COURT FILE NO.: 05-FL-2263-4

DATE: 2012/08/21

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

JAMES KUMAR HALL

Applicant

– and –

XIANG HE

Respondent

Michael Murray, for the Applicant

Wade L. Smith, for the Respondent

HEARD: July 31, 2012

REASONS FOR DECISION ON MOTION TO CHANGE

M. Linhares de Sousa J.

INTRODUCTION AND POSITION OF THE PARTIES

[1] The Applicant, James Kumar Hall, brings this motion to change the order of McMunagle J., dated May 18, 2011, in three aspects of that order, namely, the residency schedule of the child, Jade Kumar Hall, born October 9, 2003, the choice of her school and the payment of child related expenses.

[2] Specifically, Mr. Hall requests that the court order his daughter, Jade, to be in his care during the school year in Halifax, Nova Scotia, to where he has recently moved from Ottawa, and to be in the care of her mother, in Ottawa, during the major school breaks, such as Christmas, Easter, the March break, Thanksgiving weekend and the summer holidays. He also requests a court order that Jade attends the French Immersion program at LeMarchant St. Thomas Public School in Halifax, Nova Scotia. Mr. Hall further requests that the costs associated with travel between Halifax and Ottawa be shared by the Respondent, Xiang He, contributing $150 to each flight between Halifax and Ottawa.

[3] Mr. Hall is currently solely paying for his daughter’s after school daycare fees at the Argyle YMCA-YWCA in the amount of $386 per month. He also requests that his obligation to make these payments be terminated, and that each party share any section 7 expenses in proportion to their respective incomes. He asks for no other child support.

[4] The Respondent, Xiang He, contests this motion to change and requests that the court order that her daughter, Jade, remain living in Ottawa in her primary care as is provided for in the existing order. Ms. He agrees that, given the fact that Mr. Hall has elected to move to Halifax where he currently resides, a change to the existing parenting regime needs to take place. She is agreeable to granting Mr. Hall generous school holiday parenting time. Ms. He also seeks to change her daughter’s current school enrolment from Elgin Street Public School to the Barrhaven Elementary School which is in the area of her residence that she shares with her current partner, Mr. Xue feng Liu. Ms. He would continue Jade’s enrolment in a French Immersion education program in the new school. Ms. He seeks only child support table amount but requests that Mr. Hall be solely financially responsible for any travel costs associated with his access to Jade. She does not seek any contributions for Jade’s section 7 expenses, such as daycare and other child related activities.

FACTUAL BACKGROUND AND EXISTING PARENTING ARRANGEMENT

[5] This litigation is the third round of legal proceedings that these parents have engaged in since the birth of their daughter. The couple met through the internet. At the time, Mr. Hall lived in Halifax, Nova Scotia where he was born and raised and Ms. He lived in China. The parties were married in September of 1999 in China and Ms. He emigrated to Canada from China in August of 2000.

[6] Mr. Hall and Ms. He lived together in Halifax after her emigration to Canada. According to Ms. He her marriage to and cohabitation with Mr. Hall was kept from Mr. Hall’s parents. The parties moved to Ottawa in the early part of 2001 in order that Mr. Hall could take up employment, as a computer programmer/analyst, with Statistics Canada. The parties have both continued to live in Ottawa until Mr. Hall’s recent move to Halifax. According to Ms. He she finally met Mr. Hall’s parents at Christmas of 2002 at which time Mr. Hall informed his parents that he had met Ms. He at the University of Ottawa. The couple went through a Canadian marriage in May of 2003.

[7] Since emigrating to Canada, Ms. He has improved her English language skills. While cohabiting with Mr. Hall, Ms. He obtained a Bachelor of Science degree from the University of Ottawa and maintained part-time employment.

[8] Jade was born to the couple on October 9, 2003. When Jade was born Mr. Hall took a paternity leave from his employment from October, 2003 until June of 2004. At about this time the couple began to discuss living and working in China or Taiwan. Job applications were sent and the couple sold their family home in anticipation of this move. Ms. He then travelled to China with Jade to spend some time with her family expecting Mr. Hall to follow to pursue their plans to move and work abroad. She and Jade spent over four months with her family in China. While Ms. He was in China with her family, Mr. Hall commenced his divorce application in August of 2005.

[9] On August 13, 2005, Ms. He returned to Ottawa with Jade where she was met at the Ottawa airport by Mr. Hall and his parents who according to Ms. He, attempted to take Jade from her. After some police involvement, Jade remained in her care. After Ms. He’s return from China, nearly two years of litigation between the parties followed dealing with the custody of and access to Jade, corollary financial issues and property issues. Ms. He sought sole custody of Jade. The Office of the Children’s Lawyer was appointed and the investigator, Ms. Janet Claridge issued her first report, dated December, 2005. The parties entered into mediation and finally arrived at a final agreement in May of 2007.

[10] The final agreement was ultimately incorporated into the consent divorce order of McWilliam J., dated May 9, 2007. As can be seen from that divorce order, the parties were granted a divorce and a system of co-parenting was put in place. In summary, it was recognized by the parties that Jade had two homes and that neither parent had “primary residence” of Jade. Joint decisions were to be made concerning Jade with the assistance of a “parenting coordinator”, if necessary.

[11] Jade was to reside with her father on a three-week cycle as follows:

Week One – Friday 5:00 p.m. to Monday 5:00 p.m.

Week Two – Friday 5:00 p.m. to Tuesday 5:00 p.m.

Week Three – Thursday 5:00 p.m. to Saturday 5:00 p.m. The rest of the time Jade would reside with her mother. There was also a paragraph dividing all available holidays and special days in the child’s life and the parents’ lives between the parents equally.

[12] The order fixed the child’s daycare, as selected by the mother, and it fixed the child’s school, effective September, 2007, as the Elgin Street Public School.

[13] In that same order both parents agreed to maintain their residence in Ottawa and not move without the “consent of the other parent or approval of the Court.” Any removal of the child out of Canada would be only with the “written consent and approval of the other parent.”

[14] Since her return from China in August of 2005, Ms. He sought and found full-time employment. For the last six years she has been employed as a bank officer with the Bank of Nova Scotia at a branch in downtown Ottawa.

[15] In January of 2008, Ms. He met her current common-law partner, Mr. Liu and by December of 2008 they were cohabiting. Ms. He and Mr. Liu decided to purchase a home and move to Barrhaven, a residential area west of downtown Ottawa. Mr. Liu has a son, Daniel, now 16 years old, from a previous marriage who resides with his former wife. Mr. Liu sees his son on a regular basis. The move to Barrhaven, brought Mr. Liu closer to his son’s residence and the movement of Daniel between the residences of his two parents easier.

[16] When Ms. He made the decision to move to Barrhaven, Ms. He asked Mr. Hall for his consent to make a school change for Jade in the area of her Barrhaven residence. The parties could not agree and Mr. Hall commenced legal proceedings to prevent such a move and to counter Ms. He’s request for sole custody so that she could make the school change for Jade. Thus began the second round of litigation, which was also a result of numerous minor conflicts that persisted between the parties since the divorce order of 2007. On a motion dealing with Jade’s schooling, Kershman J., on September 10, 2009, ordered that Jade continue to attend Elgin Street Public School. Mr. Hall was also ordered to pay for the full costs of Jade’s daycare costs at the Argyle YMCA-YWCA. The existing parenting regime was not changed.

[17] The Office of the Children’s Lawyer again became involved in this second round of litigation between the parties. The same clinical investigator, Ms. Janet Claridge, was again assigned to the case. She produced her second report and recommendations dated April 27, 2010. In that report both parties expressed very differing views about the viability and success of their joint parenting regime. With respect to the question of what school Jade should attend, Ms. He expressed her disagreement with the current school because of the travelling time and early hours she and Jade had to meet because of the child’s current enrolment at the Elgin Street School. Ms. He opined, concurred in by Mr. Liu, that her daughter was tired as a result of the current situation.

[18] Mr. Hall stated that his daughter was sensitive to moves and ought to remain in the same school. Mr. Hall believed that his daughter was tired for other reasons.

[19] Ms. Claridge recommended in her report, among other things, that Jade’s school and daycare be at the mother’s Barrhaven neighbourhood and school district. Furthermore, it was the opinion of Ms. Claridge that Jade was struggling in the French Immersion program and that the parents evaluate changing her to an English program at her new school.

[20] Ms. Claridge’s report did not appear to bring the parties any closer to resolving the 2009 litigation. Mr. Hall took issue with Ms. Claridge’s report and set out in detail in his affidavit of May 26, 2012, his criticisms of the report and its alleged inaccuracies. As the matter wound its way to adjudication before the court, the parties did finally reach an agreement to the 2009 litigation. This agreement was incorporated into the existing consent order of McMunagle J., dated May 18, 2011, the order that Mr. Hall now seeks to change by way of his motion.

[21] The order of McMunagle J. is part of the record but in brief, it recognized that the parties are to have joint custody of Jade. The parents are to “share major decision making for the child, including where the child attends school, daycare or any major health care decisions.” In the event of a disagreement they were to seek the assistance of a mediator. The order indicates that the parties are to ensure that each parent will continue to share in the care and upbringing of the child. The order recognizes that the child is to live “equally with both of her parents” with the same schedule as that provided for in the parties’ divorce order of 2007, namely, that Jade would live with her father in,

Week 1 – Friday at 5 p.m. to Monday at 5 p.m.

Week 2 – Friday at 5 p.m. to Tuesday at 5 p.m.

Week 3 – Thursday at 5 p.m. to Saturday at 5 p.m.

[22] The order also provided that the parties share more or less equally the child’s holiday time and special days.

[23] There are provisions in the existing consent order that the parties share dental and medical information relating to the child and to obtain each other’s written consent for the child to receive dental, medical and psychological treatment.

[24] With respect to the child’s school, the consent order provided that Jade would continue to attend the Elgin Street Public School and the after-school program at the Argyle YMCA-YWCA. The order further indicates that the parties were to make every effort to select Jade’s future schools jointly using the assistance of mediation or arbitration, if necessary.

[25] With respect to child support, no child support was ordered in the existing order in recognition of the parties’ respective incomes (Mr. Hall at $53,199 per annum and Ms. He at $42,971 per annum) and the fact that Mr. Hall would continue to pay $378 per month for Jade’s after-school program. Each party is to pay for the child’s extracurricular activities in which they may enrol the child while they have care of the child.

[26] The above is the joint parenting regime in place for Jade under the existing order, but as described in the history of this case, it is a joint parenting regime which has been in place since 2007. It was not disputed that this parenting arrangement effectively has Jade in the care of her mother for the majority of Jade’s weekdays and in her father’s care for the majority of her weekend time with a few weekdays’ overnight. In mathematical terms, since 2007, Jade has been in the care of her mother for roughly 57% of her time and in the care of her father for roughly 43% of her time. It is recognized that if Mr. Hall succeeds on his motion to move Jade’s residence to Halifax, then with the generous holiday access he is offering to the mother this proportional sharing of Jade’s care would be almost reversed with Jade being in his care for roughly 60% of her time and in her mother’s care for roughly 40% of her time.

THE CIRCUMSTANCES OF MR. HALL’S MOVE TO HALIFAX FROM OTTAWA

[27] It was Mr. Hall’s evidence that his move to Halifax was necessitated by circumstances outside his control. During his working life Mr. Hall has suffered from various ailments. Most recently in November of 2010 he had to take an unpaid medical leave from his employment with Statistics Canada. He has provided medical reports from doctors in Ottawa indicating that he was suffering from chronic musculoskeletal pain. It made sitting for long periods of time, which is required by his work, difficult and painful. At the same time, according to Mr. Hall he has also suffered from environmental conditions related to his place of work at the Tunney’s Pasture building where he has been working for the last ten years.

[28] Because he was not able to successfully treat his conditions in Ottawa, Mr. Hall attended at the NS Environmental Health Centre in Halifax which had assisted Mr. Hall with similar ailments in his youth. According to Mr. Hall he was advised by Dr. Fox of that clinic to not return to a work environment with a history of flooding and mold as was found to be the case with the Tunney’s Pasture building.

[29] While on his medical leave Mr. Hall began to look for other employment. He indicated that he did look in the Ottawa area for a job in his area of expertise but with the downsizing of the civil service could not find anything nor was he hopeful of finding another position in the area. Mr. Hall then began to focus his job search in the Halifax area which, he had concluded, provided the best opportunities for finding employment in his area of expertise. On his Questioning which took place on June 15, 2012, Mr. Hall indicated that he did not look for work in areas closer to Ottawa such as Toronto, Kingston, Brockville or Cornwall. It was his evidence that he was not aware of any job opportunities in those areas.

[30] In December of 2011, Mr. Hall was offered a job by BF&M Canada Ltd. in Nova Scotia as a business data analyst with benefits and salary closest to what he had received in the civil service. He was asked to commence his employment with that company in January, 2012, with a probationary period until April, 2012.

[31] In December of 2011, Mr. Hall communicated with Ms. He about his potential move to Nova Scotia and asked her if she would consent to alternate care arrangement for Jade which would permit him to care for Jade in Halifax during her school year. Clearly, the parties did not agree which resulted in these proceedings.

[32] Mr. Hall resigned from his position with Statistics Canada on January 6, 2012. At that time he was earning approximately $70,000 per annum. In that same month he commenced employment with BF&M Canada Ltd. He remained with that company until the end of May of 2012. His earning with that company would have been, on a yearly basis, approximately $65,000.

[33] At the motion, for the first time, Mr. Hall disclosed that in June of 2012 he had commenced employment with a new company, Medavie Inc., located in Dartmouth, as an analyst. It is evident that although Mr. Hall disclosed his current employment address during his Questioning on June 15, 2012, he appears to have intentionally omitted to disclose his change of employment since his move to Halifax (see page 40 of the transcript of the Questioning of James Kumar Hall on June 15, 2012). It is not clear why he did this. His revenue from his current employment is approximately $53,000 per annum. It was Mr. Hall’s explanation that his employment with BF&M Canada Ltd. would have required him to do some travelling with his work which he did not want to do.

[34] Ms. He takes the position that Mr. Hall has made no genuine effort to find employment in the Ottawa area or in a location closer to the Ottawa area. It was her evidence that it had always been his intention to return to live in Halifax where his parents continue to live so that he could be closer to them and take care of them in their old age.

MR. HALL’S PLAN OF CARE FOR JADE

[35] Mr. Hall is currently living in his parents’ home in Halifax. He has maintained his Ottawa apartment and returns to Ottawa on the weekends when he is able, in order to maintain, as much as possible, the current parenting arrangement until the Court rules on his motion to move Jade’s residence to Halifax during the school year. Mr. Hall’s plan of care for Jade is that he and his daughter continue to live in his parents’ home with his parents in Halifax. He proposes to enrol her in a French Immersion program at LeMarchant St. Thomas Public School in Halifax, located in the neighbourhood of his parents’ home. Mr. Hall has spoken to the Principal of that school and Jade may enrol in the French Immersion program in that school at any time.

[36] Mr. Hall takes the position that this change would be in the best interests of his daughter for the following reasons identified by him. Firstly, it would allow him to continue to be involved in Jade’s care in a substantial way, a situation which has existed since her birth and commencing with his taking his paternity leave to be home with his newborn. Since the parties’ separation he has co-parented Jade with Ms. He. The move would permit that continuity of paternal care for Jade.

[37] Jade’s current school routine and her mother’s work schedule, it is recognized, are tiring for a child of Jade’s age. Mr. Hall takes the position that this fact may be reflected in her current academic performance. Jade’s performance reports from the Elgin Street Public School indicate that she is struggling academically in three principal subjects, French, English and mathematics. According to Mr. Hall the move to Halifax will mean that Jade will be travelling less time to attend school and return home than she is doing now. Her new school is very close to his parents’ residence in Halifax. She will be less physically tired and she will have more time to do homework and play. Mr. Hall’s work schedule, from 9:00 a.m. to 5:15 p.m. permits him to be home with Jade at a reasonably early hour to care for Jade and to help her with her school work.

[38] According to the evidence of Mr. Hall his parents are retired, they are willing to take Jade to school and pick her up from school, if necessary, and to care for her after school until Mr. Hall returns from work. No after-school program or care will be required nor its accompanying expense.

[39] Mr. Hall’s evidence was that his father and mother are both university educated and have worked in the education field. They are both very capable and willing to assist Jade with her homework after school so that she can improve her scholastic performance.

[40] It is Mr. Hall’s position that he is much better placed than Ms. He to assist Jade with her homework, particularly her work in French, which includes mathematics, while she is in the French Immersion program. Ms. He does not know French, which Mr. Hall opines, is reflected in Jade’s unsatisfactory performance in French, mathematics and English in her current school. His parents, being former teachers, are also better positioned to assist Jade with her school work.

[41] Mr. Hall’s father, James Martin Hall, provided affidavit evidence that he and his wife, Swaran Lata Hall normally reside in Halifax, Nova Scotia and that Mr. Hall is now living in their Halifax home. According to the affidavit of Mr. James Martin Hall, dated January 6, 2012, he and his wife have spent a substantial amount of time in Ottawa since the couple’s separation in order to support their son in his parenting responsibilities. At the time of this hearing they were residing in their son’s Ottawa apartment so that Mr. Hall could continue to spend time with Jade during his weekend access to his daughter when he is able to visit Ottawa from Halifax since his move to Halifax. Mr. James Martin Hall states in his affidavit that his and his wife’s stay in Ottawa is becoming increasingly difficult. He confirmed his and that of his wife’s willingness to have their son and granddaughter live with them in their residence in Halifax. They are willing and able to provide Jade with after school childcare and to assist her with her school work.

[42] Mr. Hall also has a family doctor and dentist available to provide medical and dental care to Jade when required upon her move to Halifax.

[43] Mr. Hall provided evidence that since May of 2007, Jade has spent some holiday time and long weekends in Halifax in his parents’ home so that the move would not be completely new to her. In 2011, as an example, she spent two periods of 12 to 13 days in the summer. She also went for a weekend to celebrate her grandmother’s birthday and she spent the Easter weekend in Halifax. She has played with children in the neighbourhood and Mr. Hall would encourage her to create friendships among her new school mates and neighbours which come from different cultural backgrounds.

[44] Mr. Hall will also maintain Jade’s participation in her current extracurricular activities, if she so wishes, such as dance, piano lessons and swimming, all of which she can continue in her new neighbourhood in Halifax. He will also continue to take her to the United Church which he began doing after the separation. According to Mr. Hall, Halifax has a growing Chinese population and his parents’ residence is also well-placed to allow Jade to continue with the study of the Mandarin language, an activity which her mother has begun to do with Jade.

[45] With respect to the question of contact with her mother, Mr. Hall proposes that Ms. He be given the substantial part of all of Jade’s school holiday time and major long weekends. He does ask for some time of the Christmas holidays and a short holiday time in the summer with Jade. It is Mr. Hall’s position that his proposal will not only maximize the time Jade spends with her two parents so as to maintain the joint custody regime but it will also be a vast improvement in the quality of time Ms. He spends with her daughter because it will be holiday time and it would be regular and frequent. Mr. Hall submitted that Ms. He’s time with her daughter can also be increased if they agree to weekend visits during Jade’s school year every five to six weeks, which he is willing to consider and which he considers to be quite viable and realistically possible.

[46] Mr. Hall on cross-examination acknowledged that his daughter is now a happy, active and a healthy child.

MS. HE’S PLAN OF CARE FOR JADE

[47] Ms. He’s position is that it is in Jade’s best interests that she continue to have her primary residence with her and Mr. Liu. Ms. He also acknowledges that Jade is now a happy, active and healthy child. According to Ms. He the bond between her and her daughter is very strong. Jade has been in her care since birth and has not been away from her care for longer than two weeks. She cared for her exclusively for four months while she was in China awaiting Mr. Hall to join her. Even when Jade is in the care of Mr. Hall, Jade calls her mother every night.

[48] The home that she and Mr. Liu have been able to offer her for the last three years is spacious, nice and in a good and safe neighbourhood. Ms. He has stable employment as does Mr. Liu who is a professional engineer. According to Ms. He, Jade has developed a close relationship with her step-father, Mr. Liu, whom Jade calls “Ba Ba” which means dad in Chinese. From the home routine described by Ms. He and Mr. Liu, Mr. Liu is very much a part of Jade’s life. He jokes with her and also works with her on her mathematics school work. Mr. Liu recognized that while he is very much a part of Jade’s life he is not her father and would not try to interfere with Jade’s relationship with her father. According to Mr. Liu, Jade knows who her real father is.

[49] According to Ms. He, Mr. Liu’s son, Daniel, and Jade have also developed a close sibling bond despite the difference in their ages. Jade calls him “Ge Ge” which means older brother in Chinese. When Daniel visits on the weekend when Jade is with them or at other times Jade is always happy to see him, to play and interact together. According to both Ms. He and Mr. Liu, Daniel is an excellent student and when asked, readily helps Jade with her French and mathematics homework. Ms. He takes the position that Jade’s primary residence should be maintained in Ottawa so as to provide her with consistency in her maternal care and consistency in her home life and the relationship with her extended step-family which are important to her.

[50] While Ms. He does not minimize their importance in Jade’s life, the only other extended family Jade would have in Halifax is her grandparents. They are elderly, 76 and 71 years of age respectively. She questions their ability to be able to care for a young child like Jade and to replace the vibrant home life that Jade now has in her home. According to Ms. He, the paternal grandparents were, for the most part, uninvolved with Jade until May of 2007. She believes that while grandparents are important, a mother and father are more important to a child. Jade being primarily with her is more important to Jade.

[51] Ms. He submits that because of their Chinese origins, both she and Mr. Liu are able to provide Jade with exposure to that part of her cultural background and to teach her about it. Ms. He has begun to teach Jade the Mandarin language and would like to follow up on that and enrol Jade in Chinese school on the weekends if that is possible.

[52] In addition, by Jade continuing to live in her current neighbourhood, Jade would be able to continue to see and interact with the various friends she has in the area and with whom she plays on a regular basis. According to Ms. He, Jade’s friendships are important to her. Her best friends are in the area where they live.

[53] According to Ms. He by keeping Jade in her primary care, Jade would be able to continue with all of the same professionals who care for her and with whom she is familiar. All of her doctors and her dentist are in the Ottawa area.

[54] According to Ms. He by staying in Ottawa there will also be continuity and consistency in Jade’s participation in her extracurricular activities. She will continue to enrol Jade in these activities. Ms. He acknowledges that she and Jade have decided to take a break from piano lessons but that she intends to have her take up those lessons again in the fall. According to Ms. He, Jade has a good relationship with her piano teacher and works well with her.

[55] Ms. He and Mr. Liu have also started taking Jade to a Buddhist temple for activities in order to expose her to that tradition and something new. She was aware of Mr. Hall taking Jade to the United Church which she has never discussed with Jade nor with Mr. Hall.

[56] According to Ms. He she and Mr. Liu have provided Jade with a regular home and school schedule. They have tried to maintain, and will continue to do so, a balance for Jade in her sleep time, studies, exercise and play time. Ms. He recognizes that Jade’s enrolment at a school so far away from her home, something which Mr. Hall insisted on in the 2009 litigation, imposes on Jade and herself a tiring weekday travel routine. Mr. Hall also appears to agree at this time that commuting to a downtown school from her Barrhaven home is not in the best interests of Jade. Ms. He’s proposal, if the court permits, would be to change that routine in two ways in the future. Firstly, she is on a waiting list to commence her work one hour earlier which would mean she would terminate her work one hour earlier so she would be able to return home and be with Jade at an earlier time. Ms. He expects that to happen within a year. Secondly, she would like to enrol Jade in a school in her neighbourhood, Farley Mowat Public School which has a French Immersion program and would therefore provide consistency in her school program. If Jade goes to a school in her home neighbourhood it would mean that Ms. He can take Jade to school and have less travel. Mr. Liu would then be able to pick Jade up from school because he has flexible hours and Jade would be home that much earlier.

[57] Ms. He acknowledges that Jade is having difficulty in her French, English and mathematics subjects and that Jade’s progress reports could be better. It is Ms. He’s view that part of this is due to the tiring weekday routine that Jade now has. Ms. He also acknowledges that neither she nor Mr. Liu have knowledge of French. Nonetheless, she tries to help Jade with her homework as much as she can, using such tools as the internet. Daniel is able to help Jade with her French school work. Ms. He also intends to provide Jade with a French tutor to assist her with her school work and to address the question of her school grades.

[58] Ms. He candidly indicated that she feels Jade learning Mandarin to be more important than learning French. Nonetheless, she opined that a young child can learn many languages and she would keep Jade in the French Immersion program for the time being.

[59] According to Ms. He she acknowledges that doing well in her studies is important for Jade, but that it is only one part of her life which cannot dominate all other aspects of her life. She wants Jade to be a happy, sociable and a nice person, which according to Ms. He means keeping her in her care in Ottawa.

[60] Ms. He submits that she is able to communicate and cooperate with Mr. Hall on simple matters such as arranging or changing doctors’ appointments or administering medication to Jade. However, if Jade were to remain in Ottawa, Ms. He would like to have sole custody so as to avoid the conflict and impasses on major decisions which the parties have experienced in the past. If Mr. Hall were to disagree on a decision that had to be made for Jade in Ottawa it would be impossible to make decisions which had to be made in Jade’s best interests.

[61] Ms. He recognizes the importance of Jade’s contact with her father. She is however concerned about how travelling too frequently between Halifax and Ottawa could be difficult and tiring for Jade. Ms. He considers unrealistic Mr. Hall’s suggestion of travelling every five to six weeks during the school year. She proposes that Mr. Hall have care of Jade during the majority of the summer holidays and the other major school breaks, such as Christmas, Easter and the March break. Like Mr. Hall, Ms. He would like some limited holiday time with Jade during the summer and at Christmas.

THE JURISPRUDENCE

[62] Counsel agreed that the applicable law to a case of this kind is the Supreme Court of Canada decision of Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27 (S.C.C.). Both parties rely on this case and submit that the legal test established in that case and as applied to the facts of this case support their respective claims for relief.

[63] As a preliminary matter, there is no question that this Court has the authority to change the existing order pursuant to section 17(1) of the Divorce Act, R.S.C. 1985, c. 3 (as amended).

[64] Furthermore, the parties, for the purpose of this motion, agree that Mr. Hall’s mobility, his move to Halifax, constitutes a material change of circumstances justifying a change to the existing order. With Mr. Hall now living in Halifax the existing order is realistically untenable.

[65] In the case of Gordon v. Goertz, supra, the couple in question separated and divorced in Saskatoon in 1990. At the trial the mother was given custody of a young child while the father received generous access. The mother then determined to move to Australia to pursue her study in orthodontics and the father of the child objected. At trial the judge determined that the mother was the proper parent to have custody of the child. The trial judge determined that the mother could move to Australia and modified the father’s access to include liberal and generous access on one month’s notice to be exercised in Australia only. The Court of Appeal upheld the trial decision.

[66] When the matter came before the Supreme Court of Canada, the Court, finding that this was the first time the Supreme Court had the opportunity to consider the effect of a custodial parent’s move on custody and access, examined the test to be applied in detail. Firstly, the Court ruled that the parent applying for the change in the custody or access order because of a proposed move must meet the threshold test requirement which is to convince the court that a material change in circumstances affecting the child has taken place. This effectively means 1) a change in the condition, means, needs or circumstances of the child or in the ability of the parents to meet the needs of the child; 2) the change materially affects the child; and 3) which change was either not foreseen or could not have been reasonably contemplated by the judge who made the initial order.

[67] The initial order that Mr. Hall is asking be changed is dated May 18, 2011. The evidence in this case indicates that he commenced his sick leave in November of 2010. During his sick leave he began to understand the nature of his illness and the need to change jobs. He also became aware, during that period, according to his affidavit material that it would be very difficult to find alternate employment in the federal civil service and he began to seek employment outside of the Ottawa area. On these facts, one can logically ask Mr. Hall the question of whether he did not already reasonably contemplate and accept as a real possibility, when he agreed to the consent order of McMunagle J. in May, 2011, that he might have to seek work outside of the Ottawa area. Should that have been disclosed at the time?

[68] In any event, as mentioned earlier, the parties agree that Mr. Hall’s move to Halifax can constitute a material change of circumstances for the purposes of this motion. There is no question that the event of Mr. Hall’s move to Halifax in the long run will materially affect Jade and prevent Mr. Hall from carrying out his parenting responsibilities under the existing joint custody order.

[69] Secondly, the Supreme Court confirmed that once the threshold material change of circumstances test has been met then the Court must examine the situation, that is both the existing order and the new circumstances prompted by the mobility issue, anew taking into consideration, as is stated in section 17(5) of the Divorce Act, “only the best interests of the child as determined by reference to the change.” In this examination the paramount consideration is the “best interests of the child.”

[70] The Supreme Court also made it clear that in this fresh examination of what custody and access arrangement is in the best interests of the child, there is no legal presumption in favour of the custodial parent which would unduly hamper the full and fresh examination of what is in the “best interests” of the child.

[71] The Supreme Court also indicated that a parent’s reason or motive for moving is not relevant except to the extent that the move may be relevant to his or her ability to act as a parent to the child, which might include a planned move with the specific intention to deprive the other parent of contact to the child. This kind of inquiry, according to the Supreme Court tends to focus the examination from the best interests of the child to the conduct of the custodial parent.

[72] I will deal with these preliminary issues as they relate to the facts of this case. In the presentation of her reply to Mr. Hall’s motion some time was spent on the part of the Respondent on whether Mr. Hall demonstrated good faith in this search for alternate employment. He was questioned about job searches in areas closer to Ottawa. Ms. He also expressed her belief that Mr. Hall’s move to Halifax was with the motivation to be closer to his parents so as to be able to take care of them in their old age.

[73] There may indeed be a foundation on the evidence for these suspicions. Nonetheless, I accept Mr. Hall’s reasons for his move to Halifax. It appears to be an area where he was able to find a relatively quick re-entry into the job market after being out of it for some time on a sick leave. It is certainly in Jade’s best interests that both her parents be able to financially provide for her. It is also logical and possibly in Jade’s interests that Mr. Hall choose Halifax, as opposed, for example, to a place like Toronto which would be completely new and where there was no extended family for Jade. In the event that the Court would permit Mr. Hall to move Jade’s residence to Halifax, it is at least a place that she knows somewhat because she has visited there and where there is some extended family, her paternal grandparents, to provide support to Jade and Mr. Hall.

[74] Most importantly, there is no evidence that would permit me to conclude that Mr. Hall has made this move to Halifax and brought this motion in order to either deprive Jade of contact with her mother or to reduce that contact. Finally, Mr. Hall’s move to Halifax and the employment he has taken on in that location does not negatively impact on Mr. Hall’s ability to act as a parent to Jade.

[75] At paras. 49 and 50 of her majority decision, Madam Justice McLachlin, summarizes the test and law to be applied to mobility cases as follows:

C) Summary

49 The law can be summarized as follows:

1. The parent applying for a change in the custody or access order must meet the threshold requirement of demonstrating a material change in the circumstances affecting the child.

2. If the threshold is met, the judge on the application must embark on a fresh inquiry into what is in the best interests of the child, having regard to all the relevant circumstances relating to the child's needs and the ability of the respective parents to satisfy them.

3. This inquiry is based on the findings of the judge who made the previous order and evidence of the new circumstances.

4. The inquiry does not begin with a legal presumption in favour of the custodial parent, although the custodial parent's views are entitled to great respect.

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

6. The focus is on the best interests of the child, not the interests and rights of the parents.

7. More particularly the judge should consider, inter alia:

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

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

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

(d) the views of the child;

(e) the custodial 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;

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

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

50 In the end, the importance of the child remaining with the parent to whose custody it has become accustomed in the new location must be weighed against the continuance of full contact with the child's access parent, its extended family and its community. The ultimate question in every case is this: what is in the best interests of the child in all the circumstances, old as well as new?

APPLICATION OF THE TEST TO THIS CASE

[76] With respect to considerations of 7. (a) and (b), it is appropriate to consider these two factors together, in view of the joint custodial arrangement which the parties to this matter share. Throughout all of her life Jade has had the active participation of both her parents in her care, except for the four months she resided in China with her mother. The existing joint custody order reflects that fact. As a result, Jade has a close bond with both her parents. To the observation of Ms. Claridge, who observed Jade interact with both parents in their respective homes, in preparation for her report dated April 27, 2010, Jade is perfectly comfortable, natural and happy with both parents. In her mother’s home that comfortableness, naturalness and happiness extended to her interactions with her step-father, Mr. Liu and with her step-brother, Daniel. To Ms. Claridge’s observations Jade is extremely fond of Daniel despite the difference in their ages. Ms. Claridge concludes her observations of Jade in her mother’s home with the following words at page 11 of her report:

Overall the family members were comfortable with each other and held good eye contact. It was obvious that Jade enjoyed interacting with Daniel but she was at ease with her mother when she required assistance and she joked around with Mr. Liu.

[77] In her father’s home Jade’s comfortableness, naturalness and happiness extends to her paternal grandparents with whom she was affectionate when they left Mr. Hall’s home. Ms. Claridge concludes her observations of Jade in her father’s home with the following words at page 12 of her report:

Jade was comfortable in her father’s home and able to express what she did and did not want to do. Mr. Hall has made his home comfortable and child focused. He was determined to get Jade to do homework in French but Jade clearly resisted.

[78] The existing joint custody arrangement has Jade in the care of her mother for a majority of the weekdays while Mr. Hall has the majority of the weekend days with a few weekdays overnight. Under the current parenting arrangement which has been in place for the last five years, Ms. He has Jade in her care for more time of Jade’s daily routines particularly during the school year. It has involved participation in school work, school events, the routine of travelling to and from school and after-school programs, doctors’ and extracurricular activities. Jade has not been out of her mother’s care for any extended time beyond 12 or 13 days at a time. Her faithful telephone calls to her mother, even when she is in the care of her father, reflects the closeness between Ms. He and Jade and Jade’s need to have that daily contact with her mother. Both parents agreed that under the current parenting arrangement and its current timesharing, Jade has come to be a happy, active and healthy child.

[79] With respect to factor 7.(c), the Supreme Court held that the desirability of maximizing contact between the child and both parents is just one factor, while mandatory to consider but not absolute in the final determination. This was the Court’s conclusion, even noting that both sections 16(10) and 17(9) of the Divorce Act requires that “the court shall give effect to the principle that a child of the marriage should have as much contact with each former spouse as is consistent with the best interests of the child.”

[80] There is no question that Mr. Hall’s proposal will diminish the contact Jade now has with her mother which is the majority of Jade’s time. It will increase his contact with Jade. In fact, it is evident that his plan of care will completely reverse the contact that Jade currently enjoys with both of her parents and has had over the last five years.

[81] Mr. Hall argues that the quality of the time Ms. He would spend with her daughter will be greater because she will get all of the holiday and fun times. Quality parenting is not just holiday and fun times. And even under the current parenting regime whereby Mr. Hall has the majority of Jade’s weekend time, he still has some weekday time whereby he too participates in his daughter’s daily and regular routines, her homework, her school and extracurricular activities and her dentist’s appointments. His proposal will not give Ms. He any of this time nor a participation in these activities in which she has been actively involved.

[82] Mr. Hall proposes that Ms. He’s time with their daughter can be increased if the access proposal that Jade travel to see her mother for a weekend every five to six weeks during her school year is accepted and ordered. I find that proposal unrealistic, given Jade’s age and the financial resources of the parties. That kind of travel routine would not only exhaust Jade but also prevent her from having a sense of home in either place. I am not persuaded that it would be in Jade’s best interests and would not order such frequent travel on the child’s part on the facts of this case. It is more realistic to accept that, whether Jade has her primary residence in Ottawa or in Halifax, she will have physical contact with the other parent three or four times a year (summer holidays, Christmas and March break and Easter weekend) unless the parents themselves are making the trip to visit with Jade at her primary residence in order to increase their time with their daughter.

[83] Both parents have expressed their willingness to facilitate frequent and regular contact between Jade and the other parent via technological means such as the e-mail and Skype and even the telephone. This will, of course, ensure that Jade will have some contact with the absent parent and can take place whether she is in Ottawa or in Halifax.

[84] With respect to factor 7.(d) I have no evidence as to what are Jade’s views on a potential move to Halifax away from her mother’s care and the regular contact she has with her step-father and her step-brother. I have no evidence as to what are Jade’s views about not seeing her father on a weekly basis as she now does. The parties could not agree on the appointment of the Children’s Lawyer to seek out Jade’s views for the purposes of this motion.

[85] I have already dealt with factor 7.(e).

[86] With respect to factor 7.(f) there is no question that Mr. Hall’s proposal of changing Jade’s primary residence to Halifax during the school year will be a profound change in the life of Jade and without a doubt will introduce a substantial disruption to her life as she now knows it. For the majority of her time and for the challenges of her regular school routines she will not have the care nor the close presence of her mother which she has enjoyed all of her life. In addition, her home life will become completely different. Jade will also lose the enjoyable and happy regular interactions she has with the other members of her mother’s household and with whom she is also close namely her step-father and her step-brother. Jade is happy, active and healthy in her current situation.

[87] It is acknowledged that Mr. Hall will replace the care of Ms. He for the majority of Jade’s time and regular school year routines and his parents will be there to support him in that care.

[88] With respect to factor 7(g), I have already considered the profound disruption that Jade will experience by being removed from her mother’s care and from her mother’s household during the school year.

[89] If Jade moves to Halifax to live with her father during the school year she will have a better opportunity to get to know her paternal grandparents better.

[90] It would appear that, in either case, Jade will have to change her school at which she is currently enrolled. Both parents agree that Jade continuing to attend Elgin Street School when her home is in Barrhaven is untenable and I have no doubt has contributed to Jade’s tiredness. In that regard Jade’s enrolment in the Barrhaven school will bring some improvement to her life. I have no doubt that her mother will do all that she can to minimize Jade’s travel time to school and maximize her homework and play time.

[91] So, whether Jade stays in Ottawa or whether she goes to Halifax there will be a school change for Jade, although both parents agree that she should stay in the French Immersion program which features in both parents’ proposals.

[92] I have to conclude that a move to a new school in Barrhaven will be less disruptive for Jade than a move to a new school in Halifax, because she is very familiar with the neighbourhood and will already know some of the children who attend that school.

[93] Mr. Hall argues that he and his parents are better positioned to assist Jade to improve her scholastic performance. That may indeed be the case and is clearly one factor to be considered in the weighing of all of the factors identified by Supreme Court. From the evidence, I cannot conclude that Ms. He does not give sufficient importance to Jade’s school work nor that she is not addressing the difficulties Jade may be experiencing in her school work through her own efforts and through the assistance of the extended step-family members. She will be arranging for Jade to have a tutor.

[94] In moving to Halifax, Jade would also be disrupted in her current peer friendships which both parents testified were important to their daughter.

[95] If Jade were to move to Halifax for the school year I have no doubt that Mr. Hall would attempt to provide Jade with as much stability and continuity in her school and extracurricular activities as he could. She will pursue piano, dance and swimming. This will not change the fact that Jade, in moving to Halifax, will experience a disruption from her community where she participates in these activities now and has done so for a number of years. The same can be said for the care Jade receives from her current doctors and dentists. There is no question that Mr. Hall will ensure, if Jade lives with him in Halifax during the school year, that his daughter receives all the medical and dental care that she needs.

[96] I make one final point about stability. It is clear that in her mother’s home Jade has enjoyed stability. Both Ms. He and Mr. Liu have secure employment and are committed to their current neighbourhood through the purchase of their house and because it provides easy contact to Mr. Liu’s son Daniel. Mr. Hall is newly re-entering the workforce. He has already changed his employment once since his move to Halifax. At the time of the motion he had been in his current employment for only a short time. I appreciate the explanation he gave for his change of employment. The requirement to travel with his work would have made his care of Jade difficult and put more of a burden on his parents, if Jade’s primary residence were to be changed to Halifax during the school year. Nonetheless, one can reasonably ask why Mr. Hall did not know about the travel requirements when he agreed to accept employment with BF&M Canada Ltd. And if he did, why did he accept the employment in the first place?

[97] I acknowledge that Mr. Hall is willing and would be able to assist Jade in her studies of the Chinese language and in exploring that side of her cultural heritage. But there is no doubt that Ms. He and her partner, Mr. Liu are much better placed to do that and in fact have begun to do it.

DISPOSITION

[98] I have considered and weighed all of the factors enunciated by the Supreme Court in the case of Gordon v. Goertz, supra. In doing that I have balanced the benefits that Jade would derive from having her primary residence in Ottawa and from remaining in her mother’s care during the school year against the benefits she would derive from moving to Halifax and being in her father’s care. I have also balanced the disruptions Jade would experience in her life, as she has come to know it, if she were to move to Halifax and be in her father’s care during her school year against the disruptions she would experience in her life, as she has come to know it, if she were to live in Ottawa and remain in her mother’s care and lose the frequent contact she now has with her father. My conclusion is that permitting Mr. Hall to change Jade’s primary residence to Halifax during the school year would be highly disruptive to Jade and far outweighs any benefits to Jade at this time. Mr. Hall, himself, acknowledged to Ms. Claridge that Jade “was sensitive to moves” (page 9 of her April 27, 2010 report). Jade is doing well; she is happy, healthy and active. I am not persuaded on the balance of probabilities that permitting Mr. Hall to change Jade’s primary residence to Halifax during the school year is in the best interests of Jade.

[99] It is therefore ordered that the parties shall continue to have the joint custody of Jade but that Jade shall have her primary residence with her mother in Ottawa.

[100] When Jade is in her care Ms. He shall make all day-to-day decisions relating to Jade including what extracurricular activities Jade will participate in, taking account of Jade’s wishes and the wishes of Mr. Hall. Mr. Hall shall be free to enrol Jade in any extracurricular activities at his own expense when Jade is in his care, taking account of Jade’s wishes and the wishes of Ms. He.

[101] With respect to all other major decisions which I identify as educational, medical, country of residence and religion, the parties shall attempt to reach an agreement and make these decisions jointly. Failing any agreement after a reasonable time, the parties shall attempt to mediate their difference with a mediator of their choice and with the parties sharing equally the cost of the mediation. Failing the success of mediation Ms. He shall be entitled to make the final decision. Mr. Hall will then be able to commence legal proceedings to convince a court that Ms. He’s decision is not in the best interests of Jade.

[102] It is ordered that Jade shall be allowed to travel to Halifax and be in the care of her father for the following school holidays:

(1) For Jade’s summer holidays from the commencement of the school break until the beginning of the week before the commencement of school except for a two-week period that will permit her to have a holiday with her mother. The two weeks may be consecutive or non-consecutive in accordance with the mother’s wishes. The parties shall discuss and agree from year-to-year when that two-week period is to take place. If the parties cannot agree then Ms. He shall inform Mr. Hall by April 1 of each year which two-week period during Jade’s summer vacation she wishes to take.

(2) For the March Break of every year including both weekends at both ends of this school break, but Jade shall be returned at a reasonable time on the final weekend to ensure she is ready to commence her school the following Monday.

(3) For Jade’s Christmas holidays the parties will share on an alternating yearly basis the significant days of the Christmas holidays, that is to say December 24, 25 and 26. Mr. Hall shall have those days for the year 2012 and Ms. He for the year 2013. Thereafter those days shall alternate between the parents from year-to-year. For the rest of the Christmas holidays Jade may travel to Halifax and be in the care of her father. Because the length of the Christmas holidays may vary from year-to-year and the significant days of the Christmas holidays may vary in the week from year-to-year, the parties will have to cooperate so as to not chop up this holiday for Jade and have her travelling an unreasonable amount of time.

(4) For the Easter long weekend of each year, commencing on Good Friday and ending with Easter Monday.

(5) The parents will arrange to have Jade spend the Chinese Fall Festival and Chinese New Year in the care of her mother.

(6) Mr. Hall shall also have liberal, generous but reasonable contact with Jade through telephone calls or other technological communications such as Skype, e-mail and texting etc. Ms. He shall facilitate this type of contact between Jade and her father. Ms. He shall ensure that Jade is in contact with her father for his birthday and on Father’s Day if Jade is not otherwise in her father’s care on those days. Mr. Hall shall be permitted to have contact with Jade on her birthday if she is not otherwise in her father’s care.

(7) Mr. Hall may also visit with Jade in Ottawa at any other time of her school year, if he chooses to make the trip to Ottawa to visit with his daughter and on reasonable notice to Ms. He.

(8) Ms. He shall be permitted to change Jade’s school to the Farley Mowat Public School in the Barrhaven area for September of 2012 in the French Immersion program.

(9) Mr. Hall shall have access to all information pertaining to Jade’s schooling, medical and dental needs, extracurricular activities and social environment. He shall be free to contact directly, for information, any professional who is involved in the education or medical and dental care of his daughter.

(10) Both parents are allowed to travel with Jade outside of Canada while they have care of Jade. Unless otherwise agreed, either parent, upon intending to take Jade outside of Canada, will provide to the other parent written notice of such intended trip of no less than three months in advance. The details to be provided will include the following:

(a) Dates of travel;

(b) Location of travel;

(c) Travel information including modes of transport and flight details;

(d) Emergency contact number(s);

(e) Details of who will be travelling with the child; and

(f) A summary itinerary of the trip.

(11) The parties agree and it is so ordered that Mr. Hall or his parents will accompany the child during the flights between Ottawa and Halifax until such time as the parties can agree to a suitable flight program for unaccompanied minors.

[103] With respect to the financial issues that have been raised in this motion, it is ordered that Mr. Hall pay child support for Jade in accordance with the Child Support Guidelines, for his province of residence effective September 1, 2012, based on his declared income of $53,000 per annum. I will rely on counsel to ascertain that amount. Also effective September 1, 2012, Mr. Hall is no longer obligated to pay the after-school program cost of $386 per month. Mr. Hall shall be obligated to provide to Ms. He on an annual basis and by June 1 of each year, commencing in the year 2013, disclosure of his annual income so that child support may be determined from year to year.

[104] Mr. Hall is not obligated to contribute to the cost of any of Jade’s extraordinary expenses in recognition of the fact that he will be solely responsible for the total cost of Jade’s travel between Ottawa and Halifax.

[105] The last issue is the question of costs. Mr. Hall shall have two weeks from the release date of this decision to file and serve his written submissions on costs, including any offers to settle which he may have made. Ms. He shall have two weeks from that date to file and serve her written submission on costs including any offers to settle which she may have made. Mr. Hall shall then have one week from that date to file and serve any reply which he may want to make.

M. Linhares de Sousa J.

Released: August 21, 2012

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

JAMES KUMAR HALL

Applicant

– and –

XIANG HE

Respondent

REASONS FOR DECISION ON MOTION TO CHANGE

M. Linhares de Sousa J.

Released: August 21, 2012