Court File and Parties

COURT FILE NO.: D1652/10

DATE: 2013-03-13

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Andrew Cole

Applicant

– and –

Carla Louise Maria Geurts-Cole

Respondent

COUNSEL:

Theodore M. Charuk, for the Applicant

Ann L. Stoner, for the Respondent

HEARD: July 9, 10, 11, 12, 13, September 26, October 1, 2, 11, 2012

THE HONOURABLE MR. JUSTICE R. J. MAZZA

Reasons for Judgment

Introduction

[1] The parties have two children, Madison, born January 21, 2007 and Kinley, born February 5, 2009. They separated on or about September of 2010. Currently, the children are primarily living with Ms. Geurts-Cole sharing access with Mr. Cole pursuant to the orders of Justice Pazaratz of March 8, 2011 and the partially modified temporary order of Justice Lafrenière dated April 13, 2012.

Background

[2] The parties initially met in December of 1995 when Ms. Geurts-Cole was swimming for the Netherlands and Mr. Cole was a team coach for Canadian swimmers.

[3] They reunited in the summer Olympics of 1996, Ms. Geurts-Cole swimming for the Dutch team and Mr. Cole was part of the support staff for the Canadian swimming team. The relationship developed and in October of 1999, Ms. Geurts-Cole received immigrant status. Mr. Cole, having obtained a degree in kinesiology was employed as regional centre coach in Halifax on or about December 2001 after which he was hired as the head coach of the McMaster women’s and men’s varsity swimming team. The parties married on September 9, 2003.

[4] Prior to moving to Hamilton, Ms. Geurts-Cole obtained her degree and graduated with a Ph.D. from the University of New Brunswick after which the parties moved to Hamilton.

Testimony of Andrew Cole

[5] Mr. Cole testified that in September 2010 after the parties had physically separated and were no longer able to retain the services of one Theresa Buckman, who had been hired as a caregiver of the children, they attended mediation in order to negotiate a schedule for shared access and finally came to an arrangement on a temporary basis. This arrangement included Mr. Cole picking up the children after daycare, caring for them on Tuesday and Wednesday over night and Thursday evenings until 7:15 p.m. The children remain with Ms. Geurts-Cole for the balance of the week and both parties are currently sharing access to the children on alternate weekends.

[6] In addition to his regular access, Mr. Cole has also visited the children on Mondays, Wednesdays and Fridays at the daycare centre prior to commencement of his employment. He is spending about ½ hour with each child reading to the youngest child, Kinley, and playing with both children in “various activities.” He testified that the daycare location at McMaster University is a significant advantage for him because it is close to his place of employment and also has a highly reputable medical facility on the grounds.

[7] In voicing his objection to the children moving with their mother to the Netherlands, he stated that his primary concern was a dramatic diminution of his ability to parent. In his words “it would be nullified.” As well, he testified that any move to the Netherlands would also seriously affect his communication with the children. Citing an example, he had noticed that currently, when they have returned from visits to the Netherlands with Ms. Geurts-Cole’s extended family, their disposition seems to have been affected in that he had found them to be despondent upon their return and, consequently, found communication with them to be difficult until they had readjusted to their local home environment. As well, he testified that any move to the Netherlands would limit the communication that the children would have with their paternal extended family, namely, his mother and father, who currently reside in Nova Scotia and whom he and the children have visited in the past.

[8] His current accommodation is a rented three bedroom upstairs unit of a home on Ravenscliffe for $1,000 per month. It is conveniently located near the George R. Allan School where he intends to enrol Madison and is a ten minute walk from McMaster daycare. He sees his current living arrangement as temporary and, hopefully, with a salary increase in the future, he will be able to buy a house for him and the children. He is currently earning $75,000.00 per year and is eligible for a full pension at the appropriate time of his retirement.

[9] In general terms he described the children as “wonderful”, “happy”, “caring”, “loving”, and “energetic” and, in spite of the separation between himself and Ms. Geurts-Cole, they are seemingly unaffected.

[10] In addressing employment opportunities for Ms. Geurts-Cole, he stated that it has been his experience that she has always been able to find employment while residing in Canada. As well, it is his understanding that there are opportunities for research on the McMaster campus.

[11] Although he has considered the possibility of moving to the Netherlands, he said that he would be leaving behind seven years of goodwill as a coach at McMaster University, his substantial salary and a full pension. Such amenities would likely not be available to him in the Netherlands or, at least, their existence would be uncertain.

[12] As well, if he were obliged to move to the Netherlands, in his opinion, job opportunities would be limited to only four or five in number, compared to some 200 plus jobs available to him at his level as a coach in Canada. He did state, however, that he would use his best efforts to find employment as a coach in a swimming program or become involved in some activity connected to swimming or athletics. He stated that he would do anything to support his children. Although he was able to quantify the sacrifices that he would be making should he choose to move to the Netherlands to be with his children, he agreed that Ms. Geurts-Cole would not be making the same sacrifices inasmuch as she would only be leaving behind uncertainty.

[13] During cross-examination, he spoke of his recruiting schedule which requires some travelling depending on both events and recruiting opportunities. Although recruiting takes place about twice per month, he would make every effort not to sacrifice anytime with his children by occasionally taking them with him on his recruiting trips.

[14] He went on to say that there are approximately ten to twelve competitions per year but he has had very few conflicts with spending time with his children and, in any event, would be able to resolve the conflict by making alternate arrangements with Ms. Geurts-Cole. As for the need to travel abroad, he stated there is only one training camp which takes place in December of each year in a warmer climate such as Jamaica.

[15] Although his work schedule consists of 37 hours per week plus required attendances at swim practices which are scheduled from 6:30 a.m. – 8:30 a.m., Tuesday and Thursday, and 7:00 p.m. to 9:00 p.m. on those same days. On Monday and Friday he coaches each day from 2:45 p.m. - 5:00 p.m. and then 6:00 p.m. – 7:30 p.m. On occasion there is training that takes place on Sunday from 4:00 p.m. – 6:00 p.m. in the winter, and in the summer it is 3:00 p.m.-5:00 p.m. However, whatever might be his schedule, he does have some flexibility as well as the availability of assistant coaches to replace him for dry land workouts which also take place Tuesdays and Thursdays in between swim practices. He stated that none of his work commitments would affect his ability to care for the children, particularly since the parties have now agreed to proposed alternate minutes of settlement depending on the court’s decision.

[16] As well, he admitted flying to Miami once a month to visit the woman with whom he currently has a relationship leaving on a Friday evening and returning on a Sunday evening or Monday morning.

[17] In addressing Ms. Geraldo’s opinion labelling him as a parent that one could befriend, as distinguished from her description of Ms. Geurts-Cole as a hands-on parent, he stated that he has always been a hands-on parent every time the opportunity arose.

[18] Moreover, his decision to increase his daycare attendances wasn’t a matter of strategically increasing his attendances but a matter of taking advantage of the opportunity to do so within the context of his work demands.

Testimony of Carla Geurts-Cole

[19] Carla Geurts-Cole began her testimony by stating that pursuit of future employment for her locally appears to be futile. At the time of her testimony, she was engaged in two contracts with McMaster University, one a high performance contract which was to expire in August of 2012 and a part-time job with the education services. In her opinion, her difficulty in obtaining future employment in Hamilton or in and around Ontario is due to a lack of funding because of what she sees as a hiring freeze. As for her immediate employment status, she was advised by her supervisors at McMaster University that her contracts would not be extended.

[20] In her efforts to find employment, she has made use of a career coach at McMaster University, received references from previous bosses and filed as Exhibit 4 to these proceedings, a dossier of job applications. For the majority of positions for which she applied she received no response, was interviewed for three of the positions without success and received four other rejections. From April 13, 2011 to July 12, 2012 she applied for a total of thirty five positions and received no response from twenty four of those positions.

[21] Her further efforts in trying to find employment locally included approaching both the police and fire departments with the idea of setting up performance tests for people to determine their functioning capabilities within her two disciplines but received no response. As well, she approached the professor of business at McMaster University with the idea of creating a project for students to market that particular project but again she received no response. She has also approached a sports injury clinic to have it advertise her services and was told it would send out flyers for high performance testing but again received no answers. She has also applied for jobs through email with attached notifiers about her areas of expertise.

[22] She stated that part-time employment is no longer suitable for her as she has now separated from Mr. Cole and must support her children. In any event, part-time jobs do not come with any benefits in Canada. She testified that she has not found any full-time or part-time positions since 2005 and that her employment has been dependent upon contract positions. Although she agreed that McMaster is a premier university, there is no funding in the areas in which she has developed her expertise. In her opinion, McMaster University is more focused on research in clinical health areas, but her expertise is in the field of exercise physiology which includes testing individuals for physiological stamina and coordinating tests conducted in laboratories.

[23] On August 23, 2011, after Ms. Geraldo recommended that she be allowed to move to the Netherlands with the children to obtain employment, she was required to look to the Netherlands to find such employment and, as a result of efforts made through a friend of the family, a position was created for her at the annual salary of approximately $40,000.00 per year in Canadian funds. This job, which includes a pension, is set out in an agreement marked as Exhibit 5 to these proceedings and is currently being kept open for her until a decision is made.

[24] In describing this job in more detail, she stated it was created for her by a friend who has a physiotherapy clinic. Her function would be to “train people who need to be trained.” What she finds most appealing about the job is that it is not a contract position. Instead, her job performance is reviewed every two years to determine whether she merits a raise which, in turn, would depend upon the skills and productivity she had demonstrated over that period of time. As well, working with specific clientele is also appealing in that it would include individuals who have disabilities or limitations such as diabetes, arthritis, and COPD, which would tie in with the pathology modules with which she has worked in the past and her experience with spinal cord injuries. It would be her responsibility to design for these individuals, a program which would include optimal exercise for each individual within their limitations or disabilities.

[25] In addressing the best interests of the children, she stated that not only would she be financially stable, but she would also have proper accommodations initially with her parents where she and the children would occupy the upper floor of their home which consists of three bedrooms, a kitchen and a bathroom. It is her intention to ultimately purchase her own residence. As well, with respect to amenities for the children, her hometown has excellent schools and although the children might be taught in the Dutch language, she would ensure that they would take English classes as well.

[26] As for her daughters’ personal comfort level with her family in the Netherlands, she stated that they have visited her parents and her brothers and sisters once or twice a year. As for her contact with Mr. Cole’s family, she stated that most of his family lives in Dartmouth and she would ensure that they would visit for Christmas, and would call on a regular basis by using Skype frequently.

[27] In comparing the support she would receive from her own immediate family including her mother, father, and her siblings, to the support she has locally, she indicated that she has one good friend, a Dr. Michelle Gurt, an orthopaedic surgeon who resides in Oakville, Ontario and whom she visits every two weeks with greater frequency in the summer. She described the visits as very enjoyable for her and her children, particularly since Ms. Gurt also has two boys, aged six and four. She described Ms. Gurt as her only support system.

[28] As for her current residence, she stated that she moved away from home prior to it being sold, because she felt it was quite awkward living under the same roof with Mr. Cole. She was able to find a home which was brighter, had a fairly large backyard and a very short walk to a park and the GO station.

[29] Finally, when asked about specific concerns regarding Mr. Cole’s ability to care for the children while the parties had been residing in Hamilton, there were times when Mr. Cole made last minute changes to his schedule which interfered with her job obligations because she would have to make other arrangements for the children including caring for them herself, thereby cancelling a couple of her own appointments. However, she had no criticism of his ability to care for them in his role as a father.

[30] As for the possibility of Mr. Cole moving to the Netherlands, she thought that the language would be a significant barrier to his efforts to look for employment and she described some uncertainty as to whether employment would even be possible.

[31] In describing her current coping strategies, she stated that although the children are very healthy and happy, she has implemented some coping strategies which include exercising regularly during the week, focusing on her current job which she indicated is challenging and fun and, of course, focussing on caring for her children.

Testimony of Mr. Tyler Robertson-Roper

[32] Mr. Tyler Robertson-Roper who has an Honours B.A. in English at McMaster University followed by a diploma in early childhood education from Mohawk College has been a teacher at McMaster’s daycare centre since September of 2011. He is Madison’s teacher.

[33] He described Madison as being an “amazing, beautiful child” and “lovely to be around.” He could tell that she was well cared for by both parents and had no concerns about her disposition or self esteem.

[34] He described her relationship with Mr. Cole as one of great interaction describing her as always very happy to see him when he attends the centre. He also noted that Mr. Cole not only spends time with Madison but tries to divide his time equally with Kinley as well as spending approximately ½ hour with each child during his visit.

[35] As for Ms. Geurts-Cole, although she does not attend the daycare centre, he has observed that she has a strong loving relationship with her children. The only time he noticed any aberration of Madison’s disposition was when she had returned from two weeks’ vacation in the Netherlands and appeared to be whining and more confrontational. However, he did agree that her mood change may have been due to her extensive travel to the Netherlands and Nova Scotia, all during a three week period over the holidays. However, he is satisfied that Madison is a child who has great love for both parents, is very content and well parented.

Testimony of Diane Peolmans

[36] Diane Poelmans has a diploma from Mohawk College in early childhood education, and has been working at the centre for twenty-one years. She mainly cares for the youngest child, Kinley whom she described as a happy, fun loving 3½ year old who is secure within herself and has great self esteem. She described her interaction with Mr. Cole as very positive and that she is always very happy to see him.

[37] She described Mr. Cole as being very cooperative and a man who has a great deal of respect for the staff always making certain to not disrupt the class and appearing to interact very well with all the children. Although Ms. Peolmans sees Ms. Geurts-Cole less frequently because of Ms. Geurts-Cole’s work commitments, she described Kinley as always being very happy to see her mother. In Ms. Peolmans’ opinion, both children have been well shielded from the parents’ separation which she attributes to the parents’ appropriate behaviour.

Testimony of Lesley Carson

[38] Lesley Carson is the wife of John Carson, a good friend of Mr. Cole, and is a manager at Food International Services at St. Joseph’s Health Centre in Guelph. She has a Bachelor of Science from Mount St. Vincent and an M.B.A. from Guelph University. She and Mr. Carson have three children all over the age of eighteen. She met Andrew Cole at a McMaster Swim Meet in Montreal where he renewed his friendship with her husband who had been a high school classmate.

[39] The Carson’s and Mr. Cole have a strong friendship. He visits them once per month usually an afternoon visit followed by dinner, although the odd time they have a sleepover. She found both of Mr. Cole’s daughters to be full of energy, confident, respectful, polite and full of love for their father. She also found them to be very well adjusted and secure within themselves, qualities which are reflective of their upbringing. She found Mr. Cole to be very consistent in both demonstrating love and understanding of his children along with applying a careful measure of discipline when necessary. Although she never met Ms. Geurts-Cole, she has had very positive feedback about her from her own daughter, Lindsay, who had met Ms. Geurts-Cole within her professional capacity at McMaster University. On cross-examination she did admit that she found the children to be very adaptable.

Testimony of Michael Nakoneshny

[40] Mr. Nakoneshny has a Bachelor of Arts in clinical behaviour sciences and specializes as a rehabilitation counsellor, trained to look for employment for individuals who are also interested in changing their career paths.

[41] He was called upon to assess Ms. Geurts-Cole’s ability to secure employment. In that regard, he provided the court with a written report which, according to his assessment, matched Ms. Geurts-Cole’s skills to what he considered to be those available jobs or employment opportunities which best make use of those skills.

[42] In elaborating on her background, he opined that opportunities available to her are enhanced by her academic accomplishments, namely, her Ph.D. which is a very strong endorsement for tenure at a university, as well as her two fitness training certificates. Moreover, she has seven publications which, in fact, demonstrate her writing and research skills which would be of great assistance to her in finding future employment.

[43] He found her career to be well-rounded and that her accomplishments would, in his opinion, attract sponsorship and grants. Moreover, the fact that she is a presenter and motivational speaker, underscores her ability to communicate well with individuals.

[44] He went on to say that her academic accomplishments along with her training in kinesiology at a premier university such as McMaster, makes her a very appealing candidate and that if she was interested in a long term tenure as a professor, she has already accomplished two of the four stages, namely, experience as a lecturer and an assistant professor. In his opinion, this would increase her chances to ultimately obtain full-time professorship, but not immediately, since, to a certain extent, it is age-related. However she is definitely “on track.” As well, a further advantage of working at McMaster University is that it is also known as a top performer for attracting funding and research monies in the field of health sciences in which she is involved. Concluding that her chances for employment were “quite good”, he focused on the fact that she has a further skill set of devising curriculum for distance education which, in his opinion, is a very appealing skill.

[45] Moreover, he does not consider the fact she has been presently employed by contract as a significant disadvantage except for the fact that the relatively short duration of her contracts, did not allow her a substantial opportunity to establish a relationship with her current employer. Nevertheless, these contracts, in his opinion, are clearly an attractor for future jobs and, ultimately, possible full-time employment. In his report he outlined the best position for which he believed Ms. Geurts-Cole was well qualified, not only in the academic world but also in the private sector.

Testimony of Dr. Rita Bradley

[46] Dr. Rita Bradley, who was Ms. Geurts-Cole’s therapist, has expertise in the areas of rehabilitation psychology, forensic and clinical psychology. Dr. Bradley provided a report for this court which is at Tab 11 of the Trial Record. At the time of her testimony, Ms. Geurts-Cole, who continues to attend therapy, had attended twenty one sessions over a period of sixteen months.

[47] Dr. Bradley had discussed with Ms. Geurts-Cole a number of issues including the emotional impact of her loss of marriage, her inability to communicate with Mr. Cole effectively, her work stressors, her loss of earnings, her job search issues and a concern about not being able to maintain and secure full-time employment.

[48] With regard to job searching, she testified that Ms. Geurts-Cole had come to her with a great deal of anxiety over not being able to support herself and her children and to maintain self-sufficiency. She had been receiving information from her employer that her work hours were being reduced. Consequently, because she was anticipating a job loss, she was dealing with a fair amount of anxiety. That anxiety over job issues evolved into what Dr. Bradley described as a mood disorder and depression which she described as “depressive symptoms.” She decided to treat Ms. Geurts-Cole with anti-depressants.

[49] When asked about her long term prognosis, Dr. Bradley stated that it relied significantly on Ms. Geurts-Cole’s ability to achieve stability in her life which included factors such as a stable residence, stable employment and access to stable support. She found Ms. Geurts-Cole’s social supports in Canada to be limited and that her key social support is her family who reside in the Netherlands. She came to this conclusion because she found that Ms. Geurts-Cole’s efforts to try to increase her social network in Canada were not well-thought out, citing as an example her efforts to befriend an individual at work to whom she disclosed personal information without even knowing this individual very well.

[50] She went on to say that Ms. Geurts-Cole’s desire to reside in the Netherlands reflected an “insight and strong need for emotional and familial support.” However, she was not sanctioning a move to the Netherlands but simply performing her function which was to assess Ms. Geurts-Cole’s psychological health noting that, generally speaking, social support is key to a person’s psychological and physical health.

[51] She further stated that she agreed it is not uncommon for people to be stressed in times of separation and described Ms. Geurts-Cole’s situation as complex. Although she did agree that Ms. Geurts-Cole appears to be functioning to meet her responsibilities to the children, she found functioning to be only adequate but, nevertheless, although she was under incredible duress, she was clearly making a great effort to manage her responsibilities.

Testimony of Dr. Raymond Morrison

[52] Dr. Raymond Morrison, who is a full-time private practitioner in the areas of clinical/counselling/psychology specializing in assisting families in transition or breakdown through assessment of custody and access through mediation, arbitration and parenting coordination and whose expertise was not questioned, provided a critique of Ms. Geraldo’s report under three headings: organization and forms; procedure methodology; and logic and coherence.

[53] His critique was prepared both in relation to section 24 of the Children’s Law Reform Act which focuses on the children’s best interests, and within the context of the National/International Guidelines of Conduct and Standards for the preparation of section 30 reports.

[54] He began by stating that the strength of the report was in its organization and clear structure of both topics and headings. However, in his opinion, the methodology was not up to standards. He stated that Ms. Geraldo’s interviews with the parents were unbalanced in that she had spent more time with Ms. Geurts-Cole than she did with Mr. Cole. In his opinion, she failed to do a full evaluation of the children because she omitted individual play sessions and she did not interview them. She only saw them together in the presence of their parents. Moreover, he found it to be problematic that she saw only Ms. Geurts-Cole twice in her office.

[55] He was also critical of the report and recommendations for the following reasons: a) Ms. Geraldo suggested a method of communication between the parties without first seeing them together, a practice which he thought was necessary in order for her to determine how, in fact, they did communicate; b) Ms. Geraldo only chose two third party contacts provided by both parties to determine what support system they had in place. In his opinion there should have been more interviews; c) the interviews appeared to be unbalanced in that she made recommendations based on Ms. Geurts-Cole’s statements without further talking to Ms. Geurts-Cole’s sister from whom she only received a letter. Ms. Geraldo should have at least conducted a telephone interview with the sister if a personal interview was not possible; d) she failed to make an in-depth evaluation of what was available to the children in the Netherlands which, in his opinion, should have included travelling to that location to see what was available. If that was not possible, Ms. Geraldo should have at least contacted sources which were likely readily available citing as two examples, educational authorities and health providers.

[56] He was further critical of the fact that as part of her efforts to accumulate personal information, she conducted two of the interviews, namely, of Tracy Reynolds, the previous daycare provider and of Dr. Rita Bradley whose written report was provided on August 24, 2011, one day after the disclosure meeting. In his opinion, those interviews after disclosure may have unfairly influenced her decision.

[57] Dr. Morrison also stated that there was a lack of clinical information, namely, the direct observations of the assessor. He elaborated on that point by stating that clinical observations by an assessor have to do with how the parents communicate with each other. As well, there should have been a personality assessment of the parents and how it would impact on their ability to parent. Ms. Geraldo should have done a further assessment which would have included her observations with respect to the relationship between Ms. Geurts-Cole and Mr. Cole, followed by her observations of the relationship between the parents and the children, followed by her observations of the relationship between the two children and, finally, her observations between the children and other individuals who are not part of the immediate family. There was also no information with respect to the method of child management and the only parenting component which she was able to observe was the interaction between the children and the parents together.

[58] Moreover, he found the recommendation of the parenting coordinator as a “disconnect”, meaning that there was a lack of logic for such a recommendation inasmuch as she had concluded the parents communicate well with each other. The parenting coordinator is usually used to prevent high conflict circumstances from arising between two parents. As well, he stated there appeared to be no comment or analysis as to how Ms. Geurts-Cole’s lack of employment would impact on her ability to parent the children if she were not allowed to move to the Netherlands. Even if the rationale would be that the mother cannot support herself, there was no rationale as to how that was in the best interests of the children. As well, Dr. Morrison pointed out that given that Ms. Geraldo had suggested that the children’s trip to the Netherlands be at least delayed for two years, her recommendation which immediately followed, namely, to allow Ms. Geurts-Cole to move to the Netherlands if she could not find employment locally, was again a disconnect. There was no rationale supporting that recommendation.

[59] In cross-examination he indicated to Ms. Stoner that he does the assessment blind, meaning that, he does not interview the assessor before he does his evaluation. His major concern was a lack of comprehensiveness in the absence of clinical observation to permit her to lead to the conclusion to which she came. In response to a question by Ms. Stoner as to whether or not this lack of comprehensiveness affects all recommendations, not just the recommendation to move to the Netherlands, he responded in the affirmative.

[60] As for the percentage of how many times he visited a location in determining a mobility issue, he said that even if one doesn’t visit, an extensive evaluation may still be done and must be accumulated from as many sources as are available. In terms of the extensive evaluation, he talked about getting information from the person who wants to move, from significant others who are already there and perhaps some research through the internet to determine the kinds of services provided for the children. In being asked to distinguish between parenting coordinator and mediator, he said that a parenting coordinator does monitor the behaviour of the parents on a regular basis and a mediator simply deals with the specific issue at hand.

Testimony of Ms. Lourdes Geraldo

[61] Ms. Lourdes Geraldo received her Master of Social Work from McMaster University in 1996. She is a clinician whose focus is Section 30 assessments under the Children’s Law Reform Act; her practice consists of mediation/arbitration; parenting coordination; family and individual assessment of therapy; reconciliation and counselling; and acting as a representative of the Office of the Children’s Lawyer. Within her field, Ms. Geraldo is a well-respected assessor.

[62] Ms. Geraldo was jointly hired to conduct an assessment of Andrew Cole, Ms. Carla Geurts-Cole and the children to make ultimate recommendations. She was cross-examined by both solicitors beginning with Mr. Charuk who began by asking her how she arrived at her conclusion that the children be allowed to move with Ms. Geurts-Cole to the Netherlands.

[63] Ms. Geraldo responded by saying that although she initially stated that it would be in the children’s best interest to have a relationship with both parents which ultimately would require both parents to reside in the same area, the only basis upon which she thought Ms. Geurts-Cole should be allowed to move with the children is if she was unable to financially support herself and the children in Canada. Moreover, Ms. Geraldo opined that Ms. Geurts-Cole’s motivation to move to the Netherlands with the children was based on her desire to be closer to her personal supports as well as having the opportunity of having financial security and stability.

[64] However, in her opinion, Ms. Geurts-Cole’s motivation for moving to the Netherlands was not meant to interfere with the children’s relationship with their father.

[65] She went on to say that she was not suggesting by her recommendation that Ms. Geurts-Cole simply terminate her employment here in Hamilton since, in her opinion, there is some accountability involved in the court’s ability to assess a parent’s motivation. Although she acknowledged that it is in the children’s best interests that both children maximally be involved with the parents, her decision in recommending that Ms. Geurts-Cole be allowed to move to the Netherlands was based upon circumstances outside of Ms. Geurts-Cole’s control regarding her employment situation.

[66] On the other hand, if the employment situation remained the same and was available to her, her expectation and hope would be that Ms. Geurts-Cole would remain. She did admit that the risk of a move to another country with the children can be quite high since there is a risk of the unknown, particularly if Ms. Geurts-Cole were not employed and, therefore, not able to financially meet the needs of the children. But because she was aware of a job opportunity waiting Ms. Geurts-Cole, she felt the move could be supported.

[67] Ms. Geraldo further stated that although it is always a struggle to determine what is in the children’s best interests, the scale usually tips in favour of the children having a consistent relationship with both parents. The only circumstance in which there could be a consideration of a move is where one parent is financially unable to meet the children’s day to day needs.

[68] In arriving at her recommendation of approving the move, she considered what opportunity was available to Ms. Geurts-Cole in the Hamilton area which, in turn, depended on the level of opportunity and the degree to which a job would meet her household and children’s needs and how long that opportunity would be available. She combined that consideration with hypothesizing that if Ms. Geurts-Cole was obligated to resort to social welfare, given the level of education and expertise of Ms. Geurts-Cole, she was concerned, but not definitive, that it would have a significant negative impact on her ability to maintain her high level of parenting of her daughters. To further elaborate, she stated that within the context of her private practice, she often dealt with issues related to employment status and employment-related issues. She went on to say when a person experiences a personal sense of loss as did Ms. Geurts-Cole, a job-related loss can further trigger the prior loss leading to a grieving process. How Ms. Geurts-Cole might cope with that reactivated loss is to go to a psychologist to enable her to navigate through the loss.

[69] Her recommendation was also based on Ms. Geurts-Cole’s information to her about the particular accommodation available to her in the Netherlands, her familial support and the willingness of her extended family to assist her with her daughters. She stated that Ms. Geurts-Cole showed her photos and a plan of how she intended to continue the relationship between the father and the children which helped to form part of her recommendation. She found Ms. Geurts-Cole to be very task focused and committed and she had no reason to not believe that she would follow through with her commitment to help the girls maintain a relationship with their father. That factor led to her recommendation of the parent coordinator. Although she did admit it would be much more beneficial to the children to maintain a relationship with their father rather than with Ms. Geurts-Cole’s extended family.

[70] In defending her report against Dr. Morrison’s criticism, she stated that she, in fact, did engage in play assessment with the children but when it appeared they would not engage with her, she decided she would not make another attempt. As well, she did work within the guidelines of the College of Social Workers meaning that it is not standard practice to see parents together. She further went on to say that she was satisfied that amenities such as medical services and educational services described to her by Ms. Geurts-Cole’s sister are in place in the Netherlands. The children would be well accommodated. Those amenities are well established in the country which she understands to be well advanced based on her general reading. Her recommendations were also based on her conclusion that Ms. Geurts-Cole had addressed all the issues satisfactorily with respect to the schooling, accommodations, her own employment and medical services. She was, therefore, satisfied that Ms. Geurts-Cole would follow through on those issues and that the parent coordinator would, in fact, help roll out those issues over a period of time, another reason for her recommendation for the move.

Testimony of Ms. Machteld Massee-Geurts

[71] Machteld Massee-Geurts is the sister of Ms. Geurts-Cole. She is the oldest of Geurts children. She is forty-nine years of age and is the director of a company which manufactures commercial vehicles in Meunen in the Netherlands. She is one of five siblings in the family along with a number of nieces and nephews.

[72] She testified that if Ms. Geurts-Cole were to move to the Netherlands she would be living with her parents who have an upper floor of their residence which is essentially a self contained unit.

[73] In describing the job currently available to Ms. Geurts-Cole in the Netherlands, she said she would be working for a company called Physio Company, which is a combination of companies for people who require either rehabilitation or wish to lose weight and become more fit. The person who has offered Ms. Geurts-Cole the job is a good friend of the family who expressed a desire to expand the services of his company which has two locations in two neighbouring towns and thought Ms. Geurts-Cole’s experience and education would enable her to create a new service line for his company. He wishes Ms. Geurts-Cole to come and set up a new service line.

[74] In a recent discussion with Ms. Geurts-Cole on Skype, she described her as being very stressed and depressed and wanting to return to the comfort of her roots. She also found her to be lacking in self confidence and appearing to be in a state of panic. However, if she were allowed to move to the Netherlands, she would be surrounded by the comfort of her family who would assure her that she was making appropriate decisions for herself and her children. As for the children, they appeared to be very friendly during the Skype sessions and she described them as having a strong relationship with their maternal grandparents and her maternal extended family.

[75] In describing the benefits to the children if they are allowed to move to the Netherlands, she said they would be in a stable environment and benefit by the fact that their mother would be working and even if it is on a part-time basis, the government would subsidize her part-time job with daycare and medical care. She described free health care for the children to the age of eighteen.

[76] She also noted, according to her own calculations, that Ms. Geurts-Cole would be taking home more net pay from her job in the Netherlands than she would be receiving from any equivalent job in Canada.

Testimony by Mr. Cole in Reply

[77] With the consent of counsel, Mr. Cole retook the stand to indicate what efforts he made to look for jobs to accommodate Ms. Geurts-Cole’s qualifications and expertise, searches which he performed on a website called Kijiji.

[78] He referred to one particular job description which required designing, organizing and implementing exercise programs. In his opinion, it was analogous to the job which has been offered to Ms. Geurts-Cole in the Netherlands and, therefore, a combination of her background plus her success as a finalist at the Olympics, made her very suitable for this position. Although he did agree that most of the jobs which he searched were without benefits or benefits had not been specified in the job descriptions, he stated he would be very surprised, in any event, if in most of those cases, benefits were not available.

[79] In reiterating his opposition to Ms. Geurts-Cole moving to the Netherlands, he said that both parents should be doing what is in the best interests of the children. He is prepared to help Ms. Geurts-Cole find employment so they can continue to raise their children as fine, healthy adults without the necessity of a move.

[80] However, during cross-examination he agreed that none of the jobs were at the university level; only eight included salaries; none of them talked about benefits and many of the forty four which he searched were personal trainer positions well below Ms. Geurts-Cole’s expertise and experience.

Testimony of Ms. Geurts-Cole in Reply

[81] Ms. Geurts-Cole took the stand to respond to Mr. Cole’s job search and began stating that on July 31, 2012 she applied for a job at Toronto Western which required an exercise physiologist with working hours of 8:30 a.m. to 4:30 p.m. but she received no response. Although the job offered was within a university setting it did not advertise benefits. However, she did agree that usually jobs within that setting do come with benefits.

[82] Regarding the jobs referred to in Mr. Cole’s list, she said many of them were advertising for personal trainers and, in her opinion, they were not jobs which usually require individuals with a doctorate in kinesiology. Moreover, she felt that accepting such jobs would affect her sense of self-worth since she would not be challenged. As well, she stated that most personal trainer jobs such as the one with Good Life Fitness require their trainers to sell on a commission basis and selling is not her forte.

[83] She also admitted that there was one job on Mr. Cole’s list requiring a full-time kinesiologist of which she had not been aware and for which she did not apply. She also applied for six or seven other jobs focusing on some specific applications, namely, a job as a fitness director at Cedar Springs Racquet Club for which she applied but received no response; and the health center manager at a club in Mississauga which did not mention the salary but had benefits. However, it only required three or four hours per week every Saturday and she found this to be not suitable. She received no response to her application for a clinical research associate at Western University, a job she applied for of her own volition which pays about $55,000.00 annually. She applied for three assistant professor jobs, two at the University of Toronto for which she applied for on or about September 18, 2012 with an annual rate of $70,000.00 and a job for an assistant professor at Niagara College which consisted of a two year contract which she applied for on August 12, 2012. She received no replies from those job applications.

[84] She is prepared to search for jobs and move to areas such as London, Kitchener, Guelph, St. Catharines and the other areas in Toronto; and, would move to any university cities because of the academic possibilities. And she would also consider teaching at the college level.

Submissions by Mr. Charuk

[85] Mr. Charuk began his submissions by making reference to draft minutes of settlement, terms of which the parties have agreed to, depending on whether or not Ms. Geurts-Cole is permitted to move to the Netherlands. Mr. Charuk submitted, with Ms. Stoner’s consensus, that the parties have asked the court to implement either minutes of settlement depending on the court’s final decision.

[86] Mr. Charuk reminded the court that in making its ultimate decision it must take into consideration the emotional, physical, psychological and intellectual well being of the children and must also be governed by s. 16(8) and (10) of the Divorce Act as well as s. 21 and 24 of the Children’s Law Reform Act.

[87] In referring to the case before this court, he submits that the parties have agreed to joint custody and although there are temporary arrangements for access which are currently in place, he relies on the recommendations of Ms. Geraldo that Mr. Cole be allowed an increase in his access and, specifically, each Tuesday after school or daycare until Wednesday morning, and additionally, each Thursday until after school or daycare until Friday morning.

[88] He submits that any personal preferences by either parent should be sacrificed for the sake of the children’s best interests, particularly since Mr. Cole is irrefutably equally involved in the children’s lives.

[89] Although it is Ms. Geurts-Cole’s position that she is the primary caregiver she has, nonetheless, conceded that Mr. Cole is a loving father who spends extra time with the children beyond the access schedule set out in the temporary order. Mr. Charuk went on to summarize the evidence of Tyler Robertson-Roper and Diane Poelmans, who testified that Mr. Cole is consistent with his relationship with the children whom they found to be very confident and full of joy and well adjusted and both acknowledge that Ms. Geurts-Cole also has a special bond with her children.

[90] Referring to the report of Ms. Geraldo, Mr. Charuk first focused on the positive comments set out in some of Ms. Geraldo’s observations, opinions and recommendations. For example, she recommended that Mr. Cole share time with the children every Tuesday evening and Thursday evening, overnight to the following day. She observed the children to be happy, bright, energetic and closely connected to each parent emotionally. Despite the emotional distress and anxiety that the parents experienced at the end of their marriage, in her opinion, both parents have demonstrated a strength and maturity in communicating with one another and parenting the children.

[91] As well, Mr. Charuk submitted Ms. Geraldo stated that the information received during the course of her assessment, including collateral information, spoke to the benefit that the children have derived from maintaining regular and consistent contact with each parent. He reminded the court of Ms. Geraldo’s comments that it would benefit the children, in their relationship with both parents, to remain in the Hamilton-Burlington area and that both parents should have major input into the decisions affecting the children.

[92] The concerning part of her report was what Dr. Morrison had described as a disconnect between her suggestion/recommendation that the children have consistent contact with the parents and her immediate and subsequent recommendation, that Ms. Geurts-Cole be allowed to move to the Netherlands with the children if she is unsuccessful in finding employment locally.

[93] Mr. Charuk submitted that the latter recommendation change the focus from what were in the children’s best interests to what was in Ms. Geurts-Cole’s best interests and, in his opinion, it didn’t flow logically and additionally took away any incentive for Ms. Geurts-Cole to maintain her current employment or find alternative employment locally.

[94] With regard to Ms. Geurts-Cole’s efforts to obtain employment, Mr. Charuk referred to the testimony of Mr. Michael Nakoneshny, a vocational placement specialist. He reminded the court of Mr. Nakoneshny’s opinion that Ms. Geurts-Cole’s prospects for medium and long term employment were promising and that being an employee of McMaster University was to her significant advantage as it is ranked as one of the best in Ontario and could provide her with potential career progression and opportunities. Furthermore, he stated that if she did not want to remain in the educational sector, she could turn to the private sector. He also stated that because of her experience conducting research under the Natural Sciences and Engineering Research Council of Canada Grants Program, with her writing competency, she has the skill set to attract and secure funding from that particular source and other similar funding sources. In his opinion, her skill set would be attractive in any university setting.

[95] In the alternative, he saw that she would have ample opportunities outside of the university setting in the private sector either coaching, practical application of her knowledge in ergonomics and other professional roles such as a fitness trainer.

[96] Mr. Charuk stated that given the comments of witnesses and Ms. Geraldo’s positive recommendations commending both parents on their ability to parent these children, the fact that Mr. Cole is equally capable of taking care of the children’s emotional and physical needs implies that one party should not be given more serious consideration than the other in determining the children’s best interests.

[97] He took issue with Ms. Geurts-Cole’s reasons for moving to the Netherlands, namely, that she would be happier having the support of her family; that she would be making a comparable income; and, that as a result of her securing employment, she would be a better parent. However, he submits that the living arrangements being proposed by Ms. Geurts-Cole, are something which is “untested.” Although Ms. Geurts-Cole’s family have always resided in the Netherlands, they have their own lives and, therefore, there is no guarantee that they can or will be involved to the extent in which Ms. Geurts-Cole anticipates. As well, a move would create more instability, and uproot the children from their familiar surroundings, community, culture, friends and activities. At the present time, the children have two stable environments where “they can rely on the caring and consistent contact with both parents on a regular basis.” Even Ms. Geraldo indicates in her report that the parties have been able to work together “in the best interests of the children”, evidence which has been borne out by third party evidence which collectively indicates that the children are well adjusted, happy, bright and closely connected to each parent emotionally.

[98] As for Ms. Geurts-Cole’s opinion that she is not able to find employment, Mr. Charuk indicates that the evidence suggests that she has not made significant efforts. He goes on to say that she applied for two positions in August of 2012 and two positions in September of 2012. She was vague with respect to details regarding one of the positions she applied for in September. The fact that she did remember she applied for six more positions in July of 2012 suggests a lack of a bona fide effort to look for employment simply because she was hopeful to find employment in the Netherlands which would have supported her request to move to that country with her children.

[99] As for employment in the Netherlands, he submitted that the annual salary that she will receive is no better than the annual salary she would receive at a comparable job in Canada. Furthermore, he submits that the employment, at best, is speculative; there are unknowns such as the people with whom she would be working; people with whom she has no familiarity other than the owner who, in fact, is a friend of the family. Moreover, if the employment circumstances do not work out as Ms. Geurts-Cole had hoped, the children will not be able to turn to their father for emotional support. Mr. Charuk also pointed out to the court that while Ms. Geurts-Cole is looking for employment here, she has approximately “$50,000.00 to $60,000.00” of savings from which she can draw.

[100] Mr. Charuk further submitted that it was not a justifiable reason to remove the children from their current environment which is a healthy environment for the sole purpose of presumably advancing their mother’s career. Moreover, although Ms. Geurts-Cole appears to have made all necessary arrangements for the children with respect to schooling, doctors and dentists, nevertheless, the children are already involved in extracurricular activities here in Ontario and have frequent contact with close friends and family all of which contribute to their emotional and psychological well being.

[101] Whether or not Ms. Geurts-Cole will be happy and her happiness will result in the benefits for the children, is questionable; whereas it is certain the children living in their current environment are happy and well adjusted. As for whether or not the children will spend significant time with their father if they are allowed to move, the court must consider the costs of travel as well as the father’s responsibilities which may impede upon his ability to spend significant time with the children during holiday periods. As well, the children would spend months without seeing their father at all. Given that both parents are essential caregivers, given that the recommendation has been that they have joint custody, moving them from that environment would be detrimental to the children’s well being. As for whether or not Ms. Geurts-Cole will remain unhappy living in this environment, Mr. Charuk submits it follows that once she obtains employment in this environment, the stress and unhappiness will, in fact, dissipate. In support of his client’s position, Mr. Charuk submitted a brief of cases, some of which he reviewed with the court.

Submissions by Ms. Ann Stoner

[102] Ms. Stoner began her submissions by stating that the history of the relationship of the parties clearly shows that Ms. Geurts-Cole has, in fact, been the primary caregiver for the children because Mr. Cole’s career required that he work long hours. As a result, she was often left alone to care for the children while Mr. Cole was working or was away. In considering Ms. Geurts-Cole’s commitment from the outset of the relationship, she submits that Ms. Geurts-Cole moved to Canada to be with Mr. Cole. She left her support system in the Netherlands to build a life with Mr. Cole and, consequently, was very devastated when Mr. Cole announced that he wanted to separate from her and that he was involved with another woman.

[103] Ms. Stoner, in turning to the benefits awaiting Ms. Geurts-Cole and the children in the Netherlands, she begins with advising the court that her mother and father are both retired and are financially comfortable. They live in a large five bedroom home and they have currently set aside three bedrooms, a kitchen and a bathroom on the top floor of that home which would provide Ms. Geurts-Cole and the children with private quarters. Both parents being of good health would also be able to assist Ms. Geurts-Cole’s with caring for the children when she was working. Ms. Geurts-Cole’s siblings also reside in and around the parent’s home town and the extended family has a very close relationship.

[104] As for whether there would be any significant adjustment for the children, Ms. Stoner submitted that the children have continued to holiday in the Netherlands at her parent’s home and since separation Ms. Geurts-Cole has continued to take the girls to the Netherlands for two to three weeks each summer as well as one visit at Christmas in 2011. Likewise, Ms. Geurts-Cole’s parents and her sister have visited her home in Canada.

[105] In comparing that environment waiting for her in the Netherlands to the emotional environment in which Ms. Geurts-Cole currently lives as it relates to Mr. Cole and particularly his extended family, she submitted that Mr. Cole has one brother who lives in Toronto and is married with one child who is several years older than either Madison or Kinley. However, Ms. Stoner points out that the evidence shows that the brother has had nothing to do with Ms. Geurts-Cole since separation. Ms. Stoner submits that Ms. Geurts-Cole has been hurt by what she considers to be this rejection by Mr. Cole’s brother and his wife. Moreover, she indicated that Mr. Cole and his father have never been close. The only contact she maintained appeared to be with Mr. Cole’s family in Nova Scotia and prior to her death, Ms. Geurts-Cole was very close to Mr. Cole’s mother.

[106] As for the primary reason Ms. Geurts-Cole wishes to move to the Netherlands, namely, to find suitable and secure employment, she submits that Ms. Geurts-Cole has been struggling to find employment in the Hamilton-Burlington area since separation. At best, she was only able to find two positions at Brock, and two part-time positions at McMaster, both of which are scheduled to terminate in the not too distant future. Her inability to find meaningful full-time employment has left her with a feeling of isolation and, consequently, according to Dr. Bradley, she is suffering from depression and is currently on anti-depressants. Ms. Geurts-Cole, herself, she submitted, appears to be frustrated with the prospect of being unable to support herself and her children now or in the very near future and has become “demoralized.” What appears to be the only interview she had for a potential job in New Brunswick, she was compelled to decline because of the proceedings before this court and because of Mr. Cole’s position that he did not want her to leave the jurisdiction with the children. Nevertheless, she has been diligently trying to obtain employment commencing a job search in April 2011 to July 2012 ultimately only being able to find two positions; one in the Netherlands and one in New Brunswick.

[107] As for positions discussed by Mr. Nakoneshny in his testimony, Ms. Stoner submits that Ms. Geurts-Cole applied for nine of the positions without receiving a response. However, there are positions that appear to be currently available to her at the time of Mr. Nakoneshny’s testimony located in southwestern Ontario, including areas such as St. Catharines, Thunder Bay, North Bay, Windsor, Ottawa, London, Guelph, Toronto, Meadford, Hamilton, Burlington and Brantford. Of these positions on Mr. Nakoneshny’s list, six were university employment postings and none of them were personal trainer positions, referred to by Mr. Cole from his own list.

[108] Ms. Stoner asks this court to conclude that in spite of Mr. Cole’s position that Ms. Geurts-Cole’s lack of employment is not of her own doing, the fact is that she has been unable to find secure employment since 2005 and has applied to a myriad of positions without success. In any event, Ms. Stoner is also asking the court to consider the alternative as suggested by Mr. Cole himself, namely, his willingness to move to the Netherlands and find employment although she readily admitted that he has far more security in Canada.

[109] As well, economically, Ms. Geurts-Cole’s finances are limited. Currently, as the date of these submissions, she has remaining in her bank account the amount of “$55,000.00” from the sale of the home. Moreover, she is without benefits, whereas a secure job with benefits and a pension awaits her in the Netherlands. She would be earning approximately $40,0000.00 in Canadian funds and as an added benefit, she would have the emotional and financial support of her extended family. Moreover, she would have very specific hours to work, on a four to five days week schedule, which would, therefore, allow her to spend quality time with her children.

[110] Ms. Stoner submitted, in the alternative, that Ms. Geurts-Cole be allowed to relocate to Nova Scotia or New Brunswick because she has had the benefit of developing a network of friends and has a prior history of employment in that location. Moving to that location would at least give her an opportunity to be with people who could provide her with some support and give her a job.

[111] She also asked the court to consider other options if New Brunswick and Nova Scotia are not acceptable such as Burlington or St. Catharines or any university city throughout southwestern Ontario where she would have the possibility and exposure to employment opportunities which would require a professorship.

[112] Ms. Stoner further submitted that if, in fact, Ms. Geurts-Cole is restricted to areas such as Kitchener, St. Catharines, London, Guelph, for example, that the current order of Justice Lafrenière remain in place which gives Mr. Cole access every Tuesday evening to Wednesday but not every Thursday overnight to Friday as recommended by Ms. Geraldo. In her submissions she submitted that such a revised schedule would be too disruptive for the children, since it would require them to switch residences too frequently which would cause upset and prevent them from establishing any routine.

[113] In support of her position that her client be allowed to primarily, move to the Netherlands, or in the alternative, out of the Hamilton-Wentworth jurisdiction, Ms. Stoner submitted a brief of cases, some of which she also reviewed with the court.

[114] Ms. Stoner goes on to say that should Ms. Geurts-Cole not be allowed to move to the Netherlands and confined to Hamilton-Wentworth or surrounding towns or cities, that Mr. Cole be obliged to pay the following: 1) retroactive extraordinary expenses for the years 2011 and 2012 based on a differential between the parties financial means totaling $4,224.47; 2) spousal support in the amount of $398.00 per month based on Ms. Geurts-Cole’s current annual employment of $20,800.00; 3) child support in the amount of $1,100.00 based on Mr. Cole’s 2011 income of $74,669.00; and 4) section 7 expenses to be divided at the proportion of 76.3% payable by Mr. Cole and the balance by Ms. Geurts-Cole based on their comparative incomes of $74,669.00 and $20,800.00.

[115] She is asking that spousal support be payable as of July 1, 2012, the date when Ms. Geurts-Cole’s income was significantly reduced.

Analysis and Conclusion

[116] In the case before me, the parties have agreed to share joint custody of the children. As well, there is strong cogent evidence from third parties such as, Mr. Tyler-Robertson-Roper, Ms. Diane Poelmans and Ms. Lesley Carson, that both Ms. Geurts-Cole and Mr. Cole are equally effective in raising their children, are both substantially involved in their lives, and are both capable of providing them with strong parental love and emotional support.

[117] The primary issue, therefore, is not of custody but whether Ms. Geurts-Cole should be allowed to move with the children to the Netherlands or, in the alternative, out of the jurisdiction of Hamilton-Wentworth.

[118] In the case of Sheikh v Sheikh [17] R.F.L. 303 (S.C.J.), Mr. Justice Gordon with the assistance of the leading case of Gordon v Goertz, 19 R.F.L. (4th) 177 summarized what should be the court’s considerations in mobility cases. Those considerations which are applicable to the case before me are in part set out in paragraph 71 of his decision:

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. 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.

4. 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.

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

6. 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 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;

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

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

Since the threshold has been met, within the context of these above considerations, I must deduce from the evidence, what this court considers to be the best interests of the children.

Ms. Geurts-Cole’s Opportunity For Future Employment

[119] When I consider Ms. Geurts-Cole’s employment history, I note that she was able to obtain three full-time positions; one as an assistant professor at the Department of Kinesiology at Brock University and two contract positions, both full-time which she held for two years. I find it speaks to her ability to secure well paying positions in her field of expertise. In my consideration of the evidence of Mr. Nakoneshny, I also note that he essentially described her background and academic qualifications as providing her with great potential. She has writing and research skills, has the ability to communicate well with individuals, being a presenter and motivational speaker, and the contracts which are currently coming to an end, in his opinion, are attractive for future jobs.

[120] According to Mr. Nakoneshny, given her current age, she is ideally situated for a full- time professorship having already achieved the level of lecturer and assistant professor. Moreover, he found her employment at McMaster University to be significantly to her advantage describing McMaster University as a premiere university for attracting funding and research monies in the field of health sciences in which she is involved. As well, he outlined positions for which she was qualified not only in the academic world but in the private sector.

[121] When I review his extensive report of potential employment opportunities for Ms. Geurts-Cole, several of them assistant professorships or professorships, I find that given Ms. Geurts-Cole’s background, there is a great deal of potential for her to secure future employment. I accept his opinion that, ultimately, she would be able to find employment without the need of moving to the Netherlands. I also note that of the eighty percent of the jobs for which she applied as set out in Exhibit 4 of these proceedings, although she received no responses from the majority of the applications, I also find that there appears to be no follow-up by Ms. Geurts-Cole with respect to these non-responses.

[122] As well, given that the parties separated in September of 2010 and given that this employment position in the Netherlands became available to her in December of 2010, some three months after separation, it is difficult for this court not to conclude that this employment opportunity waiting for her in her home country would have been a significant disincentive to her to exercise her maximum efforts to look for employment in locally or relative proximity to the children’s current location.

Assessments by Ms. Lourdes Geraldo and Dr. Rita Bradley

[123] In addition to financial security, Ms. Stoner stressed Ms. Geurts-Cole’s need for emotional support which she submitted her client can only receive from her immediate and extended family in the Netherlands which, in turn, would provide her children with the stability to which they are entitled. Therefore, the question is whether the absence of this direct family support will impact on her ability to parent the children and would, therefore, be contrary to the children’s best interests.

[124] In my review of Ms. Geraldo’s report, I carefully considered her observations. I note that at page 21 of her report she stated as follows:

Parents, counsels, assessors and Judges must consider both the costs and benefits that exist when considering a proposal for relocation. In this circumstance, it would benefit the children’s relationship with both parents to remain in the Hamilton/Burlington area. Both parents are able to manage their communication with one another and to co-parent together adequately. Both parents should have input into major decisions affecting their children. In the event that they encounter difficulties in discussing or agreeing upon a decision or outcome for the children, they should work with a parenting coordinator. A parenting coordinator can provide the necessary support and assistance with communication and dispute resolution, as well as monitor the children’s adjustment.

Ms. Geraldo further goes on to say:

In the event that Ms. Cole-Geurts’ financial situation remains as it is currently and she is able to continue as a contract employee with the university, it would benefit the children to remain in their current communities. Developmentally, it will also benefit the children to delay a possible move until the children are at least another two years older and they have entrenched their language and cognitive skills.

[125] What I find most perplexing is Ms. Geraldo’s comment immediately following the above quote. It reads as follows:

However, in the event that Ms. Geurts-Cole does not have an ability to support herself appropriately, financially and she is not able to receive sufficient financial support from Mr. Cole, a move to the Netherlands is recommended.

I find that that last comment is inconsistent with the previous two quotes and does not appear to be supported by any clear evidence or observations in her report and does not, in my mind, clearly answer the question as to why such a recommendation. Particularly concerning to this court, is the absence of any observation by Ms. Geraldo of what would be the emotional impact on the children if they were, in fact, removed from “their current communities” or were not given the opportunity to “have entrenched their language and cognitive skills.”

[126] Although I acknowledge that Ms. Geraldo later in her testimony in an effort to support that recommendation, testified that, in her opinion, Ms. Geurts-Cole’s depression from lack of employment could have a negative impact on her ability to care for her children, she did not address it specifically in her report, yet she had ample opportunity to do so if it was intended to be one of her topics of consideration. In fact, Ms. Geraldo addresses the purpose of her report in the first two paragraphs which read in part as follows:

…the purpose of the report is to assist the parents, their counsel and the Honourable Court to finalize the custody and access issues consistent with the children’s best interests.

The issues to be addressed were custody, the children’s residential schedule and Ms. Geurts-Cole’s proposal to move with the children to the Netherlands. Mr. Cole sought a more balanced residential schedule and joint decision-making, supported by a third party professional. Mr. Cole objects to Ms. Geurts-Cole’s plan to reside in the Netherlands with the children. Mr. Cole resides in a two bedroom apartment in a house within the Hamilton area. Mr. Cole is employed as the head swim coach at McMaster University.

Ms. Geurts-Cole proposed that she make final decisions in matters related to the children and that the children primarily reside in her care. Ms. Geurts-Cole sought to move to the Netherlands with the children.

[127] Within the context of Ms. Geraldo’s retainer, I find that Ms. Geraldo’s above noted observations at paragraph 123 can only be classified as added commentary, but without proper foundation. This is particularly noteworthy in light of Ms. Geraldo’s own evidence in which she stated that the issue of Ms. Geurts-Cole’s parenting ability could be accomplished by an updated assessment which would focus on that very issue.

[128] In my overall consideration of the evidence and reports of Ms. Geraldo and Dr. Rita Bradley, firstly, I agree with Dr. Morrison’s criticism of Ms. Geraldo’s recommendation for the move as being a disconnect, particularly given that Ms. Geraldo gave detailed, and what I consider to be, strong reasons why the children should remain in this jurisdiction, albeit, qualified by her suggestion of at least another two years. However, several other of her observations throughout her report suggest that the best interests of the children would be to remain in their current location or at least in close proximity of both parents to receive the maximum benefit of that relationship. Even though she stated in her evidence that the only justifiable reason for allowing a move of one parent would be because that parent was unable to financially support the children, I find that Ms. Geraldo did not provide any detailed rationale for that recommendation and, particularly I find, she did not demonstrate how there was a nexus between the court’s refusal of such a move and a negative impact on Ms. Geurts-Cole’s parenting ability.

[129] Secondly, when I consider the comments of Dr. Bradley who indicated that Ms. Geurts-Cole was depressed and was on anti-depressants, I particularly note Dr. Bradley’s reference to Ms. Geurts-Cole’s coping abilities within the circumstances of her separation from Mr. Cole. Her observations and opinion in several places of her report are as follows:

…her use of various clinical strategies has reportedly yielded positive changes with her children

…in light of the importance Ms. Geurts places on the health and welfare of her children, I have no reason to believe that she will not continue her efforts in this domain in the same diligent and responsible manner.

…She presents as someone who will persevere in the face of challenges to find the solutions she believes are necessary – solutions which are guided by her strong morals and her belief system which includes strong family values.

[130] These opinions lead me to believe that no matter where she resides, Ms. Geurts-Cole has and will always have the ability to parent her children and shield them from any stress which she may experience to enable them to continue to be the happy, well adjusted children as they have been described by various witnesses.

[131] Therefore, I find that on the balance of probabilities that it is in the best interests of the children that they remain in close proximity to their parents and that preventing Ms. Geurts-Cole from moving to the Netherlands would not have a negative impact on her ability to parent the children or a direct negative impact on the children themselves.

[132] In coming to this conclusion, not only have I been assisted by the evidence but have considered the case law presented to me by counsel. In my review of the cases submitted by Ms. Stoner, I begin with the Oldfield case in which Blair, J. had the benefit of an assessment which, in fact, addressed two main factors.

1. The effect on the children of their mother’s parenting if she remains here compared with parenting in France, particularly with Sylvain and his children.

2. The effects on the children if they saw their father about every two months versus a more ongoing week-by-week contact.

At paragraph 66 of his decision, Blair J. went on to say…”in the end, Ms. Goudge found herself balancing two very important factors, namely:

(a) the impact on the children of requiring them – and therefore Mrs. Oldfield – to remain in Toronto, given the effect that this would have on their mother’s parenting and, thus, on them;

and

(b) the impact on the children of losing their daily contact and frequent times spent with their father, and the opportunity to continue to build a relationship of that sort.

[133] Those particular factors were addressed by the assessor and her opinions and conclusion, were of significant importance to Blair, J. in helping him come to his conclusion that the mother, in that particular case, be allowed to return to France. Blair J. noted that it would be an impossible undertaking for the mother not to show her sadness and not to make the kids sad and unhappy just because she was sad and unhappy. In quoting the assessor, he stated that it would be very hard for Mrs. Oldfield to hide her sense of hopelessness from the children, who are very intuitive to such things, and that this would have a negative impact on the well being of the children.

[134] I find that I do not have such evidence before me with regard to Ms. Geurts-Cole’s inability to cope in her own circumstances. Moreover, unlike the Oldfield case, I also have no evidence that Ms. Geurts-Cole’s inability to cope would have a direct negative impact on the children’s disposition. Lastly, the two objectives of the assessor in that case were not the objective in the assessment in the case before me.

[135] In the case of Cade v Rotstein 2002 CarswellOnt 3871, where the mother wished to move to New York from Toronto where job prospects for her as a jazz vocalist were much higher than her prospects in Toronto, Justice Wood allowed the mother to move with the children and in coming to that conclusion, made certain observations. In paragraph 6 of his decision he states as follows:

The nature of the respondent’s work was such that he was generally not available for day-to-day child raising duties.

In paragraph 8 of his decision, he states as follows:

The primary dependence of the children upon the applicant was dramatically demonstrated between January and September 2002. A consensual shared parenting plan which placed the children with each party on a one-week rotational basis was varied by the respondent almost immediately due to work commitments. Within two months of its inception it has essentially been abandoned. Since that time, the children have spent over 75% of their time with the applicant.

At paragraph 15 Justice Wood went on to say:

A custody and access assessment performed by Dr. Steven Weir, a psychiatrist trained in this area, confirmed that the children are well bonded to each of their parents and that they enjoy their time with their father. However, the conclusions of the report which were based upon the respondent committing to a true shared parenting arrangement, have been undermined by the actions of the respondent over the last six months.

At paragraph 17 of the judgment, he went on to say:

It is clear from both Dr. Weir’s report and his evidence however, that he envisioned a commitment by each party to full participation and the care giving and the time commitment that this would require. I find as a fact that the respondent has not been prepared to make this time commitment. I also find that the nature of his work is such that it would be virtually impossible for him to do so. It is in the best interest of the girls that they reside primarily with the applicant.

[136] The facts in the Cade case are dramatically different from the facts before me. Mr. Cole has demonstrated a willingness to provide full participation in the care-giving of the children and has recognized and accepted the time commitment it would require.

[137] In the case of Bjornson v Creighton, 31 R.F.L. (5th) 242, where the court did not have the benefit of an assessment, the court, nevertheless, allowed the mother to move back to her home town of Calgary to secure a job as a nurse, firstly, because the mother had been under “both financial and emotional control” of her partner, Mr. Creighton and, secondly, it appeared that Mr. Creighton was continuously exercising his access contrary to an agreement between the parties by not returning the child to the mother on Sunday night but instead by keeping the child until Monday morning and taking him to school. In that case, the court held that it had strong evidence of a job to which Ms. Bjornson would be able to return and compelling evidence of unhealthy control exercised by Mr. Creighton over Ms. Bjornson.

[138] In the case before me, there is no evidence Mr. Cole has or had an overbearing control over Ms. Geurts-Cole and although it appears that Ms. Geurts-Cole has a secure job awaiting for her in the Netherlands, aside from the written contract, I have no evidence as to the job particulars from Ms. Geurts-Cole’s prospective employer, and no evidence of guaranteed job security, particulars of which could have easily been explored from the employer himself.

[139] The court’s concern over this particular issue was raised in part by the testimony of Ms. Geurts-Cole’s sister who commented upon the security still awaiting Ms. Geurts-Cole and the children, even if the job were part-time. That comment gave this court cause to wonder whether Ms. Geurts-Cole’s true primary reason was to simply return to her roots and the security of her family whether the job awaiting for her was full-time or part-time.

[140] In the Sheikh case, Gordon, J. found very persuasive evidence of an imbalance in the relationship between the mother and the father. In his words:

There are other examples of Hanif attempting to impose his views, which he mistakenly refers to as agreements jointly made. As hereafter discussed with respect to the equalization issue. Hanif said he made it clear to Fahreen, the residence at 534 Leighland Drive was owned by his parents. Further, he said Fahreen understood Amani would be born in Canada and raised in the paternal family, that his family would be an integral part of their son’s life. Also, he said he expected to provide the religious instruction to Amani as that was the tradition in his family.

This does not indicate dialogue between spouses as to living arrangements, family and future. Rather, it is the imposition by one spouse who is “controlling, inflexible and domineering.” Such, in my view, impacts on parenting.

[141] Again, I have no such evidence before me which suggests Mr. Cole is “controlling”, “inflexible” and “domineering.”

[142] Although in cases where there may be no formal assessment, the courts have, nevertheless, come to the conclusion that the circumstances under which the party wished to move are so impressive that failure to allow a party to move would impact negatively upon their ability to parent their children, I find that such evidence must be so persuasive that on the balance of probabilities, the court can come to no other conclusion.

[143] I do not have that evidence before me. As stated in the case of Berry v Berry 2011 ONCA 705 (Ont.C.A.), the Court of Appeal held that in order for the court to override the maximum contact principle, a parent’s reason for moving is a proper consideration only in exceptional cases where it is relevant to the parent’s ability to care for the child. Where applicable, the parent’s reason for moving, like all the factors, should be considered from a child-centered perspective.

[144] In relying on that quote, I find that the evidence for Ms. Geurts-Cole’s reason to move was the principle focus but it was not considered from the child-centered perspective. Although the court was made aware of Ms. Geurts-Cole’s personal challenges, the child-centered perspective, as a whole, was lacking. When the court is asked to consider the evidence from a child-centered perspective, I find not only should it be made aware of the benefits to the child by moving with the one parent, but it should also be made aware of the disadvantages to that child of moving away from the other parent so the court may determine whether or not the move should take precedence over the maximum contact principle. Although there is evidence of the former before me, there was virtually no evidence of the latter, particularly taking into consideration the tender years of the children being five and one-half and three and one-half years of age respectively.

[145] Therefore, I further find it will not be in the children’s best interests to deprive them of the guidance that they have been receiving from their father all their lives. I find the children are currently happy in their current environment; they have a stable home; and they have friends. Madison will soon be attending school, and Kinley is at McMaster daycare centre where she appears to be thriving under the guidance of teachers with whom she is familiar and has a positive connection. To allow them to move with their mother so far away from their father would mean abruptly moving them from the only environment they have known since birth and although they would be moving with a loving extended family in the Netherlands, I find that the strong relationship which they have with their father is of far greater importance.

[146] To reiterate, in my consideration of the totality of the evidence, this court cannot recall any evidence that directly considered the effect on the children themselves if they were removed from a comfortable, loving relationship which they have with their father to a location which would mean a drastic reduction in the time spent with Mr. Cole who has had a significant, positive influence on their upbringing.

Are There Other Alternatives?

[147] In the case of Meijers v Hasse [2007] O.J. No. 2506 (Ont. S.C.J.), a case presented to me by Mr. Charuk, Thornton J. stated in paragraph 115 of his decision:

Maximum contact between the children and both parents must, however, be balanced with considerations such as the child’s physical, emotional, social and economic needs in light of the quality of his or her relationship with both parents, and their respective abilities to look after the child’s best interests.

[148] Since I find Ms. Geurts-Cole and Mr. Cole have excellent parenting abilities and the children will greatly benefit from the fruits of their joint parenting and most effectively if both are in reasonable proximity of the children then, nevertheless, I find that this can be achieved without severely restricting Ms. Geurts-Cole’s ability to look for employment.

[149] Even though Ms. Geurts-Cole has been able to master her abilities as a parent in which are clearly not happy circumstances for her, I find that giving her greater opportunity to find meaningful employment will make her a happier parent who will be able to exercise those parenting skills in an environment which would be more fulfilling and satisfactory for her.

[150] Therefore, I find that it would not be unreasonable to allow Ms. Geurts-Cole to look for employment beyond the jurisdiction of Hamilton-Wentworth. In my review of Mr. Nakoneshny’s report, I noted he found opportunities for her, some within university settings and I think she should be given the opportunity of exploring those positions. Even if they are not available, she should be allowed to continue to look for employment in some of those geographical areas. Two exceptions would be New Brunswick and Nova Scotia which I find also presents too great a distance between Mr. Cole and his children and would virtually lead to the same kind of drastic reduction in time spent with him as I found was the case if they were to move to the Netherlands.

[151] Therefore, given that it is not disputed that the children’s primary residence is with Ms. Geurts-Cole, I make the following order:

1. If Ms. Geurts-Cole does not move out of the jurisdiction, Mr. Cole is to have access as follows:

a) Every second weekend from Friday after daycare/school/work until Sunday at 8:00 p.m. at which time he will return the children to the respondent mother.

b) Every Tuesday evening after daycare/work until Wednesday morning.

c) During the week prior to the weekend in which Mr. Cole does not have access to the children, he is to have additional access to the children the Thursday evening after daycare/school/work until Friday morning.

2. If Ms. Geurts-Cole finds employment out of the Hamilton-Wentworth jurisdiction, Mr. Cole is to have access as follows:

a) Every second weekend from Friday after daycare/school/work until Sunday at 8:00 p.m. at which time he will return the children to the respondent mother.

b) Every alternate month, Mr. Cole shall have an extra consecutive weekend. If Mr. Cole’s regular weekends are the second and fourth weekend of the month, his consecutive weekend shall be the third weekend of that month; if Mr. Cole’s regular weekend access is the first and third weekend of the month, his consecutive weekend will be the fourth weekend of the month.

[152] Counsel will note that I did not make any reference to the mid-week access regime which Mr. Cole is currently enjoying. If Ms. Geurts-Cole moves out of the jurisdiction, hopefully, the parties will be able to make some arrangement if and when Ms. Geurts-Cole does, in fact, move.

Other Access

1. Assuming that these following terms are consistent with the minutes of settlement which the parties have signed, other access to Mr. Cole should be in accordance with paragraphs 5 a, b, c, and d.

Child Support

1. I understand from counsel that this is not disputed, therefore, Mr. Cole shall pay child support.

2. Mr. Cole shall pay child support in the amount of $1,083.00 monthly based on his 2011 income of $74,669.00. In that regard, Mr. Cole and Ms. Geurts-Cole are to exchange income tax returns by June 1 of each year commencing 2013.

Spousal Support

3. I am satisfied that Ms. Geurts-Cole’s income was reduced to $20,800.00 as submitted by Ms. Stoner. Therefore, spousal will be in the amount of $398.00 as of July 1, 2012.

Extra-Ordinary Expenses

4. Mr. Cole is to pay Ms. Geurts-Cole retroactive extra-ordinary expenses in the amount of $4,224.47 within 120 days of this order.

5. The parties are to share section 7 expenses to be divided at the proportion of 76.3% payable by Mr. Cole and the balance by Ms. Geurts-Cole based on my finding that their comparative incomes are $74,669.00 and $20,800.00.

Mediation Costs

6. I was of the impression there was an agreement that Mr. Cole pay mediation costs. However, I will not make such an order until it is confirmed with me by counsel.

[153] If there are terms of this order which counsel wish explained or if there are terms which are not consistent with the minutes of settlement, I may be spoken to.

[154] As I understand it, counsel have agreed, as per their clients’ instructions, that there will be no order as to costs. If I am incorrect on that issue, I may also be spoken to.

Mazza, J.

Released: March 13, 2013

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Andrew Cole

Applicant

– and –

Carla Louise Maria Geurts-Cole

Respondent

REASONS FOR JUDGMENT

Mazza, J.

Released: March 13, 2013