factors relating to the circumstances of the child include the child’s needs, the nature and strength of the child’s relationships, the child’s views, the history of care, the ability and willingness of each parent to care for and meet the needs of the child, and any plans for the child’s care;

(c) Any family violence that may impact the ability to care for the child and the ability of the parents to cooperate on issues affecting the child. This definition is greatly expanded upon in the new legislation;

(5) Additional factors that are now part of the best interests’ definition include:

(a) Each parent’s willingness to support the other parent’s relationship with the other parent;

(b) The child’s cultural linguistic religious and spiritual upbringing and heritage;

(c) The ability and willingness of each parent to communicate and cooperate with one another on matters affecting the child; and

(d) Any relevant civil or criminal proceeding, order, condition or measure.

(6) There are no presumptions about parenting arrangements but the court must give effect to the principle that a child should have as much time with each parent as is consistent with the best interests of the child.

Relocation

[26] In determining whether to authorize the relocation of a child, the court shall take into account the best interests of the child under section 24 of the Act, as well as these relevant factors:

(1) The reason for the relocation;

(2) The impact of the relocation on the child;

(3) The amount of time each parent spends with the child and their level of involvement in the child’s life;

(4) The reasonableness of the proposal by the parent wanting to move;

[27] The court cannot consider whether the moving parent would not move or move without the child, if the court prohibited the move.

[28] Except as modified by the amendments to the Act, the decision of the Supreme Court of Canada in Gordon v. Goertz, [1996] 2 S.C.R. 27 is still the leading case. It provides that:

a) there is no legal presumption in favour of de facto custodial parent.

b) the focus is on the best interests of the child and not the wishes of the parent

c) the court should consider the existing parenting arrangement

d) the desirability of maximizing contact with both parents.

e) the views of the child

f) custodial parent’s wishes to move are only considered if they are relevant to their ability to meet the needs of the children.

g) disruption to the child by change in school, community and family they have come to know.

[29] As this is an originating application, the mother has the burden of proving that the move is in the child’s best interests. See s 30.3 in the Act, as amended, 2021. There is a discussion about this issue later in the decision as counsel agreed otherwise.

[30] For new applications, courts often consider the factors outlined in Nunweiler v Nunweiler (2000), 2000 BCCA 300, 5 RFL (5th) 442 (BCCA): the desirability of maximum contact; the views of the child; the reason for moving where relevant to meeting the needs of the child; disruption to the child of a change in custody; and disruption to the child on removal from family, schools, and community.

[31] The Nova Scotia Supreme Court in N.D.L. v. M.S.L., 2010 NSSC 68, listed additional factors that courts have considered when applying the framework in Gordon v. Goertz as follows:

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

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

(b) the quality and the quantity of parenting time

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

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

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

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

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

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

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

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

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

(l) be expected permanence of the new custodial environment

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

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

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

Evidence

[33] Each of the parents filed a trial affidavit and also rely upon their previous affidavits filed in this proceeding.

[34] The paternal grandmother gave evidence.

[35] Two service providers for the child gave evidence.

The case for father

[36] Father describes the relationship as heavily dependent on extended family. The parents and child lived with the paternal grandfather for the first year of the child’s life. When the child was about a year and a half old, the parents were already experiencing relationship issues. They separated temporarily at Christmas of 2017 and again in late 2019, when the landlord told them to leave by March of 2020. During the break up three years ago, father claims that mother made it difficult for him to see the child and he would sometimes have to go more than a month without seeing the child.

[37] Mother worked full time for an information technology recruiter and also worked overtime as a personal assistant and weekend caregiver for the employer’s children. Father worked for a moving company and received cash payments.

[38] Father says he was only working part time from March of 2018 until February of 2020 when the parents separated. He says he was the primary caregiver during this time.

[39] During the pandemic, father received CERB payments and returned to school in April of 2020 to obtain his gasfitters licence. Paternal grandfather paid the school fees for father.

[40] Father testified that he does not have a bank account because he had so little money coming into the account he couldn’t pay the monthly fees. This resulted in no banking disclosure.

[41] When the parents were working, the child had a daycare provider in Ajax. This daycare provider moved to Port Hope with her family and mother and father used her services again. Father says he was opposed to this and wanted a local daycare provider.

[42] When the parents’ relationship started to falter, mother alleged father was drinking and doing drugs to excess. He denies that, although he was convicted for driving under the influence in 2015 and lost his licence. He has yet to pay his fine and has not received his driver’s licence back.

[43] Paternal grandmother testified that, when the parents were together, she and the paternal grandfather often picked the child up from daycare and also helped to drive the child to various appointments. The grandparents are separated but live very close to each other and lived close to the father and mother. Father lives with his mother now and the paternal aunt also lives there. Paternal grandmother offered to financially assist with the cost of the child’s treatments if mother returns to the Greater Toronto Area (GTA).

[44] Paternal grandmother works full time from home for Telus from 8:30 a.m. until 5:00 p.m. but has some flexibility with her hours.

[45] Paternal grandmother described a close paternal extended family. She and her ex-husband live next door to each other. The child spent time cooking with the paternal grandfather. Paternal grandmother spent a lot of time with father and the child on the weekends. Paternal grandmother knew nothing about the plan to move to B.C.

[46] Paternal grandmother describes the child’s move to B.C. as a “profound loss”. They all miss the child terribly.

[47] Father maintains that he was a very involved parent when the parties were together. He attended the Grandview assessment and an appointment at a private clinic in Toronto. He says that the child was not diagnosed until October or November of 2019 so mother could not have been planning the trip for two years based on the child’s treatment needs.

[48] Father applied to the court on November 27, 2019. In his materials, he described a vacation to Ireland with mother in October of 2019, where she assaulted him. Mother responds to this by describing a brutal attack by the father in Ireland during this vacation, which culminated in him pushing her out of the car. She sustained bruises and had to walk two hours in the rain back to the hotel. Mother also said father received a speeding ticket during this trip for driving 110 km/hour in a 50km/hour zone.

[49] After the separation, father testified that he and his mother often took the child to appointments as the mother was working.

[50] Father admits that communication was poor after the separation.

[51] Father owed mother money from debts accrued during the relationship and repaid her from his CERB payments. He also paid mother $600 a month for child support from February until December of 2020. Father contends that those payments were in excess of the Child Support Guidelines and he is owed a credit.

[52] Father says that mother was verbally abusive to him and belittled him. He denies ever being abusive to her and points to mother’s invitations to father to come to B.C. and/or holiday with her and the child.

[53] It is the father’s position that he may have known mother was going to B.C. with the child, but only for a vacation. He signed the travel consents.

[54] Father disagrees that the child would not have been admitted to junior kindergarten last year because she was not toilet trained and had little speech facility. He claims the school board would have to take her and provide services.

[55] Father agrees that he did contact the Ontario service providers and may have inadvertently told Grandview that the mother and child were no longer in Ontario. As a result, Grandview Children’s Centre (Durham region) took them off the waiting list.

[56] Father agrees he contacted George Hull Centre and was surprised that it was a Toronto service provider.

[57] Father alleges that mother misused the Ontario funding and has been dishonest about her commitment to return to Ontario in August of 2021. Father contends that Mother applied for B.C. funding in March of 2021, because she planned to remain there.

[58] Mother indicates that the B.C. school has already met with her and included the current service providers for the child. The plan is to transition the child seamlessly to kindergarten. Father maintains that was her plan all along. Father testified that the Ontario school has the child registered and would probably have the same services for the child.

[59] Father has identified some web sites that indicate they have services available now for the child and do not indicate there is a waiting list. He attaches as exhibits to his affidavit:

(1) A print-out of the Ontario Autism Program website;

(2) A copy of an email to his counsel on July 12, 2021 from an administrative assistant for the Crystall Ladder private programs for autistic children located in Woodbridge. This company can provide speech, equine, hydrotherapy, neurofeedback, and kindergarten services.

(3) On June 17, 2021, the paternal grandmother communicated with the Spark Autism private program and registered the child on their waiting list for the Avenue Road and Lawrence location.

(4) On June 22, 2021, father emailed Speech Therapy Works.

(5) On July 12, 2021, father printed out the website information for Ontario Autism Program: Interim Funding.

(6) When mother sent the father a picture of the child in a new winter coat, father went to a website and printed out the cost of the coat and the advertisement from a high end store where it is available.

(7) Also on July 12, 2021, father printed out the web information for the early years program for children in Ontario with autism; one page on the Mother Goose storytelling program; and one page from a web site in Haliburton about Infant and Toddler Development.

[60] Father offers to pay child support on his 2020 income, the Notice of Assessment for which he does not yet have. The income is estimated by father to be about $24,000, based on CERB payments. He offers to pay $192. per month, commencing February 1, 2020 with a credit of $600 a month from February until December of 2020.

[61] Father says he will start working in September of 2021 at the fireplace store as an independent contractor on commission. He hopes to earn about $30,000 to $40,000 annually. There is no evidence of industry pay scales.

[62] Father filed a Financial Statement in February of 2021, claiming income in 2020 of $18,000 with expenses of $10,000. No current financial form was filed for this trial. There is no evidence of efforts to find employment while in school.

[63] Father currently sees the child virtually three times a week. It is not the best method for access to this child. He cannot afford to go out west to visit the child. Father seeks joint parent decision-making with parenting time every weekend, a three hour mid-week visit, and shared holidays.

The case for Mother

[64] Mother describes her relationship with father as toxic. She describes father as drinking and smoking marijuana daily and also using cocaine. She deposed that father was also abusive: physically, verbally and emotionally. On several occasions, she learned that father was caring for the child while under the influence of alcohol and drugs. This necessitated the use of full time daycare.

[65] Mother first noticed that the child did not seem to be developing normally when the child was only 5 months old. Thus began the all-consuming parenting task of identifying and meeting the child’s special needs. The court notes a brief summary from mother’s evidence as follows:

(1) Referral to ear specialist in December 2017 as child did not appear to hear;

(2) May of 2019, mother requests a developmental assessment and referral made to Dr Peltz; Father also attends;

(3) January, 2020, child diagnosed by Dr Peltz with Autism Spectrum Disorder(ASD);Father also attends;

(4) January of 2020, mother registers for Grandview assessment – put on waitlist. Father and paternal grandmother also attended one of the assessment appointments. Mother registers child with George Hull for Early Abilities program;

(5) February 5, 2020, mother registers with the Ontario Autism program (5 plus years’ waiting list);

(6) August 10, 2020, mother attends zoom meeting with Grandview; August 17, 2020, child assessed again and diagnosis of autism and attention deficit hyperactive disorder (ADHD) confirmed by Grandview; September 9, 2020 mother and child attend zoom session; November 9, 2020, mother registers child for occupational therapy at Grandview – 12 month waiting list. January 11,2021, mother attends occupational therapy workshop;

(7) August 13, 2020, child assessed at George Hull; August 20 and October 8, 2020, mother attends parent training workout; child’s last available session was January 8, 2021;

(8) September 19, 2020, mother registers child with Nanaimo Strong Start program at Fairview Elementary- Wednesdays and Fridays for 30 minutes; begins January 13, 2021 until current time;

(9) On October 5,2020 mother and child attend for assessment at Nanaimo Child Development Centre (CDC). Child is approved for occupational therapy, family development, and language therapy. This program had a 12 week waiting list, compared to 12 month waiting list in Toronto. This therapy began in Nanaimo on January 25, 2021;

(10) Mother and child attend Early Years Healthy Start programs on October 19, 2020 November 19, 2020 January 5, February 3, and March 6, and April 7,2021;

(11) October 26, 2020 mother attends for child’s speech therapy re-assessment;

(12) Local Mother Goose Program – weekly since November 24, 2020;

(13) Treatment with Dr Rahkee Maniar November 27, December 4,18,28 2020 and January 4, 2021;

(14) November 28, 2020 Mother attended zoom language workshop;

(15) December 9, 2020 until June 30, 2021, child attends with Bee Positive Support Service- three times a week or where there are conflicts twice a week; this service can also transition and work with local public kindergarten;

(16) Mother attends with child for speech pathology with Lisa McFarlane- January 12, February 9, and March 9, 2021;

(17) January 18, 2021, mother attends Nanaimo CDC to discuss occupational, speech, and family therapies; the appointments were then set up-

(a) for occupational: March 11, April 9, 16, 23, 30 2021

(b) for speech: March 9, 23, April 6, 20, May 4, 18 2021

(c) for family support: March 22, April 1, May 6, 2021

(18) FOOTHOLDS private programs for occupational and speech therapy began in April, 2021 on a weekly basis. Payments for this were approved through the B.C. autism funding;.

(19) In June of 2021, mother received the report from FOOTHOLDS outlining the goals and plans for next year.

[66] Mother continued to use Ontario service providers, as services were being provided virtually due to the pandemic. The child received virtual speech therapy from the George Hull centre (Sept 8 and 14, 2020) and Smile Speech Therapy (November 27, December 4,11,18, 2020 and January 8 and 15, 2021)

[67] Mother also applied for and received $20,000 in funding from Ontario (the Ontario Autism Program or OAP) for the child due to her diagnosis. This funding is available in Ontario due to the 5 year waiting list for services for autistic children. This money can be used, amongst other things, to purchase private therapies.

[68] Services for autistic children cost money. The only free service in Ontario has been Grandview and the mother and child have completed that service. The child has also completed the available services at George Hull. Mother has used the remainder of that money for respite care, diapers, services, toys and tools for the child. Mother applied for this funding in February of 2020 but it did not come through until September 8, 2020. By then mother had moved to BC with father’s written consent. The child would not be eligible for another application for OAP funds until March of 2022. This set of funds will expire in June of 2022 when the child turns 6. Thereafter, the annual fund is only $5000.

[69] Mother believes and was consistently advised that recreational programs with other children were very helpful to this child’s socialization. Accordingly, mother registered, paid, and took the child to weekly gymnastics programs ( beginning March 12, 2021), weekly musical theater (beginning February 6, 2021), weekly taekwondo (beginning February 6,2021), weekly dance classes (beginning February 16, 2021); weekly Mother Goose program (beginning March 9, 2021), and karate in May of 2021. Mother also ensured the child participated in additional special programs; such as Senses of Spring, Wet and Wild, Ants and Parade, all available through the local Nanaimo recreation department.

[70] In BC, the child participates in a number of services that are free of charge and not available in Ontario. BC also has funding available which mother finally applied for in March of 2021 and received within days!

[71] Mother was advised that the child would not be eligible for junior kindergarten in Ontario for the 2020-2021 school year as she had little speech and was not toilet trained. In planning for the coming school year, mother was advised by Grandview in April of 2021 that the ratio of educational assistants to children like this child is one assistant to three or four children. The school is closed for the summer and no Individual Education Plan meetings have been scheduled.

[72] In B.C., by contrast, there has already been a meeting called by the local school with the service providers invited in order to plan for the coming kindergarten year. There will be a 1:1 educational assistant for the child and the transition will be supported and seamless.

[73] Mother has some family support nearby: a cousin and a godparent. Mother also has an older daughter, aged twelve years, who lives with them in Nanaimo. Her mother travels to BC often to see them.

[74] The child has already begun treatment services at CDC early in 2021 when she was still on a waitlist for those same services in Ontario.

[75] Father stopped paying child support in December of 2020. By March of 2021, mother obtained a job working as a personal support worker. In April, she was named employee of the month and can expect to be promoted.

[76] Mother testified that father has regularly worked two different jobs: one for his father for cash and one for the moving company also for cash. He has always contributed the $600 a month for daycare and then child support.

[77] Mother has committed to following court orders, including any order made to return with the child to Ontario. The court notes that this factor is specifically excluded in any relocation consideration.

[78] If mother is permitted to stay in B.C., she offers parenting time to father as follows:

(1) One month in summer in Ontario ;

(2) Christmas vacation every year with the actual statutory holidays to be shared on alternating years

(3) March break every year

(4) Video/telephone three times a week;

(5) Further parenting time in Toronto if mother comes home

(6) Further parenting time in Nanaimo, on notice, including overnights and subject to father having adequate accommodation for the child;

(7) Further time as agreed upon in writing

[79] Robyn Auclair gave evidence about her private specialized service for autistic children. She has special qualifications ranging from early childhood education diploma to certificates in special education and community support to more than 15 years experience in working with autistic children.

[80] Ms Auclair was a very impressive witness. She has been seeing this child for intensive therapy three times a week since meeting Mother and child in early November of 2020. Most recently she dropped back to twice a week and, after a summer break, could return to three times a week

[81] When Ms Auclair began therapy with this child, the child was non-verbal, had huge temper tantrums, was defiant, could only play alone, and had no social skills.

[82] Now, Ms Auclair describes a completely different child:

(1) She can speak fully and in sentences.

(2) She can communicate effectively.

(3) She can listen to authority most of the time.

(4) She can play cooperatively with up to two children.

(5) She has a friend Ari; they hold hands.

(6) She is toilet trained for daytime hours

[83] At one point Ms Auclair thought the child could attend a pre-school program without supports but she has corrected that opinion. This child needs one to one; she is known as a “bolter” who requires “hip to hip” constant attention. This child will require supports for life.

[84] Ms Auclair has tried virtual therapy with autistic children but has not found it particularly effective.

[85] Ms Auclair was invited by the school to a full team meeting in order to ensure the child has all the right supports for kindergarten in the fall of 2021. This child would receive a one to one educational assistant, for 6 hours a day and five days a week.

[86] Ms Auclair will continue to support this child and complement the work of Foothills and the school.

[87] In December/January of 2021, Ms Auclair was given a written consent to speak with the father. Father contacted her to verify who she was in January of 2021 but has not contacted her again. He has not requested any updates or reports on the child.

[88] Mother told Ms Auclair that she was returning to Ontario this summer.

[89] Ms Auclair is familiar with the activities with which mother engages this child: hiking and walks and exploring. Mother has never been late or missed an appointment. Mother pays her $25 an hour, in advance.

[90] Ms Ashley Dyke has been this child’s babysitter and daycare provider for several years. Although she has no special certificates, she is an experienced provider and also has an autistic child.

[91] Ms Dyke first met mother in 2016. Their relationship has always been professional. In January of 2017, she met the child but didn’t see the father until about a year later. She started providing part time daycare for 4 hours a day for about two years and then it was extended to full days.

[92] Ms Dyke lived down the street from the parents in Ajax. Mother worked a few blocks away and worked until 6 p.m. Mother depended on father to pick up the child as the daycare closed earlier. Father seldom picked up the child. Mother would have to leave work early to pick up the child. Ms Dyke would drop off the child numerous times at the home and father would be” high” on drugs. One time father came to pick up the child with his boss in the boss’s truck and there was no car seat for the child. They left with the child between them in the front seat.

[93] Ms Dyke noticed when the child was about 6 months old that she was not developing normally. She could recognize the signs as her own daughter is autistic. Father wouldn’t listen to her. He said “there is nothing wrong”. Mother did listen. Ms Dyke suggested resources such as Grandview to mother.

[94] In 2019 Ms Dyke and her family moved to Port Hope. From June of 2019 until June of 2020, she provided home daycare from Sunday evenings until Friday for this child. Only twice did father pick up the child in Port Hope. The last time he dropped off the child, the child was soiled and father appeared drunk. Father, paternal aunt and paternal grandfather were returning from a camping weekend. Father was told to never come back to her home. Once or twice the paternal grandparents came to Port Hope.

[95] Neither father nor paternal grandparents ever asked Ms Dyke about the child. Ms Dyke sent pictures to the father but he never responded. By contrast, mother would be in touch several times a day- by phone and text and facetime. Pictures would be sent frequently. The maternal grandmother would facetime twice a week. The child would ask for mother but never for father.

[96] The parents split the cost of the daycare. Mother was always on time and father would not be. He said he had to borrow the money from his mother.

[97] On several occasions, Ms Dyke noticed drug paraphernalia in the child’s stroller and once found a bag of beer empties.

[98] Ms Dyke testified that mother was working extra hours for their move to B.C. and the father was not capable of caring for the child on his own. She knew from the parents that they planned to move to B.C. to get father away from his family and the alcohol and drug abuse. Then father changed his mind and didn’t want to go

[99] Ms Dyke would use flash cards with the child and the child learned words such as dog and colours. The child had no sentences.

[100] When Ms Dyke saw the child at Christmas of 2020, she was amazed at the child’s use of full sentences and her ability to socialize with other children.

[101] Ms Dyke had always been told by mother that she and the child were coming back at the end of August of 2021. That was always the plan.

[102] For about 5 years, Ms Dyke saw the relationship between the mother and father. She described it as “toxic”. She said that father was very vulgar to mother. Mother called her from Ireland and told her about the bruises mother sustained when father threw her out of the car.

[103] Ms Dyke observed the child and mother to have a great relationship. The child was always excited to see mother

[104] Ms Dyke is familiar with services for autistic children as she has an autistic daughter. She described Ontario support as “awful”. She confirmed mother’s information that one to one assistance in the local school is not available in Ontario.

[105] I found Ms Dyke to be an honest, hardworking, and compassionate person, who keeps children’s best interests as her primary focus. She clearly expects parents to act responsibly as adults.

The December 2020 Visit

[106] Mother indicated she would be home for Christmas in December of 2020 for about 5 weeks. Mother wanted access negotiated between the counsel for the parties in advance. Mother offered substantial time to father and his family. Mother understood that father would not agree to a, without prejudice, mutual prohibition on drinking and drugs while caregiving for this child. Nothing was agreed upon before mother and child arrived back in Ontario.

[107] Twice father showed up at mother’s home during the Christmas holidays seeking access. Mother said it had to be agreed upon between lawyers. Father then offered to sign the prohibition condition. Mother would not negotiate directly with father. Father did not see the child.

[108] Mother also offered three calls per week with the child. Father called a total of three times from December 7, 2020 until January 11, 2021.

Credibility

[109] Father argues that mother is misleading both him and the court. To support this position, he points to the following:

• Mother always planned to stay in BC.
• Mother applied for and received funding for the child in BC in March of 2021.
• Mother has already met with the school in BC.
• Father gives a bald denial of any abuse of substances.
• Mother is fraudulently misusing the Ontario funds for ASD children

[110] Father does not deny that he and mother had talked about moving to B.C. as a family.

[111] Father gives no explanation as to why he still does not have his drivers licence.

[112] Mother contends that she did have an original plan to go for one year but it changed. She relies on the following points:

• Her lease in BC is up in August of 2021
• She has maintained her accommodation in Toronto, by paying for the condo fees
• She pays for storage in Toronto of all of her furniture and belongings except clothes needed for this past year
• The local school in Nanaimo initiated the meeting; whereas, the school in Toronto has not made any outreach.
• Ashley Dyke, the babysitter in Ajax and Port Hope confirmed her understanding that originally the parents were going to move to BC so that father could get away from the drinking and drugs associated with he and his family. After separation, the mother continued to plan and she heard the parents talking about this as a one year plan
• Robin Auclair also confirmed the mother told her in the fall of 2020 that she and the child were in BC until this summer

[113] The evidence also points to Father attempting to sabotage the child’s treatment at Grandview, by advising them that the mother and child do not live in Ontario. This would only have the effect of hurting his child and her treatment.

[114] On December 10, 2020, father also advised George Hull that the mother and child had moved to B.C.. As the child only had a few sessions left, mother was able to successfully beg for the child to complete them.

[115] Father did not visit the child in December of 2020 when she and the mother were back in Ontario, despite a generous parenting time offer.

[116] Mother will submit all her receipts for the OAP funding and admits she probably was mistaken in thinking the diaper costs were an allowable expense.

[117] Where the evidence of the mother and the father conflict, I prefer the evidence of the mother because:

• Mother is child focused.
• Mother was the primary caregiver and more in tune with the child’s needs.
• Father could not organize his affairs to ensure he saw his daughter during the 5 weeks she was in Toronto at Christmas, 2020
• There is no dispute that mother had more contact with the child’s service providers when she lived in Ontario than father

The Child

[118] This child has a number of special needs. She is also very fortunate to have a parent who noticed these needs so early in the child’s life.

[119] To learn that this child has progressed from one word flash cards to full sentences is completely wonderful. To also learn that the child has a friend is more than wonderful.

[120] Clearly, the work that mother has identified and facilitated over the past year has been very successful.

[121] This child will require a very high level of ongoing and intensive support to really reach her full potential. She deserves this.

[122] What has been unsaid in this trial but what is apparent to the court is that both parents and their extended families love this child. It has been difficult for them to agree upon how to show that love. This situation is complicated a thousand times by the emerging special needs of the child. It must have been very hard for these parents. It must have felt overwhelming at times.

Best Interests Analysis

[123] A review of the caselaw indicates a consistent focus on the child, her needs, her relationships, and her stability; for example:

1. The child’s best interests are not merely “paramount” – they are the only consideration in this analysis: Gordon v. Goertz, [1996] 2 S.C.R. 27 at para. 28; Mattina v. Mattina, 2018 ONCA 641
2. The court must ascertain a child’s best interests from the perspective of the child rather than that of the parents. Gordon v. Goertz, [1996] 2 S.C.R. 27.
3. No one factor in the statutory definition of a child’s best interests is given statutory preeminence. Wilson v. Wilson, 2015 ONSC 479.
4. A young child with attachments to both parents needs sufficient contact with both, without prolonged separations to maintain a meaningful and close relationship with them. Van Den Driessche v. Van Den Driessche, 2011 MBQB 120; Wilson v. Wilson, 2015 ONSC 479.
5. In resolving custody disputes, emphasis must be placed on the critical importance of bonding, attachment and stability in the lives of young children. Barnes v. Parks
6. The court should consider the level of hostility and the extent to which that hostility may undermine the child’s stability. Wilson v. Wilson, 2015 ONSC 479.
7. The court should consider how the person seeking access has used contact for a purpose collateral to the child’s best interests. Lusher v. Lusher (1988), 13 R.F.L. (3d) 201 (Ont. Prov. Ct – Family).
8. Financially supporting one’s children in a responsible manner is an important part of being a parent. The failure to do so is a factor militating against a joint custody order as it demonstrates poor judgment and an inability to prioritize the child’s interests. See: Jama v. Mohamed, [2015] ONCJ 619; P.H. v. T.J., 2017 ONCJ 166; McBennett v. Danis, 2021 ONSC 3610.
9. A starting point to assess a child’s best interests when making a custody or access order is to ensure that the child will be physically and emotionally safe. It is also in a child's best interests when making an access order that his or her caregiver be physically and emotionally safe. See: I.A. v. M.Z., 2016 ONCJ 615.

The child’s physical, emotional, and psychological safety security and well being

[124] This child’s needs are extraordinary. She requires “hip to hip” or constant supervision. She also requires regular treatments from different providers for socialization, speech, skills, and behaviour. She will require support for her entire life.

[125] This child needs a parent who is also an advocate.

The child’s needs and history of care

[126] The evidence is very clear that mother has worked tirelessly to provide for this child’s needs, while father drank and abused drugs.

[127] It is heartbreaking to hear evidence that a devoted daycare provider attends at father’s home to drop off a special needs child and finds father “hot boxing” in his car.

The nature and strength of the child’s relationships

[128] Both service providers spoke to the close relationship between the child and mother. Mother is constantly in touch with the service providers to learn how the child is doing. Father is not

[129] Mother looks to expand this child’s horizons as well by exploring their environment in BC.

[130] Father took the child camping and came home drunk.

The ability and willingness of each parent to meet child’s needs; The plans

[131] After making extraordinary efforts, mother has put forward a very detailed plan for the child’s therapy needs and for parenting time for father.

[132] Father printed out some web sites within two weeks of the trial.

[133] Again, the court hastens to point out that the father has not seen this child in person in almost a year, so it is difficult for him to appreciate the child’s needs. Sadly the fault for that huge gap lies with father.

The ability of parents to cooperate on issues affecting the child

[134] The evidence of father is that they did not communicate well after the separation.

[135] Much of the evidence about the parents before separation is that they did not communicate very well.

[136] The evidence is clear that mother made significant efforts to inform the father about the child and that father seldom enquired directly from service providers about the child.

[137] Father is very critical of mother and seemingly plans to report her for fraud. He is actually critical of her for buying a nice coat for the child. This attitude from a father who stopped paying child support is not helpful to father’s position.

Any family violence

[138] The incident in Ireland is very disturbing. Father denies the allegations but also says he does not remember.

[139] Father’s drinking and drug use have played a major role in destroying his relationships.

[140] Bald denials do not begin to address this issue.

Each parent’s willingness to support the other parent’s relationship with the child

[141] Mother has made many efforts to keep father informed and engaged with the child’s service providers. She facilitated regular access when they were both in Ontario, although father could not drive and did not always take advantage of the access.

[142] Father is not respectful of the initiative and hard work that mother has maintained in order to support this child.

The child’s cultural heritage

[143] There does not appear to be any specific heritage or cultural customs

Ability and willingness of each parent to cooperate and communicate on matters affecting the child

[144] The Christmas visit of 2020 is a good example of how the parents operate. Mother plans in advance and paperwork is sent through the lawyers. Mother volunteers to also agree to have no alcohol or drugs so that father will agree to that condition. Mother agrees to call the conditions “without prejudice”. She wants the child to see the father and his family at Christmas.

[145] Father won’t agree and appears to think he can bully his way into access on two occasions.

[146] Children, all children, but particularly autistic children, like routine and can have a hard time with transitions and change. Father’s approach does not seem designed for a successful relationship, from the child perspective.

Primary decision-making

[147] The Ontario Court of Appeal has recently clarified that the sequence of decisions by the trial judge relating to decision-making and relocation depends on the circumstances and facts of each case. The important approach is to conduct a very thorough enquiry. See Bjornson v Creighton, and Moreton v. Inthavixay, 2021 ONCA 501.

[148] Father is seeking joint decision making. He continues to seek this despite the following:

(1) There is no real dispute that mother has always been the primary caregiver;

(2) After separation, father testified that they did not communicate well

(3) When mother had to work extra time to save money for the move to B.C., father did not pick up the daycare slack but went along with the plan to place the child with their daycare provider full time from Sunday evening until Friday every week.

(4) After arriving drunk at the daycare provider’s home, father was told not to return.

(5) Although father did attend two of the early appointments for the child, mother has organized and participated in the vast majority of the child’s treatments.

(6) Father has never followed up with service providers for updates on his child.

[149] It is completely in the child’s best interests to have mother as the sole decision-maker, because:

(1) Mother is motivated by the child’s best interests.

(2) Mother works very hard to identify, fund, and organize therapy and schedules such that the child’s special needs are more than adequately met.

(3) The child has flourished under the mother’s care.

(4) Mother completely supports the child’s relationship with the father, subject to the father needing to address his addiction issues.

[150] Father cannot have any control over the child’s documents and travel because:

(1) Father’s approach has been unreasonable and stubborn.

(2) Father could not find a way to agree on Christmas and summer access in advance.

(3) Father is not child focused.

Relocation- Onus

[151] Counsel for mother indicated that both counsel agree that under the new provisions, father has the onus of proving that the relocation should not occur. Certainly under the new provisions of the Act, the parent who spends the most time with the child does not generally have the onus of proof for a relocation.

[152] In this case, I disagree for these reasons:

(1) The court made a temporary order that mother could stay in B.C. but the court order also stipulated that mother was to return in August, 2021.

(2) Father relied on that temporary order.

(3) It is mother that seeks to change the last order.

[153] I am treating the case as one where mother has the onus to prove the move is in the child’s best interests, taking into account the expanded definition and further factors.

Relocation- Best Interests plus

[154] The court must take into account the best interests of the child under section 24 of the Act.

[155] The existing parenting arrangements allowed the mother to live in B.C. for a temporary period of time. The parenting time has been restricted due to the distance and to the child’s special needs.

[156] Mother attempted to provide the father with a generous amount of parenting time over the Christmas holidays. Father did not take her up on the proposal. Father did not see his child at all during the more than 5 week Christmas visit that the child was in Toronto. The fault lies squarely at father’s feet. Father barely phoned the child.

[157] The child and mother have now connected with the expanded autistic community in B.C.- treatment, therapies, local activities, and school.

[158] The reason for the move is disputed. The motion judge believed that father had consented to the move. I also believe that.

[159] It is possible that mother plotted this entire strategy so as to enable her to leave the father. Mother could not have known, however, the extent of the resources and their availability in Nanaimo, nor how the child would respond to them. In fact, the child has really blossomed.

[160] The impact of the move on the child has been minimized due to her participation in so many activities in the Nanaimo area.

[161] The evidence clearly indicates the mother is the primary caregiver for this child in Ontario and in B.C. Mother was the parent most involved in identifying necessary resources for the child and ensuring the child participates in those resources. Before the move, mother spent the most amount of time with the child.

[162] Father’s plan for the child is to photocopy some web sites and depend on paternal grandmother to contact them, pay for them, and drive the child.

[163] The mother’s proposal is very detailed and child-focused. Mother is also working very hard to add to the small amount of money available for this child both now and in the future.

Parenting Time

[164] The Act states that the child should have as much time with each parent as is consistent with the best interests of the child.

[165] I accept the mother’s proposal for father’s parenting time, because

(1) It is based on the child’s best interests.

(2) It gives father liberal time during holiday periods and if/when he travels out west and when mother visits Ontario.

(3) It minimizes disruption to the child’s services and treatment therapies.

(4) It also provides for time with the extended family.

[166] The proposed minimum of three times a week by video or telephone is not necessary though, as it has been difficult for father to make the times and video is perhaps not the best medium for the child. The court will leave that to the parents to reach agreement as part of any additional time for father.

Child Support

[167] When the parents were together, they split the cost of rent and child care; such that each gave $600 a month toward the cost of child care and $600. towards the rent. When they separated, mother asked father to pay the same amount for child support- $600 a month. He agreed.

[168] Mother and the child moved into a condo, owned by maternal grandmother. When mother and the child went to B.C., mother continued to pay the condo fees of over $400. a month. Father moved in with his mother and pays $200 a month in rent, according to his last Financial Statement from February 23, 2021.

[169] From February until December of 2000, father paid $600. a month in child support to the mother. The court must assume that father is working for cash somewhere- either with his father and/or the moving company.

[170] It appears that before CERB, father reported little or no income. Clearly, however, father earned enough in cash jobs to pay his rent and childcare contributions as well as money for food and spending.

[171] Father swore an affidavit on May 18, 2021, explaining his financial situation. He started collecting CERB in March of 2020. He earned $6,000 from his moving job in 2020. His course costs $7454 and finishes on August 27, 2021. The course is only 4 days a week.

[172] Father provides no bank records and no information about looking for work. Father does not explain why he cannot still work for the moving company or for his father.

[173] As indicated by the court in Abbas v Albohamra, 2020 ONSC 591:”The Court of Appeal for Ontario has repeatedly emphasized that the most basic, foundational obligation on both parties in family law matters is to fully disclose their financial information. The requirement is immediate, ongoing, and automatic, and should not require court orders. “

[174] The Ontario Court of Appeal in Drygala v. Pauli, [2002] O.J. No. 3731 (Ont. CA), set out the following three questions which should be answered by a court in considering a request to impute income:

1. Is the party intentionally under-employed or unemployed?
2. If so, is the intentional under-employment or unemployment required by virtue of his reasonable educational, the needs of the child or reasonable health needs?
3. If not, what income is appropriately imputed?

[175] Because father provides little or no financial information, the court is forced to conclude that father is underemployed, pursuant to section 19 of the Child Support guidelines (CSG).

[176] Once under-employment is established, the onus shifts to the payor to prove one of the exceptions based on reasonableness. When an employment decision results in a significant reduction of child support, it needs to be justified in a compelling way: See: Riel v. Holland, at paragraph 23. It must be reasoned, thoughtful and highly practical: See: Hagner v. Hawkins, (Ont. S.C.) at paragraph 19.

[177] Separated parents have an obligation to financially support their children and they cannot avoid that obligation by a self-induced reduction of income. See: Thompson v. Gilchrist, 2012 ONSC 4137; DePace v. Michienzi, [2000] O.J. No. 453, (Ont. Fam. Ct.).

[178] Imputing income is one method by which the court gives effect to the joint and ongoing obligation of parents to support their children. In order to meet this obligation, the parties must earn what they are capable of earning. If they fail to do so, they will be found to be intentionally under-employed. The test is based on reasonableness.

[179] It is not reasonable for a payor to return to school and not pay support, unless it is justified by a sufficient increase in earning ability that will benefit the children. Carter v. Spracklin, 2012 ONCJ 193, [2012] O.J. No. 1533 (OCJ); Ffrench v. Williams, 2016 ONCJ 105.

[180] The onus is on the payor parent to justify the decision to reduce their income. The payor cannot just present the income they are earning. The payor’s previous income is a rational basis on which to impute income, as it is the amount that the payor would have continued to earn but for their decision to leave their job: Olah v. Olah, Weir v. Therrien, [2001] O.J. No. 2612, supra; Vitagliano v. Di Stavolo Laing v. Mahmoud, 2011 ONSC 4047.

[181] Father provided no information about what his expected income at the fireplace store will be. The court asked him. He estimated $30,000 to $40,000. It is unlikely that anyone would take an 18 month course to obtain a minimum wage job so I am forced to conclude that father will earn more than that.

[182] The third question in Drygala v. Pauli, supra, is: “If there is no reasonable excuse for the payor’s under-employment, what income should properly be imputed in the circumstances?” The court must have regard to the payor’s capacity to earn income in light of such factors as employment history, age, education, skills, health, available employment opportunities and the standard of living enjoyed during the parties’ relationship. The court looks at the amount of income the party could earn if he or she worked to capacity. See: Lawson v. Lawson.

[183] Father provided no information about why he stopped paying child support in December of 2020. Mother says it is because he was served with her documents for a divorce.

[184] When the parties were together, father paid $600. a month towards the daycare, although he occasionally struggled with that payment, possibly due to the expense of drugs and alcohol. For almost a year following separation, father paid $600. a month to the mother for child support. This amount seems the most consistent and rational basis for setting child support.

[185] Based on the findings above, I impute father at income of $60,000 a year. Child support for one child under the CSG is $556 per month, commencing January 1 2021. A support deduction order will issue.

[186] There should be annual disclosure by father of his tax notice of assessment by June 30th for the purpose of ensuring the correct amount of child support, should father ever earn money above board.

[187] If and when the parties agree on a special expense for this child, both parties should disclose their Notices of Assessment annually by June 30th.

Final Orders

1. Mother to have primary residence and sole decision-making with respect to the child. Mother to have sole authority over travel and identifying documents for the child, including passport, without notice to nor consent of the father.
2. Mother and child may continue to reside in BC and the child’s habitual residence will be BC.
3. Father to have parenting time per the draft order of mother, paragraph 3, except for paragraph vi.
4. Father to have access to information about the child’s service providers per draft order of mother, paragraph 4.
5. Father is imputed to have income of $56,000 a year and to pay child support of $556. a month, commencing January 1, 2021.
6. SDO and annual disclosure by father by June 30th of his Notice of Assessment
7. Section 7 expenses to be paid proportionate to incomes as agreed upon in writing in advance. Once there is an agreement on a section 7 expense, then both parties should disclose their notices of Assessment annually by June 30th.
8. Father may not bring a Motion to Change without leave of the court; the court may want to consider if costs orders are paid and whether father has been able to address his addictions.

Costs

[188] If there is no agreement, submissions can be filed as follows:

By Respondent – maximum 3 pages, excluding bills of costs and offers to be served and filed with TCO within 2 weeks of this decision

By Applicant – maximum of 3 pages, excluding bills of costs and offers to be served and fled with TCO, within 7 days of receiving the applicant’s submissions.

No right of reply.

Dated at Toronto, this 29th day of July, 2021

Debra Paulseth