Court File and Parties

COURT FILE NO: FC-15-09 DATE: 2017/02/28 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Robert Clermont, Applicant AND Lindsay Amanda Addie, Respondent

BEFORE: Madam Justice Tracy Engelking

COUNSEL: Altynay TesheBaeva for the Applicant David Page for the Respondent

HEARD AT OTTAWA: January 17, 18, 19 and 20, 2017

REASONS FOR DECISION

Engelking j.

[1] This is a Motion for Change filed on January 5, 2015, by the Applicant father, Robert Clermont, in which he is seeking an order clarifying and/or specifying what is meant by “joint custody” of the child of the parties’ marriage, Gunner Rennie Addie-Clermont, born May 26, 2011, in the Final Order of Madam Justice Lafrance-Cardinal dated September 23, 2013. Mr. Clermont also seeks, inter alia, to have his access to Gunner as contained in that order more clearly specified such that there will be no disputes between the parties regarding same. In the event that joint custody order cannot be salvaged, Mr. Clermont seeks in the alternative an order of sole custody.

[2] Ms. Addie filed an Amended Response to the Motion to Change pursuant to an order of Master McLeod (as he then was) dated May 15, 2015, in which she seeks an order of sole custody of Gunner, as well as the right to move to British Columbia with the child. She additionally seeks “as little access as allowed by law, preferably none” to Mr. Clermont, retroactive child and spousal support and Section 7 expenses adjustments, a restraining order against Mr. Clermont, and the addition of a police enforcement clause in the order.

Legal Issues in the Case

[3] The main legal issues identified over the course of the trial are:

(a) Joint custody vs. sole custody by one of the parents of Gunner; (b) Mobility of Ms. Addie and whether she should be permitted to move to British Columbia with Gunner; (c) Specified Access by Mr. Clermont to Gunner; (d) Whether there is any retroactive child support, spousal support or Section 7 expenses adjustments and/or arrears to be paid by Mr. Clermont to Ms. Addie; and, (e) Whether a restraining order or police enforcement clause should be included in any final order.

Background Facts Relevant to the Issues

[4] The parties met in or about 2009, and married on March 11, 2011. One child, Gunner Rennie Clermont, was born of the relationship on May 26, 2011.

[5] In 2010, Mr. Clermont joined the Canadian Armed Forces, and was away on training for the early months of the marriage, during which time Ms. Addie, along with Gunner after he was born, stayed with her parents in Cornwall, Ontario. Mr. Clermont became a member of the Royal Canadian Dragoons posted to the Garrison in Petawawa, Ontario, and in November of 2011, he was able to obtain military housing on the base for himself, Ms. Addie and Gunner. Ms. Addie and Gunner moved to Petawawa, but the relationship did not work out, and at some point Ms. Addie moved back into her parents’ home in Cornwall. According to Ms. Addie, there was some violence in the relationship perpetrated by Mr. Clermont, and she left within weeks of moving to the base. According to Mr. Clermont, Ms. Addie left just after Gunner turned one, and went to live with her parents in Cornwall. The parties officially separated on June 26, 2012.

[6] Ms. Addie remained in the home of her parents until shortly after her mother passed away in 2014. In September of 2013, the parties entered into Minutes of Settlement which were then incorporated into an order of the Honourable Madam Justice Lafrance-Cardinal dated September 23, 2013. It is with respect to this order that the Motion to Change is brought.

[7] The Final Order is at Tab 8 of the Applicant’s Trial Record, and it provides as follows:

[8] The parties will have joint custody of the child, Gunner Rennie Clermont (“Gunner”), born May 26, 2011.

[9] Gunner will reside primarily with the Applicant Mother and she will make all day-to-day decisions regarding Gunner while he is in her care.

[10] The Respondent Father will have access to Gunner at least three weekends of every month, including but not limited to all PD days, and long weekends when he is not working. He will also have additional access during his leave periods and the Applicant agrees to be flexible regarding these periods.

[11] Once the Applicable [sic] Mother commences school in January, 2014, she will be entitled to have one weekend per month with Gunner, provided that her chosen weekend does not interfere with the Respondent’s long weekend.

[12] When Gunner commences junior kindergarten in September 2015, the parties agree that the Respondent Father can choose to remove Gunner from school on a Monday or Friday, in order to exercise a long weekend of access. Once Gunner commences senior kindergarten, the parties agree that he can miss one half-day of school in order to spend additional time with his father.

[13] The parties will share all major holidays between them.

[14] Commencing October 1, 2013, the Respondent Father will pay child support in the amount of $383.00 per month for the support of Gunner. This will be garnished from his wages, and enforced by the Family Responsibility Office.

[15] The parties will share equally any section 7 expenses for Gunner, including any medical or dental expenses which are not covered by insurance, and extra-curricular activities. The party wishing to incur the expense will obtain the other party’s consent to the expense prior to incurring the expense. Neither party will unreasonable [sic] withhold the consent to such an expense.

[16] Each party will be permitted to travel outside of Canada with Gunner, provided that they provide the other party with a detailed travel itinerary, contact information for the child during the period of travel and obtain the other party’s written consent. Neither party will unreasonably withhold their consent. The parties will each sign the passport application for Gunner, as well as any necessary travel consent forms.

[17] The parties agree to inform each other if they plan to travel with Gunner within Canada. Should the Applicant’s travel plans interfere with the Respondent’s scheduled access, the Applicant will provide the Respondent with replacement dates for access.

[18] For as long as he is required to pay child support, the Respondent Father will maintain a life insurance policy for the benefit of Gunner, naming his mother and the Applicant as Trustees on the policy. If requested, he will provide the Applicant with proof that this insurance policy remains in effect.

[19] For as long as he is requested to pay child support, the Respondent Father will maintain Gunner as a beneficiary on his medical and dental benefits, available through his employer.

[20] The parties agree to communicate regarding Gunner via text or e-mail, however, neither party will text or e-mail the other after 6:00 pm, unless there is an emergency.

[21] If the applicant Mother proposes to move outside of Cornwall or Ottawa areas, she will provide the Respondent with 90 days’ notice of the proposed move, and will not move with Gunner without the Respondent’s consent of a court order. The Applicant agrees that she will not move to any location that will interfere with the Respondent’s current access.

[22] The parties agree that they will change the child’s name to Gunner Rennie Addie-Clermont. The Respondent will sign any documentation necessary in order to complete the application.

[23] A Divorce Order shall issue.

[24] Unless the support order is withdrawn from the office of the Director of Family Responsibility Office, it shall be enforced by the Director and amounts owing under the support order shall be paid to the Director who shall pay them to the person to whom they are owed.

[25] This order bears interest at the rate of 3% percent per annum from the date of the Order Where there is a default in payment, the payment in default shall bear interest only from the date of default.

[26] For as long as child support is to be paid, the payor and the recipient if applicable must provide income disclosure to the other party each year, within 30 days of the anniversary of this order, in accordance with section 24.1 of the Child Support Guidelines.

[27] Mr. Clermont continued to reside in Petawawa, Ontario, and exercised his access to Gunner primarily in the home of his own mother, Gunner’s “Nona”, in Orleans. Mr. Clermont would drive from Petawawa to Cornwall – which he testified was about a three hour drive in good conditions, and closer to four in bad, pick up Gunner and then drive him back to Orleans to stay with the paternal grandmother. On occasion, Ms. Addie would drop Gunner off at his Nona’s home and Mr. Clermont would go directly there, but most often Mr. Clermont did the driving. This remained the case until the spring of 2014 when Ms. Addie began to arrange the pick-up and drop-off of Gunner at neutral locations in Ottawa.

[28] Ms. Addie testified that when her mother passed away she did not feel she could remain at her father’s home for various reasons, and it was at that point that she decided to move to the home of a friend, Andrew Bishop, in Ottawa. Ms. Addie and Mr. Bishop both testified that they had been friends since high school and although Mr. Bishop moved to Alberta to work in the oil patch, and then joined the Canadian Armed Forces in the Navy, they kept in touch. In or about 2013, Mr. Bishop was posted to Ottawa for a brief stint and he began to spend significant time with Ms. Addie and Gunner by visiting them in Cornwall. He was, at the time, looking for a roommate, and they decided Ms. Addie and Gunner would gradually move in with him, which they did by the end of March of 2014.

[29] Ms. Addie did not advise Mr. Clermont of her move to Ottawa, nor did she provide him with her address. Ms. Addie testified that she kept this information from Mr. Clermont on the advice of Police and CAS, however, she provided no documentation, nor called any witnesses from either to support this contention.

[30] Ms. Addie and Mr. Bishop both testified that they entered into a romantic relationship in or around September of 2014. From the testimony of Mr. Bishop, and his superiors, it was clear that Mr. Bishop (and, therefore, presumably Ms. Addie) was aware from the outset that he would eventually be returning to his “home port division” on the west coast in British Columbia.

[31] Ms. Addie informed Mr. Clermont by e-mail dated December 1, 2014, that she had made the decision to enrol Gunner in pre-school, and that Mr. Clermont was responsible for one half of the expense of doing so (Exhibit #45). She did not discuss the option of pre-school with Mr. Clermont, seek his consent to enrolling Gunner, or inform Mr. Clermont of the name of the school at which she had enrolled Gunner. She, moreover, appears to have registered Gunner as Gunner Rennie Addie, notwithstanding that her name was only added to the child’s last name as a result of the order of Lafrance-Cardinal, J. of September 23, 2013, and provided no information to the school on the child’s second parent (Exhibit #62).

[32] Similarly, Ms. Addie did not discuss with Mr. Clermont at which school Gunner should attend kindergarten, nor did she advise Mr. Clermont of which school he would ultimately attend. Mr. Clermont, for his part, surmised that Ms. Addie lived somewhere in or around the Uplands base due to the locations at which she arranged for the access exchange. He called the schools on/near the base to try to ascertain at which his child was registered, and was ultimately able to confirm that Gunner was a student at Elizabeth Park Public School in 2015. Mr. Clermont thereafter engaged with the Principal of the school, Ms. Tammy McCormack, who also testified. Once he did so, Mr. Clermont learned that he was not on the school’s “contact list” for his son, but that was rectified upon the Principal learning that he was a joint custodian of the child. Gunner was, once again, enrolled in school as Gunner Addie, not Gunner Addie-Clermont (Exhibit #63).

[33] Mr. Clermont testified that he put a “reminder app” from the school on his phone, which keeps him informed of the goings-on at school. He also keeps in regular touch with Ms. McCormick regarding updates on Gunner’s progress, and he was scheduled to volunteer at the school on one occasion in December of 2016, but that did not materialize due to Gunner being sent home that day. Ms. McCormick confirmed that Mr. Clermont keeps in touch with her, and described his interactions with her as “regular interaction between a principal and a parent”. She described Gunner’s reaction to seeing Mr. Clermont at school as “happiness”, and indicated that she observed characteristics of a strong child-parent bond between Gunner and Mr. Clermont.

[34] In late 2015, Ms. Addie became pregnant with Mr. Bishop’s child. Their son, Grayson, was born on August 14, 2016. According to Mr. Bishop, his current Commanding Officer, Lieutenant Commander Bedelle, and Petty Officer 1st Class Entwistle, Mr. Bishop has exceeded his stay in Ottawa as he was supposed to return to Esquimault last July or August, but was granted an extension to “give him a chance to resolve issues” here. Mr. Bishop has exceeded his shore to ship ratio, and must return to sea. He will, without fail, be posted to the HMS Ottawa in Esquimault between March and June of 2017.

[35] Mr. Bishop, moreover, was due to be promoted to Petty Officer 2nd Class last July, but that promotion was also delayed due to his extension in Ottawa. Mr. Bishop will nevertheless receive his promotion immediately upon his new posting. According to Petty Officer 1st Class Entwistle, Mr. Bishop will be posted to Esquimault for the rest of his naval career, of which 16 years remains of his 25 year contract.

[36] Mr. Clermont continued to exercise access to Gunner according to the order of Justice Lafrance-Cardinal of September 23, 2013. However, it was his evidence that it became harder and harder to negotiate times and arrangements with Ms. Addie to do so. It was his impression that matters became more difficult after Ms. Addie became involved with Mr. Bishop. Everything felt like a struggle to him, and communications between he and Ms. Addie were fraught with conflict. Of particular significance to Mr. Clermont was that he had no access at all to Gunner over the Christmas vacation in 2015. When he attended Gunner’s school to pick him up for access, he learned not only that Gunner was not there on that day, but that he had been absent the whole week.

[37] Ms. Addie characterized all of the parties’ contact, from pre-separation to the present day, as fraught not only with conflict, but with abuse and intimidation by Mr. Clermont. Ms. Addie portrayed herself as a victim of incessant efforts by Mr. Clermont to exercise control over her, and as fearful of him.

[38] The parties attended a Settlement Conference on January 4, 2016, and consented to an order by the Honourable Madam Justice Warkentin based on Interim Minutes of Settlement which provided as follows:

(1) The Applicant shall exercise access to the child of the relationship, Gunner Rennie Addie-Clermont, during the last three weekends of each month, commencing on Fridays at 6:30 p.m. and terminating on Sundays at 6:30 p.m. (2) All access exchanges shall take place inside the Tim Horton’s restaurant, located on Hunt Club road. (3) When the Applicant is available to do so, he shall be permitted to pick the child up after school on Fridays, at 12:30 p.m., provided that he gives the Respondent notice of his intention to do so on or before Thursday at 12:30 p.m. (24 hours in advance). (4) The Applicant shall have access during the Easter long weekend, commencing at the end of school on Thursday and terminating at 6:30 p.m. on Monday evening. Should the Applicant be unavailable to pick up the child at the end of the school day, he shall provide 24 hours’ notice of this, and pick up shall take place inside the Tim Horton’s restaurant at 6:30 p.m. instead. (5) The parties shall share the March Break holiday, such that the Applicant shall care for the child from Friday at the end of school until Wednesday at 12:00 p.m. (6) If the applicant is unavailable for reasons concerning work, illness, or unforeseen circumstance to pick up the child, he shall provide as much advance notice to the Respondent and shall advise as to the reason for his absence. (7) The parties shall not communicate with one another other than to address times of access exchanges as provided for by the terms of this order. (8) The respondent shall serve and file his updated Financial Statement within ten (10) days from the date of this order. (9) This matter shall be listed for trial during the May 2016 trial sittings.

[39] Justice Warkentin’s endorsement of that date indicated: “Held partial Temporary minutes of Settlement were entered into re: access schedule until trial. This matter shall proceed on the May 2016 trial sittings”.

[40] The matter was not reached in the May 2016 Family Law Trial Sittings, and Mr. Clermont interpreted that where Justice Warkentin’s order was silent on access post May 2016 (i.e. holiday access other than Easter and March break), Justice Lafrance-Cardinal’s order applied. Ms. Addie’s interpretation was that where Warkentin, J.’s decision was silent on access, there was none, “until trial”.

[41] As a result of their differing interpretations of the effect of Warkentin J.’s order, there continued to be conflict over holiday access in particular, including major conflict over the fact that Mr. Clermont unilaterally made the decision to keep Gunner from December 23, 2016 to January 8, 2017, in keeping with his view of the existing legal regime.

[42] On April 25, 2016, Mr. Justice Kershman made a final order on consent of the parties providing that Mr. Clermont would pay retroactive child support for Gunner to January 1, 2015 in the fixed amount of $2,068.00, and ongoing child support as of May 1, 2016 of $546.00 monthly. Kershman J. also imputed an income of $20,000.00 to the Respondent, and provided that Section 7 expenses were to be shared equally by the parties between January 1, 2013 and December 31, 2014, and on a pro-rata basis of 75% by Mr. Clermont and 25% by Ms. Addie thereafter.

The Positions of the Parties

[43] Mr. Clermont’s position is that there has been a material change of circumstances since the date of Lafrance-Cardinal’s order, and that change is Ms. Addie’s consistent and persistent failure to involve him as a joint custodian of Gunner. Mr. Clermont seeks clarification from the Court at to what constitutes “joint custody”, and he seeks reinforcement of the provisions of Lafrance-Cardinal’s order in a manner that will require Ms. Addie to actually treat him as a joint custodian of Gunner.

[44] Mr. Clermont’s further position is that Ms. Addie’s request for permission to relocate to British Columbia does not constitute a material change in circumstances for several reasons. First, she entered into an agreement, freely and with the benefit of legal advice, that provided that she would not “move to any location that will interfere with the Respondent’s current access” (paragraph 14, Final Order of Lafrance-Cardinal, J, dated September 23, 2013), such that relocation was within the reasonable contemplation of the judge granting the original order. Second, Ms. Addie was aware that Mr. Bishop would be returning to British Columbia at the time that she entered into a relationship with him. Third, Ms. Addie was aware that Mr. Clermont was objecting to any relocation of Gunner prior to her becoming pregnant with Mr. Bishop’s child, and that was a risk she was prepared to take knowing full-well that she could not relocate Gunner in the absence of Mr. Clermont’s consent or a further court order.

[45] Mr. Clermont’s further position that if Ms. Addie’s relationship with Mr. Bishop does constitute a material change of circumstances since the date of the last order, it would not be in Gunner’s best interests to relocate to British Columbia, in that it would negate the well-recognized legal principal of maximum contact with him, and with his many other family members.

[46] It is Ms. Addie’s position that her relationship with Mr. Bishop, specifically their newly formed family unit and his impending posting to BC, does constitute a material change of circumstances since the last order, and she should be permitted by the Court to move to the west coast with the children to join Mr. Bishop there.

[47] It is further Ms. Addie’s position that access by Mr. Clermont to Gunner is disruptive to him, and is not in his best interests currently, let alone such that it should prevent her from moving to BC with Gunner. It is Ms. Addie’s position that Mr. Bishop is Gunner’s “real” father, and that Mr. Clermont is nothing more than his “biological” father.

[48] It is further Ms. Addie’s view that the existing order of Justice Lafrance-Cardinal has never worked, and she has been unhappy with it from “day two”. She sees is as incredibly one-sided in Mr. Clermont’s favour, and attributes its’ failure to Mr. Clermont, in that he was never satisfied with what he got from it. Ms. Addie seeks to have the order varied to one of sole custody of Gunner to her, with very specified access to Mr. Clermont, whether she is permitted to relocate Gunner to British Columbia or not.

[49] Ms. Addie’s position should she be permitted to move with Gunner to BC is that if any access to Gunner by Mr. Clermont is merited, it should be limited to three weeks every summer, and three weeks every other winter commencing in 2018.

[50] Ms. Addie is also of the view that she is owed some retroactive child and/or spousal support and some retroactive Section 7 expenses, above and beyond Justice Kershman’s order, and that a restraining order against Mr. Clermont is required as is a police enforcement clause in any varied final order.

Material Change of Circumstances

Mr. Clermont

[51] In Gordon v. Goertz, 1996, CarswellSask 199, McLachlin, J. writing for the majority stated at paragraph 9 when discussing the principles set out in the Divorce Act relating to the variation of an order of custody and access:

The Act directs a two-stage inquiry. First, the party seeking variation must show a material change in the situation of the child. If this is done, the judge must enter into a consideration of the merits and make the order that best reflects the interest of the child in the new circumstances.

[52] In paragraph 10, McLachlin, J. stated:

Before the court can consider the merits of the application for variation, it must be satisfied there has been a material change in the circumstances of the child since the last custody order was made. Section 17(5) provides that the court shall not vary a custody or access order absent a change in the “condition, means, needs or other circumstances of the child”. Accordingly, if the applicant is unable to show the existence of a material change, the inquiry can go no farther: Wilson v. Grassick (1994), 2 R.F.L. (4th) 291 (Sask. C. A.).

[53] McLachlin J. stated further at paragraph 11 that:

The requirement of a material change in the situation of the child means that an application to vary custody cannot serve as an indirect route of appeal from the original custody order. The Court cannot retry the case, substituting its discretion for that of the original judge; it must assume the correctness of the decision and consider only the change in circumstances since the order was issued.

[54] Paragraph 49 of the decision sets out the regime that the Court is to apply in cases where variations of custody or access orders are sought.

[55] The challenge with which the Court is faced in the case at bar is that, unlike in Gordon, supra, the original decision was one which granted joint custody of Gunner to Ms. Addie and Mr. Clermont. The complaint of Mr. Clermont is that he was never able to assume the rights and exercise the responsibilities of a custodial parent to Gunner because Ms. Addie would simply not permit it, contrary to, indeed, in breach of, the existing court order. It is, nevertheless, that order of which I must assume the correctness.

[56] In her concurring reasons in Gordon v. Goertz, Justice L’Heureux-Dube, writing for herself and La Forest J., reviewed the law of custody. At paragraph 72, L’Heureux-Dube, J. quoted her own reasons in Young v. Young, [1993] 4 S.C.R. at pp. 37-38 thus:

Despite these changes over time with respect to who is regarded as the appropriate custodial parent, the nature and scope of custody itself have remained relatively constant. The chief feature of such orders was, and still is, the implied, if not explicit, conferral of parental authority on the person granted custody. The long-standing rule at common law is that an order of custody entails the right to exercise full parental authority. In the case of a sole custody order, that authority is vested in one parent to the exclusion of the other. (Emphasis is original)

[57] The opposite must be equally true: in the case of joint custody, the authority is vested in both parents.

[58] The variation being sought by Mr. Clermont is for joint custody to mean joint custody. Has Mr. Clermont met the threshold requirement of demonstrating a material change in the circumstances affecting the child? I think he has. The parties were intended to be joint custodians of Gunner, with each to assume all of the incidents of custody associated with that. Notwithstanding the order, Mr. Clermont never was.

[59] Although the parties agreed that the primary residence of Gunner would be with Ms. Addie, and she would make day to day decisions for him, Mr. Clermont was intended to be as involved with Gunner’s upbringing as she, including in relation to decision-making around such things as education, health and religion. Notwithstanding the order, he never was.

[60] The terms of Mr. Clermont’s access in the original order, moreover, make it very clear that he was intended to spend as much time as possible with Gunner, or as his employment permitted. As Mr. Clermont put it in his testimony, his consistent objective was that when he was not working, he would be with Gunner. Notwithstanding the order, he has not, or at least not consistently.

[61] Mr. Clermont’s inability to act as a joint custodian to Gunner, or in his terms “co-parent”, (1) amounts to a change in the condition, means, needs or circumstances of the child and/or the ability of the parents to meet the needs of the child; (2) materially affects the child; and, (3) was either not foreseen or could not have been reasonably contemplated by the judge making the original order; see Gordon, supra at paragraph 13.

Ms. Addie

[62] The variation being sought by Ms. Addie is for sole custody, and the Court’s permission to relocate with the child to British Columbia, thereby necessitating a consequent change to Mr. Clermont’s access as well. Ms. Addie submits that: (1) the joint custody order has never worked and therefore should be changed; and, (2) Mr. Bishops’ imminent posting to the west coast is a material change in circumstances such that a variation to Justice Lafrance-Cardinal’s order should be made. Has Ms. Addie met the threshold requirement of demonstrating a material change in the circumstances affecting the child?

[63] With respect to the first issue, Ms. Addie’s major complaint with the order of Justice Lafrance-Cardinal dated September 23, 2013, is that in her view, it does not work, and it has never worked. Ms. Addie attributes the order not working entirely to Mr. Clermont, stating that he was never satisfied, that he could never get enough. A review of the evidence demonstrates that this is true, in a literal sense at least. Mr. Clermont could never get enough, because he could not get Ms. Addie to acknowledge his role as Gunner’s other custodial parent. The documentary evidence of the e-mail exchanges between Mr. Clermont and Ms. Addie is rife with examples of Mr. Clermont’s efforts to get Ms. Addie to involve him prior to decisions being made, to provide him with information regarding medical and dental appointments prior to them happening such that he could participate, and to communicate with him in a manner that would foster their ability to “co-parent” Gunner.

[64] Ms. Addie simply refused, and interpreted every effort on Mr. Clermont’s part as him bullying her, intimidating her, not taking “no” for an answer, or controlling her. When one reads the email exchanges between the parties, it is clear that Mr. Clermont is looking for some measure of control, but it is over decision-making with respect to and involvement in Gunner’s life (to which he was legally entitled), not with respect to Ms. Addie.

[65] Additionally, although it was not part of Justice Lafrance-Cardinal’s order, Ms. Addie also attempted to dictate how, when and where exchanges of Gunner would take place, and when she was met with resistance by Mr. Clermont, for whatever reason, or was asked to pick Gunner up from his Nona’s in Orleans, Ms. Addie would again interpret this as Mr. Clermont attempting to control or bully her, as opposed to seeing any logic or value in his suggestions.

[66] Mr. Clermont expressed frustration in the face of Ms. Addie’s refusal to even acknowledge he had a right to be involved in custodial decisions, let alone involve him, and at times he was inappropriate in his manner of so doing. It is clear from some of the exchanges, and from Ms. Addie’s testimony, that there were incidents of communication which she found intimidating and demeaning. There were clearly exchanges between Mr. Clermont and Ms. Addie which were volatile, unreasonable, unhealthy and unnecessary. I find, however, that both parents contributed to that being so. Ms. Addie testified about Mr. Clermont calling her names, and telling her to “go ahead and cut herself”. Mr. Clermont, in email exchanges between himself and Ms. Addie, referred to Ms. Addie “freaking out” and creating unnecessary confrontation (Exhibit 29), acting hostile and angry in front of Gunner (Exhibit 9), and Ms. Addie herself repeatedly testified about the parents “screaming at each other” and fighting in the presence of Gunner. Although it is difficult from the evidence led to say in what measure, I find that both contributed to the conflictual dynamic between them.

[67] Although Ms. Addie described fearing for her safety, there were only two highly problematic face to face incidents described to the Court. The first was when Ms. Addie was still residing at the home of her father, Royden Addie, in Cornwall, so sometime prior to March of 2014, where the parties were yelling at each other, and Mr. Clermont was not leaving Mr. Addie’s driveway when requested. Mr. Clermont testified that on that occasion, Mr. Addie threatened to get his gun and shoot Mr. Clermont. Mr. Clermont went to the end of Mr. Addie’s driveway and called the police. Mr. Addie, in fact, admitted both to the police on the day in question, and to the court in his testimony, to using a “poor choice of words” on this occasion.

[68] The second occasion was on August 4, 2012, described as the “sea monkey” incident, wherein Mr. Clermont wanted to send sea monkeys he had purchased for Gunner home with him, and Ms. Addie was adamantly refusing to take them. The parties had a confrontation in front of the house in Orleans. Ms. Addie described it as Mr. Clermont getting in her space, refusing to take no for an answer and calling her a “bitch”. In his correspondence with Ms. Addie, Mr. Clermont describes her as freaking out and inappropriately exposing Gunner to her anger and hostility.

[69] Both Ms. Addie and Mr. Bishop also described an incident wherein Mr. Clermont is reported to have threatened Mr. Bishop by saying that he should join him in the garage so they could “settle this like men”, and asking Mr. Bishop which bar he frequented, as Mr. Clermont and his friends wanted to buy him a drink. According to Mr. Bishop, this incident was reported to the police, and he and Ms. Addie were asked if they wanted Mr. Clermont arrested. As Gunner was with Mr. Clermont at the time, they chose not to proceed having him charged. This incident also appeared to be sometime in 2014.

[70] Although there appeared to be some bickering at certain exchanges, there were no highly problematic incidents described to the Court for 2015 or 2016. Ms. Addie and Mr. Bishop state that this is because they made a conscious effort to stay away from Mr. Clermont, and contain access exchanges to public locations, usually inside a Tim Horton’s. At this point, I cannot say whether that is the reason or not.

[71] There were also examples of exchanges in the parties’ contacts which were respectful and focused on Gunner’s needs. Most of the efforts to which the Court was referred were initiated by Mr. Clermont; he sought to involve Ms. Addie in certain things when Gunner was with him, he sought Ms. Addie’s advice in relation to some of Gunner’s behavioural issues (which strategies he then implemented), at times he was apologetic for miscommunications, and he commented positively when he was provided with positive information. In some of his messages to Ms. Addie, Mr. Clermont is literally begging for them to establish some semblance of normalcy in their contact such that Gunner could actually witness his parents simply talking to each other in a healthy manner. Ms. Addie, however, showed no interest in engaging positively with Mr. Clermont. On the contrary, she usually directed Mr. Clermont not to seek to speak with her, period. She, moreover, very consistently referred to Gunner as “my son” in her communications with Mr. Clermont (as she did on the stand), while Mr. Clermont equally consistently referred to Gunner as “our son” in his communications with Ms. Addie (as he did on the stand).

[72] On the whole, I find that Ms. Addie has not succeeded in demonstrating that her issues with the order of Justice Lafrance-Cardinal dated September 23, 2013, (1) amount to a change in the condition, means, needs or circumstances of the child and/or the ability of the parents to meet the needs of the child; (2) materially affects the child; and, (3) was either not foreseen or could not have been reasonably contemplated by the judge making the original order.

[73] With respect to Ms. Addie’s second submission, Mr. Clermont responds that Ms. Addie’s choice of new partner was made knowing full well that: (1) Mr. Bishop’s posting to Ottawa in 2013 was temporary, and he would be returning to his home port in British Columbia; (2) Ms. Addie was subject to an order that she would “not move to any location that will interfere with the Respondent’s current access”; and, (3) Mr. Clermont would not be consenting to any potential relocation of Gunner to BC. It is Mr. Clermont’s position that Ms. Addie’s desire to join Mr. Bishop in Esquimault does not constitute a material change of circumstances.

[74] However, the fact of the matter is that Ms. Addie is in a relationship with Mr. Bishop, she has had a new child with him and her plan is to relocate to British Columbia with him and her children. This particular relationship and plan would severely affect the condition, means, needs or circumstances of Gunner and/or specifically the ability of Mr. Clermont to meet his needs; (2) materially affect Gunner; and, (3) was not foreseen or reasonably contemplated by Justice Lafrance-Cardinal at the time of the original order.

Best Interests of the Child

[75] Having found that Ms. Addie’s situation with Mr. Bishop does constitute a material change in circumstances affecting the child, I am directed by the Supreme Court of Canada to “embark on a fresh inquiry as to what is in the best interests” of Gunner.

[76] This is not a situation of Ms. Addie saying: “As the custodial parent, I am relocating with the child”, and Mr. Clermont saying: “That is a material change in circumstances, and I am, therefore, seeking to vary the existing custody order”. Pursuant to the existing order, Ms. Addie cannot move Gunner, because Mr. Clermont is joint custodial parent, and because Ms. Addie is subject to a provision of an order that she will not. The onus of demonstrating that relocating Gunner to British Columbia is in his best interests is, therefore, hers.

[77] In Gordon, supra, at paragraph 104, Justice L’Heureux-Dube stated:

Where, however, there is a covenant or court order expressly restricting the child’s change of residence, the onus should shift to the custodial parent to establish that the decision to relocate is not made in order to undermine the access rights of the non-custodial parent and that he or she is willing to make arrangements with the non-custodial parent to restructure access, when appropriate, in light of the change of residence of the child.

[78] In my analysis of Gunner’s best interests, I am guided by paragraph 49 of Gordon, supra, wherein McLachlin J. set out the law as follows:

1. The parent applying for a change in the custody or access order must meet the threshold requirement of demonstrating a material change of circumstances affecting the child.
2. If the threshold is met, the judge on the application must embark on a fresh inquiry into what is in the best interests of the child, having regard to all the relevant circumstances relating to the child’s needs and ability of the respective parents to satisfy them.
3. This inquiry is based on the findings of the judge who made the previous order and evidence of the new circumstances.
4. The inquiry does not begin with a legal presumption in favour of the custodial parent, although the custodial parent’s views are entitled to great respect.
5. Each case turns on its own unique circumstances. The only issue is the best interest of the child in the particular circumstances of the case.
6. The focus is on the best interests of the child, not the interests and rights of the parents.
7. More particularly the judge should consider, inter alia: a. The existing custody arrangement and relationship between the child and the custodial parent; b. The existing access arrangement and the relationship between the child and the access parent; c. The desirability of maximizing contact between the child and both parents; d. The views of the child; e. The custodial parent’s reason for moving, only in the exceptional case where it is relevant to that parent’s ability to meet the needs of the child; f. Disruption to the child of a change in custody; g. Disruption to the child consequent on the removal from family, schools, and the community he or she had come to know.

[79] I have already touched upon the existing custody arrangement. Ms. Addie’s evidence was that she understood the word “joint” to be nothing more than that, a word, and that it had no meaning. She understood, further, the reference in paragraph 2 of Madame Justice Lafrance-Cardinal’s order to “all day-to-day” decisions to mean that she had authority over all decision-making for Gunner. Ms. Addie acted as though this were the case, and as I have indicated above, experienced every effort of Mr. Clermont to suggest otherwise as him bullying or trying to control her.

[80] Ms. Addie registered Gunner in pre-school without consultation or consent from Mr. Clermont, and then informed him that he was responsible for 50% of its costs, but would not inform him where Gunner was going to pre-school. Ms. Addie registered Gunner in school without consultation or consent from Mr. Clermont, and then would not inform him of where Gunner would be going to school. Ms. Addie additionally registered Gunner in pre-school and school under the last name “Addie”, and did not include Mr. Clermont as a contact person for the school.

[81] When Mr. Clermont expressed wanting to attend Gunner’s first day of pre-school in January of 2015, Ms. Addie responded that he was prohibited from doing so. Mr. Clermont did not attend because he did not want to cause a scene. When Mr. Clermont expressed his intention to attend Gunner’s first day of school in September of 2015, Ms. Addie threatened to inform the school and the military police if he attempted to do so (Exhibit #61). Mr. Clermont did attend, but at a different time of day than Ms. Addie.

[82] Ms. Addie made medical and dental appointments for Gunner without consultation or consent of Mr. Clermont, and would only advise Mr. Clermont of the outcome after the fact, notwithstanding that Mr. Clermont consistently requested to know about appointments in advance so that he could arrange to attend. Ms. Addie took Gunner for a speech assessment without advising Mr. Clermont of the appointment, and only informed him of the results after the fact. Mr. Clermont only learned that Gunner required glasses when he went to pick him up from school and found him wearing same. Ms. Addie did not provide him with information about any optometry appointment in advance.

[83] Ms. Addie did all of this, notwithstanding Mr. Clermont constantly asking to know of appointments in advance, and advising Ms. Addie that decisions about school and medical issues were ones they needed to make together. At one point, on January 22, 2015, Mr. Clermont sent an e-mail to Ms. Addie, and in an effort to have her provide information about Gunner’s education so they could “come to a mutual agreement”, he stated: “We have joint custody, If your [sic] unsure what that means, you can just goggle [sic] it. Joint custody in Ontario” (Exhibit #50). This is but one example of many wherein Mr. Clermont refers in their correspondence to joint custody, joint decision-making, their responsibility to “co-parent”, or simply his desire for a more involved role in Gunner’s life. Ms. Addie, however, does not waiver, and stubbornly adheres to her own understanding of the order of Lafrance-Cardinal J. She continued to adhere to it in her testimony at trial.

[84] With respect to the second part of factor a., the relationship between the child and the custodial parent, the evidence led demonstrated that Ms. Addie has a very positive relationship with Gunner, and is a good and responsible parent. Ms. Addie, her father, Mr. Roydon Addie, her partner, Mr. Bishop, and her friend and her brother, all described Ms. Addie as a very dedicated and attentive mother. Mr. Clermont, in fact, recognized her to be a very good mother. Gunner has had his primary residence with Ms. Addie since his birth, and he has clearly done very well there. He is described by all who testified as a very smart boy who is loving, polite, considerate and energetic.

[85] Mr. Clermont also appears to have a very positive relationship with Gunner, notwithstanding Ms. Addie’s belief or her efforts to convince the court otherwise. Mr. Clermont testified as to the nature of his relationship with Gunner, as did his father, Mr. John Clermont, and his sister, Jennifer Gagne. They all described a very warm, close, comfortable and loving relationship between Mr. Clermont and Gunner. Even the school Principal, Ms. McCormick noted “a strong child-parent bond” between them. One can only wonder how much stronger that bond and/or relationship might have been had Mr. Clermont been permitted to be as involved with Gunner as he had hoped and intended.

[86] Because Gunner’s primary residence has been with Ms. Addie, and Mr. Clermont has exercised access to him, factor b., the existing access arrangement and the relationship between the child and the access parent, is also important to review. Mr. Clermont testified that he saw little of Gunner prior to the September 2013 order as Ms. Addie would only permit short visits. He indicated that he would drive to Cornwall and spend a few hours with Gunner. In the summer, Mr. Clermont would take Gunner to a park and have a picnic or play there.

[87] After the order was granted in September, Mr. Clermont indicated that he started to exercise his access to Gunner at the home of his mother, Celeste, in Orleans. Thus, between September of 2013 and sometime in and around March of 2014, Mr. Clermont would drive to Cornwall for up to three weekends of the month, and for holidays and his leave time, pick up Gunner and drive him back to Orleans, spend his access time with him and then take him back home, and drive back to Petawawa. Mr. Clermont indicated that there were times when Ms. Addie would drop Gunner off at this mother’s in Orleans, but most of the time he did the transportation. Mr. Clermont testified that this remained the case until Ms. Addie started to arrange pick up and drop offs of Gunner in Ottawa, at which point he surmised that she was likely no longer living in Cornwall.

[88] Mr. Clermont indicated that when he first started exercising access with Gunner things went fairly smoothly but that at some point, which he thought was around the time that Mr. Bishop became involved with Ms. Addie, it started to become more difficult to make simple arrangements. Mr. Clermont testified that it was his intention to be with Gunner when he was not working. That was why the reference to “additional access during his leave periods” in paragraph 3 of the September 23, 2013, order was important to him. Mr. Clermont took it to mean that he would have three weekends per month, including PD days and long weekends when he was not working, and access when he was otherwise on leave. Both Ms. Addie and Mr. Clermont testified that leave in the military is limited to seven weeks a year. Although Mr. Clermont was never sure when he would have those seven weeks, it was his hope and intention that he would have Gunner with him when he did.

[89] Ms. Addie testified that she did not take the order to mean that Mr. Clermont would have all of his leave time with Gunner, but that the reference to her being flexible in paragraph 3 meant that she would make arrangements with Mr. Clermont during his leaves. Ms. Addie indicated that she would usually offer that Mr. Clermont have Gunner for half of the time he was on leave.

[90] Additionally, paragraph 6 of the September 23, 2013 order ensured that major holidays would be shared between Mr. Clermont and Ms. Addie. For the most part, the parties appeared to do that, with a few major exceptions. The first was Christmas of 2015, when Mr. Clermont did not have Gunner for any time over the Christmas holiday. Mr. Clermont, in fact, attended Gunner’s school on December 18, 2015 to pick him up for his holiday and/or leave time, and was informed by school staff that Gunner had not been in school all week. Mr. Clermont attempted to get the assistance of the Military Police in obtaining some kind of access to Gunner, but was not successful. Notwithstanding that Ms. Addie had confirmed in an email to Mr. Clermont dated November 2, 2015, that he was “entitled to Christmas Day this year as I had him last year” (Exhibit #28), Ms. Addie provided no explanation as to why Mr. Clermont was not provided with any time with Gunner, except to say the parties could not agree on an appropriate exchange location. Ms. Addie did not explain why Gunner was not present in school from December 14 to 18, 2015, nor why that would not have been an appropriate pick up location.

[91] The second occasion where “major” holiday access was a problem was Thanksgiving of 2016. As was indicated in paragraph 19 above, on January 4, 2016, Justice Warkentin granted a temporary order on consent specifying Mr. Clermont’s access pending trial, which was scheduled for the May 2016 trial sittings. Justice Warkentin’s order spoke to his three weekends a month (specifying them to be the last three), Easter long weekend and March Break. It did not speak to anything beyond the March break holiday, but the trial did not proceed in either the May or September 2016 trial sittings. Thus, in anticipation of Thanksgiving, Mr. Clermont’s counsel wrote to Ms. Addie’s counsel (Exhibit #4) in an effort to work out the sharing of the holiday. Ms. Addie, through her counsel, took the position that Mr. Clermont was limited to the last three weekends of every month as a result of Justice Warkentin’s January 4, 2016 order. The parties were, thus, unable to work out any sharing of the Thanksgiving weekend of 2016.

[92] The third occasion of problematic “major” holiday access was Christmas of 2016. Mr. Clermont’s counsel again sent correspondence to Ms. Addie’s counsel (Exhibit #’s 5 and 6) attempting to come to an agreement about the Christmas vacation. As he had not had any access with Gunner for Christmas 2015, Mr. Clermont was seeking to have Gunner from December 16, 2016 to January 8, 2017, with the exception of Ms. Addie having him for December 23 and 24. Ms. Addie’s response, through her counsel, was the same as it had been for Thanksgiving, that Justice Lafrance-Cardinal’s order was “impunged” [sic] with that of Justice Warkentin, and that Mr. Clermont’s access to Gunner was limited to the last three weekends of every month. Ms. Addie’s position was that Mr. Clermont was scheduled to have Gunner for the weekends of December 17 and 18, 24 and 25, and 31 and January 1, 2017, and she was not prepared to discuss any more, as those weekends encompassed the major holidays in any event. Mr. Clermont attempted to bring a motion to seek clarification as it was his position that in the absence of anything specific in the Warkentin, J. order, the Lafrance-Cardinal, J. order prevailed. Unfortunately, he was not able to have a motion heard due to a previous order of Justice Kershman which provided that there could be no further motions in the case without leave of the court. On the morning of December 24, 2016, Mr. Clermont sent an email to Ms. Addie indicating that he would be returning Gunner to her on January 8, 2017 due to the fact that she had had Gunner for all of the December 2015 Christmas holiday, and pursuant to the order of Justice Lafrance-Cardinal.

[93] Given the history of this matter, and the fact that Mr. Clermont has had shared holidays and leave time since September of 2013, including shared holiday time ordered by Madam Justice Warkentin, it is hard to comprehend how one could think that Justice Lafrance-Cardinal’s order no longer applied where Warkentin, J.’s was silent. The order of Warkentin, J. was a temporary order, and it only varied very specific provisions of the 2013 order; it did not vary them all. Lafrance-Cardinal, J.’s order was a Final Order, and its’ provisions which were not altered by temporary consent order remained in effect until trial. Indeed, varying the order of Lafrance-Cardinal is the entire purpose of the trial, and it makes no sense to think it no longer in effect prior to same. Thus, while I cannot condone the manner in which Mr. Clermont ended up with Gunner over Christmas of 2016, I do not find that he acted unlawfully. The issue of the parties “shared” holiday access should have been arranged in accordance with Justice Lafrance-Cardinal’s order, and the parties’ practices since 2013 (with the exception of Christmas of 2015, when it also should have been appropriately shared).

[94] Overall, Mr. Clermont has exercised access to Gunner in accordance with Justice Lafrance-Cardinal’s order. By Ms. Addie’s accounting alone, Mr. Clermont exercised 82 days of access in 2014, 112 days of access in 2015 (this does not, of course, include any time over Christmas 2015), and 61 days up to August 25, 2016 (this does not, of course, include any time post-August and over Christmas 2016). Mr. Clermont has been driving from Petawawa, Ontario to do so on every single occasion. Notwithstanding that he has not exercised all of the access to which he was entitled (Ms. Addie referred to this as access he “forfeited”), Mr. Clermont has been a dedicated access parent.

[95] As to the quality of Mr. Clermont’s access with Gunner, I find that Mr. Clermont has been able to foster a warm, loving and close relationship with his son. Mr. Clermont clearly loves Gunner deeply, and Gunner loves him. Mr. Clermont described their time together as full of affection, activity, learning and fun. Mr. Clermont described employing the tactics that Ms. Addie advised him of in terms of calming Gunner down and getting him to listen. Mr. Clermont talked about getting down to Gunner’s level, making eye contact with him, calming him and getting him to breathe. He described encouraging him when he does well and helping him focus when needed. Mr. Clermont described reading to Gunner, and helping him with counting, and identifying letters and sounds. Mr. Clermont described doing many activities with Gunner, both indoors and out, and he provided the court with pictures of some of their times together which show father and son both clearly enjoying the activities in which they are engaged.

[96] Because Mr. Clermont exercises his access to Gunner in the home of his mother, Celeste, she too is described as having a similar and special relationship with Gunner. I will examine that relationship and others more thoroughly under factor g. below, but do note that in addition to exercising his access at Gunner’s “Nona’s” home, Mr. Clermont also regularly takes Gunner to the home of his father, John Clermont and his partner, Faisa, and visits with his sister, Jennifer, her husband, Chris, and their two children, Abigail and Cloe. Mr Clermont also maintains a close relationship with Ms. Addie’s sister, Ashley, and her son, Hunter, with whom Gunner spends significant time during Mr. Clermont’s access. Mr. Clermont also frequently takes Gunner to the home of his cousin, Joe Romeo, in Rockland, who, along with his wife and their three children, has close ties to Gunner.

[97] With respect to factor c., in a Motion to Change I am directed by the following subsections of Section 17 of the Divorce Act:

(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, needs 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. (6) In making a variation order, the court shall not take into consideration any conduct that under this Act could not have been considered in making the order in respect of which the variation is sought. (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 is 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.

[98] Paragraph 108 of Gordon v. Goertz, supra, sets out:

Although the Act makes clear that the best interests of the child is the only consideration to be taken into account in making orders concerning children (ss.16(8) and 17(5)), in assessing those interests, a number of factors must be considered, not the least of which is the desirability of promoting maximum contact between the child and the non-custodial parent, as the Act also makes clear (ss. 16(10) and 17(9)).

[99] Ms. Addie’s access proposal, should she be permitted to relocate with Gunner to British Columbia, is for Mr. Clermont to have Gunner for three weeks during the summer when he has his leave and three weeks every other winter during his leave commencing in 2018. Mr. Clermont is to communicate once by email by a specified date to a specified email account as to the dates he is seeking, and if, for any reason, he misses that deadline, his access to Gunner will be considered “forfeited”.

[100] Although that is her proposal, Ms. Addie’s actual position is that access by Mr. Clermont to Gunner is not in Gunner’s best interest. In her view, Gunner would be much better off in his new family unit, with his new “father”, without the disruption of having access to Mr. Clermont. Ms. Addie testified that Gunner would not miss Mr. Clermont if he didn’t see him, as “he would be with his dad”, and that “in an ideal world, Gunner would not have to see this person anymore”. She stated that in her view, Gunner seeing Mr. Clermont “every weekend was holding him back, disrupting his harmony”. Notwithstanding the testimony the Court heard with respect to the nature of the relationship between Gunner and Mr. Clermont, Ms. Addie was clear that she sees no value in it whatsoever.

[101] Regarding Gunner’s views, in so far as they can be ascertained, I am directed to three out of court statements made by him which Mr. Clermont sought to have admitted on voir dire as exceptions to the hearsay rule for both state of mind and truth of their contents. The first was a statement made in or about January of last year by Gunner to his father, Mr. Clermont, in the presence of the school Principal, Ms. McCormack, and Gunner’s teacher, Ms. Winter. It occurred when they were walking down the school hallway getting ready to leave, and Gunner stated: “Mommy tells me that you’re scary. Andrew tells me that you’re scary.” Mr. Clermont testified that none of he, Ms. McCormack nor Ms. Winter prompted Gunner, and no questions were asked; rather, the child’s utterance was completely spontaneous.

[102] The second statement of Gunner’s which Mr. Clermont sought to be admitted was made to his grandfather, Mr. John Clermont and his partner, Faisa, in or about November of 2016. According to John Clermont, Faisa and Gunner were having breakfast, and Faisa was talking about a funny dream she had. Gunner stated: “I had a dream too”. Faisa asked what it was and Gunner stated: “There was a man in my house and he said I won’t see my cousins anymore, Auntie Jen and Chris, Nona. I won’t see my daddy anymore”. John Clermont described Gunner as just sitting at the table with his head down a bit, and but for Faisa asking what the dream was, nobody had prompted Gunner or asked him any other questions. John Clermont stated that Gunner just started talking about it on his own. Mr. Clermont testified that he did not write down the statement but he remembered it clearly because it “struck” both he and Faisa, and they talked about it after Gunner left.

[103] The third statement was also made to Mr. John Clermont a couple of weeks prior to the dream statement. John Clermont testified that he was driving Gunner to drop him off with Ms. Addie, and Gunner said he “was moving to BC but don’t tell mommy, it’s a secret”. John Clermont stated he did not ask Gunner any questions, before or after the statement, Gunner simply stated it while they were driving. Mr. John Clermont did not write down the statement, but indicated that he remembered it clearly because he discussed it with his daughter, Jennifer, afterwards.

[104] In the case of Family & Children’s Services of St. Thomas and Elgin v. A.C., 2013 ONCJ 452, Tobin J. sets out the following principles to be considered in determining whether out of court statements are to be admitted:

1. Before evidence can be admitted, it must be both relevant and material.
2. Hearsay evidence is an out of court statement offered for the truth of its contents.
3. An out of court statement offered for the truth of its contents is presumptively inadmissible unless it falls within a traditional exception or is admitted under the principled approach.

State of Mind

4. One traditional exception is a statement which expresses a person’s contemporaneous “state of mind.” A basis for this exception is that the person who heard the statement can attest to it by observing accompanying behaviour and demeanor of the child and relay that to the court. What is not permitted through this exceptions is a statement of current feelings that contains a description of a past event. (Thomson, D.A.R., Are There Any Rules of Evidence in Family Law? 2003-2004 CDM. F.L.Q. 245 at 288-289)
5. In Professor Thomson’s article entitled Hearsay and Exceptions to the Hearsay Rule (Niman, H. Evidence in Family Law, Chapter 9-9:40:60) he sets out the following five basic requirements that must be met for this category of statements to be admissible under the “state of mind” exception: (i) a statement asserting a condition or state; (ii) the statement must describe a contemporaneous physical, mental or emotional state of the declarant; (iii) the statement may not describe the cause of the state, whether it be past or present events; (iv) the mental state can include a person’s present intention to do a future act; and (v) the statement must not be made under circumstances of suspicion.

Truth of Contents

6. The principled approach requires a consideration of a two factored test: (1) Is it necessary to receive the evidence from a third party? Counsel for the respondents conceded that the necessity component was met. I agree with counsel’s position and find the necessity requirement has been met. See Collins v. Tetrie, [2003] O.J. No.2744 (Ont. S.C.J.). (2) Is the evidence reliable? The reliability factor refers to threshold reliability. Reliability is met where the statement is made in circumstances which provide sufficient guarantees of its trustworthiness. The questions asked are: (i) has the statement been recorded accurately and objectively; and (ii) are there factors that undermine the reliability of the child’s statement.

7. The evidence surrounding the making of the statement is to be considered in order to make a determination of the threshold reliability. The inquiry at this stage is not to address ultimate reliability and the weight to be given to the statement. This assessment is to be part of the fact finding process of the trial judge.

[105] I find that all three statements are admissible in that they are relevant and material as it relates to Gunner’s views, they were in each circumstance uttered spontaneously, without questioning or prompting by those to whom they were made, and they meet the tests of necessity and reliability. With respect to necessity, Gunner is five years old; he cannot and should not be expected to testify in a dispute between his own parents. With respect to reliability, the circumstances of the making of the statements contain sufficient guarantees of their trustworthiness. I would admit all three statements; the first and third statements as state of mind exceptions and as to their truth and content. Gunner himself situated the second statement as a “dream” and I would, therefore, limit its admissibility to a state of mind exception.

[106] Ms. Addie also testified to an out of court statement made by Gunner in the same vein, noting that on one occasion when she picked Gunner up, he came out crying and upset, saying: “I’m so sad; my dad told me I am never going to see him again”. Ms. Addie’s counsel did not seek to have this statement admitted by a voir dire, so I will not consider it for its truth.

[107] From the tenor of the statements that have been admitted, I find that Gunner is clearly affected by the prospect of moving to British Columbia and never seeing his dad. He is also affected by the thought of not seeing his cousins, with whom he is very close, or his aunt, uncle and Nona. He has, moreover, been told that his father is scary, which is very much in keeping with Ms. Addie’s point of view.

[108] Ms. Addie’s reason for moving is only relevant in so far as it relates to her ability to meet Gunner’s needs. Her reason for moving is because she is in a relationship with Mr. Bishop, has had a child with him and she wishes to follow him to his posting in British Columbia. This speaks to her wishes and desires, but it does not speak to her ability to meet Gunner’s needs.

[109] Ms. Addie testified that she is currently completing her education in the field of Human Resources Management, and that she would have an opportunity available to her in BC in this field because Mr. Bishop has a friend whose wife works in the field and would have a position for her. However, Ms. Addie still has two and half semesters (12 courses) to complete her education, so the availability of a position is neither here nor there in terms of her ability to meet Gunner’s needs currently. Further, Ms. Addie provided no information with respect to her job/career prospects in the field of Human Resource Management in Ottawa.

[110] Mr. Bishop testified that Ms. Addie would not be able to stay in the military housing in which they currently reside once he is posted to Esquimault; rather, she would have to obtain housing in Ottawa otherwise. Beyond that, and her desire to form a family unit with Mr. Bishop, Gunner and Grayson, little evidence was provided as to how a move to BC would affect Ms. Addie’s ability to meet Gunner’s needs.

[111] Gunner would certainly be disrupted by a change of primary residence. He has lived with Ms. Addie since his birth, and she has been his main caregiver. Mr. Clermont is seeking a change in that situation only in the event that Ms. Addie is moving to British Columbia. Mainly, he is seeking to have the joint custodial arrangement recognized, clarified and enforced. However, Mr. Clermont is prepared to assume primary residence of Gunner, if necessary. Mr. Clermont testified that he has been asking to be posted to Ottawa, either in the Reserves or to Connaught Range. Mr. Clermont testified further that if Gunner were in his primary care, he would request to move to Ottawa and seek military housing near Gunner’s school. If that were not possible, Mr. Clermont indicated that Gunner could reside with him on the base in Petawawa, which both he and his Troop Warrant Officer, Micheal MacKenzie, described as very family friendly with a myriad of resources available, including Little Troopers’ Daycare, schools, the Family Resource Centre, and grocery stores. While primary residence with Ms. Addie and Grayson would be optimal for Gunner, I find that his father would certainly be capable of meeting his needs, if required.

[112] Finally, with regards to the disruption to Gunner consequent on removal from family, schools, and community he has come to know, I have touched previously on some of the other relationships Gunner has. Mr. Clermont’s father and sister testified, as did Ms. Addie’s father and brother, Huntley, from Montreal. Gunner has significant contact with many of his relatives on both sides of his family, but particularly on Mr. Clermont’s side of the family.

[113] Mr. Clermont testified that because he exercises his access to Gunner in the home of his mother, and has done so since he started having significant access subsequent to the 2013 order, Gunner has a very special relationship with his Nona. Mr. Clermont stated that his mother, Celeste, has been as involved with Gunner as he has, and that Gunner loves his Nona. Gunner is polite and respectful with her, and he tries to help her out because he realizes that she is “a little hurt” with her arthritis. Mr. Clermont described Gunner waking Nona up on weekends, and the two of them making pancakes together on Sunday mornings as their thing. Nona helps out caring for Gunner, teaching him what she can and doing activities with him such as painting, crafts and cooking. They like to cook spaghetti together. In addition to Nona, Mr. Clermont described Gunner being part of the neighbourhood in which she lives, including having neighbourhood friends, particularly Logan and his sister, with whom he plays and whom are invited to his house and birthday parties. Mr. Clermont and Gunner do activities in Orleans, such as swimming, bowling and going to a Cosmic Adventures type of facility.

[114] Mr. Clermont, and his sister, Ms. Gagne, also described Gunner being exceptionally close to his cousins, Cloe (7) and Abigail (10), but particularly Cloe as they are closer in age. Both described that they all have family dinners at Nona’s house every Sunday. Cloe and Gunner spend all of their time together, running around the house, playing hide and go seek and other games, watching movies and snuggling together. Ms. Gagne testified that her family sees Gunner most weekends when Mr. Clermont is in town, and more frequently on his leaves and during vacations. Ms. Gagne described Gunner as an important part of her life and the life of her family. She indicated Gunner is always excited to see her, and greets her with affection, hugs and kisses. She describes the children (Gunner, Cloe and Abigail) as always being excited to see each other. Ms. Gagne indicated that she and her husband, Chris, have had a pool at their home for nine years, so Mr. Clermont and Gunner are often there in the summer enjoying the pool with the family. Ms. Gagne stated that they also all get together for special family occasions, meaning her family, her mother, her father and his partner, Mr. Clermont and Gunner. Sometimes Ms. Addie’s sister, Ashley, and her son, Hunter, are included in those special occasions.

[115] Mr. Clermont testified that he had maintained a good relationship with Ashley, and as a result, Hunter spends a significant amount of time with him and Gunner. Mr. Clermont stated that he and Gunner see Hunter every other weekend, and sometimes every weekend they are together in Orleans. He described Hunter and Gunner as “best buds”, and stated that Hunter also often accompanies them to Mr. Clermont’s cousin’s home in Rockland. Joe’s three girls, aged 19/20, 16 and 15, love having Gunner over, play with him in the pool and spend time with him otherwise. It was on one occasion at his cousin’s home that the girls had Gunner try out a child sized four wheeler. Gunner wore a helmet and Mr. Clermont walked along side it to supervise him. Unfortunately, when he was getting off of the machine, Gunner touched his leg on an exhaust pipe and sustained a burn. Ms. Addie’s testimony was that the burn that Gunner sustained on this occasion, which did not require medical attention to treat, was demonstrative of Mr. Clermont’s neglect and lack of capacity to parent. She was of the view that it was either illegal or irresponsible for Gunner to be allowed to drive the ATV. Mr. Clermont’s counsel produced a document from the Ministry of Transportation of the Government of Ontario website which confirmed that: for off-road driving, an ATV/ORV driver must be at least 12 years old, unless directly supervised by an adult or while driving on land occupied by the owner of the ATV/ORV”, and requested that I take judicial notice of it, which I have done. In relation to the burn, Mr. Clermont readily admitted that Gunner should have been wearing pants. However, Mr. Clermont reported that Gunner loved it and had a great time.

[116] Finally, Mr. Clermont testified that he also takes Gunner to see his father, Mr. John Clermont, at least once whenever they are together. Gunner calls John Clermont “Pop Pops”. Mr. John Clermont testified that he works as a home inspector seven days a week. He lives in Navan, Ontario, with his common law partner, Faisa, who is a psychologist. Mr. Clermont testified that he sees his son and Gunner two to three times a month, sometimes one, but that no month is ever the same because it depends on when Robert Clermont has Gunner, and when he, John Clermont, is working. Mr. John Clermont testified whatever it is, it is never enough. He loves Gunner dearly, and Gunner loves him. Gunner runs to him, and hugs and kisses him when he arrives and leaves. According to John, Gunner is always asking and looking for Faisa, and when they find each other in the house, they will talk for an hour. Faisa does equine therapy, and Gunner loves her horses. Gunner also loves trains, and John Clermont got him a train and set it up in his dining room. Mr. John Clermont went over a number of photographs in his testimony, which demonstrated that he, Gunner and other family members engaged in many activities together. It was very apparent from the photographs and Mr. John Clermont’s descriptions of them that the time spent and relationship with Gunner is very close and warm. Significantly, Mr. John Clermont testified that one of the persons who would be most significantly affected if Gunner moved away, besides his son, Rob, is his ex-wife, Celeste, whom he described would be “devastated”. Mr. Clermont ended his testimony by indicating that Rob and Gunner were welcome to come and live with him and Faisa, should they ever be in need of a home.

[117] Robert Clermont testified that he and Gunner go for “sleepovers” with all of Jennifer and Chris, John and Faisa, and Joe and his family. They, thus, don’t just visit, but stay for extended visits. Mr. Clermont and other members of his family testified that Gunner is comfortable and happy at all of their family homes, whether in the presence of Mr. Clermont or not.

[118] Mr. Roydon Addie testified that he sees Gunner approximately once a month, or once every two months, usually for the day and supper. Mr. Addie has a son, Josh, who lives in Kanata with his four children, and he indicated that he didn’t think there was much contact between Gunner and them. He indicated that he was aware that there is some interaction with his son, Huntley’s daughter, Cloe, from Montreal. Huntley Addie testified that he had seen Gunner “three to five times under various circumstances, could be more, but definitely not less”.

[119] Mr. Addie’s other children, of which there are seven in total, live elsewhere and don’t appear to have too much contact with him or Ms. Addie. Neither Ms. Addie nor Mr. Addie explained why Hunter’s relationship with Gunner is facilitated through Mr. Clermont, and not the Addie family.

[120] Mr. Bishop and Ms. Addie testified that Gunner also visits with Mr. Bishop’s mother in Carleton Place and his father in Cornwall about once a month.

[121] Based on all of the above, I cannot find on the facts before me that it is in Gunner’s best interests to move to British Columbia. In keeping with section 17(9) of the Divorce Act, I can feel no confidence that Ms. Addie can promote or adhere to a maximum contact principle that is consistent with the child’s best interests, because she does not believe any contact with Mr. Clermont is consistent with Gunner’s best interests.

[122] Had Ms. Addie come to court recognizing the value of Gunner’s relationship with Mr. Clermont, and with his family, for Gunner’s sake, and submitting that in order to be permitted to move to British Columbia she was proposing an access regime that saw Gunner being with Mr. Clermont on every possible opportunity, including all or most of the summer vacation from school, every March break, time over every Christmas vacation, possibly alternating Christmas Eve/Day in some manner, and for whatever other leave Mr. Clermont might be able to get, I might have found otherwise. I am, unfortunately, unable to do so. Mr. Clermont’s counsel submitted that if Ms. Addie is permitted to relocate Gunner to British Columbia, it is “the beginning of the end” of Mr. Clermont’s relationship with Gunner. With this characterization I must agree. Ms. Addie does not support Gunner seeing Mr. Clermont, and testified that even now, in Ottawa, she does not see it to be in his best interests. If Gunner moves to BC, he will possibly cease to have any relationship, but certainly cease to have any meaningful relationship, with his father.

Retroactive Child Support

[123] With respect to the issue of retroactive child support, I note that Justice Kershman issued a final order dated April 25, 2016 fixing arrears for retroactive support to January 1, 2015 at $2068.00 and ordering Mr. Clermont to pay $546.00 per month commencing on May 1, 2016. When I sought clarification from counsel on Ms. Addie’s position, she was seeking retroactive support at the Federal Child Support Guidelines Table amount for September to December of 2013, and for all of 2014 based on Mr. Clermont’s 2014 income. However, the parties had entered Minutes of Settlement which were incorporated into the order of Justice Lafrance-Cardinal on September 23, 2013. Section 14 of the Federal Child Support Guidelines, (SOR/97-175, as am.) provides that for the purposes of Section 17(4) of the Divorce Act, any one of the following constitutes a change of circumstances that gives rise to the making of a variation order in respect of a child support order:

(b) in the case where the amount of child support does not include a determination made in accordance with a table, any change in the condition, means, needs or other circumstances of either spouse or of any child who is entitled to support.

[124] No specific evidence was led before me as to any change in the condition, means, needs or circumstances of either spouse or of Gunner such that I could decide something differently three and a half years later. Ms. Addie testified that she entered into the September 2013 agreement based on what she thought Mr. Clermont’s income to be at the time, and that she only learned years later, in relation to this proceeding, that it was more than she had thought. Yet both parents were represented at the time of their negotiations and entered into the agreement freely. Mr. Clermont has included at Tab 6 of his Trial Record copies of his Income Tax Return Information-Regular for 2013 showing a line 150 Income of $52,917.00, which would normally result in a table amount of $478.00 per month, and his Income Tax Return Information-Regular for 2014 showing a line 150 Income of $56,146.00, which would normally result in a table amount of $509.00 per month. However, in 2013 and until March of 2014, Mr. Clermont was travelling from Petawawa to Cornwall to Ottawa to Cornwall and back to Petawawa to exercise his access, the costs of which he was solely bearing. I have no basis to know whether this was a factor taken into consideration if an amount lower than the table amount was agreed to by the parties and/or ordered by the Court. I am not inclined to order retroactive child support to be paid by Mr. Clermont between September 2013 and March 2014.

[125] Mr. Clermont continued to unilaterally bear the costs of transportation to exercise his access in 2014. However, the September 23, 2013 order did contain a provision obligating Mr. Clermont to provide updated financial disclosure in accordance with section 24.1 of the Guidelines. The evidence of Ms. Addie was that he never did. I am prepared to order retroactive child support from April 1, 2014 to December 31, 2014 at $509.00 per month. Mr. Clermont was paying $383.00 per month, so the difference is $126.00 per month, for a total retroactive amount of $1,134.00.

Retroactive Section 7 Special and Extraordinary Expenses

[126] Justice Kershman dealt with Section 7 expenses dating right back to 2013 in his final order of April 25, 2016, and I do not intend to deal with the issue any further.

Restraining Order

[127] I received no evidence that would cause me to issue a restraining order against Mr. Clermont. The only documents that were put into evidence by Mr. Clermont or Ms. Addie were in relation to their communications about Gunner, regarding access or otherwise, heated as they sometimes were. Although both Ms. Addie and Mr. Bishop expressed fear for their safety, and the safety of Gunner, I heard no evidence which would lead me to conclude that a restraining order should be granted. Mr. Bishop had only one face to face interaction with Mr. Clermont, which was sometime in the spring of 2014. Ms. Addie and Mr. Clermont have certainly argued and even entered into confrontations from time to time during access exchanges, but even those occasions were limited, with the last one being in or about August of 2014. While Mr. Bishop and Ms. Addie believe Mr. Clermont to have identified their home through Gunner, there was no evidence led that he has gone there uninvited, without their consent, or indeed at all. If he does know it, he certainly hasn’t showed up at it. When Mr. Clermont has gone to Gunner’s school, he has done so at times when he thought Ms. Addie would not be present. On one occasion (January of 2015), he did not go so as not to cause a scene. But for when he was first attempting to find out where his son lived and went to school, there was no evidence led about Mr. Clermont phoning members of Ms. Addie’s family or otherwise harassing them. The evidence led by Mr. Clermont demonstrated that he had a very good relationship with Ms. Addie’s sister, Ashley, and that he was, in fact, still in contact with her brother in BC. Indeed, one of the photographs Mr. Clermont had was of the Christmas card he received from Ms. Addie’s brother, Chris. As was observed in Smith v. Edwards 2014 ONSC 859 at paragraph 33: “It has been observed that there must be some factual basis for a conclusion that there exists a reasonable danger that one spouse will molest, annoy or harass the other and that there must be objective facts supporting that conclusion.” I have not found them in this case, and a restraining order will not issue.

[128] Similarly, I am not inclined to vary the order to include a police enforcement clause. I agree with my brother, G. P. Smith, J. in Dube v. Horzempa at paragraph 31 wherein he stated: “whenever police become involved in enforcing access it invariably traumatizes the child and should be avoided at all costs”.

Final Order

[129] A final order shall thus issue as follows:

Custody

1. The Applicant, Robert Clermont, and the Respondent, Lindsay Addie, shall continue to share joint custody of the child, Gunner Rennie Addie-Clermont, born May 26, 2011.
2. The Respondent shall provide the Applicant with information regarding all professionals involved with the child. The Respondent shall immediately notify the Applicant of any important events that arise as those concern the child, including emergency and non-emergency medical conditions. For non-emergency medical appointments, the Respondent shall provide the Applicant with at least one week notice. Where the Applicant plans to attend these appointments, he shall provide the Respondent with a two day (48 hour) notice.
3. The Respondent shall jointly or severally request that the Applicant be provided with all report cards, school pictures, forms and general correspondence, school trips and parent-teacher meetings by way of a separate second copy. To the extent that the school is unable or unwilling to do so, the Respondent shall provide a copy to the Applicant by way of e-mail on the date of receipt.
4. Should the Respondent propose changing the child’s school, daycare, or treating professionals, she shall consult with the Applicant and shall take no steps to implement such a change absent of the Applicant’s consent, which shall not be unreasonably withheld.
5. The Applicant shall provide the Respondent with all information about the child’s extracurricular activities. Where there are special events, the Respondent shall provide the Applicant with a one-week notice. Where the Applicant plans to attend these events, he shall provide the Respondent with a two-day notice.

Access

6. While the Applicant continues to reside outside of the City of Ottawa, he shall exercise access to the child as follows: i. On the first three weekends of each month, or on the first four weekends when there are five weekends in a month, commencing on Fridays at the end of the school day (or at noon if no school) and terminating on Sundays at 7:30 P.M. ii. When the Applicant’s access weekend coincides with a long weekend or a PD Day that includes the Friday off, the Applicant’s access shall commence at the end of the school day on Thursday and shall terminate on Sunday at 7:30 P.M. iii. When the Applicant’s access weekend coincides with a long weekend or a PD day that includes the Monday off, the Applicant’s access shall commence at the end of the school day on Friday and shall terminate on Monday at 7:30 P.M. iv. When the Applicant is granted leave time from his employment during which he intends to exercise access, he shall notify the Respondent of that fact no later than one week prior to the first day of his leave, by 4:00 P.M. v. During his leave time(s), the Applicant shall exercise access to the child commencing at the end of school on the first day of leave, and terminating at 7:30 P.M. on the last day of his leave.
7. Should the Applicant relocate to Ottawa, his access shall be gradually expanded as follows: i. For the first month, there shall be no change to the schedule outlined at paragraph 6 above. ii. On the first day of the second month following his relocation, the Applicant shall have additional access (i.e. over and above the access schedule contemplated at paragraph 134 of this Order) each Tuesday, commencing at the end of the school day and terminating with the child’s return to school the following Wednesday. This shall continue for a further two months. iii. On the first day of the fourth month following his relocation, the parties shall share access to the child on a rotating 2-2-3 day schedule, with the Applicant’s access commencing on Monday morning at the start of school, the Respondent’s access commencing on Wednesday morning at the start of school, the Applicant’s access again commencing on Wednesday morning at the start of school, the Applicant’s access again commencing on Friday morning at the start of school, and so on. This shall replace the access schedule outlined at paragraph 6 and sub-paragraphs 7 (i) and (ii) of this Order.
8. During all major holidays, regardless of whether the Applicant lives in or outside of the City of Ottawa, the regular access schedule shall be suspended and replaced by the following:

Family Day Weekend

i. The Applicant shall care for the child during the Family Day weekend, from Friday at the end of the school day until Monday at 7:30 P.M., in even-numbered years. The Respondent shall do so in odd-numbered years.

March Break

ii. The Applicant shall care for the child during the child’s March Break, from Friday at the end of the school day and until the start of school following the end of the March Break, in odd-numbered years. The Respondent shall do so in even-numbered years.

Easter Weekend

iii. The Applicant shall care for the child during the Easter long weekend, from Thursday at the end of the school day until Monday at 7:30 P.M., in even-numbered years. The Respondent shall do so in odd-numbered years.

Mother’s Day and Father’s Day and Parents’ Birthdays

iv. The Applicant shall care for the child on the Applicant’s birthday and on Fathers’ day every year, from the end of the school day until the following morning at 10:00 A.M. v. The Respondent shall care for the child on the Respondent’s birthday and on Mother’s Day every year, from the end of the school day until the following morning at 10:00 A.M.

Child’s Birthday

vi. The Applicant shall care for the child on the child’s birthday, from the end of the school day until the following morning at 10:00 A.M., during the odd-numbered years. The Respondent shall do so in even-numbered years. The parent who is not caring for the child shall have a phone call with the child on the child’s birthday.

Summer Vacation

vii. The parties shall exercise three weeks of uninterrupted access to the child during his summer vacation. The Applicant shall have the first choice of those three weeks during even-numbered years, and the Respondent shall have first choice during odd-numbered years. The party with first choice of vacation time shall notify the other, in writing, of the dates selected on or before May 30th, annually. The party with the second choice of vacation time shall notify the other, in writing, on or before June 14th, annually.

Canada Day Weekend, August Civic Holiday

viii. Subject to the Summer Vacation schedule above, which will take precedence, the Applicant shall care for the child during the Canada Day Weekend, from Friday at 10:00 A.M. until Monday at 7:30 P.M., in odd-numbered years. The Respondent shall do so in even-numbered years. ix. Subject to the Summer Vacation schedule above, which will take precedence, the Applicant shall care for the child during the Civic Holiday weekend, from Friday at 10:00 A.M. until Monday at 7:30 P.M., in even-numbered years. The Respondent shall do so in odd-numbered years. x. Subject to the Summer Vacation schedule above, which will take precedence, the Applicant shall care for the child during the Labour Day weekend, from Friday at 10:00 A.M. until Monday at 7:30 P.M., in odd-numbered years. The Respondent shall do so in even-numbered years.

Thanksgiving

xi. The Applicant shall care for the child during the Thanksgiving weekend, from Friday at the end of the school day to Monday at 7:30 P.M., in odd-numbered years. The Respondent shall do so in even-numbered years.

Christmas Eve, Christmas Day, Boxing Day and Christmas Break

xii. The Applicant shall care for the Child on Christmas Eve, from 10:00 A.M. until Christmas Day at 7:30 P.M., in even-numbered years. The Respondent shall do so in odd-numbered years. xiii. The Applicant shall care of the child on Boxing Day, from 7:30 P.M. on December 25th until 7:30 P.M. on December 26th in odd-numbered years. The Respondent shall do so in even-numbered years. xiv. The Applicant shall care for the child during the first equally-divided part of the Christmas Break, from the end of the last day of school preceding the Break until the following Saturday at 7:30 P.M., in even-numbered years. The Respondent shall do so in odd-numbered years. xv. The Applicant shall care of the child during the second equally-divided part of the Christmas Break, starting at 7:30 P.M. on Saturday following the start of the Break until the start of the school day, in odd-numbered years. xvi. The regular and holiday access schedule shall not be construed as prohibiting the parties from exercising additional or alternate access, as they may mutually agree. xvii. The parties shall be able to make one phone call per day to speak with the child, when the child is in the care of the other parent, between 6:00 P.M. and 7:00 P.M., and the parent who has the child shall assist with the call.

Pick-ups and Drop-offs

9. When the pick-up or drop-off of the child cannot be directly at the child’s school, the parties shall share the driving by having the parent who is about to have the child do the pick-up, unless the parent who has Gunner agrees to do the drop-off.
10. When the child is in the Applicant’s care, the pick-up shall be at 2239 Mondavi Street, Orleans, Ontario. When the child is in the Respondent’s care, the pick-up shall be at the Tim Horton’s restaurant, located at 372 Hunt Club Road, Ottawa, Ontario.
11. The parties may pick up and/or drop off the child personally or, at their discretion, may elect to send a friend or family member of their choosing to do so.

In case of the Respondent’s Relocation

12. Shall the Respondent relocate to another province, the primary residence of the child shall be with the Applicant. All requirements about consultation and information sharing, indicated at paragraphs 1-5 above, shall apply to the Applicant. The Respondent shall have generous access with the child. Sharing of holidays indicated at paragraphs 8-10 shall apply.
13. The Respondent shall bear the costs of travelling with the child. The child shall not travel unaccompanied by an adult until he is eligible to do so.

Disclosure of Address and Communication

14. The parties shall disclose to each other the addresses at which the parties reside with the child and shall keep each other informed of any changes in their addresses.
15. Communication between the parties shall be limited to matters pertaining to the child.

Child Support

16. Retroactive child support for the period of March 1, 2014 to December 31, 2014 shall be fixed in the amount of $1134.00.
17. The Applicant shall continue to provide child support to the Respondent in accordance with Section 3 of the Federal Child Support Guidelines for as long as the access schedule contemplated in Paragraph 6 remains in place.
18. The table amount child support shall be reviewed and adjusted by the parties on or after June 30th of each year after the parties exchange their Notices of Assessment.
19. Once the access schedule changes according to paragraph 7(iii) of this order, the parties shall pay set off child support to each other in accordance with Section 8 of the Federal Child Support Guidelines.

Passport, International Trips and Other

20. The Applicant shall sign any documentation required to permit the Respondent to obtain a passport for the child, the costs of which shall be shared equally between the parties.
21. Neither party shall travel with the child without first obtaining consent from the other, which shall not be unreasonable withheld.
22. The party seeking travelling with the child shall provide the other a copy of the itinerary, names of all individuals travelling with the child, addresses and telephone numbers of the residence, hotel or otherwise where the child will be staying and a copy of any plane tickets, as applicable. This shall be produced no later than two weeks prior to the commencement of the trip.
23. The child’s OHIP card shall travel with the child at all times.
24. The Respondent shall retain the child’s documentation other than the health card (i.e. passport, birth certificate, etc.) but shall provide any of those to the Applicant within 48 hours of a written request for same.

[130] If the parties are unable to come to an agreement with respect to costs, written submissions can be submitted to the Court within 15 days of receipt of this decision.

Madam Justice Tracy Engelking

Released: February 28, 2017

COURT FILE NO: FC-15-09 DATE: 2017/02/28 ONTARIO SUPERIOR COURT OF JUSTICE RE: Robert Clermont, Applicant AND Lindsay Amanda Addie, Respondent BEFORE: Madam Justice Tracy Engelking COUNSEL: Altynay TesheBaeva for the Applicant David Page for the Respondent HEARD: January 17, 18, 19 and 20, 2017 reasons for decision Madam Justice Tracy Engelking

Released: February 28, 2017