Court File and Parties

COURT FILE NO.: D26143/14 DATE: 2019/03/07

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Sarah Stoughton, Applicant Anne Marie DiSanto, for the Applicant

- and -

Jessica O’Ney, Respondent Jolanta Bula, for the Respondent

HEARD at Welland, Ontario: February 19, 20, 21, 22, 27 & 28, 2019 The Honourable Justice D.L. Edwards

Judgment

[1] Sarah and Jessica are the parents of Rory who is a 4 year old boy. Currently, they share parenting time with him on an equal basis, with Sarah having Rory from 4:30 pm on Friday until 7:30 am on Tuesday, and with Jessica having him the balance of the week. Sarah lives in Niagara Falls, Ontario and Jessica lives in Niagara Falls, New York. Rory is a dual citizen of Canada and the United States. Because of the international border, it is not practical for Rory to continue this schedule once he attends school full-time. He must have primary residency with one parent and attend school either in the United States or Canada. As he should begin school in September 2019, this issue must be resolved.

[2] From all of the evidence that I have heard, it was evident that Rory is a lovable, intelligent child and that Rory has two loving mothers who want only the best for him. Both mothers acknowledge that the other mother only wants what is best for Rory.

[3] This makes the issue of where Rory should attend school, and what the arrangement for his custody should be, very difficult.

Background

[4] Sarah and Jessica were married in Canada on July 29, 2014. Previously they had undergone a commitment ceremony in the United States which had no legal effect. After marriage they lived in Niagara Falls, Ontario in a home purchased by Sarah and her father on July 25, 2014. They decided to have a child. Jessica was impregnated with an anonymous sperm donor. Rory was born on November 19, 2014 in Buffalo.

[5] The couple disagree on why Rory was born in the United States. Sarah testified that it was because Jessica had no health coverage in Canada, but she did have coverage in the United States by virtue of her employment. Jessica testified that it was important to her that Rory be born in the United States and have American citizenship.

[6] As soon as Rory was discharged from the hospital, the couple came back to Canada and lived in a home that Sarah and her father had purchased. They lived together in Canada until they separated.

[7] Again, there is disagreement on when the actual separation occurred. Sarah testified that they separated during the summer of 2016, after Jessica told her that she no longer wanted to remain married. Jessica said that they did not legally separate until she left the matrimonial home and moved back to the United States January 1, 2017.

[8] When Jessica moved into her apartment in January 2017, the current equal sharing of parenting time was begun and still continues to this day.

[9] Each party asks that I grant her sole custody of Rory and order that Rory attend school in September 2019 in their respective countries. Primary residence would follow such an order.

The Trial

[10] Both mothers testified as well as Sarah’s mother and father, Larraine and Garry; her sister, Amanda; Jessica’s sister, Danielle Neal; and her father, Mark. Also, the principal of the school at which Rory attends part-time in the United States, Maria Morabito, testified.

[11] The following is a summary of the evidence from those witnesses.

Sarah Stoughton

[12] Sarah Stoughton is 30 years old and has two stepsisters and one sister, Amanda, who has two children aged 7 and 10. She is very close to her sister Amanda and sees her family weekly. Amanda’s children attend Garrison Road Public School in Fort Erie, Ontario.

[13] Sarah is also very close to her parents. She talks to her mother daily. Her mother is very close to Rory and is Rory’s choice of babysitters. She said that Jessica was very negative about Sarah’s father. She never agreed with his view on certain subjects and said that he was abusive. Her father is retired. Her mother works in a construction company.

[14] Sarah is employed by Airbus Helicopters in Fort Erie. She has improved her position there and is moving towards finishing her apprenticeship.

[15] Her current partner is Tamara Thompson and the relationship has been ongoing for about two years. Ms. Thompson lives and works in Toronto. She is an occupational and physiotherapist assistant at Mount Sinai Hospital. Ms. Thompson has applied for jobs in Niagara as she wishes to move to Niagara to live full time with Sarah. She is considering commuting to Toronto via the Go train if she cannot obtain appropriate employment in Niagara.

[16] Sarah explained how her relationship with Jessica began. She obtained a student visa and attended school in the United States for one year. Before school started, she was introduced to Jessica via a mutual friend and eventually developed a relationship with her. She said that, in retrospect, they never had a healthy relationship and that Jessica was telling lies to her friends about their relationship.

[17] Sarah gave the example of a time when they were strawberry picking together with Rory and had a great day. Sarah later noticed that Jessica was texting her friends about how terrible the day was and how bad Sarah had been with her.

[18] Sarah also said that Jessica told her that she was diabetic and asked her to obtain insulin that was ordered for her nephew. Because the nephew who lives in Canada is diabetic, his insulin was provided free of charge, whereas Jessica did not have any benefits in the United States. She said that Jessica told her that she obtained some insulin from her mother. Later Jessica told her that she did not respond to a text because she was in a coma and that her dad gave her insulin to bring her out of the coma, which according to Sarah would have killed her, rather than helped her. Sarah pushed her to go to the doctor. Later Jessica told her that years ago the medical people had made a mistake and that she actually had a thyroid issue rather than diabetes.

[19] Sarah denied that she was not truthful with Jessica. She referred to a text sent on January 4, 2018 where Jessica accused Sarah of lying about a medical appointment being canceled. Sarah testified that as she did not have care of Rory on that day, she would not have made or cancelled the appointment. She also referred to a text dated February 12, 2019 where Jessica alleged that Sarah had arranged for an Individual Educational Plan (IEP) for Rory without consulting her. Sarah denied that this occurred. She said that an IEP is in fact arranged through the educational system.

[20] Sarah testified that when she told her parents that she was gay they were very supportive of her, whereas Jessica told her that when she advised her parents that she was gay, she was kicked out of the house, disowned and her belongings were put on the street. She said that Jessica was afraid to introduce her to her mother as Jessica’s mother did not welcome previous girlfriends. In fact, her mother had tried to run one girlfriend off the road.

[21] Sarah said that they did not see Jessica’s mother often although they did babysit her dog occasionally. She said that Jessica did not want her speaking with her mother. She said that Jessica and she had agreed that Rory would not be left alone with Jessica’s mother, but after they separated, Jessica left Rory with her.

[22] Sarah referred to a series of texts dated June 22 about Jessica’s mother. Jessica had agreed that her mother would not smoke around Rory, and yet Sarah has found cigarette butts in Rory’s travel bag. As well, once when Rory was taken directly to the pediatrician by Jessica, Sarah could smell smoke in his hair. Further she has seen some ashes in Rory’s car seat and cupholder. This was very concerning to Sarah as Rory has had respiratory issues.

[23] Sarah stated that she met Jessica’s father around the same time as when she met her mother. Jessica had told her that her father had been addicted to alcohol and drugs, and that she had a better relationship with her mother. When she met him, she found him hard to understand as he slurred his words and he was disheveled. It appeared to Sarah that he was still using drugs or alcohol. When Jessica and she were living together they infrequently saw Jessica’s father. She was somewhat afraid of him as he had a cane that extended into a long pick-like weapon and also kept a gun in the car. Jessica’s mother and father have been separated for many years.

[24] Jessica has one sister Danielle who is married and has two children. Sarah has concerns about their parenting. Often, they would be outside in the garage smoking while the children were left alone in the house, even when one child was a baby.

[25] Jessica has a brother Eric who has been in and out of jobs. When Jessica and she were together they seldom saw him.

[26] Jessica’s grandmother is Rose Lamb. Sarah thought that she was a sweet lady, but while they were together, they only saw her six times. She lives with Jessica’s father.

[27] Sarah denied that she discouraged Jessica from being connected with her family. In fact, Jessica’s family had an annual camping trip to Algonquin Park that Sarah encouraged Jessica to participate in, but Jessica did not appear to want to.

[28] They were married in a civil ceremony in New York State with about 100 people present, including both families. However, this was not a legal ceremony, so they had a ceremony performed in Canada where they were legally married. The only people witnessing the ceremony were Sarah’s mother and two friends.

[29] Prior to the wedding they agreed that they would live in Canada. A house was bought in Canada prior to the wedding and title was taken in Sarah and her father’s name. She said that it was important to her that they live in Canada as she did not want to raise children in United States. She said that Jessica was 100% on board with this. They lived in that home after marriage.

[30] They agreed that Jessica would carry a child and she was artificially inseminated by an anonymous donor. Because Jessica did not qualify for medical benefits in Ontario, but she did have health benefits through her work at the casino in United States, Rory was born in the United States. Once he was discharged from the hospital, they brought him into Canada and lived in Canada until separation.

[31] Jessica took three months off after Rory was born and then Sarah took approximately five months off to care for Rory.

[32] Once they moved to Canada, Jessica then took steps to become a permanent resident in Canada. Her application was finalized, and an appointment was set for her to complete the process. However, she did not attend that appointment and did not pursue obtaining her permanent resident card. Sarah said that she made inquiries and determined that she could continue to sponsor Jessica, even though they were separated. Sarah’s mother paid $2,080 of the application fee on the understanding that the couple would repay it once they could afford to. She has never been repaid.

[33] After Jessica moved to Canada, she continued to work a couple of days a week at the casino in the United States. She was a waitress and worked mainly evenings. Sarah believes that she still works there.

[34] Sarah said that while Rory was being breastfed, Jessica was responsible to take care of him during the day and that normally she took care of him through the evening. She said that Rory was a very poor sleeper and was up every hour.

[35] When a babysitter was required, Sarah’s mother would babysit Rory. Jessica’s family was never involved, with the exception of Jessica’s father who babysat one time. When they returned home, they found Rory crying in the crib and Jessica’s father watching TV.

[36] While they were together, they seldom visited with Jessica’s family.

[37] Sarah said that gradually she noticed that Jessica was telling her that she was not making as much money as usual at the casino and asked for money. She became suspicious as to whether Jessica was really working, and therefore checked Jessica’s work schedule on her computer and found that she was not working many of the nights that she said she was working.

[38] One night she called Jessica’s work and determined that she was not working even though she had told Sarah that she was working that night. She texted Jessica telling her to come home. Even though the drive from the casino is a short drive, it took Jessica over an hour to get home. At that point Jessica told her that they were over as a couple. She tried to take Jessica’s cell phone away from her as she was paying for it. That resulted in a bit of a tussle. Sarah had previously called her mother to come to the house. At this point Sarah asked her mother to call the police. The police came. No charges were laid but Jessica was asked to leave for the night.

[39] Sarah said that beginning in the summer of 2016 Jessica advised her that she did not want to be married anymore and that she wanted to find herself. The entire summer Jessica went and did what she wanted to do.

[40] She said that as of January 1, 2017 they were no longer physically living together. She said that she and her mother helped Jessica move. In fact, Sarah’s cousin had surplus furniture. Sarah borrowed her father’s truck and delivered some of this furniture to Jessica in the United States.

[41] She denied ever being physically or mentally abusive to Jessica. She said that if she confronted Jessica with proof of something then Jessica would say that she was being mentally abusive.

[42] Sarah said that one day when she got out of the shower, she found a pill on the ground beside where Rory was playing. She also found pills in random locations around the house. She confronted Jessica with this. At first Jessica denied that these were her pills, but eventually she acknowledged that her father had given to her the pills for her anxiety.

[43] By January 1, 2017, Rory began spending 3.5 days with each parent. Sarah has Rory from about 4:45 Friday afternoon until Tuesday around 7 am. This access regime has been in place since Jessica obtained her current residence.

[44] Early on, Sarah became concerned about Rory’s development. Before he was one years old he had startle responses when he was in the car, as well as sleeping issues. Sarah explained that when he was two years old he was not speaking the number of words that he should be.

[45] Dr. Szpejda is his pediatrician. She sees him for milestone checkups, as well as when he is ill. Both parents attend appointments with the doctor. Usually Sarah makes the appointments, but she confirms them with Jessica, as is noted by several text messages.

[46] Dr. Szpejda referred Rory to the Niagara Children’s Centre before he was two years old for an assessment. They felt that he needed some services in the form of physiotherapy and occupational therapy, as well as speech therapy. He was placed on the waiting list and was to be reassessed in five months. The Niagara Children’s Center provided the parents with home exercises. They did a number of exercises with him and saw that he was improving dramatically. Dr. Szpejda saw him six months later and thought that he did not need any services. She was happy with his progress.

[47] Dr. Szpejda noted at tab nine of Exhibit 1 the speech assessment from the Niagara Children’s Centre which occurred on January 10, 2017. She said that both parents were present at that assessment.

[48] In addition to the programs at home, she involved Rory with a private clinic called Advantage Speech Pathology. Sarah paid for this assessment and received a partial reimbursement through her employee benefits. Rory was seen by Advantage a couple of times. By the third or fourth visit they said that he was progressing well, that he should continue with certain home programs, and to have him reassessed if any problems arose.

[49] On May 24, 2017 he received an assessment. Both parents attended and the recommendation was that they implement certain tasks at home. Also, on September 25, 2018 there was a further assessment and he was discharged from the speech program. The report indicates that both parents agreed with this decision.

[50] In addition to concerns about his speech, Sarah had concerns about his coordination and body awareness. Jessica shared these concerns. On May 24, 2017 both parents attended with Rory for an assessment and they were given certain strategies to follow at home to assist him.

[51] Also, on January 22, 2018 he had a developmental pediatric assessment primarily to rule out autism. The assessment and recommendations primarily dealt with motor coordination as well as anxious temperament. Sarah said that now he is not as anxious as he was.

[52] On February 23, 2018 both parents and Rory attended for an occupational assessment. This assessment showed improvement and he was removed from the waitlist.

[53] In addition, Sarah arranged for private occupational therapy through a woman in St. Catharines. Sarah paid for this invoice and obtained a partial reimbursement through her plan. She was given some tasks to perform at home.

[54] Rory also attends a daycare. On April 6, 2018 an employee from the Niagara Region came to help Rory at daycare. In addition, Rory has a personal aide at daycare. Certain recommendations were given on how to help Rory. There were further consultation summary sheets introduced into evidence, as well as coordinator’s report from DSBN team. This team would assist in enrolling him in school. It was determined that he needed assistance in making the transition into kindergarten.

[55] All of these reports, as well as any appointments, were all shared with Jessica. Several text messages were introduced into evidence to corroborate this statement.

[56] Sarah testified that Jessica arranged for Rory to be assessed in the United States without her knowledge. The first assessment was dated May 15, 2018. The second evaluation occurred on May 18, 2018 and was conducted by Time to Grow Services. Sarah said that she was never notified about these meetings and that Jessica attended alone with Rory. This was arranged without Sarah’s knowledge or her participation. Sarah said that she was given these reports months later after a meeting with the OCL representative.

[57] There was a further evaluation in the United States on May 23, 2018. Again, Sarah did not know about this appointment and the report was never shared with her until months later. She said that she tried to get in touch with the evaluator, but her messages were not returned. There was a further meeting June 1, 2018. Again, this was made without Sarah’s knowledge or a participation.

[58] Sarah testified that she was concerned that there were numerous factual errors in the assessments. For example, the June 1, 2018 assessment stated that Rory was not receiving services in Canada, whereas Sarah said that he had been receiving them for almost two years.

[59] There was a preschool report dated June 6, 2018 which indicated Jessica as the only parent of Rory. Sarah was not involved in organizing this appointment nor did she participate in it.

[60] Sarah agreed that there was an appointment on May 9, 2018 with Dr. Ferguson, an American physician. She said that Jessica advised her that in order for Rory to qualify for healthcare in United States he had to have a doctor and at least one visit to that doctor per year.

[61] Sarah testified that Jessica advised her that these assessments had to occur at her home and therefore she could not be present. Sarah was very upset that Jessica told her that all of the assessments had to be at her home. However, after inquiries, she found out that these assessments could occur at a neutral location such as a library. Because Jessica told her that it would occur at her home, and because neither entered the other’s home, this meant that Sarah could not participate in the assessments.

[62] She said that she confronted Jessica and about three months after the date of the reports received them. She had many concerns because the facts represented in those reports were inconsistent with her observations of Rory in Canada. She was very concerned that he might be labeled disabled in the United States because of all of these errors. She said that Jessica interpreted her corrections as attempts to sabotage Rory’s services in United States.

[63] Sarah said that she spoke to the US occupational therapist about four months after she had begun services with Rory. Initially, the therapist did not respond to her attempts to speak. Then, because court was set for November, she thought it best to wait until trial.

[64] She was also concerned that the Canadian assessments were not shared with the United States medical people. She was also concerned that Jessica took Rory to see Dr. Ferguson in January 2019 without her knowledge and requested a referral to an autism specialist.

[65] Sarah said that for every appointment in Canada she consulted with Jessica, advised her of the dates, and that Jessica attended every appointment. The one exception happened when she met alone with Rory’s pediatrician, Dr. Szpejda, in order to get confirmation as to who had attended each doctor’s appointment for Rory.

[66] Sarah describes the extracurricular activities in which she involves Rory. They include a Harmony yoga, music studio sessions, Kitty Sports Academy, as well as a child movement class at Brock University. Rory is also a member of the YMCA and goes swimming regularly. She believes that he is involved in a soccer program and library group in United States. She said that Jessica did not involve Rory in any activities in the US until after the OCL clinician was appointed.

[67] Sarah discussed her engagement with the OCL clinician. She felt that he did not address a number of concerns that she had including the fact that Rory was having nightmares from the videogames that he was playing at Jessica’s home. As well, when Rory returned to her home on Friday, often he would go more than 12 hours without urinating even though he was eating and drinking at her home. She felt it was clear that co-parenting would not work. As well, Rory needs a primary residence once he attends school, as crossing the border would not be practical. The drive between homes without a delay at the international border is about 20 minutes. However, particularly in the summer, at times that drive has taken one hour.

[68] Sarah testified that Rory was involved in a daycare in Fort Erie for about 1 ½ years and that he attended only on Mondays. She said that the integration with other children was very helpful for Rory. His attendance at this daycare ended once Jessica enrolled him in Christ the King Academy without Sarah’s consent. Sarah spoke to the principal of that school in December 2018. She said that it felt a little strange as the school was in the basement of the church.

[69] Sarah testified that she inquired as to what school in Canada would be good for Rory. Her sister has a special needs son who attends Garrison Road Public School in Fort Erie and speaks very highly of it. As well, the person who was Rory’s aide at the daycare in Fort Erie would have been able to see Rory daily to assist him in his transition into school.

[70] Sarah describes the typical day with Rory. When he wakes up, she goes into his room and then Rory will go upstairs and wake up Ms. Thompson. They play and talk, followed by breakfast. The Brock University class is at 11 am. When they are not at Brock, they often do outdoor things such as hiking or collecting leaves. Bedtime is the same time every day. There is a bath, followed by snack. Rory selects books and he goes into his room at about 7 pm. The books are read for 30 to 45 minutes and then he goes to sleep. Now, typically he wakes up once a night to urinate and then sleeps until 6:30 to 7:00 am unless he has a nightmare. Often, he has been having nightmares which he relates to a video game called “Five Nights at Freddy’s”.

[71] Sarah testified that she has communicated with Jessica about this video game, and Jessica’s response is that it is not a problem. She highlighted an email dated April 27, 2018 in which she pointed this problem out, at a time when Rory would have been three years old.

[72] Sarah stated that their main method of communication is via text messages. They did try a software program for a couple of months. They barely have any conversations. Sarah indicated that at a pick up or drop off, Jessica does not want to engage verbally when she attempts to discuss things such as medication, but that later Jessica will text her about that same subject.

[73] Sarah testified that they have had difficulty sorting out the holidays. As she has Rory from Friday afternoon until Tuesday morning, most of the holidays fall on her access days. She said that she has attempted to compromise with Jessica, but has been unsuccessful. She gave the example of the Easter holiday which they could not agree upon. As well, they were unable to agree upon summer holidays.

[74] Sarah also stated that they had disagreements about Rory’s hair. Jessica indicated to her that she did not want the hair cut until he started school. However, Sarah was concerned that the hair was long, getting into his eyes, and in the summer was very hot causing rashes on his back.

[75] Sarah testified that there were numerous texts between the two of them. Her interpretation of several texts was that she was acknowledging that neither she nor Jessica were good for the other, and that the relationship was not a healthy one. She also said that in a number of the emails she was attempting to console Jessica as Jessica had just separated from her then current partner.

[76] Sarah also stated that she was concerned about the fact that Rory was not napping on Fridays at Jessica’s home, and therefore was extremely tired when she picked him up. Sarah indicated that Rory was napping every other day and it was only on Fridays when he was not napping. She also expressed concerns that Rory’s nose was running when she picked him up and questioned Jessica as to whether there might be mold in her apartment. Jessica denied this.

[77] Sarah acknowledged that Jessica has Rory’s best interests in mind.

Garry Stoughton

[78] Mr. Stoughton is Sarah’s father. He is currently off work on sick leave, mainly attributed to arthritis and pain issues. He lives in Fort Erie with his wife, Larraine. They have three daughters April, Amanda, and Sarah. Amanda lives across the street from them. She has two children, Hanna, ten, and Bryson, seven. Bryson is a special needs child and he attends Garrison Road Public School which is three to four kilometres away from Garry’s home.

[79] Mr. Stoughton said that he found Jessica to be very hard to get to know. She did not talk much and whenever Sarah left the room, Jessica would follow her. While they were married, they saw them more frequently since they lived in Canada. He said that Jessica was not outgoing with Rory or anyone else.

[80] He testified that he has only seen Jessica’s mother, but not spoken to her and he met Jessica’s dad three or four times. He believed that he had met Jessica’s sister. However, generally he said that he and his wife did not have any relationship with Jessica’s family.

[81] Mr. Stoughton said that he first met Tamara Thompson, Sarah’s current partner, a couple of years ago. They interact with her on an almost weekly basis. He felt that Sarah and Ms. Thompson were very happy together. As well, Ms. Thompson’s relationship with Rory was “over the top”. He said that he has met her family 15 to 20 times. They like to socialize with them in many different ways.

[82] He testified that when Sarah told him that she was gay it took some time “to settle in” and it did not really settle in until he saw how great her relationship with Ms. Thompson was. It was easy to accept then.

[83] Mr. Stoughton said that he never witnessed or heard about any allegations that Sarah was mentally or physically abusive to Jessica. He denied that he had a temper or was an angry person. He said that he has never gotten so upset that he broke things or hit people.

[84] He testified that Rory is a lovable kid. Currently he speaks very well, except when he is excited, as he speaks quickly then. He confirmed that his wife babysat for Rory on Mondays when Sarah was at work.

Larraine Stoughton

[85] She has been married to Garry Stoughton for 25 years. She is a retired forklift truck operator. She said that Mr. Stoughton is loving, factual and knowledgeable about world affairs. He does not have a short temper.

[86] She testified that their family is very close, and that she talks to her daughters at least weekly.

[87] Mrs. Stoughton testified that when Sarah advised her that she was gay, she was fine with it and told her that everything was okay. They were in the car at the time in the driveway. They got out and went into the house and told Sarah’s father. Their relationship did not change with Sarah after this.

[88] Her first impression of Jessica was a pretty, young woman with lots of anxiety. For example, she would never look you in the face when she was speaking. She fidgeted and looked down to the ground. She appeared to be unsure of herself. Mrs. Stoughton said that she attempted to communicate with her, but it was difficult as she seemed intimidated. She said that she would try to keep the conversation going by asking questions. As well, when she knew that Jessica was coming to visit, she made coffee because she knew that Jessica liked to drink coffee. It was important to her to get to know Jessica because she wanted to be part of Jessica and Sarah’s life. She said that Jessica followed Sarah around like a puppet and it was difficult to have conversations with her on a one-on-one basis.

[89] When Sarah and Jessica moved to Canada, she helped them move. Because they were short of cash, she loaned them the money for Jessica’s permanent residency application, and she has never been repaid.

[90] When the couple were living in Niagara Falls, Ontario, she would visit at least once a week. Once Rory was born, she was there every day for the first few months helping out. Gradually that changed to a couple of times a week.

[91] After they separated Mrs. Stoughton attempted to stay on good terms with Jessica for Rory’s sake. She said that she was always polite whenever there was an exchange of Rory. As well, when Jessica moved to the United States, Mrs. Stoughton said that she offered her furniture, blankets, sheets, towels - generally whatever would help her set up her home. She said that she did this because she wanted Rory happy and she thought that if Jessica was happy this would help.

[92] Mrs. Stoughton testified that she met Jessica’s mother five to seven times. She found her to be an anxious woman who talked a lot. She told people how things should be or should not be. She said that Jessica’s mother was nice to her and easy to talk to, but she did not seem to be happy.

[93] She testified that she met Jessica’s father a few times. She thought he was a different character. He was polite to her and liked to tell stories about his past. She said that she seldom met Jessica’s sister or brother.

[94] Mrs. Stoughton stated that she met Sarah’s new partner, Tamara Thompson, a couple of years ago at Christmas. Now she speaks to Ms. Thompson often and sees them every weekend. She said that Ms. Thompson seems like another daughter to her. She feels that Ms. Thompson is a very nice lady, beautiful on the inside and the outside. She interacts very well with Rory. Also, Mrs. Stoughton said that they interact often with Ms. Thompson’s parents who are very nice people, down to earth, easy to get to know, and a very nice family.

[95] Mrs. Stoughton testified that she feels much more comfortable now dropping in at Sarah and Ms. Thompson’s home. When Sarah lived with Jessica, she said that she had to call to obtain permission to visit and sometimes Jessica did not permit her.

[96] She was concerned about the anxiety that Jessica had. One day she found two pills on the floor at the front entrance at a time when Rory was crawling around the house. She picked them up and confronted Jessica with it. Jessica took the pills and ran into the kitchen. As well, there were times when Jessica would go for a smoke outside and leave the baby alone in the house. She said that she has observed Jessica smoking both outside and as well in the car. She acknowledged that Jessica stopped smoking while she was pregnant, but she did smoke while she was nursing.

[97] She testified that she never spoke about or witnessed any physical abuse by Sarah against Jessica. She did recall an incident on November 21, 2016 when she called police. Sarah had called her and was very upset because she had determined that Jessica was not at work, even though she had told Sarah that she was going to work. Mrs. Stoughton said that she went to Sarah’s house which was about a 20 minute drive. Jessica did not arrive for about 45 more minutes. Jessica was loud and Sarah wanted her to be quiet because Rory was sleeping. At one point, Sarah attempted to get the cell phone from Jessica. Jessica turned her back on Sarah and went up the stairs with Sarah following her. Sarah reached over Jessica’s back to reach the phone. At that point Jessica started yelling that she was being choked. Mrs. Stoughton said that at that point she called police. After the police spoke to the parties, they suggested that Jessica leave for the night. There were no other incidents of police involvement.

[98] Mrs. Stoughton said that Rory is a lovable, bubbly, smiling guy who likes to give hugs and kisses. She understands him when he speaks. When she visits with him, she plays with him, cooks with him, paints with him, and does many other things. In her view Sarah and Ms. Thompson have worked very hard on activities at the home which have helped him grow mentally and developmentally. For some time, she watched him on Mondays while Sarah worked, but has not done so since he began daycare. She said that he interacts very well with his cousins and quite often.

[99] She testified that Rory has a wonderful relationship with Sarah, who is a very good parent to him. She said that Garrison Road Public School is about a three minute drive from her home. In addition, her daughter, Amanda and her husband Matt, live in the same area. She also has a number of other siblings close by. If Rory was at that school and had an emergency, she would be very happy to be an emergency contact in the event that Sarah was unavailable.

[100] Mrs. Stoughton said that one day after she took a friend to the Buffalo airport, she stopped by Jessica’s home in United States. She thought that Jessica was shocked when she came to the door. However, Rory came to the door and grabbed her hand and brought her into the house. She found a house in total disarray. There were used diapers in his bedroom with toys and coins all over the floor. Jessica asks her to excuse the mess. However, in Mrs. Stoughton’s view this was typical of what transpired when Jessica and Sarah lived together, and Jessica was home with Rory.

Amanda Barnes

[101] Amanda Barnes is Sarah’s sister. She lives in Fort Erie with her husband, Matt, and two children; Hanna, seven and Bryson, ten. Her son is a special needs child and is enrolled in Garrison Road Public School. Ms. Barnes works from home and is within a three minute drive to the school. Her son is diabetic, and she said that he is well cared for at Garrison Road Public School. She said that she and her husband would be available as emergency contact people.

[102] Ms. Barnes said that she has a good relationship with her mother and father, and that she has a close relationship with Sarah and Rory. Rory loves to play with her daughter, Hanna.

[103] She said that she tried to get to know Jessica and made the effort, but it was not reciprocated. She said that she regularly spoke with Sarah while she was married to Jessica, but now physically sees her much more.

[104] She has rarely seen Jessica’s family and has no real relationship with them.

[105] Ms. Barnes testified that her mother went out of her way to treat Jessica well and often dropped everything to accommodate her needs. She said that there were days when Jessica would not get out of bed and her mother would babysit with Sarah working.

[106] She said that she has known Ms. Thompson for two years. She is a very easy person to get to know. She is fantastic with Rory and good with Sarah.

[107] She denied ever seeing any physical or mental abuse by Sarah against Jessica.

[108] Ms. Barnes testified that Rory is a lovable kid. He now has no observable developmental delays; other than he gets excited sometimes and has a hard time explaining his thoughts.

Tamara Thompson

[109] Tamara Thompson is 30 years old and has been Sarah’s partner for about two years. She lives in Toronto and works at Mount Sinai as a physio and occupational therapist assistant. She stays with Sarah from Friday evening to Sunday evening or Monday morning. She is looking for full-time work in Niagara so that she can relocate and live full time with Sarah.

[110] She said that her family loves Sarah and that their respective families often socially interact. Her parents often see and play with Rory.

[111] Being a physio and OT assistant she often works with Rory to help him overcome his developmental issues. She says that she has a wonderful relationship with him.

[112] She confirmed that early on she had concerns that Rory was not drinking properly or taking his afternoon nap on Fridays at Jessica’s home because when Sarah picked him up for her parenting time, he was extremely tired and thirsty. Also, Jessica made the pickups difficult by prolonging the “goodbyes” by calling Rory back several times for more kisses, etc. - to the extent that Rory became upset.

[113] Ms. Thompson testified that Rory often wakes up with nightmares about different video games—none of which are shown at Sarah’s home.

Jessica O’Ney

[114] Jessica is 30 years old and lives in Niagara Falls, New York. Her mother is Terri-Lee, 56; her father, Mark, 67; sister, Danielle, 34; and brother, Eric, 26. Danielle has two children and lives within 10 minutes of Jessica’s home. She said that she is very close with her sister, and that they even have the same tattoos. Her mother just lives down the street from her.

[115] She said that her parents separated when they were young, but they continued to live in the same house until the children were older.

[116] When her mother found out that she was gay, she kicked her out of the house. Her dad then helped her with accommodation. She later went to Niagara University and obtained a degree in theatre design tech. Since she was young, she has been a waitress. She began working at the casino in Niagara Falls, New York on July 10, 2010. She is one of the most senior waitresses. She now works overnight on Friday and Saturday. She said that it is a bad day if she does not earn $150 in tips, and on average she earns $200 to $250 for the overnight shift.

[117] Jessica testified that she has a thyroid condition that she did not take care of when she was young. She said that when she was young, she was told she might have diabetes, but she never had the blood work done to confirm that diagnosis. She acknowledged when she was kicked out of the house, she attempted suicide, but has had no problem since. She denied ever using insulin. She did acknowledge asking Sarah to get her insulin that she could give to her mother and brother. She testified that when she moved to Canada, she did not have medical coverage, so she went seven months without medication for her thyroid and that caused mood swings and depression. She gave no real reason why she did not pay for it.

[118] Jessica described how her relationship began with Sarah. She said that they met through a mutual friend. They began dating and then took a trip to California and began residing together by the end of August of 2010 in Jessica’s apartment. She said that when she met Sarah’s parents, Sarah had not yet come out to them, and therefore Jessica was very nervous about saying the wrong thing.

[119] Jessica said that Sarah’s parents were nice, but she did not feel comfortable because she did not want to offend them by letting slip that she was dating her daughter. She said that she was introduced as a girlfriend in December after Sarah came out to her parents. She said that the parents took it fine, but Mr. Stoughton was the least comfortable.

[120] Jessica testified that they often visited Sarah’s parents’ home in the summer because there was a pool there. She said that she did not want to be by herself, so she followed Sarah around. She did that because she wanted Sarah to guide the conversation. She thought Mr. Stoughton had a temper because small things would upset him. For example, he was upset if the lines in the lawn were not cut a certain way.

[121] Jessica said that while they were a couple, they randomly visited her parents. Her mother had a dog, and Jessica said that Sarah despised the dog. They would stop by and visit her dad occasionally. She said that Sarah was polite with her mother, but she did not like her. Jessica said that her dad was awkward with her girlfriends and would treat them like a boyfriend and say things like, “if you hurt my daughter…”

[122] Jessica said that Sarah’s parents and her parents really did not know each other and did not socialize together. She said that she and Sarah would often visit her sister, especially after Kelly was born. By the time of the wedding, Jessica’s sister did not like Sarah as she was concerned about how Sarah was dominating Jessica.

[123] Jessica testified that her sister vapes, her mother smokes, and her dad carries around a cigar. She said that she quit smoking the day that she was inseminated and did not smoke during pregnancy. She said that she did not smoke while nursing, but in cross-examination acknowledged that after she stopped nursing she had some relapses and tried to hide it from Sarah who said that it was disgusting.

[124] Jessica testified that Sarah went to school in the United States for a nursing program because it was shorter than in Canada, and because she would be qualified to work in the US after she obtained her degree. She said that the plan always had been for Sarah to move to the United States and for them to live there. However, Sarah dropped out of the program after a semester and a half. At that point Sarah worked at a call centre in Canada, but lived in the United States with Jessica, who was working at the casino in the US.

[125] Jessica testified when Sarah returned to the US after working in Canada she was often pulled over and there was a possibility that she could be prevented from returning to the US. Eventually, they decided that to live in Canada was their only option. If Sarah wanted to obtain permanent residency in the US, she had to stay in either Canada or the US for six months and could not cross over during that time. She also said that to sponsor Sarah in the US they would require a $10,000 sponsor—and they did not know anyone who could do that.

[126] On the other hand, permanent residency status in Canada did not require a six month stay in one place, and it was cheaper. As well, Sarah had better credit so they might be able to find a house in Canada.

[127] Jessica testified that houses were more expensive in Canada so if they bought one in Canada and then later sold it, they would make a profit and then could buy one in New York.

[128] Jessica said that in July 2014 she was six months pregnant, so they decided to move to Canada, but that their intention was to move back to the US later when it was easier. Once they were settled in Canada, they started the permanent residency application for Jessica. She acknowledged that Mrs. Stoughton paid a large portion of the fee. She said that when the appointment indicating that she was approved came up, she had separated from Sarah and was living in the US. She had started a new life in the US and was not going to live in Canada. She felt that there would be an extensive interview and she would be required to lie about her marital status. She had no house in Canada and planned to stay in the US. She did not know how Sarah could sponsor if they were not together, so she did not show up for the appointment and the application lapsed.

[129] Jessica testified that while they were living together in Canada, she continued to work at the casino in New York. She said that 75% of her income was in cash. She bought groceries and things and put her cash in a bowl in the house which was shared. She said she brought home between $60 to $150 per day.

[130] Jessica said that Rory was born in US because she wanted him to be an American citizen, as well as a Canadian citizen. This was a mutual decision. As soon as he was discharged from the hospital, they returned home to live in Niagara Falls Canada.

[131] Jessica testified that after Rory was born, she stayed with him for a 16 week maternity leave and then with a combination of unpaid time and vacation time she was home just short of four months. She went back to work at the end of March/early April. She said that Sarah took parental leave, beginning in the summer and that Sarah’s mother watched the baby when neither parent was available.

[132] Jessica testified that breast feeding was an issue between herself and Sarah. Sarah accused her that she was doing it too long and for her own comfort. She wanted her to stop. She stopped on May 17. She hid in the sun room so she would not hear Rory cry as this would trigger a milk response in her body. She said that it was the hardest day of her life.

[133] When she went back to work after Rory’s birth, she worked three days a week from 6:00 am to 2:00 pm or even to noon. She said that she also did not work much during the summer, so she was home with Rory during that time as well. She changed her work schedule around June 2016 to overnight on weekends. This is a schedule that she continues to follow.

[134] She denied that their home in Canada was dirty. However, she agreed that after Rory’s birth she might leave some house cleaning for Sarah when she returned from work.

[135] Jessica testified that Sarah had affairs during the marriage. Sarah arranged a therapist for Jessica to see and she continues to see that person. She said that in the summer of 2016 she went on an overnight trip with friends. She told Sarah that she was unhappy, but she did not say she wanted a divorce. In fact, in October 2016 they celebrated an anniversary.

[136] She said that she obtained her own apartment in New York in January 2017. Starting at that time, they began to share parenting time with Rory with 3.5 days each. Jessica picks Rory up on Tuesdays, and Sarah picks him up on Fridays. Without any border delay, the trip utilizing NEXUS is between 15 to 20 minutes. Although in her examination-in-chief she stated that Sarah refused to share holidays with her, such as Christmas or Easter, in cross-examination she acknowledged that Sarah had given her options which were not acceptable to her.

[137] Jessica testified that she has new partner, Liz Roby, who is a sociology professor. They see each other on weekends and once during the week. She said that she is close to Rory and he is comfortable with her.

[138] Jessica said that Rory had speech issues when he was two years of age. Also, he failed to reach a milestone over rolling over. She agreed that she attended all of the Canadian medical appointments together with Sarah. She described her typical day with Rory that including play time, kindergarten class, some screen time, singing songs, and a bedtime routine.

[139] Jessica said that Five Minutes at Freddy’s is not a video game, but it is an app on a phone. She has vetted it and does not allow Rory to play the game. Rather, they use the video characters to make up a story. She tried to keep it away from him because she thought it was for older kids, but it was tough because every 5th kid was dressed up as a character. Therefore, she made up a narrative and he has many toys from the app. She felt she could not stop him from seeing it.

[140] Jessica testified that Rory does not have nightmares at her home.

[141] She said that she teaches a Tinkergarden class for ages 2 to 8 and Rory participates. It is conducted entirely outside, and she teaches parents how to interact with their children. She trained online and via skype to become certified to teach the class. She teaches one class a week with Rory and two classes without him; one on Sunday and one on Monday. She makes her own schedule for these classes. She did not provide any evidence about her income from these programs.

[142] Jessica testified that her mom lives very close to her and they have coffee every day. She remains on a close relationship with her dad and he spoils Rory. Her sister has two children. Kelly is close to Rory’s age and they are inseparable.

[143] Jessica reviewed the various consultations and assessments that Rory had in Canada. She acknowledged that she attended all of the assessments, she but did not attend any connected to the daycare in Canada. Her view of the Canadian situation is that nothing was being done for Rory and that he was only on waiting lists.

[144] Jessica acknowledged that Sarah had told her that Rory had an aide that worked with him at daycare on Mondays, but she said that Sarah went back and forth and said that the aide just played with him. She acknowledged that she did not know what the aide did with Rory, and further she thought that Rory was only going to daycare once or twice a month and not weekly. She recalled a conversation that the aide could help Rory in his transition to school, but she wanted someone to be with him daily and not just for a couple of months. She initially said that Sarah testified that the aide worked for daycare, but subsequently acknowledged that the aide worked for the DSBN.

[145] Jessica acknowledged that the only research that she did about Ontario schools was to inquire into what schools were in the neighbourhood of their former matrimonial home in Niagara Falls. She did not know what services might be available to Rory in Ontario schools. She was unaware that Garrison Road Public School would allow transition from half days to full days.

[146] Jessica testified that Rory is covered for medical issues and therapy by Obamacare through the New York State insurance plan until he is 24 years old. She said that her income has no impact upon that insurance and that there are no co-payments required.

[147] She said that in March she decided to search out what services were available in the US for Rory because she was concerned that he was only on waiting lists in Canada. Also, he had begun to play soccer and he looked like he was developmentally delayed as compared to his peers. She said that in February 2018 when Dr. Szpejda gave a possible diagnosis of developmental disorder, this also caused her to start looking in US for immediate services for Rory.

[148] She denied that she began this search after the OCL was appointed. She agreed that she moved to the US in January 1, 2017, but she did not get Rory assessed until March 2018. She agreed that the OCL was appointed March 27, 2018.

[149] She said that she went to a library pre-school program and met with students from Niagara University. Rory was tested and appeared to be reacting at a lower age. They recommended that she contact a company called Time to Grow (TTG). Rory now gets therapy from TTG, together with services from the Niagara Falls New York school district.

[150] On May 15, 2018 an assessment was proposed for physio and OT. Jessica testified that she spoke to Sarah who gave her the go ahead to do anything that would help Rory. Jessica confirmed that she told Sarah that the assessments would occur at her home. Because neither was entering the other’s home, Sarah could not attend these assessments.

[151] In cross-examination Jessica acknowledged that the document regarding the Committee on Preschool Education meeting, referred to in Exhibit 1, tab 1, stated that it was important to have parental involvement in the meeting. She said that she wished that she could have involved Sarah, but any time she wanted to discuss Rory’s development issues, Sarah would not permit it. Jessica gave the example of appointments with Dr. Szpejda, where she wanted to discuss Rory’s development issues, but Sarah would not permit it. She thought that Sarah would sabotage the meeting.

[152] Jessica enrolled Rory at Christ the King Academy which is a five minute drive away. He attends three days a week from 9:00 to 12:00. Her intention is that he could stay in preschool one more year and then transition into school there. The school is in the basement of a church, but it has grades up to high school.

[153] A number of evaluations by American professionals were introduced into evidence. These assessments were dated mid to the end of May 2018. Jessica said that she shared these reports with Sarah shortly after she received them.

[154] Jessica testified that she made an appointment to see Dr. Ferguson in January 2019. She wanted to talk to the doctor about stimming and autism. She said that Sarah did not want to talk to Dr. Szpjeda about it, and she wanted to rule out autism. She learned about a company called ABC which specializes in therapy for children with these types of needs. Jessica said that she called and asked Dr. Ferguson for a referral to ABC. She did not invite Sarah to that appointment or tell her about the appointment, as she felt that would cause an argument. An assessment appointment with ABC is set for March 22, 2019.

[155] Rory’s first day at school was Sept 11, 2018 and his therapy began the next day. He was given an Individual Education Plan (IEP) immediately. He has speech therapy Tuesday and Thursday for half an hour and OT on Wednesday and Thursday for half an hour. These are all benefits paid by the State. She said that this IEP would remain in place until he was seven years old.

[156] Jessica said that Sarah was listed as an emergency contact, but that Sarah did not go to the school until December. She said that there was full disclosure of the two parents and that Sarah was free to go to the school at any time.

[157] Jessica says that Rory has made “insane” progress which she attributes to the home work that she and Sarah have done at home, as well as the six months of therapy at school.

Mark O’Ney

[158] Mr. O’Ney is Jessica’s father. He lives in Niagara Falls, New York with his 90 year old mother. He works part-time and is divorced from Jessica’s mother, Terri-Lee. He denied any addictions, other than he smokes a cigar a day. He acknowledged a drug issue when he was very young. He owns two long guns that are kept under lock.

[159] He said that his relationship has always been close with Jessica. He lives very close to her now on the same street.

[160] He met Sarah about eight years ago. In the beginning he liked Sarah, although they did not see each other often. He met Sarah’s parents a few times and thought that they were nice people. He saw the couple a few times when they lived in Ontario. He said that he observed that whenever Sarah and Jessica came to parties they only stayed for a short time.

[161] Mr. O’Ney testified that one time Jessica came to his house bawling. He said that she told him that Sarah had physically abused her and choked her. He gave her two pills which were mild sedatives to take if she could not calm herself.

[162] Now that Jessica lives close to him, he sees her as often as he can. He loves to play with and spoil Rory. He believes that he has a great relationship with Rory. His view is that Rory’s attitude to him has changed since Jessica got Rory into therapy.

Danielle Neal

[163] Ms. Neal is Jessica’s sister. She is married with two children. She is a registered nurse and lives about 15 minutes away from Jessica. In the summer months she usually sees Jessica once or twice a week.

[164] When she first met Sarah, she did not see any issue; she was friendly, but they did not see each other a lot. They never got to know each other well, as Sarah was standoffish. She infrequently visited them in Canada because she said that their telephone did not work well since it was an internet phone, and she did not like driving in Canada.

[165] She said that she saw red flags in their relationship because Sarah would talk over Jessica. As well, she had a bad experience on making arrangements for their wedding.

[166] Now she sees Rory weekly and Rory loves playing with her daughter who is one and a half years older than he is.

Maria Morabito

[167] Ms. Morabito is the principal of Christ the King Academy which is a small private school in Niagara Falls, New York that takes students from age three up to Grade 12. The school operates from the basement of a church.

[168] The classes are no larger than 12 students. She has three classes: one for pre-school children; one for grades kindergarten through to Grade 4; and the third class would be for Grades 5 through 12. She said that Rory would be in a class with children whose ages would range from kindergarten age to grade 4.

[169] As this is a private school, there is a tuition payable by the parents for the children who attend the school.

[170] She utilizes two different curricula: Sunlight and Alpha Omega. The teachers follow these curricula.

[171] She said that Rory was enrolled in late August 2018 and that she was advised that he had two mothers. Rory started school the second week of September and attends for three half days a week.

[172] Ms. Morabito’s impression of Rory was that he was very busy and moving around the room a lot. She expressed concerns to Jessica that Rory had some speech deficiencies, as well as stimming actions.

[173] She testified that the school district provides therapists who come to her school and provide therapy for those who have been assessed as in need. Her school does not provide those services directly. Currently, Rory receives both speech and OT therapy twice a week.

[174] She said that soon Rory would receive another assessment to determine whether he required therapy for the next school year.

[175] Ms. Morabito said that Rory has matured and has made a lot of progress since he began school. He still stims (bangs his fists together for muscle stimulation), but he is not bouncing around anymore.

[176] She has observed Rory’s interaction with Jessica and, in her view, Jessica is a very loving mother.

[177] She did not meet Sarah until the Christmas concert, at which time she had the opportunity to have a long conversation with her. She observed that when Rory saw Sarah, he ran up to her and gave her a hug.

[178] Ms. Morabito testified that kindergarten is not mandatory in New York State. At her school kindergarten is full-time only.

The Law

[179] A review of these issues begins with the Divorce Act.

[180] Section 16.8 of the Divorce Act directs that I only take into consideration the best interest of the child by reference to the condition, means, needs and other circumstances of Rory.

[181] Section 24 of the Children’s Law Reform Act subsection 1 also states that custody or access should be decided based upon the best interests of the child.

[182] In Subsection 2 there is a list of factors to consider in assessing the best interest of the child. A review of these factors is helpful in a determination of the child’s best interests.

[183] The legislation states:

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

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

I. Each person, including parent or grandparent, entitled to her claiming custody of or access to the child,

II. Other members of the child’s family who reside with the child, and

III. Persons involved in the child’s care and upbringing.

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

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

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

(e) The plan proposed by each person applying for custody of or access to the child for the childcare 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) Any familial relationship between the child and each person who is a party to the application

[184] Subsection 3 provides that the person’s past conduct shall only be considered if I am satisfied that that conduct is relevant to the person’s ability to act as a parent, or if that person has it anytime committed violence or abuse against his or her spouse, parent of the child, member of the person’s household or a child.

[185] The goal of maximum contact with each parent is a mandatory consideration under the Divorce Act. S.16 (10) Divorce Act;

[186] The sole test to be applied in determination of custody or access to a child where the parents are in a same-sex relationship is the best interest of that child. Buist v. Greaves, [1997] O.J. No. 2646 (Gen. Div.).

[187] Section 8 of the CLRA is also relevant:

8(1) If the birth parent of a child conceived through assisted reproduction had a spouse at the time of the child’s conception, the spouse is, and shall be recognized in law to be, a parent of the child.

(2) if the birth parent of a child conceived through insemination by a sperm donor had a spouse at the time of the child’s conception, spouse is, and shall be recognized in law to be, a parent of the child.

[188] Further, by law both parties have an equal right to custody. Section 20 of CLRA.

[189] As noted by Justice Braid, there is no default position in favour of joint custody in Ontario. There must be a high level of cooperation and communication between the parents if joint custody is to be a viable option. Rapoport v. Rapoport, 2011 ONSC 4456, at para. 47.

[190] I will begin my analysis by a consideration of credibility as this is helpful in the fact-finding function.

Credibility

[191] I heard a significant amount of evidence about the mothers’ relationship; how it began, how it evolved, and how it ended. Although there are allegations of abuse by Sarah against Jessica, I am satisfied that none has been proven. I find their history relevant and useful only to the extent that it assists me in making credibility findings which in turn assists me in making findings of fact.

[192] I found Sarah’s evidence to be straightforward and consistent. On the other hand, Jessica tended to not answer the questions in cross-examination, and she often provided long rambling answers which were difficult to understand.

[193] Also, I have identified certain inconsistencies in Jessica’s evidence which has assisted me in credibility findings.

[194] For example, Jessica testified that the couple always intended to move back to the United States and the move to Canada was only a temporary one. However, Jessica applied for, and was one step away from obtaining, permanent resident status, when she ceased to pursue it. It did not make sense to me that one would go through that expensive process, if the move to Canada was always intended to be a temporary one.

[195] I accept Sarah’s evidence that she made enquires and notwithstanding the fact that they had separated, she could continue to sponsor Jessica for her permanent resident status. I do, however, understand why, after her marriage failed, that Jessica moved back to the United States where her family lived, and where she worked.

[196] Also, Jessica stated that houses were more expensive in Canada, so that if they bought one in Canada, they could later sell it and use the profit to buy a house in the United States. Frankly, that did not make sense.

[197] Jessica also testified that she was not comfortable around Sarah’s parents because they did not know that Sarah was gay and that they were partners. This answer was in response to questions about her overall relationship with Sarah’s parents. By the time they were living together as a married couple in Canada, clearly everyone knew about the nature of their relationship, so this was not a reason why Jessica did not engage with Sarah’s parents or felt uncomfortable around them. This was an example of an answer by Jessica that simply did not respond to the question asked.

[198] Jessica also testified that she stopped smoking after she became pregnant, and yet in cross-examination admitted that she did occasionally smoke after Rory was born. This was consistent with Jessica’s evidence in-chief and with both Sarah and her mother’s evidence that they observed her smoking after Rory was born, and that they observed ashes in the car that Jessica drove.

[199] Ms. Morabito testified about the school of which she is the principal. I found her testimony to be direct and honest. As principal of the school, she is also well informed regarding the educational system and support system in New York State. She did not appear to be biased in favour of either parent. She stated that Rory would be assessed annually to determine whether he required additional services. This directly contradicted Jessica’s evidence that he would have an IEP in place until he was seven years old, and he would automatically receive speech and OT services until then. I prefer the unbiased evidence of Ms. Morabito and find that Jessica’s erroneous evidence on this point was intended to strengthen her case.

[200] Jessica also testified that she was unable to raise concerns that she had when Rory was seen by Dr. Szpejda, his pediatrician, because Sarah would not allow it. I find that hard to believe. When Rory was taken to Dr. Szpejda, the doctor had an obligation as a doctor to deal with any issues that she saw or that a parent raised. I find it difficult to believe that Dr. Szpejda would not have listened to a complaint by either parent, or if she observed an issue, address it.

[201] For those reasons, and others that I will discuss below, I prefer the evidence of Sarah where it conflicts with Jessica.

[202] I turn now to the factors that I must consider in determining what is in Rory’s best interest.

Love, affection and emotional ties

[203] It is clear to me that Rory receives love and affection from both mothers and that he reciprocates that love and affection.

Relationship with each parent’s extended family

[204] I also find that he has emotional ties to the extended families of both mothers. From the evidence, I find that there are more members of Sarah’s extended family that have a close relationship with Rory than of Jessica’s family. Unfortunately, Jessica’s mother did not testify, and therefore I have no evidence from her to support Jessica’s evidence on this point, and I draw an adverse inference from this.

[205] I find that particularly in the early years of Rory’s life, Sarah’s mother had the closest relationship of any of the grandparents, as she would often babysit and assist with Rory’s care.

Relationship with parent’s new partner

[206] I also find that Rory has developed a very close relationship with Sarah’s current partner, Ms. Thompson. She has been involved in his life for approximately two years which is half of his life. I accept Ms. Thompson’s evidence, corroborated by Sarah and her parents, that Ms. Thompson’s relationship with Rory is very close indeed. Indeed, the OCL clinical investigator’s observations also confirmed this.

[207] Jessica testified that she has a relationship with Liz Roby, and that she sees her primarily on weekends, and occasionally during the week. Ms. Roby also did not testify. If she is primarily with Jessica on weekends, and since January 2017, Rory has been with Sarah on weekends, there have not been many opportunities for Rory to develop a strong relationship with her. Based upon the evidence I cannot find that she has a close relationship with Rory.

The child’s views and preferences

[208] Rory is four years old. The OCL appointed a Clinical Investigator who made a report that was filed as part of the Trial Record. As well, both parties filed a Statement of Dispute, as neither party agreed with the recommendations.

[209] Because of Rory’s age the investigator’s work primarily involved interviewing the parents and observing their interaction with Rory, as well as Ms. Thompson’s interaction with Rory.

[210] His recommendations included joint custody, a 50/50 parenting time sharing, that Rory attend school in Ontario, and that the parenting time gradually shift to accommodate the transition to school. Further, he should receive his medical treatment in the Niagara Region of Ontario.

[211] Sarah took exception to the recommendation of joint custody. Jessica objected to joint custody and all the recommendations that Rory’s care and education occur in Ontario. Both mothers felt the investigator had failed to take into consideration relevant factors.

[212] The report does confirm my impression that Rory has a wonderful relationship with both of his parents, as well as with Ms. Thompson. The investigator did not observe Rory interact with Ms. Roby, so his report is of no assistance to me in that respect.

[213] I do not draw any further inferences from that report.

Length of time in a stable home environment

[214] The length of time in a stable home environment is not particularly determinative in this case. Since January 2017 Rory has spent 3.5 days with each mother. Because Rory must start school in September, everyone agrees that the current regime cannot continue.

Ability of the parent to understand and meet the needs of the child

[215] When Rory was turning two years old, both mothers agreed that Rory appeared to be somewhat developmentally delayed. He was not speaking the number of words expected of a two year old and he had missed some physical milestones.

[216] I find that both mothers acted appropriately at that point. He was assessed by various professionals in Canada. It is clear to me that, although Sarah took the initiative and arranged all of these appointments, she did so with prior notice to Jessica and in such a way that Jessica could participate.

[217] Rory has a pediatrician in Ontario, Dr. Szpejda. Sarah has taken him, together with Jessica, to all his milestone appointments. Just prior to Rory attaining two years of age, Dr. Szpejda referred him to the Niagara Children’s Centre for an assessment because there was a concern regarding his development. A speech assessment was undertaken on January 10, 2017. Home therapy was recommended for Rory, and further assessment was recommended to determine whether he required additional services. Both parents consented to this treatment.

[218] From the evidence, I am satisfied that both mothers undertook those exercises with Rory in their respective homes. Six months later, Dr. Szpejda saw Rory and felt that he had made such progress that he no longer needed any services.

[219] A further assessment was undertaken May 24, 2017. He remained on the wait list and further at home exercises were recommended for him. On September 5, 2017 he was discharged from the Speech Services, with Rory to have a home program. Both parents consented to this approach.

[220] Also, on January 22, 2017 both parents attended for a developmental pediatric assessment at the Niagara Children’s Centre. The doctor assessed that he had some difficulty with his motor coordination and had an anxious temperament. He agreed that Rory was gradually improving and that a support gradual approach by the parents was best.

[221] On February 23, 2018 Rory was assessed at the Niagara Children’s Centre for Occupational Therapy. The assessment showed progress and he was removed from the wait list.

[222] I contrast these actions in Ontario with what transpired in New York.

[223] Jessica testified that around March 2018 she became concerned about Rory’s lack of development, so she enquired about potential services for him in New York. She said that she spoke to Sarah about this and Sarah told her to go ahead and do whatever it took to get Rory help. Sarah denies this.

[224] Jessica gave two further reasons why Sarah was not involved in this process. She said that the assessments had to occur at her home, and because she did not enter Sarah’s home and Sarah did not enter her home, Sarah could not be present at her home while these assessments were undertaken. Second, she testified that she was afraid that Sarah would sabotage the assessments by either contradicting her about Rory’s progress and by telling them that he was already receiving services in Ontario.

[225] Jessica also testified that she told the American assessors that Rory was not receiving any treatment in Ontario because, otherwise, he would not qualify for services in New York.

[226] First, a great amount of time was spent during this trial referring to text messages between the parties. Both parents testified that this was their method of communication as they could not talk to each other. I do not accept that there was a verbal discussion whereby Sarah gave the go ahead to Jessica to proceed on her own.

[227] Second, I reject that Sarah would have consented to such an action. In Canada, through all of the various medical appointments, Sarah was scrupulous in ensuring that Rory’s medical needs were taken care of. She took the initiative to make all medical appointments. Further, she clearly felt it important that both mothers participate in this process as she always ensured Jessica’s availability for appointments so that she could participate. It is simply not believable that Sarah, who had taken the initiative throughout for Rory’s medical needs, would simply abandon that issue to Jessica.

[228] Third, I do not accept Jessica’s evidence that these assessments had to occur in her home. She provided no corroboration and I have already found reason to question her credibility. Further, Sarah testified that she researched the issue and determined that these assessments could occur at a neutral location. It is beyond belief that there are not many situations in New York where children with separated parents require assessment and where neutral locations are not available.

[229] Fourth, even Jessica has acknowledged that Sarah has Rory’s best interests at heart. Sarah’s diligence in arranging medical appointments, in paying for additional private therapy, and in working on home exercises with Rory, all demonstrate this. I am satisfied that Sarah would not have sabotaged the assessments. She would have provided her perspective from her experience with Rory and the status of medical treatment for him in Ontario. That would be a totally proper thing to do.

[230] Fifth, I have concerns as to whether Jessica shaded the truth regarding what she told the American assessors about the treatment and assessment that Rory had been receiving in Ontario.

[231] Finally, I find that it is highly suspicious that from January 2017 when the 50/50 parenting time commenced, until March 2018, Jessica took no actions to engage any medical services for Rory in New York, and that it was only after the OCL was appointed in March 2018 that she began those steps. I do not accept her evidence that was a coincidence.

[232] I find that Sarah is clearly able to meet, and has been meeting, Rory’s needs, both emotional and physical. Very importantly she has been doing this in a way that is very inclusive of Jessica, ensuring that Jessica is a part of that journey.

[233] I find that after a gap of over one year, Jessica has taken steps in New York to provide for Rory’s needs, but has done it in a way that totally excludes Sarah from that process.

The plan proposed by each person applying for custody of or access to the child for the childcare and upbringing

[234] Sarah’s plan for Rory has multiple aspects to it.

[235] First, she wants him to have his primary residence with her and to attend school in Ontario. She has researched schools and determined that Garrison Road Public School in Fort Erie would be best for Rory.

[236] There are several reasons why Garrison would be a good match for Rory. First, Sarah is satisfied that it can provide any special services that he might need. The DSBN provides individuals who will assist Rory in his transition into school. The original plan had been for him to start school September 2018. At that point, the aide who he had at daycare would transition with him. It is unclear to me at this point whether a new arrangement will need to be put in place because of the delay, but in any event, there would be the required assistance for him at Garrison.

[237] She understands that Rory can phase into full time attendance from part time attendance. Being a public school, attendance is free.

[238] Sarah also has the experience of her nephew attending Garrison. He is diabetic and requires special assistance. Her sister has found them to be most accommodating. Further, Rory’s two cousins will be at that school.

[239] Garrison Road Pubic School is close to Sarah’s work. This will assist in pick up and drop off, and for her to attend any emergency that might arise. Further, Sarah’s parents, who are retired, live very close to the school, and are prepared to be emergency contacts. As well, Sarah’s sister lives close to the school. She works at home and also is prepared to be an emergency contact.

[240] Second, Rory has a pediatrician in Niagara who has cared for him since birth and who will continue to follow him. She also has connections to the Niagara Children’s Centre and can access those services if they are required. The Centre has all of Rory’s past assessments.

[241] In addition to OHIP coverage, Sarah has extended benefits through her work to assist in paying for additional services if Rory should need them.

[242] It is Ms. Thompson’s intention to move permanently to Niagara to live with Sarah, providing a stable home influence.

[243] Both of Sarah’s parents have testified that they are retired and ready to be of assistance if required. Sarah’s sister lives very close to Garrison Road Public School. She works from home and has the flexibility to be of assistance to Rory.

[244] Jessica’s plan is for Rory to continue to attend Christ the King Academy School. Kindergarten at that school is full days. As it is a private school, there will be a cost to this attendance.

[245] Regardless of what class Rory is in at Christ the King, he will be with children of different ages and possibly may have no children his age. The class size is limited to 12 children, but his class could have children from kindergarten through to Grade 4.

[246] This plan is of concern to me as most of the assessments have indicated that it would be helpful to Rory to slowly transition him into school, and that he needs to associate with more children of his own age.

[247] Jessica proposes that he continue to receive therapy while he attends the school.

[248] Jessica advises that either under federal or state legislation Rory has full medical coverage until he attains 24 years of age. She also stated that his current IEP would remain in place until he turned 7 years of age and that the services would remain in place. I have found that to be incorrect and have accepted Ms. Morabito’s evidence that Rory must be reassessed this year to determine whether he qualifies for services.

[249] Jessica has a new partner, but she is only there on weekends and occasionally during the week. Her father lives close by and has offered to help. Her sister is within driving range. She works as a nurse, but she has offered to assist in Rory’s care. Although Jessica testified that her mother would assist her, her mother did not testify, and I take an adverse inference from this fact.

[250] Although both proposed plans have advantages for Rory, I find that the plan proposed by Sarah is overall stronger and in Rory’s best interests.

Any familial relationship between the child and each person who is a party to the application

[251] Jessica is the biological mother. The father was an anonymous sperm donor. When Rory was born, Jessica and Sarah were married.

[252] Our law is clear that both parents have an equal right to custody. The determining issue is what is in the best interests of the child.

Past Conduct

[253] Jessica has alleged that Sarah was verbally and physically abusive during their relationship.

[254] The only allegation of a physical confrontation arose the time that the police were called. I prefer the evidence of Sarah and Mrs. Stoughton that this was a one-time event in which Sarah attempted to calm Jessica and to retrieve her phone, without physical violence. The police, who were called, simply told the parties to separate for the evening.

[255] I am also satisfied that there was no verbal abuse during the relationship. Both parties gave evidence of the unhealthy nature of the relationship. However, there is insufficient evidence for me to conclude that Sarah was abusive to Jessica.

Joint Custody

[256] Both parents acknowledge that they cannot co-parent. In the past they have not been able to agree upon the sharing of holidays. They do not speak to each other. They send texts back and forth without little success on forging any agreement.

[257] There is no evidence that the parties can communicate effectively.

[258] I find that joint custody is not appropriate for this situation.

[259] I therefore find that the issue of sole custody, primary residence and location of his education are inextricably connected.

Maximum Contact

[260] Our courts have stated that the principle of maximum contact with each parent is important. In this case, I find that it is relevant for two different purposes.

[261] It is important both as to custody, as well as what type of parenting access will be ordered for the parent who does not have custody and the primary residence of Rory.

[262] Because of Jessica’s actions in the past, I have grave concerns that if she were granted sole custody and primary residence of Rory, she would effectively cut Sarah out of Rory’s life. Because of the inclusive way that Sarah has acted in the past, I have no such concerns if she were granted sole custody and primary residence of Rory.

[263] I will return to the issue of maximum contact when crafting the parenting time for the non-custodial parent.

Conclusion on Custody and Primary Residence

[264] As I have already stated, Rory has two loving mothers. My order as to custody is not a finding that the non-custodial mother is a bad mother. Rather, I must assess all of the factors and conclude what is in Rory’s best interests.

[265] As I have also found, it is clear that joint custody is not an option. I must determine sole custody, which in these circumstances, is inextricably connected to primary residence and location of his education.

[266] After weighing the above factors, I find that it is in Rory’s best interest that sole custody be awarded to Sarah and that Rory’s primary residence be with her. Rory will attend school in September in the Niagara Region of Ontario.

Non-custodial Parenting Time

[267] The concept of maximum contact is relevant to this analysis. Currently Rory is with each mother for 3.5 days per week. Once he is in school for 5 full days or half days a week, this type of regime is impractical in light of the necessity to cross the international border.

[268] Sarah had submitted that should I grant her primary residence of Rory that Jessica could have parenting time every other weekend from Friday until Monday at 7:00 am, together with a weeknight access from after school until 7:00 pm.

[269] Jessica had proposed that if she had primary residence that Sarah’s parenting time would be every weekend, except for one weekend a month, from Friday after school until Monday 8:00 am and it would be extended should there be a PD day or statutory holiday on that weekend.

[270] A factor to consider is that currently Jessica works overnight on Friday and Saturday night. I appreciate that a change to access for Jessica to weekends will require that she make changes to her work life. However, first, given that I have decided Rory will attend school in Ontario, there is no alternative to the significant portion of her parenting time being on weekends. Second, Jessica testified that she is a very senior waitress at the casino. She should have the ability over time to rearrange her work schedule. She did that twice while the parties were married.

[271] I am satisfied that Sarah’s proposal is insufficient when one considers the maximum contact principle, and the fact that Rory will change from seeing Jessica for 3.5 days per week down to whatever the new parenting time is.

[272] I find that Jessica’s parenting time will be two consecutive weekends from Friday after school until Monday at 7:00 am. In the event that there is a PD day or statutory holiday on the Friday of her weekend access, her parenting time will begin after school on Thursday. If the PD day or statutory holiday occurs on the Monday of her access weekend, then her parenting time will end on Tuesday 7:00 am.

[273] Rory will remain with Sarah on the third weekend, following which Jessica shall have two consecutive weekend parenting times as set out above. This three-week cycle shall continue throughout the year.

[274] In addition, Jessica shall be entitled to an additional parenting time with Rory each week from after school until 7:00 am the next day. This parenting time shall be on Wednesday of each week, unless the parties agree otherwise in writing.

[275] Each party shall be responsible to either pick up or drop off Rory for these parenting accesses. If the parties cannot agree in writing on this issue within 30 days from my order, I will receive written submissions and make that determination.

[276] This parenting access schedule shall be subject to the holiday schedule that the parties agreed to prior to the commencement of this trial. That holiday schedule shall supersede my parenting order.

Transition

[277] I received submissions from the parties on the effective date of my order regarding primary residence and parenting time. The parties agreed that there was no urgency to the change in parenting time as Rory will not be commencing school until September 2019.

[278] However, it is also important that Rory ceased to be pulled in two directions regarding his health care and other important life decisions.

[279] Therefore, I order, effective immediately:

a) Sarah shall have sole custody of Rory Zen Stoughton DOB (November 19, 2014). b) Rory shall receive his health care in Ontario, unless Sarah determines otherwise. c) Jessica shall be entitled to obtain information relating to Rory’s health, education and well-being directly from the service providers involved in his care, in accordance with Section 20(5) of the Children’s Law Reform Act. d) Sarah shall keep Jessica informed in writing of the names and contact information of any professionals involved with their son. e) Sarah shall keep Jessica informed in advance about all of Rory’s medical appointments, including any assessment appointments. Jessica shall have the right to attend any such appointment, unless an assessment is conducted during school, in Sarah’s absence, as part of Rory’s ongoing therapy. f) Jessica’s rights shall include the right to obtain detailed information, such as copies of Rory’s school report cards and to attend parent/teacher interviews or extra-curricular activities.

[280] I further order that Rory shall attend school in the Niagara Region of Ontario commencing September 2019.

[281] The current parent time sharing shall remain in effect until August 20, 2019. At that time the new order parenting time sharing shall begin in order to allow Rory some time prior to the commencement of school to adjust to the change in the schedule.

[282] I order effective August 20, 2019 that primary residence of Rory will be with Sarah.

[283] Further, should, as part of the preparation for Rory commencing school, Sarah be required to involve Rory in any meeting, assessment or any other event that requires his attendance, and that event arises at a time that would otherwise be a parenting time for Jessica, Sarah shall give Jessica as much advanced notice, and then notwithstanding that Rory would otherwise be with Jessica, he shall participate in such event. Jessica is permitted to be involved in any such meetings.

[284] As primary residence of Rory will be with Sarah as of August 20, 2019, Jessica shall pay child support for Rory commencing September 1, 2019 based upon her 2018 gross income (converted to Canadian funds) calculated pursuant to the Ontario Child Support Guidelines. If the parties cannot agree upon that figure within 30 days, I will receive written submissions on that issue.

[285] A Support Deduction Order shall issue.

Summary

[286] I order that:

a) Effective immediately: i. Sarah shall have sole custody of Rory Zen Stoughton (DOB November 19, 2014); ii. Rory shall receive his health care in Ontario, unless Sarah determines otherwise; iii. Jessica shall be entitled to obtain information relating to Rory’s health, education and well-being directly from the service providers involved in his care, in accordance with Section 20(5) of the Children’s Law Reform Act. iv. Sarah shall keep Jessica informed in writing of the names and contact information of any professionals involved with their son. v. Sarah shall keep Jessica informed in advance about all of Rory’s medical appointments, including any assessment appointments. Jessica shall have the right to attend any such appointment, unless an assessment is conducted during school, in the Sarah’s absence, as part of Rory’s ongoing therapy. vi. Jessica’s rights shall include the right to obtain detailed information such as copies of Rory’s school report cards and to attend parent/teacher interviews or extra-curricular activities. vii. Should, as part of the preparation for Rory commencing school, Sarah be required to involve Rory in any meeting, assessment or any other event that requires his attendance, and that event arising at a time that would otherwise be a parenting time for Jessica, Sarah shall give Jessica as much advanced notice, and then notwithstanding that Rory would otherwise be with Jessica, he shall participate in such event. Jessica is permitted to be involved in any such meetings.

b) Effective August 20, 2019: i. Rory’s primary residence will be with Sarah. ii. Jessica’s parenting time will be two consecutive weekends from Friday after school until Monday at 7:00 am. In the event that there is a PD day or statutory holiday on the Friday of her weekend access, her parenting time will begin after school on Thursday. If the PD day or statutory holiday occurs on the Monday of her access weekend, then her parenting time will end on Tuesday 7:00 am. iii. Rory will remain with Sarah on the third weekend, following which Jessica shall have two consecutive weekend parenting time as set out above. This three-week cycle shall continue throughout the year. iv. Jessica shall be entitled to an additional parenting time with Rory each week from after school until 7 am the next day. This parenting time shall commence on Wednesday of each week, unless the parties agree otherwise in writing. v. Each party shall be responsible to share equally in either pick up or drop off Rory for these parenting accesses. If the parties cannot agree in writing on this issue within 30 days from my order, I will receive written submissions and make that determination. vi. The holiday schedule agreed to by the parties shall supersede this parenting schedule.

c) Effective September 1, 2019: i. Jessica shall pay child support for Rory commencing September 1, 2019 based upon her gross 2018 income (converted to Canadian funds) calculated pursuant to the Ontario Child Support Guidelines. If the parties cannot agree upon that figure within 30 days, I will receive written submissions on that issue, as well as the interaction of the exchange rate on the amount. ii. A Support Deduction Order shall issue.

[287] If the parties cannot agree upon costs, the applicant’s submissions shall be due within 14 days; the respondent’s submissions within 10 days thereafter; and a reply, if any, within 5 days. The submissions shall be in writing and not exceed three pages.

D.L. Edwards J. Released: March 7, 2019