COURT FILE NO.: FC-10-647-2 (Ottawa)

DATE: 2013-12-10

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Kimberly Arseneault Applicant

– and –

John Byck Respondent

Counsel: Cheryl Hess, counsel for the Applicant Paul T. Fitzgerald, counsel for the Respondent

HEARD: November 20, 21 and 22, 2013

REASONS FOR JUDGMENT ON THE APPLICANT’S MOTION TO CHANGE THE FINAL ORDERS OF JUSTICE A. SHEFFIELD, DATED NOVEMBER 17^TH, 2010 AND JUNE 13^TH, 2011

PELLETIER, J.

[1] Kimberly Arseneault and John Byck began a relationship in 1998. In June 2005, they were married. Their son, Ryan, was born August 22^nd, 2006. Ryan is 7 years old. His parents moved from Toronto to Ottawa in the summer of 2008. Their marriage was already in some difficulty. They separated 4 months later. Mr. Byck stayed in the home and Ms. Arsenault went to live with her mother and step-father in Monkland. Six months later, Ms. Arseneault bought a home in Barhaven, where she lived with Ryan.

[2] A separation agreement made at the time gave custody to both of Ryan’s parents. In their agreement, the parents decided that “John will have frequent access to Ryan on reasonable notice”. They also agreed that “at this time there is no set schedule for access” and that they would, “address and assess the access, bearing in mind the best interests of Ryan at all times.” Finally, they agreed that “when special opportunities for the child arise or when unusual problems for the parties occur in relation to access, neither party will unreasonably insist on strict adherence to any arrangements. Instead, they will cooperate in making reasonable alternative arrangements such that the interests of Ryan shall prevail.”

[3] Although no firm access schedule was put in the separation agreement, Mr. Byck was generally scheduled to have Ryan in his care Wednesday nights and Saturday afternoons until Monday mornings.

[4] It became apparent that splitting every weekend could be a problem.

[5] Mr. Byck worked for B.M.O. Asset Management at the time. Ms. Arseneault worked, as she still does, in structural steel drafting for the family business. She is able to work from home. $800.00 in monthly child support was decided as an appropriate amount for Mr. Byck to pay given that Ryan and his father spent considerable time together, despite Mr. Byck’s 2009 salary of $207,000.00 and Ms. Arseneault’s earnings of $51,500.00 that same year.

[6] The situation remained more a less the same until the summer of 2010 when Ms. Arseneault met Nicolas Ruel. Mr. Ruel is with the Canadian Armed Forces. He was with a unit based in Ottawa when he met Ryan’s mother. A relationship developed between Ms. Arseneault and Mr. Ruel which eventually included Ryan.

[7] On November 17^th, 2010, the first of Justice A. Sheffield’s orders was made in response to Ms. Arseneault’s motion to vary child support, and Mr. Byck’s corresponding request that a more formal access arrangement be put into place. Child support was fixed at $1,676.00 monthly, with Mr. Byck covering 81% of Ryan’s daycare expenses and those associated with extracurricular activities. These were to be discussed and reasonably agreed upon in advance. Joint custody was maintained, as was primary residency of Ryan with his mother. Access was decided on the following basis:

Para. 15: Ryan with his mother on Mother’s Day and with his father on Father’s Day;

Para. 16: Alternate Easter weekends;

Para. 17: Alternate Victoria Day weekends;

Para. 18: Alternate Canada Days;

Para. 19: Alternate August Civic Holiday;

Para. 20: Alternate Halloween nights;

Para. 21: Alternate February Family Day;

Para. 22: One interrupted week each in July and August;

Para. 23: Equal rotating division of the two week Christmas break;

Para. 24: Alternate New Year’s Day;

Para. 25: Alternate March breaks;

Para. 26: 14 days’ notice for travel outside of Ottawa, without conflicting with the access schedule;

Para. 27: Labour Day with Ms. Arseneault each year;

Para. 28: Thanksgiving with Mr. Byck each year.

[8] Access beyond these specific dates was still governed by the terms of the 2009 Separation Agreement; frequent and on reasonable notice.

[9] The order also provided that neither Ms. Arseneault nor Mr. Byck were to schedule activities during the other parent’s time with Ryan without the other parent’s consent, unless reasonably withheld. Regular telephone access was encouraged, and the parents were not to speak poorly of the other in front of Ryan. Finally, the order provided that neither parent move with the child from Ottawa unless the other parent agreed or a Court order allowed the move.

[10] The motion before this Court presently has to do with that last clause.

[11] Mr. Byck continued to work for BMO and live in the matrimonial home. He saw Ryan according to the terms of the November, 2010 order and as otherwise agreed upon.

[12] Ms. Arseneault continued to live in her townhouse in Barhaven, and the relationship with Mr. Ruel flourished. In February, 2011, Mr. Byck lost his job with BMO. He sold the matrimonial home he had occupied since the separation two years earlier and moved into a rental unit on the second floor of a duplex in the downtown core.

[13] On June 13^th, 2011, the November 2010 order was varied somewhat, on consent. It set out the following access schedule:

Week 1: Thursdays at 4:45 p.m. to Fridays at 9:00 a.m.;

Week 2: Thursdays at 4:45 p.m. to Mondays at 9:00 a.m.;

The earlier holiday access provisions stayed the same.

[14] Under the child support provisions of the earlier order, and based on Mr. Byck’s income, child support for 2011 was reduced to $1,274.00.

[15] By July 2011, Ms. Arseneault and Mr. Ruel had formed a committed relationship. Mr. Ruel had bonded with Ryan and Ryan began seeing Mr. Ruel as part of his existence.

[16] The couple bought a lot in Richmond with plans for a new home to be completed by the following spring.

[17] In the early fall of 2011, Mr. Byck found work with C.I.B.C. Mutual Funds. This only lasted 6 weeks. Mr. Byck left C.I.B.C. because he did not find the work or the environment suitable. Mr. Byck’s income for 2011 is shown as $103,000.00. Part of the severance package included a $40,000.00 lump sum payment in January, 2012. Mr. Byck did not earn any further income that year. Child support payments stopped in March, 2012.

[18] In April of that year, Ms. Arseneault and Mr. Ruel moved into their new home in Richmond, near Barhaven in the south west suburbs of Ottawa. Their finances were merged and together with Ryan, they began living as a family. Access between Ryan and his father went, with some exceptions, as agreed upon in the June 2011 order. Mr. Byck was still looking for work. No payments were made after June, 2012 by Mr. Byck towards the costs of Ryan’s extracurricular activities.

[19] Mr. Byck began interviewing for a job with the Royal Canadian Mint in early 2013. The process was quite rigorous and lead to Mr. Byck obtaining a full-time and permanent management position in June of 2013. He earns $85,000.00 a year with the potential for bonuses.

[20] Early in 2013, Mr. Ruel had been told that his Ottawa posting with his current unit would be terminated and that he was to return to the Search and Rescue unit, his initial trade in the Armed Forces. He requested a posting in Trenton, the nearest available Search and Rescue Squadron. This was denied. He discovered in May 2013 that he would be stationed in Gander, Newfoundland for 3 years. He left for Gander in August of this year.

[21] If the present motion is granted, Ryan will be permitted to move to Gander with his mother. Access with his father will be reduced by about one-half. Longer visits will take place but on a much less regular basis. The issues before the Court are firstly whether there has been a material change in circumstances since the orders of 2010 and 2011. If so, are Ryan’s best interests served by having him stay in Ottawa with the existing access schedule, assuming Ryan’s mother stays as well, or is it more beneficial to Ryan for him to remain part of the family unit created by his mother and Mr. Ruel and living, for the foreseeable future in Newfoundland, while seeing his father as often as possible? Finding the answers to these questions is never easy.

The law concerning geographic challenges to access

[22] The Courts are regularly confronted with the task of determining what living, access and travel arrangements are in a child’s best interests when one parent plans on leaving the jurisdiction.

[23] Where an existing order is in place, the first question is whether there has been a material change in circumstances since the making of the order.

[24] The simple decision by one parent to move can change the residency and access routine dramatically. Whether that change is, in law, a material change in circumstances requiring that the existing order or agreement be reconsidered will depend on the circumstances of the case.

[25] The principle is stated in the following terms: change alone is not enough; the change must have altered (or be expected to alter) the child’s needs or the ability of the parents to meet those needs in a fundamental way. The question is whether the previous order might have been different had the circumstances now existing prevailed earlier. The change must represent a distinct departure from what the Court could have reasonably anticipated in making the previous order. The Court, on the motion to change an earlier order, sets out to isolate the factors which were not likely to occur at the time of the earlier order. For there to be a material change in circumstances, three conditions must be met:

1. There has to have been a change in the condition, means, needs or circumstances of the child and/or the ability of the parents to meet the needs of the child;

2. The change must materially affect the child;

3. The change must have been neither foreseeable nor reasonably contemplated by the judge who made the initial order. Gordon v. Goertz 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27 at paragraphs 10-13.

[26] In Gordon v. Goertz, a child aged 4 at the time of the proceedings, was allowed to travel to Australia in order to be with her mother, the custodial parent with principal residency, under an existing order made 18 months earlier. The reason for the move was in order for the mother to study orthodontics. In addressing whether a move for those reasons constituted a material change in the child’s circumstances, the Court observed that where a child enjoys frequent and meaningful contact with the access parent, an unforeseen move to a location far enough to make the existing access impossible is a material change in circumstances as contemplated by the provisions of the Divorce Act which allow for the variation of existing orders.

[27] Once the Court determines that the relocation of a parent would cause a material change in circumstances, a series of factors must be taken into consideration to determine whether allowing the relocation of the child with the primary residency parent is in the child’s best interests.

[28] The interests of the parents are not irrelevant, to the extent that they impact on the interests of the child; psychologically, physically, emotionally, socially, financially and otherwise. The Court must however guard, at each step of the inquiry, against viewing the issues from the perspective of the impact on the parents.

[29] The Court on a motion to change an existing order must not restrict itself to only considering the effect of the proposed change itself.

[30] The material change has the effect of putting the existing order in question. The child’s best interests need to be assessed anew under the new circumstances.

[31] The motive behind a custodial parent’s relocation, unless obliquely designed to frustrate access or interfere in the child’s relationship with the access parent, is not relevant. Unless the move proposed bears directly on the custodial parent’s parenting ability, the reasons for the relocation are not to enter the inquiry.

[32] The Divorce Act recognizes that maximum contact between the child and both parents is generally considered to be in the child’s best interests. This presumption is sound for several reasons. The parents are both instinctively best suited to care for, protect and nurture the child. The active participation of both parents relieves any tension and anxiety that could unintentionally be visited upon a child as a result of the separation. The lessons of co-parenting without co-habiting can serve the child in future years.

[33] The maximum contact model also reaffirms the basic principle of parental responsibility.

[34] Unless one parent is incapable or unwilling to meet those responsibilities, maximum contact with both parents as an objective, though not imperative, must be at the forefront. There is no presumption in favour of maintaining a custodial parent’s primary residency role. Once established, the change in circumstances imposes an equal onus on each parent to establish what residency arrangement best suits the child’s needs. The views of the custodial parent, and arguably a principal residency parent charged with the day-to-day tasks associated with child care, are naturally to be given due consideration. If expressed reasonably and objectively, a custodial parent’s views must be carefully examined by the Court as coming from a knowledgeable source of information concerning the child’s particular characteristics.

[35] With these general principles identified, Gordon v. Goertz provides a framework for trial judges within which to determine where a child’s best interests lie in the face of a contested relocation by a custodial parent.

[36] Paragraph 49 reads:

“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.

Ryan Byck

[37] Before applying the considerations identified in Gordon v. Goertz to the present case, it is important to take as close a look as possible at Ryan’s world presently.

[38] Ryan was 2 when his parents separated. He most probably only recalls living with his mother and seeing his father one night one week and four nights the next, in addition to holiday time. He is very bright. His grades and school reports would be the envy of any parent committed to seeing their child enjoy and succeed at school. He is well adapted to the access schedule and seems to adapt well generally. He has had to change schools and day care providers over the past 4 years and has done so without any apparent difficulty. He has two loving parents and two sets of loving grandparents, one in Monkland, an hour from Ottawa, and one in Sudbury, somewhat further away.

[39] Ryan is a healthy little boy who participates in many team and individual sports. He knows Mr. Ruel very well by now and they are apparently quite fond of each other. He is old enough to realize the nature of his mother’s relationship with Mr. Ruel.

[40] Ms. Arseneault and Mr. Byck are lucky to have such a healthy, intelligent and well adapted child. The tension between the parents presently is understandable and not uncommon. The level of conflict over the present mobility issue was palpable during the trial. Unfortunately, the adversarial system used as a means of resolving these differences between parents does little to ease that tension.

[41] To the enormous credit of Ms. Arseneault and Mr. Byck, this does not seem to have been visited in any way upon Ryan. Ryan has, quite naturally, been made aware of the potential move to Newfoundland. The Court is not however concerned that he has been placed in the middle of the debate by his parents.

[42] Regardless of the outcome of the present case, Ryan’s parents will, I have no doubt, make sure that he continues to be well cared for, loved and supported.

The application of the Gordon v. Goertz considerations to the present case.

[43] Counsel have provided very compelling arguments in support of each of the parents’ position. Given the existing access schedule and the relative stability in which Ryan lives, as well as Ryan’s overall wellness presently, Mr. Byck’s position is very defendable. At the same time, the proposed living arrangements put forth by Ms. Arseneault would without a doubt provide the same stable and supportive home for Ryan, keep him in his mother’s primary care and provide a good measure of contact between Ryan and his father.

[44] Resolving the present impasse requires a careful examination of the considerations set out in Gordon v. Goertz as they apply to Ryan’s situation.

[45] The first question to be answered is whether there has been a material change in circumstances since the existing orders were made. The June 2009 Separation Agreement did not fix an access schedule nor restrict relocation.

[46] The November 17^th, 2010 order maintained the regular access on reasonable notice provisions of the Separation Agreement and included a fixed holiday schedule. It also prevented the parents from removing Ryan permanently from Ottawa unless by agreement or Court order.

[47] In November 2010, Ms. Arseneault had known Mr. Ruel for just a few months. It was in the fall of 2010 that Ryan was slowly introduced to Mr. Ruel. The relationship was in the very early stages and by no means permanent or settled.

[48] Ms. Arseneault knew she was dating a member of the Armed Forces. She had to have known that this occupation generally involves frequent and involuntary relocations. She was however also aware that Mr. Ruel was, at the time, a 14 year veteran with an assigned unit that had him stationed in Ottawa for the foreseeable future. That was their expectation until Mr. Ruel’s posting was changed recently. The more recent order of June 13^th, 2011 was strictly an access schedule order. It is silent as to non-relocation given that this provision was already in place.

[49] Given this sequence of events, there has been a material change of circumstances. Ms. Arseneault’s plans to be with Mr. Ruel, at his new posting, is the result of the relationship which has developed over the past 3 years. It is a committed relationship. The introduction of Ryan into the relationship and the bond that has developed between Mr. Ruel and Ryan, the merging of Ms. Arseneault and Mr. Ruel’s finances, the purchase of a building lot in 2011 and the construction of a new home in 2012 and the plans to be wed and possibly expand the family speak to the permanency of this family unit. The move to Newfoundland, though a possibility at any time, was sudden and unexpected.

[50] Mr. Ruel made efforts at obtaining a posting in the Search and Rescue Team nearest Ottawa in Trenton. Had this been granted, it would nonetheless have involved considerable travel for Mr. Ruel. It would have avoided however the present impasse as to Ryan’s principal residency.

[51] I am unable to conclude, in all of the circumstances, that the change which the relocation to Newfoundland represents was a foreseeable event when the November 2010 order was made, nor am I able to conclude that the move is designed to thwart Mr. Byck’s access or hinder his relationship with Ryan. Despite Mr. Byck’s impression that Ms. Arseneault has at times made access difficult, the evidence tends to show the opposite. E-mail and text communications and the flexibility shown on most occasions by Ms. Arseneault do not support the conclusion that she has interfered with access or made it difficult. I would accordingly conclude that there has been, within the meaning of Section 17(5) of the Divorce Act, a change in the condition, means, needs or other circumstances of Ryan since the making of the previous order.

[52] The threshold question of whether a change has occurred being answered in the positive, the task of the Court is then to determine, presently, how Ryan’s best interests are served given the available options.

[53] The options are to either delete the non-relocation clause of the November 2010 order and establish a new access regime or to deny the motion and maintain the current access regime. It is for the parents to decide individually how the order will be managed.

[54] At this stage, if the motion is denied, Ms. Arseneault must decide what the consequences shall be for her. The Court has no authority to decide where parents will live. The inquiry is focused on what is best for Ryan, not on how a decision impacts on his parents. Whether the motion is granted or denied, there will be an impact on the parents. It is the impact of the decision on Ryan that must be the determinative factor. From the evidence at trial and based on Ms. Arseneault’s submissions, it can be assumed that if the motion fails she would remain in Ottawa with Ryan rather than relinquish principal residency to Mr. Byck and seek generous access. Her evidence is clearly that she does not believe Mr. Byck could be a principal caregiver to Ryan.

[55] Turning to the option which best serves Ryan going forward, the considerations set out in Gordon v. Goertz are as follows:

1. The existing custody arrangement and relationship between Ryan and his parents.

Ms. Arseneault and Mr. Byck have joint custody of Ryan. He has, since the separation been in his mother’s principal care. She has assumed the role of primary caregiver in all areas: education, medical and dental care, and sporting and social activities. Mr. Byck has been, to varying degrees at various times, involved only peripherally in these areas. Mr. Byck asserts that any failure on his part to fully engage in such things as medical and dental care, school activities, parent-teacher sessions, and enrolment and participation in various activities for Ryan has been due to circumstances beyond his control. He cites work commitments, including the scheduling of meetings and business travel beyond his control, other unforeseeable obstacles, and what he describes as Ms. Arseneault’s tendency to either not inform him of developments involving Ryan’s activities and schedule or only doing so after the fact. I would agree that on certain occasions, Mr. Byck has been unable to perform an equally engaged role in Ryan’s day-to-day activities. It is impossible and unnecessary to examine in minute detail the precise reasons for Mr. Byck’s inability to fully engage in Ryan’s activities. The weight of the evidence shows clearly however that Mr. Byck has permitted Ms. Arseneault to become the primary caregiver, not only in terms of how often Ryan is in her care, but also in terms of how the parenting responsibilities associated with caring for Ryan are managed on a daily basis. Ryan’s mother has enrolled him in school and found daycare centers for him. She has enrolled him in such activities as hockey, and hockey camps, snowboard lessons, softball, jujitsu and tennis. For over a year now, she has paid for these activities. She has ensured that Ryan has suitable medical and dental care. She has never relied on Mr. Byck for any of these responsibilities. E-mails exchanged over a year ago on these and other subjects tend to show Ms. Arseneault’s occasional frustration at Mr. Byck’s failure to assume any meaningful role in the responsibilities associated with raising a young child. It is true that Mr. Byck has recently began a new job which has required some travel on dates and certain meetings at times beyond his control. Those are however recent development. The pattern of Ms. Arseneault taking on the major child raising role goes well beyond the past few months.

Accordingly, while custody, in the strict legal sense of parental authority is shared, parental responsibility in the practical sense of how it is managed is and has been assumed by Ms. Arseneault to a great extent. These observations are neither intended to denigrate nor punish Mr. Byck. Ryan spends most of his time with his mother. Mr. Byck has agreed to this since the separation. He can naturally expect that Ryan’s mother will manage the bulk of the day-to-day concerns associated with raising a young child. Mr. Byck’s involvement, over the past 3 years in his son’s care, I have concluded, is in a secondary capacity. Mr. Byck must, objectively, recognize this.

Still under the heading of Ryan’s relationship with his mother, this now includes his mother’s partner. Ryan’s new family reality includes Mr. Ruel. This relationship serves him well. Ryan’s affection for Mr. Ruel does not diminish the love he has for his father. As already observed, Ryan has not, to the credit of the adults surrounding him, been exposed to any differences they may have. While it is quite frankly very regrettable that Mr. Byck and Mr. Ruel have not been able to develop their own rapport, it is not surprising in the context of the tension between Ryan’s parents. This has not prevented Ryan from being able to see both adult males in his life as men who want what’s best for him and who are prepared to teach them how to achieve that.

Since the spring of 2012, Ryan has shared a home with his mother and Mr. Ruel. Mr. Ruel has been away since his posting to Gander in August of this year. Ryan has missed Mr. Ruel. His ability to function normally despite this speaks not of a limited affection for Mr. Ruel but rather of Ryan’s resiliency.

In short, Ryan’s relationship with his mother is strong, close and dependant. His relationship with his mother, at this stage, necessarily includes his relationship with his mother’s partner. It is equally beneficial to him.

Turning to Ryan’s relationship with his father, as already stated, the bond is very strong. They spend a lot of time together and have since the separation. The existing access schedule, agreed upon by Ryan’s parents 2½ years ago, has Ryan in his father’s care one night one week and four nights the next. Mr. Byck chose to move downtown from Barhaven when he sold the matrimonial home nearly 3 years ago. This created new challenges in the exercise of access. Some of those challenges created further tension between Ryan’s parents. Mr. Byck has however maintained access since separation.

Mr. Byck does what he can in the time he has Ryan to occupy his time in ways beneficial to Ryan. This includes sporting activities such as skating, swimming, bicycling, movies, restaurants and travel south or to be with family in Sudbury.

Inevitably, the routines established in the two households as they relate to Ryan are different. Ryan lives in a small town setting when he is with his mother and a downtown setting when he is with his father. His parents have different interests, different priorities, different lifestyles, dietary habits and leisure activities. It is not useful to compare these with a view to determining which is best for Ryan. Children live where their parents live. Most children are raised in cities. While parents regularly make sacrifices for their children, the same children are regularly required to adapt to new situations and challenges. Ryan has demonstrated this for the past 3 years. I would accordingly conclude that Ryan’s relationship with his father is meaningful and beneficial to him. But for the possible move to Newfoundland, the same routine which exists would continue to serve Ryan well.

Ms. Arseneault has chosen to raise the issue of text message communications between herself and Ryan’s father, suggesting that they have occasionally been vulgar and demeaning. She is right. I am however unable to conclude that this is a parenting issue. Ryan has not been exposed to the conflict between his parents. What the various e-mail and text messages show however is that Ms. Arseneault has found it difficult at times to deal with Mr. Byck, both in terms of the frequency of communications and the content. This feature of the case tends to reinforce the notion that Ms. Arseneault has been the primary caregiver since separation. I would not however be prepared to draw an adverse interest against Mr. Byck’s parenting skills as a result of those communications. That said, as Ryan becomes more alert to adult conflict and more in tune to the relationship between his parents, these types of electronic confrontations could, if allowed to continue and worsen, be very detrimental to Ryan. Ryan could not help but feel responsible for them if he became aware of them. Preventing that is the responsibility of both parents.

Similarly, Ms. Arseneault has raised the issue of Mr. Byck’s pattern of paying child support. Child support and proportionate sharing of the cost of many of Ryan’s sporting activities was regular until early 2012 following Mr. Byck’s loss of employment. It has not been regular since. There is a comprehensive order in place dealing with child support and extraordinary expenses. It is expected to be strictly adhered to. It benefits Ryan and protects the parents’ financial interests by making sure that support and the sharing other costs are decided fairly. On this issue, to the extent that Mr. Byck has chosen to deviate from the existing order concerning child support and other expenses, it is again demonstrative of the conscious decision to delegate to Ms. Arseneault the principal child care role. It is therefore an indirect factor on the issue of parenting responsibilities and primary residency – the principal issues in the present case.

It is doubtful that Ms. Arseneault would have sought a change to the present arrangements if the transfer of Mr. Ruel to Gander, Newfoundland had not occurred. Difficult as Ms. Arseneault may have found the current arrangements at times, it could not have been suggested that Mr. Byck was a bad parent and that changes in the living arrangements and the access regime were necessary. The Court is however required presently to engage in a renewed assessment of how Ryan’s best interests are served. This necessarily must take into consideration some past parenting history. In sum, Mr. Byck occupies an important role in Ryan’s life. It must be protected and facilitated to the fullest extent possible. Mr. Byck’s role is and has been secondary. To vary that dramatically at this juncture would itself be a material change in circumstances.

2. The desirability of maximizing contact between Ryan and both of his parents.

In certain unfortunate situations, it is not desirable to maximize contact between the child and a parent. In this case it is. Ryan is doing well. This has not happened by accident. He is healthy and happy. He does well in school. He has adapted to the many changes in his life. He has been in his mother’s primary care since separation and has engaged in weekly and meaningful access with his father and extended family. The order to be made presently must take into consideration the new circumstances and at the same time seek to preserve the influences which have led to Ryan’s remarkable adjustment and adaptation so far. Presently, Ryan is with his father, as mentioned, one night one week and four nights the next. If holiday schedules are included in a yearly calculation of time spent together, Ryan is with his father, overnight, slightly less than 40% of the time. Presently, Ryan does not go a week without being in his father’s company, nor does he see his father less than 10 nights in any given month. Access is of a significant frequency and duration as it stands. (Exhibit 4) According to an access schedule proposed by Ms. Arseneault, Ryan would travel, in her company, to Ottawa 7 times a year. Visits would last 7 days, except for 2 periods of 3 consecutive weeks, one in July, one in August. There would be no face-to-face access for the months of January, April, June, September and November. These gaps would represent spans of between 42 and 63 days without Ryan being with his father. Access days counted individually would be reduced by slightly more than 50% in comparison to the present schedule (Exhibit 5).

Certain factors could compensate for a reduction in access. Telephone, text and skype communications, regularly scheduled, encouraged and facilitated would serve to maintain currency in the relationship and avoid the awkward re-acquaintances that come from extended periods of non-communication. In addition, the proposed access visits would be of a duration of between 7 and 21 days, allowing more time than exists presently for extended activities, visits with other family members, and bonding generally. These access proposals by Ms. Arseneault do not include any time during which Mr. Byck may choose to visit Ryan in Newfoundland.

There is no question that such an access regime would be a marked reduction in the total amount of time Ryan spends with his father, regardless of what is done to compensate for this. Maximum contact with both parents, as a general objective in managing post-separation parenting roles, applies in this case because it is, and has been, beneficial to Ryan. How to maintain maximum contact and whether it can be achieved differently without compromising Ryan’s present well-being are two perplexing questions. The answers lie in the parents’ commitment, on both sides, and Ryan’s ability to adapt. I have concluded that the proposal suggested by Ms. Arseneault demonstrates a proactive approach and a good measure of commitment. The proposal involves taking advantage of flights offered to military personnel and their families. The evidence is unclear as to what limits exist in that connection. Be that as it may, given her proposal, the responsibility of ensuring Ryan’s attendance for the access ordered would befall Ms. Arseneault. Non-compliance with her own suggestion would have the unfortunate effect of having the matter back before the Court for enforcement of the order. This would be contrary to everyone’s interests. Generally, costs associated with access fall upon the parent exercising access. In mobility cases, some accounting is required to ensure that the access can occur in a practical and affordable way.

3. The views of the child.

Ryan’s parents have wisely chosen to exclude this consideration from the analysis. Ryan has not been exposed to conflicting views or harmful influences. He is 7 years old and has had to be told where Mr. Ruel is presently, the reasons for Mr. Ruel’s departure, and whether they will be living together again. He has shown some interests in the prospects of moving to Gander but, as Mr. Byck has accurately observed, he has been told about the advantages of moving. One would not expect Ryan’s mother to depict the move in any other way.

Be that as it may, Ryan seems open to the idea of moving, with everything it entails. He must be aware that his time with his father would be different. Fortunately, he has been spared the responsibility of influencing the outcome by his views.

4. The custodial parent’s reason for moving, only in the exceptional case where it is relevant to that parent’s ability to meet the child’s needs.

I have concluded that this consideration does not enter into the analysis. Ms. Arseneault’s reasons for moving are valid and personal. She does not need to account for her decision to form a family along with Mr. Ruel which includes Ryan. Her purpose is not to remove Ryan’s father from his life. If it were, Mr. Ruel would have listed Gander or Comox, B.C. as his first choice for relocation rather than Trenton. Gander was imposed upon him, and indirectly upon Ms. Arseneault. To the extent that Ms. Arseneault’s personal fulfilment impacts positively on Ryan, Mr. Ruel’s posting to Gander impacts on him as well.

The move is neither necessary for Ms. Arseneault to fulfill her parental responsibilities nor is it in any way demonstrative of a failure to do so. The reason for moving is therefore of no moment in the present analysis.

5. Disruption to the child in a change in custody.

The proposed move neither affects custody in the legal parental responsibility sense nor in terms of primary care. This consideration therefore does not affect the outcome of this case.

6. Disruption to the child consequent or removal from family, schools, and the community Ryan has come to know.

This criteria addresses not the extent of the change but the impact of the change. It is the “disruption” that has to be measured and considered.

Granting Ms. Arseneault’s motion would have several immediate consequences. Ryan would change homes, neighbourhoods and friends. He would change schools, teachers and classmates mid-year. He would change teams and leagues in his team sports activities. He would change doctors and dentists. Most importantly, he would go from being away from his father for no more than 6 days at a time to being away from his father for as many as 63 days at a time. He would be, overall, in his father’s care more or less, half as often as he is presently. The changes would be significant. On the other hand, he would be permitted to reintegrate the family unit he has grown accustomed to, gradually, over the past 3 years. Access with his father would not be eliminated. It would be reduced yet modified to allow for longer periods together. Telephone, text and skype access would serve to keep Ryan and his father connected. It cannot be said that living in Gander would be detrimental to Ryan. A great deal of effort was expended at providing the Court with the relative merits of the educational, health, care, social, cultural and economic advantages of Ottawa versus Gander. This evidence has been instructive in assessing whether Gander can offer a comparable lifestyle and standard of living to what Ryan has become accustomed to. It can. The Court cannot be expected to examine and decide the issue of which community offers the best services and opportunities to its residents nor is it required to do so. The exercise is far too subjective and nuanced. There are advantages and disadvantages to any setting in which children are raised. The quality of school services is secondary to the effort of the student in terms of success. The variety offered in urban settings is compensated by the sense of community and civic duty more closely associated with more remote locations. Except in rare cases where allowing the child to remain in one community or permitting the child to move to another would noticeably undermine the child’s wellbeing, deciding the advantages and disadvantages of one community over another does little to decide where the child’s best interests lie.

If permitted to move to Gander with Ryan, Ms. Arseneault could enroll him in a French immersion school, as he is presently. Ryan could be enrolled in various sports activities including hockey. He would have access to suitable medical and dental services. He would be exposed to a new set of neighbours, classmates and friends as he has in the past without any difficulty. The issue being disruption as opposed to simply change, I would conclude that in the major areas of school, friends, sporting and leisure activities and health care, the change would be significant however the disruption would be minimal, due in large measure to Ryan’s adaptability and the continued primary care by his mother and Mr. Ruel.

The Court recognizes that due to the travel schedule proposed regarding access during the school year, Ryan would miss a certain number of days in school. He has for different reasons in the past and has succeeded in school nonetheless. The Court accepts the undertaking by Ryan’s mother to compensate for lost time in school by obtaining assignments in advance to be completed by Ryan while in his father’s care. At his level of schooling, these measures are entirely reasonable, and not uncommon. It will again depend on effort and commitment by Ryan and his parents.

On the issue of access by his father and other family members, the change would be significant, though manageable with the proposed access schedule.

Had Ryan not already become accustomed to being in his mother’s care and in Mr. Ruel’s company, the result would be quite different. Similarly, if regular and extended access between Ryan and his father could not be achieved, the move could prove detrimental to Ryan.

Mr. Byck has raised the issue of finances. Ms. Arseneault could remain in Ottawa alone with Ryan and manage quite well given her income and available capital.

Her situation, financially, would improve if she were to live in Gander with Mr. Ruel and Ryan in a community with a generally lower cost of living, given the combined incomes, Mr. Ruel earning approximately $85,000.00 a year, notwithstanding costs associated with ensuring regular access between Ryan and his father.

Unless financial considerations are particularly consequential, these are relatively minor considerations assuming a reasonably comfortable standard of living can be achieved for the child.

Ultimately, as set out in Gordon v. Goertz, “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, it’s extended family and its community.”

I have concluded that it is in Ryan’s best interests to remain in the primary care of his mother, within the family unit which Mr. Ruel now forms an integral part of and that the maximum possible contact with his father which such an arrangement entails is less detrimental than to deprive Ryan of the family reality he has come to know since he was 4 or 5 years old.

Conclusion

[56] An order made 3 years ago prevents either parent from leaving Ottawa with Ryan without the other parent’s consent or unless a Court orders otherwise. Ryan’s mother would like to establish a new home for Ryan in Newfoundland so that they could resume the family life established in Ottawa with Mr. Ruel. Mr. Ruel’s transfer to Gander was unexpected and involuntary. Ryan’s father is understandably opposed to this plan as he would only see his son half the time he does now and, during some parts of the year, not at all for as long as 9 weeks at a time. Ryan’s father is also concerned about Ryan’s quality of life in Gander. The Court has concluded that there has been a material change in Ryan’s condition, means, needs and other circumstances requiring a new assessment of which custody and access arrangements best serve Ryan’s interests presently. Ryan’s best interests are served by allowing the motion, deleting the non-relocation condition and ordering access as proposed by Ryan’s mother.

[57] This conclusion is based primarily on Ryan’s relationship with his mother who has been his primary caregiver since the separation 5 years ago. It takes into consideration a number of decisions made by Ryan’s father which have reinforced Ryan’s mother’s role as the primary caregiver and the parent who has consistently seen to Ryan’s wellbeing and development. It is influenced by the nature of the relationship between Ryan and his mother and the relationship both have shared with Mr. Ruel for some 3 years.

[58] The decision is facilitated by the comprehensive access proposal made by Ms. Arseneault in circumstances where strict compliance with the access schedule is expected to occur unless otherwise agreed upon. Ultimately, the decision is most influenced by Ryan. He is a very bright and resilient boy. He has adapted to all the changes that have come about as a result of his parents’ separation and certain other challenges that have presented themselves since. More recently, while maintaining a meaningful and beneficial relationship with his father, he has become accustomed to being part of a family that now comprises his mother and her partner. That new dimension of Ryan’s existence is good for him. It should be preserved without hindering the necessary and equally beneficial relationship he has with his father.

[59] The proposal by Ryan’s mother meets all of these objectives to the fullest extent possible in the circumstances of this case presently.

[60] Accordingly, the following orders are made:

1. That paragraph 37 of the Order of the Honourable Mr. Sheffield dated November 17, 2010 be rescinded and an order made that the Applicant, Kimberly Arseneault be allowed to remove the child, Ryan Matthew Byck, permanently from the jurisdiction of Ottawa to reside in Gander, Newfoundland.

2. That paragraphs 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25 and 28 of the Order of the Honourable Mr. Justice Sheffield dated November 17, 2010 be rescinded and the following substituted therefore:

i) One week at Christmas every year;

ii) March break, every year;

iii) Three weeks in July and three weeks in August, every year;

iv) One week in February, every year, to be arranged around a statutory holiday or PA Day;

v) One week in May, every year, to be arranged around a statutory holiday or PA Day; and

vi) One week in October, every year, to be arranged around a statutory holiday or PA Day.

3. That the Order of Mr. Justice Sheffield dated June 13, 2011 be varied in that paragraphs 1, 2 and 3 are rescinded and the following access provisions be substituted therefore:

i) One week at Christmas every year;

ii) March break, every year;

iii) Three weeks in July and three weeks in August, every year;

iv) One week in February, every year, to be arranged around a statutory holiday or PA Day;

v) One week in May, every year, to be arranged around a statutory holiday or PA Day; and

vi) One week in October, every year, to be arranged around a statutory holiday or PA Day.

4. That the Applicant, Kimberly Arseneault, shall encourage and facilitate regular and meaningful communications between Ryan, while in her care, and the Respondent, John Byck, by means of telephone, text messaging, e-mail, social media as appropriate and skype or such similar means of communication as may be available.

[61] Unless the parties are able to agree otherwise, cost submissions, not exceeding two pages in addition to supporting documents may be exchanged and filed no later than 45 days following the release of the orders herein.

Justice Robert Pelletier

Released: December 10^th, 2013

COURT FILE NO.: FC-10-647-2 (Ottawa)

DATE: 2013-12-10

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Kimberly Arseneault Applicant

– and –

John Byck Respondent

REASONS FOR JUDGMENT ON THE APPLICANT’S MOTION TO CHANGE THE FINAL ORDERS OF JUSTICE A. SHEFFIELD, DATED NOVEMBER 17^TH, 2010 AND JUNE 13^TH, 2011

Justice Robert Pelletier

Released: December 10^th, 2013