Ontario Court of Justice

Date: 2022 01 12 Court File No.: Thunder Bay FO 18-335-00

Between:

MEGHAN RUTH GORMAN Applicant

— AND —

TERRI RICHARD GORMAN Respondent

Before: Justice D.J. MacKinnon

Heard on: August 23, 24 and 26 Reasons for Judgment released on: January 12, 2022

Counsel: K. Costa, for the applicant(s) T. Gorman, on his own behalf (assisted by L. McGuire, Indigenous Court worker)

MacKinnon J.:

[1] The parties, Meghan Ruth Gorman and Terri Richard Gorman cohabited in 2009 and married in August of 2010. The parties are the parents of Leah (February 2012) and Bentley (October 2013). The family moved to Thunder Bay for the father’s work in October of 2015 and have lived here since that time. They separated on December 7, 2018.

[2] The mother brought an application to court as a result of withholding by the father. The father answered. The parties entered into a consent interim interim order on December 13, 2018 providing for joint custody, primary residence with the Applicant without prejudice and other terms of parenting by the Respondent based on his employment schedule. The father has the children in his care from Thursday evening to Sunday in one week and from Thursday night to Friday morning in the alternating week. With some variations and additions including sharing of time for holidays, which were done generally on consent, these are the arrangements that have been in effect.

[3] The matter came before me for trial on August 23, 24 and 26 2021. Between the Trial Management Conference on April 28,2021 and the trial, the Respondent became self-represented. This presented a difficulty at trial as he is unable to read and failed to comply with some aspects of the trial management order.

[4] The Respondent also did not respond to a Request to Admit served by the Applicant’s counsel and she has asked that the failure to do so should follow the rules and that the Respondent should be deemed to have admitted the statements set out in the Request.

[5] The Applicant’s counsel says that no consideration should be given. I do not agree. The Respondent was suddenly representing himself and was unable to read. It cannot be assumed that he was aware of the importance of the Request to Admit and his requirement to reply. It would, in my opinion be unjust to prejudice this proceeding on the basis of this rule. Pursuant to Rule 2(2) of the Family Law Rules, the primary focus of the Rules is to ensure matters proceed justly. The parties did file an Agreed Statement of Facts.

[6] At trial the Respondent was assisted by the Indigenous Court Worker, Ms. McGuire.

[7] The issues in this case are decision making, parenting time, mobility, and child support.

[8] The mother was born in Thunder Bay but also lived in Sault Ste. Marie. The father is a member of Batchawana Bay First Nation where he indicates he was raised, but he has family also in Sault Ste. Marie. After they met in Thunder Bay, the couple moved to Sault Ste. Marie and then back to Thunder Bay.

[9] Prior to the marriage, both parties worked. After the children came, the mother stayed at home while the father worked outside of the home. The father says that he cared for the children also. The parties moved to Thunder Bay for the husband’s employment. The mother has had occasional short term jobs outside of the home.

[10] At the time of separation there was a great deal of conflict. The father refused to return the children to the mother and she was forced to commence a court action. He thought the mother provided a dangerous home and did not supervise the children properly. He complained that the mother had a mental health issue that was unaddressed.

[11] The parties entered into a consent order on December 13, 2018 which provided for joint custody and, on a without prejudice basis, primary residence to the mother.

[12] This seemed to settle the matter down for a period of time.

[13] The OCL conducted a social work investigation. At that time both parties were in new relationships. The mother withdrew her request for relocation. As a result, the children were not questioned about the issue. The social worker found that the children appeared to be happy with the current situation but wished their parents were together and that they could contact their mother during the parenting time of the father. The investigator recommended joint custody with final decision making to the mother and that the father’s schedule increase slightly.

The Legal Context

[14] Amendments were made to the Children’s Law Reform Act in March of 2021 which set out certain procedures when a parent wants to relocate the residence of a child. Prior to this time, the leading case of Gordon v. Goertz, [1996] 2 S.C.R. 27 established that the person who wanted to change the residence had to meet the threshold of a change of circumstances in the status quo affecting the child and that the move was in the best interests of the child.

[15] The Applicant mother argues she is the primary parent, that the sections apply to this situation and that the onus is on the father to show why the children should not move.

[16] The new applicable section is s.39.3 which says:

Relocation

39.3 (1) A person who has decision-making responsibility or parenting time with respect to a child and who intends a relocation shall, at least 60 days before the expected date of the proposed relocation, notify any other person who has decision-making responsibility, parenting time or contact under a contact order with respect to the child of the intention. 2020, c. 25, Sched. 1, s. 15.

[17] In subsection 39.3(2) the provisions for notice state:

Notice requirements

(2) The notice shall be in the form prescribed by the regulations or, if no form is prescribed, shall be in writing and shall set out,

(a) the expected date of the proposed relocation;

(b) the address of the new residence and contact information of the person or child, as the case may be;

(c) a proposal as to how decision-making responsibility, parenting time or contact, as the case may be, could be exercised; and

(d) any other information that may be prescribed by the regulations. 2020, c. 25, Sched. 1, s. 15.

[18] There was a form prescribed however in February of 2021. This is the form that is to be used for providing notice of relocation. The only exceptions to these requirements are if there is an existing order which allows the parent to make changes to the residence of the child (s.76(5) of the CLRA) or if the court allows an exemption (s.39.3(3) of the CLRA).

[19] In the first application of the mother, she did not request relocation. This relief was requested in the subsequent amended application which was in March of 2019. However, at the time of the investigation of the Office of the Children’s Lawyer in March of 2020, the report says “It should be noted that Ms. Gorman was initially seeking an order for relocation with the children to Sault Ste. Marie however this in no longer her wish at this time.” Mrs. Gorman confirmed in her evidence that she did withdraw her request to move the children at the time of the OCL report. In my estimation, any notice before then was withdrawn at that time.

[20] The form for the notice pursuant to the new provisions was approved in February of 2021. The use of the form is set out in Regulation 155/21 which says;

Notice of proposed relocation

2. For the purposes of subsection 39.3(2) of the Act, notice of a proposed relocation shall be in the form titled “Notice of Relocation Form – Person with a Parenting Order” dated February 2021 and available on the internet at the Ontario Court Forms website.

[21] The regulation and the Act are very specific as to the form of the notice to be given and the method of service. This is just as important as the commencement of any court action or proceeding, because service of the Notice of Relocation offers a limited time for the responding party to file an objection failing which the relocation of children, perhaps far from the other parent, can occur (s.39.4(2)). This is a tremendously powerful automatic result.

[22] I do not find that notice was given to the father as required by the amended sections in that a Notice of Relocation was not served on him.

[23] In addition, as no reason was given for not serving and filing a Notice of Relocation, I will not exercise my discretion to consider formal notice is satisfied by piecing together notice from the letters of counsel or the Trial Management Conference brief.

[24] This does not mean that relocation is not a live issue which must be determined from the hearing evidence. Indeed, it is one of the key issues. It simply means that the mother is unable to avail herself of the sections requiring the father to prove that a move is not in the best interests of the children.

[25] The test to be applied on a request to relocate is set out in s.39.4(3) to (8) of the CLRA. The court is to consider the best interests of the child in s.24 and also additional relocation factors set out in s.39.4(3). In s. 39.4(4) the court is not to consider if the parent requesting the move would or would not move if the move were prohibited for the child.

[26] In the case of children who spend equal time with each parent, and the current order is being observed by them, the parent wishing to move the residence of the children has the burden of proof. (s.39.4(5)).

[27] In the case of children who spend the “vast majority” of their time in the care of the relocating parent pursuant to an order which is being substantially complied with, the parent opposing the move has the onus of proof. (s.39.4(6)). However, if the order in place is an interim order, the court may determine that the subsection does not apply.

[28] I determine that s.39.4(6) does not apply.

[29] Firstly, does the mother have the “vast majority” of the time with the children? The term is defined as follows: “vast” means “ of very great size or proportions; huge; enormous” and “majority” means “bulk, preponderance, greater number, more than half”. The applicants counsel says that the father only has the children for 32% of the time. Does the remainder of 68% meet the definition of “vast majority”?

[30] The parenting time of the father has not been determined. Currently, the father has the children alternating weeks from Thursday to Sunday or Monday if it is a holiday, and then Thursday nights in the other week. He is seeking more parenting time and the mother, when relocation was not on the table, was seeking to hold the father’s time at the same level. She argued for joint custody but wished to retain final decision making.

[31] I do not find that s.39.4(6) applies. This term refers to situations where there is little or no parenting time for a parent: an occasional parent. While the mother may have the children the majority of time in this case, it is not the bulk of their time. Many cases involve one parent having alternating weekends and a day in the week between. To interpret “vast majority” in this way would mean that all of those situations require the minority parent to prove the case. I do not agree with this interpretation. This section is to keep an occasional parent from interfering with a move.

[32] More importantly, it must be considered that the order which has been in effect in this case provides interim joint custody to the parents and primary residence to the mother only on an interim “without prejudice” basis. During the three year course of this matter, there could have been an attempt to have the residency of the children determined by the court on at least an interim basis to provide a sense of deliberation that such an arrangement was in the best interests of the children. Instead, the primary residence of the children has not been determined.

[33] In the case of Borrens v. Siddiqui, 2021 ONSC 7829, the court was in a similar situation and opted to revert to the onus and standards set out in the Gordon v. Goertz case. Fraser J. stated, “I have concluded however that the substantive law as it governs the issue of relocation given this proceeding was commenced in 2017 is not captured by the recent amendments to the CLRA to the extent there are changes to the substantive consideration to be made…In my view, therefore, I continue to be governed by the leading case in Canada regarding the issue of mobility, Gordon v. Goertz, [1996] 2 S.C.R. 27 (S.C.C.)”.

[34] The notice provisions of the amended CLRA have not been met. In following the statements of Fraser J. in Borrens, the issue of mobility is guided by the Supreme Court decision in Gordon v. Goertz. In addition, I view s.39.4(7) as applicable. It states that:

(7) In any other case, the parties to the proceeding have the burden of proving whether the relocation is in the best interests of the child.

[35] This suggests that the onus provisions are removed and the court should only consider the issue without onus. In sum it seems to end with the same approach, is it in the best interests of the children to move?

The Order of Determination

[36] The court must determine the questions of decision making, parenting time and relocation. But which should be dealt with first?

[37] In the case of Bjornson v. Creighton (2002), 62 O.R. (3rd) (C.A.) the court decided the custody order prior to the relocation issue. This is referred to as a bifurcated hearing.

[38] In the recent case of Moreton v. Inthavixay 2021 ONCA 501, a ground of appeal was that the decision of the trial judge to determine the relocation and residential schedule of the children first and then the issues of custody and financial matters was incorrect as it did not follow Bjornson.

[39] In Moreton, the Court of Appeal considered this argument and said, “First, we do not read this court’s decision in Bjornson as establishing an absolute rule or requirement that the issue of custody must be determined before the issue of relocation. Rather, the sequence depends on the circumstances of the case…”. The court goes on to approve the process in the trial court in Moreton and says, “…it was in the best interests of the children to have the relocation issue determined as quickly as possible to provide stability in their living arrangements, finality and closure.”

[40] In this case, there is no urgency, but only uncertainty. The issues of relocation and parenting time and decision making all revolve around the central issue of the best interests of the children. In my view an assessment of those best interests, with the additional considerations in s. 39.4(3) can be reviewed together.

Best Interests

[41] The mother seeks relocation of the children from Thunder Bay to Sault Ste. Marie Ontario; a distance of about 750 kilometers. She cites family support reasons to move along with the opportunity to attend school.

[42] In assessing whether a move should occur, the only focus of the court is on the best interests of the children Leah and Bentley.

[43] The factors to be considered in regard to the best interests of children are set out in s.24(3) of the Children’s Law Reform Act:

Factors

(3) Factors related to the circumstances of a child include,

(a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;

(b) the nature and strength of the child’s relationship with each parent, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;

(c) each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent;

(d) the history of care of the child;

(e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;

(f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;

(g) any plans for the child’s care;

(h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;

(i) the ability and willingness of each person in respect of whom the order would apply to communicate and co-operate, in particular with one another, on matters affecting the child;

(j) any family violence and its impact on, among other things,

(i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and

(ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to co-operate on issues affecting the child; and

(k) any civil or criminal proceeding, order, condition or measure that is relevant to the safety, security and well-being of the child. 2020, c. 25, Sched. 1, s. 6.

[44] There are other factors related to family violence which are not relevant here.

[45] The best description of Leah and Bentley is actually found in the affidavit of the maternal grandfather Michael Wooley. He describes them as follows:

Leah is my “Leah-bella”. She is like a “little adult” – she is not shy about telling you what is on her mind. She is smart as a whip. She can talk your ear off. She is full of confidence. But above all, she is a sweetheart. Leah likes playing with dolls and playing on her tablet. She likes crafts, colouring and drawing. She likes going to the park. She used to love school, but she liked it less so online.

Ben is my “Benny Boo”. He is sensitive. He likes doing activities by himself. He loves his big sister (they usually get along, but sometimes they don’t). Ben can be a bit emotional sometimes. He likes going to the park and being outside, but he also likes some quiet time on his tablet. Ben loves it when I make him paper airplanes – it seems that I make a lot of paper airplanes for Ben!

[46] It is in the context of these particular children that best interests must be assessed. The main considerations argued by the parties are reviewed here, although all of the categories are considered.

Views and preferences

[47] The children set out their views and preferences about time with their parents at the time of the social work investigation. The report confirms that the children are happy and content with the current schedule, but they miss having phone calls or Facetime with the other parent when they are at one parent’s home.

[48] Leah said she likes the schedule and in regard to any changes she said, “I like it exactly like it is.” At the time of her interview she was going to her father’s house which she described as a “happy surprise”.

[49] Bentley described enjoying spending time with both parents. He said that sometimes his father yelled at him when he used bad words. Otherwise he is reported to say that he feels, “so happy”. He said that he was not scared or worried.

[50] In her materials filed for this trial, the mother produced evidence from her mother and her friend in Sault Ste Marie that the children articulate a wish to live there.

[51] I find this evidence to be of little weight for the following reasons.

[52] It does not seem to me that the children are able to identify the real implications of making such a choice at their age. In her amended application of March 2019, the mother reports that Leah has regularly stated she misses living in Sault Ste Marie since they moved. I note that Leah was three years of age when the family moved to Thunder Bay, and Bentley was two years of age. It is doubtful that she would have a memory of Sault Ste Marie or an assessment of its preference at that age.

[53] The mother has a position on moving and that the children show support for that idea in the presence of others. This is different from a discussion with a neutral third party with whom the children have no emotional ties and there are no expectations. Other than placating their mother, I do not believe that the children have a preference of Sault Ste Marie over Thunder Bay such as the mother does.

[54] There is no evidence that the children truly understand that a move would mean not seeing their father and his family with the same frequency and intensity as they enjoy currently. In other words, a disruption to the present situation has not been shown to be part of their considerations, if they really have one.

[55] Secondly, at the time of the social work investigation the mother had decided not to proceed with relocating. However, when she changed her mind again, she did not ask for a review of the issue by the social worker, or for the question to be put to the children by a neutral third party in a fair manner.

[56] As a result, the evidence on the point of the views and preferences of the children produced by the mother do not convince me that this is actually their position, or if they did say such things, that they understood the implications of such a decision. This is particularly so when the OCL social worker report describes that the children see the current situation of parenting time as making them, “very happy”.

Family Relationships

[57] The maternal grandparents of the children have written eloquent affidavits demonstrating their love for them. The maternal grandmother and her partner reside in Sault Ste. Marie. The maternal grandfather and his partner reside in Thunder Bay. The two brothers of the Applicant mother and a sister-in-law also reside in Thunder Bay. At the time of her first application, the mother cited her father, brothers and sister in law as her supports in Thunder Bay. On the father’s side his three sisters live in Thunder Bay along with his new spouse and the half sibling of Leah and Bentley.

[58] It is important that these relationships be maintained in the best interests of the children. The children seem to be engaged with all family members. The relationships in Sault Ste Marie have been maintained since the family moved to Thunder Bay.

[59] There was an interim court order that the children were not to be absent from school except for medical appointments or illness. As a result, when he should have had some flexibility to allow the mother to remove the children from school a day early for the eight hour trip to Sault Ste Marie, the father refused. The mother cites this as an example of the father’s inability to cooperate and make decisions in the best interests of the children. The children are both doing well in school, including Bentley who has some learning difficulties, and there seemed to be no harm to a slight modification of the order.

[60] However, the history of this couple must be considered in reviewing the denial of the father. At one point, the father kept the children out of school in order to thwart any attempt by the mother to retrieve them. Each applied for an emergency order which was denied. This situation indicates either that the father was overly concerned to follow the court order or that he did not appreciate that the benefits of visiting their relatives in Sault Ste Marie outweighed any loss of education.

Parental Relationships

[61] The report by the Office of the Children’s Lawyer was based on interviews with the parents and children and observations.

[62] In regard to the mother and the children, the social worker’s overall impression is:

…Leah and Bentley appeared to be very comfortable and at ease with Ms. Gorman who was observed to be highly interactive and attentive to them both. Ms. Gorman provided guidance to the children at times. …They all chatted in a relaxed and spontaneous manner. Ms. Gorman gave a lot of praise and encouragement to the children. They were all observed to be cooperative, polite and respectful towards each other, using very good manners… Ms. Gorman presented with a calm, patient and gentle demeanor throughout the visit…

[63] In regard to the father and the children, the social worker’s overall impression is:

…Mr. Gorman made great efforts to be actively engaged with both children, showing a lot of interest in them. He consistently monitored the children’s safety. He provided clear directions and offered praise when it was relevant. The children were quite animated and excited during their play outside and there was a lot of laughing…the children appeared comfortable with Mr. Gorman and his partner Shannon…Mr. Gorman’s presentation was nurturing and attentive. Family members chatted in a relaxed and spontaneous manner…It was noted that Mr. Gorman was patient and calm in his demeanor throughout the visit. Based on the children’s presentation, it appeared that they were genuinely enjoying their time together…

[64] This appears to represent the relationship between the children and each of the parents. While the parenting style may be somewhat different, the children have been able to respond to the parenting style of each parent. They clearly have a positive and beneficial relationship with each parent.

Economics and Training

[65] The Applicant mother says that she must move to Sault Ste Marie to improve her economic situation and therefore the stability and security for the family. She says that she can obtain training there to become a personal support worker in a six-month program available in Sault Ste Marie.

[66] During her evidence, Mrs. Gorman admitted that she did not investigate if the same or similar programs were available in Thunder Bay. However, she says that she believes programs in Thunder Bay take twelve months.

[67] The mother stayed in the home during the early years after the children were born. The father worked outside the home. The parties moved to Thunder Bay for better work opportunities for the father who was a cook at a local hotel. Prior to the separation, the mother had worked part time at a retail store Toys R Us. The mother was laid off and the business closed.

[68] The mother claims that the father has not supported her and the children, particularly since Covid 19. The father says that the restaurant closed at the hotel and that he was on CERB himself. Following the separation, the father did commence paying support. The mother says that he has underreported his income.

[69] Both parents have a duty to financially support Leah and Bentley. The mother needs to become employed. There is no evidence of her efforts to become employed since separation. In addition, as she has been unemployed for a considerable period of time, she could have completed a PSW course in Thunder Bay by this time, even if it was a twelve- month course.

[70] I do not accept that the only location for the mother to become trained as a personal support worker is Sault Ste Marie. In addition, I am mindful that she previously undertook training in Thunder Bay as a hairdresser but did not complete the program. The father says that the mother’s anxiety undermined her efforts and that this could happen again.

[71] The mother has submitted an affidavit by her friend Kia-lee Witty. Much of her evidence on these points is hearsay. For example, it is accepted that the father always worked and supported his family until Covid 19. Yet in her affidavit she says “It is now my understanding from what Meghan has told me , and I believe it to be true, that Terri is no longer employed or not working full time. Terri is financially unstable and Meghan can no longer rely upon him to support her and the Children“. This is a very harsh judgment considering that the father always supported his family. Both this witness and the mother of Mrs. Gorman see her as a victim and give a narrative to support her desire to move.

[72] The mother puts forth that if she were in Sault Ste Marie that she could live free at the home of her mother. In fact, she currently resides free in a house owned by her father in Thunder Bay.

Culture and Linguistics

[73] The father suggests that he is best able to meet the cultural needs of the children as he and they are Indigenous.

[74] The father says that he was born and raised in Batchawana Bay First Nation and that he participates in Indigenous programs and events in Thunder Bay. The mother says that she was not aware that the father was Indigenous and that he did not participate in any events during their marriage.

[75] I accept that the connection between the children and their Indigenous culture is important. The father, who seems recently connected with the cultural resources himself, may be able to provide a cultural environment for the children. However, it is also possible that the mother, were she situate in Sault Ste Marie, which is closer to Batchawana Bay, would be able to also provide a satisfactory exposure of the children to Anishinabe culture.

[76] While the culture is important and a component of the review of the best interests of the children, it is not the deciding factor but only one more consideration.

S.39.4(3) Considerations

[77] The reason for the relocation is that the mother believes she will be happier, be able to receive training and the children can have relationships with her mother and family. I do not find that the reasons for relocating the children are related to their best interests, as set out above.

[78] In addition, the father spends considerable time with the children and they are happy in his presence. He takes them to activities including horseback riding. There is no benefit to the children to reduce this ongoing relationship time. While her offer of holiday time with the father is considerate, it does not seem to me that the mother is in a position to financially contribute to the realization of that time. Each of these parties is of limited means. The children like predictability and have friends in Thunder Bay and have been thriving here.

[79] It is true that, during Covid 19, the father has not always paid his child support. However one must remember that he always has made supporting his family a priority, as agreed by the mother in her application before the court, and that these difficult times create unusual situations. It is clear that his retraining is to avoid layoffs in the restaurant industry and have a more stable income source.

Decision

Relocation

[80] Having heard and reviewed the evidence in this matter, I do not find that it is in the best interests of Leah and Bentley to relocate to Sault Ste Marie for the following reasons:

a. The children are happy and want the current situation to continue;

b. The children are able to continue and develop their relationship with a primary person in their lives – their father;

c. The children are doing well in the current circumstances and there is no need of theirs to be satisfied in a new location;

d. Bentley has received services and improved in school;

e. The children have friends and family here with whom they have important relationships;

f. The quality of their relationships will be diminished by a move;

g. The relationships with family in Sault Ste Marie have continued to be maintained at a distance and can continue to be nurtured.

[81] I am cognizant that a happy parent creates a happier home for children, and that Mrs. Gorman may be unhappy with this result. While she might want the support of her family members and friends in Sault Ste Marie, she has the support of family here. She has admitted that she suffers from anxiety and the evidence shows a previous failed attempt at post secondary education. There are plenty of supports here for the children including their father.

[82] I am concerned about the timing of the withdrawal by the mother of the previous intent to move. The relocation issue was withdrawn during the period that the mother was in a relationship with a Thunder Bay man and his children. There is no evidence that the failure of this relationship was not the reason for the renewal of the relocation issue. Relocating children cannot be based on this type of factor. The children need this issue to be finished.

[83] This is not, however about the mother. It is about the lives of the children. It is important that the stability and love they enjoy in Thunder Bay is maintained in their best interests. It is important that they continue to have a meaningful relationship with their father which supercedes any relationship in Sault Ste Marie. There is no evidence that the move of the children would not have a devastating effect on their well-being. Leah and Bentley are children who like the routine they currently have. There is a risk to a move which the children should not have to bear.

Decision Making

[84] During the social work investigation, Mrs. Gorman told the social worker that she wanted joint custody and that she and Mr. Gorman could agree on most matters dealing with the children. She wanted final decision making so that there would not be any “unnecessary conflict”.

[85] The main irritants in the relationship between the parties have been various allegations about the other party, the idea of relocation and the rigidity of Mr. Gorman. For the latter reason, the OCL report recommends final decision making to the mother.

[86] Mr. Gorman is not a parent in name only. It is clear that he cares about his children and wants them to be happy and successful. However, perhaps due to his disability, he is suspicious of Mrs. Gorman and will only operate to the letter of any order.

[87] I have determined that decision making in regard to the children shall be divided between the parents. This allows each parent to continue to have a role recognized by the children, but requires them to work together in only a limited way.

[88] There are a number of types of decisions to be made in regard to children. One is the day-to-day type of decision, then there are important decisions related to schooling, recreation and health.

[89] There have been a few complaints by the parents that cellphones or ipads have been provided to the children without the other party knowing. However, on the whole the current system seems to be working. Daily decisions should be made by the parent in whose care the children are.

[90] In regard to decisions related to education, the mother shall send the question to the father and allow him 48 hours to provide a response. If he does not do so, she can make the decision without him. If he does respond, the parties shall make the decision together. If they cannot agree, the final decision shall be made by the mother.

[91] The father has had complaints about the dental care of the children. This will now be his responsibility. However, no appointments shall be made on the time of the mother, but he will inform her of their progress. A consent shall be signed for her to obtain information directly from the dentist.

[92] In regard to ordinary medical issues, the mother shall have decision making. No appointments shall be made on the time of the father, but she will inform him of the children’s medical needs. A consent shall be signed for the father to obtain information directly from the children’s physician.

[93] However, in regard to medical emergencies or situations which are life-threatening, the parties shall confer and attempt to reach a decision together. They may obtain the assistance of a mediator. If the matter cannot be resolved, the decision shall be in accordance with the advice of the attending physician.

[94] In regard to all of these areas, the parties shall keep each other informed.

[95] The children enjoy recreational activities outside of school and should be encouraged to attend them. The parents will determine together, upon consulting with the children, one summer and one winter activity for the children. The children will attend the activity regardless of whose parenting time it falls on. If the parents cannot agree on an activity, the children shall not be in any activities. The costs of the activities shall be shared as set out further.

Parenting Time

[96] The children are satisfied with the parenting time as it is. They are able to maintain their parental relationship with their father on this schedule. As they grow older, it would seem that the schedule of the father should increase to include one additional day.

[97] There are a few adjustments that need to be made, however.

[98] The children have clearly expressed that they want contact with the other parent by Facetime or telephone during parenting time. It seems that on the Thursday night, the short turnaround does not require this consideration. However, on longer visits or vacations this should occur.

[99] The children will have Facetime with the other parent after 48 hours. If Facetime is not available, the children can make a telephone call. The contact is private and the other parent need not be present due to the ages of the children. No call shall exceed 30 minutes. Children should be redirected as necessary back to the parenting time of the other parent.

[100] Given that the mother wishes to travel to Sault Ste Marie, the children shall be allowed to be absent from school on a Thursday and Friday, four times per year, to facilitate travel to and from Sault Ste Marie. The mother shall notify the father by January 1 of each year (January 30th in 2022 only) as to the dates she chooses in her sole discretion. If the dates fall on a weekend of the father, he shall be allowed to choose compensatory dates in his discretion. The mother shall ensure that the children keep up with their schoolwork.

[101] Other holidays shall be divided as set out in the order that follows.

[102] As it seems that the children may have been involved in adult discussions about relocation and the housekeeping/parenting of the other parent, there will be parameters set around this issue. In addition, the parents, when required to discuss issues, shall do so only in a respectful manner. For changes that may be necessary, parents should ask, not whether the request is agreeable to the parent, but is it good for the children.

[103] In the event that the mother wishes to attend the PSW course in Sault Ste Marie for six months, the children will remain in the care of the father, and this period shall be without prejudice to the mother. Upon her return, the schedule with the children shall return as set out herein, and the period away shall not be used against the mother nor shall it be used to bolster any relocation claims. During the period away the mother can have the children in Sault Ste Marie during her special allotment days set out above, and Facetime contact as also set out in this order. She will be responsible for transportation.

[104] No future relocation applications can be submitted to the court, without leave of the court. The children need certainty.

Child Support

[105] The father is to pay child support for the support of the children based on his reported income as follows:

2018 $46061, month of December only 2019 $35921 2020 $40,000 (deemed)

[106] As the father was in training in 2021 for a job as a truck driver, he shall be deemed to have income of $40,000 for that year.

[107] An order for child support based on this income, for two children, shall be ordered with any payments already made to be deducted. Arrears of support shall be paid at the rate of $100 per month.

[108] The father shall provide his income tax returns, notices of assessment and other documents to the mother by June 1 of each year in accordance with s.21 of the Child Support Guidelines.

[109] The mother is also capable of working. As such, in regard to s.7 expenses including recreational expenses, the mother will be deemed to be capable of earning at least $20,000 per year. Based on his 2021 earnings of $40,000, the father shall pay 66% of any s.7 expenses and the mother shall pay 33%. This is to be adjusted each year. Expenses under s.7 must have been discussed in advance and follow this formula.

[110] There has been no claim of undue hardship by the father as a result of the birth of his child. It can be assumed that he believed that he could support another child at the time. There will be no adjustment of the support.

Spousal Support

[111] There has not been a great deal of argument on this issue. Nonetheless, it seems as though this couple had a traditional marriage and that the mother is economically disadvantaged by the marriage.

[112] Should the mother apply and be accepted into a PSW program, the father shall pay spousal support of $250 per month commencing on the first day of the first month of attendance at the program, for a period of six months. The mother shall notify him of the month of commencement at least 60 days in advance in writing.

[113] The mother must attend and apply herself diligently. In the event that she does not successfully complete the program, she shall repay the spousal support to the father. This educational spousal support shall only occur once. Otherwise there shall be no spousal support payable.

Costs

[114] Written cost arguments and accounts, not to exceed 8 pages, are to be submitted within ten days.

[115] A detailed order outline shall be provided by the court within three days of this decision.

Released: January 12, 2022 Signed: Justice D. MacKinnon