Court File and Parties
Court File No.: FC-44/2014 Date: 2017/07/07 Superior Court of Justice – Ontario
Between: Carl Rivest-Marier, Applicant And: Myriam Emond, Respondent
Counsel: Jacques Menard, for the Applicant Roger Trudel, for the Respondent
Heard: June 26, 27 and 28, 2017
Reasons for Judgment
Overview
[1] This trial considered the best interests of a 6 year old child, namely Xavier. Both parties seek custody of the child. The applicant (“father”) seeks an order for sole custody and an order permitting him to move with the child from Kingston, Ontario, to Edmonton, Alberta as a result of the father being transferred through his employment with the Canadian Armed Forces (“Forces”). The respondent (“mother”) seeks an order that the child move to Montréal to live with her.
Background
[2] The father is 28 years of age. He has a diploma from a community college in the province of Québec. After graduation, he worked as a manager of two bars one of which was a strip club in Montreal. It was in this environment that he met the mother who worked in the same club as a dancer.
[3] During this time, both parties admitted that they used illicit drugs as well as alcohol on a regular basis. The parties started to live together in July 2009. In July 2010, the father decided that he had enough of the lifestyle of working in a bar, dealing with street gangs and using illicit drugs. He went to a recruiting station for the Canadian Armed Forces (“Forces”) and was forthright and indicated that he wanted to join but that he had done drugs. He was advised by the recruiting personnel that if he came back in six months and passed the urine test that was negative for drugs, he could be admitted. That day the father stopped using drugs and six months later he came back and passed the urine test. He waited an additional six months before being accepted in the Forces on October 6, 2010.
[4] The father did his basic training at St. Jean, Quebec. His second posting was at Canadian Forces Base (“CFB”) Val Cartier in Québec. He completed his training in communications at CFB Kingston. At that time, he was offered two choices to go to either Val Cartier or Kingston and he decided to stay in Kingston. Both postings were a three hour drive time from Montreal.
[5] The mother is 28 years of age. She grew up in Montreal. She worked as a dancer until she became pregnant. After the mother advised the father that she was pregnant, he said he was not prepared to have a child and suggested that the mother abort the child. She refused and the child was born on March 30, 2011 while the father was doing his basic training.
[6] After the birth of the child, the mother stayed home to care for the child. The father would come home on weekends. After a few months, the mother went back to working in bars as a bar maid or server because she could work at night and stay home during the day with the baby.
[7] The mother sought mental health assistance from Centre de Santé et de Service Sociaux Pierre Boucher in Montréal on August 4 and August 23, 2011. In August 4, 2011, the mother called for couples therapy with a request about assistance on better communication skills. The form completed by the social worker makes comment about allegations of verbal abuse by the father after the birth of the child. In the second intake form of August 23, 2011, the mother sought counselling to help her with her anger. At no time does the mother raise the issue of physical abuse by the father.
[8] The mother remained in Montréal with the child while the father continued on his career in the Forces. The father continued to travel to Montréal to visit the child for the weekends. The mother testified that during the party’s relationship the father subjected her to psychological and physical abuse such as pinching her, hitting her arms and punching her. She states that on the day that the separated, he was not supportive and he wished her luck in a very sarcastic way.
[9] After the parties separated in March 2012, the father paid the mother between $400 and $500 per month until the end of February 2013. He also left the mother with all the contents of their apartment and he lived in a 6’ x 8’ room in barracks at CFB Kingston. When he would attend to Montréal to care for his child, he would go with the mother to the grocery store and buy groceries and diapers for the mother.
[10] At the end of February 2013, the father received a call from a relative of the mother concerned about the child because she believed that the mother was depressed and that the mother was involved in prostitution. The father then received a call from the mother’s own mother concerned about the mother’s mental state and requesting that he come to Montreal to take over the physical custody. In addition, the mother called the father to take over the custody of the child as she needed a break to stabilize her life. The father applied for one week compassionate leave from the Forces to allow him to travel to Montreal to pick up the child. Three days after receiving the calls, the father went to Montréal to pick the child up.
[11] The mother admits that she needed help with depression and alcohol. The mother testified that she sought help from a psychologist and a psychiatrist as she was having between three and four anxiety attacks daily to such an intensity that she could not drive a car or even walk to the corner store. The mother testified that she no longer has any problems with panic attacks.
[12] The mother did not see the child for a period of time. The parties differ as to how long it took for the mother to contact the father to arrange for her to see the child. The mother says it was 2 months while the father said it was 4 months. In any event, eventually access was arranged. The mother would travel to Kingston to see the child but because she was suffering from panic attacks she needed another person to drive her. After the mother had a series of visits in Kingston, the father agreed that the mother could start seeing the child every second weekend from Friday to Sunday in Montréal. The mother would drive to Kingston to retrieve the child and the father would drive to Montréal to pick him up on Sundays.
[13] In December, 2013, the father started to live with Ms. Annie Rodrigue. She had previously known the father when they were both approximately 18 years of age. She had a child from a previous relationship named Haidy. She had operated a daycare facility before moving to Kingston. Once in Kingston, she started another home daycare.
[14] Both the father and Ms. Rodrigue started to travel to Montréal to pick up the child at the end of his access weekend with his mother. In January 2014, the mother was unhappy that the father had a new girlfriend. One Sunday in January 2014, the mother called the father to say that she was keeping the child another week beyond her weekend access visit. The father disagreed and insisted on the child returning. The mother refused.
[15] On January 22, 2014, the father commenced proceedings seeking custody of the child; requesting that the mother have reasonable access on reasonable notice and costs. On January 22, 2014, Justice Robertson granted the father the right to have a motion heard before a case conference. The motion was heard on January 23, 2014. The mother attended the motion. At that time, Justice Robertson ordered that the father would pick up the child in Montréal that night at 8:00 p.m., that the child would reside in the care of the father pending further order of the court and adjourned the matter to January 29, 2014. The father travelled to Montréal that night and retrieved the child.
[16] On January 29, 2014, Justice Trousdale, based on the consent of the parties, appointed the Office of the Children’s Lawyer, found that the proper jurisdiction to determine the issue of custody and access to be the Superior Court of Justice in Kingston Ontario; granted the mother access every alternate weekend from Thursday at 5:00 p.m. to Sunday at 5:00 p.m. with the access being extended if Monday was a statutory holiday; ordered the mother to pick up the child in Kingston and the father to pick up the child in Montréal for access.
[17] During this period of time an incident occurred on February 23, 2014 when the father went to Montréal to pick the child up at noon to return to Kingston. An altercation occurred between the father, his partner and the mother. The evidence is contradictory as to whether or not the father physically engaged with the mother. In addition, the evidence is also contradictory as to the state of the inside of the mother’s apartment when the father went to pick up the child. In any event a very unfortunate incident occurred which resulted in the mother calling the police. The father decided himself to call the police before returning to Kingston and presented himself to a police station in the West End Montréal. When he entered the police station, he was arrested for assault on the mother. He was detained for 12 hours and eventually released.
[18] On February 24th 2014, the mother attended at the Sacré Coeur Hospital in Montréal to obtain medical assistance as a result of the incident that occurred with the father. The father denied the mother’s version of events and over the course of the next few months he found a neighbour who was prepared to testify that no altercation occurred. As a result the criminal charges were stayed in 2013.
[19] On March 13, 2014, the mother filed her Answer and Claim where she sought custody of the child, child support and costs.
[20] On March 19, 2014, the parties consented to an order of Justice Trousdale which included provisions that the father would have temporary custody of the child; that the mother would have access every second weekend from noon on Thursday to noon on Sunday; ordered the mother to pick the child up at a daycare facility in Kingston and ordered the father to pick up the child at noon on Sunday from the mother’s residence in Montréal and prohibited the mother from consuming alcohol or non-prescribed drugs and reserving the cost of the motion to the trial judge.
[21] After this incident in Montréal, there has been very little communication between the parties. The pickup and drop off would be at a neutral location including the child’s aunt’s home in Montréal.
[22] The mother moved to Kingston in the spring 2015 to May 2016. She returned to Montreal and returned to Kingston from July 2016 to November 2016. When she moved to Kingston, the parties mutually agreed that the mother could have additional access to the child every second Wednesday from 5:00 p.m. to 7:00 p.m.
[23] On July 11, 2016, the father and Ms. Rodrigue had a child of their relationship namely Izzak. After his birth, the father took paternity leave and took courses at St. Lawrence Police Foundation in support of his desire to become a military policeman.
[24] The father is currently a master corporal at CFB Kingston. The father was offered transfers in 2015 to either CFB Gagetown or CFB Edmonton as well as deployments to Afghanistan. The father refused all such transfers because of this ongoing custody litigation. When the father started in the Forces, he was a private then he was promoted to a corporal and in June 2017, he was promoted to a master corporal. The father testified that once promoted, the policy of the Forces is to transfer the individual to another base.
[25] The father will be making efforts to transfer to become a military policeman which requires schooling and training for approximately 2 ½ years. During this 2 ½ year period, he will be undergoing training so he will not be eligible for deployment to Afghanistan. The father admits that in CFB Edmonton he may be posted on a mission and the mission may be a short deployment of between one and three months and a long deployment between six and nine months.
[26] On March 29, 2017, the father was advised that he was being transferred to CFB Edmonton effective July 17, 2017. As a result, the father travelled to Edmonton in late May 2017 and purchased a home 20 minutes north of the base. The house is very close to an elementary school where Xavier will attend and the home has six bedrooms, which will provide each child having a separate bedroom. The plan is that Ms. Rodrigue will be a stay-at-home mom and eventually she may take in one or two children as part of a home daycare. The father indicates that Ms. Rodrigue has three brothers nearby as well as his own brother lives in Edmonton and for that reason he will have support from family which he does not have in Kingston.
[27] The child attended Sir John A Macdonald Elementary school in junior kindergarten and senior kindergarten. The father would meet with the teachers two times per month in addition to the regularly scheduled parent-teacher interviews to ensure that his child was being properly educated. The mother complained that she was not permitted to obtain information from the school board but presented no evidence of her attempts to contact the school. I find that in the school year September 2016 to June 2017, the mother made inquiries on one occasion.
[28] The mother testified the father does not reply to her texts and that she provided him with the communication book which he threw out the window of his car. The mother admitted that she made poor choices of co-tenants in previous locations such as the decision to share accommodations with an individual with an extensive criminal record and with another individual had just been released from prison. The mother also resided with an individual in Kingston for a period of time but that relationship recently ended. The mother readily admits her error and promises not to do so in the future.
[29] With respect to different residences resided in by the mother, she admitted because she moved so often she uses her mother’s address in Lorainne, Québec as her mailing address. The mother has filed four separate addresses since 2014 on different documents including one in Kingston, two in Montréal and one in Lorainne, Québec.
[30] Ms. Cynthia Schoppmann was appointed by the Office of the Children’s Lawyer (“OCL”) to conduct an investigation as to what is in the best interests of the child. Ms. Schoppmann prepared a report dated December 29, 2016. In her findings, she recommends the father be granted sole custody of the child, that the mother should have access every second weekend, that the transportation between Kingston and Montréal would be shared equally, the parties would work out an arrangement for an equal sharing of the holidays and that the parties attempt to use a communication system such as Google calendar or Family Wizard to allow the parties to communicate. Finally on the issue of possible transfer by the father from CFB Kingston, she indicated that since there was no concrete plan presented to her by the time she completed her report, she could not provide an opinion but that it was important to remember that to date the father has provided the child with a stable environment.
[31] The OCL report also confirmed that that in 2016 the mother moved to Kingston and back to Montreal on two occasions. In early 2016, she moved to Montréal because her grandmother was ill and that she moved back in 2016 to strengthen her relationship with her child. She moved back to Montréal to be closer to her family. The mother confirmed to the OCL worker that she had made mistakes by posting negative comments about the father and his partner on Facebook. The social worker was concerned that the mother was causing instability for the child by moving twice in 2016.
[32] The OCL report was based on a series of interviews that were conducted in April and September 2016 regarding the parents as well as observations of parental interaction. Further, communication with third parties such as family doctor, the father’s doctor, the mother’s doctor, the principal of the school and the like were all conducted in May through November 2016. The report indicates that after consulting with the child’s family doctor, the child is in good health. Further after discussing the child with the school principal, she confirmed that the school did not recall the mother requesting to see the child’s school file and that there were no concerns regarding the child’s behaviour or learning ability at school.
[33] The mother presented her aunt and grandfather as witnesses. They confirmed that the mother has a very close relationship with the child. The aunt admitted that in February 2013 it was a good idea for the child to go live with the father. The aunt indicated that on the weekends when the child comes to the mother’s home, he usually gets there by 9 pm and had to leave at noon on Sunday to return to Kingston. She also indicated that the mother suffered a major depression in February 2013 resulting from a difficult pregnancy and a difficult separation but she has been attempting to assist the mother in getting back on her feet. The apartment where the mother is currently residing is owned by her grandfather and that the mother apparently only pays for the electricity as her contribution to the monthly expense. The aunt confirmed that the mother had registered for a course at the University of Québec at Montréal as well as a course to become a paralegal\legal Assistant but did not complete either program. The aunt had never heard that the mother worked in a Swedish massage parlour.
[34] The mother’s stepsister testified that she has been close with the mother since 2015 but had very little contact with her before that date. She found the child to be intelligent and respectful. The mother’s own mother testified about the incident in February 2014 where she took pictures of the injuries sustained by the mother as a result of the altercation with the father. She admitted she also called the father to take care of the child while the mother recuperated as she needed a break.
[35] One of the mother’s best friends testified that in the winter of 2012, she saw marks on the mother’s neck. She testified that she was present when the mother spoke to the father at the end of February 2013 to take care of the child because she needed a temporary break. Finally, Mr. Fournier, a very close friend of the mother, testified that he, the mother and the father were involved in using drugs and alcohol prior to the child’s birth. He testified that he saw marks in the mother’s neck at the February 2014 incident and he had seen the father pinch the mother and hit her in the arms prior to the party’s separation.
Credibility
[36] Throughout this trial I have heard from the mother and father two different versions of events that require findings of credibility.
[37] With respect to the father, I find that he was very direct, forthright and clear in his testimony. He readily admitted his drug use, his past wild lifestyle and a conviction for impaired driving. The father admitted that he had sent a message to the mother that she should get out of their lives meaning him and Xavier. He admitted he did so because the mother had walked out of the child’s life. He admitted that it was rare for the parties to have respectful communications blaming himself as part of the problem. His testimony was consistent and upon cross-examination remained consistent. I find that the father’s evidence was clear and concise.
[38] With respect to the mother I find that she is not a credible witness based on the following findings:
(a) in the mother’s financial statement dated March 3, 2014 she indicated that she been out of employment since September 2012. However the mother testified that she worked at the bar in Montréal from 2010 until it closed at the end of October 2014. Further, the mother admitted that she worked for three months as a manager of a Swedish massage parlour in 2013 for cash. I find that the mother’s filed a false financial statement on March 3, 2014 in an attempt to mislead the court;
(b) the mother made allegations that the father had been physically abusive to her throughout the parties relationship. Despite alleging the physical abuse, the mother did not disclose this allegation of abuse in her discussions with the social worker from the Office of the Children’s Lawyer nor did she make any such allegations of physical abuse when she went to the medical center in Montréal. I find that if the allegations were true, the mother would have disclosed the incidents to the social worker who was investigating the best interests of the child and her social worker in Montréal who is providing her with mental health assistance;
(c) the mother testified that the father had punched her in the face without provocation in private but she made no contact to the police because she was concerned that the child protection authorities in Montréal would remove the child from her care. I find it hard to believe that the victim of domestic violence would lose custody of her child from the child protection authorities for disclosing physical abuse;
(d) the mother testified that she never sent more than 20 texts or 20 phone calls to the father. However when confronted with a printout of texts received by the father from the mother on August 11, 2012 which showed 104 text messages, the mother admitted she had sent those text messages. I find that the mother attempted to mislead the court in her evidence;
(e) in an affidavit dated May 2017, the mother indicated that she had the ability to care for the child financially. In support of that point the mother filed a copy of a line of credit statement from Bank of Nova Scotia. In cross-examination, the mother admitted that the line of credit belonged to her grandfather and not her. I find that the mother was attempting to mislead the court as to her financial ability to care for the child;
(f) in that same affidavit dated May 2017 the mother filed a power line statement from the Bank of Nova Scotia to support her argument that she had the financial ability to care for the child. Again, in cross-examination it was discovered that the account belonged to her grandfather. I find the mother was attempting to mislead the court as to her ability to care for the child;
(g) on February 28, 2014, the mother attended at the Sacré Coeur Hospital in Montréal to obtain medical care for the alleged injury sustained related to the incident with the father attending at her residence. Upon a review of the emergency department medical records, there is no mention made of any injury sustained to the mother in the neck or head. The mother’s own mother filed a picture of injuries allegedly sustained on February 28. The mother alleged that she had suffered these injuries at the hands of the father. However, the medical records from the hospital contradict the mother’s statements and the picture filed by her own mother. Secondly, the criminal charges related to this incident were stayed. I have difficulty accepting that the charges would be stayed if the Crown prosecutors had corroborative evidence of such an assault. I find that the mother has attempted to mislead the court as to what transpired on February 28, 2014;
(h) the mother testified that she would be taking a course related to real estate starting January 2018 through Employment Québec. However according to a letter dated May 5, 2017 from Employment Québec, the mother is in the process to pursue an unnamed course to start in January 2018. The mother testified that she confirmed all such information with the court. However, the correspondence from Employment Québec does not corroborate the mother’s testimony as to the nature of the course or that she is even registered to attend any course. I find that the mother’s attempted to mislead the court as to her future educational pursuits;
(i) the mother testified that in the motion before Justice Doyle on March 23, 2017, she was not asking the father to continue to drive to Montréal to pick up the child. However upon a review of the endorsement of Justice Doyle that is exactly what the mother was asking the court. Justice Doyle ordered the mother to pick the child up in Kingston and to return the child to Kingston at the end of access. I find the mother attempted to mislead the court as to her previous positions before this court.
[39] Based on the finding that the mother is not a credible witness, I find that if there is a conflict in the evidence of the mother and father, I prefer the evidence of the father.
[40] Further, I prefer the evidence of the father as to what happened on February 24, 2014.
Law on custody
[41] Pursuant to section 24 of the Children’s Law Reform Act, R.S.O. 1990, c.C.12, (CLRA), the merits of an application in respect to custody and/or access to a child shall be determined on the basis of the best interests of the child in accordance with subsections 2, 3 and 4.
[42] The court shall consider all the child’s needs and circumstances, including,
(a) the love, affection and emotional ties between the child and, (i) each person entitled to or claiming custody of or access to the child; (ii) other members of the child’s family who reside with the child; and, (iii) the persons involved in the child’s care and upbringing. (b) the child’s views and preferences, if they can’t reasonably be ascertained; (c) the length of time the child has lived in the stable home environment; (d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child; (e) the plan proposed by each parent applying for custody of or access to the child for the child’s care and upbringing; (f) the permanence and stability of the family unit with which it is proposed that the child will live; (g) the ability of each person applying for custody of or access to the child to act as a parent; and (h) the relationship by blood or through an adoption order between the child and each person who is a party to the application. (Section 24(2) CLRA)
[43] A person’s past conduct shall be considered only,
(a) in accordance with subsection 4; or (b) if the court is satisfied that the conduct is otherwise relevant to the person’s ability to act as a parent. (Section 24(30) CLRA)
[44] In assessing a person’s ability to act as a parent, the court shall consider whether a person has at any time committed violence or abuse against,
(a) his or her spouse; (b) a parent of the child to whom the application relates; a member of the person’s household; or (c) any child. (Section 24(4) CLRA)
[45] In Gordon v Goertz, [1996] 2 SCR 27, the Supreme Court of Canada provided a list of factors to be considered by a court in deciding the custody and mobility of a child. The court made the following list at p. 23:
- The judge must embark on a fresh inquiry into what is in the best interest of the child, having regard to all the relevant circumstances relating to the child’s needs and the ability of the respective parents to satisfy them.
- 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 in the most serious consideration.
- Each case turns on its own unique circumstances. The only issue is the best interest of the child in the particular circumstances of the case.
- The focus is on the best interests of the child, not the interests or rights of the parents.
- More particularly the judge should consider, inter alia: a) the existing custody arrangement and relationship between the child and the custodial parent; b) the existing access arrangement and the relationship between the child and the access parent; c) the desirability of maximizing contact between the child and both parents; d) the views of the child; e) the custodial parent’s reason for moving, only in the exceptional case where it is relevant to that parent’s ability to meet the needs of the child; f) disruption to the child of a change in custody; g) disruption to the child consequent on removal from family, schools, and the community he or she has come to know.
[46] In Bjornson v. Creighton, 62 O. R. (3d) 236, the Court of Appeal stated while the principles set out in Gordon apply to an application to vary in order, they were equally applicable on the issue of mobility at an original hearing.
[47] In dealing with the maximum contact principle the court in Bjornson stated at paragraph 34:
While the “maximum contact” principle, does apply and is an important one, and is not absolute and it remains one factor in the whole of the analysis. It ought not to be treated as the governing factor. In Gordon, at para 24, McLachlin J. noted that:
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.
The Parties Position
[48] The father proposes that he should have sole custody and to maintain the child’s relationship with his mother, that the mother could have the child for one month in the summer, one week of Christmas and every March break on the basis that the mother assumes the costs. In addition he is open at the mother having Skype access as well as phone access to the child. As a result of the father moving to CFB Edmonton, the father is not requesting any child support from the mother but that she assume the cost of transportation.
[49] The mother’s position is that she should have sole custody of the child and the father should have access. The mother argues that she loves her child, she wants to teach him values and that she has family support. She is also concerned about the child losing contact with his ability to communicate in French and be exposed to the French culture. She submits that it is unfair to her and the child that custody should be granted the father because of a temporary inability to care for the child in 2013.
Analysis
[50] In deciding which parent should have sole custody of the child, I have taken into consideration the factors set out in the CLRA and the principles set out in Gordon and Bjornson and make the following findings:
(a) both parties are the natural parents of this child; (b) both parties love this child; (c) until the end of February 2013, the child’s primary parent was the mother. I find that the mother was unable to care for the child and consequently the father assumed the role as the primary parent as of March 1, 2013; (d) the mother did not seek custody of the child until she filed her responding materials in March 2014 almost a year after the child went to live in the primary care of the father; (e) since March 1, 2013, the father has made all major decisions for the child including arranging medical care, registering him in school and providing him with a stable home environment; (f) As result of the age of the child, I cannot ascertain and consider the child’s views and preferences; (g) since March 1, 2013, the father has worked on a full-time basis, has a stable relationship with his partner, provided a home for the child and has been consistent in his care; (h) the mother has lived in a series of residences, worked intermittently, lived with a variety of individuals and moved away from her child twice in 2016; (i) the mother has shown poor judgment in the co-tenants that she has lived with which she acknowledges was an error on her part; (j) the mother’s future plans for employment and education are uncertain; (k) the father was notified on March 29, 2017 that he was being transferred to CFB Edmonton. While the mother submitted that the father had other alternatives, the father testified that he could not be transferred to CFB Val Cartier because of his inability to conduct his position and communications in the French language after having been trained and worked in English at CFB Kingston. I have no evidence to suggest that the father orchestrated his transfer to Edmonton; (l) the child has done very well in the care of the father. The child has been educated and raised by the father. All parties admit that the child is intelligent, bilingual and respectful while residing with his father; (m) the father and his partner speak French at home and recognize the importance that the child be exposed to and maintain his ability to speak French and recognize the French culture; (n) the mother’s has attempted to deceive the court in this proceeding; (o) the father’s plan in Edmonton provides the child with stability while the mother’s plan is uncertain; (p) the child loves both parents; and, (q) the child needs stability in his life.
[51] The relationship between these two parents is toxic and high conflict. There have been incidents in the past which required the intervention of the police. There is evidence that the parties are not respectful to each other. This is not a case for joint custody on major decisions regarding the child because there’s no evidence the parties can communicate effectively. While the parties the parties need not consent to an order for joint custody before ordering joint custody, the court must have some evidence that the parties are able to communicate effectively with each other. Kaplanis v. Kaplanis, 2005 CarswellOnt 266 OCA. In this case, there is no evidence that the parties are able to communicate effectively and consequently and order for joint custody would not be in the best interest of the child.
[52] I conclude that the father should have sole custody of the child and the child should reside primarily with the father.
[53] The next issue is the father’s request to move to CFB Edmonton. While such a transfer will affect the mother’s relationship with the child, I have considered the best interest of the child and feel that his best interests would best be served by him moving with his father to Edmonton. The father has shown that he has the ability to care for his son. In comparing the competing plans presented by the mother and the father, I find that the father’s plan is the most appropriate for the child’s best interests.
[54] Considering that the father has been the main custodial parent of this child since March 1, 2013, that the child has done well in the father’s care and that the father’s employment requires that he be transferred to Edmonton, I order that the father shall be permitted to transfer with the child to Edmonton effective July 17, 2017.
Access
[55] I received submissions by the parties with respect to the request for access. After considering the best interest of the child, I grant to the mother access as follows:
(a) as the father is moving to Edmonton, the mother shall have access this summer with the child. The mother shall be entitled to three consecutive weeks in August 2017 with the child with the requirement that the child be returned to Edmonton seven days before he starts school; (b) March break school vacation in every year. The mother is to confirm in writing that she will exercise said access by January 31 of each year. If she fails to do so, the father may make arrangements during that school break; (c) for summer holidays, the day after the completion of school in June of each year until the last Sunday in July of each year; (d) from December 23, 2017 to December 30, 2017; (e) commencing in 2018, the first half of the Christmas school vacation and the second half of the Christmas school vacation in 2019 and alternating every year thereafter; (f) upon 60 days written notice for a weekend in Edmonton, Alberta or such other time as the parties may agree; (g) Skype access with the child at a mutually agreed day failing which it will be every Wednesday at 7:00 pm, Edmonton time, for half an hour; and, (h) telephone access with the child at a mutually agreed-upon day and time.
[56] With respect to the travel costs associated with the mother exercising access to her child, the father has proposed that until the child attains the age of 10 years of age being March 30, 2021, he will travel from Edmonton with the child by plane to the mother’s residence in Montréal. The father shall be responsible for the cost of his airline ticket to travel to and from Montréal to deliver the child. The mother shall be responsible to pay for and travel with the child at the end of any access. This order regarding the travel costs shall start this summer.
[57] As the mother will be in Montréal and the father will be in Edmonton, it will be important for the mother to have information about the child’s development, activities and education. To that end, I order that the father and the mother shall exchange email addresses by August 1, 2017. The father shall create a Google calendar and input all important dates and times regarding the child’s medical appointments, dental appointments and activities. Further, I order that the father shall mail to the mother a copy of the child’s school report cards within 10 days of receipt from the school. To ensure that the mother receives said report cards, the mother shall provide the father with her current address and shall provide information regarding any change of address within 10 days of any change.
[58] The mother shall be permitted to communicate with any healthcare professional or educational professional involved in the child’s life directly.
Child support
[59] Currently father’s income is $55,000 per year and effective July 1, 2017 he will be receiving a 6% increase. In addition as part of his transfer to CFB Edmonton, he will receive an increase of $650 per month to take into account the increased cost of living as well as $350 per month because his current position renders him eligible for deployment on missions.
[60] Since the child has been in the care of the father the mother has not paid any child support. She is offered to pay for school clothes and activities. The father sought child support from the mother in March 2017 at a temporary motion.
[61] When the mother lived in Kingston in 2016, she worked at a hotel and a daycare and her declared income that year was $17,585.21. In 2017, the mother indicates that she is in receipt of social assistance and intends to attend a course in January 2018 through Employment Quebec and that she will be in receipt of social assistance until that time. She also indicates that she may be working for a friend. She admits that she has worked for cash and non-declared income for three months when she was the manager of a Swedish massage parlour in Montréal in 2013. The mother has no physical or mental impairment to work.
[62] The mother admitted that she worked as a barmaid or a server at a bar in Montréal earning a minimum wage of $8 an hour with varying hours working three days a week from 2010 until the bar closed in November 2014.
[63] The mother indicates that she has difficulty in finding work because every second Friday she has to come to Kingston and that she would have to leave Friday afternoon. She indicates that she had spoken to potential employers who indicated they were not prepared to accommodate such a work schedule but that after the trial, she should contact them.
[64] In exchange of the mother assuming the transportation costs, the father does not seek any table child support or contribution to the child’s section 7 expenses.
[65] However, the father seeks retroactive child support in the amount of $3,387 for the years 2013, 2016 and 2017.
[66] The mother had an obligation to pay table child support to the father once he had the physical custody of the child. That occurred on March 1, 2013. Proceedings were not commenced until January 2014.
[67] In the father’s original application, he sought custody and access but did not seek child support from the mother. The father did not seek table child support until March 23, 2017 when he brought a motion for temporary support. Amongst the various claims for relief, the father sought to impute an income of $28,800 to the mother. On March 23, 2017 Justice Doyle reserved the issue of child support to the trial judge.
[68] The mother’s position is that she did not pay child support because the father would make offers to settle the case with her paying child support or not paying child support and that the positions varied. The mother does not deny the she earned $17,585 in 2016 and that in 2017 is currently receiving $900 per month being $650 per month of social assistance and $250 of commissions, tips and bonuses.
[69] I find that the father did not request child support until 2017. I exercise my discretion to not order any child support for the year 2013. While I have my doubts as to the amount of money that she earned while working at the bar between 2010 and 2014, I do not have a sufficient evidentiary record to be able to impute an income to the mother. What I do have is I have the mother earning $17,585 in 2016. I find that the mother should have paid child support when she was earning this amount of money. Her counsel makes a submission that the mother’s access costs should outweigh any table child support however the evidences is that the mother lived in Kingston for January, February, March, April, July, August, September and October 2016. Her 2016 federal income taxes filed used her mother’s mailing address in the province of Québec. I find that by December 31, 2016 the mother was residing in the province of Québec. I find that the calculation of table child support should be based on the payor residing in the province of Québec. Consequently I order that the mother pay to the father table child support of $134 per month for all 12 months of 2016 totalling $1,608. I order the mother shall pay said support no later than December 31, 2018.
[70] I will not order any child support for 2017 as the mother’s income is based on receiving social assistance and part time income of $250 per month.
Disposition
[71] Based on the foregoing, I order as follows:
(a) the father will have custody of Xavier Aymeric Francis Emond, born March 30, 2011 and he shall make all decisions regarding the child; (b) the child shall reside with the father; (c) the father is granted permission to move to his new posting at CFB Edmonton, Alberta with the child; (d) the mother shall of access to the child as follows: (i) three consecutive weeks in August 2017 with the child with the requirement that the child be returned to Edmonton seven days before he starts school. (ii) March break school vacation in every year. The mother is to confirm in writing that she will exercise said access by January 31 of each year. If she fails to do so, she shall not have access during this period of time; (iii) the day after the completion of school in June of each year until the last Sunday in July of each year; (iv) from December 23, 2017 to December 30, 2017; (v) commencing in 2018 the first half of the Christmas school vacation and the second half of the Christmas school vacation in 2019 and alternating every year thereafter; (vi) upon 60 days written notice for a weekend in Edmonton, Alberta or such other time as the parties may agree; (vii) Skype access with the child at a mutually agreed day failing which it will be every Wednesday at 7:00 pm, Edmonton time, for half an hour; (viii) telephone access with the child at a mutually agreed-upon day and time not to exceed 30 minutes unless the parties agree. (e) until the child attains the age of 10 years of age being March 30, 2021, the father will travel from Edmonton with the child by plane to the mother’s residence in Montréal. The father shall be responsible for the cost of his airline ticket to travel to and from Montréal to deliver the child. The mother shall be responsible to pay for her and the child’s airline ticket and travel with the child at the end of any access. (f) the father and the mother shall exchange email addresses by August 1, 2017 to allow communication between the parties; (g) the father shall create a Google calendar and input all important dates and times regarding the child’s medical appointments, dental appointments and activities; (h) the father shall mail to the mother a copy of the child’s school report cards within 10 days of receipt from the school. The mother shall provide the father with her current address and shall provide information regarding any change of address within 10 days of any change; (i) Both parties shall be entitled to communicate directly with all professionals involved with the child, including but not limited to medical, dental, educational, professionals. No later than September 1, 2017, the father shall advised the mother in writing of all professionals involved with the child; (j) in the event that the child needs emergency medical care, each parent shall be entitled to make any decisions and provide any instructions necessary when the child is in their care, to see to the care of the child on an urgent basis. The party in whose care the child is at the time of the emergency shall promptly notify the other parent of the emergency as soon as is it is safe to do so; (k) The father shall retain the child’s birth certification and passport. These documents shall be provided to the mother should she requires same and once the stated purpose has been fulfilled, the mother shall return same to the father; (l) The father shall be responsible to ensure that the child has a valid passport and shall renew same as required. The mother’s consent to such passport application is dispensed with. The cost of renewing or replacing a passport for the child shall be the father’s responsibility; (m) The child’s health card shall travel with the child between the home of the parents; (n) If either party plans a vacation with the child, that parent will give the other a detailed itinerary at least 60 days before the commencement of the vacation, including the name of any flight carrier and flight times, accommodations, including address and telephone numbers and details as to how to contact the child during the trip. Each parent shall consent to such travel and such consent not to be unreasonably withheld; (o) If either party plans a vacation outside of Canada with the child, the travelling parent will provide the other parent with a travel consent authorizing the child to travel with the other parent. Said travel consent authorization must be provided within 14 days of receipt; (p) the mother shall pay to the father the sum of $1,608 by December 31, 2018 representing the arrears of child support within 30 days of this judgment; (q) commencing July 1, 2017, the mother shall not pay any table child support or contribute to the child’s Section 7 expenses to the father based on the mother assuming the travel costs to exercise access; (r) The parties shall advise each other of any change in their financial situation including a change in their employment and shall provide proof with 14 days of such change; (s) The parties shall exchange copies of their income tax returns by June 1 of every year and a copy of their notice of assessment within 14 days of receipt; and, (t) The father shall be entitled to all income tax benefits related to the child.
Costs
[72] I encourage the parties to settle the issue of costs by August 4, 2017. If they cannot, the father is to provide his costs submissions not to exceed three pages plus a bill of costs and any offers to settle by August 18, 2017. The mother shall file her costs submissions not to exceed three pages plus a bill of costs and any offers to settle by September 1, 2017. All costs submissions are to delivered to my chambers in Ottawa.
Shelston J.