Court File and Parties

COURT FILE NO.: FC-14-2388 DATE: 2019/05/10 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: ROBERT DEGROOT Applicant – and – NINA IOUGUINA Respondent

Counsel: Giulianna Ferri, for the Applicant Stacy Coulterman, for the Respondent

HEARD: April 15, 16, 17, 18, 23, 2019

Reasons for Decision

J. MACKINNON J.

[1] The issue before the court is whether Ms. Iouguina should be permitted to relocate to Australia for a three year period with the parties’ son, Ilya, born July 20, 2010. Ms. Iouguina is the sole custodial parent with decision-making authority and primary residence of Ilya pursuant to the parties Separation Agreement dated February 20, 2014. Mr. DeGroot is Ilya’s father. He has enjoyed regular access with Ilya under the Separation Agreement which was enlarged by a temporary order made on June 22, 2015. Since then his parenting time with Ilya is each Wednesday after school until Thursday morning and alternating Fridays after school until Monday morning.

[2] Mr. DeGroot opposes the proposed move.

Background

[3] The parties were married on October 30, 2009, separated in September of 2013 and divorced in September, 2016. Ilya is the only child of their marriage. Ms. Iouguina has a child from her previous relationship, Sofia, age twelve. Mr. DeGroot also has a child from his previous relationship, Olivia age 27 years.

[4] Ms. Iouguina is re-married to Shawn O’Donnell. They have two children together, Conan, age 4, and Fionn, going on 3 years. Dr. O’Donnell has two children from his prior marriage, Sam and Ava, now 20 and 17 years of age.

[5] Since September of 2014, Ilya’s primary residence has included his mother, Dr. O’Donnell, Sofia, with his two younger siblings arriving in 2015 and 2016. They have a very close family unit. The children are all well attached to one another.

[6] Ilya also enjoys his time with his father. They share an important attachment too. Olivia resides in Montreal. Mr. DeGroot and Ilya visit her there usually twice a year. Ilya knows Oliva is his sister and also enjoys her company.

[7] In April 2018 Ms. Iouguina informed Mr. DeGroot her family wanted to move to Australia for three years so that Dr. O’Donnell could accept a three year contract in Adelaide. She sought his consent to take Ilya with her. Mr. DeGroot did not agree. Sofia’s father did provide his consent. Dr. O’Donnell delayed his start date for one year to facilitate this litigation. He has accepted the contract and starts work on July 1, 2019.

[8] Dr. O’Donnell, Sofia and Conan will be moving. Ms. Iouguina decided that if she cannot go with Ilya, she will stay in Ottawa with him. Whether Fionn will stay or go is as yet undecided.

[9] Mr. DeGroot opposes the move based on the effect it would have on his relationship with Ilya. He believes the move would be too disruptive for Ilya who has special needs. He is skeptical of the stated intention to return after three years. If Ilya does not come back as promised, Mr. DeGroot lacks the financial resources to pursue legal remedies to secure his return.

[10] In response to Mr. DeGroot’s opposition, Ms. Iouguina amended her answer to seek permission for the proposed relocation. If permitted to go she proposes to return with Ilya three times each year for two week visits with his father. She also proposes twice weekly video calls between them, and is open to more contact should Mr. DeGroot come to Australia. She commits to returning after three years and agrees to take legal steps to provide assurances that Ilya will be returned.

[11] A trial of the relocation issue was directed. Other issues in the case remain outstanding.

Applicable Law

[12] The Divorce Act, R.S.C. 1985, c.3 (2nd Supp), as am, is the governing legislation. The key provisions in section 16 are set out here:

Order for custody

16 (1) A court of competent jurisdiction may, on application by either or both spouses or by any other person, make an order respecting the custody of or the access to, or the custody of and access to, any or all children of the marriage.

Terms and conditions

(6) The court may make an order under this section for a definite or indefinite period or until the happening of a specified event and may impose such other terms, conditions or restrictions in connection therewith as it thinks fit and just.

Factors

(8) In making an order under this section, the court shall take into consideration only the best interests of the child of the marriage as determined by reference to the condition, means, needs and other circumstances of the child.

Past conduct

(9) In making an order under this section, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the ability of that person to act as a parent of a child.

Maximum contact

(10) In making an order under this section, the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact.

[13] The Supreme Court of Canada has set out the relevant factors for consideration in a relocation case in Gordon v. Goertz, [1996] 2 S.C.R. 27:

49 The law can be summarized as follows:

1. The parent applying for a change in the custody or access order must meet the threshold requirement of demonstrating a material change in the circumstances affecting the child.

2. If the threshold is met, the judge on the application must embark on a fresh inquiry into what is in the best interests of the child, having regard to all the relevant circumstances relating to the child’s needs and the ability of the respective parents to satisfy them.

3. This inquiry is based on the findings of the judge who made the previous order and evidence of the new circumstances.

4. The inquiry does not begin with a legal presumption in favour of the custodial parent, although the custodial parent’s views are entitled to great respect.

5. Each case turns on its own unique circumstances. The only issue is the best interest of the child in the particular circumstances of the case.

6. The focus is on the best interests of the child, not the interest and rights of the parents.

7. More particularly the judge should consider, inter alia:

   (a) the existing custody arrangement and relationship between the child and the custodial parent;

   (b) the existing access arrangement and the relationship between the child and the access parent;

   (c) the desirability of maximizing contact between the child and both parents;

   (d) the views of the child;

   (e) the custodial parent’s reason for moving, only in the exceptional case where it is relevant to that parent’s ability to meet the needs of the child;

   (f) disruption to the child of a change in custody;

   (g) Disruption to the child consequent on removal from family, schools, and the community he or she has come to know.

[14] The application before the court is an originating one. There is no previous custody order to vary. Accordingly, there is no need to establish the threshold test of material change in circumstances. The principles of Gordon v. Goertz apply with the necessary adjustments.

[15] Gordon v. Goertz holds against a presumption in favour of the custodial parent, providing some further direction as follows:

46 Finally, the proposed presumption in favour of the custodial parent may be criticized on the ground that it tends to shift the focus from the best interests of the child to the interests of the parents. … The child’s best interest must be found within the practical context of the reality of the parents’ lives and circumstances, one aspect of which may involve relocation. But to begin from the premise that one parent has the prima facie right to take the child where he or she wishes may unduly deflect the focus from the child to its parents.

48 While a legal presumption in favour of the custodial parent must be rejected, the views of the custodial parent, who lives with the child and is charged with making decisions in its interest on a day-to-day basis, are entitled to great respect and the most serious consideration. The decision of the custodial parent to live and work where he or she chooses is likewise entitled to respect, barring an improper motive reflecting adversely on the custodial parent's parenting ability.

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

[16] I have concluded that it is in Ilya’s best interests to accompany his mother to Australia. I shall explain why in connection to the specific factors set out above.

The existing custody arrangement and relationship between the child and the custodial parent

[17] The mother has been Ilya’s primary caregiver since birth. The parents’ separation agreement dated February 20, 2014 provided her sole legal custody, primary decision making, and primary residence of the child. Since separation she has continued as primary caregiver and has had virtually full responsibility for his health care, school arrangements and extra-curricular activities. She enrolled him in school and liaised with his schools as required. She has taken extra measures which have been successful to assist Ilya with learning, in particular, following school based curriculum text books with him at home in three major subject areas.

[18] Ilya’s behavioural issues became apparent in 2013. He encountered problems in following directions and with physical and verbal aggressivity. These problems resulted in significant issues at school. Ilya has been suspended and banned from using the school bus. His mother has frequently been called to come and take him home.

[19] She arranged for Ilya to be assessed by Dr. Sherman, a clinical psychologist. He has assessed Ilya on a number of occasions beginning in 2016, including making specific recommendations for his educational needs. In January of 2019, he diagnosed Ilya with ADHD (Attention Deficit Hyperactivity Disorder) and ODD (Oppositional Defiant Disorder), symptoms of which he had identified in his very first assessment. The father has had some, but comparatively much less involvement with Dr. Sherman.

[20] In December, 2016 at his school’s recommendation Ilya was accepted into the Crossroads treatment program. Crossroads provides a one year program in a special school setting designed for children with social, emotional and behavioural difficulties. On completion the child is reintegrated to regular school. The father was provided with all of the particulars of the program but was not actively involved in the process. Ilya was reintegrated back into his regular school after the Easter Break in 2018.

[21] The mother was also the parent who arranged speech therapy for Ilya starting in 2015. She has taken him to his appointments up to the present date. She has also taken him for all of his sessions with Dr. Sherman and for the individual play therapy sessions he recommended with Dr. Houlton.

[22] The mother has been the parent solely responsible for enrolling Ilya in a variety of extracurricular activities. She supervises him at these events. Ilya’s behavioral issues require a parent to be present throughout. The father’s attendance at such activities has been more limited.

[23] There is no question that the mother is and has been the primary parent for Ilya in every respect. She has undertaken considerable effort in respect to his specific challenges. She has been diligent and dedicated to doing her best for him and has consistently made choices for him that have been well thought out from Ilya’s perspective as an individual and including as part of a larger family.

[24] The mother and Ilya also share a loving, close, trusting relationship. Ilya confides in her and looks to her for support. Together with his siblings she and Ilya participate in many community based and family activities.

[25] The mother is the child’s custodial parent. She is his primary parent, always taking great care and responsibility for him with little assistance from the father, other than his exercise of his parenting time. In accordance with Gordon v. Goertz her views are entitled to great respect and the most serious consideration. This includes her views about where she wants to live, “barring an improper motive” reflecting adversely on [her] parenting ability.” The evidentiary portion of Mr. DeGroot’s case made some allusions to an improper motive but he did not pursue this in submissions. No improper motive was established. She is not motivated by a desire to frustrate the father – son relationship.

[26] Consistent with her approach to parenting Ilya to date, the mother has made extensive inquiries as to where the family would live in Adelaide, the school he would attend, and school related and other services that would be available to Ilya there. She has satisfied herself that his needs would be well met there. Her strong preference is to move to Adelaide with Ilya and the rest of her family for the three year duration of her husband’s employment contract.

[27] In the full context of this case, I place significant weight on her role as custodial parent to Ilya and on all the responsibilities she has undertaken on his behalf.

The existing access arrangement and the relationship between the child and the access parent

[28] The 2014 separation agreement provided the father with a weekly visit and alternate weekends from Friday afternoon until Sunday evening with Ilya. Mr. DeGroot commenced this court application later in 2014. A temporary order was made in June 2015 resulting in a consent order for alternate weekends from Friday until Monday morning, and every Wednesday overnight. This schedule has been adhered to since then. It provides the father with five out of fourteen overnights. Including the overnights it provides him with some time with Ilya during eight out of fourteen days.

[29] In 2018 they spent half the Christmas school break together.

[30] The father son relationship is positive. Ilya enjoys his time with his father. They have an established routine of activities they enjoy doing together. Over the years they have taken walks, played catch and baseball, and Ilya has been able to ride his bike and skateboard when he is with his father. They also enjoy video games and “old fashioned pinball”. When Ilya is with his father they usually call Olivia, which Ilya enjoys. He also enjoys their visits to Olivia in Montreal. The father is familiar with the activities Ilya is enrolled in and has taken him to some of them. He has also attended some of his recitals, most recently choir. Two friends of Mr. DeGroot provided testimony that they know Ilya, have seen him with his father and observe a happy, loving relationship that is relaxed and comfortable.

[31] Mr. DeGroot acknowledges Ilya has some special needs but says he is doing much better now. Mr. DeGroot’s view is that the current school is able to meet Ilya’s needs whereas school in Australia is an unknown. Mr. DeGroot naturally does not want his parenting time with Ilya reduced.

[32] This is a clearly an important relationship for Ilya. It is important for both him and his father that their relationship continues.

The desirability of maximizing contact between the child and both parents

[33] Significant weight shall be given to the current parenting time the father has, and the change to it that would be occasioned by the proposed move to Australia.

[34] The principle of maximum contact is mandatory but not absolute. This was made clear in Gordon v. Goertz and many subsequent cases. In Choudry v. Cater, 2018 ONCJ 238 the mother sought permission to relocate the children from Toronto to England. At paragraph 123 the court stated it must respect the principle to the extent such contact is consistent with the children’s best interests. It went on to state:

124 Further at para. 217 of Young v. Young, McLachlin J. said the maximum contact does not mean daily contact. Nor does it mean that a custodial parent may not move. “Optimum access may simply not be in the best interests of the child for a variety of circumstances.”

125 And at para. 25 of Gordon v. Goertz, she said, “[t]he reduction of beneficial contact between the child and the access parent does not always dictate a change of custody or an order which restricts moving the child”. The benefits served by remaining with the custodial parent and permitting the move may very well offset the reduction of contact.

[35] The Ontario Court of Appeal in Berry v. Berry, 2011 ONCA 705 reaffirmed the importance of maximum contact as one of two mandatory statutory factors. Mr. DeGroot relies on the case as an example of where a trial judge erred by giving insufficient importance to the principle of maximum contact. The Court of Appeal found errors below were made by considering maximum contact as only one of many factors, and by concluding that the regular alternate weekend contact proposed by the mother sufficiently addressed the maximum contact principle in the context of what was a shared decision making and almost shared residential schedule in Toronto.

[36] As I will be explain more fully in connection with other factors, I have concluded that this is a case where optimum contact between the father and Ilya for the three years in issue is outweighed by the benefits of the proposed move for Ilya, including so that he remains with his primary parent and continues to live with that family as one unit. This conclusion is informed by the proposal Ms. Iouguina has made to return Ilya to Ottawa three times each year to spend a total of 6 weeks with his father. This is a reduction in their contact but together with the frequent video conferencing it will protect the father son relationship and enable it to continue while Ilya is away in Australia.

The views of the child

[37] Dr. Sherman met with Ilya on October 3, 2018 at the mother’s request. The purpose of the interview was to find out about Ilya’s feelings and wishes in relation to the possible move. Ilya was eight years old at the time. This was the only occasion on which Dr. Sherman broached this topic with him.

[38] In testimony Dr. Sherman was forthright in pointing out that children do sometimes say what they think the listener wants to hear. He volunteered that since Ilya had been brought to his sessions by his mother, Ilya may have associated Dr. Sherman with her and this could have influenced what Ilya said to him. This is an important consideration.

[39] When asked, Ilya acknowledged he might be moving to Australia. When asked how he felt about that, he replied that he felt happy because there were water slides and nice parks there. Ilya said it would be for three years and then he would be coming back. Dr. Sherman asked about his father and Ilya replied that he would miss him and his father did not want him to go. Ilya went on to add that he did not want to disappoint his father but if he had a choice he would like to go. He would also want to come back to visit his father and to talk on the phone. Ilya did think that he had a choice and that if he chose not to go his mother would accept it.

[40] Ilya’s young stage of maturity is reflected in his opening remarks about parks and waterslides. His views and preferences as expressed to Dr. Sherman cannot be taken as determinative of his best interests. I take from what he said to Dr. Sherman that he is aware of the potential move, he is aware of his parent’s feelings in relation to it, and if he goes he wants to keep up his contact with his father. That he thinks his mother would respect his choice is some indication she did not pressure or coach him.

[41] Ilya’s views as expressed to Dr. Sherman on this one occasion are entitled to some consideration, but not much weight can be placed on them in making the ultimate determination of what will be in his best interests.

[42] I agree with Dr. Sherman that it will be easier for Ilya if his father communicates support for the move to Ilya, rather than resistance or disappointment. This is especially important for Ilya given Dr. Sherman’s opinion set out in his first report that Ilya suffered from an adjustment disorder connected with conflicted loyalties and family dynamics. In September 2017 Dr. Sherman reiterated this. He wrote that, “It is vital that Ilya understand, from one parent in the presence of the other that they accept and approve of his love and affection for both.”

[43] This joint meeting did not happen because after thinking it over the father declined to participate and instead spoke to Ilya alone. I hope he will take Dr. Sherman’s advice to heart on this occasion.

The custodial parent’s reason for moving, only in the exceptional case where it is relevant to that parent’s ability to meet the needs of the child

[44] The Ontario Court of Appeal in Berry v. Berry, reiterates at para 12 that:

“A parent’s reason for moving is a proper consideration only in exceptional cases, where it is relevant to the parent’s ability to care for the child. Where applicable, the parent’s reason for moving, like all the factors, should be considered from a child centered perspective.”

[45] Ms. Iouguina submits this is one of the exceptional cases. Her position is that her husband is on the verge of burnout, which can be avoided through reduced work hours available to him in Australia. He is the sole support for Ilya and the rest of their family, so they cannot risk the financial consequences of burnout. She says other financial benefits from the move will put the family in a better financial position when they return. Her husband has accepted the position. The only way to keep their family together is for her and Ilya to be able to move too. If she and Ilya remain here, they would have to move in with her parents who live in Ottawa but in a different school district.

[46] Mr. DeGroot submits the mother’s reasons for moving should be given little to no weight. He says it has not been established that moving to Australia is relevant or necessary for her to meet Ilya’s needs, whether educational or financial. He disagrees that Dr. O’Donnell has overworked or is at risk of burnout. He disagrees that the proposed plan in Australia would be effective to ameliorate their concerns.

[47] The economic effect of a move on a child is recognized as a factor to consider in relation to the child’s best interests. See for example Ryall v. Ryall, 2009 ONCJ 687. In Cade v. Rotstein, 2002 CarswellOnt 3871 (SCJ) the custodial mother had a strong financial incentive for her to move to New York City, “compounded by the inability or unwillingness of the respondent to make adequate provision for the applicant’s support.” Mr. DeGroot has a limited ability to assist in Ilya’s financial support. A number of significant medical issues have entitled him to Ontario Disability Support annual income of $13,629. He paid child support from July 2014 to March 2015, and again starting in November 2018. He has not contributed to Ilya’s extra expenses.

[48] Ms. Iouguina is currently a stay-at-home mother. She has not earned income since 2016.

[49] There is no doubt that Dr. O’Donnell pays the lion’s share of Ilya’s financial support. I find that his continued health and ability to continue to support Ilya are factors relevant to the mother’s ability to care for her son.

[50] Dr. O’Donnell testified that he could not sustain his current level of work, and that he was not earning enough to meet his financial obligations. He started counselling with Dr. Steyn in August 2015 to help him cope with the stress and pressure he was feeling, and has seen him on 27 occasions over the following years.

[51] Dr. Steyn is a retired physician now providing counselling primarily to health professionals with respect to work related problems. He observed Dr. O’Donnell to be fatigued with the appearance of sleep deprivation. He testified that Dr. O’Donnell appeared apathetic, in particular when he saw him last year. He described Dr. O’Donnell slumped in his chair, looking tired and overwhelmed, speaking without much emotion and showing some noticeable amount of cynicism. Dr. Steyn does not provide medical advice or treatment but he has recommended to Dr. O’Donnell to take a prolonged absence from work such as month off. Dr. O’Donnell has not done so because of his financial pressures.

[52] Dr. Steyn said he did not specifically discuss hours of work with Dr. O’Donnell. He recalled being told that he had worked over 60 hours in a particular week, or had seen 59 patients in one day, but he was not focused on the numbers rather on the impact the work had on Dr. O’Donnell.

[53] My observations of Dr. O’Donnell were consistent with Dr. Steyn’s description. He appeared low energy, lacked emotion in his discussion of points that would be expected to generate more emotion, and was vague in areas where one would expect him to be specific. Overall my impression of Dr. O’Donnell was of a hardworking, responsible man who was close to running on empty.

[54] The numbers of hours Dr. O’Donnell works was in dispute. I was not persuaded that he works an average of 60 or 70 hours a week. In his affidavit he made that statement but added in hours for his family practice which he closed in 2012. Elsewhere he referred to similar long hours but then explained he no longer worked in that location. In his oral testimony he referred to the fact that unlike regular employees he does not receive paid lunch and daily breaks. I would not be surprised if his estimate included adding in hours on this account. I do not endorse that approach.

[55] I did not conclude that Dr. O’Donnell was wilfully intending to mislead the court because he did provide other information which I do find reliable. His detailed calculation in Exhibit C to his affidavit demonstrates an average work week of 37 paid hours for his shifts at his current three work locations in 2018. He testified that he often worked more hours than scheduled at the hospital and university clinic to see everyone who was waiting. Each shift at all locations also requires unpaid administrative charting work of one to two hours. The number of shifts and overnight shifts was not provided in this exhibit.

[56] Dr. O’Donnell also produced a calendar of his scheduled shifts worked for 14 weeks in 2019. He had 462 scheduled hours, which works out to 33 hours per week, and is not far off the 37 hours calculated over a longer period in 2018. I identified 71 shifts, including 14 overnight shifts.

[57] I do agree that provision should be made for unscheduled hours seeing patients, for administrative work and for some of the mandatory recovery hours following overnight shifts. Dr. O’Donnell is prohibited from working for a minimum 8 hours following an overnight shift. This can be a cost of taking the overnight shift. In reference to the 2019 overnight shifts I have allowed for seven recovery periods because the shifts were worked consecutively. This minimized the “lost time” associated with working those shifts. I also allowed two hours per shift for administrative work. Two hours is the high end of his estimate but is some response to the unknown of unscheduled work hours.

[58] In this way I reached a total of 47 hours per week on average in the 2019 period.

[59] Considering the information from 2018 and 2019 together I conclude Dr. O’Donnell works an average of 50 hours a week although he is not paid for all of them. He also works at three separate locations. His hospital shifts are irregular and unpredictable. He has an out of town commute to the hospital that has not been factored in. The absence of scheduled breaks contributes to the intensity of his work in a demanding profession. His income fluctuates by month and year. He takes very little vacation time. The hours and circumstances by which he earns his income add credence to the view that he is verging on professional burnout.

[60] Dr. O’Donnell supports a family of six and contributes $2,000 per month to his older children. He makes a significant contribution to Sofia’s private school fees. The record shows their house is mortgaged for $710,805. The MPAC value is $685,000. In 2017 and 2018, his bank declined to provide any additional financing as there was not enough equity in the property, and another bank refused a debt consolidation loan. In 2018, his business account was frozen as a result of failing to pay his corporate taxes for two months.

[61] His car loan, debt to Canada Revenue Agency and credit card debt total $129,702. Ms. Iouguina owes CRA and Canada Student Loans $18,427.

[62] I conclude that Dr. O’Donnell is under financial stress. He is not meeting all of his financial obligations. That said, neither he nor Ms. Iouguina appeared to be good money managers. Neither was fully abreast of their financial situation. Both seemed to have made certain financial choices that objectively they cannot afford.

[63] Dr. O’Donnell’s 2018 income tax return was not available. He provided his gross income of $330,447.92 broken down by source. He also provided the percentage of overhead payable at both clinics and the amount of his annual professional dues. Using this information, I estimated his 2018 income after overhead and dues to be $274,318. I do not know his line 150 income for 2018.

[64] His line 150 income for 2013 to 2017 inclusive averages out at $219,253.

[65] Dr. O’Donnell’s description of his upcoming contract did not fully accord with the written terms. He gave a more generous interpretation than the written contract warrants. He mentioned that some oral representations had been made to him which he was relying on. Be that as it may, the actual contract is not an employment contract. It does not provide a guaranteed minimum salary. Compensation will be on a fee for service basis with prescribed percentages for overhead. He is guaranteed a minimum only for the first 12 weeks of work. That amount will be the greater of actual fees for services less overhead percentage, or $121.45 per hour he actually works up to 38 hours each week. The hourly rate is based on an annual income of $240,000 representing 52 weeks of 38 hours each. It appears that if this is the greater amount of the two no percentage reduction is applied for overhead.

[66] Absent any way to predict Dr. O’Donnell’s income in Australia on a fee for service basis I have used the amount of $240,000 Australian dollars with an adjustment for holidays that may be taken. The contract permits up to five weeks unpaid leave. With that leave Dr. O’Donnell could reasonably expect to earn $216,910 for a 47 week work year, an amount that is not dissimilar from his Ontario average line 150 earnings in 2013 to 2017, when he worked 50 or 51 weeks each year. (The Australian dollar was said to reasonably equivalent to the Canadian dollar.)

[67] The possibility also does exist that depending on how many patients he sees, he may earn a higher income. I do not agree with the method by which Dr. O’Donnell estimated he could earn as much $400,000 a year. His approach of adding percentages of billings on top of a minimum guarantee of $240,000 is not borne out by the terms of the contract. I have put no weight on that estimate. Rather I have considered the case from the point of view that on balance he is likely to earn a similar income there as here, but with the added benefit of five weeks annual leave.

[68] The contract provides other advantages. He will receive $13,000 for relocation costs. The requirement is to work 10 half day sessions weekly. These are only described as morning, afternoon and evening. The contract does refer to the possibility of additional hours but importantly it also provides that all sessions will be arranged by agreement between the physician and the clinic. This provides more control and more consistency to Dr. O’Donnell than his current circumstances.

[69] The financial plan includes renting the Ottawa house. The estimated rental income of $4,600 to $5,500 per month will cover the mortgage, taxes, insurance and some repairs and maintenance on the home, assuming the house is fully rented. It is in a desirable area and there was nothing to show that it would be difficult to rent. The proposed rent in Adelaide is considerably lower. Sofia is a gifted student who was being bullied in her public school. The decision was taken for her to attend private school. Dr. O’Donnell contributes $1,167 per month to this expense. In Adelaide she will attend a public school which provides the International Baccalaureate program. Her parents are satisfied this will be very suitable for her at no cost. The family car will be sold to reduce the debt and a less expensive vehicle leased in Adelaide. Babysitting fees will also be reduced considerably, partly because only Fionn will not yet be attending school. The cost of flights to bring Ilya back to visit his father is not included in the Adelaide budget. Ms. Iouguina says her parents have committed to pay for them.

[70] Mr. DeGroot correctly notes at least some of these savings could be implemented in Ottawa. There was no evidence that suitable alternate rental accommodation could be obtained in Ottawa at as reasonable a cost as in Adelaide. The other cost saving measures could be taken here. The advantage Adelaide has that has not been achievable here is the prospect of earning a similar income in a more predictable, controlled environment that will also provide Dr. O’Donnell more time off to refresh himself.

[71] The ultimate success of the financial plan will depend on the family’s adherence to the budget they have prepared. Dr. O’Donnell believes that during the three years in Adelaide he will be able to reduce his non-mortgage debt by half. This is achievable on the income I have estimated, if he adheres to the proposed budget. Following the budget Dr. O’Donnell should be able to apply $25,000 yearly to debt reduction, which should meet his stated objective.

[72] I find the plan as it relates to improving the family finances is viable.

[73] On behalf of Mr. DeGroot it is submitted that Berry stands for the proposition that little weight should be given to the reason for a move, even where it is relevant to the parent’s ability to meet the needs of the child, unless it is established that the move is “necessary”. I disagree with this interpretation. The argument derives from para 19 which states as follow:

19 The trial judge was also persuaded that the mother had no family support in Toronto and couldn't function well there, but that she would have the support of her sister in Kingston. This was another reason cited by the trial judge as relevant to the mother's ability to meet the needs of the child. However, the mother's stated wish to have the support of her sister and a friend in Kingston had to be considered in the context that the parties resided in Toronto throughout their marriage and the child lived in Toronto his whole life. Her application was to relocate the child to Kingston. While the mother's wish to move to Kingston and live with her sister is understandable, the evidence did not establish that the move was necessary in order for her to meet the needs of the child. There was no evidence in this case that she would be anything but a good mother to the child no matter where she lived.

[74] In Berry, the appeal court found that the trial judge had made a number of errors in his application of the Gordon v. Goertz factors to the mother’s proposed move of the child from Toronto to Kingston. The paragraph above forms part of the appeal court’s discussion of the great weight the trial judge gave to the mother’s reasons for moving, and in a particular to his finding of fact that the mother could not function well in Toronto but would be able to in Kingston. The Court of Appeal held that this finding was not warranted by the evidence. It disagrees with what may have been a finding by the trial judge that the move was necessary for her to meet the needs of child. On appeal the court ruled the evidence actually showed the mother had been meeting the child’s needs in Toronto and would continue to do so wherever she lived.

[75] Paragraph 19 is part of the appellate court’s reasoning as to why the trial judge erred in placing great weight on the reason for the move. It connects to the overall conclusion reached in para [28] that, “This is not an exceptional case in which it is appropriate to consider the mother’s reasons for moving.”

[76] I do not regard Berry as establishing a principle of law that a move must be necessary to a parent’s ability to meet the needs of the child, in replacement of the words actually used in Gordon v. Goertz, namely “relevant” to that ability.

[77] Sferruzzi v. Allan, 2013 ONCA 496 provides confirmation by the Court of Appeal that the factors at play in the move proposed by Ms. Iouguina are indeed related to her ability to meet Ilya’s needs:

49 With respect, it appears that the motion judge fundamentally misapprehended Mr. Sferruzzi's evidence as to the benefits to Mason from moving to Pickering. The move has everything to do with Mason's best interests. Mr. Sferruzzi has had three stress leaves while caring for Mason. He is the sole financial provider for Mason's therapy. He does not know if he can continue to pay between $2,500 and $3,000 per month for Mason's therapy. He cannot continue to provide the lion's share of Mason's care, on his own. If permitted to relocate to Pickering, he will have Ms. Packer's support in looking after Mason, and in sharing the associated financial and emotional burdens. Mason will have the benefit of a healthy, happy parent who is better equipped physically, emotionally, and financially to care for him.

56 … If permitted to relocate, he will live with Ms. Packer. The savings coming from joining the two households will lighten Mr. Sferruzzi's financial burdens and stress, and ensure that he is able to continue to financially provide for Mason's therapy. Ms. Packer's emotional and logistical support will also be invaluable in terms of Mr. Sferruzzi's ability to meet Mason's needs. Further, as I have explained, there is the very real possibility that Mason will benefit from living with his brother, Nicholas.

[78] The facts in each case are always unique. That said there are many similarities here to Sferruzzi. Dr. O’Donnell is under significant and concerning work related stress. He is bordering on professional burnout. He is virtually the sole financial provider for Ilya. The three year relocation to Australia will provide him with more control over his hours of work, more vacation time, and with the rental of the Ottawa house, and other reduced expenses in Australia he will be able to reduce his overall debt by the return date to Ottawa. If Ms. Iouguina is permitted to relocate with him, their family will be united, extra living expenses in Ottawa will not be incurred, the mother will have her husband’s emotional and physical support and assistance in parenting Ilya, and Ilya will have the benefit of living with the siblings he has been living with since 2014. All of these facts are relevant to the mother’s ability to meet Ilya’s needs now and in the longer term.

[79] Accordingly the reason for the move is relevant to the mother’s ability to parent Ilya. It will improve her ability to meet his needs and as such it is entitled to significant weight.

Disruption to the child of a change in custody

[80] This is not a factor in this hearing.

Disruption to the child consequent on removal from family, schools, and the community he or she has come to know.

[81] The proposed move would change Ilya’s home, school, and place of residence to Australia for three years. He would be moved from his current circle of activities and friends. His relationship with his sister Olivia may be effected. There is no doubt but that the proposed move to Australia will reduce the contact between the father and Ilya in a significant way. The move is not permanent but the upcoming three years are important ones in Ilya’s development. His father’s presence in Ilya’s life would be less overall and less frequent during this time.

[82] Ilya will experience change even if he and his mother stay in Ottawa. He will move to his grandparents’ home. His school and the location of his extracurricular activities will change. Ilya would be separated from his siblings and from Dr. O’Donnell with whom he also has a meaningful relationship.

[83] A full inquiry into Ilya’s best interests must consider his ability to handle a move to Australia having regard to his special needs, his proposed school placement and whether it is able to meet his needs. The maximum contact principle requires consideration of whether any benefits served by permitting the move offset the reduction of contact between father and son.

[84] Dr. Sherman conducted his most recent assessment of Ilya in January 2019. He reported that Ilya’s ability to self-regulate emotional and motor activity is weak, as is his ability to follow school routines and expectations. He concluded that Ilya’s current placement in a regular school program was not meeting his needs. His opinion was that Ilya should be in an educational setting designed for children with the diagnoses of ADHD and ODD. If Ilya remains in Ottawa and cannot re-enter the Crossroads program, a private school placement with a special focus on children with these diagnoses was recommended. Private school for Ilya is currently unaffordable. The mother testified that based on information received Ilya could not re-attend Crossroads. The father did not address this point.

[85] Ilya’s most recent report card states that he rarely follows instructions in class, is having difficulty learning to work independently, has difficulty regulating himself in class and when he gets upset is not always able to use acceptable strategies to calm down. He has made some progress and he has some academic strengths.

[86] Mr. DeGroot submits that Ilya is doing fairly well at his current school. This is a relative, subjective statement. Dr. Sherman impressed me as very conscientious and focussed on the needs of Ilya. I accept his opinion that the current school placement is not meeting Ilya’s special needs.

[87] Dr. Sherman could not predict how a move would effect Ilya. He testified that Ilya would need more support and preparation than would a child who was not ADHD and ODD. He said that a child with Ilya’s diagnosis would be more vulnerable to change than a child without it. He thought that Ilya’s preference to make the move would be helpful. Many of the questions put to him in cross examination were generic. Dr. Sherman left the impression that he regarded such questions as too broad for him to usefully answer. I agree. Nor were they in line with his role with Ilya, which was to consider whether his needs are being met, not where they are being met.

[88] There is no direct evidence from Ms. Iouguina’s school of choice for Ilya in Adelaide. She testified about the research she had done to satisfy herself that she had located a school that would be able to meet Ilya’s educational and special needs. She inquired about the academic program, whether he would qualify for a speech and language class, and availability of special supports for him in the school and presence of a music and art class, two activities which Ilya particularly enjoys. Based on her inquiries and information received she is satisfied Stradbroke School would be suitable to Ilya’s needs. The family will be living in walking distance to this school. She has provided all the information she received to Mr. DeGroot.

[89] Ms. Iouguina has also looked into the health plan in Australia with special reference to the availability of funded psychotherapy for Ilya. She is also satisfied on this front. Again there is no direct evidence from the health plan.

[90] Mr. DeGroot relies on Gordon v. Greco, 2007 ONSC 17377 where a move from Ontario to British Columbia was refused. The court in Greco was also in the position of having no direct evidence from the school the child would be attending if the move went forward. The court concluded that the overriding factor was the child’s educational situation and that it was in his best interest to maintain his current school placement. The case is distinguishable. I have found that the current school placement is not meeting Ilya’s special needs. His parents are unable to afford the recommended private school placement for him. Nor do I find that maintaining his current educational setting is the overriding factor to my determination of his best interests.

[91] Blunt v. Girard, 2012 ONCJ 356 is also distinguishable on its facts. No custodial determination had been made in that case, whether by a parenting agreement or by court order. Nor was there a clear primary parent. Both parents had worked closely with their son’s teachers. The father had two parenting days during the school week in which he focussed on mathematics with his son. With his father’s support the boy had advanced a full grade in math and was on track to catch up to his peers. After considering a variety of other issues pertaining to the mother’s proposed move the court found that overall it was not in the child’s best interests.

[92] The context in Ilya’s case is that the mother is the custodial parent and has been the child’s primary parent in every respect. She has a strong track record of making strong decisions for Ilya and has been particularly attentive to his special needs. Unlike S.E.M. v. J.J.R., 2013 ONSC 86 where the mother put forward her request to relocate only one week before the commencement of an already scheduled trial, here the court is in a position to evaluate Ms. Iouguina’s plan. S.E.M. v. J.J.R. at para [47] describes a very different fact situation than is present in Ilya’s case:

47 I appreciate that serious weight and consideration must be given to the wishes of the custodial parent. So doing does not override the court's obligation to rule in the best interest of the child. Here, the current practical reality does not support the mother's proposed move to Sydney with T.E.R. The plan was put together very quickly with the result that the court was really left in the position of not being able to perform an independent evaluation of it. With only the testimony of the applicant, and in the absence of any supporting medical, employment or family witnesses, the court is essentially asked to accept at face value the applicant's testimony that her proposal is in the child's best interest. In my view, so doing would be tantamount to giving her the benefit of a presumption in favour of her entitlement to move the child, which the law does not provide.

[93] There will be disruption to Ilya regardless of the decision I make. Maintaining maximum contact with his father would mean that Ilya would remain in Ottawa with his mother and perhaps Fionn, but he would be separated from the rest of that family and he would be moving house and starting a new school. I find his best interests are served by permitting the move, and that the advantages of the move do offset the reduction of contact between father and son. The practical context of Ilya’s life is that his mother has been his primary parent in every way, and that his life is bound up in the family she has made with Dr. O’Donnell. The move is to his short term benefit in that his mother would have the assistance and support of her spouse in meeting his daily needs. Ilya would have the benefit of continuing to grow up in his familiar household. The move also has longer term benefits related to Ilya’s financial security by providing Dr. O’Donnell the opportunity to avoid professional burnout and to clean up some of the current financial stress the family is under.

[94] Another aspect of the evidence assisted me in reaching the conclusion that it is in Ilya’s best interests to relocate to Australia. I have no doubt that Mr. DeGroot genuinely loves his son and treasures the time they have together. But he has made a serious error in judgment which reflects poorly on his ability to separate his feelings from his son’s best interests.

[95] Mr. DeGroot reported Dr. O’Donnell to his governing College for allegedly starting an affair with Ms. Iouguina while he was the family’s physician. His first complaint was in October 2014 on a no names basis. In September 2018 he named Dr. O’Donnell as the physician in question. He reiterated his complaint in February 2019.

[96] Dr. O’Donnell’s uncontradicted testimony was that he closed his private practice in 2012. Dr. O’Donnell and Ms. Iouguina’s assertion that they stared dating in 2014, after the practice had been closed was also uncontradicted. The parties Agreed Statement of Facts stipulated that they separated in September 2013. Mr. De Groot also deposed this as a fact in his own affidavit which formed part of his trial evidence.

[97] In making the complaint Mr. DeGroot used the date of the parties’ separation agreement which was dated and signed in February 2014. That was not their date of separation. He also relied on a medical note which he said had been signed by Dr. O’Donnell on November 1, 2013 to show he was still acting as his family physician at that time. The note was actually signed on January 11, 2013, as a favour to Mr. DeGroot because he had not yet located a new family doctor.

[98] The note contains three dates: 16/07/56 (Mr. DeGroot’s birthday); the period for which the subsidy is requested, 7/01/13 to 31/08/14 (here the form stipulates day/month/year as the requested sequence); and the date of signature, 11/1/13.

[99] I did not believe any of the explanations Mr. DeGroot provided with respect to this matter. He said he lodged the complaint as result of bad advice. He did not explain why he did not then withdraw the complaint on learning the advice had been bad. He said he must have agreed that the date of separation was in 2013 as an “oversight” on his part. Yet he swore his affidavit was true and signed another important legal document knowing it would become evidence at this trial. He said the way the signature date was recorded was confusing. But the form itself sets out day/month/year, and surely the sequence of his own birthdate would be immediately apparent to him.

[100] It was submitted that the complaint and Mr. DeGroot’s motives in making it are not relevant to the issue before this court. I disagree. A witness’s credibility is always important. Whatever his motivation was it was not related to what would be best for Ilya. Lodging such a serious, false complaint to threaten the professional standing of the individual who had voluntarily assumed the major financial responsibility for his son was an action taken contrary to Ilya’s best interests.

Conclusion

[101] All of the individual findings I have made lead me to the overall conclusion that the proposed relocation to Australia is in Ilya’s best interests. His mother is permitted to take him there, on the terms and conditions set in the order below.

The Order

[102] The specific terms of the order are as follows:

1. The Respondent, Nina Iouguina, shall be permitted to relocate to Australia with the child, Ilya Johannes DeGroot, born July 20, 2010, in July, 2019. She shall relocate the child back to Ottawa, 36 months after her departure date but not later than July 15, 2022.

2. The applicant, Robert DeGroot shall have access with the child as follows:

   a) For 14 days prior to the Respondent’s departure to Australia, to occur after the close of Ilya’s school year, unless the parties agree otherwise.

   b) Visits in Ottawa

   • Three times a year for a period of two weeks to coincide with Ilya’s school breaks in April, July, and December, the cost of these visits shall be covered entirely by the Respondent and travel time does not form part of the Applicant’s visit time with Ilya; and
   • Any additional access agreed upon by the parties, the cost of which shall be covered by the Applicant.

   c) Upon registration of Ilya in school in Australia, the Respondent shall forthwith provide the Applicant with the dates of the annual school breaks in April, July and December, and shall do so in each of the subsequent two years forthwith after the commencement of the school year.

   d) Visits in Australia

   • Should the Applicant travel to Australia at his own expense, he shall have access with Ilya from Friday after school until the start of school Monday; and
   • Any additional access agreed upon by the parties.

3. The Applicant shall have Skype/videoconference calls with the child every Wednesday prior to Ilya departing for school and every Sunday after Ilya has breakfast. There shall be additional calls pursuant to the child’s wishes. Upon arrival in Australia, the Respondent shall forthwith advise the Applicant of the time the calls will be placed, local time in Ottawa, Ontario.

4. The Respondent shall advise the Applicant of the child’s new contact information, including his address, within five (5) business days and the name of his school, teachers, doctors, etc. as soon as same becomes known. The Applicant is entitled to contact any such individuals directly and to obtain information from them with respect to Ilya.

5. The Respondent shall provide the Applicant with a monthly update with respect to how Ilya is doing in school and his health.

6. On consent of both parties the Applicant’s child support obligation shall be suspended while the child resides in Australia.

7. On consent of both parties the Applicant’s obligations to contribute to the child’s section 7 expenses shall be suspended while the child resides in Australia.

8. Should the Respondent fail to deliver Ilya to Ottawa for any of the visits required by this Order, her failure to do so shall be deemed to be a wrongful retention of Ilya in Australia for purposes of the Convention on the Civil Aspects of International Child Abduction, and she shall forthwith relocate him back to Ottawa, Ontario.

9. a) Within one month of arriving in Australia, the Respondent shall commence proceedings in a court of competent jurisdiction in Australia to have an Order made mirroring the terms of this Order. The Applicant shall not contest the proceedings in Australia so long as the Order sought is in compliance with this order. The order sought shall be final and shall be delivered to the Applicant and filed with this court forthwith on issuance. The Australian court order should specify that the appropriate Australian authorities are entitled to enforce the terms of the Order.

   b) Provided the Applicant waives the service period, signs the required consent in a timely way, failure to obtain this order in Australia and to deliver a certified copy to the Applicant and to this Court on or before October 30, 2019 shall result in an order issuing requiring the Respondent to forthwith relocate the child back to Ottawa, Ontario.

   c) The Applicant shall not be deemed to have attorned to the jurisdiction of the Australian court by his non-contestation of the order required by paragraph 9 (a) of this Order. The order is to be obtained solely to assist the Applicant to enforce this Order of the Superior Court of Justice, Ontario, which court retains jurisdiction over all parenting issues pertaining to the child in this action, an action which remains ongoing before the Ontario Court.

10. Should the Applicant be required to undertake any proceedings to enforce the terms of this order, the Respondent shall be liable for his full costs associated with so doing.

Costs

[103] Ms. Iouguina is the successful party and is presumptively entitled to costs. Should costs be sought and the parties unable to resolve the issue between themselves, I will entertain written submissions according to a schedule to be agreed upon by counsel that will result in all submissions being delivered to me by June 30, 2019. Each party is restricted to three pages of submissions plus attached Bills of Costs and Offers to Settle.

J. Mackinnon J. Released: May 10, 2019