Court File and Parties

COURT FILE NO.: 35/38/014587/16 DATE: 20170622 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Lucas Alexander McIntyre Applicant – and – Lauren Elysse Christe McIntyre Respondent

Counsel: Erin Burns, for the Applicant George F. McFadyen, for the Respondent

HEARD: May 24, 25, 30 and 31, 2017

Raikes J.

[1] I will refer to the parties throughout this decision by their first names for ease of reference.

[2] Lauren and Lucas are the biological parents of David Allan McIntyre (“David”), born December 31, 2015. David will be 18 months old at the end of June, 2017. By all accounts, David is a healthy, happy boy. He is meeting all of his growth and development milestones.

[3] At the time of the trial, he could speak approximately 10 words. He enjoys all of the activities each parent do with him, especially crafts and having books read to him.

[4] Lauren agrees that Lucas is a good father. She has no concerns with Lucas’ ability to meet David’s needs while in his care.

[5] Lucas agrees that “when healthy”, Lauren is a good mother. He worries that Lauren’s mental/emotional health is unsteady which could place David at risk if she has another breakdown.

[6] On May 11, 2017, Justice Verbeem directed a trial be held on an expedited basis on the issue of mobility: specifically, whether Lauren could relocate with David to Alberta. The trial was estimated to take two days but took four.

[7] When the trial commenced, Lauren’s counsel advised that if the mobility issue was decided in her favour, Lauren intended to return to Fort McMurray, Alberta, to resume her employment with Suncor. She was then on an extended maternity leave and needed to advise her employer by May 31, 2017 whether she would be returning to work. Lauren has, however, a back-up plan: she is accepted into a Master’s program in business at Lethbridge University starting in September 2017.

[8] The trial finished on May 31 – the date by which Lauren had to advise Suncor. In closing submissions, Lauren’s counsel advised that Lauren had given up on returning to Fort McMurray and her Plan A was to return to school and work in Lethbridge where she grew up and her immediate family resides. The bulk of the submissions by both parties were predicated on that plan.

[9] The trial was limited to the issue of mobility, although it also touched on what access Lucas would have with David if Lauren is successful.

[10] I observe that the mobility issue arises very early in this litigation. There is no formal custody order; rather, there are prior orders by which Lauren is designated the primary residence for David. I raised with counsel whether custody of David should be determined first. Counsel indicated that I should determine mobility based on the existing orders. The circumstances and terms of those orders will be set out below.

The Parties

[11] Lauren is 29 years old. She was born and raised in Lethbridge, Alberta. She attended schools in Lethbridge and obtained an undergraduate degree in business with a designation in Human Resources at Lethbridge University in 2011.

[12] Lauren’s parents are now both retired and continue to reside in Lethbridge, as does her older sister and brother-in-law with their two children. She has other family and many friends in the Lethbridge/Calgary area with whom she is close.

[13] Immediately after graduation from university, Lauren accepted a position with Suncor in Fort McMurray doing purchase logistics at an open pit mine. Lauren started working for Suncor in a co-op placement and began working full-time in 2012. She progressed through four positions in the supply chain side at Suncor prior to her maternity leave at the beginning of 2016. She held the position of Logistics Coordinator when she went on maternity leave.

[14] Lucas is now 30 years old. He will be 31 years in October. He was born in Nebraska but was raised in London, Ontario from age 4 years. He attended McMaster University for first year and completed his engineering degree from Western University in 2008.

[15] Shortly after his graduation, Lucas accepted employment with Suncor in Fort McMurray starting August 25, 2008. He also progressed at Suncor while in Fort McMurray. In February, 2016, Lucas transferred to a new role at the Suncor refinery in Sarnia, Ontario. He is presently working as a process safety engineer. I will deal with the circumstances of that change below.

[16] Lucas and Lauren met in January, 2009 at a work party in Fort McMurray. They started dating and eventually began cohabiting in June, 2012. They became engaged on July 4, 2012 and married July 20, 2013 in Alberta.

[17] In March 2014, they jointly bought a house in Fort McMurray for a purchase price of $741,000. Before that, they lived in a basement apartment paying monthly rent of $2,300.

[18] They moved with David from Fort McMurray to Sarnia on February 26, 2016 as part of Lucas’ transfer to the Sarnia refinery and his new position. They initially lived in temporary accommodation provided by Suncor. After an extensive search, they jointly purchased a house in Bright’s Grove, Ontario. It is a brick bungalow with three plus one bedrooms. They moved in August 1, 2016.

[19] Lucas and Lauren separated on October 12, 2016. They have been living separate and apart since October 12, 2016.

[20] Since separation, Lucas has resided in the matrimonial home. Upon separation, Lauren resided with David for 32 days at Interval House, a women’s shelter. She and David then briefly resided with her parents who were leasing a small cottage in Camlachie. Lauren now rents a small bungalow in Sarnia.

Move to Sarnia

[21] Lucas and Lauren both realized that living in Fort McMurray long-term was not what they wanted. Both really enjoyed working for Suncor and preferred to stay with the company if possible. As early as 2014, they started to explore other opportunities outside of Fort McMurray including a position in Edmonton for which David applied unsuccessfully.

[22] My sense is that as between them, Lauren was more keen to move and sooner. She took the lead in looking for opportunities to apply for. She wanted to move from Fort McMurray to be closer to family especially once she was pregnant with David.

[23] Lucas and Lauren went on vacation in the summer of 2015 to New York. On their way back to Fort McMurray, they visited Lucas’ family in the London/Sarnia area. They spent a couple of days with Lucas’ brother, Jeremy, and his wife, Tanya, enjoying the beach and water. Jeremy is in management with the Suncor refinery in Sarnia. Tanya is a teacher.

[24] Lauren really enjoyed the visit. She got along well with Lucas’ family. She and Tanya hit it off and continued communications after the parties returned to Fort McMurray. The tenor of those communications was friendly. Lauren made clear that she hoped that she and Lucas would be able to relocate to Suncor in Sarnia at some point soon.

[25] The impetus for choice of Sarnia for relocation was driven principally by three factors:

1. Suncor had a refinery in Sarnia where Lucas’ skills would be transferable;
2. The cost of living in Sarnia was much lower than Fort McMurray; and
3. They would be closer to family.

[26] Two openings at the Suncor refinery came available and at Lauren’s instigation, Lucas applied for both in September, 2015. He was not interviewed for one of the positions; however, for his current role, he had a telephone interview in November 2015 and an in-person interview in Sarnia in December, 2015.

[27] In mid-January 2016, Lucas learned from his manager in Fort McMurray that an offer would be coming for the job in Sarnia. At the end of January 2016, Lucas received the offer of the position at the refinery in Sarnia together with a relocation package. He accepted that offer.

[28] There was a suggestion in Lauren’s evidence that the move to Sarnia was to try it out or to see how things went. Lucas was adamant in his evidence that the move to Sarnia was intended to be a permanent relocation.

[29] I find that the parties mutually intended that the move to Sarnia be a long-term move for their family, including David. Lauren was excited to be close to Lucas’ family with whom she had a good relationship. She especially wanted to be closer to Tanya with whom she felt a kinship. This change to Sarnia was largely driven by Lauren.

[30] Lauren broke the news to her parents who were accepting, although a bit disappointed since they were moving so far away. Although Fort McMurray is a nine hour drive or roughly 2.5 hour flight from Lethbridge, it is still in Alberta. Lauren and Lucas visited her parents and family a number of times when they were living in Fort McMurray. Her family also visited them on occasion.

[31] Lucas, Lauren and David moved to Sarnia on February 26, 2016. They sold their home in Fort McMurray in late July, 2016 at a loss with Suncor paying them approximately $50,000 for the equity loss as part of the relocation package. In addition, Suncor provided:

1. A pre-loaded credit card of $9,000 for moving and travel expenses;
2. A miscellaneous move account of $12,000;
3. A per diem for meals;
4. Complete reimbursement to move their belongings and car to Sarnia;
5. Complete reimbursement for realtor fees on the sale of their home and the eventual purchase of the home in Bright’s Grove; and
6. Complete reimbursement of the legal bills for the sale and purchase.

[32] Pursuant to the agreement signed by Lucas with Suncor, he is obliged to repay a portion of the relocation expenses if he leaves the company before March 2018. If he leaves Suncor before March 2018, he will have to repay 75% or approximately $75,000.

Post-Maternity Leave Plans

[33] At the time of the move, Lauren was on maternity leave from Suncor in Fort McMurray. They discussed whether Lucas would take any time off for paternity leave but that would reduce Lauren’s maternity leave accordingly. So, he worked and she took the maternity leave.

[34] Lauren testified that she and Lucas discussed what the plan would be when her maternity leave expired. There were a number of options considered including opening a small business (a yoga studio), teaching at the college level and staying home until David reached school age. She felt the latter was agreed upon.

[35] For his part, Lucas agreed that they considered various options but he does not agree that Lauren was to stay home until David started school. Rather, he asserts that the plan was that Lauren would get a job, ideally with Suncor in Sarnia but if not, then elsewhere.

[36] I find that the parties discussed and looked into various options. Certainly, one of the options was that Lauren would remain home with David until he started school; another involved Lauren going back to school for a graduate degree with a view to teaching. Notwithstanding those discussions, there was no agreement one way or the other for a particular plan. Lauren’s illness and hospitalization first in May and then in August, 2016 pushed those discussions to the background.

Hospitalization in May

[37] After the move to Sarnia, Lucas started his new position at Suncor. Lucas typically worked a 40 hour work week from Monday to Friday. He left for work at roughly 7:40 AM and returned home at 4:50 PM.

[38] Lauren was David’s primary caregiver. She breast-fed. She took David to medical appointments. She was home with David while Lucas worked. That is not to say, however, that Lucas did not assist and care for David when he was home. I find that they shared responsibility for David’s care when Lucas was not working.

[39] By the end of April 2016, Lucas and Lauren were still living in the townhouse that they moved into when they came to Sarnia. Lauren was decidedly dissatisfied with those living arrangements. They were looking for a house to purchase. This task became a chore, not an adventure, and was a source of considerable friction between them.

[40] In early May, Lucas went to work for a night shift. This was unusual in itself because he normally worked strictly days. He was trying to help out at work. Lucas indicated that on the preceding weekend, Lauren showed him an email that she had drafted to their realtor. The gist of the email was that they were no longer going to use that realtor. The email had an angry tone which he attributed to her lack of sleep.

[41] On Monday, Lucas received a series of texts while at work from Lauren that did not make sense to him. He spoke to her on the phone and she seemed fine. Tanya had been over to visit and Lauren indicated that she was feeling okay. Tanya testified that she texted with Lauren the day before and visited Lauren. She felt that Lauren was behaving oddly; that she seemed to believe that the realtors were conspiring against her.

[42] Near the end of his shift, he received an emergency message to call his shift supervisor. He did so and was connected to police from whom he learned that Lauren was in hospital in Sarnia.

[43] Lucas testified, and Lauren corroborated, that Lauren had previous difficulties with anxiety. She had had occasional panic attacks in the past. She was the victim of stalking and at one point in Fort McMurray, she was convinced that someone had taken and later returned her cell phone to her purse.

[44] On May 2, 2016, Lauren was admitted to hospital in Sarnia. Lucas went to the hospital to be with her. He tried to reach her parents in Alberta and could not. He sent them a text or email to advise that Lauren was in hospital. They traveled to Sarnia and arrived on May 4.

[45] Lucas was off work until Monday, May 9. By then, Lauren’s parents were staying with them and could care for David when he was at work.

[46] Lauren remained in hospital although she started to get day passes on Saturday, May 7. Before then, Lucas brought David to the hospital. The purpose of the day passes was to let Lauren spend time with David and to ease her back into her home. She was discharged from the hospital on May 10.

[47] Lucas testified that Lauren was diagnosed with post-partum depression with anxiety. She was prescribed citralam {sic} and sleeping pills. He met with her psychiatrist, Dr. Scholtz, and the hospital social worker. He was also present for the discharge meeting with the psychiatrist, social worker, a representative of CAS and both of Lucas and Lauren’s parents. The meeting was set up by CAS to ensure that there was a plan to transition from the hospital and an adequate support system in place for Lauren and David.

[48] Lucas characterized his relationship with Lauren at that point as tense and mistrustful. Their relationship was under stress in April from the conflict of their house search.

[49] At the meeting, Lauren indicated that she needed support to look after David with which Lucas agreed. In that meeting, Lucas’s father indicated to those present that he had been told by Lucas that Lauren told him that playing cards he had given to her were telling her to leave Sarnia. Lauren became very upset and left the room.

[50] Lauren was upset with Lucas for telling his parents and with his parents for raising it at the meeting. Lucas testified that as a result, he felt that Lauren lost trust in him and that she did not want his parents to see David. Her relationship with his parents became strained to non-existent.

[51] Following Lauren’s discharge from hospital on May 10, 2016, she returned to the townhouse. From that point forward, one or both of her parents stayed with Lucas and Lauren to help Lauren with David’s care. I have no doubt that Lauren’s parents were very helpful with David and gave great comfort to Lauren. Nevertheless, it is my sense that their presence put extra strain on the already fragile relationship between Lucas and Lauren, albeit unintentionally.

[52] Lauren went to Alberta in July with David to visit family. Lucas flew out to join them for a few days. Lucas indicated in his testimony that the time they spent together in Alberta was the best time that they had together a following her hospitalization in May. When they returned to Sarnia, things became strained once more.

Hospitalization in August

[53] On Friday, July 29, 2016, the purchase of the property in Bright’s Grove closed. The majority of the move was done the next day. Again, Lauren did not appear to be sleeping well at that point. During the move, Lucas observed that she was starting to behave differently; for example, she did not cover herself as she would normally do as she was feeding David when the movers came.

[54] After she took a nap, she asked Lucas a question about his brother, Grant, and whether he thought of Grant. Lucas did not have a brother named Grant; however, he had a cousin, Grant, who committed suicide when Lucas was only six. Lucas became concerned and was worried that Lauren was contemplating suicide.

[55] According to Lucas, Lauren did not get much sleep on the Saturday, July 30. Lucas told Lauren’s mother about the comment concerning his cousin. Her mother hid the knives in the kitchen while he hid the Tylenol and Advil.

[56] Lauren got up from a nap bewildered. She ran toward the front door where her mother grabbed her wrists and would not let her outside. For the rest of the weekend, Lauren appeared to fear her mother and Lucas. Lucas had to unlock their bathroom door multiple times. Lauren was aggressive. She did not want anyone to leave the room and was aggressively questioning why and what they were doing.

[57] On Monday, Lucas was unpacking a box while David slept. He found a Valentine’s Day card from February which he put on their bedside table. He did so because it was in a box containing items for the bedside table. Lauren yelled at him. She threw some sex toys that were in a bag onto the floor and told him that she did not want them anymore. She called him a liar, accused him of being gay and told him he was a bad husband and father. Earlier that day, she told Lucas that he was Russian and his name was Simon; that he and his brothers were spies.

[58] Lucas returned to work on Tuesday. While there, he received a text from Lauren’s mother to come home; that she could not look after Lauren and David. Lauren’s father had been on the phone with her for a long time that day while he was getting ready to travel back to Sarnia. It was Lucas’ impression that her father was the only person that Lauren trusted at that point.

[59] Lucas slept in the basement on the Monday night while her mother slept in the guest room beside David’s room. On the Tuesday, he slept beside David’s room because he was concerned for David.

[60] On Wednesday, Lauren had difficulty feeding David and a conflict with her mother and Lucas arose. They tried to defuse the situation but eventually called an ambulance. The paramedics tried to coax her to go to the hospital. Police were called and after an hour, David was forcefully removed from her arms. She was transported to hospital.

[61] Lauren was hospitalized in August 2016 for roughly 10 – 14 days. Both her parents were in Sarnia to assist with David’s care and Lauren’s recovery. Lucas saw her twice at the hospital but was on the no contact list. He was present for the meeting with Lauren and her psychiatrist for approximately two hours.

[62] From his discussions with Dr. Scholtz, Lucas understands that Lauren leans toward a bi-polar disorder but it is inconclusive and no firm diagnosis of same has been made. She continues to take medication for anxiety and has been under Dr. Scholtz’ care since discharge from the hospital in August 2016.

[63] After her discharge from hospital, the relationship between Lucas and Lauren was rocky to say the least. Her parents were a constant presence. Lucas found this frustrating because he felt that he was less a part of the family. He slept in the basement as before. Everyone was trying to take stress off of Lauren.

Lauren’s Ability to Care

[64] From after her discharge from hospital in May 2016 through to this trial, Lauren has had regular visits with Alice Verwegen, a public health nurse with Lambton Public Health. She works in the Healthy Baby, Healthy Parent program to ensure the healthy development of children. These visits have included home visits.

[65] Lauren and David were referred to Ms. Verwegen by CAS. Ms. Verwegen has observed Lauren’s interaction with and care of David on several occasions. She has no concerns with Lauren’s ability to parent. According to Ms. Verwegen, Lauren appears to be consistently engaged and naturally follows the child’s lead. Ms. Verwegen indicated that Lauren’s care was “like what I give to my child”; it does not lack in any respect.

[66] Christina Joliffe is a child protection worker for Sarnia CAS. Her first contact with Lauren was in August, 2016 via a referral from Sarnia police arising from their concerns regarding Lauren’s mental health. She met with Lauren on a weekly basis after her release from hospital on August 17, 25 and 31, 2016. Her visits with Lauren lasted between 30 and 60 minutes. The purpose was to connect Lauren with community supports that were available. She observed Lauren with David and had no concerns.

[67] She had no further contact with Lauren after August 31 until October when she received two calls, one from police and another from Lucas that Lauren had left the family home and there were concerns with Lauren being with David given her mental health history. She then did several follow-ups by way of weekly meetings starting at Interval House and later in the community. She had no concerns. She observed David with Lauren in October and November.

[68] Ms. Joliffe volunteered to do two of the access exchanges with Lucas. Both were without incident. She closed her file in November.

[69] Lauren’s parents, Karen and David O’Dwyer, both testified concerning, inter alia, their observations of Lauren with David and her ability to care for David. Both witnesses were excellent. They were careful in their answers. Although they clearly love their daughter, it seemed to me that they were mindful that they not understate or overstate what they observed or did, or use the witness box to attack Lucas.

[70] Mr. and Mrs. O Dwyer had ample opportunity to observe Lauren with David. They testified that she took the lead in David’s care, even soon after her return from hospital. She was attentive to his needs. She appeared to be a good and loving parent.

[71] I am satisfied on the evidence including that of Lauren that she is quite capable of caring for David’s needs on a day-to-day basis. The proof lies in David’s good health and steady development. It is understandable that Lucas would have concern about Lauren’s ability to parent David when she is ill; however, he readily concedes and the evidence supports her ability to be a terrific parent when healthy.

Lauren’s Health

[72] Lauren remains under the care of Dr. Scholtz. Exhibit 3 at trial is a handwritten letter dated October 25, 2016 from Dr. Scholtz to Mr. McFadyen. In that letter, Dr. Scholz wrote:

“Mrs. McIntyre initially came under my care during an admission to the mental health unit from 02/05/2016 to 10/05/2016. She did well in hospital and my discharge diagnoses were anxiety disorder, and OS, major depressive episode of moderate severity and a history of panic disorder with Agoura phobia.

She was subsequently readmitted to the mental health unit from 03/08/2016 until 16/08/2016 under my colleague Dr. Naidu {sic}. The discharge diagnoses were probable bipolar disorder, manic episodes with psychotic features and significant stressors. She was discharged on a mood stabilizer Abilify 7 mg p.o. q/s andClonazepam 0.25 mg p.o. q/s for sleep.

Since her discharge, I have interviewed Mrs. McIntyre on three occasions and will continue to follow her.…

Since her last admission to Bluewater Health, Mrs. McIntyre, her parents and social workers have revealed to me that the marital relationship was abusive and consequently a strong contributing factor to Mrs. McIntyre’s presentation to hospital.

At the present, I feel the diagnosis of bipolar disorder is inconclusive. I have increased the Abilify to 10 mg p.o. o.d. because of the significant stress in her life and the importance of staying well. She also takes Lorazepam 1 mg p.o. q/s to assist with sleep as she is currently at the Women’s Interval Home. …”

[73] Exhibit 4 at trial is a letter dated February 26, 2017 again from Dr. Scholz to Mr. McFadyen to provide an update on Lauren’s progress. He interviewed Mrs. McIntyre, her father and a social worker on four occasions after his October 25, 2016 letter. He wrote:

“Based on the interviews, I feel that Mrs. McIntyre’s mental state has remained stable and she has been able to cope with significant stress source including the loss of a grandparent, several moves, legal issues involving her separation and custody and the recent loss of a friend who lived in Alberta.

She is certainly meeting the needs of her son, she interacts well in relationships and has been physically active; in terms of going to the gym. She attends her counselling sessions and appointments with myself.

In summary, I feel she is currently doing well.”

[74] These letters by Dr. Scholz were tendered through Lauren. No objection was taken to their admission. Dr. Scholz did not testify.

[75] The letters do not provide a prognosis for Lauren’s future health. At best, they provide a snapshot of Dr. Schultz’s assessment of her mental well-being up to February 16, 2017. Those assessments derive in part from information provided by Lauren and her parents.

[76] Lauren testified that she continues to see Dr. Scholz. He has reduced the dosage of Abilify. She intends to continue seeing him. She did not testify to any plans to continue treatment in Alberta if she is permitted to move there with David. In fact, no evidence was adduced as to what counselling and care she would pursue in Alberta. This is a significant gap in the evidence.

Separation

[77] In August 2016, Lauren’s parents consulted a lawyer in London Ontario on the family law issues arising if there was a breakdown of Lauren and Lucas’s marriage. Lauren attended the office with David but did not go into the same room as the lawyer and her parents.

[78] Lauren subsequently engaged her current counsel. He prepared a letter that she left on the kitchen counter for Lucas on October 12, 2016 to advise that she had David and was leaving him; he should not try to contact her directly. Instead, the letter indicated that he should communicate with Mr. McFadyen’s office.

[79] Lauren and David went to live at Interval House, a women’s shelter in Sarnia. Prior to doing so, Lauren was receiving counselling. She believes that she was in an abusive relationship; in particular, Lucas was sexually and verbally abusive.

[80] Lucas denies any sexual abuse. The sexual activities that they engaged in were activities that he indicates were initiated by her, formed part of their regular sexual activity and were entirely consensual.

[81] It is unnecessary for me to determine how or why they engaged in these activities or whether they were abusive. Suffice to say, Lauren now contends that she was abused and Lucas denies same. They are no longer together. They have not engaged in sexual activity for a long period of time extending well before the date of separation and there is no evidence that there is any risk of future abuse of this nature.

[82] With respect to verbal abuse, both Lucas and Lauren testified that they argued from time to time as couples do. Both raised their voices. Both said things to the other that were hurtful. Neither engaged in any physical violence toward the other. Since separation, they have had little communication with one another. All of the access exchanges have been facilitated through her parents, a child protection worker or through the supervised access centre. There have been no issues.

Procedural History

[83] Lucas brought an emergency motion returnable October 19, 2016 to get access to David whom he had not seen since he left for work on October 12, 2016. He did not speak with Mr. McFadyen to seek access before bringing the motion.

[84] Lucas initially retained the same law firm that Lauren’s parents consulted in London in August, 2016. Their conflict became known on the return day for the motion. His lawyers had to recuse themselves leaving Lucas without legal representation.

[85] Lucas was anxious to have time with David – any time. He was presented with a consent order by counsel for Lauren which he read and signed. That handwritten endorsement gave him access to David on Saturday, October 22 and Sunday, October 23, 2016 from 10 AM to 6 PM each day and on Tuesday and Thursday from 5 PM to 6:30 PM. It also provided that Lauren shall have primary residence of the child. The matter was adjourned to October 27, 2016.

[86] This proceeding was then adjourned on consent to November 17, 2016, November 24 and December 8, 2016. It came before me on the latter date at which time I was presented with a Consent Endorsement Request (“CER”) by counsel for Lauren who was also acting as agent for counsel for Lucas.

[87] An interim, interim without prejudice order was made in accordance with the CER filed. The order provided that:

1. Lauren shall have primary residence of David;
2. Lucas shall have care and control of David every Wednesday and Friday from 5 to 7 PM and alternating weekends commencing January 7, 2017 from Saturday at 10 AM until Sunday at 5 PM;
3. Christmas access was to be arranged between the parties or through counsel;
4. All exchanges were to be made through the supervised access centre;
5. Lucas shall pay child support of $910 monthly in accordance with his base salary of $103,887;
6. Lucas shall pay spousal support for November and December, 2016 in the amount of $1216, being the mid-range of the Spousal Support Advisory Guidelines;
7. Effective January 1, 2017, Lucas shall pay spousal support of $2271 per month;
8. The child and spousal support payments were subject to review retroactively once his bonus was known and available for 2016 which was expected to be announced not later than February 28, 2017.

[88] A case conference was held before Rogin J. on February 10, 2017. No change to the order of December 8, 2016 was made.

[89] On May 11, 2017, motions were heard by Verbeem J. dealing with Lucas’ request for additional parenting time with David and Lauren’s request for increased child and spousal support, both ongoing and retroactive.

[90] In a lengthy handwritten endorsement, Verbeem J. ordered that:

1. Commencing January 1, 2017 and on the first day of each month following, Lucas shall pay Lauren the sum of $1366 for child support of David;
2. Commencing January 1, 2017 and on the first day of each month following, Lucas shall pay to Lauren the sum of $4130 for spousal support;
3. For the months of November and December, 2016, Lucas shall pay to Lauren the sum of $1366 per month for child support and $3046 per month for spousal support;
4. Lucas is entitled to deduct all amounts already paid for child and spousal support from the amounts payable in paras. 1, 2 and 3 above;
5. Exchanges of the child shall continue to be at the supervised access centre or other locations as the parties may agree;
6. Lucas shall maintain Lauren and David on any healthcare benefits available through his employer as long as they remain eligible;
7. Lucas shall maintain Lauren as the beneficiary on any employer provided life insurance;
8. Lucas’ access be expanded so that on one of the alternating weekends where Lucas has access, David will be in Lucas’ his care from 5PM on Friday to Sunday at 5PM. The existing access ordered December 8, 2016 is otherwise unchanged;
9. The access schedule shall be reviewed if the move to Alberta is approved.

Alberta Plan(s)

[91] As indicated at the outset, Lauren’s initial plan was to return with David to Fort McMurray where she would resume employment as a logistics coordinator at Suncor. Lauren negotiated a six-month extension to her maternity leave with Suncor. They agreed to hold her position open until July 1, 2017. In return, Lauren was required to sign a non-competition agreement by which she agreed not to work for any competitor or to seek employment from any competitor during that six months.

[92] Lauren testified that if she was able to take up the Suncor opportunity in Fort McMurray, she intended to put David in daycare. They would be living in the home of a friend. She would be working a day shift which would require her to drop off David at the daycare in the morning and get him at the end of the workday. She has no family in Fort McMurray; they are in Lethbridge and Calgary, a 7 to 9 hour drive away.

[93] Lauren’s fall-back plan (now plan A) is to pursue a Master’s degree in business at Lethbridge University. She applied for and has been accepted into that program. In addition, she has obtained a commitment for part-time employment with a professor at the school. She advises that she will be living in Lethbridge, a city she grew up in. Her hours at school and at work will be flexible. She will have lots of family support while she goes to school and works. When she finishes school, she will pursue employment in Alberta.

[94] Finally, there is one other potential scenario that may come to pass. Lauren went on the Suncor job-posting site and applied for six positions for which she is qualified. Those positions are all based in Calgary which is only two hours drive from Lethbridge. She has other family including uncles and aunts and cousins with whom she is very close who live in Calgary. She is confident that they will provide support for her and David if she gets one of those positions. As it stands, she does not know whether that will come to pass. It is not clear to me whether she prefers a Calgary job with Suncor to school in Lethbridge.

Lauren’s Access Plan

[95] Lauren and her mother have compiled a proposed access plan which was marked as Exhibit 5 at trial. The proposed plan divides David’s life into various stages. For example, stage I is 17 months to 24 months; stage II is 25 months to 60 months; stage III is 61 months to seven years etc. For each stage, they set out a proposed schedule for long distance visits for David with Lucas. Thus, it assumes that she and David will be in Alberta and Lucas will remain in Sarnia.

[96] The plan was compiled when it was anticipated that Lauren would return to work in Fort McMurray. Lauren contemplates that the plan can be adjusted to reflect her new circumstance if she is in Lethbridge or Calgary. Much emphasis is placed by Lauren on the availability of direct flights between London and Calgary.

[97] To facilitate access and overcome any objections that might be made to the cost associated with the same, Lauren proposes to forgo any spousal support. That money would be earmarked to cover Lucas’ flights out west and her flights with David to Ontario.

[98] In stage I, Lauren proposes that in July and August 2017, Lucas will have four non-consecutive four day visits, two of which will take place in Alberta. For the remainder of the year, she proposes that starting in October, Lucas will have one three night, four day visit every other month until December. She also proposes virtual or phone access three times a week; for example by Skype.

[99] For stage II which will last from the time David turns age two until he is five, Lucas’ visits would again be for three nights and four days every other month except in July and August when he would be entitled to three non-consecutive seven day visits. There are other special occasions and holidays spelled out in these proposals together with the virtual and phone access.

[100] Boiled down to its core, Lucas will see David in person for three – four days every other month except in the summer. In cross-examination, she readily agreed that she could never go near that long without seeing her son.

Lucas’ Response to Lauren’s Plan

[101] Lucas wants more, not less time with David. He wants Lauren to find a job in the Sarnia area. He maintains that she has skills from her work at Suncor which are transferable to other businesses. He would ideally like to share equally in David’s time. That cannot happen if he is in Sarnia and David is with Lauren in Alberta.

[102] After Lauren’s first hospitalization in May, 2017, David had little contact with his paternal grandparents and other relatives in this area. I find that this was largely at Lauren’s insistence. She was angry and mistrustful of Lucas’s family. On the evidence that I heard at trial, there was no basis for that perception. Lucas’ family wanted regular contact and to be part of David’s life. Lucas abided by Lauren’s wishes for the sake of their marriage and to avoid putting additional stress on Lauren.

[103] After they separated in October, 2016, Lucas was able to visit with his parents, brothers and their families with David during his access time. Like Lauren’s family, Lucas’ family are close and supportive. Lucas’ mother testified. She was an excellent witness. She made clear that she will help in any way that she can if Lauren and David remain in Ontario. She misses a Lauren and regrets the deterioration of their relationship.

[104] Lucas strongly objects to the proposal put forward by Lauren and her mother. If Lauren is permitted to move in with David to Alberta, Lucas would ideally wish to follow them even if it means taking a significantly lower paying job. He wishes to be close to David and be part of his life as he grows up.

[105] Because of the relocation agreement and the financial consequences of leaving Suncor before March, 2018, Lucas must stay in Sarnia until then. If he does not, he alone will bear the full brunt of that repayment.

Analysis

[106] The issue I must decide is whether to permit Lauren to move to Alberta with David.

[107] The leading case on mobility is Gordon v. Goertz, 1996 CarswellSask 199. In that case, the trial judge permitted the child to move to Australia with her mother, the custodial parent. The decision was upheld by the Saskatchewan Court of Appeal and, ultimately, by the Supreme Court of Canada.

[108] Gordon involved an application to vary an existing custody and access order by which the mother had custody and the father had access which he exercised regularly. In the case before me, there is no motion or application to vary a previous custody order; nevertheless, the principles dealing with the test and factors to consider in mobility cases apply equally in these circumstances: Braun v. Cousins, 2004 CarswellOnt 3165 (ON SC) at para. 49.

[109] The applicable test is the “best interests of the child” at the time. The focus must be on the best interests of the child, not the rights and interests of the parents: Gordon, para. 49.

[110] Each case is determined on its own circumstances. The approach and outcomes of other cases may be helpful, but at the end of the day the key question here is: what is in David’s best interests in these circumstances at this time?

[111] There is no presumption in favour of the custodial parent, although the custodial parent’s views are entitled to great respect: Gordon, para. 49. In determining the best interests of the child, careful consideration must be given to the potential negative effects on the child if the custodial parent is restricted from relocating as well as the potential positive effects on the child if the custodial parent is permitted to relocate: Bjornson v. Creighton, 2002 CarswellOnt 3866 (ON CA) at para. 29 citing Woodhouse v. Woodhouse (1996), 136 D.L.R. (4th) 577 (ON CA) per Weiler J.A. at 597)

[112] In Gordon, McLachlin J. (as she then was) wrote for the majority at para. 50:

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

[113] In determining the best interests of the child, the court should consider, inter alia, the following:

1. The existing custody arrangement and the relationship between the child and the custodial parent;
2. The existing access arrangement the relationship between the child and the access parent;
3. The desirability of maximizing contact between the child and both parents;
4. The views of the child;
5. 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;
6. Disruption to the child of a change in custody; and
7. Disruption to the child consequent on removal from family, schools, and the community he or she has come to know. (Gordon, para. 49)

[114] I now consider these factors in the context of this case.

A. Existing Custody Arrangement and Relationship with Lauren

[115] The mobility issue arises very early in this litigation, only six months post-separation. Lauren left the matrimonial home with David and gave no indication as to her whereabouts. Lucas had no way to see his son although Lauren’s counsel suggests that he could have contacted him for that purpose. Given the tension in the relationship with Lauren and her parents, I cannot fault Lucas for electing instead to seek court assistance.

[116] No custody order has been made in this case. There are two orders by which Lauren was designated the primary residence for David. The first was made on return of Lucas’ emergency motion when he was effectively left without counsel and faced the prospect of no immediate access with his son whom he had not seen in a week. The second expressly states that it is an “interim, interim without prejudice” order on consent.

[117] The endorsement of Verbeem J. dated May 11, 2017 varied the extent of access for Lucas, but did not specify custody expressly. I hesitate to use the term “status quo” here. Suffice to say that Verbeem J.’s order did not change the nature or quality of the custody arrangements in the December 8, 2016 order: interim, interim without prejudice.

[118] It is against this backdrop that the existing “custodial arrangements” must be considered. Lauren has had de facto primary care of David since at least separation. The existing orders, such as they are, recognize her primacy in David’s care to this point in time.

[119] There is no question that there is a strong bond between David and Lauren. She has been his primary caregiver since birth except when she was unable to fill that role for mental health reasons. She has been supported in her caregiving role by each of her parents for extended periods and, while they were together, by Lucas.

[120] As a 17 month old toddler, David is likely blissfully unaware of his mother’s past issues. He depends on Lauren to meet his daily needs while in her care. By all accounts, she has done so and done so very well even in difficult circumstances. There is no evidence that Lauren is presently unable to parent, that David is at risk while in her care in Sarnia. To the contrary, he is thriving.

[121] I am, however, concerned by Lauren’s hospitalizations in May and August 2016, and the conduct that she exhibited leading up to those hospitalizations. David is far too young to be able to recognize and deal with any recurrence. To Lauren’s credit, she has fully embraced the counselling and assistance available in Sarnia to deal with the challenges of parenting for the first time and her mental health issues.

[122] There is gaping hole in the evidence before me; namely, what mental health supports will Lauren have if she moves to Alberta with David. What is the plan to continue to treat her if she moves? Does Dr. Scholtz recommend ongoing care if she moves? She continues to see him and to be on medication which he prescribes.

[123] Undoubtedly Alberta has many capable and qualified mental health practitioners who could assist Lauren if she moves. Lauren’s counsel invites me to make continued care a term of the order permitting her to move to remedy this deficiency in the evidence. With respect, I do not have enough information to simply do so.

[124] Lauren testified that she has no family in the Sarnia area and has put down no roots. She feels isolated so far from her home province where she has many supportive friends and family members. In cross-examination, Lauren indicated that the move to Alberta would benefit her and that would benefit David.

[125] I have the sense that Lauren believes that simply leaving Sarnia to return to Alberta will instantly eliminate her mental health issues. I have no medical evidence to support that view and common sense tells me that cannot be so. She had panic attacks while in Alberta well-before she moved to Sarnia. The presence of family and friends did not forestall those events.

[126] On this factor, I find that Lauren has a loving, caring bond with David. It is a healthy attachment. She is presently able to care for David’s needs and appears to be a good parent. Her past mental health issues raise concerns because of the potential impact on David should they resurface, and the absence of evidence to demonstrate appropriate ongoing treatment for same if she returns to Alberta. David will be entirely dependent upon Lauren, especially on her continued good mental health.

B. Existing Custodial Arrangement and Relationship with Lucas

[127] Under the existing arrangement, David does not go more than four days without seeing his father, Lucas. His access provides for overnight stays which helps the bond develop between child and parent. While in Lucas’ care, David depends entirely on Lucas to meet his needs and there are no concerns with Lucas’ parenting.

[128] Lucas exercises his access with David. He is not a “hit and miss” dad, nor does he leave David with other family while he indulges in other activities. Lucas and David enjoy the time they spend together. They do activities appropriate to David’s age and development.

[129] Lucas has used his access time to re-introduce David to his paternal grandparents who live only an hour away in London. David also sees his uncles, aunts and cousins in the Sarnia and London area.

[130] David is at an age where communication by phone or Skype is not a reasonable or practical substitute for time together with his father. David is learning new words but is a distance from being able to converse for any length of time. He needs to be with his father to build the bonds for a strong future relationship.

[131] In Walker v. Maxwell, 2015 BCCA 282, the court upheld the decision of the trial judge to deny permission for the mother to move with her two year old daughter from Vancouver to Minneapolis, Minnesota. In doing so, the trial judge focused on the daughter’s young age and stage of development which required “regular, frequent contact with both parents to permit proper bonding with each and to avoid the emotional and psychological risks of detachment from either of her parents at her current age.”

[132] The same rationale applies here. David is very young. He needs to see and be with his father to properly bond with Lucas. Regular contact is essential to the development of a healthy relationship with Lucas. The proposed move to Alberta would significantly impair access and their time together which is unhealthy for their relationship.

[133] On this factor, I find that David has a loving, caring relationship with Lucas. I have no concerns with Lucas’ ability to parent or his willingness and commitment to do so. Because of David’s young age and stage of development, frequent direct contact is an essential component of the development of a healthy relationship between father and son. The foundation for that relationship has started but is far from complete or sufficient for long-term bonding.

C. Desirability of Maximizing Contact

[134] S. 16(10) of the Divorce Act, R.S.C. 1985, c.3 (2nd Supp.) requires that I give effect to the principle that a child of the marriage should have as much contact with each parent as is consistent with the best interests of the child. This is the maximum contact principle. It applies in mobility cases but does not trump all other considerations: Bjornson, para. 34.

[135] In Gordon, McLachlin J. wrote at paras. 24 and 25:

“24. …The “maximum contact” principle, as it has been called, is mandatory, but not absolute. The Act only obliges the judge to respect it to the extent that such contact is consistent with the child’s best interests; if other factors show that it would not be in the child’s best interests, the court can and should restrict contact: Young v. Young, [1993] 4 S.C.R. 3 at pp. 117-18, per McLachlin J.

25. The reduction of beneficial contact between the child and the access parent does not always dictate a change in custody or an order which restricts moving the child. If the child’s needs are likely to be best served by remaining with the custodial parent, and this consideration offsets the loss or reduction in contact with the access parent, then the judge should not vary custody and permit the move. This said, the reviewing judge must bear in mind that Parliament has indicated that maximum contact with both parents is generally in the best interest of the child.”

[136] David presently has regular time with each parent. He is healthy, happy and enjoys his time with each. He is not suffering under the current regimen; to the contrary, he is doing well. There is no reason to suppose that that will change if Lauren remains in Sarnia; certainly, there was no evidence to suggest same. From David’s perspective, a stay in Sarnia permits him to have a deepening bond and relationship with each parent.

[137] A move to Alberta has many benefits for Lauren (and David) including:

1. Lauren will be able to live close by her parents who are aware of her mental health issues and have shown themselves to be very supportive of her and David;
2. Lauren will be close by other family and friends with whom she is close;
3. Lauren will be able to either upgrade her education thereby increasing her chances for future and better paying employment, or return to work in a secure position with an outstanding employer (Suncor) utilizing the skills and knowledge she has already accrued;
4. Lauren will have nearby assistance with David’s care from persons she trusts;
5. She will feel less isolated and more grounded in familiar surroundings;
6. She will have flexibility at Lethbridge University to upgrade her education and work, while caring for David.

[138] I am concerned that Lauren’s plans remain somewhat uncertain. First, she was going to return to Fort McMurray, then Lethbridge and perhaps Calgary. Much of the evidence in this regard focused on Lauren, not David. Where would David reside in Lethbridge or Calgary? Who would care for David when Lauren was working or in school? What doctor will David see? I have the sense that much of the plan is a work-in-progress.

[139] I am not unsympathetic to Lauren’s desire to return home. She does not consider Sarnia to be her home. However, her isolation at this point is understandable when looked at in context. She re-located to a city with a newborn. She was living for a long time in various temporary housing. Her hospitalizations and return to health inhibited her time to branch out and form new relationships.

[140] As for her plans in Lethbridge or Calgary, I observe that there are very good universities near Sarnia that she could attend. There are prospective employers in this area. There are daycares. She has an existing mental health care plan in place in Sarnia that can continue. She is currently receiving child and spousal support that are adequate given the cost of living in the Sarnia area. The evidence does not establish that staying in Sarnia will have significant adverse effects for Lauren that will have a negative impact on David.

[141] I am mindful that there are benefits that will accrue to David from Lauren’s proposed move, not least of which is that she may be happier in Alberta. However, I must also consider the drawbacks to David of the proposed move including the impacts to his relationship with Lucas.

[142] In this case, I am satisfied that it is desirable that David continue to have access with Lucas at a minimum in accordance with the access schedule ordered by Verbeem J. dated May 11, 2017. In coming to that conclusion, I find that:

1. The relationship and bond between David and Lucas is still developing. David is not a 10 year old who already has a well-established bond with his father;
2. Whether or not David moves to Alberta, his bond with Lauren will be unaffected since she is his primary caregiver under either scenario – Sarnia or Alberta;
3. David’s age and stage of development necessitates regular direct contact and time together between David and Lucas;
4. Alternate modes of communication like Skype and phone calls will not be an effective substitute for access time together – David is largely non-verbal at this point;
5. Lucas is a caring, attentive father who will be a positive influence for David as he grows and matures;
6. The access schedule proposed by Lauren significantly reduces the frequency of contact and length of time David will spend with Lucas.

D. Views of the Child

[143] This factor does not apply or cannot be ascertained given David’s age.

E. Custodial Parent’s Reason for Moving

[144] I find that Lauren is not seeking to move to frustrate or interfere in the relationship between Lucas and David. There is no vindictiveness evident here. She has legitimate reasons for wishing to return to Alberta.

F. Disruption to Child from Change in Custody

[145] No change in custody is contemplated by this move, but the move would significantly affect the existing access arrangement. The change in David’s weekly routine will not adversely affect him, but as indicated above, the loss of regular contact with Lucas may imperil an important relationship.

G. Disruption to Child re Other Family, School, Community

[146] The proposed move to Alberta will not significantly affect David vis-à-vis other family, schools and the community in Sarnia. David is not in school. He is not in programming in Sarnia where he made strong attachments.

[147] Both parents have supportive extended family nearby Sarnia or Lethbridge. Both families are willing and able to help with David’s care. If David is in Alberta, he will spend more time with his maternal grandparents and family on his mother’s side. If David is in Sarnia, the reverse is true even though he has already spent substantial time with his maternal grandparents through their extended time in Sarnia.

[148] Because Lauren restricted contact with Lucas’ parents prior to separation and Lucas has less time with David, it seems to me likely that David is not as closely bonded to his paternal grandparents at this stage.

[149] In short, this factor has minimal impact on the balancing that must be done here.

Balancing

[150] Mobility cases are difficult – not because the law is unsettled, but because of the significant implications to the child and parents. This case is no different. It is a close call.

[151] As I have reviewed the above factors, I have engaged in weighing the pros and cons of the proposed move with a view to determining David’s best interests. I will not repeat same here.

[152] It is obvious to me that both parents love David and want to be the best possible parents to him. Subject to Lauren’s health, both parents are able to meet David’s needs. Insofar as Lauren’s health is concerned, I certainly hope that going forward she has no further issues; that these issues are behind her.

[153] At the end of the day, looking at this from David’s perspective and giving considerable weight to Lauren’s wishes, I conclude that it is in David’s best interest at his young age that he remain in Sarnia so that he can have ongoing frequent access with his father to build the bond between them. In my view, the benefits to David and the importance of a strong loving bond with his father outweigh the benefits to Lauren and David of a relocation to Alberta.

[154] This issue should be reviewed in 18-24 months before David starts school if Lauren still wishes to return to Alberta. By then, custody should be determined. It is hoped that Lauren’s mental health issues will be resolved or less concerning and a plan for same will be in place if she moves. By then, the bond between David and Lucas will be more developed and David’s ability to communicate will make alternate communication more appropriate. Lucas will also no longer be subject to a financial penalty if he moves to Alberta to be closer to David.

[155] The issue of custody requires a trial. The parties should discuss whether that issue should proceed ahead of any other issues and, if so, contact the Trial Coordinator to obtain dates for same.

[156] If the parties wish to pursue the issue of costs, (and I can understand why they would not), and they cannot agree on same, they may make written submissions not exceeding 5 pages within 30 days hereof.

Original Signed by Justice Raikes The Honourable Justice R. Raikes

Released: June 22, 2017