COURT FILE NO.: 3621/16

DATE: 2019-05-27

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Norman Gregory Thomas Lidstone Applicant

– and –

Chrystal Anne Simonar Respondent

Self-Represented

Self-Represented

HEARD: April 15-18, 23-26, and 29, 2019

V.R. CHIAPPETTA J.

I. OVERVIEW

[1] The parties, Norman Gregory Thomas Lidstone and Chrystal Anne Simonar (collectively, the “parents”), have two children together: Nora Rae Lidstone, born November 2, 2009 and Henry Graham Lidstone, born January 26, 2012 (the “children”). The parties consented to a final order dated December 15, 2017 (the “initial order”). In relevant part, the initial order details the terms the parents agreed to as follows:

1. The parties shall have joint custody of the children with equal residence on a week-about basis.

2. Based on the shared custody arrangement, Mr. Lidstone’s annual income of $72,000 and the Respondent’s imputed annual income of $22,500, Mr. Lidstone shall pay child support to Ms. Simonar for the children based on the Child Support Guidelines, O. Reg. 391/97 in the amount of $754 per month, on the first day of each month commencing January 1, 2018, which shall be adjusted each year until no longer payable.

3. Each party is entitled to one-half of the Canada Child Benefit (including the Child Disability Benefit if applicable), the refundable children’s GST/HST credits, and the Ontario Child benefit. These benefits shall not affect the Child Support Guideline Table Amount of child support.

4. The children shall reside in Sault Ste. Marie, District of Algoma, Province of Ontario (“Sault Ste. Marie”), and shall not reside elsewhere without the written consent of the parties or an order of the court.

[2] On July 12, 2017, Ms. Simonar brought a Motion to Change. She asked to vary the initial order to grant her sole custody of the children, with supervised access for Mr. Lidstone. From the beginning of the motion, the parties raised decision-making, parenting time, mobility and child support as issues that the court would need to consider. At the trial management conference held before Justice Gareau on February 26, 2019, his Honour observed that the motion documents that had been filed did not include a claim to relocate the children or a claim for child support, even though Ms. Simonar had indicated that she wanted to move with the children to Cold Lake. His Honour therefore allowed the parties to amend their documents to add a claim for Ms. Simonar to change the residency of the children to Cold Lake, Alberta.

[3] While reviewing the court file after the trial management conference had concluded, Justice Gareau discovered that Mr. Lidstone had not yet filed a formal response to the motion, although he had fully participated in the matter from the outset. His Honour ordered Mr. Lidstone to serve and file his formal response to the motion by March 15, 2019.

[4] Mr. Lidstone’s response (Form 15B) was not served or filed until March 19, 2019. I accept the reasons offered therein for the delay. Mr. Lidstone’s responses to the issues raised by Ms. Simonar have been available and consistent from the start of the motion. Mr. Lidstone has consistently requested that he should be granted sole custody with access provided to Ms. Simonar, and he has also consistently expressed his objection to Ms. Simonar’s request to relocate with the children. His response goes further, however, and asks the court to vary the initial order as it pertains to spousal support. That issue will not be considered in this decision. The issues of custody, mobility and child support raised by Ms. Simonar’s motion have been discussed at a case conference, a settlement conference and a trial management conference. The witnesses have been chosen by the parties and the trial time scheduled accordingly. Most significantly, Ms. Simonar has not had the opportunity to respond to the allegations in Mr. Lidstone’s response about her employability and his request to terminate spousal support obligations. For these reasons, this trial will proceed only on the issues raised by the motion, as amended.

[5] The initial order directs that Ms. Simonar’s entitlement to spousal support should be reviewed on January 1, 2020 (para. 25). The initial order therefore grants Mr. Lidstone a right to request that the Court review Ms. Simonar’s entitlement to spousal support beyond December of this year. Mr. Lidstone may schedule a case conference to address Ms. Simonar’s ongoing entitlement to spousal support. Subject to the discretion of the case conference judge, the conference shall explore the substantive issues raised in Mr. Lidstone’s motion to change dated March 19, 2019 and the most efficient process to pursue these issues considering the entitlement review contemplated by the initial order.

[6] In her closing submissions, Ms. Simonar asked that any order of this court include a police enforcement clause. This request was not pleaded in the motion materials, as amended. Moreover, such a clause is not appropriate in the circumstances. Below, in the Disposition section of these reasons, the court has made a detailed order. Unlike prior orders between the parties, the detailed order is clear and unequivocal. Compliance is mandatory. The parties may seek assistance and a further order from this court should there be a failure to comply. Until that time, I see no need to involve the police.

II. ISSUES

[7] The main issues before the court are as follows:

Custody of the children. Both parents are seeking to vary the initial order as it pertains to shared custody. Both parents ask the court for sole custody of the children.

Parenting Time. If Ms. Simonar is permitted to relocate with the children, she proposes generous access time for the children and Mr. Lidstone when Mr. Lidstone is not working and the children are not in school. If Mr. Lidstone is granted sole custody, he proposes that Ms. Simonar have time with the children every other weekend during the school year with equal time during the summer and holidays

Mobility: Primary and Habitual Residence of the Children. Ms. Simonar is seeking to vary the initial order’s stipulation that the children should reside in Sault Ste. Marie. She asks the court for an order that the children have their primary and habitual residence with her in Cold Lake, Alberta. Mr. Lidstone opposes this.

Child Support. The obligation to pay child support may need to be varied, depending on the court’s decision on parenting time.

Canada Child Benefit. The initial order which provided that the Canada Child Benefit be shared equally may need to be varied, depending on the court’s decision on parenting time.

[8] All related issues will be addressed in the Disposition section of these reasons.

III. THE EVIDENCE AND FINDINGS OF FACT

[9] I will review the evidence received at trial from each witness’s examination in chief and cross-examination. I will make findings of fact and comments on credibility and inferences as I go.

Ms. Simonar’s Evidence

[10] Ms. Simonar’s narrative is that since the initial order she has worked on self-improvement and has educated herself on how to effectively co-parent. She has learned to manage her emotions. In her opinion, shared custody has failed because Mr. Lidstone is focused on his own interests over those of the children’s. She believes that his conduct is governed by the need to hurt and control her. She believes that she needs to relocate to Cold Lake because of the anger and resentment Mr. Lidstone and his family have for her. She believes their continued influence in the children’s lives will result in her “parental alienation.”

[11] Unless otherwise stated, the following represents the testimony of the Ms. Simonar.

[12] Ms. Simonar is the oldest of eight children from Cold Lake, Alberta. She has no immediate family in Sault Ste. Marie. All of her family is in Alberta. She left Cold Lake in 2008 to work in Fort McMurray. Cold Lake has always been home for her.

[13] Ms. Simonar met Mr. Lidstone while working in Fort McMurray. They first travelled to Sault Ste. Marie together in late December 2008 for a visit. Nora was born in Sault Ste. Marie in November 2009. Henry was born in Cold Lake in January 2012.

[14] Since the initial order in December 2017, it has been a constant struggle to communicate with Mr. Lidstone and effectively co-parent. He has consistently failed to comply with the terms of the initial order. For example, Mr. Lidstone has yet to facilitate a Skype call between her and the children during his parenting time and telephone calls are not being made as ordered. When his work schedule does not permit him to care for the children, Mr. Lidstone has sent them to other people’s homes without first checking if she is available to care for the children and without informing her of the third party’s contact information. Mr. Lidstone refuses to take Henry to hockey or dance and will not work with her to ensure that the children attend and enjoy their extra-curricular activities. He has also changed their dentist without advising Ms. Simonar and refuses to pay for her extended benefits through his insurance.

[15] In cross-examination, Ms. Simonar admitted Mr. Lidstone has never been found by the court to have failed to comply with a court order. He has given her the option on occasions to care for the children if he is unable to do so during his scheduled parenting time. She further admitted that she has received up to three phone calls a day from her children. Mr. Lidstone testified that he is uncomfortable using Skype with Ms. Simonar as she has used it to make negative allegations about his house in the past. His evidence is that he has tried to have Ms. Simonar added to his employment extended benefit plan but the provider has refused as she is not a spouse or a dependent. He signed an authorization for Ms. Simonar’s lawyer to pursue the issue directly with the provider. As more particularly set out below, Mr. Lidstone’s evidence is that he changed the children’s dentist to avoid their exposure to parental conflict.

[16] In cross-examination, Ms. Simonar also admitted that she has failed to entirely comply with the initial order. For the last few months, the children have been residing with her during the school week and with Mr. Lidstone on most week-ends, despite his request to have parenting time with the children in accordance with the initial order. Ms. Simonar took the children out of school in December 2018 and kept them beyond December 16, 2018, contrary to the initial order and she refuses to transition the children at school as ordered but rather insists that the transitions occur at a Tim Horton’s. In January 2018, Ms. Simonar unilaterally decided to remove Henry from senior kindergarten permanently, an action opposed by Mr. Lidstone. Ms. Simonar enrolled the children in several extra-curricular activities without agreement from Mr. Lidstone.

[17] Ms. Simonar is qualified as a mobile crane operator. She is currently not employed. She has worked in Alberta in her trade but has never been employed while living in Sault Ste. Marie. There are two crane companies in Sault Ste. Marie. The last time she attempted to find work as a crane operator in Sault Ste. Marie was September 2016.

[18] Ms. Simonar has applied to be a respite worker through Nogdawin Family and Community Services. She hopes to foster children in her home. The safety assessment for this purpose is scheduled to occur on April 29, 2019 in her home in Sault Ste. Marie.

[19] After the initial order, Ms. Simonar sold property in Pancake Bay and paid off her debts. The net proceeds of sale were depleted quickly. She receives a benefit of approximately $890 a month through a survivor of domestic violence program. Her entitlement to this benefit is reviewed annually. She has been on and off Ontario Works for financial assistance. She is currently receiving financial assistance through Ontario Works and has been since August 2018.

[20] In March of this year, Ms. Simonar rented a beautiful home for her and the children close to a park. She pays $1,500 a month in rent. The neighbours are great and the landlord is nice to work with. Ms. Simonar testified: “I am happy where we are.”

[21] Ms. Simonar does not have immediate family in Sault Ste. Marie. Her mother visits regularly, however, and she has also received visits from two sisters, a brother, a long- time friend and her mother’s partner.

[22] The children are involved in extensive extra-curricular activities in Sault Ste. Marie and have many friends. Nora has a best friend and Henry has a friend from kindergarten. The children sail, dance, attend gymnastics, take Ukrainian dance and cultural lessons, and are involved in hockey and the junior gardener’s club. The people involved with the Ukrainian dance classes are like a second family. Nora is a competitive dancer. Her confidence has grown through this and she loves her teachers. Henry loves his hip hop dance classes and hockey.

[23] Ms. Simonar has also made many friends in Sault Ste. Marie; some she and the children have stayed friends with since she first arrived. Most recently, the sailing club has been good for her and the children. She has made a lot of new friends at the club with similar interests. At times, she and the children attend the Anglican church, which provides them with a real sense of community. Ms. Simonar is grateful for what she calls her “new family.”

[24] Ms. Simonar and the children are also involved with the Indian Friendship Centre. Ms. Simonar’s father (now deceased) was of Métis descent. The people at the Centre are considered both family and friends. Ms. Simonar has taken some courses through the Indian Friendship Centre to better herself and the Centre provided her with new beds for the children, a U-haul, storage area and manpower to assist with her recent move to her new home. Ms. Simonar has also taken courses to better herself through Women in Crisis. She was motivated to learn more about co-parenting and to move forward from domestic violence. She also attends Al-Anon meetings where she feels part of a support system and works to keep her perspective healthy.

[25] Ms. Simonar always expressed her desire to Mr. Lidstone to return with him and the children to Cold Lake. Mr. Lidstone was willing to return. She always thought they would go back. Living in Cold Lake is different than living in Sault Ste. Marie. There is always family near-by and there are opportunities for the children to explore the farm, its animals and gardens. Ms. Simonar took the children to Cold Lake in March 2019. They enjoyed skiing and ice fishing and they visited with many of their cousins.

[26] In Cold Lake, Ms. Simonar and the children would live with her mother in her mother’s home. The children would attend a catholic French-immersion school within walking distance to that home. The children have cousins in Cold Lake, but Ms. Simonar admitted in cross-examination that her brother does not have custody of the cousins, and Ms. Simonar’s relationship with their parental guardian is “complicated.” Ms. Simonar would enroll the children in dance and hockey. She would try and find employment as a crane operator. Ms. Simonar maintains contact with her union in Alberta and has been assured that she will “always have a seat.” Should she find employment, child care would be provided to the children by their maternal grandmother.

[27] Anyone who has met Ms. Simonar says that she can make friends anywhere. The children have picked that up from her. Ms. Simonar and the children have a great social system in Sault Ste. Marie but she would make a point to maintain those relationships if the children moved with her to Cold Lake. She would also ensure that the children could Skype, call or use social media to communicate with Mr. Lidstone whenever they wanted.

[28] The children are bonded to Ms. Simonar. She gave up everything to be their care giver. She nursed them each for 15 months. The children still sleep in her bed with her. Both of the children have anxiety about attending school and Henry has made himself throw up while he was at school at least three times. Ms. Simonar admitted in cross examination that in the past she has picked up the children from school shortly after Mr. Lidstone dropped them off at 9 am and has allowed them to stay home from school when they are tired. The teachers and principal have expressed concern about the children’s absence from school.

[29] Ms. Simonar refuses to vaccinate the children in accordance with Ontario’s vaccination schedule. She believes that the risks of vaccination are far too great. She believes “vaccinations cause many health complications, including lasting effects on the brain.”

[30] Ms. Simonar has tried to get the children some support through a program called Creating Connections but Mr. Lidstone refuses to agree to the children’s attendance at this program.

[31] Glenda Porter was called by Ms. Simonar to give evidence on her behalf about the Creating Connections issue. Ms. Porter works as a child witness coordinator with Algoma Family Services (“AFS”). She testified that Creating Connections is a ten-week program for mothers and children who have been victims of domestic violence. In March 2018, Ms. Simonar attended at AFS and spoke with Ms. Porter for the purposes of attending the program with the children. She filled in the proper intake forms. Ms. Porter required Mr. Lidstone’s consent given the shared custody arrangement in place. She called Mr. Lidstone and asked for his consent for the children to attend the program. Ms. Porter explained that the program was for moms and children who had experienced domestic violence. Ms. Porter testified that Mr. Lidstone said “absolutely not as the kids were not exposed to domestic violence.” In cross-examination, Ms. Porter admitted that the program is “definitely not appropriate” for children who have not been exposed to domestic violence as they would hear stories from other children who have witnessed violence and this would be traumatic for them.

[32] Mr. Lidstone testified that he believes that the children require support. He has enrolled the children in counselling through the school board and through AFS.

[33] Ms. Simonar has a strained relationship with Mr. Lidstone’s family. When Ms. Simonar attends Mr. Lidstone’s residence she is yelled at in front of the children and accused of harassment and trespassing. The Lidstone family demonstrate great anger and resentment towards her. Doug Fairburn is Mr. Lidstone’s mom’s partner. He lives in Mr. Lidstone’s house. Mr. Fairburn put his finger in front of Ms. Simonar’s face on one occasion and Mr. Lidstone did nothing to intervene. Mr. Lidstone’s parents and siblings refuse to talk to her.

[34] In June 2018, Ms. Simonar was advised by her daughter that a rocking chair from Ms. Simonar’s former residence in Pancake Bay was on the street in front of Mr. Lidstone’s residence with a “free” sign in front of it. Ms. Simonar called the police and requested a police escort to attend the household and to see about the rocking chair. When she spoke with the police she was advised that there was a no trespassing order made against her with respect to Mr. Lidstone’s residence. It was put in place by Mr. Fairburn. Mr. Lidstone was unaware of the order. Ms. Simonar therefore waited outside the property line for the police to attend. The police arrived. Mr. Fairburn advised them that the rocking chair was gone. In cross-examination, Ms. Simonar admitted that Mr. Lidstone did give her an opportunity to take the rocking chair from Pancake Bay but that she was not able to do so at that time.

The June 20, 2018 Incident

[35] On June 20, 2018, Ms. Simonar received a call from Mr. Lidstone’s ex-girlfriend Jenny Aubertin. Ms. Aubertin advised her to come to Mr. Lidstone’s residence and pick up the children as she was worried about their well-being. Ms. Simonar called the Children’s Aid Society (the “CAS”) and the police. Mr. Lidstone was charged with assaulting Ms. Aubertin. The charges were withdrawn without a trial on November 21, 2018.

[36] Mr. Lidstone’s mom and Mr. Fairburn were present at the time. No one intervened. Ms. Simonar believes that the adults in the household failed the children. She does not know how to prevent this from happening again other than asking for sole custody.

[37] Mr. Lidstone called his mother Nancy Fairburn as a witness on his behalf. As more particularly set out below, Ms. Fairburn was home at the time in question but was sleeping. She heard nothing to wake her up or cause her concern that there was a conflict taking place as described.

[38] Ms. Simonar called Jason Filek as a witness. He is Ms. Aubertin’s estranged spouse. They are separated with four children together. Mr. Filek knows about the incident of June 20, 2018 only because Ms. Aubertin told him about it. He has no direct information or knowledge. He has never observed Mr. Lidstone interact with the children. In cross-examination, Mr. Filek admitted that Ms. Aubertin has made many unfounded allegations against him that, if true, would negatively affect his ability to parent. Mr. Filek further admitted that he had previously reached out to Mr. Lidstone’s sister to see if Mr. Lidstone could provide evidence to him about Ms. Aubertin’s ability to parent that could assist him with his litigation with Ms. Aubertin concerning the custody of their four children.

[39] Lisa Peterson was also called by Ms. Simonar to give evidence at the trial. She is a child protection worker at the CAS. Ms. Peterson testified that after historically failing to cooperate with the CAS, details of which will be described below, Ms. Simonar attended at the CAS office with her children and a friend on the morning of June 21, 2018. The children were in their pajamas and their hair was disheveled. Ms. Simonar relayed to Ms. Peterson the events of June 20, 2018 as described to her by Ms. Aubertin. Ms. Simonar permitted Ms. Peterson to speak with the children privately, something she had adamantly resisted up to this point. Upon speaking privately to the children, Ms. Peterson was satisfied that there had been a conflict between Ms. Aubertin and Mr. Lidstone but the children were unaware of the events and were not exposed to any conflict. Earlier that evening Mr. Lidstone allowed the children to watch a movie on the couch and fall asleep. They slept until Ms. Aubertin woke them up and took them to their mom who was waiting outside in the car. The children expressed no concerns about the care of their father and they did not feel unsafe with him. They witnessed no violence and no alcohol abuse.

[40] Ms. Peterson testified that when she asked Nora why she was in her pajamas Nora told her that she and Henry slept at their mother’s and did not get dressed before they came to the CAS at 9:30 am. Ms. Peterson felt that this was questionable conduct on the part of Ms. Simonar.

[41] Ms. Peterson spoke to Mr. Lidstone about the allegations. She testified that he told her that he was with the kids that night. Ms. Aubertin was not present. They had broken up. Mr. Lidstone let the kids fall asleep on the couch watching a movie and he went to bed. This was consistent with what Nora told her. He woke up at 1 am and found Ms. Aubertin in his bedroom video- taping him. He admitted that he had a couple of drinks before falling asleep but said he was not intoxicated. He was shocked to find Ms. Aubertin in his bedroom as she had never lived in that home and they had broken up. He shoved her out of his room after asking her to leave many times. She attempted to get back into his room. She bumped her head on the bedroom door when he pushed back. He then went to take a shower as the situation was shocking. Mr. Lidstone felt that Ms. Simonar and Ms. Aubertin were aligning against him since the break-up. Mr. Lidstone was cooperative with Ms. Peterson. He committed to a safety plan. Ms. Peterson was satisfied, did not feel the children were unsafe in his custody and closed the investigation.

[42] Mr. Lidstone’s testimony at trial about the events of June 20, 2018 was consistent with what he told Ms. Peterson.

[43] Ms. Aubertin was not called to testify. She is a material witness in terms of the events of June 20, 2018. Only two people witnessed the relevant events: Ms. Aubertin and Mr. Lidstone. Ms. Simonar relies on the events of June 20, 2018 to substantiate her narrative but she was not present at the relevant time and she has no direct knowledge of the events at issue. Instead of calling Ms. Aubertin as a witness, she summoned her estranged husband even though he had no direct knowledge of the events in question.

[44] If a party does not call a witness to testify, and it is clear from the evidence that the witness would have been able to testify to a material issue, the court may draw an adverse inference against the party who failed to call the witness: Levesque v. Comeau, 1970 4 (SCC), [1970] S.C.R. 1010; R. v. Jolivet, 2000 SCC 29, [2000] 1 S.C.R. 751 at para. 25. The court can infer that the party did not call the witness to give evidence because her evidence would not help the party’s case. The court should not draw an adverse inference where there is a plausible reason why the witness was not called: R. v. Ellis, 2013 ONCA 9, 113 O.R. (3d) 641 at para. 47; R. v. Lapensee, 2009 ONCA 646, 99 O.R. (3d) 501 at para. 42; R. v. Rooke (1988), 1988 2946 (BC CA), 40 C.C.C. (3d) 484 (B.C. C.A.) at pp. 512-513.

[45] Ms. Simonar offered no explanation as to why she did not call Ms. Aubertin. In my view, this amounts to an implied admission that Ms. Aubertin’s evidence would be contrary to her efforts to portray Mr. Lidstone as abusive.

[46] Similarly, Ms. Simonar stated that she lives in fear of Mr. Lidstone because, in the summer of 2018, Ms. Aubertin told Ms. Simonar that Mr. Lidstone said he was going to dismember Ms. Simonar’s body and burn it. This is an important piece of evidence considering the issues before the court, yet again Ms. Simonar chose not to call Ms. Aubertin as a witness. Such failure is an implied admission that Ms. Aubertin’s evidence would not support Ms. Simonar’s statement.

[47] Ms. Simonar reported the alleged threat to the Ontario Provincial Police (the “OPP”). The detailed synopsis of the OPP officer records that on June 24, 2018, Ms. Simonar attended the OPP attachment to report what she felt was a death threat from Mr. Lidstone. “Officer Mulroney contacted Jenny Aubertin and was informed that …the threat was not against Chrystal Simonar, the threat was strictly that [Mr. Lidstone] knew how to get rid of a body by cutting it up, burning it and disposing of the ashes in the river.” The OPP marked the incident report as unfounded.

[48] Mr. Lidstone testified that the conversation took place between himself and Ms. Aubertin because they were binge-watching a show called Forensic Files. His evidence is that he knows it sounds bad, but as a result of the show the couple, who were still dating at the time, had a non-serious playful exchange about what they both thought was the best way to dispose of a body.

[49] Without Ms. Aubertin’s evidence, the only direct evidence the court has about the events of June 20, 2018 and the alleged threatening statement is that of Mr. Lidstone. I have no reason to doubt Mr. Lidstone’s credibility in this regard and I accept, as fact, his description of the events of June 20, 2018 and his denial and explanation of the alleged threatening statement. Considering his evidence in light of the investigation and testimony from Ms. Peterson, I am not satisfied that the incident of June 20, 2018 is relevant to Mr. Lidstone’s ongoing ability to parent.

[50] In December 2018, Mr. Lidstone took the children to Florida. Ms. Simonar did not know where they were staying. In cross examination, Ms. Simonar admitted that she was given thirty-days’ notice of the vacation and provided with an address in Marco Island, Florida; the vacation was during Mr. Lidstone’s parenting time as agreed in the initial order; and that she spoke to both children by telephone while they were driving to their destination in Marco Island.

[51] Ms. Simonar is certain that if Mr. Lidstone was granted sole custody, he and his family would ensure that she would be eliminated from the children’s lives.

[52] Ms. Simonar primarily focused her testimony on laying blame on Mr. Lidstone for the conflict that exists between the parents and alleging conduct by Mr. Lidstone that would reflect negatively on his ability to parent. Very little of her testimony related to the needs of the children or a concern for them given their exposure to the parents’ conflict. In closing submissions, Ms. Simonar asked that she be allowed to relocate with the children as limited contact with Mr. Lidstone and his family would allow her to heal.

[53] In contrast, Mr. Lidstone spent the majority of his time before the court describing his concerns for the children, who are caught in the middle of their parents’ conflict. He accepted his part in the conflict and expressed a demonstrated commitment to shield the children from it. In closing submissions, he asked the court to make an order that would protect the children from the stress he sees them experience when their parents are together.

Mr. Lidstone’s Evidence

[54] Mr. Lidstone’s narrative is that he is deeply concerned about the welfare of his children, who are continually exposed to conflict between their parents during transitions. He does not understand why Ms. Simonar insists on transferring the children at a coffee shop instead of at school, as set out in the initial order. Mr. Lidstone feels that he has been denied access to his children by Ms. Simonar because he is gainfully employed and has been the subject of repeated unfounded allegations made by her to various authorities. Acting in the best interests of his children, he walks away from confrontations and chooses not to attend the children’s activities so they will not be exposed to the conflict.

[55] Unless otherwise stated, the following represents the testimony of Mr. Lidstone.

[56] Mr. Lidstone has a warm and loving relationship with his children. They have lived with him since birth and they share everything with him. The children love staying at his home and always ask to stay longer. A typical day when he is not working begins with getting the children out of bed, making their breakfast, driving them to school or bringing them to the bus. Their lunches are packed with their help the night before. Mr. Lidstone picks them up at school or receives them from the bus. He helps them with their homework and often takes them to the park near their home. Nora reads to him before bedtime.

[57] Mr. Lidstone and the children enjoy many activities together. They bike, hike and play tennis and baseball together. They spend a lot of time at the beach in the summer or at his family cottage just outside of the city. He bought the children a dog in October 2018, and they walk the dog together. The children are responsible for taking care of the dog, feeding her and taking her out. They also take care of the family bird. Mr. Lidstone tries to instill a sense of independence and responsibility in the children. He looks for every teachable moment and informs them about things like the environment and trivia. He recently re-wired his home and taught the children how to test for electricity. Mr. Lidstone’s priority is to raise his children with good values, a good education and a good work ethic.

[58] Mr. Lidstone does not approve of Nora having a Facebook and Instagram page at only nine years old. Ms. Simonar signed Nora up for these accounts using her email address. The best Mr. Lidstone can do in the circumstances is monitor the accounts for inappropriate material. He has deleted some of Nora’s contacts as they were posting about anorexia, drugs and inappropriate conduct.

[59] The children have a large extended family in Sault Ste. Marie. Although his parents are divorced and re-married, everyone gets along and gets together for important family events and holidays. Mr. Lidstone’s home has an in-law suite where his mother lives with her husband. His father and his father’s wife live in the city and spend a great deal of time with the children. The children have five cousins in the city with whom they are very close, and a sixth is on its way. They have aunts and uncles who are also very close to the children as are their second cousins. Mr. Lidstone’s paternal grandparents are also in Sault Ste. Marie. The children have a special relationship with them.

[60] Mr. Lidstone is an electrician. He is presently employed at Tenaris. He has a great reputation at work. Tenaris recently laid off a number of employees. Concerned about the security of his employment, Mr. Lidstone applied for and was offered a position at Algoma Steel, starting in May 2019. In June 2019, he is setting out to achieve his Master’s electrician license. It is important to him that he remains gainfully employed to provide for his children.

[61] When Mr. Lidstone is working, he has tremendous support for the children. His mother lives with him and is there to assist the children in the morning before school. His father has a flexible work schedule and is always available to help out if required. Mr. Lidstone is done work before the children are done with school but if something comes up and he is required to work overtime, he can call on his mother or father to help pick up the children from school at any time.

[62] Mr. Lidstone is concerned that Ms. Simonar is attempting to portray him as abusive and difficult. This is not true. He respects the fact that she is the children’s mother. He tries to respect her day-to-day decisions during her parenting time and, most significantly, he will not put the children in the middle of their conflict.

[63] Mr. Lidstone has made mistakes. He made the password “parasite” for his first e-transfer of spousal support to Ms. Simonar in January 2018. He regretted it as soon as he did it and knew it was wrong. It did not happen again. Mr. Lidstone has said things in anger and frustration that he should not have. He has since received counselling for this, both through work and with a psychologist, and has been handling the stress much better.

[64] The parties started having problems co-parenting shortly after the initial order. Ms. Simonar was taking the children by train to Cold Lake for the holidays, as agreed in the initial order. On the day they left, Mr. Lidstone received a call from Nora. She started screaming. The phone went dead. Ms. Simonar’s sister then called back to inform him that Nora was being rushed to a hospital because she spilled hot water on her leg. Despite repeated requests, he was not provided details of the injury for a couple of days. Ms. Simonar refused to take a photo of Nora’s injuries to send to Mr. Lidstone, as she said there was no space on her phone available to do so. Ms. Simonar told him that Nora spilled hot water on herself because she got distracted while on the phone with him. She implied it was his fault Nora was injured. Mr. Lidstone was frustrated. His daughter was severely injured and he was not getting any details of the injury from Ms. Simonar. In anger, he called her “a piece of shit.” He knows that was wrong and unhelpful.

[65] Shortly after Ms. Simonar arrived home from Cold Lake, less than a month following the initial order, she informed Mr. Lidstone that she would not take Henry to school during her parenting time. She explained that she was not working, Henry was in senior kindergarten and she did not require child care. Henry was in French immersion and receiving speech therapy at school. By correspondence dated January 29, 2018, the Superintendent of Education for the Algoma District School Board advised the parents that it was not in Henry’s “best interest to be missing half of his French immersion program.” Ms. Simonar nonetheless chose to keep Henry at home from school during her parenting time.

[66] Attendance issues commenced at this time for both children. By correspondence dated May 7, 2018, Carrie Vaz, the children’s principal advised the parents that Nora had been absent 22 days and late 13 days out of 151 school days in the current year. Ms. Vaz advised she “was concerned that Nora’s sporadic absence from school will jeopardize the opportunity for success this year.” A similar letter was sent by Ms. Vaz on June 1, 2018, noting that of the 168 school days, Nora had been absent 28 days and late 14 days, and that the excuse given for several of her absences was that she was out of town. Ms. Simonar admitted in cross examination that most of these absences were during her parenting time. She allowed the children to stay home if they were tired and she removed them from school to travel.

[67] Ms. Simonar continued to keep the children out of school during the 2018/2019 academic year. By correspondence dated October 30, 2018, Ms. Vaz advised the parents that Henry had been absent ten days and late three days out of the 36 school days of the current school year. By correspondence dated February 28, 2019, she advised the parents that Nora had been absent 22 days and late 15 days out of the 110 school days in the current school year, and Henry had been absent 34.5 days and late 13 days out of the 110 school days in the current school year. Mr. Lidstone does not understand why Ms. Simonar permits the children to stay home from school so frequently during her parenting time and chooses to travel with them outside of the school break. While the children are smart and doing well in school, Nora’s progress report for grade three notes that she seldom achieves the results she is capable of as a result of her absenteeism and she often has to stay in during recess to catch up on the work she missed.

[68] Mr. Lidstone called Ms. Vaz to testify on his behalf at this trial. Ms. Vaz confirmed that the majority of absences and late arrivals at school occur when the children are in their mother’s care. Her concern is that cumulative absences over time would have an impact on the children’s academic achievement. She has expressed this concern to Ms. Simonar. Ms. Vaz also confirmed that Nora often has to miss recess to get caught up on work.

[69] While in Mr. Lidstone’s care, the children do not show any stress or anxiety about attending school. As recently as February 2018, he attended a meeting with members of the school board and Ms. Vaz to discuss how to improve the children’s attendance. He signed a consent form at that meeting for the children to attend counselling.

[70] Mr. Lidstone also met with Ms. Vaz separately as Ms. Simonar advised him that the children had anxiety about attending school. Ms. Vaz testified that the children did not exhibit such behavior while at school and that her only concern was their sporadic attendance. While Henry did throw up once at school, there was no evidence to suggest he made himself do so. Henry also told his father that he did not force himself to throw up at school.

[71] In her testimony, Ms. Vaz confirmed that the children are happy at school. They have many friends and are observed smiling and engaged in learning.

[72] The only time Mr. Lidstone sees the children show signs of stress and anxiety is when he and Ms. Simonar are together. To this end, he has tried to limit their time together. He does not attend the children’s activities when Ms. Simonar is there, as he does not want the children to see the palpable conflict between their parents.

[73] Ms. Simonar refuses to transition the children at school, which would allow the parents to avoid contact with each other. She insists that they see each other to exchange the children. Mr. Lidstone cannot understand why she insists on this as the children are clearly stressed during these occasions. Ms. Simonar does not transition the children freely. Often, she holds them in the car and only releases them after Mr. Lidstone answers pointed questions directed at him by her. When he answers all her questions, she releases the children to him and often comments “see kids, that’s called communication.” Ms. Simonar is often late by up to 45 minutes to the access point and she changes the access point at her discretion at the last minute. Ms. Simonar testified that Mr. Lidstone changes the access point at times as well.

[74] After the initial order, Mr. Lidstone’s work schedule changed from 7 am-3 pm Monday – Friday to 12-hour shifts for four or five days in a row, followed by four or five days off in a row. He asked Ms. Simonar if he could have parenting time with the children on his days off instead of a week about schedule, as set out in the initial order, as it would still amount to equal time. She did not agree. On November 2, 2018, Justice McMillan made an endorsement noting that the parties had agreed that Mr. Lidstone would have the children on his days off, while Ms. Simonar would have the children while he was working.

[75] Ms. Simonar felt that Justice McMillian’s order permitted her to have the children the night before Mr. Lidstone was to go to work. Mr. Lidstone disagreed, but he conceded this point for the benefit of the children. For example, Mr. Lidstone took the children to their Thursday evening gymnastics class, as he had the day off and had the children. He was scheduled to work on Friday and planned to bring the children to school Friday morning for Ms. Simonar to pick them up at the end of the day. Instead, Ms. Simonar attended gymnastics on Thursday evening. She told the children “you are coming with me” and grabbed them. They did not have their back packs for school the next day. Mr. Lidstone walked away so as not to create further stress for the children.

[76] Mr. Lidstone will not attend the children’s activities if Ms. Simonar is there. She has accused him of being abusive in front of the children. When he has been in the hockey dressing room with Henry, she has come in and told him to move because he was not putting on Henry’s equipment correctly. Mr. Lidstone refuses to expose the children to this conflict. It is better for the children that he does not attend when Ms. Simonar attends.

[77] Ms. Simonar has put the children in an excessive number of extra- curricular activities without Mr. Lidstone’s consent. She then chastises Mr. Lidstone for not bringing the children to their activities during his parenting time. Mr. Lidstone believes that extra-curricular activities are important but the children are involved in way too many. They have no down time. He is agreeable for them to have one or two activities each of their choosing. Mr. Lidstone was not taking the children to dance or hockey during his time as he did not consent to these activities. When he realized how important they were to the children and how much they enjoyed these activities, he made an effort to ensure their attendance.

[78] Mr. Lidstone can tell at every exchange when the parents are together that the children are stressed. He is significantly concerned about this and attempts to alleviate the stress, even if that means sacrificing his parenting time. One Friday, he attended at school to pick up the children and Ms. Simonar was there. He asked her about her schedule. She said that this constituted verbal abuse and yelled “domestic violence” three times in front of the children. She told the children they were not going with Mr. Lidstone. He walked away and permitted them to go with Ms. Simonar. Ms. Simonar denies that she yelled “domestic violence”.

[79] Pursuant to the initial order, Mr. Lidstone was to have the children over the holidays in 2018, from December 16, 2018 – January 8, 2019. He gave Ms. Simonar thirty-days notice of his intention to take them to Marco Island in Florida. The children were to be staying in a rented home with his extended family, including his dad and his spouse, his sister and brother and their families and his uncle. His family organized the trip around the parenting time available to Mr. Lidstone pursuant to the initial order. Mr. Lidstone provided Ms. Simonar with the address of the home in Marco Island.

[80] When it was time to leave on the trip, Ms. Simonar did not take the children to school for Mr. Lidstone to pick them up. She withheld the children from Mr. Lidstone. She did so for three days. She testified that this was an oversight on her part. Mr. Lidstone and the children began their trip to Florida on December 21, 2018. On the same day, Ms. Simonar filed a motion alleging that Mr. Lidstone took the children to a country without an extradition treaty, that he secretly obtained passports for them and that he was violent with the children. Ms. Simonar sent him messages saying that the police were looking for him. Ms. Simonar sent the police to the address in Marco Island, but Mr. Lidstone had not arrived there yet as he and the children drove to Marco Island, staying in hotels in Sarasota and Daytona along the way. He did not provide Ms. Simonar with the addresses of the hotels as he was afraid that she was going to do something like call the police and the children would be exposed to his interaction with the police. If this was going to happen, he wanted to wait until he was with his family in Marco Island so the family would be there for the children should anything happen with him and the police. Mr. Lidstone nonetheless ensured that the children phoned Ms. Simonar every few days while they were travelling to Marco Island, including on Christmas Day.

[81] In January 2019, Mr. Lidstone’s work schedule changed back to 7 am-3 pm Monday-Friday, consistent with what was in place at the time of the initial order. Ms. Simonar has nonetheless denied Mr. Lidstone equal parenting time in accordance with the initial order and in accordance with the spirit of the parties’ agreement on November 2, 2018. Rather, she claims that as the November agreement states that she has the children when Mr. Lidstone is working and as Mr. Lidstone works Monday – Friday, he can only see them after 3 pm or before 7 am on week days or on the week-ends around their scheduled activities. She has stopped allowing him to regularly pick the children up or drop them off at school and she has not allowed him to have the children’s school back packs. At times, if she permits an overnight, she directs him to drop the children off to her at a coffee shop at 6:30am before he goes to work, instead of having his mother put them on the bus to school. In reality, Mr. Lidstone’s parenting time has been limited to week-ends when the children’s days are filled with extra-curricular activities and there is very little time to spend together as a family. During the week-end, Ms. Simonar insists that he meet her at a coffee shop and transition the children so she can bring them to their extra-curricular activities that she enrolled them in without his consent.

[82] In my view, Ms. Simonar’s interpretation of the November 2018 agreement is incorrect and contrary to the best interests of the children. The November agreement was obviously meant to honour the initial order of equal parenting time while recognizing that Mr. Lidstone’s work schedule had changed from straight days to shift work. It was never meant to restrict Mr. Lidstone’s parenting time to the week-ends should his schedule change back to straight days. It certainly was not meant to result in the children being transitioned at a coffee shop at 6:30 in the morning. Ms. Simonar has used the specific language of the agreement in such a way that denies the spirit of the agreement, the clear language of the initial order and the consistency for the children to have shared parenting time. In doing so, she relegated the transitions to public places instead of the school, exposing the children to the hostility between their parents.

[83] On January 26, 2019, Ms. Simonar called the CAS and reported concerns about Mr. Lidstone’s parenting, as he had given Henry a haircut. The investigation was assigned to Ms. Kim Bauer, a child protection worker with the CAS since 2001. Ms. Bauer testified that she conducted a private interview with Henry at school. Henry reported no concerns with respect to his haircut. Ms. Simonar testified that as the interview took place a month after the haircut, his hair had grown in and he was now fine with it. Ms. Bauer also asked Henry if he was making himself throw up at school. Henry told her that he threw up at school once because he ate too much at lunch. He said that at no time did he make himself throw up.

[84] On February 26, 2019, Ms. Simonar informed Mr. Lidstone that she believed Nora was being sexually assaulted, that the CAS was investigating and that Nora had an appointment at a sexual assault centre a few days later. Ms. Simonar told him that, since returning from Florida with her father around February 7, 2019, Nora had been having “black- out” temper tantrums where she would hold her vagina and yell “ouch, ouch, ouch”. Ms. Simonar told this to Mr. Lidstone in front of her lawyer at a court attendance related to this motion. He believed that she was implying that Mr. Lidstone could be sexually assaulting Nora.

[85] Mr. Lidstone was devastated. He had not seen Nora exhibit such behavior. He immediately contacted Kim Bauer.

[86] Kim Bauer testified that on February 22, 2019, Ms. Simonar reported that Nora had been having temper tantrums, touching her vagina and saying “ouch, ouch”. She did not accuse any one person of sexually assaulting Nora. Ms. Bauer interviewed Nora privately at school. She was late to school that day, having stayed with her mom the night before. When asked why she was late, Nora said that she is often late to school as she is tired, does not get up early enough and runs out of time in the morning. Ms. Bauer, as a matter of procedure, asked if Nora’s parents drink alcohol. She said that her mom drinks wine and her dad drinks beer but their behaviour does not change when they drink. When asked about sexual touching Nora told Ms. Bauer that no one is allowed to touch her private parts. No one has touched her private parts and that if it did happen she would tell her mom and dad. Ms. Bauer was satisfied that there had been no sexual touching.

[87] In her examination in chief, Ms. Simonar did not testify to her observations of Nora’s behavior as described above. She made no mention of any concern of sexual abuse in her evidence. Rather, the court was informed of this for the first time by Mr. Lidstone in his examination in chief. The court is being asked to make an important decision on the best interests of the children. It defies logic as to why Ms. Simonar did not feel that this incident involving Nora and the CAS was relevant.

[88] Later on the day that Ms. Simonar informed Mr. Lidstone of her belief that Nora was being sexually assaulted, Mr. Lidstone messaged Ms. Simonar to see if the children could attend his mother’s 60th birthday dinner. He contacted her in the afternoon. She did not respond, so he attended at the school to see if he could take the children to the dinner. She refused. He asked why the children could not come to the birthday dinner. Ms. Simonar responded by saying “I know you were triggered today”, referring to her earlier implications that he was sexually assaulting Nora. Mr. Lidstone left without the children in an effort to diffuse their stress.

[89] Ms. Bauer testified that Nora spoke to her about this incident, as it happened the day before their interview. Nora told Ms. Bauer that her dad was picking her and Henry up from school to take them to their grandma’s birthday dinner but their mother would not let them go. After their parents argued, she and Henry went with their mom. Nora told Ms. Bauer that she cried because she does not like to see her parents arguing.

[90] Mr. Lidstone is very concerned about Ms. Simonar’s refusal to have the children vaccinated. The progress reports from Henry’s family physician dated November 6, 2018 reflect the doctor’s communications with Ms. Simonar. Dr. Bishop writes “[Henry] is behind on his immunizations as mother has chosen not to vaccinate him. I did talk to her again about the fact there is no real evidence with regards to harm and immunizations. Significant evidence with regards to the benefits of protecting against very serious diseases which could even be fatal or have long-terms consequences. She still does not want to have any vaccinations completed.”

[91] Mr. Lidstone believes that the children should be vaccinated in accordance with their doctor’s advice.

[92] Mr. Lidstone changed the children’s dentist because Ms. Simonar would call the previous dentist to find out when the children’s appointments were, and would attend them during his parenting time to see him and the children. This created conflict and stress for the children. The children’s dental records are available to her from the new dentist, but the new dentist does not tell her when Mr. Lidstone is bringing in the children.

[93] Mr. Lidstone never blocks communications between the children and their mother. He always asks them if they want to call their mom. Often times, they see that she is calling and they ask him not to answer it. This is because Ms. Simonar grills them on what they are doing and then criticizes their father. For example, when Mr. Lidstone packs a lunch for the children, Ms. Simonar will bring her own lunch to them at school. She tells them that their dad dresses them in dirty clothes and they should not have to take the bus to school from Mr. Lidstone’s home when she could drive them.

[94] Mr. Lidstone is visibly worried about the impact of the parents’ conflict on the children. The children have falsely been told by Ms. Simonar that he abused her and them and that his side of the family does not love them. It makes him sick to think about Ms. Simonar wanting to take the children to Creating Connections and expose them to children talking about domestic violence when they have never been previously exposed to it. The children have talked to more CAS workers than any child should have to in a lifetime. Ms. Simonar calls the CAS for something as simple as him giving Henry a haircut or Nora helping to wash the dog in a tub. Mr. Lidstone has continued to keep the children in counselling offered through AFS and the school.

[95] Mr. Lidstone is concerned about how being away from their father and living in Cold Lake would affect the children. They would not see their dad or his extended family as they have come to expect. They would be removed from their friends and their school. Ms. Simonar has taken active steps to prevent his parenting time in Sault Ste. Marie and she refuses to permit his family to pick up the children. The distance would only enhance this conduct. Mr. Lidstone is further concerned that the children would not see their mother regularly if she got a job. Since he has known Ms. Simonar she has never worked in a town or a city. She has always worked in isolated remote camps around Alberta. If the children are to be with their mother while she is working remotely, they may have to be taken out of school altogether. He is also worried about children’s exposure to two of Ms. Simonar’s siblings who have documented drug problems and many criminal charges.

[96] Mr. Lidstone’s biggest fear if the children move to Cold Lake is that they will not have a relationship with their father until they are adults. He believes that he can have a positive impact on their lives. The children are very happy in Sault Ste. Marie. As long as they are here he will work hard to ensure that they grow up to be successful adults. If he thought the children would have a better life in Cold Lake, he would not oppose the move. Mr. Lidstone truly believes that it is in the children’s best interests that they remain in Sault Ste. Marie.

Other Evidence on Parenting and Mobility Issues

Barbara Simonar

[97] Ms. Simonar called her mother Barbara to give evidence on her behalf. Barbara testified as follows.

[98] The parents stayed with Barbara in her home in Cold Lake on and off over the course of five or six years. After the parents moved to Sault Ste. Marie she visited often. She has a close relationship with her grandchildren. She was present for both of their births and has cared for them on her own many times and for extended periods.

[99] On March 24, 2018, she attended at Mr. Lidstone’s property to pick up Nora for a dance rehearsal. When she approached the door, he yelled out the window “Get off of my f****** property.”

[100] On April 5, 2018, she overheard a telephone conversation between Mr. Lidstone and the children, during which Mr. Lidstone began talking to Ms. Simonar through Nora and asked Nora to tell him if anyone was questioning her. Mr. Lidstone then talked to Henry and called his maternal uncle a “dud.”

[101] Barbara’s home in Cold Lake is welcoming for the children. She has told Ms. Simonar that her home is open to her and the children. They have talked about Ms. Simonar purchasing her home or Barbara gifting it to her.

[102] Barbara’s home has designated rooms for the children, with clothes in the drawers and crafts in the cupboards. There are many activities for the children to become involved in, including boating, gymnastics, dance, music and riding ponies. The children will have the opportunity to participate in both Ukrainian and Métis cultural activities.

[103] The children have many relatives in Cold Lake and the surrounding areas with whom they have warm relationships. Barbara’s son Caleb, who is 23 years old, lives with her. He is close to the children and will be available to assist them with transportation and child care. Her partner “Papa” Henry provided financial support to the children and welcomes them for fun activities on the farm. Barbara’s daughter Brandy, who is 19 years old, is a dance instructor in Cold Lake. She too would assist with child care as required. The children’s paternal great-grandfather also resides in Cold Lake.

[104] The children also have many relatives in surrounding areas, including great aunts and uncles and a great-grandparent. Barbara’s son Jeremiah, his wife and two small children live in Edmonton, three hours away from Cold Lake. The children are close with their cousins.

[105] The children have two cousins ages 10 and 14 in Cold Lake. Ms. Simonar’s brother is the father. He lives seven hours south of Cold Lake. The cousins’ primary parent denied Barbara and the Simonar family access to the cousins. Barbara applied for contact with her grandchildren, but her application was dismissed by Justice Gill of the Court of Queen’s Bench of Alberta on February 21, 2019. Since the application, however, she has been able to see the grandchildren for a few hours every two weeks or so, depending on the primary parent’s schedule.

[106] Barbara believes there are many job opportunities for Ms. Simonar in Alberta. She is not sure about the opportunities in Cold Lake specifically.

[107] If Mr. Lidstone is granted sole custody, Barbara fears that he will cut Ms. Simonar and her family from the children’s lives. She believes children have the right to love both families and be loved by both families. It is important for their development to have contact with both families.

Samantha Boyer

[108] Ms. Simonar called Samantha Boyer to give evidence on her behalf. She testified as follows.

[109] Ms. Boyer met Ms. Simonar in 2016 when she attended distraught at the Indian Friendship Centre. Ms. Boyer’s role at the Indian Friendship Centre is to assist Indigenous people with the court system. Ms. Simonar advised her that she was originally from Alberta but was forced to return to Sault Ste. Marie because of an interim court order granting Mr. Lidstone sole custody (this was before the date of the initial order). Her legal aid lawyer was not calling her back, so Ms. Boyer assisted Ms. Simonar with drafting and filing a motion for access. They have since developed a strong friendship and Ms. Boyer has continued to assist Ms. Simonar in navigating the court process.

[110] Ms. Simonar called her in tears on June 21, 2018, after she learned about the incident between Mr. Lidstone and Ms. Aubertin. She was on her way to the police station and had the children with her. Ms. Boyer attended the police station. The police advised them that there was nothing they could do and suggested they call the CAS. They decided to go directly to the CAS, although the children did not want to go.

[111] Ms. Simonar is nothing less than a loving, devoted, dedicated mom. Everything she does is for her children. After countless interactions, Ms. Boyer has never seen Ms. Simonar lose her patience with her children. She looks for every opportunity to ensure the kids attend the best events and activities. Everything Ms. Simonar does is focused on ensuring her children’s emotional and physical well-being.

[112] When asked about any incidents that would cause her to question Mr. Lidstone’s ability to parent, Ms. Boyer recalled only one incident wherein both children were unhappy with their haircuts.

[113] Ms. Boyer believes that if Mr. Lidstone was granted decision-making, the children would no longer be involved in their extra-curricular activities.

[114] Ms. Boyer has not seen Mr. Lidstone interact with his children, except for one occasion long before the initial order when, during a transition, he spontaneously reminded Ms. Simonar about civility. She has also overheard phone conversations between the parties wherein Mr. Lidstone has called Ms. Simonar names.

Charmaine Parenteau

[115] Ms. Simonar called Ms. Parenteau to give evidence on her behalf. She provided video testimony as follows.

[116] Ms. Parenteau has been an officer with the RCMP for fifteen years. She is presently stationed in Yellowknife, Northwest Territories. Ms. Simonar met Ms. Parenteau in school nineteen years ago and they have been friends and confidants ever since.

[117] Ms. Parenteau has no doubt that Ms. Simonar is a great parent. She has an excellent ability to parent her children. Ms. Parenteau recently witnessed Ms. Simonar encouraging the children to call their father while they were travelling and she has never heard Ms. Simonar say anything disdainful about Mr. Lidstone in front of the children.

[118] Ms. Parenteau believes that Mr. Lidstone hates Ms. Simonar and it is this hatred that clouds his ability to make decisions in the best interests of the children. Rather, his decisions are meant to hurt Ms. Simonar. Ms. Parenteau’s basis for this belief is the information provided to her by Ms. Simonar. Ms. Parenteau has never witnessed Mr. Lidstone with the children. She has not been in his presence subsequent to the initial order.

The Sault Ste. Marie Police Services

[119] Ms. Simonar summoned two Constables from the Sault Ste. Marie Police Services to testify on her behalf. Both Constables referred to their notes to provide the court with details of a complaint made to them by Ms. Simonar that required no substantive action.

February 19, 2019

[120] On February 19, 2019, Ms. Simonar attended the police station and spoke with Constable Turco. She advised that the children were with their paternal grandmother and Mr. Lidstone was working. She felt that pursuant to a court order the children should be with her. Constable Turco called the paternal grandmother. She had no concerns about the safety of the children.

[121] Nancy Fairburn, Mr. Lidstone’s mother, gave evidence on behalf of her son. She testified that the children were not able to go to school on February 19, 2019 because of a water main break. She kept the children at their dad’s home, at his request, and cared for them. Ms. Simonar kept calling and texting her. She eventually blocked Ms. Simonar’s number as she believed this was a matter for the parents to sort out. She was receiving her directions from Mr. Lidstone.

[122] Ms. Fairburn further testified that she received a call from Constable Turco. Constable Turco had read the November 2018 agreement between the parents, and noted that because of Mr. Lidstone’s shift work, the parents had agreed that he would have parenting time when he was not working and that Ms. Simonar would have parenting time when he was working. Ms. Simonar told the police that as Mr. Lidstone was working (at that time days from 7am-3pm, rather than shift work) the agreement meant that she should have the children. Ms. Fairburn testified that she asked the officer what she wanted her to do. The police officer told her that she was not telling her what to do and that the language of the agreement was vague.

[123] Ms. Fairburn told the court that she received an unfriendly voicemail from Ms. Simonar later that day telling her that she was at a restaurant and strongly urging her to bring the children to her, as she “heard what the police officer said.” Ms. Fairburn kept the children, reasoning that the police officer did not tell her to return the children to Ms. Simonar and she was receiving directions from Mr. Lidstone.

March 3, 2019

[124] On March 3, 2019, Ms. Simonar returned to the police station. She spoke with Constable Kellar and advised him that Mr. Lidstone was refusing to transition the children to her as scheduled. Constable Kellar called Mr. Lidstone. Mr. Lidstone told him he had kept the children because Ms. Simonar wanted the children to stay with her at a home he was not familiar with and he had concerns about its cleanliness. Constable Kellar felt no need to take further action.

[125] Mr. Lidstone testified that, during his parenting time over the first week-end in March 2019, the children told him that they were going to spend the week 20 minutes out of town in an unfamiliar home with Ms. Simonar and an adult male unknown to him and his children. Ms. Simonar was waiting to move into her rented home and the children were living out of boxes. They did not have their own room in this unfamiliar home. When the children were with him over the week-end, the children did not have their own jackets or hats and Henry was wearing clothes that were too small for him. He did not feel comfortable with the children staying at this unknown place without their belongings, with an adult male who he did not know. He was particularly troubled because it was only a few days earlier that Ms. Simonar had informed him that she believed Nora was being sexually assaulted. Mr. Lidstone told Ms. Simonar that he would keep the children for the week until she was settled in the new place. Ms. Simonar said that she did not agree and that she would call the police. She spoke with Constable Kellar. Mr. Lidstone brought the children to school on Monday morning. Ms. Simonar arrived prior to the end of the school day to pick up the children.

Lisa Peterson

[126] Ms. Simonar called Ms. Peterson to give evidence on her behalf.

[127] Ms. Peterson is a child protection worker with the CAS. She became involved with the issues between the parents in March 2018.

[128] In January 2018, Mr. Lidstone called the CAS. He was concerned because Ms. Simonar removed Henry from senior kindergarten where he had been attending regularly and receiving speech therapy. He was concerned about Henry’s routine being disrupted, and the effect of his absence on his French language training and speech therapy. Karen Barbeau, a child protection worker in the intake department of the CAS received and investigated the concern. Ms. Simonar advised the CAS that she did not believe Henry needed to be in school as kindergarten was not mandatory. The CAS determined that Nora had also missed a lot of school. Ms. Simonar advised the CAS that she felt travel provided a better educational experience for Nora. The CAS concluded that the parents were unable to communicate in a healthy way to meet the basic medical and educational needs of their children. This was the CAS’s primary concern.

[129] Because of this concern, the file was transferred to Ms. Peterson. Ms. Simonar did not cooperate with the CAS’s efforts to investigate their concern. She refused a home visit and she refused to provide her consent to permit the CAS to interview the children. Mr. Lidstone was entirely cooperative, including providing access to his home. His home was deemed appropriate for the children with no concerns about the living conditions.

[130] The investigation was fruitless without a home visit with Ms. Simonar and private interviews with the children. The children were not demonstrating immediate signs of trauma, so there was no need to exercise child protection powers. There was a clear indication of the inability to co-parent. Given Ms. Simonar’s refusal to participate in the process, however, the investigation into the concerns articulated by the CAS could not continue and the file was closed.

[131] Despite her lack of cooperation with the CAS’s process, Ms. Simonar continued to intermittently contact the CAS and report Mr. Lidstone’s conduct. In February 2018, she reported that the children were looking at pictures on Mr. Lidstone’s phone when they saw a picture of a half-naked woman. Ms. Peterson spoke to Nora. Nora described the incident as an accident. She told Ms. Peterson that her dad explained to her that they were not supposed to see the photo and that it was meant for adults. Ms. Peterson did not feel that any further action was required.

[132] Ms. Peterson testified that she continued to explain to Ms. Simonar that the real harm to the children is the parents’ conflict and their inability to communicate and co-parent. She continued to ask Ms. Simonar if she would work cooperatively with the CAS to minimize the risk of harm to the children. Ms. Simonar continued to refuse. She remained uncooperative. She focused only on Mr. Lidstone’s conduct, while challenging the CAS’s efforts to minimize the risk of harm to the children.

[133] It was in this context that Ms. Simonar attended at the CAS on June 21, 2018, the morning after Ms. Aubertin called Ms. Simonar to pick up the children from Mr. Lidstone’s residence and Mr. Lidstone was charged with assault. On this morning, Ms. Simonar permitted the children to speak privately to Ms. Peterson. Upon speaking privately with the children, Ms. Peterson concluded the children were not exposed to violence or alcohol on June 20, 2018 and had no concerns over their father’s care. Upon further investigation, including speaking to the parents, Ms. Peterson concluded that the children were not unsafe in the care of their father. Ms. Simonar did not accept this conclusion.

[134] Ms. Simonar phoned Ms. Peterson on July 18, 2018 to further express her dissatisfaction. During this call, Ms. Simonar challenged the process of the CAS, talked over her and was argumentative. Ultimately, after giving sufficient warnings, Ms. Peterson was forced to terminate the call.

[135] After the file was closed as a direct result of her failure to cooperate, Ms. Simonar contacted the CAS in September 2018. She complained that Mr. Lidstone had allowed Nora to bathe with her dog. She felt this was inappropriate, but Mr. Lidstone did not agree. Intake at CAS advised her that this did not meet the threshold for their involvement. Mr. Lidstone testified that Nora did not bathe with the dog. She helped him bathe the dog in the bathtub.

Karen Barbeau

[136] Ms. Simonar called Ms. Barbeau to give evidence on her behalf. Her testimony is as follows.

[137] Ms. Barbeau is a child protection worker with the CAS. She became involved with the issues between the parents in October 2016.

[138] In January 2018, Ms. Barbeau was working in the intake department and received Mr. Lidstone’s complaint about Ms. Simonar’s decision to permanently remove Henry from kindergarten, and consequently speech therapy. She investigated the issue prior to transferring the file to Ms. Peterson.

[139] Upon transferring the file to Ms. Peterson, Ms. Barbeau informed Ms. Peterson of her opinion that Ms. Simonar was suffering from an undiagnosed mental illness. She is not medically qualified to make this diagnosis nor was she in possession of documentation from a qualified medical practitioner to substantiate the statement.

[140] Ms. Simonar asked Ms. Barbeau about the basis of her statement. She stated that her statement was founded upon her interactions with Ms. Simonar both historical and in 2018, as well as reports made to her from third parties that caused her to question Ms. Simonar’s mental health. For example:

1. In October 2016, a child protection worker, Wendy McKenzie, met with Ms. Simonar. After meeting with her, Ms. McKenzie expressed some concerns about Ms. Simonar’s mental health.

2. In October 2016, Ms. Barbeau viewed a video of Ms. Simonar taken by Mr. Lidstone. The video showed Ms. Simonar screaming, yelling and throwing things around in an aggressive manner. Nora was in the room at the time. Mr. Lidstone explained that Ms. Simonar was extremely upset because he went grocery shopping even though she wanted to go grocery shopping. When questioned about the video, Ms. Simonar stated that Mr. Lidstone must have done something to set her off.

3. In October 2016, Mr. Lidstone informed Ms. Barbeau that Ms. Simonar has a short temper and is easily angered. Her family has a history of issues with mental health and addiction. He further stated that Ms. Simonar told the children that the CAS would take them away. Nora told him that she believed Wendy McKenzie was going to take her and Henry away.

4. Ms. Simonar reported to Ms. Barbeau that the children had been sick for a month and was adamant that they see a doctor that day. Ms. Barbeau spoke to Mr. Lidstone. He confirmed the children had colds. She further spoke to the children’s teacher, who advised that children only had the sniffles.

5. In 2018, Ms. Barbeau spoke with the children’s principal at the time. She described Ms. Simonar as manipulative, smart and someone who plays games and cannot be trusted. Ms. Simonar stated that the principal at the time is a friend of Mr. Lidstone’s father. Mr. Lidstone’s father, Graham, testified that this is not true. He has attended meetings at the school with his son concerning the children, but does not otherwise know the past principal and is certainly not friends with her. I have no reason to doubt Graham’s evidence.

[141] Ms. Barbeau does not believe that her statement on Ms. Simonar’s mental health impacted Ms. Peterson’s investigation. Ms. Peterson is her own person, who conducted her own investigation and rendered her own assessments.

Kim Bauer

[142] As noted above, Mr. Lidstone called Ms. Bauer to provide evidence on his behalf. Further to what is summarized above, her testimony is as follows.

[143] Further to her investigation commenced in January and February 2019, Ms. Bauer visited both of the parents’ homes with the children present. She had no concerns with the home, the parents’ care or their respective interactions with the children.

[144] During her private interview with Nora at school on February 27, 2019, Nora told Ms. Bauer that she and Henry are exchanged between their parents at a Tim Horton’s. Upon speaking to both children privately, Ms. Bauer concluded that they were being emotionally impacted by the high conflict between their parents. She recommended to the parents that they transition the children at school or through third party access.

[145] Mr. Lidstone was cooperative. Ms. Simonar refused. She was adamant that she would not follow this recommendation.

Ryan Lidstone

[146] Mr. Lidstone called Ryan Lidstone, his brother, to provide evidence on his behalf. His testimony is as follows.

[147] Ryan Lidstone is the managing director of Asush-Bik-Koog summer camp for children. He has held this position for five years. He has witnessed Mr. Lidstone with the children on numerous occasions. He describes their relationship as healthy and good. He has never seen any signs of trauma or concern when the children are with their dad.

[148] Ryan Lidstone and his family spend a great deal of time with the children. His own children are five and two. They get together five or six times a month when Ryan’s family is not at the camp. The children have sleepovers at the camp and at their home and they get together often for family dinners. Ryan and his family plan to continue to support Mr. Lidstone and the children in the community.

[149] In cross-examination, Ryan Lidstone testified that he has concerns with Ms. Simonar’s parenting. He takes his daughter to gymnastics on Thursday evenings. The children also attend. He has witnessed Ms. Simonar drag the children into a dispute with Mr. Lidstone. Specifically, he observed her taking the children from gymnastics despite the fact that Mr. Lidstone was there, it was his parenting time and he and the children had planned to go to the pool after gymnastics.

Graham Lidstone

[150] Mr. Lidstone called Graham Lidstone, his father, to provide evidence on his behalf. His testimony is as follows.

[151] Graham Lidstone has also witnessed Mr. Lidstone with his children several times and has no concerns about his parenting. He too believes they have a loving relationship and that the children adore Mr. Lidstone. He has never known the children to exhibit signs of trauma or anxiety while in Mr. Lidstone’s care.

[152] Graham Lidstone paid for most of the trip to Marco Island in 2018. It was arranged with the extended family around Mr. Lidstone’s court-ordered parenting time, as set out in the initial order.

[153] On March 21, 2019, a Thursday, Mr. Lidstone had to work overtime and he asked his dad to pick up the children from school. Graham has a flexible schedule. He is an insurance broker and part owner of the business. He welcomes the opportunity to help out with the children. Given his schedule, he can be on call to take them where they need to be. He helps out in the morning when his ex-wife is unable to do so. He gets them out of bed, makes them breakfast and readies them for school. If there is no homework to help with he will play UNO with the children or play outside with them while they wait for the bus.

[154] On this day in March, he arrived at the school and retrieved Henry from his classroom. Henry was excited to see him and happy that he was there to pick him up. Graham then went to retrieve Nora from her classroom. She was not there. He found her in the hallway with Ms. Simonar. Ms. Simonar said that he could not take the kids. She advised him that Mr. Lidstone could pick them up from Tim Horton’s later on that evening. The children were wondering why they could not go with their grandfather. He felt frustrated. Ms. Simonar was cold, strong and very forceful. She told him to let Mr. Lidstone and her handle this. He quietly said “or the court in the next couple of weeks” and left as he did not want to make an issue in front of the children.

[155] Graham Lidstone does not understand why the children are transitioned at Tim Horton’s. He believes this only drags the children into the conflict between the parents. He and his wife Valerie, who the children call Noni, work diligently not to speak ill of Ms. Simonar in front of the children. It is important that the children be kept out of the adult conflict.

[156] Graham Lidstone loves the children. He and Noni spend a great deal of time with them. They have sleepovers at their home and at the camp. He would like to attend Henry’s hockey games but he does not want to expose the children to the adult friction.

[157] In cross examination, Graham Lidstone was asked how he felt Mr. Lidstone would act if he was granted decision-making. He stated that Mr. Lidstone would be fair. He does not want Ms. Simonar out of the children’s lives. He wants the children to attend school regularly and receive an excellent education. But there is no conspiracy to have Ms. Simonar removed from the children’s lives. The children need both parents.

Nancy Fairburn

[158] As noted above, Mr. Lidstone called his mother, Nancy Fairburn, to provide evidence on his behalf. Further to that summarized above, her testimony is as follows.

[159] For the past five years she has devoted herself to helping Mr. Lidstone and her daughter with their children. Her children work full time and she is part of their support system.

[160] Ms. Fairburn and her husband reside in the in-law suite of Mr. Lidstone’s home. Their bedroom is behind a locked door off the upstairs kitchen and their suite is downstairs. She does not pay rent. Her husband helps with the maintenance of the house and she helps with child care.

[161] On June 20, 2018, she was home asleep when Ms. Aubertin entered the home. Ms. Fairburn heard nothing. She did not hear Ms. Aubertin, Mr. Lidstone or the children.

[162] Ms. Fairburn has witnessed her son parent the children often. She sees the children every day during her son’s parenting time. She has no concerns about his parenting and believes he is a good father. She had not seen the children show signs of trauma or stress. Mr. Lidstone puts the children’s needs before his own needs. He is very respectful of Ms. Simonar’s role as a mother.

[163] Ms. Fairburn blocked Ms. Simonar’s number on February 19, 2019 when she was excessively calling about the children. It was Mr. Lidstone’s parenting time. She was receiving instructions from him. If he wanted Ms. Simonar to pick up the children, he would instruct her accordingly.

[164] If the children wanted to call their mother while Ms. Fairburn was with them, she would let them. In her experience, however, the children do not ask to speak with their mother.

[165] Ms. Fairburn loves the children very much. If Mr. Lidstone is unable to attend to their needs because of work, she happily does so. Her relationship with the children is extremely close. She teaches Nora piano and is always there for the children to talk to. She will continue to provide such love and support to the children.

Jacob Calvert

[166] Mr. Lidstone called Mr. Calvert to provide evidence on his behalf. His testimony is as follows.

[167] Mr. Calvert is Mr. Lidstone’s brother-in-law. He and Mr. Lidstone’s sister have three children together, ages six, five and three, with another on the way. The children are very close to their cousins, as are they to Mr. Calvert and his wife.

[168] Mr. Calvert describes the children as happy and healthy. He spends times with them during Mr. Lidstone’s parenting time. He has not witnessed them showing any signs of trauma or stress. He describes Mr. Lidstone as a good father.

[169] Mr. Calvert has attended some of the children’s extra-curricular activities with Mr. Lidstone. He believes that Ms. Simonar frequently interferes with the children’s interactions with their father.

[170] Mr. Calvert loves the children. He looks forward to being in their lives and for them to grow up with his children. His hope is that they grow up to be healthy, well-adjusted responsible people.

IV. LAW AND ANALYSIS

[171] Section 24 of the Children’s Law Reform Act, R.S.O. 1990, c.C.12 (the “CLRA”) requires that issues of custody and access be determined on the basis of the best interests of the child. Sections 24(2)-(4) outline some considerations for the court in determining what is in the best interests of the child:

Best interests of the child

(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 a parent or grandparent, entitled to or claiming custody of or access to the child,

(ii) other members of the child’s family who reside with the child, and

(iii) persons involved in the child’s care and upbringing;

b) the child’s views and preferences, if they can reasonably be ascertained;

c) the 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 child’s care and upbringing;

f) the permanence and stability of the family unit with which it is proposed that the child will live;

g) the ability of each person applying for custody of or access to the child to act as a parent; and

h) any familial relationship between the child and each person who is a party to the application.

Past conduct

(3) A person’s past conduct shall be considered only,

a) in accordance with subsection (4); or

b) if the court is satisfied that the conduct is otherwise relevant to the person’s ability to act as a parent.

Violence and abuse

(4) In assessing a person’s ability to act as a parent, the court shall consider whether the person has at any time committed violence or abuse…

[172] Although I may not explicitly address each factor from s. 24(2) of the CLRA in determining the parental arrangements that are in the best interests of the children, I have considered each factor in my determination of Nora and Henry’s best interests.

Threshold Issue: Material Change

The First Stage – The Threshold

[173] Ms. Simonar asks the court to vary the initial order and grant her sole custody of the children. Her evidence is that, since the initial order, the parties’ relationship has deteriorated and they have not been able to communicate in a manner sufficient to meet the needs of the children. Mr. Lidstone agrees. He submits that the parties’ present circumstances render a shared custody arrangement untenable. He asks the court to vary the initial order and award him sole custody of the children.

Section 29 of the CLRA states that a material change in circumstances is required for a court to vary a final custody order:

29 A court shall not make an order under this Part that varies an order in respect of custody or access made by a court in Ontario unless there has been a material change in circumstances that affects or is likely to affect the best interests of the child.

[174] The Supreme Court outlined the test for varying a final custody order in Gordon v. Goertz, 1996 191 (SCC), [1996] 2 S.C.R. 27. Although Gordon was a case under the Divorce Act, R.S.C. 1985, c.3 (2nd Supp) and the present case falls under the CLRA, Gordon is equally applicable in cases under corresponding provincial legislation: A.C.W. v. T.M.P., 2014 ONSC 6275, 53 R.F.L. (7th) 71 (Div. Ct.) at para. 29, citing Bjornson v. Creighton (2002), 2002 45125 (ON CA), 62 O.R. (3d) 236 (C.A.), leave to appeal to the S.C.C. dismissed, 2003 CarswellOnt 1387 (S.C.C.) at para. 32; Brown v. Lloyd, 2015 ONCA 46; Roloson v. Clyde, 2017 ONSC 3642 at para. 47; D.R.T. v. K.A.D., 2018 ONSC 1975 at para. 34. “Both provisions [under the Divorce Act and the CLRA] enshrine the guiding principle in cases of custody and access, which is the best interests of the child”: A.C.W. v. T.M.P. at para. 29.

[175] The test outlined in Gordon has two parts. First, the party seeking the variation must show a material change in the situation of the child. Second, the judge must consider the merits of the application and make the order that best reflects the interests of the child in the new circumstances: Gordon at para. 9.

[176] The Supreme Court held in Gordon that the change required to justify a variation of a custody and access order must be “material”: para. 10. This threshold requirement is intended to ensure that variation proceedings do not become an indirect route of appeal from an earlier order. The court emphasized that the judge hearing a variation proceeding must not simply substitute their discretion for that of the judge who made the existing order: Gordon at para. 11. Rather, there must be a change that has altered the child’s needs or the ability of the parents to meet those needs in a fundamental way. The question is whether the change represents a distinct departure from what the court could reasonably have anticipated when it made the previous order, such that the previous order might have been different if the circumstances had prevailed at the time or had been foreseen at the time: Gordon at para. 12.

[177] Before considering the merits of an application to vary a custody order, therefore, the judge must be satisfied of: (1) a change in the condition, means, needs or circumstances of the child and/or the ability of the parents to meet the needs of the child; (2) which materially affects the child; and (3) which was either not foreseen or could not have been reasonably contemplated by the judge who made the initial order: Gordon at para. 13.

[178] The evidence demonstrates that since the initial order the parties have not been working together to meet the needs of their children. Their communication is tepid at best and rarely productive. The parents have been unable to agree on a doctor or a dentist for the children. They have disagreed about appropriate educational and medical requirements for the children and they have failed to communicate and agree to the children’s extra-curricular activities. There has therefore been a material change in the parties’ ability to co-parent as contemplated in the initial order.

[179] The initial order further specifies that the children’s residence shall be in Sault Ste. Marie. Ms. Simonar asks the court to vary the initial order and grant her the right to move the children’s principal residence to Cold Lake, Alberta.

[180] On the topic of varying a final order to permit relocation, the Supreme Court in Gordon wrote at para. 14 that:

Relocation will always be a "change". Often, but not always, it will amount to a change which materially affects the circumstances of the child and the ability of the parent to meet them. A move to a neighbouring town might not affect the child or the parents' ability to meet its needs in any significant way. Similarly, if the child lacks a positive relationship with the access parent or extended family in the area, a move might not affect the child sufficiently to constitute a material change in its situation. Where, as here, the child enjoyed frequent and meaningful contact with the access parent, a move that would seriously curtail that contact suffices to establish the necessary connection between the change and the needs and circumstances of the child.

[181] The initial order stipulates terms of access on the assumption that the children’s principal residence will remain in Sault Ste. Marie, near both parents. A relocation to Cold Lake changes that status quo and would be a material change. The relocation would affect the needs and circumstances of the children and the ability of Mr. Lidstone to access and parent his children. It would effectively terminate the frequent and consistent week about parenting time between Mr. Lidstone and the children as provided for in the initial order. The contemplated move represents a distinct departure from the initial order.

[182] The threshold requirement of a material change in the circumstances is met.

The Second Stage: The Merits

[183] If there has been a material change, the court should consider the matter afresh without defaulting to the existing arrangement: Gordon at para. 17. Both parents bear the evidentiary onus at the second stage of the analysis of demonstrating where the best interests of the child lie. There is no legal presumption in favour of maintaining the existing custody and access arrangements: Gordon at para. 40; Roloson at para. 52.

[184] There is also no presumption in favour of the custodial parent: Gordon at para. 47. However, the views of the custodial parent are entitled to great respect and serious consideration. The decision of the custodial parent to live and work where he or she chooses is likewise entitled to respect: Gordon at para. 48. The custodial parent’s reasons for moving will not be relevant to the analysis unless they are relevant to his or her ability to parent: Gordon at paras. 22-23.

[185] As set out above, s. 24(2) of the CLRA lists factors the court is required to consider in determining the best interests of the child. Sections 24(3) and 24(4) give further guidance to the court in its analysis. However, those factors are not an exhaustive list. The court is not required to specifically enumerate and analyze the factors. Rather, it must consider all the factors that are relevant in the particular case. This general and flexible best interests test allows for an analysis that is tailored to the unique circumstances of the custody and access issues in each case: Roloson at para. 53, citing Walsh v. Walsh (1998), 1998 7134 (ON CA), 39 R.F.L. (4th) 416 (Ont. C.A.) and Van de Perre v. Edwards, 2001 SCC 60, [2001] 2 S.C.R. 1014.

[186] The best interests of the child must be assessed from the perspective of the child rather than the parents. Parental preferences and rights do not affect the analysis except to the extent that they are necessary to ensure that the interests of the child are safeguarded and promoted: Gordon at paras. 28, 46, Young v. Young, 1993 34 (SCC), [1993] 4 S.C.R. 3 at paras. 68-70.

[187] The CLRA and the Divorce Act differ in that the CLRA does not contain an equivalent section to s. 17(9) of the Divorce Act, which states the importance of the “maximum contact principle” – i.e. that the child should have as much contact with each parent as is consistent with the best interests of the child. However, the maximum contact principle has nonetheless been held to be applicable to the assessment of a child’s best interests under the CLRA: A.C.W. v. T.M.P. at para. 30, citing Bjornson v. Creighton at para. 34.

Priority – Custody and Mobility

[188] The court is asked to decide the issues of custody and mobility in the best interests of the children. In Bjornson v. Creighton at para. 19, the Ontario Court of Appeal described deciding the question of mobility first and the question of custody second as “putting the cart before the horse.” The issues of custody and mobility are “intertwined and should not be considered in isolation of each other”: Johannson v. Fletcher, 2018 ONSC 156 at para. 21. This is because, in assessing what is in the best interests of the child, “the court must consider the entire galaxy of circumstances into which each parent proposes to place the child… Where there is a contest for custody and one of the parents seeks to relocate, the custody issue and the mobility issue are knit together”: L.L.B. v. D.A., [2002] O.T.C. 818 (S.C.J.) at para. 35. Although the language of Gordon suggests that the court must give the views of the “custodial parent” great weight, at para. 48 McLachlin J. states that it is the views of the parent “who lives with the child and is charged with making decisions in its interest on a day-to-day basis” that are entitled to great respect and the most serious consideration. In other words, the structure of the existing parenting relationship is significant when considering the test in Gordon. It is therefore important for the court to decide decision-making and parenting time before deciding the issue of mobility.

Custody of the children

[189] Both parties are seeking to vary the initial order as it pertains to shared custody. Both parties ask the court for an order of sole custody of the children.

[190] The Court of Appeal addressed custody orders in high conflict parenting situations in M. v. F., 2015 ONCA 277, 58 R.F.L. (7th) 1. The trial judge in that case had concluded it would be in the best interests of the parties' six-year-old son to have overnight visits with the father and did not make an order for custody. The relationship of the parties before and after the child's birth was extremely acrimonious.

[191] At paras. 38-40, Benotto J.A. stated:

The Ontario legislation does not require the trial judge to make an order for custody. Section 28(1) (a) of the CLRA is permissive, not mandatory: The court ... by order may grant the custody of or access to the child to one or more persons (emphasis added).

For over twenty years, multi-disciplinary professionals have been urging the courts to move away from the highly charged terminology of "custody" and "access." These words denote that there are winners and losers when it comes to children. They promote an adversarial approach to parenting and do little to benefit the child. The danger of this "winner/loser syndrome" in child custody battles has long been recognized.

It was therefore open to the trial judge to adopt the "parenting plan" proposed by the assessor without awarding "custody." It was also in keeping with the well-recognized view that the word "custody" denotes "winner" so consequently the other parent is the "loser" and this syndrome is not in the best interests of the child.

[192] In my view, the pronouncements outlined above are not meant to suggest that there should be no custody order in every case. J.A. Benotto’s comments, however, are particularly applicable to the facts of this case. On December 15, 2017, the parents decided that it was in their children’s best interests for them to co-parent by mutual agreement on important decisions and by equally sharing parenting time. Their agreement fell apart only a month later when Ms. Simonar removed Henry from school and speech pathology without Mr. Lidstone’s consent and the services of the CAS were requested. From the time of the initial order, the parents took an adversarial approach to co-parenting. It is no wonder that their stated intention to co-parent was unsuccessful. The evidence demonstrates that the conflict between the parents has yet to dissipate. Most significantly, the children are being negatively affected by their parents’ conflict. In this context, to designate one parent as the “custodial parent” would elevate that parent, to the detriment of the “access parent”. Such a coronation would only heighten the conflict, contrary to the best interests of the children, who risk further exposure to stressful and upsetting conduct. For these reasons, I decline to make an order for custody.

Decision-Making

[193] Mr. Lidstone has been candid with the court that he has not always been perfect in his conduct and choices relating to Ms. Simonar. He has been frustrated and called her names on occasion. I have heard no evidence, however, that would suggest that he has in engaged in either verbal or physical abuse against Ms. Simonar. I accept that it is Mr. Lidstone’s priority to shield the children as best he can from the conflict and make decisions in their best interests. He has walked away from conflict many times and in doing so sacrificed his scheduled parenting time and his ideas about how the children should live. He has avoided conflict by missing out on the children’s activities. He has attempted to restrict the exchanges to the school, but has been forced to interact with Ms. Simonar in front of the children, at her insistence. Mr. Lidstone does not agree that the children should be frequently absent from school, fully cooperates with the efforts of the CAS and believes it is in their best interests to accept their doctor’s direction on vaccinations.

[194] I also accept that Mr. Lidstone’s family does their best to avoid conflict with Ms. Simonar in front of the children. Ryan Lidstone and Mr. Calvert avoid Ms. Simonar at gymnastics on Thursday evenings so the children will not see a confrontation. Graham Lidstone left the children with Ms. Simonar at school, knowing they would have to be transitioned at Tim Horton’s later that evening, putting the needs of the children first. Ms. Fairburn chooses not to interact with Ms. Simonar unless the children wish to speak with her and takes direction from her son with respect to transitions during his parenting time.

[195] All of Mr. Lidstone’s family witnesses have witnessed Mr. Lidstone with his children countless times and have no concerns about his parenting. Graham and Ryan Lidstone and Ms. Fairburn testified to the loving relationship that Mr. Lidstone has with the children.

[196] The CAS witnesses also have no concerns about his ability to parent. There is no evidence that the children show any signs of trauma or stress while in Mr. Lidstone’s care.

[197] Ms. Boyer and Ms. Parenteau have not observed Mr. Lidstone with the children. Their respective beliefs on his ability to parent are grounded in what they have been told by Ms. Simonar. Ms. Simonar’s mother, Barbara has observed Mr. Lidstone with the children. She had very little to say about any conduct that reflects badly on his ability to parent. She testified to the conflict between the parents but was fundamentally silent on Mr. Lidstone’s ability to look past this conflict and act in the best interests of the children.

[198] Ms. Simonar’s mother, Barbara and her friends Ms. Boyer and Ms. Parenteau testified positively to Ms. Simonar’s ability to parent. The CAS witnesses have also expressed no concerns about her ability to parent.

[199] The testimony of the CAS witnesses is troubling, however, with respect to Ms. Simonar’s ability to make decisions in the best interests of the children.

[200] Ms. Peterson’s testimony is significantly concerning. The CAS was concerned that the parents’ conflict was causing stress to the children. It wanted to conduct an investigation, the goal of which was to recommend ways to shelter the children from being negatively affected by their parents’ respective conduct. Ms. Simonar thwarted the process despite its important goal of protecting the children. Conversely, she called on the CAS whenever she believed the CAS would conclude Mr. Lidstone was not acting in the children’s best interests or engaging in conduct that would reflect negatively on his ability to parent. Ms. Simonar attempted to use the CAS against Mr. Lidstone but refused to cooperate and work with the CAS in the best interests of the children. She put her feelings about Mr. Lidstone ahead of the best interests of the children. This causes the court to question her ability to make decisions that benefit her children, as opposed to those that would hurt Mr. Lidstone.

[201] Ms. Bauer’s evidence is similarly troubling. She interviewed the children privately. Based on her direct conversations with the children she concluded that they were being emotionally impacted by their parents’ high conflict. To minimize that impact, Ms. Bauer recommended that transitions occur at school. While Mr. Lidstone was in agreement, Ms. Simonar adamantly refused and in doing so exposed the children to further conflict.

[202] Other reasons to question Ms. Simonar’s ability to make decisions in the best interests of the children include:

1. She removed Henry from school permanently without Mr. Lidstone’s consent and against the opinion of the Superintendent of Education and the principal. Her evidence is that she did so because she is a stay at home mom and attendance at senior kindergarden is not mandatory. In doing so, she paid no attention to maintaining consistency in Henry’s schedule, she removed Henry from the speech therapy he was receiving through the school board and she failed to heed the professional advice given that Henry would fall behind in his French language skills.

2. She permits the children to stay home from school if they are tired but nonetheless allows them to attend their extra-curricular activities. Both children have concerning absences at school during her parenting time. The negative consequences of this were brought to her attention by the principal but she continues to keep the children out of school. There is no medical or other evidence to substantiate her bald statements about the children’s anxiety or stress at school. Mr. Lidstone is not aware of any school-related anxiety or stress, and the children’s principal sees no such signs while the children are at school.

3. She refuses to follow the Ontario recommended immunization schedule. She refuses to follow the advice of the children’s doctor and, despite the objective medical evidence described to her, she believes vaccinations cause a whole host of lasting health issues.

4. She attempted to enroll the children in Creating Connections despite the fact that it would be traumatic for them if they had not been previously exposed to domestic violence. There is no evidence before the court other than the general statements from Ms. Simonar that the children were ever exposed to domestic violence.

5. She enrolled the children in many extra-curricular activities without the consent of Mr. Lidstone, even though the activities overlapped with his parenting time. This is a recipe for conflict. By proceeding without his consent, she effectively controlled his parenting time, obligating him to take the children to activities despite the fact that he had never consented to doing so during his time.

6. She had the children wait in her car outside the property line of their dad’s home on June 20, 2018, exposing her children to the sight of their dad in handcuffs.

7. She took the children directly to the police station from Mr. Lidstone’s house in the early morning of June 21, 2018 and had her friend meet her there, instead of shielding the children from that experience and taking them to go to bed at her house. If she felt that she needed to be at the police station, she could have tucked the children in at home and had her friend stay with the children while she went to the police station.

8. She testified that she lived in fear of her life in the summer of 2018 because Mr. Lidstone threatened to dismember her, when the OPP officer told her in June 2018 that there was no threat made against her.

9. She agreed to a new schedule for equal parenting time in November 2018, considering Mr. Lidstone’s work schedule changed from straight days at the time of the initial order to shift work. She denied the spirit of that agreement and used the narrow language against Mr. Lidstone when his work schedule changed back to straight days, even calling the police in an effort to enforce her interpretation. Instead of receiving equal time with their father, the children were left only with time around his work schedule. Ms. Simonar’s unreasonable interpretation of the agreements at times caused them to be driven to a coffee shop at 6:30 am instead of catching the bus to school. She insisted on multiple transitions of the children at a coffee shop on the week-end to take them to activities she enrolled them in without Mr. Lidstone’s consent.

[203] For these reasons, I have concluded that Mr. Lidstone shall have final decision-making power on major medical and educational decisions in accordance with the detailed Order of this court, more particularly set out under the disposition section.

[204] In terms of religion, the court heard no evidence to suggest that this is presently an issue between the parents. Given the level of conflict, however, it is appropriate for the court to grant decision-making in the event of a future impasse in this area between the parents. For the reasons noted above, Mr. Lidstone shall make the final decision with respect to religious matters.

[205] The children’s extra-curricular activities have been a source of conflict between the parents. Ms. Simonar has placed the children in many activities without Mr. Lidstone’s consent. Mr. Lidstone has refused to take the children to some of these activities during his parenting time as he did not consent. In my view, the children’s preferences regarding activities and lessons should be paramount when deciding on extra-curricular activities. It is equally important, however, to have the consent of both parents when the activities overlap both parents’ time with the children. Conflict is inevitable should one parent not consent to an activity during his or her parenting time. It is the children that will suffer from this conflict. They should have input into the activities they want to do, but if both parents do not consent, the other parent is not obliged to pay their portion of that activity or to take the child to that activity during their scheduled parenting time. To order otherwise would allow one parent to effectively control the other parent’s time with the children. This fuels resentment between the parents to the detriment of the children.

[206] Both Ms. Simonar and her mother expressed a fear that if Mr. Lidstone were granted decision-making power, he would take active steps to remove them from the children’s lives. There is no evidence before the court to substantiate this stated fear. The detailed Order of this court, however, is designed to ensure that this will not happen. Ms. Simonar is the mother of the children. While she does not have final decision-making power, she nonetheless shall be provided with access to all information and documentation required to play an active role in the children’s lives.

Parenting Time

[207] The parents agree that the status quo of equal time parenting is untenable. They both seek to vary the initial order in this regard.

[208] The priority for this court in designing a parenting time schedule is to shield the children from their parents’ conflict while permitting the children to spend meaningful time with both of their parents. It is in the children’s best interests that they have a regular and consistent schedule wherein they are able to enjoy quality time with both of their parents in a way that shelters them as much as possible from the conflict between their parents.

[209] The evidence from the CAS witnesses confirms that the children are being negatively affected by the conflict between their parents. For this reason, the children should be exposed to both of their parents together only by exception, in limited circumstances. The most effective way to achieve this end is to ensure that all transitions of the children occur at school on a regular basis. A public transition with both parents present should occur only in exceptional circumstances, and even then contact between the parents must be limited to pleasantries.

[210] Ms. Simonar has a documented history of not bringing the children to school on time, or at all. She has removed the children from school to prevent Mr. Lidstone from picking them up and commencing his scheduled parenting time. She has arrived at school and refused to let the children go with Mr. Lidstone or his father. Most significantly, she has now completely refused to transition the children at school despite the request and stated concern for the children by Mr. Lidstone and the recommendation of the CAS. It does not seem that Ms. Simonar appreciates the stress inherent to the children when they witness their parents’ conflict during transitions. Given her demonstrated history, the court is left without confidence that, if ordered to do so again, Ms. Simonar would consistently take the children to school on time, for the purposes of transitioning them to Mr. Lidstone.

[211] For these reasons, it is in the best interests of the children that the majority of transitions at school occur during Mr. Lidstone’s parenting time. The children shall therefore reside with their father on a primary basis. Their father will be responsible for taking them to school on time most days. It is equally important and in the children’s best interests, however, that they have regular and meaningful time with their mother. Their mother shall remain a consistent presence in the routine of their lives to ensure that the children have an equal and deep bond with their mother. The regular parenting schedule shall be as follows:

1. The children shall be with their father in Week 1 until Tuesday morning when they are dropped off at school.

2. The children will then be with their mother from Tuesday following school until Wednesday morning when they are dropped off at school.

3. The children will then be with their father from after school on Wednesday until Friday morning when they are dropped off at school.

4. The children will then be with their mother from Friday after school until Monday morning of Week 2 when they are dropped off at school.

5. The children will then be with their father from after school on Monday until Thursday morning when they are dropped off at school.

6. The children will then be with their mother from after school on Thursday until Friday morning when they are dropped off at school.

7. The children will then be with their father after school on Friday until Tuesday morning of Week 1 when they are dropped off at school.

[212] To shield the children from conflict, all transitions but for those exceptions described below under Disposition shall be accomplished by the resident parent or a person of the resident parent’s choosing picking the children up from school/daycare/camp etc. It is hoped that over time the parents will strive toward direct transitions of the children. Until they are able to do so, however, they shall adhere to the detailed protocols set out below and ordered by this court.

[213] The regular parenting schedule will be supplemented for holidays and school breaks as more particularly set out under Disposition.

[214] Ms. Simonar believes that she should be with the children if Mr. Lidstone is at work. For reasons noted above, in my view, this was not the intent of the November agreement. Rather the agreement was meant to continue the shared parenting time of the initial order, recognizing that Mr. Lidstone was working shift work. As soon as Mr. Lidstone’s work schedule reverted back to the status quo of the initial order, in the best interests of the children, parenting time should have equally reverted back to week about access.

[215] Further, Mr. Lidstone should not be limited from time with his children because he is working full time to provide for his family. It is not uncommon for two parent families to rely on child care support around their respective work schedules. It is a good example for the children to witness the responsibilities and ethic of a parent’s work schedule and understand that while they would rather be with them, the obligations of life require otherwise. Mr. Lidstone and the children have the good fortune to have live–in child care. His family is available to support him and the children independent of his work schedule.

[216] I have concluded that the initial order should be varied in terms of decision making and parenting time. All related issues must therefore be equally varied. Both parents should realize that their conflict has had and will continue to have a negative effect on their children. The children are the court’s primary concern. To this end, the court is ordering the parents to follow a detailed and particular protocol to ensure that necessary communication is limited and the interests of the children are protected. The parents are expected to fully comply with the protocol as set out and ordered under Disposition.

Mobility: Primary and Habitual Residence of the Children

[217] Ms. Simonar is seeking to vary the initial order as it pertains to Sault Ste. Marie as the residence of the children. She asks the court for an order that the children have their primary and habitual residence with her in Cold Lake, Alberta. Mr. Lidstone opposes this.

[218] The status quo is now that the children will spend nine nights out of 14 with Mr. Lidstone. I have determined that Mr. Lidstone will have final decision-making power on major medical, educational and religious issues. It is within this factual context that the issue of mobility is considered, guided by the direction of the Supreme Court in Gordon.

[219] The parties in Gordon resided in Saskatoon until their separation in 1990. The mother petitioned for divorce and at trial was granted permanent custody of the young child. The father received generous access. When the father learned that the mother intended to move to Australia to study orthodontics, he applied for custody of the child, or alternatively, an order restraining the mother from moving the child from Saskatoon. The mother cross-applied to vary the access provisions of the custody order to permit her to move the child’s residence to Australia. Relying heavily on the divorce judgment and the first judge’s finding of fact that the mother was the proper person to have custody of the child, the judge dismissed the father’s application and varied the access provisions in the custody order to allow the mother to move to Australia with the child. The father was granted liberal and generous access, on one month’s notice, to be exercised in Australia only. The Court of Appeal and the Supreme Court upheld that order. In doing so, the Supreme Court, at paras. 49-50, laid out the principles that a court must apply when a custodial parent wants to move with a child:

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 interests of the child in the particular circumstances of the case.

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

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

a. The existing custody arrangement and relationship between the child and the custodial parent;

b. The existing access arrangement and the relationship between the child and the access parent;

c. The desirability of maximizing contact between the child and both parents;

d. The views of the child;

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

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

[220] The ultimate question is what is in the best interests of the children considering present circumstances in Sault Ste. Marie and those expected in Cold Lake.

[221] The children have a lovely life in Sault Ste. Marie. They have time with both parents, extended family with Mr. Lidstone, a settled school, many friends, a doctor, a dentist and a whole host of extra-curricular activities. The children have a community in Sault Ste. Marie that they have come to know and enjoy.

[222] Ms. Simonar also has a community in Sault Ste. Marie that she has come to know and enjoy. She just moved into what she describes as a beautiful home wherein she states she is very happy. The children are able to walk to the park and she has a good relationship with the landlord and her neighbours. Ms. Simonar does not have extended family in Sault Ste. Marie but she has many friends and her extended family, particularly her mother, visit often. Ms. Simonar describes her support system in Sault Ste. Marie as her “new family.”

[223] It cannot be said that a move to Cold Lake would improve Ms. Simonar’s ability to parent. There is no employment waiting for her. But for her bald statement, there is no evidence sufficient to demonstrate that she will find work in Cold Lake. In Sault Ste. Marie, she has applied to be a respite worker. There may be work for her in Sault Ste. Marie as a crane operator but she has not looked into that since September 2016.

[224] In Cold Lake, the children would live with Ms. Simonar, her mother and brother and enjoy farm life and extended family. There is talk of enrolling the children in activities but no definite plans. There is hope that the children will make friends when they arrive but again this is not certain. The court heard about a near-by school but was provided with no evidence of enrollment or curriculum. There is no doubt that the children enjoy their visits to Cold Lake, but that is in the context of knowing that they will be returning to their settled routines in Sault Ste. Marie and their time with their father.

[225] I accept that Mr. Lidstone is unable to move to Cold Lake. He is gainfully employed here, pursuing his Master’s electrician license, owns a home and has the required child care support available to him.

[226] If Ms. Simonar’s request is granted, the children will be removed from their regular contact with Mr. Lidstone. In closing submissions, Ms. Simonar stated that if she were permitted to relocate, Mr. Lidstone could have access to the children when he was not working and the children were not in school. This proposal of very limited parenting time for Mr. Lidstone was submitted to the court as an option. Ms. Simonar failed to put before the court a proposed access schedule for Mr. Lidstone to which she is agreeable. The court is without a plan for access should relocation be permitted.

[227] If the children relocate to Cold Lake, they would not be regularly exposed to the negative consequences of the conflict between their parents. They would lose the benefits, however, of their father being involved in their day-to-day living. Facetime or Skype may assist in connecting the children with their father, but it can never replace the important role their dad has played in the routine of their lives. Mr. Lidstone would not be able to take them to the dentist, parent-teacher interviews, biking, hiking or to read with them at night. Their father would not be with them at the hospital for an unexpected but inevitable accident or fever. He would be absent from their birthday celebrations and Father’s day. The children would lose the influence of their father and the close relationship with him that they presently enjoy.

[228] The children would enjoy greater time with Barbara Simonar and the Simonar family if they relocated. Ms. Simonar would not have to pay rent. It cannot be said, however, that the children’s quality of life would be improved with a move to Cold Lake. There is no evidence of improvement to their accommodation, school, friendships or routines.

[229] In my view, it is in the children’s best interests that they continue their regular and consistent time with their father in Sault Ste. Marie. They should be shielded from the conflict of their parents by transitioning them at school and their relationship with their maternal extended family should be supported with technology and visits. Leaving Sault Ste. Marie would disrupt the children’s established routines, institutions, parenting time, family and friends, without a corresponding benefit. For these reasons, I have concluded that it is not in the children’s best interests to re-locate with Ms. Simonar to Cold Lake, Alberta.

Child Support

[230] The initial order requires Mr. Lidstone to pay child support to Ms. Simonar for the children in accordance with the Child Support Guidelines based on the shared custody arrangement, his annual income of $72,000 and her imputed annual income of $22,500.

[231] Section 14 of the Child Support Guidelines sets out the circumstances in which a court can change an order of child support. As the parties had shared custody, child support was not determined in accordance with a table but according to the three criteria set out in s. 9 of the Child Support Guidelines. Accordingly, s. 14(2) states that the threshold for variation of child support is “any change in the condition, means, needs or other circumstances of either parent or spouse or of any child who is entitled to support”.

[232] On a go forward basis, the parents no longer enjoy shared custody, as that term is defined at section 9 of the Guidelines. Rather, the habitual residence of the children will be the father’s home. This is a change in the circumstances of the children that calls for a change to the current child support arrangement.

[233] Ms. Simonar is a qualified crane operator. She has not sought employment in Sault Ste. Marie since 2016. The initial order imputed an annual income to Ms. Simonar of $22,500.

[234] Section 19(a) of the Child Support Guidelines allows the court to impute income where the parent is “intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of any child or by the reasonable educational or health needs of the parent or spouse.” The Ontario Court of Appeal, in Drygala v. Pauli (2002), 2002 41868 (ON CA), 61 O.R. (3d) 711 (C.A.) and Lavie v. Lavie, 2018 ONCA 10, 8 R.F.L. (8th) 14 confirmed that there is no need to find a specific intent to evade child support obligations before income can be imputed. If a parent is earning less than he or she could reasonably be earning, he or she is intentionally underemployed. However, the court must have a rational basis on which to impute income: Drygala at para. 44, Pustai v. Pustai, 2018 ONCA 785 at paras. 45-50. Mere skepticism about a party’s earning capacity is not enough: Lepine v. Lepine, 2012 ONSC 4153, 27 R.F.L. (7th) 404 at para. 9. The claimant must present evidence to show that greater income is reasonably available to the parent in light of their background, education, training and experience: West v. West (2001), 2001 28216 (ON SC), 18 R.F.L. (5th) 440 (Ont. S.C.J.) at para. 38.

[235] No evidence was submitted to the court sufficient to vary Ms. Simonar’s annual income as imputed in the initial order at this time. The court is without evidence of Ms. Simonar’s ability to find work as a crane operator in Sault Ste. Marie or the average annual income of a crane operator in Sault Ste. Marie.

[236] Ms. Simonar shall therefore pay Mr. Lidstone child support for the children based on an annual imputed income of $22,500, in accordance with the Child Support Guidelines Table Amount of $337.00 per month on the first day of each month, commencing June 1, 2019. This shall be adjusted each year based or by court order based on Ms. Simonar’s annual income, or re-calculated annual imputed income, until no longer payable.

Canada Child Benefit

[237] The initial order provided that the Canada Child Benefit be shared equally. The initial order should be varied as the circumstances have changed; the parents are no longer in a shared parenting arrangement. Mr. Lidstone has the children the majority of the time. It is therefore appropriate that Mr. Lidstone be entitled to the entire amount of the Canada Child Benefit.

V. DISPOSITION

Order to go:

1. Norman Gregory Thomas Lidstone (“Mr. Lidstone” or “the father”) may schedule a case conference to address the issue of Chrystal Anne Simonar’s (“Ms. Simonar” or “the mother”) ongoing entitlement to spousal support. Subject to the discretion of the case conference Judge, the conference shall explore the substantive issues as well as the most efficient procedural way forward, considering Mr. Lidstone’s outstanding motion to change the Final Order dated December 15, 2017 to have Ms. Simonar’s entitlement to spousal support terminated and his right pursuant to the Final Order of Justice Gareau dated December 15, 2017 to have Ms. Simonar’s entitlement to spousal support reviewed on January 1, 2020.

2. The Final Order of Justice Gareau dated December 15, 2017 is varied only to the extent that paras. 1, 2, 4– 24 inclusive, 28, 29 and 30 are varied by the within Order. The Final Order of Justice Gareau dated December 15, 2017 remains otherwise in full force and effect unless varied by further order of this Court.

3. DECISION MAKING

a. The father shall provide the mother with the names, addresses and phone numbers of all physicians and health care professionals (e.g., psychologists, speech therapists, social workers, counsellors, occupational therapists, orthodontists, etc.) providing care to Nora Rae Lidstone born November 2, 2009 and Henry Graham Lidstone born January 26, 2012 (the “children”).

b. If required by the children’s health care professionals, the father shall provide written permission to these professionals to release information regarding the children’s medical care to the mother.

c. The father shall be responsible for making the children’s routine dental and medical appointments. He shall make every effort to make these appointments on his usually scheduled time with the children. The mother shall not attend these appointments if they take place during the father’s scheduled time with the children.

d. If either of the children becomes ill at school, the school shall call the resident parent (i.e., the one who would normally be responsible for picking up the child that day after school). When either of the children are kept home from school by the resident parent due to illness, the other parent will be notified via text prior to the start of the school day.

e. Either parent may care for the children in the event of a minor illness and will follow the regular schedule unless a doctor’s note indicates otherwise.

f. The parents shall notify each other as soon as feasible of an emergency visit to a physician, specialist, and/or hospital. Both parents may attend.

g. The parents may request any relevant records/information from the children’s physicians directly.

h. It is in the children’s best interests for both parents to be involved in major medical decisions, with the assistance of expert third parties, who are typically relied upon. The parents will attempt to arrive at major medical decisions, including decisions about vaccinations, mutually in accordance with the professional opinion. In the event there is no consensus with a professional opinion, the father shall make the final decision.

i. In the unlikely event of an impasse, the father shall make the final decision with respect to religious matters.

j. Any changes in schools shall be mutually agreed to by the parents and in the event of an impasse the father shall make the final decision.

k. The parents shall attend the routine parent-teacher meetings together or separately, making the necessary arrangements directly with the school. Additional individual meetings with the school and/or teacher may be arranged if desired.

l. The parents shall advise each other by email if the school calls regarding a significant child-related matter. In the event that a teacher has an informal meeting with a parent, the other parent will be advised of the discussion forthwith.

m. The school shall have both parents’ names and numbers to call in case of an emergency. The father shall be notified by the school every time one of the children is absent. Both parents shall ensure that the children attend school on time as scheduled without absence except if there is an illness documented in a doctor’s note or travel plans made in accordance with this order.

n. A school calendar is available from the school. It is each parent’s responsibility to stay up to date on any relevant educational matters. Each parent shall request from the school that he/she be provided with all the notices and report cards.

o. Both parents and their families may attend school functions, including: open houses, award ceremonies, school council meetings, curriculum night, plays, concerts, assemblies, fundraisers, etc., regardless of the residential schedule. The parents shall remain cordial during these occasions and not discuss child-related arrangements and issues.

p. If the parents are unable to reach a mutually agreeable decision with respect to the children’s education the father shall make the final decision.

q. The children’s preferences regarding activities and lessons shall be taken into account and given substantial weight.

r. Mutual consent of both parents is required for enrolment in any activities that overlap both parents’ time with the child. Such consent should shall be confirmed in writing. Should the child be enrolled in an activity that impacts both parents’ time, and that either parent did not consent to, the non-consenting parent is not obligated to take the child to that activity during their parenting time or pay their portion of the costs of that activity. If both parents consent to an activity, the resident parent shall take the child to and from the activity and be responsible for the child having everything he or she needs for the activities.

s. The parents shall provide one another with all necessary information regarding the children’s activities and lessons regardless of whose time the activity/lesson falls on.

t. The parents and extended family may attend special events, recitals, parent-teacher interviews, and school activities.

4. PARENTING GUIDELINES AND PRINCIPLES

a. In relation to any dispute, conflict or concern pertaining to the children, the needs of the children shall be paramount.

b. The parents shall recognize the children’s need for good and ongoing relationships with each of their parents. The parents shall make every effort to actively foster and facilitate the children’s positive relationships with the other parent, and with members of the other parent’s extended family.

c. The parents shall exert their best efforts to work cooperatively and to make parenting arrangements with the children’s best interests at heart.

d. The parents shall ensure that the children spend the required time with the other parent.

e. The parents shall refrain from any subtle or open denigration of the other parent and/or members of the extended family in any communication with the children and/or in the presence of the children. In addition, the parents shall not speak to or in front of the children in a critical or disparaging way about the other parent. Further, the parents shall make every effort to protect the children from the parent’s anger and/or frustration regarding the other parent, with the understanding that the children may find this stressful, and that parental conflict compromises their adjustment and their self-esteem in particular. The parents shall advise others to maintain the same standard and to refrain from criticizing the other parent in front of the children.

f. The parents shall not speak with the children, directly or indirectly about specific parental differences and disagreements, including those related to financial issues, specific concerns about the other parent and parenting arrangements.

g. When the children ask questions the parents shall reassure them that the parents are working on the problems, taking into account the children’s feelings and thoughts.

h. The parents shall refrain from any manner of conflict, subtle or open, in the presence of the children and, accordingly, shall relate to one another in a reasonable and cordial manner in all instances in which the children are present or nearby.

i. The parents shall not ask the children to relay information from parent to parent and the children shall not be a letter carrier for the parents.

j. The parents shall respect each other’s privacy, and as such refrain from engaging the children in any discussion or questioning about the other parent’s personal life or activities.

k. The parents shall refrain from any form of interference, direct or indirect, open or subtle, into the life, activities, or routines of the other parent. In this regard, neither parent shall schedule activities for the children requiring their active involvement or involvement by the other parent during periods in which the children are in the care of the other parent, without the consultation and written consent from the other parent.

l. The parents shall make all practical efforts to ensure the children’s attendance at any or all structured activities or special occasions involving peers, and/or extended family. While it is understood that this may not be feasible, when possible the parent will schedule these events when they know the children will be with them. In facilitating this and to ensure continuity of the children’s schedule of residence and routines, “make-up time” is not to be scheduled unless otherwise agreed in writing by the parents.

m. In the event the children complain to the resident parent about the other parent, the children will be encouraged to talk directly to the other parent about the concern. If the children express difficulty with this the other parent shall assist the children and or discuss the concern with the other parent on the children’s behalf. The parents will recognize that children frequently express to a parent what they believe the parent wishes to hear about the other parent. The parents will take this into full consideration before coming to any conclusion regarding the other parent.

5. PARENTAL COMMUNICATION

a. Unless otherwise agreed in writing between the parents, all communication shall be in writing by email. In the event of a true emergency, the parents may contact each other by text or phone.

b. The parents shall use reasonable discretion in minimizing the extent of such communication. To this end, the principle of forwarding only that information which is necessary to ensure that the children’s needs are being met shall be adhered to. Emails shall be accumulated and sent no more than twice a week on Wednesdays and Sundays. Emails shall be checked and responded to within 24 hours. If a reply to a request cannot follow by then, an email shall be sent advising that the requested information cannot reasonably be ascertained, and as to when a response can be expected.

c. While it is understood that each parent is likely to have different routines and activities, they shall make good efforts to ensure consistency between the two homes, for some of the basic routines (i.e., bedtime, homework etc.). The parents shall support each other’s routines with the children, even if they do not rely on the exact same approach. If the children comment that the other parent does it differently, the parent shall respond by saying that sometimes moms and dads do things differently.

d. The parents may attend special events, recitals, parent-teacher interviews, school activities and the like together. Attendance at these activities may be arranged separately if desired (i.e. parent-teacher interviews).

6. REGULAR PARENTING SCHEDULE

a. The children shall be with their father in Week 1 commencing May 27, 2019 until Tuesday morning when they are dropped off at school.

b. The children will then be with their mother from Tuesday following school until Wednesday morning when they are dropped off at school.

c. The children will then be with their father from after school on Wednesday until Friday morning when they are dropped off at school.

d. The children will then be with their mother from Friday after school until Monday morning of Week 2 when they are dropped off at school.

e. The children will then be with their father from after school on Monday until Thursday morning when they are dropped off at school.

f. The children will then be with their mother from after school on Thursday until Friday morning when they are dropped off at school.

g. The children will then be with their father after school on Friday until Tuesday morning of Week 1 when they are dropped off at school.

7. TRANSITIONS

a. The pickups and drop offs shall be from school by the resident parent or a person of the resident parent’s choosing. The children’s school supplies including their back-pack, agenda and lunch boxes shall transition with the children.

b. In the event that transitions cannot take place at school the child shall be transferred in a public location agreed upon between the parents, such as a supermarket or coffee shop. This should take place by exception.

c. The transferring parent shall park within four parking spaces of the receiving parent, if possible. The transferring parent shall remove the children from the car and accompany them to the receiving parent.

d. The children shall walk from parent to parent and the transferring parent shall depart immediately upon the receiving parent’s proximity to the children so that they may be picked up or taken by the hand by the receiving parent.

e. Should the children be crying or in distress the receiving parent shall be responsible for calming/soothing them.

f. The transfers shall not be prolonged; there shall be no use of electronic devices during transfers.

g. The parents shall not communicate during transitions save and except pleasantries.

h. Transitions may take place at airports to accommodate travel following the same protocols where applicable.

i. Either parent may elect to have someone in attendance with them during transitions. This individual shall remain in the car at all times.

8. SUMMER SCHOOL BREAK AND VACATION

a. The summer schedule shall be as per the usual schedule with pickups and drop-offs from daycare, or camp (if applicable) and following the transition protocols above.

b. Each parent may vacation with the children for two full non-consecutive weeks during July and August. The vacation period consists of seven consecutive overnights and shall incorporate the parent’s usual weekend.

c. In even-numbered years the father, and in odd-numbered years the mother, shall have the first option to choose vacation dates for the months of July and August. These dates shall be provided to the other parent in writing no later than January 30th of the same year. If dates are not provided by that date, the first option to choose dates is forfeited and goes automatically to the other parent, who shall then provide notice in writing to the other parent no later than February 15th of the same year. For the 2019 calendar year only, the mother shall provide her chosen dates to the father no later than 4 pm on June 3, 2019 or forfeit her first option and the father shall provide his chosen dates to the mother no later than 4 pm on June 17, 2019, whether or not the mother forfeited her first option.

d. The parents shall exercise reasonable discretion to ensure their vacation weeks minimize the amount of missed time for the other parent.

9. BIRTHDAYS

a. The parent with whom the children are not resident that morning may spend time with the child on his or her birthday from after school until drop off at school the following morning. If either of the children’s birthdays fall on a Saturday or Sunday, the parent with whom the child is not resident that weekend may spend time with the child on his or her birthday from 2:00 pm until 7:00 pm.

b. Each parent will plan the children’s family parties during their own time.

c. The father shall organize the children’s peer party each year. Both parents may attend the children’s peer parties. The father shall consult the mother regarding peers within their social groups that the children would likely want in attendance.

d. The parents’ birthdays shall fall as per the usual schedule. If the children are not resident with them on their birthday they shall plan an alternate time to celebrate the event with them.

10. FAMILY DAY, VICTORIA DAY, CANADA DAY, AUGUST CIVIC HOLIDAY AND LABOUR DAY

These weekends/holidays shall be as per the usual schedule, extending the weekend to include the statutory holiday, until the regular schedule resumes. Canada Day will be as per the usual schedule unless it falls on a Friday or Monday in which case the above will apply.

11. MARCH SCHOOL BREAK

a. The March Break will be defined as the five days of the school holiday, maintaining the regular weekend rotation. The parents will follow the regular weekend rotation, so that the order of the weekends is not disturbed.

b. In even- numbered years the father and in odd-numbered years the mother shall have parenting time with the children during the March Break. If the weekend of the parent with parenting time during the March Break falls prior to the Break, the March Break parenting time shall begin after school on Friday until the following Friday evening at 7:00 pm. If the weekend of the parent with parenting time during March Break falls at the end of the March Break, the parenting time shall begin on Monday morning at 9:00 am until drop off at school following the Break.

c. Either parent may travel with the children if it is their year to be with them over the March Break. Notice shall be given to the other parent following the travel protocol ordered.

12. EASTER WEEKEND

Easter weekend shall begin Thursday from after school and end on Tuesday morning with drop off at school. The children shall spend each Easter weekend with their father in odd-numbered years and with their mother in even-numbered years with pick up after school Thursday and drop off to school on Tuesday.

13. MOTHER’S DAY/FATHER’S DAY

The children shall spend time with the honoured parent from the Sunday morning at 10:00 am for the remainder of the weekend with drop off to school on Monday morning. Transition protocols shall be followed.

14. THANKSGIVING WEEKEND

The weekend begins Friday from after school and ends on Tuesday morning with drop off at school. The children shall spend each Thanksgiving weekend with their father in even-numbered years and with their mother in odd-numbered years with pick up after school Friday and drop off to school on Tuesday.

15. HALLOWEEN

a. In odd-numbered years the children shall be resident with their father from after school until drop off to school the next morning or until the regular schedule resumes. In even-numbered years the children shall be resident with their mother for the same duration. If Halloween falls on a Friday it shall begin after school until drop off to the resident parent at 9:00 am the following morning. If Halloween falls on a Saturday or Sunday, it shall begin at 4:00 pm until drop off to the resident parent at 9:00 am the following morning or at school, as the case may be.

b. The parent who has responsibility for the children that Halloween will be responsible for the organization and purchasing of the children’s costumes. These costumes will be made available to the child for other Halloween related events (such as school Halloween Parties) if need be.

16. CHRISTMAS EVE, CHRISTMAS DAY & CHRISTMAS SCHOOL BREAK

a. The Christmas Break shall be shared equally and defined as per the dates of the school board within the district the children attend.

b. The Break will be defined as beginning at the end of the last day of school (inclusive of PD days and early dismissals) and ending at the start of the first day of school. The transition shall take place at noon of the midway point. Every attempt shall be made to incorporate the regular rotation of weekends into the schedule.

c. The father shall spend time with the children during the first half of the break and his regular weekend incorporating Christmas Eve and Christmas Day into this period during even-numbered years. The mother shall spend time with the children during the first half of the break and her regular weekend incorporating Christmas Eve and Christmas Day into this period during odd-numbered years. The mother shall spend time with the children during the second half of the break and her regular weekend incorporating New Year’s Eve and New Year’s Day during even-numbered years. The father shall spend time with the children during the second half of the break and his regular weekend incorporating New Year’s Eve and New Year’s Day during odd-numbered years. The break shall be attached to each parents’ regularly scheduled weekend, in order for the parents’ regular rotation of weekends to remain undisturbed.

d. Either parent may elect to travel during this period over their own scheduled time, following the travel protocol ordered.

17. PROFESSIONAL ACTIVITY DAYS AND OTHER NON-SPECIFIED SCHOOL HOLIDAYS

a. If a PA day or other school holiday that has not been identified falls on a Friday the children shall be resident with the parent who would normally have them that weekend from Thursday after school until the regular schedule resumes with drop off to school on Monday morning. If the PA day is a Monday the children shall be resident with the parent who would normally have them that weekend from Friday after school until Tuesday morning with a drop off to school. This pattern will also be applied in the event that a PA day precedes a holiday.

b. In the event that a PA day or other school holiday that has not been identified falls on a weekday it shall be as per the usual schedule.

18. CHANGES TO SCHEDULE

a. This change applies to when the non-resident parent would like to have the children for a special occasion and when the scheduling of these occasions is out of the control of the non-resident parent. Examples are: family weddings, work Christmas parties, family birthdays, special anniversaries, etc. Should the need arise, the parents shall communicate by email about a request for a change or modification to the usual and/or holiday schedule with as much notice as possible. A response shall be provided within 48 hours of receiving the email. If an answer cannot be given within this time, the parents shall advise when he or she expects to be able to notify whether or not the change is agreeable. Agreed-to changes shall be finalized in writing.

b. The parents shall canvas proposed and/or potential changes to the schedule first with the other parent prior to mentioning anything to the children about a change and/or a special activity.

c. The parent who first receives an invitation for the children to attend a friend’s birthday party shall advise the other parent in writing, forthwith, if the children are scheduled to be with that parent during the time of the party. The resident parent shall make every effort to allow the children to attend these parties, taking into account previous plans as well as the children’s preferences. It may be necessary for the resident parent to change plans they may have made that may not be as important to the children as the party is (e.g., going out for dinner with friends). The resident parent is responsible for organization and payment of the birthday gift.

d. It is understood that traffic and inclement weather may cause delays. Notwithstanding, it is recommended that every effort (including allowing for more time when necessary) shall be made to be punctual in the transfer and pick up of the children for parenting time and for activities. If one parent cannot transfer the children within 15 minutes of the scheduled time, he or she shall notify the other parent by text message when the need for the delay arises.

e. If significant changes in the drop-off and return times are unavoidable, these shall be communicated to the other parent as soon as these changes become known to the parent having to make them.

19. TELEPHONE AND EMAIL COMMUNICATION

a. The resident parent shall facilitate phone contact with the non-resident parent daily.

b. The parents shall seek to determine a mutually agreeable time for the daily call. Schedules and routines of children cannot always be predicted. The obligation is to facilitate one call per day at a time that fits into the children’s schedules. In an effort to reduce the conflict around telephone calls, in the event that the non-resident parent is not available to take the call, the parent has no further obligation to further facilitate contact on that day.

c. The parents shall encourage the children to feel comfortable while communicating with the other parent and shall afford the children the privacy to do so.

20. TRAVEL

a. When a parent travels alone or with the children, the parent will provide a contact number to the other parent in case of a child-related emergency and/or if the children want to contact the traveling parent.

b. The location(s) and phone number(s) of the children’s whereabouts when traveling with the resident parent out of town shall be provided prior to departure to the non-resident parent in case of an emergency.

c. The children may travel with either parent outside of Canada as per the usual and holiday schedules with written notice to the other parent as soon as knowledge of travel is available but with no less than 30-days notice. A full itinerary (i.e., location, airline name and number, times of travel, hotel name and number, etc.) shall be supplied at the time written notice is provided.

d. The written notarized consent required by customs/immigration and the necessary documentation required for travel (i.e., birth certificate, passport) shall be provided to the traveling parent no less than 72 hours prior to departure. The traveling parent shall be responsible for the securing and the costs of the notarized consent.

21. LEGAL DOCUMENTS

The father shall be the librarian of the children’s health cards, Canadian passports, and birth certificates and the mother shall have photocopies. The health cards and birth certificates shall travel with the children when they travel out of town overnight. The respective cards shall be returned to the father when the children are returned. The father is responsible for renewing the children’s Canadian passports, and does not require the consent of the mother.

22. CHILD SUPPORT

Based on Ms. Simonar’s imputed annual income of $22,500, Ms. Simonar shall pay to Mr. Lidstone child support for the children in accordance with the Child Support Guidelines Table Amount of $337 on the first day of each month, commencing June 1, 2019, which shall be reviewed each year and/or varied by court order, until no longer payable. A Support Deduction Order is to issue such that Ms. Simonar shall pay child support, as ordered, through the Family Responsibility Office.

23. CANADA CHILD BENEFIT

Mr. Lidstone is entitled to 100% of the Canada Child Benefit, the refundable children’s HST credits and the Ontario Child Benefit.

24. Ms. Simonar’s Motion to Change dated July 12, 2018 is otherwise dismissed.

V.R. Chiappetta J

Released: May 27, 2019

COURT FILE NO.: 3621/16

DATE: 2019-05-27

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Norman Gregory Thomas Lidstone Applicant

– and –

Chrystal Anne Simonar Respondent

REASONS FOR JUDGMENT

V.R. Chiappetta J.

Released: May 27, 2019