CITATION: S.C.P. v. J.P.B, 2016 ONSC 1308

COURT FILE NO.: 1994/13

DATE: 2016-02-26

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

S.C.P.

Ms. L. Mazza – Counsel for the Applicant

Applicant

• and -

J.P. B.

Ms. L. Bale – Counsel for the Respondent

Respondent

HEARD: December 9,10,11,14,15, 16 and 17, 2015

The Honourable Madam Justice McLaren

BACKGROUND

[1] The parties are the parents of a child named I.P.B.P. (a girl) who was born on […], 2012. The main issue in this trial was that of mobility, as the Respondent wants to move to an area near Kincardine, with the child.

[2] For convenience, I will primarily refer to the parties as the Father (who is the Applicant and moving party in the motion to change) and the Mother (who is the Respondent). For privacy I will refer to family members and most witnesses by their first names with initials for surnames. The child I.P.B.P. will be referred to as the child or as I.P. When the order is drafted, full names should be used.

[3] The following is a brief history of this matter:

• Father born […], 1978.

• Mother born […], 1979.

• Parties attended high school together.

• Parties began to cohabit.

• The parties married on July 15th, 2005.

• Their child I.P. was born on […], 2012.

• The parties attended post-secondary institutions in Toronto. The Mother obtained a University degree and went on to obtain her teaching degree at University of Windsor. The Father did not complete his program in Toronto, but he went on to study wine making at Niagara College. As of separation in May 2012, the parties were living in Beamsville, Ontario where the Father was an assistant wine maker for a winery in the Niagara Region. The Mother was working as a teacher of the deaf and travelling to different locations.

• The parties separated in May 2012. A Separation Agreement was signed on July 20th, 2012 by the Mother and on August 9th, 2012 by the Father. In this agreement the parties agreed that the Mother would have custody of their child when born. There were other provisions as well. The paragraph on custody and access reads as follows:

6. CUSTODY AND ACCESS:

a) the wife is entrusted with sole custody of the child (to be born on or about September 27, 2012) of the marriage, and the child’s primary residence shall be with the wife, subject to reasonable access by the husband.

b) the husband and the wife each acknowledge that it is in the best interests of the child to have frequent contact with their father and to spend time with him. Accordingly, the husband the wife will each endeavor to make plans for the child to have frequent and regular periods of access with the husband consisting of a combination of both daytime and overnight visits appropriate to the needs and stage of development of the child.

c) in making plans for access the husband the wife will each give the needs and convenience of the child primary importance and will give their own needs and convenience only secondary importance.

d) the husband and the wife will each keep the other fully informed of all matters touching the interests of the child and they will confer as often as necessary to resolve any difficulty raised by or on behalf of the child.

e) if the husband and the wife cannot agree on the time that the child should spend with the husband, either of them may apply under the Children’s Law Reform Act, or any successor to have the right and incidents of access defined.

• Prior to the birth of the child the Mother was living with siblings, who lived in Dundalk and Dundas Ontario.

• The Father commenced an Application in 2013. A temporary order was granted in May 2014 wherein his access was significantly expanded. He was given every Tuesday from after daycare to the beginning of daycare on Thursdays, and also alternate weekends from Friday after daycare until Sunday at 5:00pm. As a result he began having six nights out of every fourteen.

• The parties reached a final agreement and filed minutes of settlement that were included in the Divorce Order on September 30th, 2014. The Mother had sole custody and the Father had generous access. It was slightly different than in the interim order, but was still six nights out of fourteen.

• In February 2015, the Mother advised the Father that she was engaged and wanted to move the child’s primary residence to her fiancé’s home near Kincardine. The Father then brought this Motion to Change wherein he sought custody and primary residence of the child, or an order preventing the child’s residence from being moved beyond Hamilton. The Mother then made a claim in her Response to Motion to Change for an order allowing her to change the child’s primary residence to the Kincardine area.

WITNESSES

[4] The following people testified:

The Father.

Suzanne R. (Father’s partner).

Dorothy B. (mother of Suzanne R.).

Quinn R. (former husband of Suzanne R.).

Stephen P. (the Father’s father).

The Mother.

Troy M. (fiancé of the Mother).

Corrie L. (supervisor at the child’s daycare).

Denise R. (the Mother’s sister).

Shelley M. (sister of Troy M).

[5] I will provide a summary of their evidence.

S.P. (The Applicant Father)

[6] The Father was 36 years old as of the trial, but he would be 37 years old by now.

[7] The parties attended the same high school in Orillia Ontario, and began dating during high school.

[8] The parties lived together while attending post-secondary institutions in Toronto. The Mother obtained a Bachelor’s degree in linguistics at York University. The Father was attending Centennial College during this time, but left his program before he completed it. He said he decided that marketing was not for him.

[9] Further education was pursued. The Mother went to Teacher’s College in Windsor and graduated and the Father studied wine making at Niagara College. He remains one course short in order to graduate from his program at Niagara College as he has to transfer an English course over from Centennial College, but he believes this is just an administrative procedure.

[10] Upon completion of his three year program, the Father obtained work as a qualified wine maker, and he currently works as the assistant wine maker at a winery in the Niagara region.

[11] His current job allows him to take three weeks vacation every year, but not consecutively.

[12] The parties married on July 15th, 2005 in Toronto.

[13] After their time in Toronto they lived in the Niagara area where the Father completed his wine making education and where he found employment. Initially this was in Thorold, but then it was in Beamsville, where they were residing as of separation.

[14] They separated in May 2012 and I.P. was born on […], 2012.

[15] The parties completed a Separation Agreement in 2012. A lawyer in Guelph prepared it and he was the lawyer for the Mother. The Mother signed the agreement on July 20th, 2012. The Father signed the agreement on August 9th, 2012 and had his signature witnessed by his boss. He said he allowed the Mother to have custody but they talked about things and he felt that everything would work out and he would be a very involved parent, and the Mother agreed with this.

[16] He described the birth of the child and said that he heard from a third party about the birth and immediately drove to Orangeville. His sister came with him. He said he was met by security guards and was not allowed to be present for the birth, but he got to see the child afterwards. He said it was a horrible experience and that the maternal grandmother had an encounter with him and called security.

[17] The Father acknowledged that he did not initially pay child support as required in the Separation Agreement. According to the agreement he was to pay $360.00 per month commencing on the first day of the month following the birth. He said he did not pay at the beginning because he had a choice to pay child support or hire a lawyer to pursue better access and he chose to hire a lawyer.

[18] The arrears grew to approximately $3,900.00. He now pays $250.00 per month in basic child support and $150.00 per month towards arrears. He also pays 40% of the daycare expenses directly to the daycare centre.

[19] The Father said it was difficult getting access initially as the Mother only allowed small amounts of time and it was not enough time to take the child to Beamsville. When the child was very young, access was often exercised at his girlfriend’s mother’s apartment in Dundas, because the Mother was living in Dundas. He said he had the child 1½ hours of time per week from October 2012 to August 2013.

[20] He commenced litigation to address the issues and final Minutes of Settlement were signed on September 30th, 2014. At that time the Father was still living in Beamsville and the Mother was living in Dundas. This schedule provided the Father with six overnight times with the child out of fourteen nights, set out over a two week schedule. At an interim motion in May 2014, Justice Broad substantially increased the Father’s access and ordered the Mother to pay $3,000.00 in costs. It was after this motion that the settlement conference was held and final Minutes of Settlement were filed. The divorce was granted that day.

[21] The current litigation is connected to the Father’s Motion to Change to prevent the move to Kincardine, and the Mother’s claim in her Response to Motion to Change for an order allowing the move and a change in the access schedule.

[22] A major concern of the Father was that the Mother did not tell him about the man she was seeing when he signed the Minutes of Settlement in September 2014, and she was dating him then. He said he may have negotiated different terms than he did. He identified an e-mail letter he received from the Mother dated February 13th, 2015. It read as follows:

S.,

I am writing this letter to inform you of changes to our place of residence as of July 1, 2015. This notice is well in advance of our 60 day moving notice in our agreement. I am hopeful with our increasing ability to communicate and discuss amicably that we can come to a mutual agreement through mediation/arbitration about modifying the access schedule.

I am recently engaged to be married to a man named Troy M. We have been together for about a year and a half. He owns a dairy farm just outside Kincardine. It is 177km or just under 2.5 hours from your house. He is the youngest of 4 with 3 older sisters and 6 nieces and nephews. He has extended family living in and around the area.

I would like to begin mediation/arbitration to save us both a lot of time and money in legal fees to solve the necessary new changes to the access schedule. Again I feel positive that in our recent transactions that we can talk this out in mediation to appease both of us as much as possible. Please let me know by February 27, 2015 if you would like to proceed with this route. We can then choose a suitable person to assist us in creating the best solution and maintaining the vital role and relationship you have created in I.’s life.

Thanks.

J.

[23] Given that the Mother was already dating Troy M. when the parties signed the Minutes of Settlement the Father says that he felt duped and tricked. He believes that it will now be a 3½ hour drive and it will significantly lessen the child’s time with him and the other people in his family that are part of his life.

[24] The Father also pointed out that he had to go to significant lengths to get access expanded due to allegations of the Mother and this included a hair follicle test for alcohol and a doctor’s letter regarding any mental health issues. He said there were no concerns and access was expanded.

[25] The Father described the activities the child enjoys while in his care and her relationship with family members. He began living with Suzanne R., his current partner in spring of 2013. The 11 and 13 year old daughters of Suzanne R. were described as being like sisters to I.P. No one uses the word “step” he said. The child is close to both of them. In addition, Suzanne R. and the Father have an infant daughter (born […], 2015) who the child enjoys. They reside in a house with a large backyard in Beamsville. There is a play area in the basement. Suzanne and the father of her two children have an amicable relationship and the Father herein also gets along well with him. Suzanne is currently on maternity leave from her job as a personal support worker.

[26] A few months ago the Father suggested that he and Troy M. meet for coffee in order to get to know each other and a time was arranged, but Troy cancelled.

[27] The Father described his time in the car with the child when he takes her to daycare and picks her up. He says it is a 45 minute drive and they listen to music in the car, talk, and sometimes bring the dog, which the child enjoys. He is afraid that his role will be minimized if the move to Kincardine is allowed. He sees the child as having two residences which are Beamsville and Dundas. He also described activities he does with I.P. and her positive relationship with the other people in his life.

[28] The child is thriving with the status quo and he sees her as being ripped away from him and her family if the move is allowed. He said he has had opportunities for employment in two other Provinces, but he did not pursue it because of the child.

[29] In cross-examination I learned more about the events leading up to the separation. He was asked why they separated and he said that it was not a healthy relationship, he was not happy, and the pregnancy was not planned. He was then asked about an extra-marital affair and he acknowledged that he was having an affair with Suzanne R. while the Mother was pregnant. The Mother found out about it when she was 5½ months pregnant and that the Mother left as a result of this news.

[30] The Father acknowledged that he could not recall notifying the Mother that he would be moving in with Suzanne R. in the spring of 2013.

[31] The Father was asked to confirm the notice of birth and he acknowledged that the Mother called shortly after 6:00am to say she was in labour and he had time to get there prior to the 10:30am birth. He waited a total of one hour to see the child.

[32] The Father acknowledged that the Mother gave him about a one month notice of the baptism and invited him and his family. She chose the godmother (one of her sisters) and he chose the godfather (his brother). He said he would have liked more notice because he has relatives who reside out of town, and he would have liked to have had a choice in the date. He did attend with family members however and participated in the ceremony.

[33] There did not appear to have been an issue over the choice of a Catholic baptism. The parties attended and met at a Catholic high school, and they were married in a Catholic Church.

[34] The Father was asked in cross-examination about his choice to not pay child support for several months. The baby was due to be born in late September, but was not born until […], 2012. The first payment was therefore not due until November 1st, 2012, but he did not have the funds. He agreed with the suggestion that he did not help out with supplies for the baby, even though the Mother was now a single mother relying on her earnings from maternity leave.

[35] He acknowledged that he and Suzanne R. went to Las Vegas when the child was about six months old, but he said that his parents paid for this. He did not dispute that he wanted the $3,000.00 from the costs ordered against the Mother to be paid in full and was not willing to have it credited towards the $3,900.00 in child support arrears.

[36] He was asked if he had depression when the parties were together to the point of needing medication and not being able to get out of bed in the morning and he said yes. He denied that he left Centennial College due to depression. The depression came back again in 2011. He acknowledged that the letter from his doctor dated January 30th, 2014 contained an error. The doctor said that the Father had not required anti-depressants in over ten years, but this was not accurate.

[37] The Father said however that he does not have depression now and he would seek help if he did and is able to manage it. He described himself as a mild to moderate drinker who has a glass of wine with dinner.

[38] Counsel for the Mother pointed out that the Certificate of Analysis for Alcohol, dated April 1st, 2014, showed him with a 47pg/mg alcohol level, which was in the mild to moderate consumption level, but the mild to moderate consumption level was for 25-50pg/mg. The category for excessive consumption was for 50-80pg/mg, so he was close to the category of excessive consumption. He did not think this should be of concern.

[39] The Father agreed that the Mother rarely cancelled visits when the child was an infant, but he did not agree that he cancelled several visits for personal reasons. He agreed he cancelled some however. He also agreed in cross-examination that he went eight weeks without contact shortly after the child was born and after he had an initial visit.

[40] The Father acknowledged making a recording of some of the exchanges but he said he let the Mother know about it, and it stopped around May 2014 when the exchanges took place at the daycare centre.

[41] The witness agreed that he has never owned a home and that Suzanne and her mother own the home that he and Suzanne live in. His income and Suzanne’s are similar. His financial statement was reviewed.

[42] He was asked if he could be in Elora for exchanges which would be about a 1 hour and 34 minute drive for him. He said it was possible, but could be difficult. He was asked why the Mother’s google search showed a total trip of 2 hours and 43 minutes from his home to her proposed new home and his was 3 hours and 30 minutes. He said it could be because he did not know the Mother’s exact address. Her search shows a few scenarios, which range from 2 hours and 43 minutes without traffic to 3 hours and 7 minutes. The maximum time from his home to Elora is shown as 1 hour and 34 minutes which is less, if no traffic.

[43] He was asked in redirect-examination where he thought the Mother would be living after the Separation Agreement was signed. He said he did not think it would be Orangeville and he thought it would be at a midpoint such as Hamilton. He also believed he would have frequent contact with the child including overnight access.

Suzanne R.

[44] This witness is the Father’s common law partner. She graduated from University in 2001. She works full time with adults with challenges and this involves shifts. Her income is about $45,000.00 per year. She has two daughters from her marriage to Quinn R. Those girls are E.R. (now age 13½) and H.R. (now age 11). She has a third daughter from her relationship to the Father herein. Their daughter was born on […], 2015.

[45] We learned from this witness that she separated from Quinn R. in January 2012 and she told him that she was seeing someone else (the Applicant). She said her marriage had already broken down and that while he was initially upset, he was understanding. He lives nearby in Beamsville and they have a good relationship regarding the parenting of their two daughters.

[46] She recalled the time when she introduced the Father to her two daughters. She told Quinn R. by telephone that she was going to introduce them and this was about six months after she and the Father were seeing each other. She introduced them all in a park. It was a short meeting she said and it went well. She said that she and the Father were together about seven to eight months before she met I.P.

[47] The witness described the home she resides in. She owns it with her mother because she needed her on title for the mortgage. She and the Father share expenses. At first, her older two girls shared a room, but now her 11 year and the child I.P. share a room. The house was described as having three bedrooms, but it could be made into four bedrooms.

[48] She sees I.P. as being very attached to the Father and she sees I.P. and her older two girls as having a great relationship.

[49] She said that she and Quinn R. have a written agreement but they make changes when necessary without difficulty. She added that she once had an opportunity to take a job overseas with her brother, but she turned it down because it would be too far for her children and their Dad.

[50] The witness was asked what the impact on her 13 and 11 year old daughters would be if the move is allowed and she said they would be devastated. The three girls are close. There would be an emotional impact on the older two girls if I.P. left.

[51] She said that she and Quinn R. changed their schedule to match the schedule with I.P.

[52] A description of the various activities the girls are involved in was given. The Father was described as an excellent parent who pays attention to the girls’ needs. This witness said she never sees the Father drink to excess and she does not have concerns about him having depression. She remembers him having some anxiety when they met but she knows he would seek help if he developed symptoms of anxiety or depression.

[53] When asked how the move would affect the Father she said he would be devastated and he would be concerned for I.P. being away from him and his family for long periods of time. The child calls Suzanne R.’s mother Nana and is close to the people that are part of her life in Beamsville and the area.

[54] The witness said that she and the Father met while working in a winery. She saw the Mother a few times at functions but only enough to say hello and exchange brief greetings.

[55] The witness acknowledged that the Mother gave permission for her to pick up I.P. from daycare and care for her, but she said this was not always the case.

[56] She was asked in cross-examination about the affair. She said she believed that the Mother learned of it by going through the Father’s cell phone and that this was about a month after she separated from her husband Quinn R. She said she and the Father officially began their relationship in September 2012, which is when they told their families about it. However, when asked when an intimate relationship started she guessed that it was about December 2011. She and the Father moved in together in the spring of 2013. She acknowledged however that in her affidavit sworn on April 30th, 2014, she said that they began cohabiting around January 2013.

[57] She believes that it was probably May 2013 when she first met I.P. and that it was in a park. She agreed that she did not know if the Mother had advance notice of this meeting.

[58] Suzanne R. is currently on maternity leave which will be concluded in May 2016.

Dorothy B.

[59] This witness is the mother of Suzanne R. and is like a mother-in-law to the Father. She works and lives in Dundas. When the child was an infant, Dorothy B. offered her home as a location for access for a while. The Father only had two hours and it gave him a place to spend time with her, change her, etc. She said he was very involved with the child during his visits which increased from once a week to twice a week. She says she still sees the child about once a week along with her two granddaughters and the new baby and she describes all four girls as her granddaughters. She sees the Father herein as a good step-father to the older two girls and as having a very good relationship with the child. He is a good father she said.

[60] She also sees her daughter as being a good step-mother to I.P. She expressed concern about the proposed move because the Father is not a part-time father and it would mean long drives for the child. Her older two granddaughters would then become part-time sisters.

[61] The witness added that she has never seen the Father drunk to excess, and she has never had any concerns about his mental health. She believes that the child would be greatly impacted by a move and she cannot imagine their lives without her. The child would miss her sisters she added.

[62] The witness recalled that she met the Father shortly before the child was born because she wanted to meet the man who was becoming part of her daughter’s life on her own, so she met him for coffee.

[63] Dorothy B. has never met the Mother but she described the child as a lovely child and said that this would be due to both the Mother and the Father.

Quinn R.

[64] Quinn R. is the former husband of Suzanne R. He works full time in Oakville and lives in Beamsville. He is able to work at home some days. He said he has considered moving to Oakville to be closer to his work, but it would change his relationship with his children so he has not moved. He has his children with him at least 40% of the time, but the schedule is flexible.

[65] The witness said that he and Suzanne R. make decisions jointly. He first learned of her relationship with the Father from Suzanne herself. He said he gets along well with the Applicant and says that his two daughters like the Father. He provided an affidavit for the Father in this case in April 2014 wherein he said positive things about him as a step-father to his children. He says he has seen his 13 and 11 year old daughters act like sisters to I.P. during exchanges. One of his daughters apparently said that she prefers it when the Father helps her with her math homework.

[66] He was asked what the impact would be if I.P. were to leave. He said that it would be negative and that the oldest girl would be devastated if she did not have I.P. in her life.

[67] He was asked in cross-examination about the schedule he has with his children and he described a rotating two week schedule, where he would have Monday and Tuesday in one week and Wednesday and Thursday in the second week plus a sharing of the weekends.

Stephen P.

[68] Stephen P. is the father of the Applicant herein and the grandfather of I.P. He has a Bachelor of Engineering Degree and a Master’s Degree in Business. At present he works in New York State. He has been married for thirty eight years and he and his wife have three children, the oldest of which is the Applicant. They come to Ontario to see the Father and their grandchild every couple of weeks and they stay with them. He observes the Father as having a very good relationship with the child and as tending to all her needs.

[69] The witness sees the Father as being involved in activities of all the girls in his home. The older ones are like sisters to the child he said. He sees the combined family of the Father and his partner Suzanne R. as a happy, normal, regular family. The girls play together well. Suzanne R. is like a mother to the child and treats her like her own daughter.

[70] He was asked how a move would impact the child and he said that the Father would be devastated. He needs to see her frequently given her young age, the witness said.

[71] He said that he and his wife did not get to see the child often until the Father went to court to get an order for more access.

[72] The witness was asked about the Father’s mental health and he said that there were issues in earlier years, but he has not seen any sign of this since the child was born. He sees his son as someone who seeks help for health issues. He added that the Father is a different person than he was four years ago. He is happier now and has higher self-esteem. When asked if he has any concerns of the applicant as a father he said “Gosh no – I am very proud of him and the way he is raising four girls”.

[73] He was asked if he sees him being supportive of the Mother’s relationship with the child and he said that he is and that he has never heard him say anything negative about her in front of the child. He felt that both parties do a good job of protecting the child from the adult issues. He believes the Mother is controlling however because she limited access for a long time and he thinks it might be to punish the Father.

[74] In cross-examination the witness said he has never seen the Father drunk while caring for the child. He remembered seeing him drink to excess at a party in 2011, but both parties were drunk. He recalled that the Mother pushed the Father off the deck and that the Father did not fall. Everyone laughed however as it was like a joke.

[75] He was asked if he has seen the Father drink alcohol in the presence of the child. He said he has seen him have wine with dinner, including wine at dinner the night before, but the child was in bed. He said that the Father does not overdo it however.

[76] He was asked about the time he visited the child at the Mother’s home following the baptism and he agreed that the Mother made them welcome.

[77] The witness said that the Mother sent photographs of the child to partially estranged members of the family, but not to him and his wife, and it was embarrassing.

[78] Stephen P. also has two grandsons he is close to; ages 5 and 17.

J.B. (the Respondent Mother)

[79] The Mother described her education background and early years with the Father.

[80] She is 36 years old and has a Bachelor’s Degree from York University and an Education Degree from the University of Windsor. She also obtained her qualifications to teach the deaf at York University and learned American Sign Language.

[81] Upon completion of her education, the Mother became a teacher of the deaf with the Ministry of Education. She works as a resource teacher in a home visiting program. She teaches children in their homes. Her case load has been in the area of Guelph, Waterloo and Kitchener, as well as Grey Bruce County. She said she never had a case load in the Niagara area, except for when someone was on maternity leave.

[82] Her work day is 7.5 hours long, and she usually works from 8:30am to 3:30pm., but it is flexible. A day may include two home visits and a lot of driving. She has been able to schedule her days around picking up the child and dropping her off at the daycare centre so far, and expects to be able to continue to do this.

[83] The Mother pointed out that she and the Father had been together for about fifteen years when she included the time that they dated in high school. She remembered times that he was depressed which included a time in 2001 when they were in Toronto. She said that he would not get out of bed, drank to excess, and dropped out of college. She said that the medication he took was not supposed to be mixed with alcohol. She remembers picking up medication for him regarding his depression in June 2012. She said they both drank alcohol when younger but he kept it up and it was binge drinking. She said he was drinking heavily as of separation and that is why she did not want overnight visits for a while. She was concerned about his lifestyle. She said she smelled alcohol on him twice at the end of a visit. His moods varied.

[84] The Mother described the moment that the marriage broke down. She saw explicit text messages between the Father and Suzanne R. on the Father’s cell phone. She looked because he was keeping his cell phone locked and did not release a password. She became suspicious and took a look when the opportunity arose. She said she was extremely upset because she was 5½ months pregnant and realized that her husband was having an affair. She left and went to stay with one of her sisters the next day. When she told the Father what she saw on the cell phone, he was angry because she was looking at his phone messages, according to the Mother.

[85] The Mother described the pregnancy as planned. She stopped taking birth control and the Father knew this she said. She said she was shocked to hear him say the pregnancy was not planned. He was described as attending one pre-natal class with her, and still taking medication for depression and drinking heavily during the pregnancy.

[86] The Mother described her residences following separation until today, saying that she was like a “travelling hobo” that first summer. The residences were as follows:

• She left the matrimonial home in Peninsula Ridge in May 2012 and went to her sister Kim’s home in Georgetown, but a lot of her things were stored at her brother’s home in Dundalk. She stayed at Kim’s home from late May 2012 until June 2012.

• During the summer of 2012 she spent a few weeks at her parent’s cottage north of Belleville and she went to her parent’s house in Gravenhurst for a while.

• She got a room ready for the baby at her brother’s home in Dundalk and lived there for a few weeks. However, her brother ended up selling that home.

• Since the home in Dundalk sold, the Mother moved to her sister Denise’s home in Dundas, but stored some things at Kim’s house in Georgetown. This was a week before her due date.

• In February 2013 she and her brother bought a house in Dundas, but this will need to be sold because he needs his equity.

• The child was born at the hospital in Orangeville because it is the closest one to Dundalk where the Mother was living when preparing for the birth and it is about half an hour away from Orangeville. The Separation Agreement was signed by the Mother on July 20th, 2012 and by the Father on August 9th, 2012. It was prepared by a lawyer in Guelph. The Mother said that at the time she signed it she was staying at her sister’s home in Georgetown, spending time with her parents in Gravenhurst and north of Belleville, and she had her belongings in Dundalk.

[87] The Mother described the birth of the child. She said it was never part of the plan that the Father would be in the delivery room, but she wanted him to be in the room after the birth and he was there for a while. She acknowledged receiving e-mail letters from the Father enquiring about everything before the birth.

[88] A description was given of the visits the Father had when the child was a new born. He came to the hospital the day of the birth and the day after. There were some visits between the birth in October 2012 and Christmas. He could have come more often. She was breast-feeding at the time. She said that his visits became more structured in January 2013. The visits then included some time after work on a Tuesday or Wednesday and some time on Sunday. The Sunday visits started at her home and then they were held at the library. The Sunday times increased when the child would take a bottle.

[89] She mentioned times when the Father’s parents were invited to see the child. Shortly after the child was born, she invited them over, and put some refreshments out. They were left alone with the child and she went upstairs. She said they stayed about thirty minutes, but could have stayed longer. She invited them to come the next day but they said they had plans.

[90] The Mother acknowledged in cross-examination that the Father took an infancy CPR course and a parenting course.

[91] She also acknowledged that the Father voluntarily got a hair follicle test done and overnight access was ordered. This was with a provision that no alcohol be consumed. She said she was shocked at the decision from the motion initially because she thought access would increase more gradually. However, she does not have access concerns now and has not raised any through counsel.

[92] The Mother described her religious practices. She takes the child to church and they say prayers at night. The child was baptized at four months of age. She said that she and the Father sometimes attended a Catholic Church together and sometimes the Father attended her church in Dundas after the child was born and saw I.P. there. There was never any dispute over the choice of the Catholic Church she said. Both families participated in the baptism.

[93] The Mother said that she first met Suzanne R. when she and the Father worked at the same winery. She saw her if she stopped by at the end of the day, and also at a work related Christmas party. She believes that Suzanne has a good relationship with the child and is a good support for the Father. She did not learn that they were living together until July 2013 however.

[94] She said she learned of Suzanne and the Father’s expected child when she wrote to advise of her engagement and planned move. The Father mentioned Suzanne’s pregnancy in his response.

[95] The Mother said that the reason she sent photographs to some relatives of the Father in England because they asked for them. She sent the paternal grandmother a photograph of the child in an outfit that was a gift from her.

[96] Evidence was given of the Mother’s efforts to keep the Father and his family present in the child’s life when the child is in her care. Examples are:

• She found a photograph of the Father and Suzanne R.’s new baby (I.P.’s sister) in I.P.’s bag and put it up in her room.

• When the new baby sister was born she had I.P. help to make a card and pick out a gift for the baby, and wrap it.

• She has a picture of herself with the Father on the child’s wall in her bedroom so that I.P. can see that her parents were together at one time. The Father is in pictures in the baby album she has made. We heard that she sent a photograph of herself and I.P. in I.P.’s bag when she was going to her Father’s, but that photograph was returned. She said she was not concerned about this however.

• She has also told the child about the history of her surname which is the Father’s name and she has made inquiries about the Father’s family history for the baby album.

[97] The Mother described her routine with the child. She is involved in the daycare. The child has had gymnastics lessons and swimming lessons. The Mother keeps a large weekly calendar for the child so she can see the days of the week she is with Mom and the days she is with Dad. She described the child as enjoying the farm. We saw the “Experience Books” the Mother makes with the child that are based on activities they have engaged in (such as making apple sauce, going to Santa’s Village, etc). She gives the child healthy food.

[98] The Mother said she met Troy M. through friends in the fall of 2013 and the relationship grew slowly. He proposed at the beginning of February 2015. She said he is very good with the child and they are bonded. Troy is close to his parents and sisters and they visit often. His parents live “just down the road”. They have not set a wedding date yet, but hope to be married in 2016.

[99] The Mother gave her opinion that it would be impossible for Troy to move because his livelihood is based on the farm. If she is not allowed to move she will stay with the child in Dundas.

[100] She acknowledged in cross-examination that she did not notify the Father when the child started staying on the farm overnight and she did not inform him that she was dating Troy. The child started going to the farm in 2014. She said that she did not mention Troy when the parties were negotiating in September 2014 because it was still early days and she did not know where the relationship was going.

[101] She denied in cross-examination that she did not tell the Father about Troy when the Minutes of Settlement were negotiated and signed because it might have affected the outcome. The Minutes of Settlement were filed on September 30th, 2014 and she notified the Father about her relationship with Troy (and plan to move) in February 2015.

[102] The Mother described the child as one who has no problems making friends and who will likely adjust well to a new daycare centre. The child is in good health and doing well. The Mother described some courses she took regarding child development.

[103] She informed the court of facilities in Kincardine. She has located a daycare and checked out schools. She has looked into extra-curricular activities. The child will be in junior kindergarten as of September 2016. The Mother has looked into doctors and dentists in Kincardine. The Mother has health benefits through her work and this covers 85% of medication.

[104] She was off work on maternity leave for one year following the birth of the child. In September 2013 the child was in two local daycares, but as of February 2014 it was the YMCA daycare five days a week. However, during the summer when she was off work, she did not need daycare. She said she will not need the Father to contribute to daycare if she moves because she has found one that operates on a per diem basis. As such, each parent can cover any daycare needs while the child is in his or her own care.

[105] Financial issues were discussed. The Mother said it was difficult when the baby was born and prior thereto as the Father never contributed to any baby supplies. In addition, although he agreed to pay $360.00 in child support per month commencing on the first of the month following the birth of the child he let months go by without contributing anything until he was about $3,900.00 in arrears. She described him as having an “absent role” in terms of financial preparation for the baby. It was noted by the Mother that the $3,900.00 in debt was for the first year and a half of the child’s life. She learned that the Father went on a trip to Las Vegas during this time.

[106] The Mother earns about $75,000.00 per year and contributes $100.00 per month towards a Registered Education Savings Plan for the child. She said there is about $4,000.00 in this fund now.

[107] The Mother said that she and the Father struggled with debt when they lived together and she took over paying this off. She is doing better now and has decreased her debt.

[108] After the parties went to court payments became regular. On May 16th, 2014 the Father was ordered to pay $387.00 per month based on an income of $42,846.00 and $125.00 per month towards arrears.

[109] In September 2014, the parties signed Minutes of Settlement wherein the Father would pay $250.00 per month, which was an agreed upon amount. She said she agreed to this reduced amount because of the Father’s increased driving time (Beamsville to Dundas and back), his finances, and the fact that he had arrears to deal with.

[110] In addition the Father began paying 40% of the daycare expense directly. The parties withdrew from the Family Responsibility Office and the Father began paying directly to the Mother.

[111] The Mother is not seeking a change in child support.

[112] A map was provided by the Mother showing the locations she has lived in, in relation to the farm (which is actually not as far as Kincardine). She believes that a drive from Beamsville to the farm is only about 20 minutes longer than a drive from Beamsville to Dundalk, which is where she was going to be living when the parties signed their Separation Agreement.

[113] A question was asked about the Father’s comment that when they signed the Separation Agreement he thought she (or they) might settle in Hamilton. She replied that this made no sense. At the time the agreement was signed their residences were Beamsville and Dundalk.

[114] She is proposing a mid-point for exchanges in Elora. A google map search was produced which shows three routes from the Father’s home in Beamsville to the farm. The routes show a distance of 226km, 236km and 246kms. The 226kms route shows a time of 2 hours and 43 minutes without traffic, and 3 hours and 3 minutes otherwise.

[115] A google map search for Elora was produced. It also showed three routes. The fastest time from the Father’s home in Beamsville to the general area of the Tim Horton’s in Elora was shown as 1 hour and 22 minutes without traffic and 1 hour and 34 minutes otherwise. This is for an 113kms drive.

[116] The Mother acknowledged that in her Response to Motion to Change form, she said that she moved to Dundas from Dundalk to be closer to the Father. However, she pointed out that she also said Dundas was not intended to be a permanent location and she needs to sell the home she owns with her brother in Dundas. She said it was a benefit to the Father that Dundas was closer to him than Dundalk, but she had to make a decision quickly when she was nine months pregnant and had nowhere to go once her brother’s home sold.

[117] The Mother said that both she and the Father love the child dearly and she does not think that the move will jeopardize the child’s relationship with her Father.

[118] She pointed out that both she and the Father are happy in their new relationship and the child can only succeed if both parents are happy. She does not think her plan will prevent the child from having activities but they will work around the schedule.

Troy M.

[119] Troy M. is the fiancé of the Mother. He is 40 years old, has never been married before, and has no children. He has lived in Kincardine his entire live with the exception of three years spent at the University of Guelph where he obtained a diploma in Farm Operation and Management, and in Agriculture Business. He was at home for the summer vacations during these courses, which were in 1994 to 1996 and 1996 to 1997.

[120] He described his extended family, which is large as his father was one of fifteen children and his mother was one of twelve children. His parents bought a farm in 1966 and he was raised there. He now lives in that original farm house and his parents reside one km away. He said that he has a lot of relatives who live in the area and who farm.

[121] The witness said that his parents are 69 and 72 years old. He has three older sisters who come back to the farm often to visit. Through them, he has six nieces and nephews.

[122] The farm that was purchased in 1966 was described. It has three livestock facilities and three storage facilities. It is a 250 acre dairy farm and there are one hundred cows. There is also an additional 110 acres that are rented which are used for crops, and Troy’s parents live there.

[123] In 2007 this witness and his parents engaged in some real estate planning and he took over the operation. He is the president of the corporation now. His dad is the vice-president and his mom is the secretary.

[124] He said that when his nieces and nephews come, they stay at his house and his parent’s house. They enjoy walks through the trails, wagon rides, apple picking, visits to the barn, etc.

[125] As a farmer, his day starts early and he is up at 5:15am. He last feeds the cows at about 8:30pm or 9:00pm. He does the work by himself for the most part, but has a part-time helper and he also receives help from his father. He keeps an office in the farm house and is “basically tied to the farm”.

[126] When he needs to leaves town, (for a show of cows for example) he makes arrangements ahead of time. He pointed out that he always has a cell phone on him because he can conduct some of his business by text messages. A labourer is there about four nights per week, but he does not do milking. He said that he has a retired dairy farmer handling the farm while he was at court to give evidence.

[127] The witness said that he and his family are vigilant about safety. The children who come are given rules about where they can and cannot go and the rules are repeated. For example, they are not allowed to go to the barn without an adult. Mechanical equipment is locked up.

[128] Troy was asked about his relationship with the Mother. He said they met through a friend in September 2013 and their relationship progressed slowly. He said that the child first visited the farm in February 2014 when she was there for the day. He said she was very excited to see everything and has a favourite cow. She first stayed overnight at the farm in September 2014. The farm house has five bedrooms and the child was allowed to choose which one she wanted. It is now her room and it was painted purple and has stuffed animals in it. The witness described the child as being very excited to see the farm the first time and to see her room the first time. He said she always appears excited when she arrives and right away she wants to see the cats and cows.

[129] He observed the Mother to always put the child first. He describes the Father’s role as being “unbelievably important.” They tried to meet once but he said he had to cancel, so they introduced themselves at court that day. The witness said he wants all of them to get along.

[130] When asked what the prospects are that he could be the one to move he said it would be impossible as his business would no longer be viable.

[131] The witness was asked in cross-examination how he could handle emergencies or last minute changes in his schedule. He said he can handle an hour and half without much notice. In an emergency some tasks can be put off.

[132] He acknowledged that he has not parented before. He thinks of the three of them as a family however and says he loves the Mother with all his heart. He cannot move however as his livelihood cannot be moved and that is how he would support the family.

[133] When asked about the child’s time with the Father being drastically cut, he said that the adults will have to make it work. Changes happen as the child gets older anyway he said.

[134] He was asked when the relationship became more serious and he said it was around Christmas 2014 with an engagement in February 2015.

[135] The reason he had to cancel his meeting with the Father was because he had to complete the harvest in accordance with Ministry guidelines and he was delayed.

[136] The witness acknowledged that the transportation for the exchanges would be a lot longer than the 45 minutes they are now. He believes it would be 2 hours and 45 minutes which he learned from a google map search.

[137] The witness confirmed that both of his parents drive and many other relatives live nearby. About forty five of them live within a ten to fifteen minute drive. Of these, there are about ten he could ask to come and help in an emergency. In addition, there are dairy farmers next door who always help out he said.

Corrie L.

[138] Corrie L. is the supervisor at the child’s daycare centre in Dundas. She described the centre and said that the child began attending there in February 2014. The child was described as being a very loving and caring child who makes friends with other children. It was her observation that the child is more affectionate with the Mother in that she is more clingy when the Mother leaves and her hugs and kisses are longer. She gives a quick hug and kiss to the Father, but she does go readily to the Father.

[139] The Mother is a member of the Parent Advisory Committee she said. She has not seen the Father attend any school functions but she has seen the Mother attend functions. An e-mail newsletter is sent out to the parents advising them of the functions.

[140] The witness was asked if there was anything that would make her think the child would have trouble transitioning to junior kindergarten and she said no. She also had no concerns about the child making new friends in junior kindergarten.

[141] In cross-examination the witness identified an e-mail letter that went out to the Father on March 31st, 2015 wherein she said:

“She (the child) has adjusted well to our centre and her home lives, we haven’t noticed anything out of the ordinary between either homes”.

[142] She also acknowledged that she likely does not see all of the moments when the child says goodbye to her Father.

Denise R.

[143] This witness is a Registered Nurse and the second oldest of the four children in the Mother’s family. She resides in Dundas. She knew the Father in high school in Orillia.

[144] The parties herein lived with Denise and her husband from January 2004 to August 2004. She said that she noticed the Father drinking an unbelievable amount of alcohol while he lived in her home. Once he looked after her two young children on his own for about two hours and she was surprised to see that he had a couple of beers while he was there with the children. She remembered her sister being stressed out because they were having trouble paying household bills, but the Father would still buy alcohol. She felt that the Father always looked sober however.

[145] She was at a family event once where she saw the Father fall off a deck while drinking.

[146] This witness received a telephone call from the Mother just after she discovered that the Father was having an affair. She said that the Mother was extremely upset, pregnant, and uncontrollable. She later learned that the Mother had been concerned for a while about the Father’s drinking and mental health.

[147] Denise R. spoke about the birth of the child. She received a telephone call in the middle of the night and she and her mother went up to Orangeville. She said that her sister said that she did not want the Father in the room for the birth, but he could come in after to see the baby. She said this plan was known in advance and relayed to the Father who was called at 6:30am. He arrived just before the birth. The Father went in after the birth and was able to hold the baby. The witness said he was there for most of the one to two hours that the Mother was in surgery to repair a tear. She said that as she left, the Mother and Father were alone with the child.

[148] The plan after the birth was that the Mother was going to live with their brother in Dundalk, but he sold his house so she and the child came to live with her in Dundas in her finished basement. She paid about $200.00 in rent each month and paid for her own groceries and hydro. This arrangement lasted until February 2013.

[149] Denise remembers a time about a week after the child’s birth that the Father and some family members were invited to come and see the baby. The Mother put some snacks out and left them alone. They called her down about ten or fifteen minutes later to help with something and left after a total of about thirty minutes.

[150] The Mother did not hear from the Father until shortly before Christmas. He and his father came for a visit and stayed for a brief time and called for the Mother to come downstairs when the child cried.

[151] In total, the Father saw the child twice between the birth and Christmas. The Mother invited the Father to come back to the house after Christmas Eve Mass in Dundas that year. He went to Mass but did not go back to the house.

[152] Visits increased in the New Year but the Father cancelled often according to the witness. She said she never heard him express dissatisfaction with the length of the visits.

[153] Denise R. said that the baptism went well. There was no conflict and the two families spoke. The Mother invited the Father and his family back to the house after, but they said they had plans.

[154] Denise added that it was great to see her sister come alive again after meeting Troy M.

[155] She was asked in cross-examination if the Mother also consumed alcohol when she and the Father lived with her and she said yes, but that her sister is older now and has changed her life.

[156] She was asked if she knew if the pregnancy of the child was planned and she said she believed it was.

[157] She said she did not know why she was called in the middle of the night regarding the child’s birth but the Father was not called until early in the morning. She also acknowledged that the Father ultimately started a court action for more access.

[158] The witness said that her older sister Kim is married to a dairy farmer and she acknowledged that the Mother herein would know when she met a dairy farmer that she would have to move if a relationship developed.

Shelly M.

[159] This witness is the oldest of Troy M.’s three sisters. All three sisters live in Kitchener with their husbands and children. She said that all the siblings and their families return to the farm house for long weekends and other times as well. She described the activities they like to do. In the fall this includes apple picking; hay rides, and walks in the woods. She described the family as close and always being there for one another. She described her brother as being very trustworthy and loyal. He maintains a very close group of friends from high school and university.

[160] The six children of the three sisters were all adopted and she said they all enjoy being with Troy at the farm. He got little brooms for them so they could help sweep in the barn. He keeps about thirty pairs of rubber boots in different sizes for the children to wear. He keeps toys on hand for the children when they visit.

[161] The family has become close to the Mother and the child.

[162] She was asked in cross-examination if the Father’s relationship with the child will be impacted by the proposed move. The witness said that in her view the relationship would not change. It will be an adjustment but the bond will still be there. She could not recall when she first met the Mother and the child.

CASE LAW

[163] I was referred to the following authorities by counsel for the Father:

A. Divorce Act, R.S.C. 1985, c. 3(2nd Supp.). Section 16.

B. Children’s Law Reform Act, R.S.O. 1990, Chapter C. 12. Section 24.

1. Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] 2 SCR 27, [1996] SCJ No. 52.

2. Berry v. Berry, 2011 ONCA 705, 2011 CarswellOnt 12190.

3. Jamieson v. Jamieson, 2008 ONCA 675, 2008 CarswellOnt 5816.

4. Woodhouse v. Woodhouse, 1996 CanLII 902 (ON CA), [1996] OJ No 1975, 1996 CarswellOnt 1906.

5. Dacaen v. Dacaen, 2013 ONCA 201, [2013] OJ No. 1549.

6. MacPhail v. Karasek, 2006 ABCA 238, 2006 CarswellAlta 1035.

7. M(B) v. M(C), O.J. No 1432, 1998 CarswellOnt 1390.

8. Brooker v. Gobeil, 1999 CanLII 14167 (MB QB), 1999 CarswellMan 235, 136 Man R (2d) 254.

9. Meijers v. Hasse, [2007] OJ No 2506, 2007 CarswellOnt 4057.

10. Beslisle v. Beslisle, 2000 CanLII 22470 (ON SC), [2000] OJ No 4744, 2000 CarswellOnt 4735.

11. Frayne v. Frayne, 2006 ONCJ 310, CarswellOnt 5303.

12. Tumino v. Tumino, [2002] OJ No 4696, 2002 CarswellOnt 3089.

13. Sidky v. Sidky, [2005] OJ No 1844, 2005 CarswellOnt 1812.

14. Doucette v. Doucette, 2012 ONCJ 659, 2012 CarswellOnt 13171.

15. Winterbottom v. Lis, 2012 ONSC 5863, 2012 CarswellOnt 12863.

[164] I will provide a brief summary of the above cases.

[165] Gordon v. Goertz is the leading case on the issue of mobility as it is a Supreme Court of Canada case. In this case the mother had custody of the parties’ child. Two years after obtaining a custody order the mother advised the father that she planned to move to Australia with the child to study orthodontics. An order was made allowing the move and it was upheld on appeal. The father appealed to the Supreme Court of Canada.

[166] The court held that the parent applying for a change in the custody order must first establish that there has been a material change in circumstances. Once that threshold has been made, the judge then conducts a fresh inquiry into what is the best interests of the child. The decision to allow the move was upheld.

[167] A good summary of the law was given in paragraphs 49 and 50. Speaking for the court, Justice McLachlin wrote as follows:

49. The law can be summarized as follows:

50. 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.

51. 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.

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

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

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

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

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

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

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

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

(d) the views of the child;

(e) the custodial parent’s reason for moving, only in the exceptional case where it is relevant to that parent’s ability to meet the needs of the child;

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

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

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

[168] Berry v. Berry is a 2011 Ontario Court of Appeal case. The mother’s request to move with the child from Toronto to Kingston was ultimately refused. The court quoted from Gordon v. Goertz.

[169] It was concluded that the trial judge who allowed the move, failed to give sufficient weight to the principle that a child should have as much contact with each parent as is consistent with the child’s best interests. Speaking for the court Justice Juriansz wrote as follows:

“12. In particular, the trial judge failed to give sufficient weight to the principle that a child should have as much contact with each parent as is consistent with the child’s best interests. Instead, the trial judge’s reasons focus almost exclusively on the mother’s reason for moving. 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-centred perspective.”

[170] The court also held that the trial judge erred in considering the case a choice between a life in Kingston or Toronto when the mother said in her evidence-in-chief that if her application was refused she would live in Toronto.

[171] Jamieson v. Jamieson was provided as an example of a case when the court noted that in a case where all things seem equal, the parent who is most likely to facilitate contact should have custody.

[172] Woodhouse v. Woodhouse was 1996 Ontario Court of Appeal case. The court upheld the trial judge who did not allow the mother to move to Scotland. The court noted that the legal status of the relationship between the child and the parent is not in itself determinative of the best interests test. The court must examine the benefits of the new location against the continuance of full contact with the access parent and that parent’s extended family.

[173] Speaking for the court Justice Weiler also said at paragraph 38:

“One of the factors a court should carefully assess before limiting a custodial parent’s decision to move with the children is the economic effect of its decision on the children.”

[174] The court noted in conclusion that the connection between the best interests of the children and the custodial and non-custodial parent will vary from case to case.

[175] Dacaen v. Dacaen is a 2013 Ontario Court of Appeal case. The Court of Appeal upheld the decision of the trial judge to deny a move by a mother from Sudbury to Mississauga with 8 year old twins. The Office of the Children’s Lawyer were involved and provided conflicting view and preferences from the children as time went on. The Court of Appeal felt that the trial judge adequately reviewed the test in Gordon v. Goertz in coming to a conclusion that the move must be denied.

[176] MacPhail v. Karasek is a 2008 Alberta Court of Appeal case. The parents separated before birth and then lived in separate cities. The father obtained custody at trial. The Court of Appeal overturned the decision and one reason was that the trial judge failed to consider the effect of separation the child would have from her older half-sister who lived with the mother and who had been in her life since birth. (The mother had also been her primary caregiver the first two years of her life). There were step-siblings in the father’s home, but the child had been part of the life of the older half-sister in her mother’s home since she was born.

[177] The trial judge was deemed to have erred in failing to weigh the effect of separation of the two (half)-sisters in assessing the child’s best interests.

[178] M(B) v. M(C) is a 1998 Ontario Court of Justice (General Division) case. The Father was granted custody because the judge was concerned that the mother would marginalize the other parent and in fact the presence of the father in the child’s life would be abandoned. The mother had spent days in the witness stand criticizing the father and was found to have engaged in very negative behaviour regarding the father (such as swearing at him and making rude gestures) in front of the child. The father was found to not be as angry or belligerent towards the mother and he tried to be accommodating.

[179] Brooker v. Gobeil is a 1999 Manitoba Court of Queen’s bench case. The father was awarded custody. Both parents had new partners but the mother’s new partner made the child uncomfortable around him. The court felt that the mother, who was a good parent on her own, was not able to put her daughter ahead of her new partner.

[180] Meijers v. Hasse is a 2007 Ontario Superior Court of Justice case. The mother in this case wanted to move to the Netherlands (where she was from) with the couple’s two children. She was not allowed to move. The children (two boys ages 5 and 6) spent an equal amount of time with their father and the parents had joint custody.

[181] This case was provided as an example of the court finding that the move would be too disruptive to the children’s relationship with their father. The relationship between the mother and her new husband in the Netherlands was considered untested as they had never been together for more than three weeks at a time. It was also noted by the court that the technological means of communication such as Skype was not a substitute for regular physical contact.

[182] Beslisle v. Beslisle is a 2000 Ontario Superior Court of Justice case. This case was provided as an example of one where the mother was given custody but not allowed to move with the child. The child would be cut off from familiar surroundings for the sake of a new untested relationship. Both parties were living in White River and the mother wanted to move to a town near Thunder Bay.

[183] The court noted the relationship the child had in White River with an older half-sibling and extended family in White River.

[184] Frayne v. Frayne is a 2006 Ontario Court of Justice case. The mother wanted to move from St. Mary’s, Ontario (where the children had always lived) to Michigan. There was no agreement or order in place. The court was unable to find that the move would be positive for the three children. The mother’s new fiancé in Michigan was in the midst of his own custody battle. It was unknown if there would be a home suitable for the mother and the three children. The move would mean that the mother would have to leave her job. Justice Rogerson concluded that the move was premature and not a well thought out plan and she denied leave to move at that time.

[185] Tumino v. Tumino is a 2002 Ontario Superior Court of Justice case. A move from Toronto to North Bay to pursue a relationship was not allowed as the two children ages 10 and 8 were enjoying frequent contact with their father. An existing agreement said that neither parent would move from the greater Toronto area for five years. There were three years remaining in the five year period. There was a fear expressed by the judge that over the years the children might not want to travel the long distance very often and they had a healthy and strong relationship with their father.

[186] Sidky v. Sidky is a 2005 Ontario Superior Court of Justice case. The children had established routines in London, Ontario and the mother wanted to move with them to Barrie, Ontario to be near her family. The move was denied. Justice Rady noted that the mother had very negative feelings toward the father and she felt that she might not foster a father and child relationship after the move.

[187] Doucette v. Doucette is a 2012 Ontario Court of Justice case. The mother wanted to move to a location near Ottawa that was a three and a half to four hour round trip drive away to live with her new partner (which was the main reason) for the move. The case involved an interim motion to prevent the move by the father. The court did not allow the move. One reason was that such a move should not be allowed on a temporary basis unless there was a strong possibility that the mother would be successful at trial. Another reason was that the father’s frequent access would be impacted by the round trip of at least three and a half hours. There was also no evidence of better employment being available. It was also felt that there were too many unanswered questions as to what was best for the children.

[188] Winterbottom v. Lis is a 2012 Ontario Superior Court of Justice case. The mother wanted to move from St. Catharines (where both parties and many relatives lived) to Kingston, Ontario to be with her new husband who was in the military. Justice Walters denied the move and noted that the mother appeared to give little thought to the disruption to the child. There would be over four hours driving time involved to get to Kingston. The child has extended family on both sides in St. Catharines and the parents had a nearly equal time sharing.

[189] The judge also pointed out that in the military the new husband might be moved again. He had a contract to be in Kingston for another two years. The child was thriving where he was.

[190] I was referred to the following authorities by counsel for the Mother:

A. Divorce Act, R.S.C. 1985, c.3 (2nd Supp.). Section 17 (1), (5) and (9).

B. Children’s Law Reform Act, R.S.O. 1990, c.C.12. Section 24.

1. Gordon v. Goertz, [1996] S.C.R. 27 [Excerpts only].

2. Bjornson v. Creighton (2002), 63 O.R. (3d) 236 (Ont.C.A.); leave to appeal to S.C.C. refused, 29558 (April 17, 2013).

3. Rokel v. Kent, 2011 ONSC 4034.

4. Prokopchuck v. Borowski, 2010 ONSC 3833.

5. Del Net v. Benger, (2003), R.F.L. (5th) 170 (Ont S.C.).

[191] I will provide a summary of the above cases.

[192] A summary of Gordon v. Goertz was given earlier.

[193] Bjornson v. Creighton is a 2002 Ontario Court of Appeal case. In this case, a trial judge granted a mother custody after separation but refused to allow her to move to Alberta with the child, which is where she grew up and had worked as a registered nurse, specializing in cardiology and intensive care. She had part time work as a nurse when she lived in Ontario and did not have the seniority she had in Alberta. She would work straight days in Alberta instead of shifts which were good for the child. The court found that the trial judge erred in reducing the issue to that of employment. If she moved she would earn more and it would free her of her financial dependence on the father. She had other reasons to return to Alberta besides employment. She was lonely in Ontario and missed her friends and close knit family, all of whom were in Alberta. She only moved to Ontario to be with the father of her child when she learned she was pregnant. He had moved to Ontario by then. They separated when the child was a few years old.

[194] The mother’s appeal regarding the move was allowed.

[195] Counsel for the Mother referred to some excerpts from this case, wherein Justice Austin said as follows:

[28] … In this case, the child’s best interests are better served and better achieved by a well-functioning and happy custodial parent, operating at her full potential.

[29] In Gordon, the Supreme Court of Canada reiterated that the best interests of the child test governs relocation disputes. Ultimately, the only issue is what is in the best interests of the child. In determining this, careful attention should be paid to the potential negative effects on the child should the custodial parent be restricted from relocating. Likewise, careful attention should be paid to the potential positive effects on the child should the parent be permitted to relocate. (Woodhouse v. Woodhouse (1996), 1996 CanLII 902 (ON CA), 29 O.R. (3d) 417, 136 D.L.R. (4th) 577 (C.A. per Weiler J.A. at p. 439 O.R., p. 597 D.L.R.).

[34] While the “maximum contact” principle does apply and is an important one, it is not absolute and it remains one factor in the whole of the analysis. It ought not to be treated as the governing factor. …

[35] The trial judge’s focus on ready access, almost to the exclusion of consideration of the child’s contact with the mother and, as I have indicated, almost to the exclusion of the mother’s views, resulted in a less than complete consideration of the impact of the move on the child’s best interests.

[45] The views of the custodial parent, despite the Supreme Court’s rejection of a legal presumption in their favour, remain a very important consideration in any analysis of the best interests of the child. Moreover, the views of the custodial parent are a factor which the Supreme Court of Canada considered significant enough to single out as being worthy of “great respect” and “the most serious consideration”. …

[51] I accept that a move to Calgary will reduce the amount of time father and son would spend together. As I have indicated, it does not necessarily follow, however, that the move would not be in the best interests of the child. …

[196] Rockel v. Kent is a 2011 Ontario Superior Court of Justice case. In this case a mother of a 5 year old child was allowed to move from Ontario to Virginia. She met a man from Virginia and they married. He was described as having a good paying job in the U.S.A. and not one that would be available in Canada. The child had been on visits to Virginia and made friends there. A child was born to this new union.

[197] The father in this case (Mr. Kent) did not co-operate with the custody and access assessment and he was found to be controlling.

[198] A review of the relevant sections of the Children’s Law Reform Act was given.

[199] The move was allowed. Justice Gordon wrote at paragraphs 123, 125, 126, and 127 as follows:

[123] Ms. Rockel is in a new and stable relationship. Her reasons for re-locating focus on family, particularly the employment of her husband. Financial stability will only occur if she is permitted to move to Virginia; otherwise, she will stay here with both children in a situation of serious economic constraint.

[125] Relocation allows the family to stay together. Regardless of my decision Mr. Rockel must return to Virginia.

[126] These factors will affect Keira. She will benefit from a close, family relationship on Virginia. There will be financial independence that will have a positive impact on her. Remaining in Ontario will have the opposite result.

[127] Keira is young and will adjust. She already has friends in Virginia. Contact with friends and extended family in Ontario can be maintained during extended visits with her father.

[200] Prokopchuck v. Borowski is a 2010 Ontario Superior Court of Justice case. Justice Quinlan allowed a move from Ontario to Alberta for similar reasons as found in Bjornson v. Creighton. It was noted that the mother was moving for emotional reasons and that the new life with a well-functioning and happy custodial parent would be beneficial to the child. The move was also seen to have had a financial benefit.

[201] Del Net v. Benger is a 2003 Ontario Court of Justice case. A move of 88kms was allowed. The mother was engaged to be married. The move would change the access schedule for the youngest child, age 8½. The child was 18 months old as of separation and had been in the primary care of the mother since then.

[202] In the opinion of Justice Flynn, there was no reason to change the primary residence of the child over this move, and the mother was as much entitled to her happiness as the father. Justice Flynn felt that the move based on all the evidence, would be less disruptive than a change in custody.

SUBMISSIONS

The Father

[203] Submissions made on behalf of the Father included the following points:

• He had no choice but to bring his matter to court by way of a Motion to Change when he learned that the Mother planned to change the child’s primary residence and move significantly further away.

• The onus is on the Mother to demonstrate that the move is in the child’s best interests and she has not done so. The reasons for her move should not take priority over the principle of maximum contact with the other parent.

• The extra martial affair of the Father should not be a factor. It was brought up repeatedly as an attempt to divert the court from the real issue which is the best interests of the child. The relationship with Suzanne never impacted the Father’s relationship with the child in any event.

• Both parties drank heavily at one point and neither do now, so this should not be a factor.

• The Father has shown that he knows how to handle depression and he has not had any symptoms of depression since April 2013.

• The fact that the Father was behind in child support initially is not relevant now. He said he was behind due to mounting legal fees. He was able to arrange a payment schedule and he has been on time with his payments since the parties dealt with this in court.

• The original Separation Agreement contemplated access and a combination of daytime and overnight visits. Once the child was born however access was not frequent and the Father had to bring a motion for increased time. He was successful on the motion.

• The Mother moved from Dundalk to Dundas, in part to be closer to the Father.

• The Mother’s family were given more notice of the pending birth then he was and they were nasty to him at the hospital.

• Several witnesses spoke of the impact the proposed move would have on I.P., the Father and his family members, including the child’s step-sisters, and baby sister. It was stated by some witnesses that the Father and other family members would be devastated if the move was allowed.

• The time to travel to the other home (one way) would increase from 45 minutes to 3 hours. Bad weather could make it longer.

• The child would be reduced to weekends with the Father and the family in Beamsville as the weekday visits would no longer be possible.

• The Mother’s witnesses felt that reduced time for the Father would be acceptable and they failed to appreciate the importance of the Father’s in the child’s life.

• Emergencies could be difficult as the Mother travels for work and Troy M. is tied to the farm.

• The relationship between the Mother and Troy M. is untested as they have never cohabited. There is a real risk that the child could be uprooted again.

• The Mother was dating Troy M. when the Minutes of Settlement were signed in September 2014, and she did not mention this. She should have mentioned this because a move was a possibility and the Father may have negotiated different Minutes of Settlement.

• The case law provided supports the Father’s position. Several references were made to cases where a move was denied because it would negatively impact the child’s relationship with the other parent and his or her extended family and community. The cases also showed concerns about the distance children would have to travel and the uncertainty of the proposed plan.

• If a move is allowed it will reward the Mother for her deliberate deceit. She did not disclose her relationship with Troy M. when Minutes of Settlement were signed. Her uncooperativeness and dishonesty caused the Father to litigate for a two year period with the exception of a five month period after the Minutes were signed when he enjoyed a false sense of stability.

• The child has had a stable and consistent life and routine with both parents since the Minutes were signed and it is in her best interests that this continues.

The Mother

[204] Submissions on behalf of the Mother included the following points:

• The Mother was more credible. Several examples were given of times when the Father was contradicted. For example, he said he was trying to see the child many times after she was born and brought to Dundas, but he later acknowledged he did not try to contact the Mother for eight weeks. He said that Troy cancelled their meeting the night before, but it was later learned through an e-mail letter that was produced that it was two days before. He said that he was one of the last people to learn of the child’s birth but the Mother called him between 6:00am to 6:30am and the child was born at 10:39am. He also said he became in arrears of child support because he chose litigation instead. In fact, he was nearly $4,000.00 in arrears by the time he commenced litigation.

• The Father has had some issues with alcohol. His hair follicle test results showed something close to the excessive category. He said he did not drink while caring for the child but his father said he was drinking wine at dinner the night before.

• The older two children of Suzanne R. are not always there every night that the child is. They are together alternate weekends however and this will continue if the move is allowed.

• The Father’s statement that he thought the Mother would live in Hamilton made no sense. She was in Dundalk when the agreement was prepared. The Father signed a few weeks later and his signature was witnessed by his boss in Beamsville. He was not pressured.

• He did not think the Mother supported his relationship with the family but there were a few examples of how she invited them to see the baby and included them in the baptism.

• The move creates a material change in circumstances, but there is no need to have a fresh inquiry into the issue of custody or primary residence. The Mother said that she would not move without the child.

• An analysis under section 24 of the Children’s Law Reform Act supports the Mother’s case. A review of all the subsections was given.

• The Father said he “felt shocked, tricked and duped” that he was not advised of the Mother’s relationship with Troy M. until she was engaged, which was close to three years after separation. This is not as significant as how “shocked, tricked and duped” the Mother must have felt that when she discovered that the Father was having an affair with Suzanne R. while she (the Mother) was married to the Father and pregnant with their first child.

• The court must accept the correctness of the Separation Agreement and subsequent court order, both of which gave the Mother custody.

• There was a clause in the Divorce Order that said that the timesharing could be reviewed when the child started school in September 2016, so it was anticipated that changes might be made soon.

• The test set out in Gordon v. Goertz has been met.

• It is in the best interests of the child that the Mother, who has been the primary caregiver since birth, be allowed to move with the child. This will be a positive move for the Mother who has researched services in the proposed neighbourhood and the Mother will make sure that the Father maintains a close relationship with the child. The child will have a good life in the proposed environment.

PROPOSALS

[205] Written proposals for terms of the order were provided. I will high-light the main features.

[206] The Father suggested that we leave the order of Justice Brown dated September 30th, 2014 in place and prohibit a move by the Mother beyond 60 kilometers of her current address. A few miscellaneous terms were also suggested regarding the child’s passport and first right of refusal when a parent is unavailable.

[207] In the alternative, and in the event that the Mother moves, the Father suggested that they have joint custody, but that he has the primary residence. The Mother would have alternate weekends and a sharing of all holidays including the summer vacation and March break. Exchanges would take place at the corner of Highway 5 and Highway 6 in an area known as Waterdown, but part of the City of Hamilton. It is close to Dundas. As such the Mother would have the longer drive.

[208] I suggested that a further proposal be submitted in the event that I allow the Mother to move with the child. He provided some proposed terms. This included an order for joint custody. The Father would have three weekends per month and a sharing of holiday weekends. He would have the entire summer with the exception of two weeks which would be the Mother’s time with the child. Exchanges would take place at the corner of Highway 5 and Highway 6.

[209] Both of the alternate proposals contained provisions for long weekends, Christmas, etc.

[210] The Respondent Mother provided a written proposal. This was based on her being allowed to move with the child to the Kincardine area. She would continue to have sole custody. The proposal contained several provisions regarding long weekends, and a transition period before the child starts school. Once the child starts school, the Mother is proposing that the Father have alternate weekends from Friday at 6:00pm to Sunday at 6:00pm. In July and August this would be alternate weeks from Wednesday at 6:00pm to Sunday at 5:00pm. There would also be regular access by telephone and Skype. Exchanges would take place at the Tim Horton’s in Elora, Ontario, which she believes is a mid-way point.

[211] Both parties have offered to accept a reduced amount of child support in the event that there is a move due to the increased cost of transportation.

CONCLUSIONS AND ANALYSIS

Mobility

[212] One of the most difficult issues for separated parents to resolve is the issue of mobility, and the parents in this case are no exception. It is understandable that the Mother wants to be able to move with the child in order to start a new life. It is also understandable that the Father does not want her to move with the child because his time with the child would likely be reduced and the child would be further away.

[213] The case law provided by counsel (which I reviewed earlier herein) supports each of their positions.

[214] Both counsel referred to the Divorce Act and the Children’s Law Reform Act (CLRA).

[215] The parties were married and the order that is the subject of this motion to change is the Divorce Order. The following provisions of the Divorce Act were referred to by counsel:

Factors

(8) In making an order under this section, the court shall take into consideration only the best interests of the child of the marriage as determined by reference to the condition, means, needs and other circumstances of the child.

Past Conduct

(9) In making an order under this section, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the ability of that person to act as a parent of a child.

Maximum Contact

(10) In making an order under this section, the court shall give effect to the principle that a child of the marriage should have as much contact with each parent as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact.

Order for Variation, rescission or suspension

17.(1) A court of competent jurisdiction may make an order varying, rescinding or suspending, prospectively or retroactively,

(a) a support order or any provision thereof on application by either or both former spouses; or

(b) a custody order or any provision thereof on application by either or both former spouses or by any other person.

Factors for custody order

(5) Before the court makes a variation order in respect of a custody order, the court shall satisfy itself that there has been a change in the condition, means or other circumstances of the child of the marriage occurring since the making of the custody order or the last variation order made in respect of that order, as the case may be, and, in making the variation order, the court shall take into consideration only the best interests of the child as determined by reference to that change.

Maximum contact

(9) In making a variation order varying a custody order, the court shall give effect to the principle that a child of the marriage should have as much contact with each former spouse as it consistent with the best interests of the child and, for that purpose, where the variation order would grant custody of the child to a person who does not currently have custody, the court shall take into consideration the willingness of that person to facilitate such contact.

[216] The CLRA sets out a test for the determination of the best interests of the children, and both counsel referred to it. Section 24(2) and 24(3) read as follows:

Merits of application for custody or access

24.(1) The merits of an application under this Part in respect of custody of or access to a child shall be determined on the basis of the best interests of the child, in accordance with subsections (2), (3) and (4). 2006, c.1, s.3(1).

Best Interests of child

(2) The court shall consider all the child’s needs and circumstances including,

(a) the love, affection and emotional ties between the child and,

(i) each person entitled to or claiming custody of or access to the child,

(ii) other members of the child’s family who reside with the child, and

(iii) persons involved in the child’s care and upbringing;

(b) the child’s views and preferences, if they can reasonably be ascertained;

(c) the length of time the child has lived in a stable home environment;

(d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;

(e) the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing;

(f) the permanence and stability of the family unit with which it is proposed that the child will live;

(g) the ability of each person applying for custody of or access to the child to act as a parent; and

(h) the relationship by blood or through an adoption order between the child and each person who is a party to the application. 2006, c.1, s.3 (1); 2009, c.11, s.10.

Past conduct

(3) A person’s past conduct shall be considered only,

(a) in accordance with subsection (4); or

(b) if the court is satisfied that the conduct is otherwise relevant to the person’s ability to act as a parent. 2006, c.1, s. 3(1).

[217] The Divorce Act and the case of Gordon v. Goertz both direct me to consider if there has been a material change in circumstances before considering a change in the custody and access provisions of the existing order. The Mother is proposing a move with the child from Dundas to the Kincardine area, and she became engaged in February 2015. The existing time sharing would be effected. This situation constitutes a material change in my view, and neither counsel has suggested that it has not. I also note that paragraph 4 of the Divorce Order dated September 30th, 2014 reads as follows:

“The time sharing schedule shall be reviewed in May 2016 in anticipation of the child’s attendance in school”.

[218] At present the parties drop the child off at daycare and pick her up, at slightly different times and in accordance with their work schedule. They would have less flexibility when school starts. There is no evidence that this would necessarily mean that mid-week visits in Beamsville would not take place. It just means that they would have to review the schedule because school hours would be more precise than the daycare schedule and it does involve a 45 minute drive from Beamsville.

[219] There were some concerns expressed by each party about the other but they were historic in nature and do not have an impact on my decision. For example, the concerns about the Father’s drinking and depression seem to have lessened. There are no recent examples of him having symptoms of depression and he seems clear that he would get help if symptoms returned. There are no recent examples of him drinking to excess.

[220] There were concerns expressed about the Mother being reluctant to increase access and an interim motion was necessary. The Father was successful on the motion. Access was increased on an interim basis and the Mother was ordered to pay costs. However, that was in May 2014. In September 2014 the parties negotiated detailed Minutes of Settlement. A generous timesharing has taken place since then and the parties have worked it out quite well. There were no concerns expressed about the amount of time the Father currently has and there were no efforts to reduce that time, prior to the request to move.

[221] I have considered all of the evidence, the law, and the submissions. The Father’s position is reasonable, but I have come to the conclusion that it is in the child’s best interests that the Mother be allowed to change the primary residence, for the reasons set out below:

(i) This case is different than those where there was a concern about children having to leave a community they were attached to. The child I.P. has always lived in two communities. She is 3 years old and has not started school yet. She will still be in Beamsville with her Father during his time, and with her Mother in a different area during her time. Her current residences are Dundas and Beamsville. This will change to the farm and Beamsville.

(ii) When the initial Separation Agreement was signed, the Mother resided in Dundalk. She was expecting to live there, at her brother’s home after she gave birth. He then sold his house and she went to stay with her sister in Dundas. It can be said that the Father was willing to allow the Mother to have custody of the child and reside in Dundalk. The Mother estimates that the distance from Beamsville to the farm is about a further 20 minute drive than the distance between Beamsville and Dundalk.

There was no mention of where either party would live in the Separation Agreement and no mobility clause was included. The Father did not sign the Agreement until twenty days after the Mother did and he signed it in Beamsville. His statement that he thought the Mother would move to Hamilton does not make much sense, given the Mother’s plan to reside in Dundalk and give birth in Orangeville. While the agreement provided for “frequent and regular periods of access”, I cannot say that the proposed move will not include frequent and regular periods of access.

There are legal reasons to question how binding that original Agreement would be given that it was written before the child was born. However, it is an indication of what the parties were willing to accept at that period of time.

(iii) The Father has made a valid legal argument that the issue of the adultery should not be a factor in determining the best interests of the child. I do not agree that the Mother made repetitious reference to this issue however, or that it was an attempt to divert the court’s attention to the real issues as suggested by the Father. The adultery was referenced during the trial as the cause of the separation. I do not find it to be a factor in the determination of the best interests of the child. It is simply part of the history.

The Mother had been married to the Father for nearly 7 years, and was 5½ months pregnant with their first child when she learned he was having an affair. She left him and for the next 3½ years she has relied on relatives for her accommodations. This has involved a few moves on her part. The evidence is that the Father did not contribute to the purchase of any baby supplies prior to the birth and he paid no child support for months, despite a signed agreement to do so. His explanation that he had to choose between legal fees and child support was very weak. He did not have an application issued until over a year after the child was born, and child support should have come first in any event. This is the background from the Mother’s perspective, and based on the undisputed facts. It is not unreasonable on her part to want to move forward in her new relationship and have some happiness. The evidence was that she has considered the impact of a move on the child and the child’s best interests.

(iv) The Mother’s fiancé Troy M. testified as did his sister. I saw no concerns about him in the same way that I find no concerns about the Father’s partner Suzanne R.

Troy M. has a good source of income and a large property with a five bedroom home. He has never been married before and has no children of his own. His life is well settled and there are no complications from a prior relationship with children. He appears to be close to his parents who live nearby, and he is close to his three siblings who visit often and bring their children. I do not find that this relationship is untested to the point that I should disallow the move. The Mother and child spend most of their weekends together on the farm. The Mother and Troy M. first connected in the fall of 2013, but the relationship proceeded slowly. They have been engaged for a year now, and they hope to marry in 2016, but are waiting for my decision.

I have no reason to be concerned about Troy M. or to doubt his commitment to the Mother and the child.

(v) The Mother is able to maintain her employment with the Ministry of Education if she moves. She is not tied to one location and teaches children in their homes in different communities. The same is not true of Troy M. however. The farm has been in his family for approximately 50 years. It is not realistic to think he is going to sell a 250 acre dairy farm (with a further 110 acres nearby) with 100 cows, and try to take up farming in the Beamsville or Hamilton area.

(vi) The Father has correctly referred to the “maximum contact” principle. I do not find from the evidence that the Mother would try to limit contact to the Father any more than what distance requires. There were examples of her being inclusive from the birth onwards. It is true that she did not want the Father in the delivery room, but he was given adequate notice by her of the pending birth to get to Orangeville and he had time with the child at the hospital, both with the Mother in the room and without.

She invited the Father’s family for some visits when the child was a baby, and included the paternal family in the baptism. She keeps a photograph of herself and the Father in the child’s bedroom, so she will see that her parents were once a couple. She has included information on the Father’s family and name in the baby book.

Another factor in the argument of maximum contact (as earlier set out in the excerpt from the Divorce Act) is that the move is not that far away. The parties will still be in the Province of Ontario. Automobile transportation is all that is necessary. They have made the Beamsville – Dundas drive work fairly well and I believe they will be able to make the Beamsville – Kincardine area drive work.

(vii) The argument that there will be no one who can be available if there is an emergency with the children in the proposed new area is not persuasive. It is true that the Mother could be a one and half hour drive away, and Troy M. is quite tied to the farm. However, he has said he could leave in an emergency and he has people who could help out on the farm. He also has parents who live nearby and are retired. They both drive and they could go to the school in an emergency. In addition, he has other relatives and friends nearby. These are responsible people, in my view, and I have no reason to think that they would not manage in an emergency, either on their own, or with the help of neighbours, friends and relatives. I would likewise not have concerns about the ability of the Father and Suzanne R. to make arrangements for the children in their care in the event of an emergency, if they were busy at work, or further away than usual.

(viii) The Father raised a valid point when he said that the Mother should have told him she was seeing someone when they negotiated Minutes of Settlement in September 2014. I do not think that it reached the point of deceit however, as suggested by the Father. She said she did not know where the relationship was going at that point. The Father says he may have negotiated different terms if he thought that the Mother was seeing someone from the Kincardine area. It is possible he may have requested a stronger mobility clause. It is difficult to imagine circumstances however that would have led to any different result than the parties coming to court over the Mother’s desire to change the child’s primary residence based on a material change in circumstances.

(ix) The move will mean less time for the Father as the child starts school soon. It is not unreasonable for the Father to object to this, but the week day timesharing cannot survive a move of this type. The move will allow the Mother and child to have a home of their own, and not always be sharing with her relatives. It will allow more financial stability. It allows the Mother to move forward in a relationship with someone who appears to be committed to her and the child, who is stable in his employment and lifestyle, and who is a family man. It allows her to build a life with a new partner, as the Father has done with his new partner, and it allows her to marry as she plans. This will benefit the child who will have all that the life in the Kincardine area has to offer, along with a happier and more secure Mother. At the same time, she will still have her Father and their family in Beamsville.

I appreciate the Father’s concern that the child may start coming less when she is older. This could be a concern with the Beamsville and Dundas locations however. The parties need to make sure that the schedule continues and that the Father and the paternal relatives are always viewed with great respect in the Mother’s home. This same principle applies to the Father’s home in regard to the Mother and her relatives.

(x) The law supports the move in my view. I will address the test set out in Gordon v. Goertz.

a) “The existing custody arrangement and relationship between the child and the custodial parent”.

The Mother has always been the custodial parent and is a loving and caring parent. I would have no concerns about her care of the child if a move is allowed. The child is bonded to her.

b) “The existing access arrangement and the relationship between the child and the access parent”.

The Father has a close relationship with the child. Access may be effected but there will still be regular access. There may have been a change in access anyway as the child starts school in September 2016 and a review was contemplated in the September 2014 order. The parents already reside in different communities.

c) “The desirability of maximizing contact between the child and both parties”

It is desirable to maximize contact with both parents as both have a loving relationship with the child. There will unfortunately be less time between the Father and child as a result of the move, but for the reasons set out herein, I believe the move is in her best interests. The child will have regular meaningful contact with the Father, but it will be less due to the move, and the fact that she will be starting school.

d) “The view of the child”

The child is too young to express her views, but both parents describe her as a happy and well-adjusted 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”.

It is worth noting that the move will provide a higher standard of living for the Mother and child. This is not a significant issue however as she is able to provide for the child as a school teacher, and she has been doing so.

f) “Disruption to the child of a change in custody”.

There would be a disruption to the child, in my view, if custody were to be changed in favour of the Father. The child has been in the primary care of her Mother since birth and it would likely be difficult for her to have a change in primary residence. However, the factor is not relevant as others, as the Mother has said she will not move to the Kincardine area without the child, if a move is not granted.

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

The child already resides in two communities and has not started school. She will continue to see both families.

[222] I gave a summary of the cases provided by the Father earlier. Many of them have a set of facts that make them different. One involved a move to Scotland and one involved a move to the Netherlands. This is a much further distance than is contemplated in the case before me, where regular automobile transportation is sufficient. One involved a move to Michigan where the mother would have to quit her job and did not know where she and the children would be living. That is very different to the case at hand where the Mother has a home to go to and a teaching job.

[223] Another case involved a situation where the judge found the mother to be very negative about the father and thought that she would not support the child’s relationship with the father. That is not the situation before me. I do not find the Mother to be negative about the Father and she presents herself as someone who will foster the child’s relationship with the Father.

[224] Another case concerned a situation where the parties had a written agreement that neither parent would leave Toronto before five years was up. The children were attached to the Toronto area and the mother wanted to move after two years. That is different than the case before me in that there is no agreement about moving and the 3 year old lives in two communities.

[225] One of the cases involved an interim order where it was found that a move would be denied at trial. This is different than this case, because I have had the benefit of a trial.

[226] Another case involved a concern that the new partner, who was the reason for the move, might be moved again because he was in the military. There is no chance that Troy M. is going to change jobs and move.

[227] In another case, concern was expressed that the new relationship was untested. This is a similar fact situation, but I believe the relationship with Troy M. is as tested as it can be expected to be.

[228] One of the cases given was about a child who was uncomfortable in the presence of the mother’s new partner. That is different than the case before me.

[229] One case involved children who gave conflicting views to the Office of the Children’s Lawyer representative, so that is different.

[230] One case had similar facts in that the Alberta Court of Appeal felt that the trial judge failed to give sufficient consideration to the child’s older half-sibling. However, in the case before me, the half-sibling is an infant and the Mother and Troy M. want to have children, so there could be half-siblings in both homes.

[231] There were also concerns in the cases about facilitating contact (which I believe the Mother will do) and about the need to consider the overall best interests over the reason for the move.

[232] The principles in the cases mentioned above were all relevant even if the facts were different. The test in Gordon v. Goertz and the best interests of the children were discussed.

[233] The most helpful case provided by the Mother was the Ontario Court of Appeal case of Bjornson v. Creighton. The mother in that case was going to have a better life in Alberta (with a better job and more family nearby) than she would in Ontario.

[234] I believe that Justice Austen’s comments about the child’s best interests being “better served and better achieved by a well-functioning and happy custodial parent, operating at her full potential” are very pertinent to the case before me. For me to disallow the move would leave the Mother once again looking for a place to live in the Dundas area (or maybe purchasing her brother’s share of his house) and either ending her relationship with Troy M. or starting a life with him that would be based on weekends. It would be very difficult for them to have a family under those circumstances. They would also need two residences, and the child would still be on the road a lot.

[235] The proposed move meets the criteria of section 24 of the CLRA in my view, and I note the following:

(a) Both parents have love, affection and emotional ties to the child, as do their other family members.

(b) The child is too young to express views and preferences.

(c) The child has lived in two different communities all her life and she is presently 3 years old.

(d) Both parents are able and willing to support the child, etc.

(e) Each parent has a reasonable plan.

(f) Each party has a stable family unit.

(g) Each parent can act as a parent.

(h) Both parents are biological parents.

[236] I have set out a number of reasons why I believe the move should be allowed and a brief summary can be given. The child is 3 years old and has lived her entire life in the primary care of her Mother who is the custodial parent. Since access was expanded in May 2014, she began spending more time with her Father. The parents live in separate communities. When she was born the parties lived in separate communities. The Father is in a new relationship with a partner and there are other children in that home, including an infant child of the Father’s. The Mother seeks to re-marry, have another child, and reside on a dairy farm near Kincardine. The Mother should be able to continue her new relationship. Her fiancé cannot be the one to move. The child will benefit from the Mother’s new lifestyle and happiness. She has been described as enjoying her visits to the farm and being excited on her arrival. The Father has not done anything to disentitle himself to any of his current access, but a change is necessary, due to the move. He will have regular access however.

[237] Speaking for the Supreme Court of Canada in Gordon v. Goertz, Justice McLachlin said at paragraph 48:

48. While a legal presumption in favour of the custodial parent must be rejected, the views of the custodial parent, who lives with the child and is charged with making decisions in its interest on a day-to-day basis, are entitled to great respect and the most serious consideration. The decision of the custodial parent to live and work where he or she chooses is likewise entitled to respect, barring an improper motive reflecting adversely on the custodial parent’s parenting ability.

[238] The Mother has not shown any improper motive in her desire to move, and her decision to move has been given the respect and consideration (referred to by Justice McLachlin in Gordon v. Goertz in the quotation above) by me. There is no legal presumption in her favour as the custodial parent, but I believe the Mother has shown that the move is in the child’s best interests. This young child has not started school yet and appears to adjust well. It would not be in the child’s best interests to deny the Mother the new life she seeks, given that the Father will still have frequent contact.

Custody

[239] I am not inclined to make change in custody. The parties have twice now signed documents saying that the Mother has sole custody and I see no reason to change that now that the move has been allowed.

[240] The evidence at trial was primarily in regard to the requested move. A change of the custodial regime may have become necessary if I denied the move and the Mother moved without the child. That is not the case however. Since the Mother is going to continue to have the primary residence of the child, I do not find that there has been a material change in circumstances regarding the issue of custody.

Child Support

[241] The Father earned $45,921.00 in 2014 and the table amount of child support is $415.00. The Mother is prepared to continue to receive the amount of $250.00 per month due to the additional driving, so I am prepared to allow this, as both parties have agreed to reduce the amount of child support, if further transportation is required.

TERMS OF THE ORDER

[242] The terms of the order need to be dealt with.

Exchange Location

[243] The location for the exchanges was in dispute. The Father prefers a Tim Horton’s in the Waterdown area which is part of the west end of Hamilton. The Mother prefers the Tim Horton’s in Elora which she believes is the mid-point. I appreciate the argument that the Mother is the one who wants to move, so she should be doing the majority of the driving. The mid-point of Elora seems acceptable however given the amount of time that would be involved if the Mother did most of the driving. Elora is not as far from the Father’s residence as Dundalk, which initially would have been the primary residence. It will be a longer drive than the current 45 minute drive, but it will be fair to share it, and it is manageable.

Regular Weekends

[244] The Mother proposes that regular weekend access be alternate weekends. The Father proposes that they be two out of every three. However, I notice that he wanted the access to be alternate weekends, if the child was going to be in his primary care and the Mother moved.

[245] I will order access to be on alternate weekends. It would be too much driving for the child to do this three out of every four weekends. She will undoubtedly want weekend time in both homes once she starts school. Although it would be fair to give the Father more weekend time to compensate for the lost week day time, I cannot say that it would be in the child’s best interests to be in a car for close to six hours, three out of four weekends. Apparently, the Father did not either if the child was going to be in his primary care. I will make the exchange time Friday at 6:00pm since the parties work, and 5:00pm on Sundays.

[246] I will make the new schedule to take effect as of the end of June. It will allow the parties to have a transition period and continue the current time-sharing while the child is still in daycare.

[247] I do not think there was anything urgent about a move for the Mother. It is more a matter of knowing that she can move and make plans accordingly.

Summer

[248] The Father proposed a week about sharing for the summer, if he had the child. If the child moved with the Mother he was suggesting that she have two weeks and he have the balance of the time. The Mother is suggesting that the Father have alternate weeks from Wednesday to Sunday evenings. This amounts to four nights out of fourteen.

[249] I appreciate that the Mother is a school teacher and will have the summer off, but her proposal is rather limited.

[250] The current order allows each parent to have up to three weeks of vacation time each year, and the Father has three weeks of vacation time at present. He also has family members who can assist. I will divide the summer into a weekly rotation. This seems the easiest and fairest thing to do. When the child is older the parent’s may wish to allow for two week blocks.

[251] I will include a provision that regardless of the weekend or summer schedule, the child is always returned to the Mother by 5:00pm the day before the last day of holidays before school starts. For example, if school starts on the Tuesday after Labour Day Monday, she will be returned by Sunday at 5:00pm in order to be ready for the commencement of school.

Christmas

[252] The Mother proposes that the existing order continue for the Christmas school break with one change in time and with the exchange location to be in Elora. The problem with this proposal is that it is based on the parties living 45 minutes apart and it has multiple exchanges.

[253] The Father has proposed an equal sharing that involves fewer exchanges, but would give one parent the first week of the Christmas break in alternate years and the other parent the last half.

[254] I will give the Father one week of the two week school break every year, but schedule it so that the parties each have some time during the December 24th to December 26th period.

March Break

[255] The Father would like March break every year. This is a reasonable request given that he will miss some regular weekday time due to the move. However, the Mother is a teacher and will always have March break off. The Father presently has a total of three weeks’ vacation, so we cannot assume he will have March break off in addition to time off in the summer. I will divide the week in half and give each parent the opportunity to go away with the child.

[256] This is in the best interests of the child because she will be able to enjoy time off school with each parent and in each home environment. If the Father is unable to handle a mid-day exchange in the middle of March break he can advise the Mother of his preferred time (sometime between 12 noon and 5:00pm) by text message ten days prior thereto. Since the Mother always has March break off, I will order that the mid-week exchange takes place at the Tum Horton’s at Highway 5 and 6.

Easter and Holiday Mondays

[257] Rather than divide holiday weekends up, I will order that the parent who has the child in their care on a weekend shall keep the child until the Monday at 5:00pm. The drive is too long to split these weekends in half. Easter weekend can be an exception, since it is a longer weekend. I will alternate this weekend which will allow for less driving time for the child than if I divided it in half and it will be fair to each parent. The Mother is very much a religious observer and I do not think it would be fair to deprive her of every Easter weekend. The child will likely enjoy having a chance to alternate this weekend between her parents.

Father’s Day and Mother’s Day

[258] I believe the fairest thing is to allow each party to choose the Father’s Day (Applicant) or Mother’s Day (Respondent) weekend in lieu of another weekend of their choice. Otherwise it could work that the child is travelling to Beamsville three weekends in a row, or not going to see the Father three weekends in a row, depending on when these days fall.

Miscellaneous

[259] Both parties agree that “face time” should be set up for the child and the Father since he will have a longer time to go without seeing the child during the school year.

[260] I am going to eliminate the provision of the previous order (paragraph 27) that allows each parent the right of first refusal to care for the child if the other parent is unavailable for a period of time. The Mother suggested I increase the three hour period to an overnight period. This may be too difficult given the distance between homes and it is unnecessary given the support from family members the parties have. It would also be impractical if it was the Mother who had to be away overnight as the child goes to school from her home.

[261] There will be a provision for child support to continue in the amount of $250.00 per month as the Mother has agreed to accept this reduced amount. There will also be the usual clause for a sharing of extraordinary expenses.

[262] I will order that the balance of the provisions in the order of September 30th, 2014 remain in effect.

[263] If counsel wish any changes or additions to the order I am giving, and if it is on consent, then they may arrange to see me.

[264] A provision for costs will be included.

FINAL ORDER TO ISSUE

[265] The final order of Justice Brown dated September 30th, 2014 is varied as follows:

1. The Respondent J. P. B. shall continue to have custody of the child of the marriage, namely, I. P. B. P., born […], 2012.

2. The Respondent is permitted to change the above named child’s primary residence to the proposed area near Kincardine, Ontario, as of June 30th, 2016.

3. The Respondent shall not move the child’s primary residence further away from the proposed location near Kincardine in relation to the Applicant’s current residence without the written consent of the parties or court order.

4. The Applicant S. C. P. shall have the child in his care in accordance with the schedule set out below:

(a) Alternate weekends from Friday at 6:00pm to Sundays at 5:00pm.

(b) The regular weekend access will conclude at 5:00pm on Monday, if Monday is a statutory holiday.

(c) Regardless of the weekend and summer schedule the Respondent shall always have the child in her care by 5:00pm on the day before the last day of summer holidays before school starts. (This would be a Sunday if school starts on a Tuesday).

(d) Notwithstanding paragraph 4(b) above, Easter weekend shall be alternated between the parties. The regular weekend access shall be suspended during this weekend. Commencing in 2017, the Applicant shall have every Easter weekend from Friday at 11:30am until Monday at 5:00pm, in all odd numbered years. Commencing in 2018, the Respondent shall have each Easter weekend in all even numbered years.

(e) If a Professional Activity Day is on a Monday, the Applicant can keep the child in his care until the Monday at 5:00pm. If a Professional Activity Day falls on a Friday, the exchange time may be any time as of 10:30am on the Friday at the Applicant’s discretion provided that he advises the Respondent in writing of his plans two weeks prior thereto.

The Respondent shall provide the Applicant with a list of all Professional Activity Days once they are known to her.

(f) The parties shall share alternating weeks during the summer holidays from Sunday at 5:00pm to Sunday at 5:00pm, or in such manner that they agree upon that divides the time fairly.

In the event of a dispute, the Applicant shall have first choice of his weeks in even numbered years provided he informs the Respondent in writing of his choice of weeks by May 15th of every year, and the Respondent shall have first choice in odd numbered years provided that she inform the Applicant in writing of her choice of weeks by May 15th of every year.

(g) Regular weekend access shall be suspended during the child’s Christmas school break. From the time that school ends in December until the time that school commences again, the Applicant shall have the child in his care for seven consecutive nights.

In even numbered years this shall commence on December 24th at 4:00pm and end on December 31st at 4:00pm.

In odd numbered years this shall commence on December 26th at 11:00am and end on January 2nd at 11:00am.

The balance of this vacation time shall be with the Respondent. Once the child is back in the Respondent’s care, on either December 31st or January 2nd, she shall stay there until school resumes.

The regular alternating schedule resumes with the first of the week that the child is back in school.

(h) During the child’s school break in March of every year the parties shall share time equally. The parent who has the child on the weekend at the beginning of the week shall keep her until the Wednesday at 12 noon, at which time she shall be in the care of the other parent. If the Applicant is unable to pick up the child at 12 noon he shall advise the Respondent by text message 10 days prior thereto, of his preferred time, which shall be between 12 noon and 5:00pm., unless the parties agree otherwise.

(i) Commencing in 2019, the parties may arrange to have the child in their care for the entire March break, if they have plans to go away on a holiday.

In even years the Applicant has the opportunity to have the child in his care for a week (seven nights) provided he informs the Respondent of his plans by January 3rd and provides travel particulars.

In odd numbered years the Respondent has the opportunity to have the child in her care for a week (seven nights) provided she informs the Applicant of her plans by January 3rd and provides travel particulars.

Unless either party has plans to travel with the child during March break, the week shall be shared with the Wednesday exchange.

If a party is travelling for a week in his or her designated year, make up time does not need to be offered if both weekends of March break are needed. However, the Applicant shall make sure that the child is brought to the exchange location at no later than 5:00pm of the day before school is in session again.

(j) If Mother’s Day does not fall on the Respondent’s regular weekend, she has the option of taking that weekend instead of one of her other weekends in May or June, provided that she informs the Applicant in writing by April 15th.

If Father’s Day does not fall on one of the Father’s regular weekends, he has the option of taking that weekend instead of one of his regular weekends in May or June, provided he informs the Respondent by April 30th.

5. The Respondent shall arrange technological “face time” for the Applicant twice per week during the school year. Both parties shall arrange face time for the other parent part way through their time with the child during the summer and Christmas breaks.

6. The location for the exchanges shall be at the Tim Horton’s Coffee Shop in Elora, Ontario, with the exception of the mid-week exchange during March break which shall take place at the Tim Horton’s Coffee Shop at the corner of Highway 5 and Highway 6 in Hamilton, Ontario.

7. The Applicant shall continue to pay child support on the first day of every month in the amount of $250.00. This is a reduction from the child support guideline amount (which would be $414.00 based on his 2014 income of $45,921.00). The reduction is on the consent of the Respondent due to the increased distance the Applicant will have to travel for access.

8. The parties shall share extraordinary expenses in proportion to their incomes.

9. The provisions of this order including the ability to move with the child, take effect as of June 30th, 2016. The existing order remains in effect until then.

10. The balance of provisions of the order dated September 30th, 2014 that were not changed in this order remain in effect with the exception that paragraph 27 (right of first refusal for child care) is terminated.

11. A Support Deduction Order shall issue.

12. If counsel cannot agree on how to handle the issue of costs then written submissions of no more than nine pages in length plus any attachments shall be served and filed as follows:

• Applicant by March 21st, 2016

• Respondent by April 4th, 2016

• Any Reply by Applicant by April 14th, 2016.

McLaren, J.

Released: February 26th, 2016

CITATION: S.C.P. v. J.P.B, 2016 ONSC 1308

COURT FILE NO.: 1994/13

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

S.C.P.

Applicants

• and -

J.P.B.

Respondents

REASONS FOR JUDGMENT

The Honourable Madam Justice M.J. McLaren

Released: February 26th, 2016