COURT FILE NO.: FC-15-FS-50253(1)
DATE: 2020/08/18
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: JARROD ADAM BARAKETT, Applicant (Moving Party)
AND:
LINDSAY MICHELLE BARAKETT, Respondent (Moving Party by Cross-Motion)
BEFORE: Madam Justice J. Breithaupt Smith
COUNSEL: C. Richard Buck for the Applicant, Mr. J. Barakett
Lorrie Stojni-Kassik for the Respondent, Ms. L. Barakett
HEARD: August 12, 2020
E N D O R S E M E N T -- COVID 19 PROTOCOL
[1] AS A RESULT OF COVID-19 the regular operations of the Superior Court of Justice are suspended at this time, as set out in the Notice to the Profession dated March 15, 2020 available at https://www.ontariocourts.ca/scj/covid-19-suspension-fam/
[2] In accordance with the consolidated Regional Notice to the Profession issued on June 26, 2020 effective July 6, 2020 and the Protocol for Central South dated April 7, 2020, electronic materials were filed by email to Kitchener.Superior.Court@ontario.ca:
a. The Applicant Father/Moving Party/Responding Party by cross-motion, filed:
i. Applicant’s Amended Notice of Motion dated June 10, 2020 (amended on July 31, 2020);
ii. Affidavit of Jarrod Barakett sworn January 20, 2020;
iii. Affidavit of Jarrod Barakett sworn June 10, 2020;
iv. Supplementary Affidavit of Jarrod Barakett sworn July 10, 2020;
v. Affidavit of Jarrod Barakett sworn July 31, 2020;
vi. Rotated copy of Exhibit “J” to the Affidavit of Jarrod Barakett sworn July 31, 2020 (for better ease of viewing);
vii. Affidavit of Alexandra Deveau-Carter sworn July 31, 2020;
viii. Affidavit of Margaret Deveau sworn July 31, 2020;
ix. Draft Order (in Word format);
x. Form 35.1 Affidavit of Jarrod Barakett;
xi. Various authorities; and
xii. Affidavits of Service.
b. The Respondent Mother/Responding Party/Moving Party by cross-motion, filed:
i. Respondent’s Notice of Motion, returnable August 12, 2020;
ii. Affidavit of Lindsay Michelle Barakett, sworn July 16, 2020;
iii. Reply Affidavit of Lindsay Michelle Barakett, sworn August 7, 2020;
iv. Affidavit of Lindsay Michelle Barakett, sworn March 13, 2020 (in response to the Applicant’s Affidavit, sworn January 20, 2020);
v. 35.1 Affidavit of the Respondent, Michelle Barakett;
vi. Factum (in Adobe and Word formats);
vii. Draft Order (in Word format); and
viii. Affidavits of Service.
[3] Upon the resumption of court operations, the parties shall file their materials in the continuing record at the courthouse. I confirm that I do not have access to any other portion of the Continuing Record. For ease of reference, I refer to the Applicant, Mr. J. Barakett, as “Father”; to the Respondent, Ms. L. Barakett, as “Mother”; to the parties’ daughter, Lia Rose Barakett born December 2, 2005, as “Lia”; and to the parties’ daughter, April Michelle Barakett born September 8, 2011, as “April.”
Scope of Motions and Relief Sought
[4] The two Motions before the court raise the following substantive questions:
a. As between the Original Parenting Plan dated January 27, 2016 or the Revised Parenting Plan dated March 17, 2017, which is in effect?
b. Should Mother be permitted to move April’s primary residence outside of the Regional Municipality of Waterloo (with an accompanying change in school enrolment)?
c. Should Father be granted temporary sole custody and primary residency of April, with her primary residence to remain in the Regional Municipality of Waterloo and her school to be Saint Matthew Catholic Elementary School?
d. Does this family need a police assistance clause to enforce parenting arrangements and/or the Orders of this Court?
e. Should Lourdes Geraldo be appointed to assess April’s best interests under section 30 of the Children’s Law Reform Act?
[5] Certain procedural matters are also raised. I note that Father also sought leave to amend his Motion to Change to seek permanent sole custody and primary residency of April. Further, both parties seek documentary disclosure from one another, and Father seeks a copy of the content of Dena Moitoso’s file as it may relate to services provided to April. I deal with each of these requests in the following summary fashion:
a. Regarding amending pleadings, Rule 11(3) directs that the court shall give permission to a party to amend, unless the amendment would disadvantage another party in a way for which costs or an adjournment could not compensate. Although Rule 15 regarding Motions to Change is silent on amendments to pleadings, it is logical to presume that the same approach applies as Rule 15 creates a parallel procedure specifically for review of existing Orders and/or agreements. Father shall therefore have leave to serve and file his Amended Motion to Change and corresponding documents by Friday, September 25, 2020. Mother shall be entitled to serve and file any amended responding documents by Friday, October 9, 2020.
b. Regarding documentary disclosure sought by the parties from one another (paragraphs 11 and 13 of Father’s Notice of Motion; paragraphs 4 – 7 of Mother’s Notice of Motion), I note that Affidavits Listing Documents have not yet been exchanged (per Rule 19) and Questioning has not yet taken place (per Rule 20). A Case Conference was held before Madam Justice C. Braid on June 16, 2020, at which time Her Honour authorized Questioning of one half-day per party. The parties have an obligation to disclose all documents relevant to any issue in the case, with Questioning providing an opportunity for each party to obtain further information from the other and for counsel to discuss relevance and admissibility. An order compelling disclosure before that process has run its course seems premature, and therefore the relief in that regard sought by each party is dismissed without prejudice.
c. During argument, both parties agreed that they each have unfettered access to notes and records of any service provider working with April. Both Parenting Plans signed by the parties (details of which will be discussed later in these Reasons) confirm that “[Both parents] may also request any relevant records/information from Lia and April’s health care professionals directly.”[^1] Mother’s counsel confirmed that she will provide her consent to the release of any notes or records that Ms. Moitoso may have regarding her meetings with April. Thus, no Order is needed on this point.
Summary of Conclusions Reached
[6] For the reasons that follow, I conclude:
a. The Revised Parenting Plan dated March 17, 2017 is in effect.
b. As the Revised Parenting Plan removes any restriction on Mother’s ability to move the children’s primary residence within Ontario, the move shall be allowed.
c. April’s primary residence shall not be changed to Father’s home. The parties shall continue to have joint custody.
d. No police assistance clause is necessary for this family.
e. I am not satisfied that an assessment under section 30 of the Children’s Law Reform Act is necessary to assist the trier of fact in determining April’s best interests.
Background
[7] The parties met through mutual friends in 1999 and became engaged six (6) months later. They were married on October 27, 2001 and two children came along, Lia Rose Barakett born December 2, 2005 (“Lia”); and April Michelle Barakett born September 8, 2011 (“April”). They separated on July 16, 2014 but remained resident together in the matrimonial home until Father moved out in February of 2016. During that window, they reached Minutes of Settlement which generated the Final Order of Mr. Justice J. Sloan dated October 7, 2015 (the “Final Order”) and the terms of the Parenting Plan dated January 27, 2016 (the “Original Parenting Plan”). Paragraph 1 of the Final Order confirmed that the parties have joint custody of their daughters. Paragraph 2 of the Final Order set out details regarding the involvement of Ms. Annette Katchaluba, MSW, to negotiate the Original Parenting Plan and act as parenting coordinator.
[8] Father moved out of the former matrimonial home in February of 2016; Mother remained there, and her partner, Andrew Vandorsselaer (“Andrew”) moved in sometime in June of 2016. Andrew has two children of his own who reside primarily with their mother and spend alternate weekends with their father as part of Mother’s household from Fridays to Sundays.
[9] Between February of 2016 and mid-March of 2017, Lia and April divided their time between their two homes on the following “Usual Schedule” as described in the Original Parenting Plan at page 4, section D, with the result being that they spent “five overnights in a fourteen-day period with [Father], and nine overnights in a fourteen-day period with [Mother].” This schedule continued for approximately thirteen months until Father accepted a consulting relationship[^2] with All Mighty Green LLC in California. The Original Parenting Plan was drafted by Ms. Katchaluba and both parties had the additional benefit of retained counsel.
[10] In anticipation of Father’s departure for California, the parties modified the Original Parenting Plan to generate the Revised Parenting Plan which was signed by both of them on March 17, 2017. Presumably, communication between them had improved with the passage of time post-separation, as they no longer needed the direct involvement of Ms. Katchaluba or counsel in negotiating the revised terms. Two paragraphs, being L.II. and L.III. at page 15 of the Original Parenting Plan were removed. Those paragraphs, and the negotiations around their removal, are discussed in greater detail later in these Reasons. Their removal left a single paragraph under the heading “Residential and Jurisdictional Moves”:
I. Every effort shall be made to provide at least 60 days notice to the other parent prior to a residential move.
[11] In addition to this change, the Revised Parenting Plan:
a. Confirmed the parties’ agreement that the children would be raised in Ontario;
b. Adjusted the Usual Schedule such that the children would be in Father’s care on alternate weekends from Saturday at 10:00 a.m. to Sunday at 5:30 p.m.;
c. Confirmed that the children would be in the care of Father two nights in a fourteen-day period and in the care of Mother twelve nights in the same period;
d. Adjusted certain holiday times;
e. Provided that Father may travel with the children during his parenting time for a maximum of three non-consecutive weeks in even-numbered years and four non-consecutive weeks in odd-numbered years, with changes to vacation time to be increased by mutual agreement; and
f. Set out some detail regarding the mutually-acceptable involvement of each parent’s partner in day-to-day child-rearing activities.
[12] It is important to note that Father has not missed a single parenting weekend with his daughters. He flies between California and Ontario biweekly, usually by himself, to spend Saturdays at 10:00 a.m. through to Sundays at 5:30 p.m. parenting them. His commitment in that regard is worthy of respect and commendation. As a result of the removal of the Friday overnight portion of the girls’ weekends with her Father, Lia and April started spending alternate Fridays overnight with Andrew’s two children. While from June 2016 to March 2017 Andrew’s two children came to reside with their father in Mother’s home during the weekends when the girls were with Father, thereafter, all four children were together in alternate weeks from Friday night to Saturday morning at 10:00 a.m. Thus, April has been part of a blended family since at least March of 2017.
[13] Shortly after the Revised Parenting Plan was signed on March 17, 2017, Father left for California. On July 3, 2018, Father remarried. On August 11, 2018, the unthinkable happened – the parties’ eldest daughter, Lia, died in a boating accident while vacationing with April, Father and his wife in California. Lia’s body was not recovered until August 15, 2018. There are no words that can describe the impact that the loss of a child has on a family, whether intact or separated. Everything changes for all involved, and the grieving process is different for everyone touched by the loss. Mother sought the guidance of a grief counsellor, Ms. Dena Moitoso, who also had three sessions with April. Mother relied on the day-to-day support and assistance of her partner, Andrew, and of two local family members in addition to broader support from extended family. Following Lia’s funeral, Mother took a two-year Child Bereavement leave of absence from her work as a Registered Nurse with Grand River Hospital. Father returned to work in California and the Usual Schedule in the Revised Parenting Plan continued.
[14] In late 2018, Father sought to travel with April. Mother disagreed, and the parties re-engaged Ms. Katchaluba. During a telephone mediation session, the parties agreed upon a one-year travel prohibition. They now disagree as to the starting point of the one-year period. Father says that it was to start as of the date of Lia’s death, meaning that it ended in mid-August 2019. Mother says that it was to run from the date of the mediation, meaning that it ended sometime in December of 2019. That point is now moot as both dates have long since passed, and it is unclear when non-essential travel will resume having regard to the COVID-19 situation.
[15] April continued to spend alternate weekends in Father’s care at his condominium residence in Waterloo until late March of 2020, a period of almost exactly three years. On March 13, 2020, due to the COVID-19 situation, Father found himself grounded in Canada and unable to travel back to California as he had planned. By April 2, 2020, counsel for the parties were exchanging correspondence regarding a temporary change to the Usual Schedule to allow April to spend more time with Father while he remained in Canada, and the parties agreed to resume the schedule that had been in place under the Original Parenting Plan. Since the Spring, April has been in Father’s care five nights bi-weekly, including weekday overnight time. Of course, neither in-person school nor any other of April’s regular activities (such as competitive dance) have been taking place.
[16] In January of 2020, Father commenced this Motion to Change litigation, primarily seeking to dispense with Mother’s consent for April to travel outside of Ontario. It is my understanding that issues of decision-making (and specifically parameters around the avoidance of boating activities and/or alcohol by Father when travelling with April) and Father’s income for child support have also been raised.[^3] As noted above, a Case Conference was held on June 16, 2020 and the main litigation is therefore in the disclosure/Questioning phase at this time.
Analysis
A. Which Parenting Plan is in effect?
[17] Since early April of 2020, Father has had April in his care five nights out of every fourteen. Father asks the court to infer that, as the Usual Schedule from the Original Parenting Plan has resumed, therefore it is the Original Parenting Plan that governs all issues between the parties. Mother asserts that her agreement to expand Father’s parenting time during the unforeseen COVID-19 situation is now being used against her despite clear assertions that the return to the Usual Schedule in the Original Parenting Plan was merely temporary. It would seem that the cynical phrase “no good deed goes unpunished” may be applicable.
[18] The Revised Parenting Plan included the following preamble on the first page: “This Parenting Plan (amended in March 2017) will become valid only in the event that Jarrod Barakett accept [sic] the work position being offered in California and will expire on the same day as his employment in California expires.” When the parties were negotiating additional time for April to spend with Father whilst he remained in Canada, Father’s counsel wrote: “At some point in the future, hopefully this COVID crisis will be behind us. My client will then be permitted to return to his employment. The schedule can then go back to what it was before. For now however, April should be permitted to enjoy more time with her father.”[^4]
[19] Father urges the court to understand that he was compelled to take work in California as his business was failing in late 2016. This court is not tasked with evaluating Father’s choice in pursuing his business relationship with All Mighty Green LLC in California. From the perspective of Lia and April, who were eleven and 5 ½ at the time, their time with Father was cut in half as a result. The evidence is undisputed that between mid-March of 2017 and March 13, 2020, Father spent twelve days in every two-week period in California and two days (being his parenting time) at his condominium in Waterloo with the children. Father’s counsel made much of Father’s residency status in argument. Father may well have other reasons for stressing his continued residency in Canada, however, viewed through the lens of his participation in the day-to-day lives of the children, he spent the vast bulk of his time in California. It is therefore understandable that both parties, at various times, have described the change of Father’s residency arrangements as “moving to California.”
[20] The location of Father’s own primary residence is irrelevant, however. The preamble on page 1 of the Revised Parenting Plan clearly states that it remains in effect until “the same day as his employment in California expires.” No mention of Father’s residency is found, and none should be inferred by this court. A letter dated July 27, 2020 from Albert Rosario, CEO of All Mighty Green LLC, confirms Father’s continuing business relationship with that entity and concludes: “I would feel comfortable with him spending less time in California.” Father states that if he is required to return to California by his employer then he will quit his job, and yet in the face of the letter from Mr. Rosario, which does not say that Father can work remotely forever, there is no evidence that he is actively pursuing employment here in Ontario. Overall, no evidence was presented to suggest that Father’s employment in California has expired, and thus the Revised Parenting Plan remains in effect.
B. Should April move with Mother and Change Schools?
I. The Revised Parenting Plan – What did April’s parents agree upon?
[21] Having held that the Revised Parenting Plan governs, we must analyze its relevant sections and the circumstances around their negotiation to determine any power imbalances and to confirm compliance with the general objectives of the legislation. As Justices Bastarache and Arbour wrote in the introductory paragraphs of the majority decision in Miglin[^5]:
As we explain below, we believe that a fairly negotiated agreement that represents the intentions and expectations of the parties and that complies substantially with the objectives of the Divorce Act as a whole should receive considerable weight. In an originating application for spousal support, where the parties have executed a pre-existing agreement, the court should look first to the circumstances of negotiation and execution to determine whether the applicant has established a reason to discount the agreement. The court would inquire whether one party was vulnerable and the other party took advantage of that vulnerability. The court also examines whether the substance of the agreement, at formation, complied substantially with the general objectives of the Act. As we elaborate later, these general objectives include not only an equitable sharing of the consequences of the marriage breakdown under s. 15.2, but also certainty, finality and autonomy. Second, the court would ask whether, viewed from the time the application is made, the applicant has established that the agreement no longer reflects the original intention of the parties and whether the agreement is still in substantial compliance with the objectives of the Act.
[22] In reviewing “substantial compliance with the objectives of the Act,” the relevant sections for this matter are either s. 16 or s. 17(5) of the Divorce Act.[^6] As the question of mobility was not addressed in the Final Order, which instead deferred to the yet-to-be-finalized Original Parenting Plan on all parenting issues other than joint custody, arguably mobility is being brought before the court for adjudication for the first time in the Motion to Change proceeding.[^7] Although Miglin dealt with the review of separation agreement terms respecting spousal support, the analysis should be the same, importing the concept of the children’s best interests into the determination of substantial compliance with the legislation, regardless of whether the governing section is 16 or 17(5).
(a) Miglin Part 1 – Circumstances of Negotiation – Has Father established a reason to discount the Revised Parenting Plan?
[23] Discussions between the parties started in December of 2016 or in early January of 2017.[^8] On February 28, 2017, Father replied to an email from Mother setting out his comments on her suggested revisions.[^9] One of the significant revisions sought by Mother was on the issue of mobility. In her original email to Father, dated February 24, 2017, she wrote: “4) No kilometer restrictions to move within southern Ontario on my end with Lia & April whether or not you are in California.” In his response, Father simply writes: “Ok”. In the context of Father’s move to California, it is not surprising that the parties would agree that Mother too should have more flexibility in her residency plans with the children. The Original Parenting Plan included the following at page 15:
L. RESIDENTIAL & JURISDICTIONAL MOVES
I. Every effort shall be made to provide at least 60 days notice to the other parent prior to a residential move.
II. We agree that our two residences should be reasonably close, within 35 km, to facilitate effective implementation of our parenting arrangements.
III. Moves with Lia and April outside of the requirement in II above shall be as per the parents’ mutual agreement, or otherwise by Court Order.
[24] When the Revised Parenting Plan was circulating for signature, Mother noticed that paragraphs L. II. and L. III. set out above remained in the document, appearing as paragraphs K. II. and K. III. on page 16. On March 17, 2017, the signing date of the Revised Parenting Plan, they corresponded by text message on the point as follows:
Mother: I’d like section K ii. and iii. taken out completely because it has been agreed to a forever amendment. There will never be any kilometer restrictions on my end to move with Lia and April. That should be stated as well in this updated agreement.
Father: I just sent u the revisions. I had to send u the whole doc but u only need to print that one page. I think it was 16
[25] Father was correct in identifying the page to be reprinted, but the parties in fact chose to line out and initial the two paragraphs in question rather than removing and reprinting the page. Interestingly, an unsigned version of the Revised Parenting Plan is attached by Father to his email dated December 17, 2018 sent to Ms. Katchaluba, parenting coordinator whose services were re-engaged by the parties in late 2018.[^10] It includes paragraph K.II. which reads: “There will never be any kilometre restrictions on Lindsay’s end to move with Lia and April.”
[26] There is no suggestion in the materials that the negotiations between the parties back in early 2017 were anything other than balanced and respectful. There is no evidence, other than Father’s assertion that he had no choice but to take the position in California, that either party found themselves in any situation of vulnerability. Indeed, the parties did not feel the need to engage Ms. Katchaluba or their lawyers: they worked collaboratively to amend their governing document in multiple ways so as to jointly plan for Father’s reduced presence in Ontario.
[27] The plans that Father and Mother made together reflected their assessment of the girls’ best interests at the time. As separated co-parents, they were in the best position to determine the best interests of their children, and they agreed that such best interests required the children to be raised anywhere in Ontario. Had they wished to limit the scope of the girls’ primary residency to Waterloo Region or to any other geographic area, presumably they would have done so. Their decision at the time it was made – March of 2017, was in substantial compliance with the applicable legislation, including particularly section 16(9) of the Divorce Act. The shared autonomy of separated co-parents must be respected by this court, as they are best positioned to jointly opine on the best interests of their own children.
(b) Miglin Part 2 – Current Status – Does the Revised Parenting Plan continue to reflect the parties’ intentions and promote April’s best interests today?
[28] The parties’ intentions, as reflected by the agreement, are the backdrop against which the court must consider whether the situation of the parties now makes it no longer appropriate to accord the agreement’s conclusive weight. It is unlikely that the court will be persuaded to disregard the agreement in its entirety but for a significant change in the parties’ circumstances from what could reasonably be anticipated at the time of negotiation. The party seeking court intervention must clearly show that, in light of the new circumstances, the terms of the agreement no longer reflect the parties’ intentions at the time of execution and the objectives of the legislation. Accordingly, it will be necessary to show that these new circumstances were not reasonably anticipated by the parties and have led to a situation that cannot be condoned because it fails to promote April’s best interests and the principle that children should have as much contact with each of their parents as possible.[^11]
[29] Father argued strenuously that this Court is tasked with determining whether moving April from Waterloo to Bowmanville is in her best interests. He submits that a fulsome analysis of April’s best interests under the significant body of mobility jurisprudence must be conducted to determine whether April should move with Mother to Bowmanville or remain in his primary care in Waterloo. He says that the Court cannot undertake the necessary mobility analysis without the benefit of an assessment under section 30 of the CLRA. He says that Mother has put forward no cogent plans regarding the anticipated move, and that the Court cannot decide that April would be better off in Durham Region without detailed evidence of the plans for her there.
[30] I disagree. Neither parent is in fact coming to this court to ask for a decision on mobility. These parties already decided, in negotiating the terms of the Revised Parenting Plan, that Ontario – not Waterloo Region – was to be the place in which both girls would primarily reside. The signed Revised Parenting Plan is specific on that point. Both parties continued to operate under the Revised Parenting Plan until the Spring of 2020, when Mother agreed with Father that it would be in April’s best interests to spend more time with him while he was in Ontario.
[31] The change between the parties’ circumstances on March 17, 2017 and their circumstances today, vis-à-vis geographic residency, is that in March of 2017 Mother did not have concrete plans to move elsewhere in Ontario and today she does. Surely, having regard to the language of the agreement itself, Mother’s move was “reasonably anticipated by the parties” when they signed the Revised Parenting Plan.
[32] I agree that a court on interim motion should be hesitant to deviate from the status quo.[^12] However, the status quo for April is not based upon primary residency in Waterloo Region. It is based upon primary residency with Mother in Ontario. The status quo regarding April’s time with Father does not arise from the temporary expansion that has resulted from the COVID-19 situation; it is based upon alternate weekends from Saturdays at 10:00 a.m. through to Sundays at 5:30 p.m. Appreciating that there will be some impact upon April’s transportation time to and from parenting time with Father on alternate weekends, that impact is not so great as to render the application of the Revised Parenting Plan inconsistent with her best interests. Further, the schedule under the Revised Parenting Plan exemplified the maximum contact that April could reasonably have with Father as a result of his travel and work obligations. Although there is no firm re-commencement date for Father’s work obligations in California, and although Father’s travel plans may change if he is able to conduct more of his business remotely from Ontario, nothing is yet determined, and thus the Revised Parenting Plan promotes the maximum contact principle in as certain a manner as is possible at this point in time. Of course, the parties are encouraged to work collaboratively to facilitate any additional time that can be arranged between April and Father while he remains in Ontario, particularly prior to the start of school in September.
[33] In sum, from the standpoint of a review of the suitability of the Revised Parenting Plan in promoting April’s best interests today, I find that it is in April’s best interests to remain in Ontario, primarily resident with Mother, spending alternate weekends with Father in accordance with the Usual Schedule. The Revised Parenting Plan is therefore still in substantial compliance with the objectives of the Divorce Act.
[34] Having said this, the decision regarding school enrolment for April is a joint parenting decision. Factors regarding the school that will be best for April must be weighed and balanced, and a decision reached mutually by her parents. Those factors may include: catchment area and transportation from Mother’s new residence; the local school board’s policies on enrolment from outside the catchment area; EQAO scores or other success metrics for the school options; which other children known to April (including her cousins) attend which school; and April’s own views and preferences. In the event that the parents need professional assistance in reaching a decision, they can avail themselves of the parenting coordination services of Ms. Katchaluba as contemplated by their Final Order.
c. Interim Mobility Motions & April’s Best Interests
[35] If I am wrong, and a mobility analysis on this interim motion is necessary, I would nonetheless allow Mother to move with April. With respect to the principles set out in Plumley v. Plumley[^13], but without wanting to provide any opinion that could impact any future summary judgment motion by either party, I agree that a change in custody (as will be sought by Father once his pleadings are amended) could constitute a genuine issue for trial. Certainly, the position that Father should have sole decision-making authority over April’s health, education and welfare contemplates a dramatic change to this family’s post-separation co-parenting arrangements. However, having regard to all of the circumstances and particularly to the uncertainty surrounding Father’s future residency and employment plans, I find that there is a strong possibility that Mother’s position (i.e. that joint custody would continue with April remaining primarily resident with Mother) would prevail at trial. I further find that there are compelling circumstances to permit the move on an interim basis, including April’s enrolment in school and the need for Mother’s family to settle into a routine in Bowmanville before school starts.
[36] Finally, I would assess the move as being consistent with April’s best interests for the following reasons[^14]:
a. April is closely bonded to Mother and has spent more than one-third of her life in Mother’s primary care with Father’s support of this arrangement.
b. April is also very close to Father and will continue to spend alternate weekends in his care consistently with the pre-COVID-19 status quo.
c. Having regard to Father’s unknown residency situation once frequent travel to and from the United States is again commonplace, the principle of maximum contact continues to be promoted by the alternate weekend schedule provided that Mother resides within a reasonable radius from Pearson International Airport.[^15]
d. Although there is no independent evidence of April’s own views, Father admits that April has expressed excitement about moving to Bowmanville.
e. This is an exceptional case wherein Mother’s reasons for moving impact upon her ability to meet April’s needs. Lia’s death changed everything for this family. Mother finds the environment in Waterloo, including in the immediate neighbourhood of the former matrimonial home in which she continues to reside, unbearably toxic. She has only two extended family members in Waterloo Region, both of whom provided great support to her and to April in the year after Lia’s passing, but one of whom has now sworn an Affidavit showing complete alignment with Father and a willingness to manipulate Mother’s grief against her (as discussed in greater detail below).
f. No change to the joint custody arrangement detailed in the Revised Parenting Plan is needed.
g. The evidence conflicts as to April’s current connection with school friends, competitive dance and her broader community. However, April’s relationships with paternal family and with Mother’s aunt, Margaret Deveau, and cousin, Alexandra Deveau-Carter, will continue to be maintained through Father’s parenting time as has been the case since February of 2019. While a letter from the principal of April’s school, upon which I place minimal weight having regard to the writer’s statement that she would “prefer not to be involved at this time,” advises that April has friends at school, it also includes a comment that the “school community [keeps] a watchful eye on [April],” lending some support to Mother’s argument that a fresh start would allow April to develop her own identity independent of her sister’s death.
[37] Based on all of the foregoing, Mother shall be permitted to move to Durham Region, and specifically Bowmanville, with April. April shall attend such school in Bowmanville as the parties mutually agree is best for her, and in the event that no agreement is reached between them by Monday, August 31, 2020, April shall attend the Catholic school in the catchment area of Mother’s residence, being 2510 Nash Road, Bowmanville, Ontario.
C. Should April stay in Waterloo in Father’s Custody and Primary Care?
[38] Having held that April will move to Bowmanville with Mother and Andrew, it is understood that her primary residence will remain with Mother. Although the parties continue to struggle with co-parenting, now is not the time to change custody on an interim basis. In support of his request for sole custody, Father relies heavily upon the Affidavits of Mother’s once supportive, now-estranged, Aunt and Cousin and upon his contention that Mother’s actions constitute “planned alienation.”
[39] I am urged to place particular weight upon the evidence of Mother’s aunt, Margaret Deveau, and cousin, Alexandra Deveau-Carter, both of whom attest as to Mother’s comments and state of mind in the months immediately following Lia’s death, and neither of whom have had any meaningful contact with Mother since February of 2019. Simply put, their evidence regarding Mother is stale-dated.
[40] Margaret Deveau’s Affidavit opens with a paragraph which seems to be an expression of her broad personal expertise in “[providing] clinical counselling and social work services which included assessments, counselling and treatment plans for at risk children, youth and families,” although there is no suggestion that she is testifying as an expert. The lengthy appendix to her Affidavit makes it clear that she is so aligned with Father as to call her motivation and credibility into question. Mrs. Deveau does not limit her evidence to her own observations regarding her historic relationship with Mother and her on-going connection (through Father) with April. She is an outright advocate for Father, countering Mother’s Affidavits point by point and inserting her own opinions and arguments. The few examples quoted below set the tone:
• Important to note that Jarrod continued to pay full child support for both children until January 2019 even though Lindsay and Jarrod were only financially supporting one child post Lia’s passing in August 2018.
• Lindsay and her mother repeatedly commented that it was Jarrod who had left the marriage and ‘abandoned them’. This despite [s]he being the one who cheated on Jarrod.
• Jarrod owns property in Waterloo so that is where he lives.
• Owning one’s own Consulting business does require travel.
• The [Parenting] Plan clearly states each parent will be engaged in a new relationship for 6 months prior to the children meeting the new partner. It also states Jarrod was supposed to meet Andrew before the girls met him. These conditions were not followed.
• There is nothing in the Parenting Plan attached that speaks to a 1 year travel restriction.
[41] In R. v. Graat, Dickson J. for the Supreme Court of Canada decided that lay witnesses can present their observations as opinions where they “are merely giving a compendious statement of facts that are too subtle and too complicated to be narrated separately and distinctly.”[^16] An example of an admissible lay person’s opinion taken from Mrs. Deveau’s appendix is her statement “[Father] also expressed a certain level of despair at leaving the girls but had covered that with Lindsay and assured that he’d be home to spend time with the girls every second weekend…” Mrs. Deveau, knowing Father well, is able to comment upon his demeanor during their conversations. Much of the rest of her material shows an attempt to usurp the jurist’s role. I note that it is always open to the court to accept all, or part, or none of the witness’ evidence and to render a decision accordingly.
[42] Alexandra Deveau-Carter’s Affidavit is considerably more focused on her observations and provides insight particularly into her relationship with April as discussed in the review of the mobility test criteria previously in these Reasons. In that regard, it is very helpful to the court. However, as Ms. Deveau-Carter can speak only to her observations of Mother’s words and actions of more than eighteen months ago, I give no weight to those observations in assessing whether a change in custody is in April’s best interests now.
[43] Father complains throughout his Affidavit materials that he was unaware of the emotional struggles experienced by Mother and April following Lia’s death until they were revealed to him by the evidence of Mrs. Deveau and Ms. Deveau-Carter. He asserts that he was not consulted or advised of April’s three meetings with Ms. Moitoso. He paints this as an intentional withholding of information by Mother.
[44] Father’s counsel asserted that Mother’s “abominable” and “appalling” actions in “secretly and surreptitiously” working to “obliterate” Father’s parenting time with April by moving to Bowmanville show that she cannot be trusted as a joint custodial parent. Counsel’s assessment is that Mother’s calculated effort to hide her move away from Waterloo is in furtherance of her plan to alienate and marginalize Father.
[45] Rogerson v. Tessaro[^17] provides an example of parental alienation which raises both the issues of children’s medical care and mobility. In that case, the Court of Appeal upheld the trial judge’s decision to make the “dramatic” change of awarding sole custody to the alienated father, noting that mother had engaged in a “broad range of [alienating] behaviours, including such potentially serious behaviours as not telling the father about or giving him medications that were prescribed for the children;” uprooting the children on the eve of trial; and saying that “if the father moved to her new town, she would move again.”
[46] It is unnecessary for me to comment on the allegation of alienation by Mother at this stage in the proceedings, as presumably that will be an issue for trial, but I note three things that should be remembered in considering whether Mother should be stripped of her role in the joint custody arrangement:
(1) having done all of the day-to-day parenting of April for three years since Father left for California, Mother may perhaps be excused from an alleged failure to advise Father about every instance when April found herself struggling with the loss of her sister;
(2) both parents had been in permanent spousal relationships for two years before Lia’s passing, and therefore would understandably rely upon their current spouses to help navigate the grieving process and perhaps to keep indicia of vulnerability private from one another; and
(3) it would be a very unusual – possibly unique – case where an alienating parent agrees to expand the allegedly-alienated parent’s time with the child.
[47] Having allowed April’s move with her Mother to Bowmanville, and for the additional reasons set out in this section, Father’s request for interim sole custody and a change in primary residence to his home is dismissed.
D. Does this Family need a Police Assistance Clause?
[48] This point was not stressed by either counsel. There is no evidence that Mother has withheld or thwarted Father’s parenting time under the Usual Schedule in the Revised Parenting Plan. There is no evidence that parenting time exchanges have been conflictual in any way.[^18] Indeed, as noted, Father’s parenting time has been expanded to the Usual Schedule in the Original Parenting Plan for the duration of his time in Canada to date. April has endured the trauma of her parents’ separation; the loss of her Father from her day-to-day life as a result of his business in California; the adjustment of blending with other children into a larger family unit; and the death of her sister. The last thing she needs is to see her parents interacting with law enforcement during parenting time exchanges. No police assistance clause will be ordered.
E. Does the Court need an Assessment under section 30 of the CLRA to decide the issues?
[49] Section 30 of the Children’s Law Reform Act[^19] sets out the procedure in ordering the involvement of a professional to assist the court by providing an expert opinion regarding the needs of a child and each parent’s ability to meet those needs. Section 30(1) reads:
30(1) The court before which an application is brought in respect of custody of or access to a child, by order, may appoint a person who has technical or professional skill to assess and report to the court on the needs of the child and the ability and willingness of the parties or any of them to satisfy the needs of the child.
[50] Although the caselaw seems a bit confused on the point, the legislation does not require the existence of clinical issues as a prerequisite to ordering an assessment. In Kramer v. Kramer[^20], Henderson, J. opined, and I agree:
…an assessment should only be ordered where an assessment is reasonably necessary to assist the court in determining the issues that are before the court. If, on all of the evidence, a court is in a position to reasonably decide the issues without the assistance of the assessment then the assessment should not be ordered. Moreover, in considering whether or not to order an assessment, the court must also weigh the anticipated benefits that would flow from the assessment report against the negative effects that the parties and the children would suffer if they were compelled to go through the assessment process.
[51] Father describes his argument in favour of an assessment at paragraph 51 of his Affidavit sworn July 31, 2020:
In response to paragraph 51, Lindsay’s statements are her assumptions, not fact. I did have concerns about Lindsay’s ability to care for our children, particularly since Lia’s death and even more so given Lindsay’s recent actions. I have become increasingly more alarmed by Lindsay’s inability to co-parent, blatant parental alienation, and unwillingness to put April’s best interest in front of her own. I was not made aware of Lindsay’s inability to care for April after the loss of [Lia] until just prior to reading the Affidavits of Marg [Deveau] and Lexy [Alexandra Deveau-Carter]. I was not made aware of Lindsay’s overly medicated state until just prior to reading Marg and Lexy[‘s Affidavits] and I was not made aware of Lindsay’s contemplated suicide until just prior to reading Marg and Lexy’s Affidavits. Lindsay’s Affidavit is fraught with paragraphs about herself and what she needs, or defaming me. An expert conducting a section 30 assessment can determine the parenting concerns on both sides and determine what is best for April.
[52] Father also argues that an assessment by a clinician is needed to assist the trial judge in reaching a conclusion regarding the move away from Waterloo to Bowmanville.
[53] It must be remembered that Father left for California in mid-March 2017 and, thereafter, returned to California following Lia’s funeral not quite two years ago. Despite the concerns that he now cites as reason to order an assessment of April’s needs and Mother’s ability to meet them, the fact is that Father’s career choice included his decision to support Mother acting in the primary care role for approximately three years (about one-third of April’s life), both before and after the family’s traumatic loss. If Mother’s grief response impacted upon her ability to care for April to such a degree that an assessment was warranted at that time, would Father not have had his own, independent, cause for concern at some point since Lia’s death?
[54] It must also be remembered that the trial judge cannot delegate her authority as decision-maker to any expert witness. In J.J.B. v. G.G.B.,[^21] Mackinnon, J. reviewed the test for the admissibility of expert evidence as set out by the Supreme Court of Canada in R. v. Mohan[^22], and wrote:
I have concluded from the record of evidence before me on this motion that the trial judge will be able to determine the issues raised in the case without the necessity of a section 30 assessment. The issues raised by the mother in support of an assessment are, in my view, adequately addressed by direct evidence that already is available. It has not been shown that anything in the children's behaviour requires an assessment. It has not been shown that the court will need an expert's opinion as to the genesis of the parental conflict or its future prognosis in order to determine the custody issue before the court.
[55] I could not phrase it more succinctly regarding the case at bar. The task of determining what overall result is in April’s best interests is well within the trial judge’s wheelhouse and I am confident that both parties will put forward ample evidence at trial to ensure that that task can be accomplished. I find that there is no compelling evidence to suggest that a section 30 assessment is necessary to assist the trier of fact and therefore no such order will issue.
Order
[56] Based on all of the foregoing, Temporary Order to go:
The Revised Parenting Plan dated March 17, 2017, a copy of which is to be attached as Appendix “A” to the issued order, is in full force and effect.
The Respondent, Lindsay Michelle Barakett, shall be permitted to move to Durham Region, and specifically to Bowmanville, with the child, April Michelle Barakett born September 8, 2011.
April Michelle Barakett born September 8, 2011 shall attend such school in Bowmanville as the parties mutually agree is best for her, and in the event that no agreement is reached between them in writing by Monday, August 31, 2020, she shall attend the Catholic school in the catchment area of 2510 Nash Road, Bowmanville, Ontario.
The Applicant, Jarrod Adam Barakett, shall have leave to serve and file his Amended Motion to Change and any corresponding documents by Friday, September 25, 2020.
The Respondent, Lindsay Michelle Barakett, shall be entitled to serve and file any amended responding documents by Friday, October 9, 2020.
Settlement Conference to be booked through the office of the Trial Coordinator, following Questioning as previously authorized by Order of Madam Justice C. Braid dated June 16, 2020.
All other issues raised in the Applicant’s Amended Notice of Motion and the Respondent’s Notice of Motion, both of which were returnable August 12, 2020, are dismissed without prejudice to future disclosure and/or undertakings relief to be sought by either party.
Respondent’s Costs submissions (not to exceed 4 pages in length), relevant case-law, a detailed Bill of Costs and copies of any Offers to Settle to be served and delivered to the court by August 28, 2020. Applicant’s responding submissions on costs shall be served and delivered to the court by September 4, 2020. Reply submissions if any, shall be served and delivered to the court by September 11, 2020. There shall be no extensions to these deadlines. Submissions are to be delivered by email and directed to the following judiciary assistants: Mona.Goodwin@ontario.ca and Lori.Rebelo@ontario.ca with a copy to be sent to Kitchener.Superior.Court@ontario.ca, indicating in the subject line: “Barakett v Barakett - costs submissions re: August 17th decision - attention Madam Justice J. Breithaupt Smith.” When normal court operations resume the parties shall ensure that physical copies of their cost submissions are filed.
[57] Court staff are requested to serve both counsel with a copy of this endorsement by email.
[58] Notwithstanding Rule 25 of the Family Law Rules, this endorsement is effective from the date it was made and enforceable as an order of the court without the need for an order to be prepared or approved by the parties and then issued by the court. No formal order is necessary unless an appeal or a motion for leave is brought, or alternatively unless one is necessary for enforcement by a third party.
J. Breithaupt Smith, J.
DATE: August 18, 2020
[^1]: See the language under the heading “II – Medical and Healthcare” at section (c), found both at page 11 of the Parenting Plan dated January 26, 2016 and at page 12 of the Revised Parenting Plan dated March 17, 2017. [^2]: The exact terminology applicable to Father’s business relationship is not relevant to the issues at bar; it is undisputed that he was expected to be in California primarily in furtherance of that business relationship. [^3]: I note again here that I do not have access to the underlying pleadings, and this summary is based upon oral submissions received on the Motions. [^4]: For clarity, this letter from counsel was not marked “without prejudice” and did not contain any settlement position regarding the issues raised in this Motion, which was brought approximately eight weeks later. [^5]: Miglin v. Miglin, 2003 SCC 24, [2003] 1 SCR 303 at paragraph 4. [^6]: R.S.C. 1985, C. 3 (2nd Supp.) as am. [^7]: Note that in Miglin, the Court affirmed the trial judge’s approach in applying section 15.2 of the Divorce Act to the analysis of the parties’ separation agreement rather than proceeding under section 17. (See Miglin, supra, at paragraph 48.) This situation is more complicated, however, both because the Original Parenting Plan did not exist for incorporation into the Final Order and because questions have been raised for review on issues addressed by the Final Order (i.e. custody) and on issues covered only in the Parenting Plans. [^8]: At the base of an email chain between the parties appended as Exhibit “A” to Mother’s Affidavit of July 16, 2020, Father sends an email time-stamped January 6, 2017 at 5:12 p.m. which reads: “I have attached an older version of Pages which should work. In case it doesn’t I have also attached a pdf version that will work for sure.” [^9]: Father’s responding email is attached as Exhibit “A” to Mother’s Affidavit sworn July 16, 2020. In that document, Mother’s words appear in italics in either black or blue and Father’s words appear in red. [^10]: Found at Exhibit “E” to Mother’s Affidavit sworn July 16, 2020, as the email had been originally copied to Mother. [^11]: Miglin, supra, paragraphs 87 – 91. [^12]: Plumley v. Plumley, 1999 CanLII 13990 (ON SC) at paragraph 7. [^13]: Supra, at paragraph 7. [^14]: Using the framework of considerations set out in Gordon v. Goertz, 2002 CanLII 45125, at paragraph 49. [^15]: For a comparable situation on the issue of maximum contact, see Philip v. Khalid, 2019 ONCJ 602 at paragraphs 145-146. [^16]: (1982), 1982 CanLII 33 (SCC), 31 C.R. (3d) 289 at 310 (S.C.C.). [^17]: 2006 CanLII 15126 (ON CA). [^18]: For a detailed review of the use of police enforcement clauses, see Patterson v. Powell, 2014 ONSC 1419. [^19]: R.S.O. 1990, c. C-12, as am. [^20]: 2003 CanLII 64318 at paragraphs 36 & 37. [^21]: 2003 CanLII 64333 (ON SC) at paragraph 18. [^22]: 1994 CanLII 80 (SCC), [1994] 2 SCR 9.