Court File and Parties

COURT FILE NO.: FC-13-FO401

DATE: 2019-12-20

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

IGOR KAZBEROV

Applicant / Moving Pary

– and –

TATYANA MIKHAILOVNA KOTLYACHKOVA

Respondent

STOJNI, L., counsel for the Applicant/Moving Party

GREEN, A., counsel for the Respondent

HEARD: September 16, 2019 – October 4, 2019; Submissions November 12, 2019

Breithaupt Smith, J.

REASONS FOR JUDGMENT

[1] This trial, spanning fourteen days of evidence, concerns the future residency of one child, A. N. K. (“A.”), who is eight years of age. A. was born and raised in Waterloo Region, and his father, Igor Kazberov (“Father”) asks that he remain here. His mother, Tatyana Kotlyachkova (“Mother”), seeks the court’s permission to move A.’s primary residence to Ann Arbor, Michigan, where her fiancé and his daughter reside. Secondary issues to be addressed, which both parties agree are of much less importance, are adjustments to the residency schedule and child support, both of which are sought by Father to accord with the circumstances since the Final Order in this matter was made, on consent, on September 22, 2005. Finally, Mother seeks a declaration that Father is a vexatious litigant pursuant to s. 140(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43 (“CJA”).

Chronology

[2] The history, in brief, of this family is as follows:

• Father was born in Chabayevsa, Kyibyshev, Russia, on March 17, 1960. He has one sister, Olga, and his paternal grandparents resided with his family throughout his childhood. He received his master’s degree in Physics from the Faculty of Mechanics and Mathematics from Moscow State University in 1982. He met his wife, Larissa, in 1984. Larissa received her master’s degree in Mathematics from Moscow State University in 1991.

• Father and Larissa were married on August 10, 1984 in Russia. On February 20, 1987, their only child, Olga, was born. In anticipation of Olga’s future career and of the possibility of emigration from Russia, Father and Larissa sent Olga to an English-speaking school.

• Following a distressing incident when young Olga was shot at with a compressed air rifle while taking the garbage out of their apartment, Father and Larissa decided to immediately emigrate to get away from the deteriorating political climate in Russia. They chose Canada because of its education and health care systems and its familiar climate. They arrived in Waterloo, Ontario on November 6, 1998.

• Upon arriving, Father and Larissa worked various odd jobs and started up different entrepreneurial initiatives, including driving a taxi cab. Father started working full-time in his field in 1999 and their family home was purchased in Waterloo in 2002. Olga excelled in school and, after attending the University of Waterloo, completed her Doctorate Degree at Stanford University in 2018. She is married and has one daughter, Lillian, who is nine years old.

• Mother was born on June 14, 1980 in Novosibirsk, Russia. She has one brother, Sergei, who is now married to Oleysia. She has three nephews: Stephan (age 13); Evan (age 9); and Viktor (age 2). Her father and Sergei immigrated to Waterloo, Ontario shortly before she and her mother did in June of 2002. She had obtained her undergraduate degree in Russia and earned her master’s degree in Slavic Literature from the University of Waterloo in Spring 2005.

• The parties met in late 2001 through mutual friends when attending a party for the local Russian community. Their intimate relationship started sometime in 2002 or 2003. Father’s evidence, which Mother denies, is that he attempted to end the relationship in 2005 after Mother had completed her schooling and upon Larissa learning of the relationship.

• On or about March 12, 2006 between midnight and 3:00 a.m., Father, Larissa and Olga (who was attending the University of Waterloo at that time) were awakened by the smashing of a patio door leading from the kitchen to the deck at the rear of their home. Father and Larissa went down into the kitchen to discover Mother standing at the patio door with a large stone in her hand, blood on her hands and glass on the floor. Police were not called. The next day, Mother compensated Father and Larissa by providing $1,000 in cash to cover the repair cost.

• On March 16, 2006, Mother returned to the Kazberov home and rang the doorbell. When Larissa answered the door and told her that Father was not home, Mother refused to leave, instead climbing up onto the roof of a portion of the home. After at least three hours, and when Mother stopped responding to Larissa, who was trying to coax her down from the roof, Larissa called first responders for assistance. Eventually, the paramedics were able to convince Mother to come down from the rooftop and into the kitchen of the Kazberov home, where the attending police officer spoke with Larissa and with Mother separately. The attending officer noticed the broken patio door, but Larissa did not want Mother to be charged as any police involvement could jeopardize Mother’s pending application for permanent residency. Mother admitted to misleading the attending officer about the reasons underlying her behaviour as she was ashamed: she told the attending officer that she was upset after having lost her job, when in fact she was upset due to conflict in her relationship with Father.

• Mother travelled to Europe in the summer of 2006, and the relationship between Mother and Father continued with decreasing intensity over the next few years.

• In 2010, as she watched other people her age settling into family life, Mother decided that she wanted to have a child. She became pregnant and, after taking some time to come to terms with the situation, Father and Larissa decided to welcome the baby.

• A. was born on March 5, 2011. Mother sent Father an email with photos of A. shortly after his birth. Although Mother denies it, Father testified that he first met A. at the Kotlyachkov residence when A. was about two weeks old. All agree that Mother brought A. to the Kazperov home for a visit when he was six or seven months old. Although a paternity test was conducted at Father’s request in the summer of 2012, Larissa testified that upon seeing A. there was no question in her mind regarding A.’s parentage due to the obvious family resemblance.

• Mother’s evidence is that she told her parents about her relationship with Father in the fall of 2011.

• In January 2012, Mother met Mr. Yevgeny Medvedev of Michigan via an online dating website catering to the Russian community. Mr. Medvedev was introduced to A. almost immediately, and came for an extended visit in the summer of 2012, staying at a local University residence. During this time, Father was not seeing much of A. Although they discussed marriage, the relationship between Mr. Medvedev and Mother ended in 2013.

• On October 19, 2012, Father’s then-lawyer wrote to Mother asking to start contact between Father and A. and open negotiations regarding A.’s parenting. Father had not seen A. since the meeting at the Kazperov residence approximately one year earlier. Mother did not respond to that letter. On or about March 8, 2013, Mother was served with Father’s Application. Although Mother claimed to have been upset by receipt of the Application, she expected that Father would start a case.

• Father’s first regular access with A. was supervised at Child & Parent Place (“CAPP”) following the issuing, on consent, of the Temporary Order of Caspers J. on November 13, 2013. The only CAPP visit that Father and A. did not attend as scheduled was the one cancelled by Mother on December 21, 2013 as Mother felt that the weather was too inclement for her to drive from Waterloo to the CAPP location in Cambridge on that date.

• Mother met Mr. Pavel Nagorny in December 2013. In late January 2014, he came from his home in Ann Arbor, Michigan to Waterloo, to stay with the Kotlyachkov family for the first time. In early February 2014, Mr. Nagorny met A. Soon thereafter, A. was residing with him on alternate weekends when he drove from Michigan to stay in Waterloo.

• In May 2014 Father’s access was no longer supervised, and a graduated plan was implemented. By August 2014, A. was spending alternate weekends with Father. On September 22, 2015, the Final Order of Rogers J. (the “Final Order”) was reached on consent, with regular access consisting of A. spending Wednesday evenings and alternate weekends in Father’s care. Wednesday evening access was to become overnight to Thursday effective September 2017, when A. was to start Grade 1. Although the Final Order provides that Father’s alternate weekends end on Sundays at 7:00 p.m., Mother misinterpreted it from A’s first weekend with Father onward, and Father’s alternate weekends have consistently ended with his delivery of A. to school on Monday morning.

• In July 2016 Father brought this Motion to Change the Final Order, requesting four main adjustments: to formalize his alternate weekend access as ending Monday morning; to accelerate the commencement of Wednesday overnight access; for an equal division of summer vacation time; and to reduce child support to accord with his 2015 income. In response, Mother asked that Father’s Motion to Change be dismissed as an abuse of process and that he be declared a vexatious litigant.

• Following a Case Conference, Father brought a motion seeking the appointment of the Office of the Children’s Lawyer (“OCL”) to provide a report and recommendations regarding A.’s best interests on the issue of the expansion of access overnight on Wednesdays and in the summer. Mother resisted the request and brought her own cross-motion for financial disclosure which also asked that Father’s Motion to Change be dismissed as an abuse of process. Mother withdrew her cross-motion, leaving only Father’s OCL request motion to be argued on December 13, 2016. On January 24, 2017 Rogers J. dismissed Father’s motion and on February 28, 2017 the issue of costs was addressed before Her Honour. Mother had become engaged to be married to Mr. Nagorny on February 25, 2017, and, when the family attended in court on February 28, 2017, she asked Rogers J. for leave to amend her pleadings to seek permission to move A. to Michigan. As a result, the involvement of the OCL was revived on consent of both parties and Ms. Christine Glogovic was assigned as Clinical Investigator on June 30, 2017.

• Ms. Glogovic completed her investigation and filed her Report on October 6, 2017. When the matter came up for its first Trial Management Conference on October 17, 2018, the parties jointly asked for an update to the OCL Report having regard to the passage of time. That request was declined by the OCL (incidentally, unbeknownst to Ms. Glogovic) on December 20, 2018. Following the expansion of the Unified Family Court to the Region of Waterloo, a second Trial Management Conference was held on May 19, 2019 at which time Father asked for a Voice of the Child Report to provide some measure of update to the now dated OCL Report. Mother would not consent to this request, or to Father’s suggestion that a privately-retained social worker be engaged for this purpose at his expense.

• This trial was heard before me from September 16, 2019 through to October 4, 2019, with closing submissions made on November 12, 2019.

Witnesses & Credibility

[3] Eight witnesses testified in total and for the balance of these Reasons I will identify each based on their relationship to A.:

i. Christine Glogovic, Clinician appointed by the OCL;

ii. Mother;

iii. Pavel Nagorny, Mother’s Fiancé;

iv. Oleysia Kotlyachkova, Maternal Aunt (by marriage to Mother’s brother);

v. Tamara Kotlyachkova, Maternal Grandmother;

vi. Father;

vii. Larissa Kazberov, Step-Mother; and

viii. Olga Cormier, Step-Sister.

[4] Each of Father; Maternal Grandmother; and Step-Mother required translation between English and Russian, and the translators were both accepted as expert witnesses. Note that I will not comment on each witness’ credibility, but that the findings regarding credibility set out in the balance of this section inform my treatment of this matter.

[5] Mother’s theory of this case is that her young adulthood was consumed by an inappropriate relationship with a much older, married man, which relationship was marked by an imbalance of power in Father’s favour. She repeatedly raised an allegation that Father placed sexual demands upon her, demands she flatly refused. Her position is that Father’s sole motivation in refusing to agree to her proposed move with A. to Michigan is to control her life and her future, and that Father orchestrated this litigation to ruin her financially. She asks that Father be declared a vexatious litigant thus requiring him to obtain leave before returning this matter to court. By taking this dramatic stance, she has heightened the overall emotional tension in this matter unnecessarily. She has also forced the issue of credibility regarding matters pre-dating the Final Order to the forefront by obligating the court to contend with the alleged power imbalance and her view of Father’s motivation in this litigation.

[6] Because of this approach, much was made by Mother of Father’s credibility or lack thereof. Strangely, Mother did not testify at length about an incongruity that she put forward as demonstrative of Father’s unreliability: the alleged sham marriage proposal. Mother’s initial testimony was that she decided to become pregnant and that Father expressed to her that he did not intend to marry her but that he felt that every woman had a right to have a child if she chose to do so. She said:

He had never promised to marry me or anything, like, and I was understanding that, like, this decision won’t change and it was never something I would ask him to do.

Later, in giving an example of Father’s alleged manipulation of her during the summer of 2012, Mother said:

He has tried different things, one day he was saying you have to come back, I want to marry you, like, child is important like, we’ll build a family you know, my eldest daughter is grown up.

However, when she “refused these types of things” Father:

…would send an email like several days later saying “oh it was actually a trick, we agreed with my wife that I will trick you, you will come back to me, you’ll maybe…” maybe there was something about “you will break up with that guy and you will again become my mistress.”

[7] No such emails were produced. Mother’s evidence therefore was that, although she knew throughout the relationship that Father did not intend to marry her, he dangled the possibility of marriage before her in the summer of 2012 in order to trick her into resuming her role as his mistress. Without corroborating evidence such as the email confirming the “trick,” Mother’s perspective about Father’s motivation in sending such an email bolsters her theory but does not assist me in determining credibility.

[8] The evidentiary issues continued to swirl around the alleged sham marriage proposal after Mother’s testimony ended. Perhaps because Mother’s evidence was unclear, it was not until Maternal Grandmother took the stand that the alleged sham marriage proposal took centre stage. Maternal Grandmother testified that when A. was about nine months old, Father came to their home and “asked for the hand of Tatyana and we told him that Tatyana had the right to decide for herself whether she wants to get married to him or not.” Maternal Grandmother’s opinion at that time was that her daughter should not marry Father as he was an immoral type of person. Later that year, Maternal Grandmother described Mother tearfully telling her about receiving “a message that all of the things in regards to marriage was a joke, and that Larissa played along with him and he was not going to marry Tatyana and was never going to.” When asked in cross-examination about any marriage proposal, Father’s evidence was that no such discussions took place either with Mother or with Maternal Grandparents and that he had always given Mother the impression that he would not marry her. This testimony was consistent with Mother’s initial evidence as noted above. Father’s testimony led to the presentation of portions of Father’s transcript on Questioning (undertaken during the original litigation between these parties) on May 8, 2015.[^1] I note that examining counsel was not counsel at trial. The following excerpt was intended to demonstrate Father’s propensity to lie:

Q. 352 Will you just answer my questions please? The next question is it was after she told you that she didn’t want to be with you any more that you then promised to marry her, right?

A. Not right away. Not right away.

Q. 353 And the reason you promised to marry her was so that she would drop her boyfriend and come back to you, right?

A. No that was not the case the main reason for me was different.

Q. 354 And then in July you sent her an email saying that you lied when you told her you would marry her?

A. Let’s have a look at it.

[Examining Counsel does not produce the email, and therefore this line ends.]

[9] The transcript demonstrates three things: (1) the examining lawyer took a combative, rather than a fact-finding, approach; (2) consequently, as the examining lawyer chose to disguise statements and theories as questions, the transcript is largely unhelpful; and (3) as a result, and having regard to the necessity for translation of Father’s testimony, this transcript excerpt does not clarify whether Father ever made a proposal of marriage to Mother or not. Because of this, and while there may be some concerns with aspects of Father’s evidence, the Questioning transcript does not impugn Father’s overall credibility.

[10] The alleged sham marriage proposal does, however, provide an example of my concerns about Maternal Grandmother’s credibility, and I make the following comments in that regard:

i. Maternal Grandmother’s testimony was primarily constructed around hearsay – indeed she said that she learned that the alleged marriage proposal was a “trick” when Mother told her about it. Similarly, on multiple occasions through her testimony she purported to comment about conversations between her husband and Father despite her husband’s availability to testify. I note that Maternal Grandfather sat in the courtroom for several days and that translation services were available.

ii. In cross-examination, she manipulated her testimony to cast her daughter in a better light – by way of example, despite the otherwise undisputed evidence that A. was routinely taken to and from school by his Maternal Grandparents due to Mother’s work schedule, Maternal Grandmother’s response when asked whether Mother left for work before A. was taken to school was: “No, I didn’t say that, when she has a chance she takes him to school with great pleasure.”

iii. Further, she minimized her bond with A. even though they have resided together, and she has cared for him, his entire life.

iv. On the topic of Father, her feelings are crystal clear: “I don’t want to breathe the same air that he is breathing.”

Maternal Grandmother’s dislike of Father and her alignment with Mother overwhelm her ability to be honest with the court and I reject her evidence in its entirety.

[11] The evidence of Step-Mother stands in stark contrast to that of Maternal Grandmother. One might imagine that Step-Mother would be pleased to see Father’s former mistress move far away. If her motivations were self-serving, she might well attempt to influence her husband to agree to Mother’s proposed move. Instead, her focus is entirely upon A., his lived experiences and his bond with his family on both sides. Although the repeated betrayal of the on-going affair between Father and Mother was undoubtedly painful for her, particularly as she originally wanted to have more than one child with Father herself, now for her “the house has filled with life and meaning.” Wherever the evidence of another witness contradicts that of Step-Mother, I prefer her testimony.

Clinical Investigation by the Office of the Children’s Lawyer

[12] As noted, Ms. Christine Glogovic was appointed as Clinician under s. 112 of the CJA to conduct an investigation and produce a report regarding her recommendations. Ms. Glogovic is a registered Social Worker with a Master of Social Work degree. She established her private practice in 2008 and has been with the OCL since 2013; she estimates that she has conducted sixty assessments since. Her résumé speaks to a varied professional life including significant focused training on the conduct of custody and access assessments. This matter was assigned to her on June 30, 2017; on September 26, 2017 she conducted the Disclosure Meeting; and her Report is dated October 6, 2017. Her Report is dated, as the trial was conducted almost two years after its release. Although the parties had jointly sought an update to her Report, that request was denied in December of 2018; Ms. Glogovic was unaware of the update request and was not involved in the OCL’s decision in that regard. When the matter came to a second Trial Management Conference on May 19, 2019,[^2] Father asked for a Voice of the Child Report to provide more current information regarding A.’s views and preferences but Mother did not agree. Father offered to pay for a privately-retained social worker to provide an update but this too was declined by Mother.

[13] Mother questioned Ms. Glogovic’s methodology and recommendations. Following the release of the OCL Report, Mother delivered a Dispute which focused primarily on the contention that in generating her recommendations, Ms. Glogovic’s focus was improperly upon minimizing the disruption to A.’s life, which is a different legal analysis than that of determining A.’s best interests. The OCL’s responding letter agreed with two factual corrections, and otherwise confirmed that no “additional information [has] been put forward that would cause the Office of the Children’s Lawyer to change the recommendations or the content of the report…” Mother raised the same concerns at trial as had been set out in her Dispute to the OCL Report, which concluded:

The Investigator clearly failed to consider the best interests of the child and to conduct a full analysis of the parenting plans put forward by the parents. She particularly failed to seriously consider the Mother’s potential relocation, nor did she consider how it would affect A. if the Mother was not permitted to relocate to Michigan, and therefore not be permitted to marry and reside with [Mother’s Fiancé].

If Mother had seen any value in having a second professional address these alleged gaps in Ms. Glogovic’s analysis, she could have taken Father up on his offer. If Mother felt that Ms. Glogovic had misrepresented A.’s views or that her methodology in interviewing A. was suspect, she could have agreed with the request for a Voice of the Child Report. She did neither, choosing instead to cross-examine Ms. Glogovic on these points.

[14] Ms. Glogovic’s recommendations are not determinative of the issues; they are but one piece of the overall analysis and the court cannot delegate its function and simply follow such recommendations. It is up to the court to render the decision.[^3] However, with respect to bringing the views and preferences of children before the court, OCL Clinicians provide inherently valuable assistance as neutral conduits of such evidence. Where a child’s views can be reasonably ascertained, we must have them to conduct a complete analysis. Although the evidence tendered is hearsay, it is both necessary[^4] and, when coming through the independently-appointed OCL Clinician, presumed to be reliable, and thus the test in R. v. Khan[^5] is met. Consequently, and in answer to Mother’s concerns about Ms. Glogovic’s methodology and recommendations, my use of her evidence is limited to her observations and her recounting of A’s stated views and preferences.

Substantive Issues

[15] This matter raises the following substantive questions:

i. Has a material change in circumstances taken place justifying the review of the Final Order of Justice Rogers dated September 22, 2015?

ii. If so, what residency arrangement is in A.’s best interests: should the court authorize his move to Ann Arbor, Michigan or should he remain in Waterloo?

iii. Should Father be declared a vexatious litigant under s. 140(1) of the Courts of Justice Act?

iv. What adjustments should be made to the division of expenses for A. under section 7 of the Federal Child Support Guidelines?

I. Has a material change in circumstances occurred?

[16] The leading mobility case of Gordon v. Goertz[^6] starts with the analysis of the existence of a material change in circumstances. At para. 13, the Supreme Court defines what is required to vary a custody order:

It follows that before entering on the merits of an application to vary a custody order 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.

[17] There is no question that a move from Waterloo Region to Ann Arbor, Michigan would constitute a change in circumstances materially affecting A. The interpretation of foreseeability having regard to paragraph 13 of the Final Order requires some discussion, however. Paragraph 13 of the Final Order exemplifies what has become standard language in many consent orders regarding the mobility of a child’s primary residence:

13. The child, [A.]’s, primary residence shall not be changed from the Regional Municipality of Waterloo, Ontario without the written consent of the other parent, such consent not to be unreasonably withheld, or a Court Order.

[18] Having regard to the frequency with which such provisions are included in modern Minutes of Settlement, it is important to re-contextualize the Supreme Court of Canada’s third criteria, as set out above. Gordon v. Goertz predates the Family Law Rules and the conceptual shift away from the adversarial litigation approach to the resolution of family disputes. The court now has a positive duty to manage cases, which includes the obligations to: narrow the issues; encourage parents to avail themselves of out-of-court resolution options; and help parties to settle as many of the issues as possible. It can no longer, therefore, be presumed that a Final Order is reached following a trial wherein all issues have been canvassed. If an issue covered by a Final Order was resolved consensually and therefore was never addressed at trial, it is impossible to analyse whether it “was either not foreseen or could not have been reasonably contemplated by the judge who made the initial order” as required by the third branch of the material change test. We must therefore take a different approach to this third branch in the modern context.

[19] The court would expect a non-residential parent to acquiesce to a change of the child’s primary residence which does not materially impact upon his or her time with the child. Mother’s relationship with Mr. Nagorny had been ongoing for well more than a year when the Final Order was made. Rogers J. did not preside over a trial of this matter, and there appears to have been no evidence before Her Honour to suggest that a move outside of the Regional Municipality of Waterloo was being contemplated at that time. As a move of the magnitude sought by Mother would materially impact upon Father’s parenting time with A., it cannot be said that such a move could have been reasonably contemplated by Rogers J. when Her Honour accepted the Final Minutes of Settlement generated by the parties. Indeed, Mother’s proposed move to Michigan with A. does not appear to have been known to anyone until February 28, 2017 when she sought to amend her pleadings in that regard. Therefore, regardless of whether or not the mobility issue could have been reasonably foreseeable, I am satisfied that Mother’s proposed move to Michigan with A. constitutes a material change in circumstances and I find that the first stage of the two-part test set out at s. 29 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (“CLRA”), is met.

[20] If the move does not take place, Mother argues that Father continues to bear the burden of proving that a material change in circumstances otherwise exists as a prerequisite to the consideration of his request for modifications to the Final Order. I disagree. The analysis of a child’s best interests is not parceled into different elements of a material change in his or her circumstances as pleaded by either parent. Once any material change (existing or contemplated, as in mobility matters) has been demonstrated, a fresh inquiry as to the child’s best interests must be undertaken. The inquiry cannot be limited first to the circumstances around the potential move without incorporating all aspects of the child’s lived experience since the date of the Final Order, with a secondary inquiry to be conducted thereafter if the move is disallowed. Such an approach would result in repetitive evidence and protracted litigation and would be in direct contravention of the court’s primary objective to deal with cases in a fair and expeditious manner that is proportionately appropriate to their complexity and the availability of judicial resources.

[21] The analysis turns therefore to A.’s best interests. Is it in A’s best interests to move to Ann Arbor? What residency schedule is in his best interests?

II. A.’s Best Interests

[22] After confirming the importance of demonstrating a material change in circumstances and underscoring the need for a fresh inquiry as to a child’s best interests, the Supreme Court’s decision in Gordon v. Goertz provides the basic framework for the analysis of mobility cases as follows:

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

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

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

6. The focus is on the best interests of the child, not the 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 of a change in custody; and

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

[23] Recall that the governing legislation in this matter is the CLRA as these parents were never married. While some of the factors outlined in s. 24(2) of the CLRA were specifically referenced in the Supreme Court’s above-noted framework, the following factors are conspicuously absent, and therefore remain to be separately enumerated (using the numbering in s. 24(2) itself):

(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;

(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;

[24] Of course, these factors have been individually reviewed over the breadth of cases that have been decided in the twenty-three years since Gordon v. Goertz was released. By way of example, the Court of Appeal for Ontario focused on the impact of a potential move on the custodial parent’s career advancement and its corresponding influence upon that parent’s ability to meet the child’s needs in Bjornson v. Creighton (2002), 2002 CanLII 45125 (ON CA), 221 D.L.R. (4th) 489 (Ont. C.A.). A research dissertation reviewing all such cases is unnecessary, in my view, particularly having regard to the Supreme Court’s confirmation that each mobility case turns on its own specific facts.[^7]

[25] I will apply the following organization to these factors, with a view to creating a rubric that incorporates all considerations into a logically-flowing analysis:

a. The existing relationship between the child and the custodial parent(s) (here, Mother);

b. The existing relationship between the child and the access parent(s) (here, Father);

c. The existing relationship between the child and extended family and caregivers with whom the child shares an emotional bond;

d. The “maximum contact” principle;

e. The child’s views and preferences;

f. The plan(s) proposed by each parent for the child’s care and upbringing, including the permanence and stability of the family unit with which it is proposed that the child will live and the family’s post-separation history as it relates to the feasibility of the plan(s);

g. The impact of the custodial parent’s reason for moving upon the meeting of the child’s needs, including financial considerations;

h. Disruption to the child of a change in custody, where applicable; and

i. Disruption to the child of a removal from his or her broader community.

a. A.’s Relationship with Mother

[26] A. is undoubtedly closely-bonded with his Mother. They love one another, and A. was clear and consistent in telling Ms. Glogovic that he wanted to continue to live primarily with his Mother. I do not question that Mother is an excellent parent. She loves A. and he loves her. She attends to his needs in a timely fashion, even if the timing may not be commensurate with Father’s expectations. With Father’s financial support, she has provided A. with a full and rich childhood thus far, including participation in a variety of activities. She is a working single mother with an active and intelligent child, and she has succeeded in raising him well. There is no reason to question Mother’s connection with A., but I would be remiss if I did not comment upon Mother’s approach to prioritizing her one-on-one time with him.

[27] Calendars were produced by Father’s counsel as an aide to the court to provide a visual representation of the travel schedule and activities of A. and his parents. These calendars were generated based upon the underlying exhibits and no suggestion was made that any of the evidence heard at trial was inconsistent with the visual representations.

[28] From January 2016, when A. was in Junior Kindergarten, through to the spring of his Senior Kindergarten year, A. attended a physical activity on Monday and Tuesday evenings (skating, soccer, gymnastics or swimming lessons); and Kindermusik on Thursday evenings. For a five-week period, A. attended art class on Tuesdays before his physical activity lesson. On Wednesday evenings A. was in Father’s care. A. alternated his weekends between his parents’ two homes. Throughout this period, Mother travelled to Michigan on all of Father’s alternate weekends except two. Mother also travelled to Michigan, leaving A. in her parents’ care, on four of her own scheduled weekends with A. As Mother is the sole custodial parent, it is unclear as to what her plan would have been if A. required her presence – such as with respect to medical care – during the times that she was out of Canada. While certainly medical instructions can be provided over the telephone, it would be a poor way to comfort a young child who must be taken to the hospital.

[29] While I am inclined to agree with Father that A. was over-programmed at various points in time, Mother is the custodial parent and her view on A.’s participation in activities should be accorded significant deference. Having said that, her choice to enrol A. in this volume of activities has the practical result of reducing her direct parenting time with him. Further, on weekends when A. is not in her care, and often when he is, it appears that her energies are primarily spent in nurturing her growing relationship with her fiancé and blending the two single-parent families into one nuclear family. Mother is free to make these choices, but it is fair for Father to point to them in defence of the threat posed by this mobility case to his relationship with A.

b. A.’s Relationship with Father

[30] Similarly, there is no question that A. is closely bonded with Father. The early years wherein A. and Father had limited contact have not had any lasting negative impact upon the growth of their relationship. In fact, A. was very consistent in telling Ms. Glogovic that he loves both of his parents and extended families; that he loves spending time with each parent; and that there is nothing that he doesn’t like in either household. Since the Final Order was made, A. has been in Father’s care alternate weekends from Friday after school through to Monday delivery to school; and he has spent Wednesdays overnight in Father’s home since September 2017. In September 2018, A. started piano lessons on Wednesday evenings, with the piano teacher coming into Father’s home. Of course, Father has had additional vacation parenting time over the years, although his summer parenting time has not been significantly expanded despite his availability to care for A. Father attends parent/teacher conferences; participates in field trips; and has volunteered in A.’s classroom. Much evidence was heard about his attempts to be involved in A.’s appointments at KidsAbility. He and A. play tennis together; ride their bikes together; and go fishing. Father plays Roblox with A., including remotely online during times when A. is in Michigan. Despite the age difference, Father is an active and involved parent. I have no reason to believe that A. is not equally bonded with both of his parents.

c. A.’s Relationship with Extended Family and Caregivers

[31] A. is fortunate to enjoy close relationships with many extended family members:

i. Maternal Grandparents: In her Report, Ms. Glogovic writes: “A. has resided with [Mother] and his maternal grandparents since he was born. They presented as a close knit family, who are supportive of one another and very actively involved in A’s life.” With obvious enjoyment of the recollections, Maternal Grandmother described taking A. to a Russian children’s play in Toronto and skiing. On an average school day, Maternal Grandmother prepares breakfast for A., she and Maternal Grandfather take him to and from school; and she gives him a snack and cares for him after school until Mother returns home from work. Despite this evidence, she was insistent in her position that a move to Michigan would not be a big change for A. even though he would no longer have his Maternal Grandparents in his life on a daily basis. She did admit that she would miss A. if he were to move away. I find that A. has a close and loving relationship with his Maternal Grandparents.

ii. Maternal Aunt, Uncle & Cousins: Mother has a brother, Sergei, whose wife (A.’s Aunt) testified that the two families get together approximately once per month and more frequently during the summer months. A. gets along with all three of his cousins, but is closest to Evan, who is only one year older than A. They spend P.D. days together at their grandparents’ home. Maternal Aunt confirmed that her three children liked having A. around, but twice emphasized that her children are more closely bonded to one another than any of them are to A. Unfortunately, I can only infer that Maternal Aunt felt that minimizing the strength of the relationship between A. and her children would bolster Mother’s case. I find that A. has a loving familial relationship with his cousins, and is particularly close to Evan.

iii. Mother’s Fiancé and his daughter: Undoubtedly, Mother’s Fiancé has made a very positive impression upon all her family members. In her Report, Ms. Glogovic described appropriate parenting strategies demonstrated by Mother’s Fiancé in relation to A. and commented that “A. appeared to be at ease with [Mother] and [Mother’s Fiancé] who engaged A. in child focused educational play.” A. said that he loves Mother’s Fiancé and thinks he is “great.” His daughter, Alex, is one year older than A. and lives primarily with him in Ann Arbor, spending most weekends with her mother. The two children met sometime in 2015 and enjoy one another’s company on the occasions when they are together, approximately six or so occasions per year. There is no question that they are friends. Unfortunately, Ms. Glogovic’s testimony at trial was completely unhelpful on the question of the bond between A. and Alex. In her Report, Alex is not mentioned by A. until Mother arranges a Skype call between them the night before A.’s fourth and final interview with the OCL Clinician. Ms. Glogovic reports “A. advised that Alex is [Mother’s Fiancé’s] daughter and his mom told him that it is okay to call her his sister.” At trial, Ms. Glogovic initially agreed with Mother’s counsel’s suggestion that A. considers Alex as his sister but then resiled from that position, alluding vaguely to A.’s being connected with all of his family members. Having regard to her demeanour during her testimony, it is my view that Ms. Glogovic likely confused Alex with Lillian, another girl in A.’s extended family, and was not sufficiently prepared for trial to be able to correct herself when Father’s counsel sought clarification.[^8] I find that A. has grown very close to Mother’s Fiancé but that his relationship with Alex is simply an active friendship between two children.

iv. Step-Mother: There is simply no question that A. is very close with his Step-Mother. He makes duplicate Mother’s Day and other celebratory crafts and cards for her and was distressed when he thought that a gift for her had been misplaced. She is shown in photographs playing soccer; attending fun fairs; selecting pumpkins; and building circuit boards. Step-Mother has attended the parenting time exchanges for some time and said that there have been far fewer problems between Father and Maternal Grandparents as a result. She attends parent-teacher conferences and field trips. She smiled kindly when describing A. and their shared enjoyment of their pizza nights when they make the pizza together and A. eats it. She assists A. with his piano practice. I find that A. is bonded to his Step-Mother and that they have an exemplary step-parent/child relationship.

v. Paternal Grandmother: A.’s adult Sister described his relationship with their Paternal Grandmother, who is elderly, as “sweet.” Paternal Grandmother lives with Father and Step-Mother. While Father, Step-Mother and Sister were initially quite worried about Paternal Grandmother’s reaction to A.’s arrival, it is apparent to Sister that she loves and cares for him. In turn, A. will visit Paternal Grandmother in her room to talk and A. makes sure that she is included in family events and outings. Step-Mother noted that A. communicates with Paternal Grandmother in Russian and that they have a shared interest in painting. When Lillian, great-grandchild to Paternal Grandmother, visits, A. interprets for them as Lillian does not speak Russian. Although perhaps not as closely bonded to her as to his Maternal Grandparents, A.’s connection to Paternal Grandmother is important to him.

vi. Sister, Brother-in-Law and Niece: As a result of his arrival later in Father’s life, A. has an adult sister who is married with a daughter, Lillian, who is therefore A.’s niece. Sister and her family visited regularly while they were living in California during Sister’s academic studies, staying in Father’s home for several weeks each summer and at Christmas from 2015 through to June 2018 when they moved in for approximately one year. Now they see A. every Wednesday when he is at Father’s home and Lillian sleeps over. Step-Mother described A.’s relationship with Sister by saying that A. considers Sister “very, very smart” and seeks her out for help or advice with computers and reading; she said that they care for one another very much. Sister was smiling when she described A. as a bright, kind, loving and generous kid who likes to understand the world around him; she testified that she loves A. very much. Step-Mother and Sister both confirmed that A.’s relationship with Lillian is sibling-like: they make plans together; they enjoy one another’s company immensely; and they miss each other when they are not together. Finally, Sister described A.’s relationship with her husband as playful and fun. These members of A.’s family are integral to his emotional well-being.

vii. Pets: Although pets are not caregivers, their importance cannot be overlooked in any child-focused analysis. A. has a pet canary in Father’s home named “Canarick” and considered the robot at his Father’s house a kind of pet worth mentioning in his second interview with Ms. Glogovic. They no longer have a dog, as their elderly dog died recently. In Mother’s home, A. has a budgie named “Dunya” and, although they have a one-year-old poodle in the home, Mother testified that this dog is bonded to Maternal Grandmother. Part of the discussions between A. and Mother’s Fiancé included the possibility of getting a dog in Michigan in a couple of years.

d. Maximum Contact Principle

[32] While the “maximum contact principle” is not articulated in the CLRA, it is nonetheless applicable when considering a variation of existing parenting arrangements. Importantly, the legal status of the relationship between the child and the secondary-residential parent is not in itself determinative of the best interests of the child. In this regard, it is the actual involvement of the parent, not the label attached to custody, which is important.[^9] Although my review of A.’s best interests is de novo, I need not speculate about the amount of contact between A. and Father that might be best for him: the existing parenting schedule provides the comparator for the analysis. A. spends alternate weekends (Friday – Monday) and every Wednesday overnight with Father. Father and Step-Mother collect him from school consistently three days biweekly. Similarly, they consistently deliver him to school three days biweekly. Otherwise, Maternal Grandparents take him to and from school when he is residing with his maternal family. Between Mother’s work schedule and A.’s other pre-arranged activities on weekday evenings, it is challenging to conclude that Mother spends much more actual waking time with A. than Father. Arguably, the existing parenting schedule already provides for A. to have maximum contact with each of his parents. Having regard to the living arrangements in each household, and the fact that A.’s adult Sister and family spend every Wednesday night at Father’s home, the current schedule maximizes A.’s contact with both sides of his extended family. Viewed objectively through a lens that promotes a breadth of family relationships as important to a child’s healthy emotional development, A. is a very lucky boy. I find that the current parenting schedule complies with the maximum contact principle, meaning that in a comparative assessment of parenting plans for A., it is the one to beat.

e. A.’s Views and Preferences

[33] A. consistently told Ms. Glogovic that he has two homes; that he likes living with his Mother and visiting his Father; and that the only thing that he might change about his family would be to spend more time with his Father. A. described his extended family, including his pets, in detail and told her that he “loves everyone in his family.” In addition to the comments attributed to him elsewhere in these Reasons, A. specifically stated that he loves sleeping over at Father’s home during the week. He said that his Father takes him to and from school when he is there; and when he is at his Mother’s house his Maternal Grandparents take him to and from school, with Mother picking him up from school a “little bit.” By his third interview with Ms. Glogovic, both parents had already told A. to advise her that he wanted to live with them, causing him to explain to her that he wanted to be with both and didn’t know who to choose. When asked by Ms. Glogovic to compare different aspects of his current and future life, the most important thing for A. was to continue to live with his Mother, followed closely by living with his Father. Although he has fun when he goes to America with Mother, the drive is long and boring, and he does not really want to live there.

f. The Parents’ Proposed Plans for A.

[34] Mother proposes that she will bring A. to Waterloo one weekend per month and Father will come to Ann Arbor on a second weekend in each month. A.’s weekend with Father at home in Waterloo would run from 9:00 p.m. on Friday through to 3:00 p.m. on Sunday. The weekend in Michigan would run from Friday after school through to 7:00 p.m. on Sunday. Mother offers an additional weekend in Michigan in each of the months of October, February and May in each year. If A. is ill or the weather makes driving unsafe, “make-up access will be arranged at reasonable and mutually agreed upon times and places.” A. will be permitted to speak to Father by Skype or telephone “five (5) times per week at reasonable specified times, as agreed from time to time, that would not interfere with the child’s activities.” Mother may communicate with A. daily when he is in Father’s care. During the six to nine month period when A. cannot leave the U.S. while his residency status is being processed, Father will have his weekends in the U.S. Father will have two out of three March Breaks; five out of nine weeks of summer vacation; and half of the school break at Christmas. To summarize, if A. moves to Michigan now, then he will spend no further time in Father’s home until summer 2020 at the earliest. Thereafter, he will spend one weekend per month in Father’s home. He will spend one weekend per month with Father and Step-Mother in a hotel in Michigan. Whenever he is in Father’s care, he will be expected to communicate with Mother daily by telephone or Skype.

[35] Father seeks to maintain the status quo, subject to a more equal division of time when A. is not in school.

[36] Both parents are established in Waterloo Region. Father’s family unit is clearly permanent and stable. Mother’s bond with her Fiancé is sincere, but while weekend and holiday visits are one thing, cohabitation may be quite another. For the purpose of this analysis, however, I will presume that Mother and her Fiancé would live happily together well into their golden years if they were to marry and reside in Michigan.[^10]

[37] Father points out that Mother’s proposed schedule, which does not even fix the weekends upon which he will have parenting time to any pattern, requires active co-operation and a collaborative approach. Father argues that, having regard to the history of conflict, Mother’s proposed schedule will collapse when the parties are unable to agree upon the exact monthly access plans. He notes that Mother has thwarted A.’s telephone access to him to date and takes the position that she is high-handed and has wielded her legal identity of sole custodial parent as a sword against him. Some further analysis is therefore needed to fully appreciate the viability of Mother’s proposed plan.

[38] Throughout the balance of 2015 and 2016, Mother minimized Father’s involvement in A.’s life, prioritizing A.’s activities over time to be spent with Father and refusing to include Father in medical appointments for A. During A.’s attendance at KidsAbility, treating professionals had to accommodate Mother’s request that she and Father not attend appointments in the same room together. On October 11, 2015, Mother writes to Father: “I have a right to go there with the child and without your presence it is MY RIGHT.” Over Christmas 2015, Mother spent eight days in California, of which she permitted A. to spend only two and a half days with Father. Father did not know at that time that she was out of the country. In February 2016 Mother instructed A.’s doctor not to permit Father to schedule appointments for A.

[39] Mother summarized her views on her authority over A. vis-à-vis Father’s parenting time in her email to Father of December 1, 2015, filed as Exhibit 41 at trial:

I also want to make a comment. I am a custodial parent and decide what is best for A. Normally, when A. is sick and it falls on your visitation, he just needs to stay home and I don’t have to give you back that time. I can do it when it is not difficult to do it like in this case. If A. was sick and had to skip weekend visitation with you, I would not be compensating for that. Just heads up on that. I was worried for such situations when I was signing legal agreement and wondered how they should be resolved once come up but my lawyer told me I have such right as custodial parent and this is how courts view it in general.

This perspective continued up to trial, when Mother testified that she would be the one to assess whether A. was too ill to attend access with Father. She agreed that due to the high-conflict nature of the parenting relationship, Father would likely be sceptical of her assessment of A.’s health. Regardless, placing Father in the position of tending to a sick boy in a hotel room in Ann Arbor is not child focused, with the probable result being that a Michigan visit could also be cancelled due to A.’s illness. Further, it could well be that more than one of Father’s visits may be cancelled due to A.’s illness: in cross-examination, Mother commented that it would be for her to decide whether A. has “fully recovered” and can attend access.

[40] On the question of the weather’s impact upon access, Mother admitted that she cancelled a visit between A. and Father at the supervised access centre, located approximately half-an-hour’s drive from her home, because she did not feel safe driving. The centre itself did not close due to weather. The visit was scheduled for December 21, 2013 and would likely have been the closest visit to Christmas Day available to this family. Mother’s evidence was that if a visit was cancelled due to weather or A.’s illness, a make-up visit would be arranged by mutual agreement, provided that such visit did not conflict with A.’s activities and taking both families’ schedules into consideration. She admitted that, in her view, it was up to her whether a visit would take place and that the “perfect time” would have to be chosen. Mother said that her understanding of the sole custody Order is that she makes all the decisions.

[41] A myriad of examples of Mother’s patent refusal to extend additional time to Father was presented. She took the position, both historically and at trial, that she did not extend additional time to Father because failing to follow the Final Order would cause further litigation. On May 31, 2018, she writes to Father via Our Family Wizard:

In general I have already told you, even if I wanted in some situations, I won’t give you additional time because it is self-protection, I fear you will open new claims against me and claim new status quo as it happened with Sunday overnight, litigation it [sic] not in my interests, nor is it in A.’s interest, so I think in our difficult situation it is best for me to stick to court order to protect myself. So, this is my response to any additional access this summer, I can’t give it to you as I prefer to stick to court order to avoid more problems. Please, don’t ask again, it is my final answer.

[42] One incident which exemplifies Mother’s de-prioritization of the relationship between A. and his paternal family, and her overall volatility and inability to work collaboratively, took place in early August 2018. Father’s regular parenting time with A. was to take place on Wednesday, August 1, 2018 overnight to Thursday, August 2, 2018 and on the weekend thereafter. Firstly, Father asked to extend his weekend to include the statutory holiday Monday, which Mother denied on the basis that she had the day off work. Father next wrote to Mother in the evening of Wednesday, August 1, 2018 asking if A. could stay home from camp on Thursday to spend additional time with Lillian, who was residing at Father’s home at that point. Mother denied this request, citing two reasons: (1) she had already paid for the camp and it was “good for A.’s development”; and (2) that they “are not parents who can be easily flexible and can trust…” The next day Mother learned that Father had collected A. from camp at 1:30 p.m. on Wednesday rather than the usual 3:20 p.m. pick-up time. She wrote:

You absolutely disregarded my efforts and the fact that I wanted A. to do educational activities and that I work hard to purchase camp for him. I can’t trust you even in things that little as pick up time.

I have instructed the employees to not release A. earlier than 3:20 p.m. tomorrow, they will have last day and interesting activities that he wants to participate in.

You will need to show ID again. I hope we won’t run into these situations again.

Mother’s anger in the email is palpable. I also note that she tells Father off for disregarding her stated view that A.’s attendance at camp is important, however Father had already collected A. early from camp on Wednesday afternoon before the email exchange took place in the evening. Her need to chastise Father and restate her authority vis-à-vis A. overrides her logical assessment of the events.

[43] Throughout the email exchange between the parties around this time, Mother consistently refers to the absence of trust and complains that it is Father’s fault for commencing the litigation. Importantly, this exchange took place eighteen months after Mother had declared her intention to move to Michigan, and yet she continued to blame the litigation on Father.

[44] Further, on the topic of telephone calls between A. and Father when he is in Mother’s care, A. told Ms. Glogovic:

…he misses his dad when he is at his mom’s house and when his mom doesn’t let him call his dad and he wants to, he hides with the phone. A. stated that his mom tells him, “you can’t call”, and this happens a lot because his mom doesn’t want him to live with his dad.

[45] I have no confidence that Mother would take a different approach in Michigan. Mother cannot be relied upon to take a collaborative approach and to prioritize A.’s relationship with his paternal family. Consequently, the requirements for flexibility and trust inherent in Mother’s plan are its downfall.

g. Any Connection between the Moving Parent’s Reasons and the Child’s Welfare

[46] The only reason for Mother’s proposed move to Michigan is to start a family with her Fiancé, who is unable to move to Ontario due to his own shared parenting arrangement for his daughter. Mother is currently working full-time at the Ontario Teacher’s Insurance Plan, a company that provides insurance products to educators and their families. She has a good income with extended medical and dental benefits and pension savings. There is no evidence to suggest that Mother and A. would be economically disadvantaged by remaining in Waterloo Region. If Mother and A. move to Michigan, they will be completely dependent upon Mother’s Fiancé. For his part, Mother’s Fiancé is willing to support them, but candidly expressed the hope that there would be some financial support for A. from Father, as he not only supports Alex but also pays an undisclosed amount to her mother to assist with her upbringing. Mother’s Fiancé’s income has fluctuated somewhat over the last few years; he earned USD $118,455.95 in 2018. Although Mother seemed focussed on providing A. with a sibling as soon as possible upon arriving in Michigan, Mother’s Fiancé testified that his understanding is that she was willing to work and that she could have her work permit within six months of arriving in the U.S. Mother’s Fiancé lives in what I conclude is a lovely single-family home in a residential area with access to parks, activities and amenities. I am certain that Mother’s Fiancé and Alex would make A. feel welcome. However, other than this potential for the nuclear family that Mother clearly craves, there is no inherent benefit to A. of moving to Ann Arbor.

h. The Impact of a Change in Custody

[47] Although Father’s Motion to Change sought a change to joint custody or, alternatively if Mother intended to move to Michigan without A., sole custody, he did not argue this position strenuously at trial. Father’s focus at trial was upon maintaining his current level of involvement in A.’s life, which he sees as being placed at risk of irreparable harm should A. be permitted to move with Mother to Michigan. Nothing therefore turns on this factor.

i. The Impact of the Removal of the Child from his Broader Community

[48] A. has been attending Westvale Public School with his best friend, Andy, since Junior Kindergarten. Andy attends A.’s birthday parties and playdates with A. at Father’s house. In his Senior Kindergarten Report Card, A.’s teacher wrote: “He has a solid sense of belonging with the SK boys and tries to work things out with them.” I heard no evidence that he has had anything other than a positive experience at school, and therefore, like any other child, presumably A. would continue to be happy in his current school. A. has long participated in various extra-curricular activities and knows his family doctor and dentist. While children are resilient, it would not be fair to A. to conclude that a move away from his community would not have some negative impact upon him.

Conclusion

[49] A. is closely bonded with both sides of his family, all of whom he would miss were he to move to Michigan. The existing residency schedule maximizes his contact not only with both of his parents, but also with extended family on both sides. He does not particularly want to move to Michigan and would rather continue the present schedule. Having regard to the inherent distrust between Mother and Father, Mother’s proposed plan is doomed to fail. Other than the bald assertion that A. would be happy because Mother’s dream of a nuclear family would come true in Michigan, there is no connection between A. and Ann Arbor. Provided that A. stays in Waterloo Region, no change in custody is sought. A. is connected to his community in a variety of positive and stable ways. I therefore conclude that a move to Ann Arbor is not in A.’s best interests.

III. Should Father be declared a “vexatious litigant”?

[50] Section 140(1) of the CJA reads:

(1) Where a judge of the Superior Court of Justice is satisfied, on application, that a person has persistently and without reasonable grounds,

(a) instituted vexatious proceedings in any court; or

(b) conducted a proceeding in any court in a vexatious manner;

the judge may order that, except by leave of a judge of the Superior Court of Justice

(c) no further proceeding be instituted by the person in any court; or

(d) a proceeding previously instituted by the person in any court not be continued.

[51] Although not specifically pleaded or referenced in argument, r. 14(21) of the Family Law Rules provides that “if a party tries to delay the case or add to its costs or in any other way to abuse the court’s process by making numerous motions without merit, the court may order the party not to make any other motions in the case without the court’s permission.” Rule 15(27) confirms that r. 14(21) applies equally to Motions to Change.

[52] A short comparative analysis of the caselaw regarding these separate statutory provisions arises from Mother’s alternative submission that, if I do not find that Father should be subjected to a complete prohibition upon litigating without the court’s permission, I can make an order which specifies what Father can, and cannot, do. The caselaw that has developed around s. 140(1) of the CJA does not suggest that a presiding judge can tailor the sanction. Once a judge is satisfied that a litigant is vexatious, the litigation prohibition is absolute. In contrast, Sherr J. applied r. 14(21) in a tailored fashion, namely to place a time-limited prohibition on future litigation by one party[^11]:

An order of this nature is a serious restriction on a parent’s access to the court and should be reserved for cases where there have been several motions brought without merit. It is designed to prevent an abuse of the court’s process.

The evidence does not support the order sought by the mother. This is the first motion to change brought by the father. His desire to see his children is understandable. It was not unreasonable for him to pursue this claim. That said, this court has stated that the father must show a longer period of stability and take specific steps before he can hope to establish a material change in circumstances. The mother should not have to deal with the cost and stress of further litigation until this process takes place. Accordingly, the father will be prohibited from bringing a further motion to change prior to January 1, 2016 without prior leave of the court.

[53] For Mother, Ms. Green acknowledges that a complete prohibition on Father’s access to the courts is an extreme measure and suggests that I can tailor an order in that regard to specify the types of motions that Father could bring without leave of the court. She argues that this would allow Mother a period of stability while still ensuring Father’s access to the court if, for example, Mother obstructed Father’s parenting time with A. She asks that I declare Father to be a vexatious litigant but make an exception to allow him to bring a Contempt Motion against Mother. No authority for this suggestion was cited. While I respect Sherr J.’s approach in making a time-limited prohibition order, I cannot logically extend that approach to tailoring the exact content of a vexatious litigant declaration.

[54] If I were to declare that Father was only able to bring a contempt motion against Mother without leave of the court, the practical result could be worse for Father from an access-to-justice perspective than a blanket declaration that the court’s permission is a prerequisite to any motion brought by Father arising from Mother’s obstruction of access. As a change in parenting structure is not a remedy available to a judge hearing a contempt motion,[^12] either procedure would be a prerequisite to the court’s ability to address the underlying issue. For Father to secure the court’s permission to bring, for example, a motion to change A.’s custody or residency schedule as a result of Mother withholding access, s. 140(4)(a) of the CJA would require him to demonstrate “that the proceeding … is not an abuse of process and that there are reasonable grounds for the proceeding.” On the balance of probabilities, it is probable that the withholding or obstruction of access constitutes “reasonable grounds” for a proceeding to be commenced. In contrast, a contempt motion requires that the moving party establish beyond a reasonable doubt that: (a) the order alleged to have been breached states clearly and unequivocally what should or should not be done; (b) the alleged contemnor had actual knowledge of the order’s terms; and (c) the alleged contemnor intentionally did the act the order prohibited or intentionally failed to do the act the order required.[^13] A more fulsome recitation of the evidence is needed; a more complex legal argument must be made; and the standard of proof is higher on the contempt motion than on an application for leave.

[55] Regardless, Father is not a vexatious litigant. The following assessment of this case using McDermot J.’s non-exhaustive criteria[^14] makes this clear:

i. The bringing of one or more actions to determine an issue which has already been determined by a court of competent jurisdiction constitutes a vexatious proceeding: Decision-making and the apportionment of parenting time has not, until now, been determined by any court – the Final Order was obtained on the consent of the parties, which is critically relevant in this assessment. Father cannot be a vexatious litigant on the basis that he has failed to heed a prior judge’s determination of the same matter, as no judge has made any such determination before this trial.

ii. Where it is obvious that an action cannot succeed, or if the action would lead to no possible good, or if no reasonable person can reasonably expect to obtain relief, the action is vexatious: It cannot be said that Father’s Motion to Change could not reasonably be expected to succeed – indeed, the change sought by Father to reflect the status quo of his alternate weekends with A. to include the return of the child to school on Monday seems to be obviously likely to succeed, and one wonders why that specific point was not settled in the earliest days of this litigation.

iii. Vexatious actions include those brought for an improper purpose, including the harassment and oppression of other parties by multifarious proceedings brought for purposes other than the assertion of legitimate rights: Mother argues that Father brought his Motion to Change for the improper purpose of causing her financial distress. In her testimony, she repeatedly suggested that Father’s motivation was to ruin her financially. As was capably demonstrated by Father’s counsel in a detailed review of Mother’s sworn financial statements and personal income tax returns, it is plain she has not suffered the financial distress that she claims. The debts that she claims to have related to this court matter are the undocumented amounts of $17,000 owed to family members for the original litigation (i.e. pre-dating the Final Order, namely $10,000 loaned by Mother’s brother and $7,000 loaned by Maternal Grandparents) and a further $10,000 loaned by her brother on the eve of this trial. No such debts were listed on Mother’s most recent Financial Statement and no copy of the promissory note regarding the second $10,000 amount was produced. Mother’s Fiancé sees these debts as manageable. The existence of a promissory note covering this latter amount was confirmed by Mother’s sister-in-law, Ms. Olessia Kotlyachkova, who was clearly annoyed that so much of her children’s education fund had been loaned to Mother. Perhaps some of her annoyance stems from Mother’s lifestyle choices in travelling bi-weekly to Michigan and from Mother’s ability to, for example, pay down her car loan and personal line of credit. I cannot imagine that Father’s intention in bringing his Motion to Change was to deplete the education fund for A.’s cousins, but that is the only practical financial result of this litigation that was proven at trial.

iv. It is a general characteristic of vexatious proceedings that grounds and issues raised tend to be rolled forward into subsequent actions and repeated and supplemented, often with actions brought against the lawyers who have acted for or against the litigant in earlier proceedings: There was no evidence before me that Father’s pleadings in the Motion to Change litigation were prolix or repetitions of his pleadings in the original action. The fact that the issues of A.’s residency schedule and financial support were before both courts does not satisfy this criterion. All family litigation is repetitive to a certain extent in that the issues are the same, although in changed circumstances, each time the family returns to court.

v. In determining whether proceedings are vexatious, the court must look at the whole history of the matter and not just whether there was originally a good cause of action: The whole history of this matter includes Mother’s refusal to agree to the OCL appointment, or to the request for a Voice of the Child Report or privately-retained consultant to provide A.’s updated views to the court. Mother further brought and subsequently withdrew a disclosure motion. Although initially Father’s motion – to seek the appointment of the OCL – was unsuccessful, the underlying need for that agency’s involvement later became apparent as a result of the significant change in Mother’s litigation position. Father did not seek any relief on an interim basis that was not ultimately required for the final disposition of this matter. If anything, this criterion implicates Mother.

vi. The failure of the person instituting the proceedings to pay the costs of unsuccessful proceedings is one factor to be considered in determining whether proceedings are vexatious: Not applicable.

vii. The respondent’s conduct in persistently taking unsuccessful appeals from judicial decisions can be considered vexatious conduct of legal proceedings: Not applicable.

Conclusion

[56] Based on all of the foregoing, I decline to grant the relief requested by Mother, namely that she be permitted to move A.’s primary residence outside of the Regional Municipality of Waterloo.

IV. Adjustments to Expenses

[57] Evidence was led confirming Mother’s 2018 of $51,468.90 and, although he initially sought to vary his imputed income, Father did not proceed with that argument and put forward the proportionate share calculation based on his imputed income of $100,000.00. Having regard to Father’s concerns about the volume of activities in which A. has been enrolled, I am inclined to make the adjustment sought by him with some changes.

Final Order

[58] With respect to the Final Order of Rogers J. dated September 22, 2015, I make the following final order:

1. Paragraph 2(a) of the Final Order of Rogers J. dated September 22, 2015, attached as Appendix “A” hereto, is replaced by the following:

2(a) Commencing Friday, [N.B.: counsel to insert the date of Father’s next scheduled parenting weekend] and on alternate weekends thereafter, from Friday after school to Monday delivery to school and, in the event that the Monday immediately following such weekend is a statutory holiday, Tuesday delivery to school;

2. Paragraph 3 of the Final Order of Rogers J. dated September 22, 2015 is replaced by the following, with sub-paragraphs (a); (b); (c); and (e) to remain in full force and effect:

3. The Applicant Father will have further holiday access to the child in accordance with the following, during which periods of care the regular schedule described at paragraph 2 is suspended:

4. Paragraph 3(d) of the Final Order of Rogers J. dated September 22, 2015 is replaced by the following:

3(d) Summer School Break – Regardless of the regular schedule, the child will be in each parent’s care on an alternating weekly basis, with the exchanges to occur on Fridays at 6:00 p.m. at the Food Basics plaza located at the corner of University Avenue and Fischer-Hallman Road in Waterloo. The child will be in the care of the Respondent Mother commencing on the Friday immediately preceding the Labour Day weekend which weekend will recommence the regular schedule, and the Summer School Break calendar will be determined from that Friday backward to the start of the Summer School Break such that the child will be in the Applicant Father’s care during the last week immediately preceding the Labour Day weekend and so on. Either party shall be entitled to enroll the child in summer camps during his or her parenting time at his or her sole discretion and expense.

4. Paragraph 23 of the Final Order of Rogers, J. dated September 22, 2015 is replaced by the following:

5. The parties shall share section 7 Guideline special or extraordinary expenses for the child including day care, medical, dental and extracurricular activities in proportion to their incomes. The Respondent shall provide a receipt for payment of the expense and the Applicant shall pay the same within 10 days.

(a) The parties’ proportional share is calculated as follows:

i. The Applicant’s income shall be imputed at $100,000.00;

ii. The Respondent’s 2018 was $57,468.90;

iii. The combined income of the parties for 2018 was $157,468.90;

iv. The Applicant’s proportional share is 64% ($100,000.00 ÷ $157,468.90); and

v. The Respondent’s proportional share is 36% ($57,468.90 ÷ $157,468.90).

(b) Unless the parties agree otherwise in advance in writing, the child shall not be enrolled in more that two (2) extracurricular activities per week during the school year for which contribution is sought. The combined cost shall not exceed $500.00 a year for such section 7 special and extraordinary expenses to which the Applicant shall contribute. Either parent may enroll the child in other activities during his or her parenting time provided that such activities do not infringe upon the other’s parenting time.

5. The balance of the Final Order of Rogers J. dated September 22, 2015 remains in full force and effect.

[59] If the parties are unable to agree upon costs, they shall serve and file written submissions not later than January 31, 2020. Such submissions will not exceed five pages in length, excluding attachments (Bills of Costs; authorities; etc.).

BREITHAUPT SMITH, J.

Date: December 20, 2019

COURT FILE NO.: FC-13-FO401

DATE: 2019-12-20

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

IGOR KAZBEROV,

Applicant/Moving Party

– and –

TATYANA MIKHAILOVNA KOTLYACHKOVA,

Respondent

DECISION

Breithaupt Smith, J.

Released: December 20, 2019

[^1]: Father’s counsel initially objected to the tendering of the transcript but subsequently withdrew the objection, and thus I do not have to interpret the interplay between r. 20(25)(c) and 20(25)(d) of the Family Law Rules, O. Reg. 114/99, although I would point out that some judicial direction on the use of transcripts from prior litigation between the same parties is needed.

[^2]: A TMC had previously been conducted by Justice Oldham on October 17, 2018 in the Ontario Court of Justice but, with the arrival of the Unified Family Court to Waterloo Region effective May 13, 2019, a fresh review was necessary from a procedural and scheduling stand point.

[^3]: Woodhouse v. Woodhouse (1996), 1996 CanLII 902 (ON CA), 136 D.L.R. (4th) 577 ( Ont. C.A.) at p. 593.

[^4]: In Woodhouse, supra, the Court of Appeal referred favourably to the findings of Professor Nicholas Bala on the issue of children testifying in family matters, writing at p. 594: “To expect children to come to court to express their views as witnesses puts them in an extremely difficult emotional situation.”

[^5]: 1990 CanLII 77 (SCC), [1990] 2 S.C.R. 531 at p. 546.

[^6]: 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27.

[^7]: Gordon, supra, at p. 60.

[^8]: While two years had passed since the release of Ms. Glogovic’s Report, it is the court’s expectation that, as amicus curiae witnesses tasked with aiding the fact-finding process, OCL Clinicians must be ready to present their evidence in an accurate and straightforward manner when the trial is called.

[^9]: Woodhouse, supra, at p. 590.

[^10]: I do note Mother’s Fiancé’s evidence that the future of their relationship becomes uncertain if the move is not permitted.

[^11]: F.D.M. v. K.O.W., 2015 ONCJ 47, 58 R.F.L. (7th) 478, at paras. 65 and 66.

[^12]: Chan v. Town, 2013 ONCA 478, 34 R.F.L. (7th) 11, at para. 6.

[^13]: McKinnon v. McKinnon, 2018 ONCA 596, [2018] O.J. No. 3487, at para. 36, citing Carey v. Laiken, 2015 SCC 17, [2015] 2 S.C.R. 79, at paras. 33-35, 37.

[^14]: Van v. Palombi, 2018 ONSC 6228, 16 R.F.L. (8th) 103, at para. 110.