Court File and Parties
COURT FILE NO.: 3390/15 DATE: 2016-07-05 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
JASON NACCARATO Applicant – and – BARBARA NACCARATO Respondent
Counsel: Ms. H. Mendes, Counsel for the Applicant Mr. J.P. Paciocco, Counsel for the Respondent
HEARD: June 1-3, 2016, June 6-10, 2016, June 14-17, 2016
Varpio, J.
[1] Ms. Barbara Naccarato (the “Mother”) and Mr. Jason Naccarato (the “Father”) were born and raised in Sault Ste. Marie but commenced their married lives together in Windsor. The Father worked in the automotive sector and the Mother worked as a teacher. They returned to Sault Ste. Marie in October 2011 with their two children when the Father obtained employment at the Sault Ste. Marie Innovation Centre (“SSMIC”). They resided in the paternal grandmother’s home until they separated in the summer of 2014.
[2] The parties’ employment situation subsequent to the move has been tenuous. In the winter of 2014-15, the Father lost his job with SSMIC and has since attempted to start over by working in three sectors. The Mother has found work as an occasional teacher in Sault Ste. Marie and has also secured three teaching contract positions.
[3] The Mother wishes to return to Windsor where she has a full-time permanent teaching job. The Father opposes the move.
[4] As will be seen below, after applying the test as enunciated in Gordon v. Goertz, I am satisfied that returning to Windsor is in the best interests of the children. While living in Windsor, the children will have the benefit of the Mother’s full-time attention and considerably more financial stability than they currently enjoy. Although separation from the Father and Sault Ste. Marie will be difficult, as will be seen below, much of that difficulty has been mitigated in the instant case.
Undisputed Facts
[5] The parties attended high school in Sault Ste. Marie. They began dating and remained together until they separated. The mother attended Algoma University and worked multiple jobs putting herself through both undergraduate studies and teacher’s college. The Father attended the University of Western Ontario and became an Engineer. Upon graduation, he secured employment with Nissan in Farmington Hills, Michigan. He lived in Windsor and commuted across the border. At roughly the same time, the Mother secured employment as a full-time teacher with the Huron Superior District Catholic School Board (the “Sault Board”).
[6] The parties married on July 2, 2005. After marriage, the Mother left her position in Sault Ste. Marie and moved to Windsor to be with the Father. The Mother sought, and received, a leave of absence from the Sault Board for the 2005-2006 and 2006-2007 school years. In her letter requesting same, the mother referred to Sault Ste. Marie as “home”. She then secured work as a supply teacher in Windsor and was hired by the Windsor-Essex Catholic School Board (“Windsor Board”) in a full-time permanent capacity in March 2008.
[7] The Father earned an Executive MBA from Wayne State University in 2008. He earned this degree while working at Nissan. He also got a professional designation in project management. His career blossomed and he acquired increased responsibilities at Nissan. He then changed companies and began working at Magna, also located in the Detroit area.
[8] As for their familial aspirations, the parties planned to have their children in the springtime so as to maximize the Mother’s time off that with the children. Accordingly, there are two children of the marriage with birthdays close in proximity: Karmyn Emma (DOB: May 22, 2009) and Brooke (DOB: May 19, 2011).
[9] The Mother took full-year maternity leaves after the birth of both children. After Karmyn was born, the Father had approximately one week off. After Brooke was born, the Father only had four days off, two of which he spent attending a bachelor party in Toronto.
[10] The parties travelled home to Sault Ste. Marie often, averaging five or six trips per annum. Coming home from Windsor during Christmas 2008, the parties learned that the Father’s father had tragically passed away in his early sixties. As a result, the Father began looking more actively for employment opportunities in Sault Ste. Marie at that time.
[11] Although the Father interviewed with a number of organizations between Christmas 2008 and October 2011 (including Tenaris Algoma Tubes, Essar Steel, Northern Credit Union and SSMIC), he was unable to find the right fit. Finally, in October 2011, the Father secured a senior position at SSMIC.
[12] Rather than give up her job, the parties agreed that the Mother should apply for a leave of absence from the Windsor Board. She received such a leave and it was renewed. The leave expires at the start of the school year in 2016. If the Mother is not working for the Windsor Board in September 2016, she will no longer have a job with same. If she is employed with the Windsor Board, she will earn $92,000 per annum.
[13] Upon moving to Sault Ste. Marie, the parties lived with the Father’s mother, Mrs. Emma Naccarato. Mrs. Naccarato lives in a large bungalow on Lake Superior. The parties lived with Mrs. Naccarato for the remainder of their marriage. The children each had a bedroom near Mrs. Naccarato and the parties converted a smaller room on the main floor into a bedroom for themselves. This enabled the parents to tend to the children.
[14] The Father began acquiring real estate in Sault Ste. Marie and, while the parties were married, he purchased (either on his own or with partners) four investment properties, plus a lot where the parties had hoped to build their “dream home”.
[15] In the winter of 2013-2014, the Father was diagnosed with thyroid cancer. This was a highly traumatic event for the Father and caused him considerable consternation. Thankfully, he is currently cancer-free.
[16] Over the course of time, the marriage dissolved. The parties argued more and more. In the summer of 2014, the parties separated. The Mother and the children moved out of Mrs. Naccarato’s residence and into the Mother’s mother’s house.
[17] With respect to the “dream home”, the parties decided to pursue that build post-separation. The Father effectively acted as a general contractor. The children and the Mother have since moved into this residence.
[18] Since moving to Sault Ste. Marie, the Father has worked at raising his profile within the community. He taught courses at Sault College in 2013 and 2014. He is on the Executive of the Chamber of Commerce. He is on the Board of Governors of Sault College. He was appointed to lead a trade mission to Italy. He was appointed to the Ontario Sustainable Energy Association. He is now working with the United Way’s campaign.
[19] The mother has been unable to secure full-time permanent employment as a teacher in Sault Ste. Marie. She is on the “occasional list” with the Sault Board and has previously secured teaching contracts with same (i.e. maternity leave replacements and such). The Mother estimates that her income will be around $35,000 for the upcoming year(s) in so far as she believes that her ability to procure teaching contracts is now greatly reduced.
[20] In the winter of 2014-2015, the Father was terminated by SSMIC without cause. Subsequently, the Father has secured three sources of income:
- He is the Director of Business Development for Nor-Arc Steel. Nor-Arc is based in Earlton, Ontario. The Father telecommutes;
- The Father has increased his real estate portfolio. In fact, the Father acquired eight new properties subsequent to separation (either by himself, or with partners). He did not disclose the purchase of many of these properties to the Mother until the eve of trial; and
- He commenced a consulting business.
[21] As a result of the late disclosure described above, the question of support based upon the Father’s income (and potential imputation thereof) has been adjourned to a subsequent date. However, it is clear from the evidence that the Father earned approximately $110,000 per annum in his last job in Windsor. At SSMIC, he earned approximately $90,000 per annum and he now estimates his annual income to be $66,000.
[22] Since separation, the children have spent approximately half their time with their Mother, and half with their Father. They had an unusual “day about” schedule whereby the children spent Tuesday, Thursday and Sunday with the Father and the other days with the Mother. On the Father’s time, the children continued residing in the paternal grandmother’s house with the Father and Mrs. Naccarato. On the Mother’s days, the children lived with the Mother’s parents or at the matrimonial home.
[23] It is clear from the evidence that the children are attached to the Sault Ste. Marie area. They generally spend Sundays with the Father’s family. They appear to be close with their cousins, uncles, aunts and grandparents. They are involved in community activities and appear to have some friends.
[24] The parents spent considerable time testifying about the importance of extra-curricular activities to the girls. Specifically, the parties testified about the importance of dance to the girls, although the Father admitted that he seldom attends dance. The parties also take the girls to karate and soccer (the latter of which the Father coaches). The parties disagreed as to whether or not karate was something the girls enjoyed. The specifics of this dispute are immaterial save and except for the fact that it became clear to me that extra-curricular activities are clearly important to the parties and, by extension, to the children. [^1]
[25] It was conceded by the Father – and his witnesses – that the Mother is a good and/or excellent parent. The Mother concedes that the Father is likely a good parent, but has some reservations that will be described below.
[26] The separation has been occasionally acrimonious. The parties have had difficulty regulating custody and access on PA Days and other occasions. Recently, however, the parties were able to resolve contentious disputes involving access visits whereby each parent had competing interests. For example, the parties were able to resolve a situation where the Father had a family First Communion in Windsor while the Mother had hoped the children would attend her brother’s medical school graduation. The children attended the First Communion.
[27] The parties have worked out a plan (the “Parenting Plan”) whereby they have agreed to various forms of paternal access if the Mother is permitted to move to Windsor. The Parenting Plan includes the following:
a. The Father will have access to the children in Sault Ste. Marie every third weekend. The parties will meet half-way so as to split the travel; b. If the Father chooses to go to Windsor, he is entitled to two further access visits per month in Windsor; and c. Frequent phone and/or Skype contact with the children.
[28] Thus, if the Mother moves, the Father conceivably has three (and occasionally four, depending on how the schedule falls) access visits per month with the children.
[29] If the children are not permitted to move to Windsor, the mother will stay with them in Sault Ste. Marie and will forfeit her employment with the Windsor Board.
Disputed Evidence
The Father’s Case
The Father’s Evidence
[30] The Father testified that he is a logical person, one who considers matters, researches them and then engages in a course of action.
[31] The Father testified that, despite his community involvement, business travel and work responsibilities, he rarely works nights and has thus been able to parent the children meaningfully. While he conceded that the Mother did most of the parenting while the couple was together, the Father testified that his work and other commitments were such that he rarely missed opportunities to be with the children. The Father testified that he often gave children baths, played with the children, and engaged in other parenting activities.
[32] In defence of this position, the Father testified about how he was able to balance competing interests. For example, he cited exactly how many weekends he worked on specific real estate developments, even though those projects occurred several years ago.
[33] The Father also testified that, since separation, he has moved his bedroom to the basement of his mother’s house while the children have remained on the ground floor. He was steadfast in his position that he – and not his mother – got up at night with the children despite the fact that her bedroom is next to the children’s bedrooms. The Father was also firm that he alone parented the children and not his mother. The Father agreed that he would rely upon his mother for extra help when he needed same but denied that this happened very often. When the children are with the Mother, the Father will often sleep at one of his properties.
[34] The Father testified that, when he was terminated at SSMIC, it was a shock to him. He indicated that he had no idea that the termination was coming despite the fact that SSMIC launched an internal review of the Father’s conduct. The Father, in his testimony, attributed his termination to the fact that he was a “performance-oriented” individual working in an environment that was not designed for an individual as driven as the Father. The Father admitted, however, that he told the Mother that he left SSMIC of his own volition. The Father testified that he lied to the Mother because SSMIC, in its termination package, had given him a guarantee of confidentiality. Confidentiality was important to the Father.
[35] As for his current employment situation, the Father testified that his involvement in real estate was, at all times, not overly time consuming – save and except for his involvement at 826 Queen Street in Sault Ste. Marie. With respect to 826 Queen Street, the Father testified that his time involvement on this project occurred in the weeks prior to his early 2014 cancer surgery. He attributed his large-scale time commitment to this project to his need to take his mind off his cancer diagnosis.
[36] The Father’s involvement in real estate is generally analytical and takes place on his own time. The Father testified that he split much of the “hands-on” management of the property (meeting people, collecting rents, etc.) with his partner(s). The Father testified that he rarely, if ever, “swings a hammer”. The Father indicated that this work structure gives him considerable flexibility. This flexibility allows him to be with the girls when they are in his care. However, when confronted with the notion that he could potentially manage the properties from Windsor, the Father indicated that, since the assets were located in Sault Ste. Marie, he should remain in the area in order to manage them. The Father also testified that he co-manages property for Mrs. Naccarato with his brother-in-law, Mr. Czop.
[37] With respect to his work with Nor-Arc, the Father indicated that he “telecommutes” as the company is located near Timmins. He testified that Skype and other technological advances have made this type of work arrangement manageable. When confronted with the possibility that he could work for Nor-Arc from Windsor, the Father testified that he did not know if he could do so given that:
a. He would have to ask his employer’s permission; and b. Many of the funding agencies and clients with which he deals are located in Sault Ste. Marie.
[38] As regards his consulting business, the Father testified that he got clients and did business as he needed to in order to fill up his time and generate income when Nor-Arc and real estate were quiet.
[39] With respect to his ongoing relationship with the Mother, the Father gave specific examples where the Mother would prevent the Father from communicating with the children. The Father also described instances where the Mother would instigate conflict in front of the children.
[40] In his examination-in-chief, the Father outlined the fact that the mother has not done enough in the 2015-16 school year to secure employment. Further, he also indicated that he had concerns about his wife’s full-time teaching position in Windsor. He tendered newspaper articles from the Windsor Star – many of them dated – describing shrinking enrollment in that city. Further, he tendered a report from the Windsor Board that described the fact that the Windsor Board had more physical spaces than students. In cross-examination, however, the Father was confronted with a recent Windsor Star article that suggested that teaching positions with the Windsor Board were secure owing, in part, to enrollment increases attributable to Syrian refugees.
The Father’s Support Witnesses
[41] The Father called three witnesses who testified as regards his involvement with the children:
a. His mother, Mrs. Emma Naccarato; b. His sister, Ms. Lori Czop; and c. His brother-in-law, Mr. Chris Czop.
[42] All three witnesses gave very specific evidence with respect to the amount of time that the Father spent working on given projects (i.e. number of weekends worked at given locations).
[43] With respect to parental roles, all three witnesses described the Father as being very involved, effectively sharing the work with the Mother. Mrs. Naccarato testified that she rarely, if ever, parents the children. Specifically, she testified that, since separation, she does not get up at night with the children despite the fact that the children sleep close to her and the Father sleeps in the basement.
[44] In cross-examination, however, Mrs. Naccarato testified that, while he was employed at SSMIC, the Father would be home late for dinner once or twice a week.
[45] Mrs. Naccarato also indicated that, if the move were permitted, the Father could likely stay with his sister in Windsor to exercise further access although that may be hard on the sister.
[46] All three witnesses also painted the mother as someone who would order the Father to perform certain parental functions. They described the Father as allowing the children’s input into the family’s activities while the Mother was described as a controlling parent who adhered to a strict regime. All three indicated, however, that the Mother was a good parent.
The Mother’s Case
The Mother’s Evidence
[47] The Mother became pregnant with her first child in the summer/fall of 2008 and the couple’s first child was born in May of 2009. The Mother took a full year’s maternity leave when her daughter was born. During the first maternity leave, the Mother testified that she was by far the primary caregiver. The Mother testified that she performed all the tasks typically associated with primary caregiving including feeding (the mother breastfed both her children), bathing and other common activities. The Mother testified that the Father’s involvement with his new-born was negligible in that he was typically not at home. He would leave for work early to beat traffic and would be home late [^2]. The Father also completed an MBA while working at Nissan, played recreational hockey, undertook small welding work for customers and completed a professional designation in project management.
[48] The Mother became pregnant again in the summer of 2009. This pregnancy was marked by medical complications whereby the Mother consistently felt that she might be losing the baby. She had to attend several medical appointments as a result, typically without the Father. The Mother conceded in cross-examination that the Father’s attendance may have proven somewhat difficult given that he worked at an American company. The commute and culture of the company gave the Father less opportunity to attend medical appointments. Despite the foregoing, the Mother gave specific examples where the Father’s lack of involvement in the pregnancy and/or child-caring was attributable to his selfish behavior as opposed to logistical difficulties:
a. The Father and Mrs. Naccarato were making sausage when the latter was visiting Windsor. The mother became concerned that she was losing the baby at that moment. The Father chose to stay at home with his mother to complete the task while the Mother attended the emergency department with one of her friends; b. The Father went on a bachelor party cruise when the Mother was pregnant. After cross-examination, however, it was unclear as to whether or not either grandmother was visiting the Mother at this time to help out with the toddler; and c. When the couples’ second child was born in May of 2011, the Father only had four days off. He chose to spend two of those days at his cousin’s bachelor party in Toronto.
[49] The Mother again took a full-year maternity leave after the birth of the second child. The division of child-rearing labour remained unchanged throughout this time.
[50] In October 2011, the Father began working at SSMIC. The Mother had mixed emotions about the move back to Sault Ste. Marie. While it was clear from her testimony that she had considerable emotional attachment to Sault Ste. Marie, the Mother also felt that she had begun a living a stable existence in Windsor and did not necessarily wish to give up her full-time permanent position with the Windsor Board. In the end, the Mother moved to Sault Ste. Marie. Her maternity leave ran from May 2011 to May 2012. She then secured a leave of absence from the Windsor Board which effectively expires in September 2016. In her letters seeking a leave of absence from the Windsor Board, the Mother indicated that she needed to tend to her infirm mother (the maternal grandmother suffers from illness).
[51] Upon moving to Sault Ste. Marie, the couple and their children resided with Mrs. Naccarato. The child-rearing division of labour remained constant after the move, with the Mother undertaking the tasks typically associated with primary caregiving. Mrs. Naccarato helped out. The Father commuted at least a half hour to work each day. The Father also began trying to raise his profile in the community by joining the Chamber of Commerce. He taught at Sault College and, as noted above, he and his relations partnered in acquiring real estate. Further, the Father travelled for work to Toronto, Thunder Bay, Sweden and other locations.
[52] Once the youngest child got a little older, the Mother started working on her French-language qualifications. The Mother ultimately earned her specialist’s designation in French which permits her to teach in the French language. Despite same, the Mother testified that her fluency is rudimentary.
[53] The Mother got on the occasional (supply) list for the Sault Board and ultimately secured the following contracts (essentially, full-time short-term teaching positions):
a. March 2013 to June 2013; b. September 2013 to June 2014; and c. September 2014 to June 2015. This position was a “0.6” position whereby the Mother worked 60% of a working day and received 60% of a teacher’s wage.
[54] Even when the Mother was working, she would do the bulk of the work with the children. The children either attended daycare or school. The Mother tended to their evening needs, and performed the vast majority of the tasks. The Father engaged in some tasks but largely allowed the Mother to deal with the children.
[55] In the summer of 2014, the parties separated and the Mother moved in with her parents pending the completion of the matrimonial home. The parties commenced building the matrimonial home post-separation with the Father effectively acting as the general contractor.
[56] At this time, the parties began a “day about” access regime. The Father was now responsible for his daughters approximately half the time. The Mother believes that Mrs. Naccarato in fact cares for the daughters when the children stay with the Father. The Mother is of this opinion because she will note that the children’s appearance is worse when Mrs. Naccarato is away on vacation. Equally, the Mother noticed that Mrs. Naccarato handwrote the children’s names on their clothing, school items and the like. It is undisputed, however, that the Father performs certain parenting tasks like dropping the children off at daycare.
[57] The Mother testified that she has rough plans for the children should they be permitted to move to Windsor including renting (and ultimately purchasing) a home in South Windsor where the Mother will be teaching and where the children’s relatives and the Mother’s friends reside. Further, the Mother has located a good school for the girls in the area. The Mother made inquiries regarding a dance studio for her daughters to attend. The mother testified that the children have a considerable support network in Windsor including the Father’s sister and the children’s cousins, with whom they are close.
[58] The Mother testified that the youngest daughter suffers from a peanut allergy and asthma. The daughter takes some drugs that are not covered by the Father’s current benefit plan that would presumably be covered by a teacher’s plan. The drugs were not, however, particularly expensive.
[59] The Mother testified that the move to Sault Ste. Marie was primarily for financial reasons, although she could not explain how such a view was possible given the fact that both the Mother and Father suffered a loss of income upon their return to Northern Ontario.
[60] The Mother admitted that she remained close with the Father’s family after separation but that she cut off her communication with them because such communication became painful after it became apparent that there would be no reconciliation.
[61] The Mother also testified that she learned about the Father’s termination at SSMIC from a third party, and not from the Father or the court process. The Father did not dispute this allegation. The Mother also admitted that communication between the parties worsened for a time (post-separation) when she learned of the Father’s alleged infidelity.
[62] The Mother testified that she recently tried to get on with the Algoma District School Board (“ADSB”) but was unsuccessful. She has not tried to acquire work with the French language boards given her lack of fluency. The Mother testified that she has attempted to improve her level of fluency in a limited fashion, but has not met with much success.
[63] The Mother testified that, given a choice, she would prefer to stay in Sault Ste. Marie but that the financial realities of her situation demand that she take the job in Windsor.
[64] In cross-examination, the Mother conceded that the Father was likely a good parent, although the Mother indicated that she was not present when the Father parented the girls. She is concerned that the Father does not actually spend much time with his daughters. She indicated that his best qualities as a parent were kindness, the capacity for loving his girls and his compassion. The Mother also indicated that, to his credit, the Father was industrious and worked hard at providing for the family.
[65] The Mother was questioned about her budget which includes $1000 per month in groceries and $750 in clothing for herself and the children. When pressed regarding the latter, the Mother indicated that she has recently lost considerable weight due to the stress of the instant litigation which required her to purchase work clothes. As for her daughters’ clothing, the Mother insisted that she shops intelligently. She produced her banking and credit card records to support this contention.
The Mother’s Support Witnesses
[66] Ms. Maria Esposito testified for the Mother. Ms. Esposito is a Superintendent with the Sault Board. She indicated that, given the Mother’s qualifications, and given the declining enrollment at the Sault Board, the chances of the Mother securing full-time permanent work with the Sault Board are not good. In fact, the Sault Board has laid off full-time permanent teachers each of the last two years. When new openings come up, the Sault Board’s collective agreement with its union mandates that those qualified teachers who have been laid off are the first people who will be given full-time permanent employment. Once that process is complete, the first five qualified teachers on the occasional list are given interviews. The occasional list is ordered by seniority. The Mother is currently number 167 on the seniority list for the Sault Board [^3]. Accordingly, Ms. Esposito testified that the Mother would have very little chance of getting to the interview stage of job competitions despite her excellent teaching credentials.
[67] Ms. Esposito indicated that the French Immersion program is growing at the Sault Board. Ms. Esposito also testified that, from her experience in hiring teachers, it is very difficult for adults with weak French skills to become sufficiently fluent so as to teach in an immersion environment. Ms. Esposito testified that the Mother’s French fluency is such that she is only able to teach in French-language primary school levels (up to Grade 2) despite her specialist designation. The Mother was able to secure contract positions in the recent past because there were numerous French-language maternity leaves that required filling. Recently, however, a number of new teachers have joined the occasional list who are, in fact, fluent in French. Ms. Esposito left me with the distinct impression that these teachers would have a better chance of providing curriculum to the students given their language skills, and that the Board recognized this phenomenon.
[68] A number of recent job openings were put to Ms. Esposito. The Mother did not apply for any of these openings. Ms. Esposito indicated that the Mother was either: (a) not qualified to apply for any of these positions; or (b) or not likely to be considered for any of these positions given her qualifications, position on the occasional list and/or the status of the job.
[69] In summary, Ms. Esposito made it clear that the Mother was unlikely to secure a full-time permanent teaching position with the Sault Board and she indicated that, were she in the Mother’s position, she would take employment with the Windsor Board since the Mother’s employment opportunities with the Sault Board were limited.
[70] Dr. Robert Gioa and Ms. Jutta Gioa (the Mother’s brother and mother, respectively) also testified on behalf of the Respondent. They provided examples where the Father would work too hard and did not sufficiently attend to the children. In cross-examination, however, it became clear that these witnesses were only able to recount those matters in their immediate knowledge – which in the case of Dr. Gioa was relatively limited given that he had never lived in the same city as the children for any extended period of time.
Position of the Parties
The Father
[71] The Father takes the position that the children should not be allowed to relocate to Windsor. Specifically, the Father points to the following in defence of his position:
a. The strong bonds that exist between the Father and children. These bonds have become powerful over the last two years as the Father has had the children almost fifty percent of the time and the children have grown very attached to him; b. The strong bonds that the children have with their extended family in Sault Ste. Marie, their friends and the lifestyle that they have come to enjoy; c. The Parenting Plan crafted by the parties, while helpful to mitigate the difficult adjustments that would undoubtedly flow from the children’s move, is undermined by the following: i. The likelihood that the Mother will not sufficiently foster the Father’s relationship with his daughters; ii. The dangers associated with travel along the I-75 Interstate between Sault Ste. Marie and Detroit (especially in winter); and iii. The benefit to the children of living in the same city as their Father; d. The Mother’s claim that she needs to work in Windsor for financial reasons rings hollow in that: i. The evidence does not disclose that the Mother has exhausted all reasonable opportunities to secure good employment as a teacher in Sault Ste. Marie; ii. The Mother has not worked hard enough to improve her French-language skills and thus become eligible for French-language positions; iii. The Mother has not made reasonable efforts to secure employment outside her field; and iv. Her spending has been excessive despite her alleged financial difficulties; e. Where the parties’ evidence differs, I ought to prefer the evidence of the Father. His evidence was logical and he gave understandable explanations for why he lied to the Mother about his termination from SSMIC. The Mother, on the other hand, has engaged in deceitful conduct including being less than forthright with respect to the reasons for her leaves of absence; and f. The Mother’s desire to move to Windsor is motivated by her urge to move to a location where she can work in her field of choice, regardless of the effect upon the children.
The Mother
[72] The Mother indicates that she ought to be allowed to move the children to Windsor since:
a. The financial benefit of moving to Windsor is considerable given the Mother’s full-time teaching job and the parents’ current financial instability; b. The children have a support network in Windsor comprised of both family and friends; c. The Parenting Plan would enable the Father to see the children almost as much as he currently sees them; d. The Father’s current employment arrangement allows him the flexibility to capitalize on the access opportunities envisioned by the Parenting Plan; e. Where the evidence of the Father and the Mother differ, I ought to prefer hers given the Father’s dishonesty with the Mother, the Father’s late financial disclosure and the fact that the Father’s testimony does not accord with common sense. This is an important fact since, if I reject the Father’s evidence, such a rejection suggests that the Father has not been as involved with the children as he submits; f. Given “e” above, the Mother’s bond with the children is stronger than the Father’s bond with the children. Accordingly, the Gordon v. Goertz analysis needs to reflect this fact.
Relevant Caselaw
[73] The leading case on child mobility is Gordon v. Goertz, [1996] 2 S.C.R. 27. In that case, a custodial mother applied to the Court for permission to move her son to Australia so that she could pursue her studies in orthodontics. In agreeing that the mother should be permitted to move with her son, the Supreme Court of Canada enunciated the following principles at paragraphs 49 and 50 of the judgment:
The law can be summarized as follows:
- 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.
- 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.
- This inquiry is based on the findings of the judge who made the previous order and evidence of the new circumstances.
- The inquiry does not begin with a legal presumption in favour of the custodial parent, although the custodial parent's views are entitled to great respect.
- Each case turns on its own unique circumstances. The only issue is the best interest of the child in the particular circumstances of the case.
- The focus is on the best interests of the child, not the interests and rights of the parents.
- 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.
In the end, the importance of the child remaining with the parent to whose custody it has become accustomed in the new location must be weighed against the continuance of full contact with the child's access parent, its extended family and its community. The ultimate question in every case is this: what is in the best interests of the child in all the circumstances, old as well as new?
[74] The Ontario Court of Appeal considered Gordon v. Goertz in the context of determining whether frequency or quality of contact with an access parent is the appropriate benchmark. In Woodhouse v. Woodhouse, [1996] O.J. No. 1975 the Court stated at para 50:
The appellant particularly relies on this passage in support of the submission that the trial judge erred in placing too much weight on the assessment report and that he did not give sufficient weight to the position of the mother. The appellant submits that in Gordon, supra, McLachlin J. decided that regular access was important but that frequent access was not. I do not think that this is the way in which the decision should be read. Such an interpretation would ignore the encouragement given to frequent access in s. 16(10) and s. 17(9) of the Divorce Act which requires the court to "give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child". Moreover, in Gordon, supra, McLachlin J. recognized at p. 8 [p. 469 W.W.R.] of her reasons that where specific access has been ordered the serious curtailment of "frequent and meaningful contact" would suffice "to establish the necessary connection between the change and the needs and circumstances of the child" so as to trigger a review by the court of the child's best interests. In determining the child's best interests, the child's relationship with the access parent is a factor to consider. It cannot be denied that frequency of access bears some correlation to the child's relationship with the access parent. While it is the quality of the child's relationship and not simply the frequency of access which is the consideration, in general, the more frequently access has been, and can be, exercised, the stronger that relationship will be… In Gordon, supra, McLachlin J. implicitly recognized this at p. 28 [p. 483 W.W.R.] of her reasons when she noted that the child's close relationship to her father had been greatly diminished as a consequence of her mother's move. McLachlin J. found, however, that the means and the ability of the father to bridge the distance created by the move would help to attenuate the impact on the child of the diminished relationship with him. It was not disputed that the father had the time, and both parents had the means, to enable the father to exercise access. [emphasis added]
[75] The courts have also examined the impact that financial strain can place upon children and that phenomenon’s effect upon the Gordon v. Goertz analysis. In Woods v. Woods, [1996] M.J. No. 324 (Man. C.A.) the Manitoba Court of Appeal enabled a custodial father to move his children from Winnipeg to British Columbia since he could not find work in Winnipeg. In so deciding, the Court recognized at para. 14 that:
I do not doubt the importance to the boys of their having continuing contact with their mother -- and to a lesser extent with their grandparents -- and of them being spared the disruption of a move to British Columbia. But the judge's order virtually condemns them to a life of penury with a dissatisfied father bereft of work and dignity. The alternative is to empower the father to improve their lives and prospects from both a material and psychological standpoint.
Analysis
Credibility and Findings of Fact
[76] The Father testified for multiple days. He gave long, convoluted answers to questions that ought to have been answered simply. In cross-examination, he often did not answer questions directly but provided answers that furthered his position before the Court. I was left with the distinct impression that the Father was attempting to obfuscate on a variety of issues.
[77] Further, I note that the Father’s witnesses seemed able to specify the precise amount of time the Father spent on individual projects. This phenomenon strikes me as odd given the fact that these people would presumably have no reason to remember such mundane details.
[78] Equally, the substance of the Father’s position with regards to his time commitments strains credulity. The Father is involved in the community. He is driven. He is, by his own admission, a person who expects high levels of performance from himself and those around him. To suggest that such a person would not “go the extra mile” and put in long hours runs contrary to common sense. In order to have gained the success the Father achieved in the automotive sector in Detroit, and to have rebounded from his termination at SSMIC so quickly, the Father must have worked long and hard. For this, he is to be commended.
[79] He cannot, however, convince me that he only worked “normal” hours and that his work and community commitments did not affect his parenting. Anyone as hard-working as the Father will be drained at the end of a long day. Such a phenomenon undoubtedly accounts for the children’s appearance upon occasion. This is understandable in the circumstances and, frankly, not particularly bothersome. What is of greater concern, however, is that the Father did not admit the obvious – that he works long and hard and must have missed considerable time with the children as a result.
[80] This inference of paternal absence is corroborated by Mrs. Naccarato, who in cross-examination, indicated that the Father would be late for dinner as often as once or twice a week while he worked with SSMIC.
[81] The Father’s evidence regarding his move to his mother’s basement also causes me concern. When the parties were still together, the parents were on the same floor as the children so as to attend to their needs. Now that the parties are separated, it would make no sense for the Father – who played a lesser parenting role during the marriage – to move to the basement to accomplish the same task. The more likely version of events is that Mrs. Naccarato attends to the children when they waken at night.
[82] Thus, when I consider these evidentiary phenomena along with the Father’s admission about lying to the Mother regarding his termination at SSMIC, I am left with concerns about the Father’s testimony. [^4]
[83] It should be noted that the Mother has some minor testimonial issues. She testified that the parties moved to Sault Ste. Marie only for financial reasons. This position is an overstatement. In moving, the Father suffered an approximate $20,000 per annum pay cut while the Mother has, potentially, suffered a more significant pay reduction. Clearly, the move to Sault Ste. Marie was motivated by factors other than monetary concerns.
[84] As for the Father’s assertion that the Mother was less than honest in her representations when requesting leaves of absence, I do not believe that this concern amounts to anything. The Mother put her best foot forward when speaking with the Board and that which she stated to them was generally true. As such, her credibility is not particularly diminished even if she may have overstated the importance of taking care of her mother.
[85] Generally, I found the Mother to be an attentive and helpful witness. She gave specific answers to specific questions. Other than her statement regarding the reasons for the move, I found her evidence to be even-handed and common-sensical. In cross-examination, she generally conceded those points that ought to have been conceded including making the nuanced concession that the Father was generally a good parent despite the concerns she raised in examination-in-chief.
[86] Thus, given the Father’s weak evidence and the Mother’s generally strong testimony, where the Father and the Mother’s evidence diverge, I prefer that of the Mother.
[87] This finding is of particular importance as it relates to the Father’s involvement with his children. Specifically, I find that the Father was largely uninvolved in the children’s day-to-day lives up until the time of separation. I find that he worked very hard in an attempt to ensure the family’s financial well-being. I am not criticizing him for his industry. Indeed, it is to be admired. He was able to work hard for his family because his wife – with his mother’s assistance – was taking good care of the children. This is an entirely acceptable familial arrangement. With that being stated, however, the Father’s bonds with his children must be viewed in light of this traditional paternal role as it existed until 2014.
[88] After separation, the Father’s community involvement and work commitments demand that, while he did his best as a father, he undoubtedly relied upon Mrs. Naccarato for assistance far more than he would like the Court to believe. For example, given the bedroom discussion above, I find that the Father did not generally get up with his children at night. I also find that the Father has worked – and likely continues to work- evenings given the myriad of projects in which he is involved. Driven people succeed because they put in more hours than others. The Father is no different.
[89] Again, it must be stated that the Father is a good parent. I am satisfied that he is both kind and caring with his children. I am satisfied that he tries to attend to their needs as best he can. Nonetheless, the Mother’s level of involvement with the children is exemplary and her bond with her children undoubtedly reflects the strength of her parenting. Therefore, while the Father is a good parent and has positive ties with his children, those bonds are not as powerful as those between the Mother and the children.
[90] With respect to the Mother’s prospects of employment in Sault Ste. Marie, I find that they are indeed limited. Ms. Esposito was a highly-credible witness. She has a professional relationship with the Mother. She came to Court with no personal bias towards either party. She was frank in her analysis of the Mother’s current situation. She was largely untouched in cross-examination. I accept her evidence in its entirety. Accordingly, I find that the Mother’s chances of securing further long-term contracts with the Sault Board are limited while her chances of gaining full-time permanent employment are negligible.
[91] As for the Mother’s attempts to gain employment with other school boards, I am satisfied by the Mother’s testimony and the letter filed by the ADSB that there are no positions available to the Mother for the foreseeable future with the ADSB. Further, given Ms. Esposito’s testimony regarding the Mother’s fluency and Ms. Esposito’s concerns flowing therefrom, I find that the Mother has little, if any, chance of securing employment with the French-language boards in Sault Ste. Marie who, presumably, place a greater premium on fluency than do the English-language boards.
[92] I am also satisfied that the Mother has undertaken reasonable efforts to secure employment outside teaching. The Mother has attempted to secure employment in other environments including teaching at the Community College level. She has attempted to do that which is necessary.
[93] Thus, if the Mother were to stay in Sault Ste. Marie, I find that she is unlikely to secure employment that would pay anything approximating a teacher’s income.
[94] Finally, I am satisfied that both economic security and family relations are important to the parties. The Father attempted to indicate that the 2011 move from Windsor to Sault Ste. Marie was driven by the need to be close to family, while downplaying the importance of economic stability. This position ignores the fact that the parties waited more than two years to move (from the time of the Father’s father’s death at Christmas 2008 until the actual move in October 2011). The parties waited a long time for the Father to secure a good position with SSMIC before they moved to Sault Ste Marie. That extended wait clearly speaks to the parties’ need for financial security.
[95] As noted above, the Mother attempted to suggest in her testimony that the move from Windsor to Sault Ste. Marie was driven largely by economic factors. This testimony is belied by the fact that both the Father and Mother took pay cuts to move to Sault Ste. Marie.
[96] Thus, when I consider the weight to be given to the various considerations in Gordon v. Goertz, I ought not give undue weight to either financial or familial considerations since the parties clearly attempted to balance both family and finances when they made decisions regarding their children’s upbringing.
Gordon v. Goertz
[97] None of the parties argued the absence of material change in circumstance. This was an appropriate decision in so far as the expiration of the leave of absence would certainly constitute such a change. Accordingly, pursuant to Gordon v. Goertz, I must examine the circumstances of the children were they to move and their circumstances were they to stay in their current location in order to determine whether a move to Windsor is in their best interests.
Pro’s and Con’s of Staying in Sault Ste. Marie
[98] If the children and their mother were to remain in Sault Ste. Marie, the children would benefit from strong relationships with both parents and their extended families. It was clear from the evidence that the Father loves his children and tends to them in a reasonably good fashion. I am sure that there are occasions where the Father has left their hair unkempt or has not washed their faces as well as the Mother might have. That fact does not demand that I find him to be a less than capable parent. With regard to the most important facets of parenting – i.e. emotional support, guidance, etc. – I am satisfied that the Father does a reasonably good job. Therefore, the children benefit from being around the Father on a consistent basis.
[99] The children also get the benefit of seeing the Father work hard at improving his lot in life. This fact should not be underestimated. In the Courts today, judges often hear of the benefits of attentive parenting but seldom do judges hear about the intrinsic value of watching a parent work hard to achieve a goal. Success is driven by sacrifice. A child learns that lesson best when they see a parent sacrifice for the greater good.
[100] The major issue that would affect the children if they were to stay in Sault Ste. Marie is financial stability. [^5] The Father currently claims to earn approximately $66,000 per annum. This is not an insubstantial sum of money, but neither is it a considerable income. The Mother will, in all likelihood, only earn money from teaching on the occasional list. Counsel for the Mother suggested that her salary from these efforts will only approximate $30,000 this year. Based upon the pay stubs filed with the Court and the Mother’s most recent Financial Statement, this estimate appears reasonable.
[101] The Father’s counsel has indicated that the Father has effectively guaranteed the children that he will earn at least $90,000 per annum given his agreement to impute at least that much income for the purposes of support. With the greatest respect to counsel’s able submissions, the Father’s imputation agreement does not guarantee that the Father will be able to earn that sum of money. His income is now entirely dependent upon the Northern Ontario economy. Further, he has only been in business for himself for a year and a half. Accordingly, much of his anticipated salary is speculative.
[102] At current income levels, it will be hard for the parties to pay for extra-curricular activities, go on vacation or save for university. The children’s lifestyle will not be squalid, but neither will it be particular comfortable.
[103] Thus, if the children were to stay in Sault Ste. Marie, they would benefit from the love and affection of both sets of parents, their extended families, friends and community relations. Balanced against this phenomenon, however, is considerable economic uncertainty whereby it is possible that the children would not have a particularly comfortable lifestyle in light of their parents’ current – and possibly future – income levels.
Pro’s and Con’s of Going to Windsor
[104] While I disagree with the Mother’s counsel that the Father’s community and work commitments have had a negative effect upon the children, it must also be said that the nature of the bond between the children and the parents undoubtedly reflects the amount of time each parent spends with the children. As noted above, when the children are in the care of the Father, I am satisfied that Mrs. Naccarato does much of the parenting. As a result, the bond between the children and the Father, while strong, is not as strong as is the bond between the Mother and the children. Therefore, while a move to Windsor would undoubtedly affect the children in that they would not see their Father as regularly as they would if they stayed in Sault Ste. Marie, this concern can be mitigated.
[105] The Parenting Plan goes a long way towards mitigating this problem. If mobility is granted, the Father may have three (and occasionally four) weekends per month with the children. One of those weekends will be in Sault Ste. Marie. This will enable the Father to have considerable time with the children and to engage in meaningful parenting time with them. The children will also maintain reasonably close contact with their Sault Ste. Marie friends and relatives. I recognize that travelling poses risk to the parents and the children. I disagree that the winter travel concern is overriding. Many people travel regularly on the I-75 Interstate between December and March with little or no problem. The evidence disclosed that the parties and their families have generally been willing to travel between Sault Ste. Marie and Windsor, despite some concern regarding winter driving. If the Mother were to move the children to Windsor, it is clear that the Father and the children’s extended families would be quite willing to travel to see them.
[106] The Father also testified that he has considerable flexibility in his current employ. He testified that he has the ability to arrange his schedule to enable him to maximize his current contact with the children. I have not heard any convincing evidence to suggest that he cannot arrange his schedule so as to maximize his time with the children as per the Parenting Plan.
[107] I also note that the children appear to have a good support network in Windsor. They have aunts, uncles and cousins with whom they are close. The Mother has good friends upon whom she can call- not that the Mother would likely need much help. I am satisfied that the Mother undertook the vast majority of the parenting tasks up to separation without much help from the Father. In Windsor, the Mother’s work hours would mirror the children’s school commitments such that the Mother would undoubtedly be able to care for the children personally and attentively. It would thus not present too much of a challenge for the Mother to continue her parenting efforts in Windsor (where she has already parented largely on her own as a result of the Father’s lack of involvement).
[108] Thus, while a move to Windsor would undoubtedly disrupt the children’s lives, that disruption is mitigated by:
a) The Father’s limited involvement with the children; b) The Father’s ability to maximize access as stipulated by the Parenting Plan; and c) The Mother’s strong parental skills.
[109] The Father attempted to argue that the parties’ inability to settle the PA Day access and other such disputes should cause me to be concerned that, if the Mother were to move the children to Windsor, the Mother might not foster the Father’s relationship with the children. I disagree. I do not believe that she would interfere with the Father’s involvement with his children. On the contrary, the parties’ ability to resolve parenting issues like their recent dispute over attendance at a First Communion (as opposed to attendance at Dr. Gioa’s graduation dinner) cause me to believe that the parties are capable of resolving their differences. Further, the fact that the parties were able to develop the Parenting Plan also causes me to believe that they will be able to work together to further the children’s best interests.
[110] Economically, the children would benefit greatly from a move to Windsor. The Mother has a full-time permanent job in Windsor where she will earn $92,000 per annum. This sum of money will enable the Mother and Father to provide a good life for the children where they can enjoy some extra-curricular activities and the like. As I noted above, it is clear that community involvement and extra-curricular activities are important to these children and this family. Such activities are a strong positive influence in a child’s life and require a reasonable income in order to fund same. The costs of travel to Windsor will undoubtedly be mitigated by the fact that the Father can stay with his sister when he visits. The Mother will have to watch her spending but I am satisfied that a move to Windsor will give the children the benefit of financial stability- and an enjoyable lifestyle- that they would not otherwise possess.
Result
[111] Thus, while I realize that there are emotional benefits to the children remaining in Sault Ste. Marie, the disruption caused by a move to Windsor is more than offset by the following such that a move to Windsor is in the best interest of the children:
a. The Parenting Plan enables the Father to spend considerable time with the children; b. The Father has a flexible work schedule that would presumably enable him to take full advantage of the access schedule laid out in the Parenting Plan; c. The Father and the parties’ families have a history of travelling to and from Windsor for familial commitments; d. The Mother has a strong network in Windsor that includes members of the Father’s family; e. The children have a strong bond to their Windsor family, especially their cousins; f. The Mother’s strong parenting skills are such that she can operate effectively as a single-parent; and g. The financial benefits of a move to Windsor are considerable.
[112] Allowing the children to move to Windsor will provide the children with economic stability while still giving them meaningful time with the Father and their extended family. Staying in Sault Ste. Marie could potentially cause them undue economic hardship. Accordingly, while a move to Windsor would be disruptive to the children, its benefits outweigh its costs. The Mother is therefore granted leave to permanently move the children to Windsor effective August 25, 2016. She will adhere to the Parenting Plan and encourage the children to maintain a strong bond with their Father.
Varpio J.
Released: July 5, 2016