ONTARIO COURT OF JUSTICE

DATE: 2022 06 13 COURT FILE No.: Thunder Bay FO-17-0028-01

BETWEEN:

James (Jim) Chiasson Applicant

— AND —

Cindy Chiasson Respondent

Before Justice D.J. MacKinnon

Heard on October 4, 5, 6, 7, November 22, 2021 Reasons for Judgment released on June 13, 2022

Counsel: Michael Cupello......................................................................... counsel for the applicant(s) Richard Culpeper................................................................. counsel for the respondent(s)

MacKinnon J.:

Introduction

[1] The parties, James Chiasson (the “father”) and Cindy Chiasson (the “mother”) were married on July 12, 2013, separated in December of 2014 (according to the father) or August of 2015 (according to the mother) and divorced on October 24, 2016. They have twin children Mikalah Rose Chiasson and Mason James Chiasson born in […] 2015 (the “children”). The twins were born prematurely, and Mason suffered some distress and was delivered by Caesarean section. The parents only resided together for a short time between the birth of the children and their separation.

[2] The parents entered into a separation agreement dated April 27, 2016. It provided for joint custody but final decision making to the mother. The children were on a three day rotation and holidays were shared. The residence of the children was not to be relocated outside the City of Thunder Bay without a court order. There was no child support ordered. On October 3, 2017 the rotation of the children changed to a seven day rotation.

[3] On October 13, 2018 the father married Grace Chiasson. They have two children, Adin born in January 2018, and Snow born in March of 2021. After Adin’s birth, James and Grace moved to London Ontario in April of 2018.

[4] This is a case to determine the principal residence, decision-making and parenting time for Mikalah and Mason. An award to the father would result in the children moving to London Ontario.

The Proceedings

[5] The court file shows that an application was issued by the father on January 3, 2017. An Answer was filed by the mother on February 3, 2017. Both were under Court File No. FO-17-28-00.

[6] On March 27, 2017, the Application and the Answer were each withdrawn by the parties.

[7] The Applicant filed a trial record for this trial which includes an Ameneded (sp) Application. However, it was not issued by the court, has no return date and there is no affidavit of service.

[8] The court file does have an Application issued for the father on August 31, 2017 under File No. FO-17-28-01. He seeks custody, access, costs and prejudgment interest and that the children be allowed to attend his wedding. It is unsigned. The mother served and filed an Answer seeking custody, reasonable access on reasonable notice for the father, child support, s.7 expenses and costs.

[9] There is a report of the Office of the Children’s Lawyer social worker, Ms. Lang and she was examined at trial.

[10] The trial proceeded by a hybrid of affidavit and viva voce evidence of various witnesses for each side virtually.

[11] The father gave evidence and called his wife, Grace Chiasson, her mother Janice Thompson, his foster parent and aunt Tammy Jean Chiasson-Morin and a social counsellor Mary Ann Liggins.

[12] The mother gave evidence and called her father Rick Davidson and provided an affidavit from her stepmother, Kelly Montieth.

[13] The father wants the children to move to London to live with him. The mother wants the children to remain in her care in Thunder Bay. The father says that the mother is not a good parent for the children because she does not attend to their needs and was not responsive to the disabilities of Mason. The mother feels that the tenuous relationship between her and the father has been exacerbated by the insertion of Grace Chiasson into the parental relationship and acts of alienation by them. She says that she meets the needs of the children.

Primary Parent

[14] The separation agreement dated April 21, 2016 provided that the parents would have joint custody but, in essence, that the mother would have final decision making.

[15] The children have always resided in the care of their mother firstly on a shared basis and later on a full time basis after the father moved away to London Ontario in April of 2018, where he currently resides.

[16] The father had the children in his care on a shared basis before he moved to London, and has had vacation times with them since then.

[17] I find that in these circumstances, the mother is the primary parent and that living with her is the status quo.

Onus

[18] Counsel for the father argued that the matter did not fall within the aegis of the new provisions of the Children’s Law Reform Act dealing with mobility. These provisions came into effect in March of 2021. There is nothing in the legislation that indicates that there should be a transition or that the amendments dealing with relocation do not apply.

[19] While the notice aspects of the amendments have not been complied with, under the new provisions, a person wishing to change the primary residence of the children, who is not the parent with the children the vast majority of the time (see s.39(6)), has the onus to show that such a move is in the best interests of the children.

[20] Even under the previous regime, in accordance with the Supreme Court decision in Gordon v. Goertz, [1996] 2 SCR 27, the parent wishing to move the children has the onus to prove that there is a material change of circumstances and the move is in their best interests.

[21] At the time of the entering into of the separation agreement on April 21, 2016, the parties agreed that the residence of the children was not to be changed from Thunder Bay.

[22] In all of these circumstances, the onus is on the father to show that there has been a material change of circumstances and that a move, and the change of the status quo of the children residing with their mother, is in the best interests of the children.

[23] The father offers three reasons that the residence of the children should be changed to him:

1. The mother has mental health issues and is not capable of being the best parent;
2. The children have special needs which the mother failed to note or address;
3. With the support of his wife’s family, he is able to provide a better family situation for the children.

Best Interests

[24] The first assessment involves the best interests set out in s.24 of the Children’s Law Reform Act, which says:

Best interests of the child

24 (1) In making a parenting order or contact order with respect to a child, the court shall only take into account the best interests of the child in accordance with this section. 2020, c. 25, Sched. 1, s. 6.

Primary consideration

(2) In determining the best interests of a child, the court shall consider all factors related to the circumstances of the child, and, in doing so, shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being. 2020, c. 25, Sched. 1, s. 6.

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.

[25] While all of the criteria and the overall situation are important to consider, from the evidence at trial some factors are more predominant in this case.

Stability

[26] The father has now resided in London since 2018. He and his wife and two children live in a two bedroom home. They are hoping to obtain a three or four bedroom place.

[27] Grace Chiasson has a supportive family to assist her and her husband. Mr. Chiasson has had sporadic work but recently was able to obtain a job. Otherwise he indicated he was unable to pay for the children to come for visits. He has never paid child support and says that he can’t afford it.

[28] There is no updated information from an independent source on how this couple is doing since their own two children were born.

[29] Mikalah and Mason were brought home by the mother from the hospital at a time when she was not cohabiting with the father. The grandfather reports that the father visited the home but appeared less interested in the twins than trying to talk Cindy Chiasson into reconciling.

[30] The mother has always provided a home for the children and more so since their father moved to London. With the assistance of her family she has a three bedroom home where she has been since the children were infants.

[31] At one point the mother had another person living with her. This was a period of some instability as the child welfare reports show a lot of anger between Cindy Chiasson and her cohabitee. She admitted that he had a heroin overdose which caused him to lose consciousness. She says she did not know he was taking drugs. Their relationship ended.

[32] For their lives, the home they share with their mother has been the status quo for these children. There has been no complaint from the school or other agencies in regard to the routine and care of the children by their mother.

The Needs of the Children

[33] The children were born prematurely. Mason in particular had a difficult birth and had to be born using a Caesarean section. He also had breathing problems.

[34] Mikalah seems to be the stronger of the twins. Both children needed assistance with speech and language development, and some physical development. This does not seem unusual for premature children. The Report of the Children’s Lawyer contains the following comments about Mason:

…This may mean that it will take longer for Mason to achieve social and emotional gains, such as managing his emotions and being able to consistently and appropriately regulate himself…It also may mean that he will be more reactive to stressful situations and that accordingly, stress will be more likely to impact his behaviours and development…

[35] The father has argued that the mother was incapable of understanding, or blind to the special needs of Mason.

[36] Early in this litigation in 2016 and 2017, the father and his new wife Grace involved the children in numerous social services including Healthy Babies, Our Kids Count and other Indigenous programs. Around this time the father also made numerous referrals to the child welfare agency about exchanges and the mother’s care of the children. He was pursuing a sole custody order.

[37] The father suggested to the mother that the children might have developmental delays. In the fall of 2016, he requested an assessment be conducted by Mary Ann Liggins. She was not qualified as an expert at trial. Mary Ann Liggins contacted the mother to talk about the results of her assessment, but the mother became angry and hung up. I note that the children were one and a half years of age at the time.

[38] The father believed that Mason might have autism. The mother took Mason for an assessment by Dr. Derbyshire and he provided a report on May 16, 2019. In regard to the needs of the children, he states:

Mother feels there was some delay in terms of overall neurodevelopmental milestones. The maximal area of concern was in expressive speech and was extremely delayed and continues to have difficulties with articulation and (illegible). His vocabulary appears to be somewhat limited. It is reported that Mikalah has more advanced development than Mason. He is involved at the George Jeffrey Children’s Treatment Centre on a weekly basis for speech. He was seen previously for Occupational Therapy but they have terminated this feeling that he is within age appropriate development.

[39] In answer to the question about autism, Dr. Derbyshire says that Mason does not have an Autistic Spectrum Disorder. He suggests that there may be a more serious developmental disability related to his prematurity that may require assistance in his early years of development.

[40] The principal at the school the children attend indicated that it took some time for Mason to settle down and be able to attend school as he was crying each day. The mother would walk him to school and he became accustomed to school and was able to both work independently and also to socialize with other students. He now has many friends at school.

[41] In regard to this issue, I find that the mother has responded and has ensured that Mason is engaged in appropriate services. He has completed a number of programming blocks at the George Jeffrey Centre for speech therapy and physical development. At trial there was no evidence before me that any need of the children was being unanswered by Cindy Chiasson.

[42] The father also alleged that Mikalah had one leg shorter than the other. An assessment showed this was not the case.

[43] The father and stepmother complained about the scratched condition of the glasses Mason had in his possession when sent to London for a visit. The mother said that Mason always wore his glasses and she sent the used glasses for the visit. The criticism by the father seems unfair in light of his failure or refusal to contribute to the children through child support.

[44] There were allegations made by the father that the children exhibited sexualized behaviour at his home in London and at a doctor’s office he took them to there. The problem was not verified to be caused at the home of the mother, as the children had been visiting their father for a period of time. The children each have their own bedrooms in her home.

[45] The father alleged that the mother must be having sexual relations with a boyfriend in front of the children, which was not substantiated and was denied by her. The OCL report notes that Mikalah sleeps in the same room as Jim and Grace Chiasson and their infant daughter, while Mason and Adin sleep in a separate bedroom.

[46] At the home of the father, Mason is reported to:

a. Hit the other children; b. Defecate and urinate without regard; c. Exhibit sexualized behaviour; d. Appear in a trance.

[47] The father attributes these issues to the poor parenting of the mother, but none of these actions are reported from her home or elsewhere.

[48] The children were seen by Dr. Jain of the Hospital for Sick Children – Telepsychiatry Program. He is reported by the Office of the Children’s Lawyer as saying the following:

…He felt that Mason was a boy who worried, and that at times, at night, he needed to know where his mother was. He felt that the absence of Mr. Chiasson had generated significant anxiety in the children and this was particularly true of Mason…

[49] While I am certainly aware that the assessment of Dr. Jain was done without the participation of the father, the other actions of Mason reported by the father at his home, if true, would seem to corroborate this idea that Mason suffers anxiety from this source.

[50] It would seem to be important, especially with two new siblings who need Mr. Chiasson’s attention, that special consideration and time should be spent between Mason and his father. The evidence at trial suggests that the children are very emotionally dependent on their mother. Following a visit to London, the children ran to their mother. They refused to leave her for days afterward and, according to the maternal grandmother, even wanted her to hold their hand when eating.

[51] Although the mother and grandmother felt that Mason was completely toilet trained, at the home of his father he was reported to defecate and urinate without, according to the father and stepmother, any recognition that he had done so. This was not reported at the home of the mother and abated after his return.

[52] On one of his returns from London however, Mason did not want to use the washroom. His grandmother picked him up and was carrying him down the hallway. He began to scream for his sister to help him. He was yelling and resistant to entering the bathroom. He had a serious diaper rash and it took three days before he could go into the bathroom without resistance. He began to use the phrase, “you are hurting me” any time anyone touched him or tried to pick him up. It took three weeks, according to his grandmother, until he was comfortable going to the bathroom.

[53] The children have overcome any early delays occasioned by their premature birth. There is no evidence that they continue to have difficulties or are not receiving services necessary to their development. I do not find, on the evidence before me, that the children have disabilities necessitating any special care. Contrary to every suggestion of the father, the children are not disabled.

[54] I do find that the children are emotionally attached to their mother, and that Mason in particular is anxious and reactive in unsupported environments.

Meeting the Needs of Mikalah and Mason

[55] The parents of the mother divorced early in her life and she went to live with her father. She sees her stepmother, whom she met at the age of twelve, to be her mother. The Applicant father was raised in foster care and later went into the army. The OCL report suggests that part of the difficulties experienced by the parents in this situation is the result of issues such as attachment from their own early lives.

[56] The children were seen by Dr. Jain of the Hospital for Sick Children – Telepsychiatry Program. He is reported by the Office of the Children’s Lawyer as saying that Ms. Chiasson engaged in appropriate touch with Mason and there was “reciprocal affection and no evidence of detachment”. Dr. Jain found no problems with the capacity of Cindy Chiasson to parent.

[57] In regard to Mr. Chiasson, Dr. Jain advised that he needed to keep in mind that he was the one who made the decision to leave Thunder Bay and he was the one who needed to sacrifice and visit with the children in Thunder Bay more frequently.

[58] I do have some hesitations in regard to the ability of Jim Chiasson to parent Mikalah, and Mason in particular. This concern is based on a number of factors:

a. The maternal grandfather reported an incident when Jim Chiasson had been over to supper and Mason started to cry. When Mr. Chiasson went to address the matter, he was shouting at the child that Mason was not going to cause him to have a cold supper. The grandparents immediately intervened and picked up the child. b. The unexplained fracture of the leg of his other son Adin; c. A complaint about rough handling of Adin by the father in London (Addendum to the Report of the Children’s Lawyer, p.3). The complaint was that he was holding Adin in the air above his head and shaking him like it was fun, but Adin’s head was snapping back and forth; d. The social worker in London was concerned with rough treatment of Adin by Mr. Chiasson she observed during a visit. He was amenable to programming. e. Regression of Mason in toileting while at his father’s home; f. Exhibiting of sexualized behaviour while at the father’s home; g. Comparing the children to Adin, and continuing to perpetuate to the children that they are disabled; h. Medicalizing the children at every opportunity; i. Not facilitating contact between the children and their mother during visits; j. Not recognizing that the primary relationship to be nurtured in London during visits is between Mikalah and Mason and their father.

[59] It seems that at least the needs of Mason are not being met when he is at his father’s home.

Mental Health of the Parents

[60] There is no medical evidence verifying that the mother has mental health issues. She presented at the trial as a rather passive and quiet person, but incidents involving disputes with James and Grace show that she can become angry and stand her ground.

[61] In the early days of this matter, there were allegations of physical abuse made by the father regarding the mother. None of them were verified by the investigating child welfare agencies.

[62] Even if the mental health of the mother was problematic, which is not evidenced in this proceeding, there is nothing before the court to suggest that the parenting of the children has been compromised in any way or that they are affected by this issue.

[63] The father says he has been diagnosed with ADHD but denies having ever been identified as having FASD. The OCL report says that Mr. Chiasson indicated that he was diagnosed with Fetal Alcohol Effects (FAE) while in foster care. The same report says that he has double scoliosis, but he denies that he is disabled.

[64] In her letter to Cindy Chiasson, Grace Chiasson says that, “I know you know Jim, you can’t deny that because you guys were together at one point. You know he gets flustered, overwhelmed and either gets aggressive with his tone and words or just gives up…when that happens is that he ends up telling me things that are wrong or backwards or only partial…But what I’m hoping to do with this email…is to cut the middleman out. Cut Jim out and create our own safe space where we can talk ourselves.”

[65] Grace Chiasson is attempting in this letter to establish some communication with Cindy Chiasson. Her letter does reveal issues related to her husband. In the same letter she is forthright in identifying that she has epilepsy and also suffers from an anxiety disorder.

[66] Dorit Osher, a therapist from London who Mr. Chiasson arranged to see the children, informed the OCL social worker that, “Mrs. Chiasson is able to support Mr. Chiasson. She advised that Mrs. Chiasson is able to “coach” Mr. Chiasson all of the time. He is responsive and does not see her coaching as a personal attack.”

[67] It is clear that Mr. Chiasson has a disability of some type. It is difficult to identify how this has impacted on his ability to parent and the degree to which his own circumstances interfere with his ability to be responsive in a positive way to his children.

Relationships

[68] It is clear that the children love each of their parents, even though each employs different parenting approaches. Mason has been observed to be more of a follower of Mikalah and the closeness of these children cannot be underestimated.

[69] The parents are not able to discuss any aspect of the children together. The father has shown that his approach, even before the move to London, was focussed on removing the children from the care of their mother on perceived weaknesses. I find that his characterizations of the mother as being a drug addict with mental health issues and other descriptions, do not have any semblance of reality and are exaggerations for the purpose of enhancing his case.

[70] In addition, repeatedly Jim and Grace Chiasson have engaged numerous agencies and the police to try to support and prove their case. For example, after identifying sexualized behaviours in the children, Mr. Chiasson did not contact their mother but took them to a therapist immediately. When Cindy Chiasson let the children take their flashing toothbrushes on their visit to London, instead of putting them away until the visit was done, Grace Chiasson reported it to the police because she reacts to flashing lights as part of her epilepsy.

[71] In regard to the arrangements for parenting time, Jim and Grace have covered the license plates of vehicles used to pick up the children, refused to let the returning children run to their mother in Thunder Bay and refused to provide information to Cindy Chiasson as to where and with whom the children would be driving. They have also withheld the children from their mother due to unverified allegations and the children had to be returned by emergency order of the court. There are many examples too numerous to mention of inappropriate behaviour by Jim and Grace Chiasson during even airport exchanges. Many times, threats are levied to the mother by them.

[72] In fact, the adversarial stance taken by him and his wife Grace, has deteriorated the relationship that existed at the beginning between the parents. Materials filed by each parent shows that there is no chance of them working jointly in decision making for the best interests of the children. The father repeats strongly held views by him about the competence of the mother.

[73] The maternal grandparents are involved on a daily basis with the children. They have provided assistance as needed. The evidence of the maternal grandfather demonstrated a knowledge of and commitment to the children. The mother, her parents and the children go camping each year. Other family members live near to the mother and the children. There is no evidence that anything but positive support has been provided by the maternal family toward the children.

[74] This would also be the expectation from the family of Grace Chiasson. It is clear that they are a dedicated and unified family. They do not, however, know Cindy Chiasson, have never spoken to her or her family and do not know the real circumstances of the children in Thunder Bay.

Alienation

[75] There are a number of actions which I consider are meant to alienate the children from their mother.

[76] When Grace (Thompson) Chiasson began her relationship with the Applicant, she did not have any children. They began dating about July of 2016. She says that Mikalah started to call her “mama” about December of that year and Mason followed suit. By about May of 2017, the children were calling her mommy and referring to their mother as “Cindy”.

[77] I do not believe that the children, under two years of age, would suddenly call Grace their mother and call their mother by her given name. They either heard those references, or were taught those references. In her letter to Cindy (Exhibit B to her affidavit of April 1, 2021) Grace says,” we both love (y)our kids”. She has insisted on being called mommy during video access, in front of their mother.

[78] It may be that the role of a mother is important to the children’s stepmother. However, it seems that Grace Chiasson has been unable to accept from the outset, that she is not the mother of the children. One cannot help but think that if the children were calling another man “daddy” that Mr. Chiasson would object.

[79] The maternal grandfather recounts an incident related to the exchange of the children at the airport. Grace had flown in to pick up the children. She insisted, in the public space of the airport in Thunder Bay, to strip the clothing off of the children and put clothing on them that she had brought. The grandfather says that Grace handed the clothes back to Cindy and told Cindy, “You can take these home, we can buy our own clothes for our children.”

[80] The children have been called “Lulu” and “Bowie” by the father and stepmother. This is more than a nickname. The father has the expectation that the children will respond to these names. Mikalah has insisted that her name is Mikalah.

[81] Even when the mother has specifically requested that the children’s hair not be cut, the father has allowed the hair of the children to be cut during visits with him. He has also pierced Mikalah’s ears without her mother’s consent.

[82] The children have been taught that other family members of Grace (Thompson) Chiasson are to be referred to as their grandparents, aunts, uncles and cousins. While this is in and of itself innocuous, coupled with other acts of alienation it appears to be consistent with an attempt to completely immerse the children into another family, without respect for the separate identity they do have.

[83] According to the children, they have been instructed by their father that they are not allowed to talk about activities they do in London, nor bring personal belongings from there and, according to Cindy Chiasson, not allowed to take toys there from here. They have said that their dad told them that what happens in the London home is secret.

Summary of Best Interests

[84] The children Mikalah and Mason have been in the care of their mother since birth and are emotionally attached to her and have grown up in her family. She has provided stability and routine for them. While the children suffered delays early in their lives, the delays are no longer evident. There does not appear to be any need of the children that is not met by their mother.

[85] The children love their father and need to continue a relationship with him even though he chose to move away from them. It is important that he focus on creating and maintaining a positive relationship with them during his parenting time. Attempts to undermine the mother, characterize her as deficient and continuously criticize her, will be felt by the children.

[86] While a life for the children could be created in London, there is a certainty that the mother has created a life in the best interests of the children in Thunder Bay.

Best Interests and Relocation

[87] The new provisions about relocation rely on the best interests test found in s.24 of the CLRA and add further considerations in reviewing the best interests of the children in mobility cases in s.39.4 (3). Those additional considerations related to the relocating of children are:

Best interests of the child

(3) In determining whether to authorize the relocation of a child, the court shall take into account the best interests of the child in accordance with section 24, as well as,

(a) the reasons for the relocation;

(b) the impact of the relocation on the child;

(c) the amount of time spent with the child by each person who has parenting time or is an applicant for a parenting order with respect to the child, and the level of involvement in the child’s life of each of those persons;

(d) whether the person who intends to relocate the child has complied with any applicable notice requirement under section 39.3 and any applicable Act, regulation, order, family arbitration award and agreement;

(e) the existence of an order, family arbitration award or agreement that specifies the geographic area in which the child is to reside;

(f) the reasonableness of the proposal of the person who intends to relocate the child to vary the exercise of decision-making responsibility, parenting time or contact, taking into consideration, among other things, the location of the new residence and the travel expenses; and

(g) whether each person who has decision-making responsibility or parenting time or is an applicant for a parenting order with respect to the child has complied with their obligations under any applicable Act, regulation, order, family arbitration award or agreement, and the likelihood of future compliance. 2020, c. 25, Sched. 1, s. 15.

Factor not to be considered

(4) In determining whether to authorize a relocation of the child, the court shall not consider whether, if the child’s relocation were to be prohibited, the person who intends to relocate the child would relocate without the child or not relocate. 2020, c. 25, Sched. 1, s. 15.

[88] The court must examine all of these factors in determining this matter.

The Father’s Move to London, Ontario

[89] The father suggests that the move to London should not be held against him.

[90] In January of 2018, the father and his wife Grace had their son named Adin. In March of 2018 an investigation of an injury to Adin, a broken femur, was commenced by the local children’s aid society in Thunder Bay.

[91] During the investigation the parents were told that the baby could not be left alone with them unsupervised. The mother of Grace Chiasson came to Thunder Bay, but a decision was made for all of them to go to London Ontario where Grace’s family were. Cindy Chiasson was told not to allow access by the father to their children until the matter was resolved.

[92] A number of scenarios were suggested in regard to how Adin was injured. The OCL report says that the injury was verified. The child welfare agency determined by the end of May 2018, there was no ongoing risk in regard to Adin. There was a subsequent complaint that Jim Chiasson was roughly holding Adin in the air and shaking him in a way that moved his head and neck back and forth.

[93] After the conclusion of the investigation about six weeks later, James and Grace Chiasson decided not to return to Thunder Bay but to remain in London. Prior to that time, James Chiasson had been sharing parenting time of Mikalah and Mason with their mother.

[94] This is an important point in this case. It seems to me that there was no need for both of Adin’s parents to go to London with him. Mr. Chiasson could have stayed in Thunder Bay where Mikalah and Mason were until the investigation was completed.

[95] It is after the investigation that a conscious decision was made by him to stay in London Ontario and leave the twins in Thunder Bay in the care of their mother. This occurred even though there was an active custody application already being pursued by him.

[96] Mr. Chiasson was able to choose London and did not bring an interim motion for the children to relocate with him. He was either content with the care of the mother or at the very least acquiesced to it. The children have been living with their mother exclusively since April of 2018 or for four of their seven years.

[97] Incredibly, at trial, Mr. Chiasson claimed, when questioned by counsel for the mother, that Cindy Chiasson had forced him to choose London because Thunder Bay had become an unsafe environment with threats made to kill him and his wife Grace, with people watching his property and harassing him. He was unable to provide any proof of these allegations.

[98] In addition, the Discontinued Report of the Office of the Children’s Lawyer, says that, “On May 16, 2018 Mr. Chiasson advised this clinician he and his partner were not returning to Thunder Bay. He said it was not healthy for them to do so because of Ms. Chiasson as she had already put their infant son in danger three times.”

[99] It seems difficult for Mr. Chiasson to admit that he left Thunder Bay because the children’s aid society had a genuine concern about his son’s broken leg, unrelated to Cindy Chiasson. He also cannot admit that he chose himself not to return to Thunder Bay but to remain in the supportive environment of Grace Chiasson’s family in London. At that point he did not seem to be concerned for the parenting of the mother of the children.

Moving the Children

[100] The reasons for the move to London by the father have already been outlined. The suggestion is that the move of the children to London is a necessity to place them in a better situation. As I have found, on a balance of probabilities, there is no valid reason to move the children to London. In addition, the following factors must be considered:

1. The children spend all of their time with their mother, who is involved with their lives completely. A move would seriously change their contact and routine.
2. There is no assessment of the impact on the children of a move on their lives and the loss of their mother’s love and affection.
3. The separation agreement entered into by the parties contained a prohibition against moving the children from Thunder Bay. This shows an intention by the parents at that time, to have Thunder Bay as the home of the children.
4. The proposal of the father is that the mother would have the same vacation times with the children as he has. There is no indication of how this would impact the emotions and stability of the children. I note that the father says he does not have funds to have the children visit him. The mother has been cooperative in making that happen. It is unknown whether this would be reciprocated.
5. The father has failed to pay child support in accordance with the Child Support Guidelines. He has not supported his children financially.

[101] Based on the best interests of the children and the considerations in s.39.4 of the CLRA, I am not convinced that the children need to move to London Ontario.

Decision

[102] It is in the best interests of Mikalah and Mason that they remain in the primary care of their mother. I am not satisfied that their needs require that they move to their father’s care in London. The father was able to move to London without them because of the care provided to them by their mother.

[103] I have also had to consider whether the decision-making in regard to the children should be shared between Cindy and Jim Chiasson. Given the volatile relationship between the parties, it is my concern that joint decision-making will continue to perpetuate not only the animosity between the parents but also subject these sensitive children to those negative and troubling elements existing in the parental relationships.

[104] I am not confident, regardless of this decision, that the father and stepmother will be able to disengage from their campaign to achieve custody of the children. For this reason, information about the children should be limited so as not to continue the intense and self-serving scrutiny of the children and the mother’s actions by their father. The father, for the same reason, should not have authority to medicalize the children.

[105] In regard to parenting time, there is a stress to the children if the father and his wife continue their alienating behaviours. I have had to consider if there should be any parenting time for them at all with the children. A continuation of the actions of Jim and Grace Chiasson to discredit the mother and convince the children to align with them would have a detrimental effect on the children.

[106] The mother has been cooperative in arrangements for the children to see their father. The OCL and Dr. Jain suggest that the children need to feel loved and accepted by their father. For this reason, I agree to parenting time being arranged for the father, although I am skeptical that he will understand that the time that his children spend with him is not his right, but an opportunity for their relationship to develop to their benefit.

[107] The expenses of the exercise of parenting time by the father should be completely his cost. Not only is that the responsibility usually of the access parent, but the move of the father, as I have said, was unnecessary.

[108] There should be regular telephone or virtual contact between the father and the children.

[109] It is not clear why the father has not paid child support since he left Thunder Bay and was no longer in a shared parenting arrangement. The mother asked for child support in her Answer. I recall that the father was said to have quit his job on the day of the birth of the twins. He had been in the armed forces for a period of about three years achieving the rank of corporal, and has argued that this period shows that he is a capable person. At the end of the hearing in this matter he indicated he had achieved employment again.

[110] Conversely, the mother has suggested that he obtains and then quits jobs. He has stated that he cannot afford child support and is reported to have told the children that Santa only comes to the mother’s home.

[111] Mikalah and Mason have the right to be supported by their father.

[112] A man working at minimum wage ($15) for a regular work week of 40 hours earns a gross income of about $31,200 per annum. Mr. Chiasson’s financial statements show annual incomes of $34,014 in 2019 and $5602 in the financial statement of August 2021. A clear picture has not been provided as to his real income in an ordinary year.

[113] I am having to deem income to Mr. Chiasson. I am willing to reduce the annual income related to minimum wage of $31,200 to $20,000 per annum on the basis that Mr. Chiasson will have costs related to access, and that he may not achieve a full time employment position. While he has two other children to support, his ability to support them must have been a consideration when he decided to have them after the twins.

[114] The date when the equal parenting rotation ended was April of 2018. On this basis, Mr. Chiasson will pay $311 per month based on deemed income of $20,000 per annum commencing on May 1, 2018 and continuing on the first day of each of every month thereafter for the support of Mikalah and Mason.

[115] The arrears of support up to June 30, 2022, in the amount of $15,239 are to be payable at the rate of $100 per month commencing July 15, 2022 and continuing on the 15th day of each and every month thereafter until the balance is paid.

[116] The mother also asked for s.7 expenses in her Answer. I have had to deem income for the father and the income of the mother is unknown. In these circumstances, there will be an order that the cost of s.7 expenses shall be shared equally on some conditions.

[117] There are other conditions of parenting which I have added such as times and specific dates so as to reduce the interaction between the parents.

[118] Other terms of the final order in this case are set out in the appendix to this decision.

Released: June 13, 2022 Signed: Justice D.J. MacKinnon

APPENDIX 1 – FINAL ORDER

Decision-Making

1. The mother, Cindy Chiasson shall have sole decision-making and primary residence in regard to Mikalah Chiasson and Mason Chiasson born in […] 2015.

Parenting Time

2. The mother Cindy Chiasson shall have all parenting time with the children, except for the parenting time of the father, James Chiasson, which shall be:

   a. Two weeks each summer in the months of July or August with notice of the dates given by him to the mother by May 1, of each year; b. One week at Christmas with: i) the first period from the first day after school ends at noon for a period of seven days and returning by the eighth day at noon in 2022 and even years thereafter; and ii) for the second period from the eighth day at noon after school ends for a period of seven days returning on the eighth day at noon in 2023 and in odd years thereafter, provided that the children are returned at least two days before the recommencement of school; c. One weekly phone call or video call commencing at 7 p.m. on Fridays, or a different day and time agreed between the parties, to be no more than one hour; d. Other telephone or video calls at the request of the children; e. Alternating March breaks commencing at five p.m. on Friday before the week starts and returning on Friday at five p.m. at the end of the week in 2023 and continuing in odd numbered years thereafter; f. Other parenting time as agreed between the parties; g. Notice of the intention to exercise parenting time at Christmas or March break shall be provided in writing by the father to the mother at least 60 days in advance, failing which she shall be entitled to utilize that parenting time with the children herself.

Conditions of Father’s Parenting Time

3. The following conditions apply to the exercise of parenting time by the father;

   a. The children shall call their mother Cindy Chiasson every 48 hours during the father’s parenting time and such call shall be in private; b. There shall be no physical disciplining of the children by James Chiasson or his spouse Grace Chiasson; c. The children shall not, during the father’s parenting time, be taken for any assessments by any professionals except with the express written consent of the mother unless the condition of the child is immediately life-threatening; d. The names, appearance and attributes of the children shall not be changed including haircuts, piercings and tattoos; e. All information about where the children will be located and contact information shall be provided in writing to the mother by the father seven (7) days prior to the commencement of his parenting time or the parenting time shall be cancelled; f. The children shall not be removed from the Province of Ontario without the consent of the mother; g. Communication between the parents including a step parent, shall be by email or texting, unless the father pays the subscription costs for both parties to use Family Wizard, in which case it shall be the communication method;

Travel Conditions

4. The following conditions apply to the travel of the children for parenting time with their father;

   a. All costs associated with the travel of the children is to be paid by the father; b. The full itinerary for the children’s travel is to be provided by the father to the mother at least seven days in advance including flight information, names and vehicle plate information of any drivers involved in the transportation, accommodations on the trip and contact information; c. The mother or a member of her family is to deliver the children to a location in Thunder Bay, including the Thunder Bay Airport, for the purpose of exchanges for travel to facilitate the parenting time of the father.

General Terms

5. The father shall be entitled to any information related to the education of the children, which he may arrange to obtain directly from the school.

6. Both parties shall be cooperative and flexible in regard to the parenting times of the children.

7. The children shall be returned at the end of the father’s parenting time, or this order shall be enforced by a further emergency court order;

8. The parents may, at any time in writing, change the terms of this order.

9. The mother will provide other information to the father regarding the children as she sees fit;

10. No parent or step parent will denigrate or negatively portray the other parent to the children.

11. No parent or step parent shall post on any social media any comment about the other parent or inappropriate photos of the children, Mikalah or Mason;

Child Support

12. The father James Chiasson is deemed to have income of $20,000 per annum.

13. James Chiasson shall pay to Cindy Chiasson the sum of $311 per month commencing on May 1, 2018 for the support of Mikalah Chiasson and Mason Chiasson each born in […] 2015, and continuing on the first day of each and every month thereafter until the children are no longer eligible for support.

14. The arrears of support to June 30, 2022 in the amount of $15,239 shall be paid by James Chiasson at the rate of $100 per month commencing July 15, 2022 and continuing on the 15th day of each and every month thereafter until the balance is paid.

Section 7 Expenses

15. The mother may engage in services for the children. For services under $300, upon provision of the receipt, the father shall pay 50% of the cost to the mother within thirty days, failing which the owed sum shall be enforced by the Family Responsibility Office.

16. SDO and FRO clauses to be added.

Costs

17. Costs submissions of no more than 5 pages may be served and submitted within ten days of this order. Reply materials of no more than 3 pages may be submitted within three days thereafter.

Justice D.J. MacKinnon