ONTARIO SUPERIOR COURT OF JUSTICE

COURT FILE NO.: FS-12-17989
DATE: 20120803

BETWEEN:
Anton Kim Applicant – and – Tara Kim Respondent

Kristen Normandin and Arin Tint, for the Applicant
Paul Slan and Carolyn J. Chambers , for the Respondent

HEARD: July 24, 25 and 26, 2012

c.hORKINS J.

Introduction

[ 1 ] Anton Kim and Tara Kim were married on October 7, 2006. They have one child, Lincoln, who was born on November 14, 2008. The parties separated on December 5, 2011 and executed a Separation Agreement on November 9, 2011. A divorce order was recently issued.

[ 2 ] The Separation Agreement provides that Anton and Tara will jointly parent Lincoln and that they will both reside within the “GTA” until Lincoln completes high school. The Separation Agreement does not define “GTA”.

[ 3 ] In May 2012, Tara bought a home in Sutton, Ontario with her boyfriend Travers Hobbs. This is where she now resides. She did not tell Anton that she was moving from Toronto to Sutton until her offer to purchase the home had been accepted. When Anton learned that Tara was moving to Sutton with Lincoln and planning to enroll him in junior kindergarten in Sutton, Anton brought this application. He seeks an order directing that Lincoln reside primarily with him and that Tara have access on alternate weekends and during the week.

[ 4 ] Pending this judgment, an interim order was issued directing that Lincoln’s principal residence be with Anton in Toronto. Tara was given access to Lincoln but not allowed to take Lincoln to the new home in Sutton except on alternate weekends.

The Legal Framework

[ 5 ] In essence this is a mobility case. The parties agree that the leading decision is Gordon v. Goertz , 1996 191 (SCC) , [1996] S.C.J. No. 52, [1996] 2 S.C.R. 27 (“ Gordon ”). This case differs from Gordon for two reasons. First, there is no existing court order that must be varied. Anton and Tara did not confirm their Separation Agreement in a court order. As a result, the threshold requirement in Gordon that there be a material change in the circumstances affecting the child before this application can proceed, does not apply. Second, Anton and Tara agreed to “jointly parent Lincoln”. Tara does not have sole custody. Unlike Gordon , both parents in this case are custodial parents.

[ 6 ] In Berry v. Berry, 2011 ONCA 705 at para. 10 , there were two custodial parents and the Court of Appeal in this situation set out the applicable Gordon factors. I adopt the following passage in Berry :

10 In Goertz , the Supreme Court emphasized that the superordinate consideration in a mobility case is the best interests of the child determined from a child-centered perspective. The court set out, at para. 14, a number of factors to be considered. Taking into account that this case involves two custodial parents, those factors can be stated as follows:

• the existing custody arrangement and relationship between the child and each of the custodial parents;

• the desirability of maximizing contact between the child and both parents;

• the views of the child (when applicable);

• the parent's reason for moving, only in the exceptional case where it is relevant to that parent's ability to meet the needs of the child;

• disruption to the child of a change in custody; and

• disruption to the child consequent on removal from family, schools, and the community the child has come to know. [Emphasis in original.]

[ 7 ] In this case the views of Lincoln are not applicable given his age. He will be four years old this November.

[ 8 ] Further, parental conduct “however meritorious or however reprehensible, does not enter the analysis unless it relates to the ability of the parent to meet the needs of the child”. ( Gordon at para. 21 .)

[ 9 ] Finally, the court must “consider the matter afresh without defaulting to the existing arrangement”. ( Gordon at para. 17 .)

The Facts

[ 10 ] The relevant facts as I find them are set out below.

Prior to Separation

[ 11 ] Tara grew up in Sault Ste Marie and Anton grew up in Toronto. They both graduated from university and have maintained steady employment. Tara is an engineer. She works at Enbridge Gas and Anton works for Yahoo in media sales.

[ 12 ] Tara and Anton met in 2003. They lived together in a house in the Bayview and Steeles area that Anton bought without input from Tara. He bought the house in 2005. It was close to Anton’s mother. Anton and Tara were married on October 2, 2006. Tara did not like the house and the neighbourhood that Anton had chosen for them. As a result, Anton agreed to sell the house and move. In June 2009, they bought a home at 109 Forman in the Bayview and Davisville area, where they lived until separation.

[ 13 ] Lincoln was born on November 14, 2008. Tara took maternity leave for ten and half months and was the primary caregiver until she returned to work at Enbridge Gas. The parents chose a daycare called Kids and Co. that was located on Consumers Road very close to Tara’s office. They enrolled Lincoln in a weekend music class close to home and found a family doctor at Sunnybrook hospital.

[ 14 ] Since Lincoln’s daycare was close to Tara’s office, she dropped him off and picked him up each day. Tara was also the parent that took Lincoln to most of his doctor’s appointments and she stayed home with him if he was sick.

[ 15 ] As Lincoln progressed, Tara took responsibility for changes in his schedule and making age appropriate adjustments to how they cared for him. Anton followed Tara’s lead.

After Separation

[ 16 ] The evidence is clear that Tara and Anton are caring parents who managed to share their parenting of Lincoln without any problems until Tara revealed that she was moving to Sutton.

[ 17 ] The parents describe Lincoln as an intelligent, creative and passionate child. There is no evidence that he has experienced any problems as a result of his parents’ separation.

[ 18 ] Tara and Anton separated early in December 2010. Tara stayed in the Forman home until it was sold. She then moved to a temporary apartment in the same neighbourhood. She followed a set schedule with Lincoln. Lincoln woke up early between 6 - 6:30 a.m. After breakfast, Tara drove Lincoln to daycare at Kids and Co and dropped him off at 7 a.m. She then went to work and picked Lincoln up from daycare at 4 p.m. They then returned home for dinner.

[ 19 ] Initially Anton lived at the Minto Suites. He picked Lincoln up at daycare on Thursdays. They had dinner together and Anton put Lincoln to bed. He also saw his son on a few Sundays. In March 2011, Anton moved back into the Forman home but moved out again for good in June 2011. He sublet a one bedroom apartment from a friend. Anton had to buy a bed for Lincoln and did not have Lincoln overnight at this apartment until the bed arrived. He took Lincoln to his mother’s home for a few overnight visits.

[ 20 ] Tara testified that Anton only took Lincoln to his mother’s home for an overnight stay if his mother was not there. She recalls that on one occasion Anton took Lincoln to stay at his mother’s home overnight. Shortly after leaving, Anton called Tara and told her that he could not stay at his mother's home and had to return Lincoln to the Forman home. Although this piece of evidence suggests that there may have been a problem with Anton and Lincoln spending time at his mother’s home, I am not prepared to draw this conclusion. Anton was not confronted with this evidence and given chance to respond. Further, Tara lived with Anton’s mother for a few months before their first home was ready. She expressed no concern with Anton’s plan to have his mother take care of Lincoln nor questioned her ability to care for her grandson.

[ 21 ] There is a dispute in the evidence about when Anton started to have Lincoln for overnight visits at his apartment. Anton testified that he did not take Lincoln to his apartment for overnight visits until he had bought a bed for Lincoln. He recalls that this was in late June. He and Tara then followed an access schedule that was incorporated into the Separation Agreement. Anton had Lincoln every Friday after daycare until Saturday at 5 p.m. and each Tuesday after daycare until Wednesday morning. Anton picked Lincoln up and dropped him off at the daycare.

[ 22 ] Tara testified that Anton did not have Lincoln for overnight visits at his apartment until they started the mediation process in September. Through the summer, she says that Anton had access but it was not consistent. He saw Lincoln on Thursdays and Sundays, but pick and drop off times varied because Anton did not always arrive at the same time. I do not consider this dispute in the evidence to be significant. Even if I accept Tara’s version of the access in this short period of time, both agree that once a schedule was set in September it was followed without any difficulty. The summer was likely an adjustment period for both parents, particularly Anton, since he was the one that moved out of the family home.

[ 23 ] In September, the parties started mediation to settle their differences. After four sessions Anton and Tara signed the Separation Agreement on November 9, 2011.

[ 24 ] In September, Tara and Anton accepted an offer to sell the Forman home. The deal closed in November. Tara did not have a lot of time to look for a place to live. She signed a one year lease on an apartment close to their Forman home. This was a temporary place to live while she looked for a permanent home.

[ 25 ] Tara and Anton had discussions about where they would live. Their evidence on this topic conflicts. For the reasons that follow I prefer Tara’s evidence.

[ 26 ] Tara testified that they first talked about both living in Toronto. They each wanted a house with a backyard for Lincoln to play in. While Anton and Tara were going through mediation, she started to look at houses for sale close to where they had lived on Forman and in the East York area. However, after looking at homes in this area, Tara concluded that she could not afford to live in Toronto unless she rented an apartment or bought a condominium. This was not an option for Tara because she wanted a house where Lincoln could grow up without having to move again.

[ 27 ] At one point in their discussions, Anton asked Tara if she was going to move. This resulted in the following discussion. Tara told Anton that she would love to be able to move and accept a position to work with her employer, Enbridge, in Niagara, Calgary, Edmonton or Ottawa. Tara agreed with Anton that she would not move to any of these locations. Tara started to talk to Anton about moving to Pickering, Ajax, Whitby or north of Steeles. Anton wanted Tara to limit her search to south of highway 7 but Tara said she would not agree to this limit. She wanted to have a house that she and Lincoln could enjoy. She also wanted a house that she could afford that was similar to the house what she grew up in. As a result, Tara testified that they agreed to limit the boundaries of the living area to the GTA. Tara recalled that Anton seemed fine with this geographic boundary and relieved that she was not going to move further away for work.

[ 28 ] Anton’s evidence about this discussion is less clear and internally inconsistent. He recalls that they talked about sending Lincoln to Maurice Cody Public School while they were living together in the Forman home. Anton agrees that the apartment Tara rented was temporary. This temporary apartment fell within the catchment of Maurice Cody Public School. Anton testified that they both wanted Lincoln to attend this school or some other school in the Toronto District School Board and so he understood that Tara would continue to live within the area of their former home on Forman.

[ 29 ] I question Anton’s evidence that he understood that Tara was going to live in the same area once she found a permanent place to live. This is inconsistent with his recollection that Lincoln would go to Maurice Cody or some other school in the Toronto District School Board. The Toronto District School Board captures a large area in the large city of Toronto. On his own evidence he acknowledges that Lincoln might end up at a school anywhere within the Toronto District School Board and, if so, it makes no sense to say that he understood that Tara would continue to live in the area of the Forman home. This is also inconsistent with his evidence about what the GTA included. As explained below, Anton believed that the GTA included areas well outside the Toronto District School Board.

[ 30 ] Anton was asked if he recalled discussions with Tara about placing restrictions on where she would live. He does not recall Tara telling him that she would not agree to restrict her search for a home to Toronto. He was asked if there was a discussion about restricting Tara’s search to south of highway 7. He recalled “some discussion about highway 7” but could not recall the details. He explained that he is vague about the details of what was discussed at the mediation because they went over a lot in a short period of time.

[ 31 ] Anton agreed that he would choose his residence in proximity to Lincoln’s school, once Tara decided where she would take up permanent residence. The Separation Agreement states that Tara and Anton will live within the GTA. When he signed the Separation Agreement, Anton thought that the GTA meant the “Metropolitan Toronto and surrounding area”. His understanding of what was included in the “surrounding area” was based on knowledge he acquired when he used to work for Famous Players Media. The company had a cluster of theaters that they called the GTA. This included the geographic area of “Richmond Hill, down to the waterfront, from Scarborough over to Mississauga”. The area also went north to Newmarket but not as far north as Sutton. I note that some of these areas are north of highway 7 and so it is reasonable to conclude that highway 7 was not the northern limit of where Tara could live.

[ 32 ] Anton now knows that the GTA is a much larger area that includes York region that includes the town of Sutton where Tara lives.

The Separation Agreement

[ 33 ] The parties agree that the Separation Agreement is only one factor to consider in deciding what is in Lincoln’s best interests. It is evidence of what Tara and Anton thought would be in their son’s best interests when they signed this agreement.

[ 34 ] Subject to what is provided in this judgment, it is agreed that the Separation Agreement will continue to govern.

[ 35 ] Before signing the Separation Agreement, Anton and Tara had independent legal advice, they received full disclosure of their financial circumstances and understood their respective rights and obligations under the agreement. They signed the agreement voluntarily. This is acknowledged in section 25 of the Separation Agreement. The key provisions of the Separation Agreement are set out below.

[ 36 ] Section 7(1) of the Separation Agreement states that Anton and Tara will “jointly parent Lincoln” and that Lincoln will preside primarily with Tara, spending 65% of his time with Tara and 35% of his time with Anton. It also states that in “May 2013 the parenting plan will be reviewed with the intention of Lincoln pending more time with Anton.”

[ 37 ] Anton explained that he and Tara both wanted equal time with Lincoln. However, Tara was having a difficult time letting go of Lincoln. As a result, Anton proposed a transition period that allowed Tara more time with Lincoln (65%) with the intention that they would increase Anton’s time in May 2013. Tara did not disagree with this explanation when she testified.

[ 38 ] Lincoln’s shared time with his parents is detailed in a basic residence schedule set out in section 7(2) of the Separation Agreement. This schedule governs until May 2013 “[u]nless both parents agree to a change”. The schedule gives Anton one overnight during the week. Anton picks Lincoln up on Tuesday from daycare and drops him back at daycare on Wednesday. Anton also has Lincoln on alternating weekends picking Lincoln up from daycare on Friday and returning him to Tara at 5 p.m. on Saturday. The Separation Agreement also details how the various holidays will be shared. (As set out below, both parents are proposing a change that will increase access for the other parent).

[ 39 ] Section 7(20) states that “[t]he parent residing with Lincoln at the relevant time will make the daily decisions affecting his welfare.” Anton agrees that “he will take ‘his lead’ from Tara regarding Lincoln’s changing developmental needs and will apply the same household rules including schedules and routines”. Major decisions concerning Lincoln’s welfare will “as much as possible” be made together. Education is listed as a major decision.

[ 40 ] Section 7(20)(h) deals with “Conflict Resolution” for major decisions. It states that Anton and Tara agree that “they do not anticipate major differences regarding parenting decisions” but if after mediation and consultation with a neutral third party expert they still disagree, “Tara would have the final say as [Anton] has every confidence in her as a parent.”

[ 41 ] Tara explained section 7(20) of the Separation Agreement. It was not meant to allow Tara to do whatever she wished and override Anton. They intend to work together and make decisions for Lincoln but if they cannot resolve the issue, Tara will have the final say.

[ 42 ] The Separation Agreement specifically deals with where Anton and Tara will reside. Section 7(27) states that “[b]oth parties agree that they will stay in the GTA until Lincoln completes high school.” The Separation Agreement does not define “GTA”.

[ 43 ] While the parties now agree that Sutton is in the GTA, Anton did not appreciate this when he signed the Separation Agreement. I accept that when he signed the Separation Agreement, he knew that Tara’s mobility could reach well beyond Municipality of Toronto (as far north as Newmarket, west to Mississauga and east to Whitby.) Certainly one might say that in rush hour, the drive across highway 401 to Mississauga or Whitby from Anton’s home at Yonge and Sheppard would take as long as the drive to Sutton. For this reason, one might question why Anton is contesting Tara’s decision to move to Sutton with Lincoln. Regardless of this analysis, key terms in a Separation Agreement, such as the GTA, should not be left undefined. The aim of the Separation Agreement is to provide the parties with the certainty and guidance that they will need going forward.

[ 44 ] Section 7(26) states that if “Anton or Tara proposes to change his or her residence within reasonable proximity from Lincoln’s school, he or she will give his or her new telephone number and address to the other.”

[ 45 ] Section 7(28)(a) and (b) deal with proximity and state as follows:

(a) Anton and Tara will make every effort to live in reasonable proximity of one another to maintain the current and intended parenting schedule. Once Lincoln starts school, neither parent will move Lincoln’s permanent residence within the GTA without giving the other six months notice of such move.

(b) Anton agrees that he will choose his residence in proximity to Lincoln’s school, once Tara has decided where she will take up permanent residence.

[ 46 ] This case is an example of the conflict that can arise when a critical term that defines mobility is not defined. It is also an example of the conflict that is generated when a parent, such as Tara, ignores the agreement in section 7(20)(b) to “make important decisions as much as possible together about Lincoln’s welfare”. To state the obvious, where a child will live and go to school is an important decision.

Tara Moves to Sutton

[ 47 ] After Tara concluded that she could not afford a house in Toronto, she started to look at listings on MLS north of Toronto in Holland Landing, Keswick, north of Newmarket, Sutton and all over Georgina. She wanted to find a house that backed onto green space and had acreage or waterfront. Tara wanted a house with a backyard for Lincoln and she wanted a place to call home that was just like the one she grew up in.

[ 48 ] Tara bought the home in Sutton with her boyfriend Travers. They have been living together since October 2011. They paid $550,000 for the home and a mortgage for this amount is registered on title. The monthly mortgage and gas expenses are $3,900.

[ 49 ] In October 2012, Tara will be promoted to a new job at Enbridge and she will be working at the Elgin Mills Enbridge office located at Elgin Mills and highway 404. As a result, the drive from Sutton to work will be shorter. However, Tara testified that she did not move to Sutton for reasons related to work. Tara agreed that she could live in Toronto and drive to the Elgin Mills office. When she lived in Toronto she had to drive to sites outside of Toronto to do some of her work. Tara chose to move to Sutton for “quality of life”.

[ 50 ] The Sutton home backs onto the Black River. It has acreage and looks across the river at undeveloped green space. The 4 bedroom home has three bathrooms, a family room and an unfinished basement. There is a boathouse with a one bedroom apartment above. There is lots of room for family and friends to visit and stay overnight. You can travel down the river to Lake Simcoe. The home is in a quaint neighborhood where other young families with children live. It is 1.5 km from town and the school.

[ 51 ] The school that Tara wants Lincoln to attend is Sutton Public School. This is a new school with a large library, a new pool, gym and auditorium. As well, the school has a full day junior kindergarten program and a Before and After School Program on site that opens at 6:15 a.m.

[ 52 ] Tara did not discuss her search for a home with Anton once she moved her search to areas north of Toronto. She gave him no advance warning of her plan to move to Sutton until the deal was done.

[ 53 ] On March 29, 2012, Tara called Anton and told him that she and her boyfriend had made an offer to buy a home in Sutton (in fact the offer had been accepted). Anton was concerned about the travel to and from Sutton and the serious impact this would have on his relationship with Lincoln. Anton works at Yahoo in downtown Toronto. During rush hour it takes about one hour to drive from Lincoln’s current daycare (at Sheppard and Consumers Road) to Sutton. Anton immediately sent Tara an email asking if they could meet to talk about her move. In this email he explained his concerns. Excerpts from the email are set out below:

I just wanted to flag with you that our separation agreement stipulates that we both agreed that we will reside in the GTA until Lincoln completes High School.

I want to discuss this with you as it is not my intention to leverage any decision. At the same time I am very concerned about the distance that will be put in between Lincoln and I. The custody schedule will not work over the long run as he will go to school an hour outside the city and I will have to travel twice the distance to drop him off at school and then get into work. Conversely for me to leave work in time to pick him up and bring him back down will not allow for any real time to be spent with him – other than en route in the car. Activities will be severely curtailed given the travel time. The same would be said even if I were to move north of the city. The matter would be the same.

I know that things have been set in motion in the purchase of the house in Sutton, but I would like to have a more detailed discussion with you about this as it could have a marked impact on my long term relationship with Lincoln.

[ 54 ] Anton and Tara met the next day at a coffee shop. Tara told Anton that their offer on the house had been accepted. After reflecting on the news that Tara was moving to Sutton, Anton sent her an e-mail on April 2 stating that he did not consent to Tara’s decision to move Lincoln “out of the GTA”. He referred to the Separation Agreement that “stipulated … that both parents would live in the GTA until [Lincoln] finishes high school.” His email goes on to state that moving Lincoln to Sutton would have an “adverse effect on the parenting regime in which we are both active in his life” and that the move “out of the GTA” would “curtail” Anton’s access to Lincoln and “have a lasting effect” on his relationship with his son. It is clear from this email that Anton did not appreciate when he signed the Separation Agreement that the GTA included Sutton.

[ 55 ] The next day, Tara replied as follows:

The GTA includes Halton, Peel, Toronto, York and Durham region. Sutton is in Georgina, which is in York region, which is in the GTA. I am not moving out of the GTA.

The Separation Agreement says that you will choose residence in proximity to Lincoln’s school once I decide where to take up permanent residence. I have decided to take up permanent residence in Sutton, Georgina, ON which is in York Region, within the GTA.

We do not need to continue this conversation with respect to Lincoln. It is not my intention to limit yours or his access to each other or impair your relationship with him and I want to work with you on this.

[ 56 ] Anton asked Tara for her mailing address and a copy of her Agreement of Purchase and Sale. Anton’s counsel sent three letters requesting a copy of the Agreement of Purchase and Sale, but did not receive it from Tara until the court ordered her to provide it.

[ 57 ] I recognize that the Separation Agreement provided for either parent to move within the GTA and that Sutton is within this geographic area. I also recognize that Anton agreed to choose his residence in proximity to Lincoln’s school, once Tara had decided where she would “take up permanent residence”. However, the evidence is clear that when discussing the geographic boundaries of their respective residences, the idea of moving as far north as Sutton was not mentioned and when Tara proposed the GTA as a boundary it was never defined. Tara had discussed with Anton moving to “Pickering, Ajax, Whitby or north of Steeles” and she told him that she would not agree to highway 7 being a boundary. Further, Anton thought that the GTA reached as far north as Newmarket, west to Mississauga and east to Whitby. The possibility of Sutton was never mentioned.

[ 58 ] Following their separation, Anton and Tara managed to jointly parent Lincoln and share access in Toronto where they lived and worked. Tara had to know (and I find that she knew) that her decision to move to Sutton would be relevant and important to their ongoing ability to jointly parent Lincoln. She also knew that the Separation Agreement required her to make important decisions about Lincoln’s welfare as much as possible together with Anton. Choosing a school and therefore where Lincoln will live are important decisions. Every parent knows this and Tara did not deny it. Tara offered no explanation for why she kept Anton in the dark and excluded him from these important decisions. She knew that if Lincoln moved to Sutton and was enrolled in the Sutton Public School, that section 7(28) (b) of the Separation Agreement required Anton to move close to Lincoln’s school. She knew that Anton worked in downtown Toronto and it would be a long drive from Sutton to work. She also knew that in May 2013, the parenting plan would be reviewed with the “intention of Lincoln spending more time with Anton”.

[ 59 ] In these circumstances, Tara’s complete failure to communicate with Anton about her decision to move to Sutton was surprising and not consistent with the level of communication that is required in a joint parenting arrangement and the previous level of cooperation that existed between them. Her failure to communicate with Anton was not in the best interests of Lincoln and their agreement to jointly parent their son.

[ 60 ] There is one obvious conclusion to draw from Tara’s failure to communicate. Tara knew that the Separation Agreement did not define the GTA. She did not tell Anton because she knew he did not appreciate that the border of the GTA extended as far north as Sutton. She knew that Anton thought Newmarket was the northern boundary. Tara had her heart set on the Sutton home because it reminded her of where she grew up. Rather than risk a dispute with Anton about her choice, she decided to make the decision and tell him after it was done.

[ 61 ] As the court stated in Berry at para 22 “all significant decisions about the child must be discussed with the other custodial parent. Both parents need to minimize conflict between them for the benefit of their child.” Moving Lincoln’s home and choosing a school is a significant decision that directly impacts Lincoln. Tara’s failure to communicate with Anton created unnecessary conflict.

Lincoln’s Residence and Access - Interim Court Order

[ 62 ] Tara moved to Sutton on May 18, 2012 and Anton learned of the move the morning of May 22, 2012. He brought an urgent motion for Lincoln’s primary residence to remain in Toronto. The motion was adjourned to May 29, 2012. On consent, the court ordered that Lincoln would remain in Toronto, residing with Anton. Tara was given access but not allowed to take Anton to the Sutton home. On the return of the motion on May 29 2012, Justice Czutrin ordered Lincoln’s primary residence to remain with Anton until a final determination was rendered at trial. Tara informed Justice Czutrin that she did not intend to leave her new home in Sutton regardless of the outcome of the trial. Tara was given access to Lincoln. Except for alternate weekends, Tara was ordered not to take Lincoln to Sutton.

[ 63 ] On July 1, 2012, Anton and his girlfriend Sarah moved to a two bedroom condominium at Yonge and Sheppard. Anton has rented this condominium for two years. The condominium is new and spacious. Lincoln has his own bedroom. It is on the subway line and there are stores and parks within walking distance. It is close to the daycare that Lincoln will continue to attend until school starts this fall. Anton’s mother, Sunni Kim, lives about 10 minutes away.

[ 64 ] Lincoln has been living with his father since May 23, 2012. Anton and Lincoln have established a routine. Anton gets up and gets breakfast ready for Lincoln. He wakes him up at 7:15 a.m. They play, eat breakfast and then get ready for daycare. Sarah helps by watching Lincoln while Anton gets ready for work. Anton drops Lincoln at daycare between 8:15 -8:30 a.m. and then continues on to work. He leaves work around 4:30 and picks Lincoln up at 5 p.m.

[ 65 ] Once they return home, there is playtime, dinner and then off to bed. Each night before bed, Anton has Lincoln speak to Tara and Anton’s mother by phone. They also read stories before bedtime. Until recently, Anton was taking Lincoln to music class on the weekends. The music class is now over. Anton and Lincoln visit Anton’s mother at least one a week. During the weekend, Anton likes to take Lincoln to the museum, the Ontario Science Center and Canada’s Wonderland.

The Proposals for Lincoln’s Residence

[ 66 ] Both parties have tailored their requests since the application and answer were filed. Both are now offering the other parent more access than what the Separation Agreement allows for. They agree that subject to any change this court orders in Lincoln’s residence and the access schedule, the Separation Agreement will continue to apply. This means that they will continue to jointly parent Lincoln and that the May 2013 review is still required.

[ 67 ] Anton proposes that Lincoln will continue to live primarily with him. In September, he will attend junior kindergarten at Allendale Public School. In late June, Anton invited Tara to go with him to see the school. The toured the school and were able to talk to one of the teachers. After this invitation, Tara made the same offer and they visited the Sutton school together. There is no evidence criticizing either school.

[ 68 ] Allendale school does not have a before and after school care program. As a result, Anton’s mother will take care of Lincoln. The care schedule will depend on whether Lincoln is in the morning or afternoon kindergarten class. If it is in the morning, Anton will drop Lincoln off at school and his mother will pick him up and take Lincoln back to her place for the afternoon. Anton will pick Lincoln up at his mother’s home after work. If Lincoln attends class in the afternoon then Anton will drop his son off at his mother’s home in the morning, and she will take Lincoln to and from school. Anton will pick Lincoln up after work.

[ 69 ] Sunni Kim did not testify but Anton assured the court that his mother is aware of this plan and she is willing to take care of her grandson. She has bought a car seat for her car. Anton describes his mother as a sharp and vibrant 69 year old. She is active, likes to travel and hike and is “more on line savvy than [Anton] gives her credit for.” Her home is under 10 minutes from the school by car. Before the order of Czutrin J., Lincoln saw his grandmother every Friday when Anton had access. Anton took Lincoln to his mother’s home after daycare and stayed overnight if his mother was home. On Saturday, Anton and Lincoln left for music school and spent the day together. Lincoln and his grandmother have a good relationship. Tara expressed no concern about Anton’s proposed plan that Sunni Kim will help care for Lincoln. Further, Tara did not express any concerns about how Anton has cared for Lincoln since the interim court order.

[ 70 ] Anton proposes that Tara will have Lincoln every other weekend. She can pick him up from school on Friday and drop him back at school on Monday. Tara will also have overnight access every other Thursday. She will pick Lincoln up at school and drop him off at school in the morning. Tara will also have dinner with Lincoln in Toronto every Wednesday. Anton’s aim is to try and minimize Lincoln’s travel time. It is not clear how this will be achieved with one parent living in Sutton and the other in Toronto. Whether Lincoln lives primarily with Tara or Anton (pending the May 2013 review), access will involve having to drive Lincoln back and forth between the two places.

[ 71 ] If Lincoln lives with Tara, then Anton states that his access will be compromised. For example, for the weeknight overnight, Anton will have to drive from downtown to Sutton, pick Lincoln up and then drive back to Yonge and Sheppard. There will not be much time left to visit with Lincoln once they get back to Toronto. However, under Tara’s plan she proposes to drop Lincoln off at Anton’s home at 5:30 p.m. In my view this addresses Anton’s concern.

[ 72 ] Anton expected that in May 2013 he would ask Tara to give him equal access to Lincoln. They had not discussed exactly how they would divide their time with Lincoln but both anticipated that Anton’s access would increase. If Lincoln lives with Tara in Sutton, Anton is concerned about how his access can be increased.

[ 73 ] Tara’s plan is as follows. She will drop Lincoln at the Sutton Before School Program between 6:30-7 a.m. and pick him up at the After School Program at 4:30 p.m. Tara’s work hours are flexible as long as she works an eight hour day. This is not a significant change from the schedule that Tara followed before the interim court order in May. When Tara was living in Toronto, Lincoln woke up around 6 – 6:30 a.m. and was dropped off at daycare at 7 a.m. Tara picked him up at 4 p.m.

[ 74 ] If Lincoln lives with Tara, she proposes that Anton have increased access. Anton will have Lincoln every other weekend and one overnight every week. Lincoln is used to seeing Anton during the week and so Tara wants to continue the overnight week visit. Tara is offering to share the driving. She will pick Lincoln up at After School Program on Friday after work and drive him to Anton’s home in Toronto. On Monday morning, Anton will drop Lincoln at the Before School Program in Sutton and then drive to work. For the weeknight visit they will do the same. Tara will drive Lincoln to Anton’s home and Anton will drop Lincoln at Before School Program the next morning. If Anton wants to reverse the driving, Tara is open to this change. She does not want to meet half way because this would leave Lincoln waiting for a parent to arrive if the other parent is late.

[ 75 ] In May 2013, the Separation Agreement requires the parties to review access with the intention of Lincoln spending more time with Anton. Tara offered her thoughts on how Anton’s access might be increased given that she lives in Sutton and Anton lives in Toronto. Anton can continue to have Lincoln for a overnight week visit and can visit him in Sutton on a second week night. She is prepared to give Anton access on three of the four weekends each month, more of the professional development days at school and four weeks during the summer. Tara would also like to share Christmas so that they each have Lincoln for one week.

analysis - Lincoln’s Best Interests

[ 76 ] The issue is whether Lincoln’s primary residence will be with Tara or Anton and what access the other parent will have. The resolution of this issue must be guided by what is in Lincoln’s best interests following the factors in Gordon as modified in Berry . It is never easy to resolve a mobility dispute and this one is no different.

[ 77 ] Whether Lincoln lives primarily with his mother or father, a change in the existing parenting plan is requested since each parent wants the other to have increased access. I agree that increasing the access is in Lincoln’s best interests.

[ 78 ] Fortunately, Lincoln’s best interests will be served whether he lives primarily with his mother or father. As the following analysis indicates, one factor slightly favours leaving Lincoln with his mother pending the review in May 2013.

Existing Custody Arrangement and Relationship

[ 79 ] In this case we are looking at the existing parenting arrangement since neither parent has custody of Lincoln

[ 80 ] The evidence is clear that Tara and Anton are caring parents and Lincoln has an excellent relationship with both. He also has a good relationship with his grandparents on both sides and spends time with all of them.

[ 81 ] Tara was Lincoln’s primary caregiver following his birth while on maternity leave. She was primarily responsible for taking Lincoln to and from daycare and to his doctor’s appointments. She stayed home with him if he was sick.

[ 82 ] After the parties separated in December 2011 and until the interim court order on May 23 2012, Lincoln resided with Tara 65% of the time and with Anton 35% of the time. The parents followed the parenting plan in the Separation Agreement without any difficulty. Up until Tara started to search for a permanent home, they had cooperated and communicated about Lincoln’s care. When the trial started, Lincoln had spent eight weeks living primarily with his father.

[ 83 ] It is clear from the evidence that since birth and until the interim order, Lincoln was used to spending more time with his mother than his father and Tara took the lead on parental decisions affecting Lincoln’s care. I find that they approached their parenting of Lincoln in this manner because they believed that it would be in their son’s best interest.

[ 84 ] It is also clear that the parents intended to review the parenting plan in the Separation Agreement with the intention that Anton’s time with Lincoln would be increased. Once again, I find that they reached this agreement because they believed that Lincoln’s best interests would be served by having more time with his father.

[ 85 ] Leaving aside the distance between Sutton and Toronto and the lack of communication about the move, I have no criticism of the specific living arrangement that each parent offers for Lincoln. There are benefits to each and Lincoln will be well cared for in either situation. One is no better than the other. Both parents have made arrangements for Lincoln to attend school in the fall and I am assured that he is registered for school (either at Allendale or Sutton Public School). If Lincoln lives with Anton, then his grandmother, Sunni Kim, is willing and able to care for Lincoln. Tara told the court that there is a place for Lincoln in the Before and After School Program at the Sutton Public School. The parents testified that they each have some flexibility at work that will allow them to manage the drop off and pick up times for Lincoln.

Maximizing Contact between Lincoln and his Parents

[ 86 ] The Separation Agreement seeks to maximize the contact that Lincoln has with his parents. While they do not currently live in close proximity, I am satisfied that the contact can be increased regardless of whether Lincoln lives with Tara or Anton. Both have agreed to increase the access of the other parent pending the May 2013 review. Tara’s evidence shows that she is willing to give Anton additional access in May 2013. It is critically important that she honour this agreement and work together with Anton to give him additional meaningful access. To do otherwise would not be in Lincoln’s best interests. While it may be difficult to increase weekday access given the travel, Anton may in the future be able to move further north.

Tara’s Reason for Moving/ Parental Conduct

[ 87 ] In Gordon at paras. 21-23 , the court clearly stated that a parent’s reason for moving is to be considered only in exceptional cases and only as it is relevant to the parent’s ability to meet the needs of the child. Further, parental conduct “however meritorious or however reprehensible, does not enter the analysis unless it relates to the ability of the parent to meet the needs of the child.”

[ 88 ] Counsel for Anton vigorously argued that I should consider Tara’s conduct because it shows that she does not act in the best interests of her son and such conduct supports Anton’s request that Lincoln’s primary residence be with him. My analysis of this argument follows.

[ 89 ] Contrary to section 7(28)(a) of the Separation Agreement the parents have not made “every effort to live in reasonable proximity of one another to maintain the current and intended parenting schedule.” Tara moved to Sutton knowing that it was outside what Anton considered to be within the GTA. The fact that she did not tell Anton that she was searching for a home in the Sutton area and only revealed her decision, when her offer to buy the home was accepted, is evidence that she knew he would be surprised and that he did not view the border of the GTA to extend this far north. Her decision is now carved in stone, since she told Justice Czutrin that she will continue to live in Sutton regardless of the outcome of this trial.

[ 90 ] When Anton signed the Separation Agreement, he knew that he might have to move as far west as Mississauga, as far north as Newmarket or east to Whitby. Yet when Anton learned that Tara had moved to Sutton, he made a decision to sign a two year lease on a condominium in Toronto. He could have rented a place to live in Newmarket, which is much closer to Sutton.

[ 91 ] Anton’s decision to stay in Toronto does not excuse Tara’s failure to communicate with Anton about her move and her complete failure to work with Anton to find a suitable location that would be in the best interests of Lincoln and their joint parenting agreement. I emphasize that each parent made a decision about where they would live without keeping the best interests of their son in mind. As a result, for the next two years the parents will not be living within close proximity to each other. This is not ideal when these parents have agreed to jointly parent a child and move to more equal access in May 2013.

[ 92 ] Counsel for Anton argues that Tara moved to Sutton because she wanted a home just like the one she grew up in and that she chose to move to Sutton for “quality of life”. Counsel argues that Tara offered no evidence to show that the move was in Lincoln’s best interests. In particular, she gave no evidence that she considered the impact that her move would have on the relationship between Anton and Lincoln and the effect of the move on increasing access in May 2013. As a result, counsel says that Tara’s reason for moving to Sutton is a relevant fact to consider.

[ 93 ] I find that in looking for a new home, Tara was too focused on replicating the type of home and surrounding land that she knew as a child. She lost sight of the obligation to communicate with Anton and failed to appreciate that such communication is in Lincoln’s best interests.

[ 94 ] I have already reviewed the evidence about Tara’s move in detail. Tara should have discussed her proposed move before it was carved in stone since it involved where Lincoln would live and go to school. Tara also knew under the agreement that if the terms were followed it would require Anton to move so that he would be in close proximity to Lincoln’s school.

[ 95 ] However, Anton also knew that Tara was going to move and that her permanent home could be outside Toronto. They talked about Pickering, Whitby and moving north of Steeles. Furthermore, Anton considered the GTA to include Mississauga, Whitby and north to Newmarket. He agreed to choose a residence in close proximity to Lincoln’s school once Tara decided where she would live. A move to any of the above cities outside Toronto was possible. Despite this agreement, Anton rented a condominium in Toronto. However, Anton’s actions do not justify Tara’s failure to communicate with Anton about her significant decision to move to Sutton before it was finalized.

[ 96 ] I accept that it will be challenging to exercise weekday access between Sutton and Toronto. However, it would be just as challenging if Tara had located in Mississauga or Whitby.

[ 97 ] Each parent made a decision that was not in their son’s best interests. Tara failed to communicate with Anton about a critically important decision until after the decision was made and Anton chose to ignore his agreement to move in close proximity to Lincoln’s school. However, this conduct does not lead me to conclude that either parent is unable to meet the needs of their son. But for this very unfortunate and avoidable dispute, they have always met Lincoln’s needs. Aside from the distance between the two homes, they have each chosen a home and a neighbourhood with amenities that will meet Lincoln’s best interests and are willing to offer increased access to the other. As a result, I conclude that the parental conduct in this case cannot drive the outcome of this trial.

[ 98 ] Before leaving this point, I stress that Tara’s failure to communicate with Anton about important decisions concerning Lincoln must never be repeated. As the Court of Appeal stated in Berry , “all significant decisions about the child must be discussed with the other custodial parent.” During her testimony, Tara stated a clear commitment to increase Anton’s’ access immediately and again when the review occurs in May 2013. She must honour this commitment.

Disruption to Lincoln

[ 99 ] This factor looks at the change in custody (in this case joint parenting) and the child’s removal from family, schools and the community that the child knows.

[ 100 ] There is no disruption to school, since Lincoln is starting school this fall. He was scheduled to move from the Kids and Co daycare in any event and it was expected that Tara would be moving to a permanent residence.

[ 101 ] This is not a situation where the child is settled in a community with friends that he must now leave. The “community” that Lincoln has come to know living with his father for the last two months is new and not entrenched.

[ 102 ] After separation, the parents each rented apartments and followed a pattern of joint parenting that I have described above. Once this was settled, there was minimal disruption to Lincoln’s care and well being.

[ 103 ] In September, Lincoln will start school and will leave the daycare that he has known for over two years. This is a significant change in any child’s life. Lincoln will be faced with the added disruption of adjusting to a new home, whether he stays with his father in the new condominium or moves to the new home in Sutton. In the face of this significant change and disruption, every effort must be made to stabilize Lincoln’s life. The best way to minimize the disruption as Lincoln settles into school is to make sure that there is no disruption to his pattern of care.

[ 104 ] I find that this factor tips the scales in favour of Lincoln residing primarily with his mother. I find that Lincoln’s best interests are served if the parents maintain a parenting schedule that closely follows what is set out in the Separation Agreement until the review in May 2013. The immediate increase in Anton’s access that Tara proposes is positive and will not disrupt Lincoln.

[ 105 ] For the reasons set out above, this sole factor leads me to conclude that Lincoln’s best interests are served if he moves to Sutton with his mother with the revised access that she has proposed. This will involve Lincoln attending Sutton Public School and the before and after care program that the school offers.

Child Support

[ 106 ] Anton has continued to pay Tara child support while Lincoln has been living primarily with him. Anton requests that Tara repay this amount to him. Tara did not disagree with this request. While the exact amount was not discussed, Anton and Tara should have no difficulty identifying what is owed and making sure that Anton is reimbursed.

Conclusion

[ 107 ] I make the following orders:

(1) The Applicant/ Father, Anton Kim (“Father”) and the Respondent/Mother, Tara Kim (“Mother”) will continue to jointly parent the child of the marriage, Lincoln Chase Kim, born November 14, 2008 (the “Child”).

(2) The Child shall reside primarily with the Mother at 95 Wood River Bend in Sutton, Ontario. This change in the Child’s residence will take effect no later than Sunday, August 19, 2012 at 5 p.m., unless the parties agree to some other date that is prior to the start of school in September 2012.

(3) The Father shall have shall have parenting time with the Child in accordance with the following schedule:

a) Commencing on Friday, September 7, 2012, and on alternate weekends thereafter from Friday to Monday, the Mother shall drop off the Child on Friday at the Father’s home at 23 Sheppard Avenue East at 5:30 p.m. (or such other time and location as Mother and Father agree to in writing or by email) and the Father shall drop off the Child on Monday at Sutton Public School at 8:10 a.m. or at the Before School Program before 8:10 a.m.

b) Commencing in the week immediately following the Child’s move to Sutton, the Father shall have one overnight per week, on either Tuesday, Wednesday or Thursday (the Mother and Father will agree on a week night that will be incorporated into this order).The Mother shall drop off the Child at the Father’s home at 23 Sheppard Avenue East at 5:30 p.m. (or such other time and location as the Mother and Father agree to in writing or by email) and the Father shall drop off the Child at Sutton Public School at 8:10 a.m. or at the Before School Program before 8:10 a.m..

c) The Holiday schedule shall be in accordance with section 7 of the Separation Agreement dated November 9, 2011.

d) This schedule may be changed if Mother and Father agree to the change in writing or by e-mail in advance.

(4) The Father’s parenting time with the Child shall be reviewed by the Mother and Father in May 2013.

(5) Subject to the above orders, the Separation Agreement dated November 9, 2011 remains in effect.

(6) The Mother will pay the Father an amount that reflects the child support she received from him while the Child has been living primarily with the Father.

[ 108 ] If costs are being requested, then the parties will agree on a schedule for the exchange of written submissions and file them with the court by September 28, 2012.

___________________________ C. Horkins J.

Released: August 3, 2012

COURT FILE NO.: FS-12-17989
DATE: 20120803

ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN:

Anton Kim Applicant – and – Tara Kim Respondent

REASONS FOR JUDGMENT

Horkins J.

Released: August 3, 2012