COURT FILE NO.: FC-15-FO000934-0001
DATE: 2020-11-27
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Shawna McInally
Applicant
– and –
Ryan Malcolm
Respondent
Drew L. Bowyer, Counsel for the Applicant
Charles Morrison, Counsel for the Respondent
HEARD: November 16, 17, 18 and 20, 2020
The Honourable Justice James W. Sloan
REASONS FOR JUDGMENT
[1] At the commencement of trial, the court made the following documents exhibits:
Exhibit 1 - Applicant’s Document Brief
Exhibit 2 - Applicant’s Supplemental Document Brief
Exhibit 3 - Respondent’s Document Brief for Trial
[2] This trial is about mobility. The applicant mother seeks to move the parties’ two children to Waterford in Norfolk County. Both parties are capable parents.
[3] There have been fourteen court orders made in this file, starting in December 2015.
[4] The applicant mother is 38 years of age and the respondent father is 35. They are the parents of two young girls, Alice Marsella Helen Malcolm, born December 20, 2012, who in a short period of time will be 8, and Ivy Rose Danielle Malcolm, born November 16, 2014, who just turned 6.
[5] The parties were in a common-law relationship between approximately June 2011 and November 2015. At the time of the original custody and access order which was obtained on consent, both parties resided in Waterloo Region, the father in Kitchener and the mother in Cambridge. Both parties were represented by counsel.
[6] Notwithstanding the very significant difference in annual income, there is no spousal support order. (Para. 5 of Allen J’s order - $15,000 v. $50,000)
[7] The following appear to be the annual income of both parties, I will list them annually with the first number being that of the mother and the second number being that of the father:
(a) 2014 ($38,380 - unknown)
(b) 2015 ($38,547 [$20,339 was EI] - unknown),
(c) 2016 ($5,721 [$1600 was the universal childcare benefit] - $57,921),
(d) 2017 ($20,756 - $55,572),
(e) 2018 ($29,807 - $65,129),
(f) 2019 ($32,088 - $62,392),
(g) 2020 ($38,696 - $62,391)
[8] The consent order before Justice Allen was obtained March 15, 2016. It is appended at Ex. 3 Tab 3 P 21. Briefly it states:
(a) the parties will share custody of the children;
(b) the children will be with the father every weekend from Friday at 3:30 p.m. to Sunday at 7:30 p.m.;
(c) the children will be with the father two additional overnights per month;
(d) the parties were to share the Thanksgiving, March break and Christmas holidays;
(e) neither party was to move the children further than a 15 minute drive from the other’s residence. It is noted at the time of the order that the residences were approximately 11 minutes apart; and
(f) it then went on to child support and child care expenses.
[9] Notwithstanding the clear and unambiguous terms of Justice Allen’s order, to which she consented, and without the consent of the respondent father, the mother moved the residence of herself and the children to Norfolk County on or about June 2016.
[10] On October 27, 2016, Justice Bradley found the mother to be in contempt of Justice Allen’s order. He ordered the mother to return the children to the Waterloo Region to an address that would put her in compliance with Justice Allen’s order, on or before June 15, 2017. She did not do so until December 2017.
[11] Three and a half years ago (3½), on May 4, 2017, mother commenced a motion to change.
[12] On February 6, 2018, Alice was registered in school in Cambridge, but Ivy was still in daycare in the Simcoe area. A temporary order was made by Justice Neill.
[13] On August 8, 2018, Justice Neill, in a lengthy endorsement, dismissed the father’s motion for summary judgment. (Respondent’s Document Brief for Trial page 57)
[14] On January 3, 2019, Gordon J., in another lengthy endorsement, dismissed the father’s appeal from Justice Neill’s August 8, 2018 order. (Respondent’s Document Brief for Trial page 76)
Shawna McInally - Mother
[15] To Comply with the current court orders, the mother is renting two homes, one in Waterford and one in Cambridge. She stays in Cambridge from Sunday night to Friday morning and returns to Waterford on the weekend when the children go to stay with her father. She drives from Cambridge to Simcoe each day for work.
[16] She explained that because she had been working most weekends prior to the Minutes of Settlement she allowed the father to be with the children on all weekends. That is no longer the case.
[17] Several months prior to the Minutes of Settlement in March 2015, she had been working as a manager for Teavana, but lost her job in December 2014. At the time she lost her job she was having matrimonial difficulties with the defendant and she was going through a very tough time. She testified that the father took the children for two weeks and would not allow her to see them.
[18] This led to her having difficulty at work and she was eventually dismissed. She tried to replace her job, however, found that word travels fast in the business world and other companies did not want to hire her because of her ongoing problems.
[19] She eventually found a part-time job as a cashier at Zehrs, but she was only able to get three or four shifts a week and three hours per shift. The pay was only $14 an hour which would make her gross pay between $126 to $268 per week.
[20] She did not have a driver’s license, nor did she have a car even if she had one. She had to walk or bike to work because she did not have money for the bus, daycare was too expensive and too out of the way for her to get to. To add insult to injury, she could not get a subsidy because she had a court order giving her child support, even though the money had not started to flow in because of the lag of time between the order and actual payments.
[21] She testified that she did not have a driver’s license because her husband saw no need for her to have one.
[22] In June 2016, she decided to move to Norfolk County where her family resided. At the time, based on her work at Zehrs, she earned about $500 a month which was barely enough for groceries. Therefore, she could not afford her rent and utilities or anything else. In fact, at one time her hydro was cut off for nonpayment and it cost her a whopping $500 to have it reconnected.
[23] At this time, it was her father who came to her and the children’s financial rescue. He offered her a full-time job and an apartment above his dry-cleaning shop. She was also offered the chance to buy the business if she could and would learn the business from him. He thought that would take a couple of years.
[24] Not that she had any choice, but it was simply too good a deal for her to pass up, both for herself and her children. Unfortunately, her husband did not see it the same way and he would not consent to her moving with the children.
[25] Based on the foregoing paragraphs, she was between a rock and a very hard place and decided she had no choice but to move, so she did.
[26] Her mother, who lives in a retirement home, owns a house in Waterford that was not in use and needed some renovation. With her mother’s blessing and her father’s assistance with the renovation, she was allowed to move into the house if she would pay the mortgage.
[27] The Waterford home is two stories with the basement and while there are three bedrooms, the girls share one but have separate beds. It has a large yard, a swing set and a walking trail behind the yard.
[28] By comparison, her Cambridge apartment has a basement which is made up of a garage and laundry facilities. The garage is used by the landlord and she does her laundry at work. It is two stories with two bedrooms and while it has a backyard, it is such that she will not allow the children to play in it without supervision.
[29] She broke her days down into pre-COVID and post-COVID time schedules. Pre-COVID, with the children in daycare, she would drop them off between 7:00 and 8:00 a.m. in the morning and try to get home by 5:00 p.m. This left her almost no time to spend quality time with the children and to help them with their schoolwork.
[30] Post-COVID, the children were out of school, she was laid off in March and began working weekends commencing August 2020. She was working Fridays, Saturdays and Sundays.
[31] In September, the children went back to school and unfortunately her father ran into some health issues in October. She has been assisting him from approximately 10:00 a.m. until 1:30 p.m. every day.
[32] After helping with her father, she makes the 60 to 75 minute drive back to Cambridge. A few months ago, her father moved out of his apartment over the dry-cleaning shop and moved into a senior’s residence in Waterford, approximately two minutes from her house.
[33] She submitted that if she was allowed to move the children to Norfolk County, the benefits for the children would be amazing. They would include:
(a) her dad would look after walking the kids to and from school which is approximately 10 minutes each way;
(b) her mother, who was a teacher, would be able to give what she described as much needed one on one tutoring help to the children, especially Alice, who the mother feels has some form of ADHD. No written report was produced to that effect;
(c) she would also be able to spend more quality time with the children and not have to travel 2½ hours each and every day for a total of 12 ½ hours per week;
(d) the children’s paternal grandparents live about 10 minutes away; and
(e) there are also several cousins in the area, including the mother’s brother’s two young daughters who are of a similar age.
[34] The Mother testified the children would be quite upset to leave their friends in Waterford.
[35] She stated the father could still see the children, including the two extra nights per month, either by keeping the children overnight on Sunday and dropping them off at school on Monday morning or alternatively seeing them at his parent’s home.
[36] With the exception of the children’s dentist, their medical doctor and optometrist, etc. are all in Simcoe. To date it has been father who has looked after the children’s dental appointments.
[37] The mother found out about a 2016 sexual interference incident perpetrated by a male acquaintance in 2018, but after the interview with the police, she was under the impression she could not tell the father while the police investigation was ongoing.
[38] Mother testified that she currently has a use of an automobile owned by the laundry business, so long as she is employed there.
[39] With respect to section 7 expenses having to do with daycare, she produced receipts at Ex. 1 Tab 5 in the amount of $4,210 for 2018 and $6,526 for 2019.
[40] The children were in daycare in Simcoe in 2016 and she produced childcare receipts for $3,865 for that year. (Ex. 2 P. 52)
[41] When asked directly by her lawyer why she failed to comply with the court orders, she stated there were many things including the fact that she had no driver’s license and therefore she could not even look for alternate accommodation in Cambridge unless she had someone to drive her and her dad was in poor health. She was assisting him, and he was also unable to drive her to Cambridge to look for accommodation.
[42] She stated that her only alternative, other than what she did, was to go into a woman’s shelter with her two children, probably for at least a year before some agency might be able to help them. On the other hand, her dad could help with employment and shelter if she was in Simcoe. Therefore, essentially, she had no choice.
[43] When asked to explain why the court should believe she would comply with whatever order this court makes, she stated she is now able to drive, has a good paying job, a roof over her head and the use of a vehicle. In addition, the business covers her cell phone costs.
[44] She went on to say that if things stay the way they are, she will lose her job, her dad will sell the dry-cleaning business to a third party, and she will get no opportunity to take over and run the dry-cleaning business for the benefit of her family, she would lose her vehicle and basically be back on the street, jobless.
Cross-Examination of the Mother by Charles Morrison
[45] The mother admitted she had used the same lawyer throughout the settlement and up to today, and that he was essentially available to her for advice at any time.
[46] When asked about the weekends, she essentially said the settlement was unfair and that she never gets any of what she termed, the fun times the children.
[47] She suggested she should get one weekend a month and the father could have more time in the summer to compensate for the that time.
[48] With respect to the father’s two extra overnights per month, she suggested he could have those at his parents’ home in Simcoe and/or alternatively keep the children on a Sunday night and take them to school on Monday morning. In essence, she said she would be flexible.
[49] With respect to the Minutes of Settlement, she indicated that she felt she was pressured into signing them.
[50] She acknowledged that she was about six months late in returning the children to the Waterloo Region after Justice Bradley’s contempt finding on October 27, 2016.
[51] Mr. Morrison suggested she was not being honest with the court when she filed her change of information form, because it does not mention that she was found in contempt, does not mention one of the children have special needs and that she did not comply with paragraph 11 of the “Affidavit in Support of Claim for Custody or Access” form because she did not keep the court apprised of up-to-date and accurate information.
[52] In response, she stated the fact of the contempt is in the court record and on April 6, 2016 when she signed the form, there had been no finding or suggestion that Alice had special needs. With respect to whether or not she kept the court apprised of up-to-date information, she replied, I had a lawyer.
[53] She admitted on December 17, because of the good job she had with her father she was not looking for a job in Waterloo Region. At the time she had her G2 license and she drove to work in Simcoe every day.
[54] She stated that the paternal grandparents still live in Simcoe and the father still has his weekends and extended weekends. She now gets some time on the weekends pursuant to one of Judge’s Neill’s orders. She told the court that when they were together, the family spent 90% of their weekends at the father’s parents place in Simcoe.
[55] She stated that currently she is doing much more driving to facilitate parenting time than the father. She indicated her working in Simcoe and being able to take over the laundry business is best for the children because it allows her much more ability to provide for them and she is financially stress-free.
[56] She further indicated that her father has gone above and beyond and cannot keep doing it, and if she is to have any chance of taking over the business, she needs to learn the business in the next couple of years.
[57] In addition, she stated at the time of the negotiations for the Minutes of Settlement, the possibility of her taking over the dry-cleaning business was not in the mix.
[58] Although she admitted to making some mistakes, she stated that she has never attempted to be untrustworthy. Her decisions were made because she was broke and homeless and initially had no driver’s license.
[59] Her reason for not raising the issue of best interest in the children before Justice Bradley, was because that hearing was about contempt.
[60] She acknowledged that after returning the children to school in Cambridge they lived in Waterford during the summer vacation months. Mr. Morrison suggested to her that this was improper, and she disagreed.
[61] She stated, that she did make some attempts to find a job in the Cambridge area and that she sent out numerous resumes, however, she did not provide the court with a list of same. She indicated she had two interviews, one of which she could not get to because she could not get a ride. When Mr. Morrison suggested she could have applied to McDonald’s, she answered that she had, but did not get a call back and in any event, it would have been a minimum-wage job and likely part-time.
[62] Notwithstanding that she was to disclose numerous documents, including resumes job searches and daycare costs, she acknowledged that she had not complied with the father’s request in his trial management conference brief. (Ex. 3 P. 137)
[63] Although it appears that mother’s lawyer was extremely tardy in answering questions from father’s lawyer about mother’s job search and enrolling Ivy in daycare in Cambridge, the mother responded that she had told the husband verbally.
[64] With respect to the incident of Ivy possibly swallowing an Advil like substance, she indicated she did not call the husband because her phone was dead and admitted that she never did call the husband because it turned out Ivy was fine and when they got home from the hospital they were both exhausted and fell asleep. Then essentially life got in the way.
[65] With respect to another incident where Ivy burned her foot on a curling iron, mother stated that when this happened it was the first time that Ivy had ever climbed out of her crib by herself and she bandaged Ivy’s foot. She acknowledged not telling the father until just before he came to pick up the child for access.
[66] She acknowledged that in April 2017 she was earning $11.40 per hour at the dry-cleaning store. However, she stated, in addition to her very advantageous rent, she had the exclusive use of an automobile, which along with her cell phone was paid for by the laundry business. In addition, the work is not part-time, and she was offered the opportunity that only the child of an owner could get. That is, to buy the business.
[67] With respect to her male acquaintance who is convicted of sexual interference, she stated that she only left the children alone with him twice, once was for twice minutes. Prior to the incident, the accused has been very helpful on many occasions and seemed like an upstanding guy. She simply had no reason to think he was a pedophile. She stated that the police told her not to talk to the husband until they did.
[68] With respect to some sexualized behaviour the mother found on an iPad that had been recorded by Alice, she stated that she informed the father, her lawyer, the CAS and the school. She is currently looking into getting some general counselling for both girls and is on a waitlist.
Reply by Drew Bowyer
[69] The mother got her G2 driver’s license in October 2018.
[70] She stated that her rent in Cambridge is $1,200 a month and only $620 a month in Waterford.
[71] She said her current deficit of $12,000 a month as set out in her financial statement is being covered by her father.
[72] She stated that she found the sexualized pictures on the children’s iPad after the children told her that the father had deleted some pictures. While not blaming the father for having anything to do with taking the pictures, she stated that he never told her about them.
[73] When she found the videos, mother said she told the father about them, and also that the police would be interviewing him.
[74] With respect to counselling through the father’s benefit package, she stated she has followed up twice with him but has not gotten a reply as to when it might be set up.
[75] She acknowledged that COVID may be part of the problem in getting counselling started and indicated that she wants to make sure it is the right counselling.
Charles McInally - Maternal Grand Father
[76] He acknowledged being the sole owner of Peerless Cleaners and currently lives approximately one mile from his daughter, the mother.
[77] He stated that he was the driving force behind the mother’s move to Norfolk County. He stated he had been supporting her and the two children for a long period of time, including paying for rent, utilities and food and all the while he had a vacant apartment above his cleaning business.
[78] He told the mother he would support her if she moved to Simcoe and he would give her an apartment, a job and the opportunity to take over the business.
[79] He is 75 years old, has recently had some health setbacks and wants to retire.
[80] He described the children as one would expect a loving grandfather to do and explained some of the activities he did with them.
[81] Although he has been separated for 29 years from his wife, he knows that she is involved with the children and in her working life she was a great teacher.
[82] He described his daughter as completely trustworthy and said if anyone is to blame for her move to Simcoe, it’s him, however, his decision was based on his love for his daughter and his grandchildren versus the three of them going into a women’s shelter.
[83] He testified that he has no animosity whatsoever towards the father and that early on he treated his daughter well. But he soon tried to control everything, including not letting her get a driver’s license. He described the father as an alpha male who does what he wants, and others have to do as he says.
[84] He also stated that the father is a dedicated worker and he has no doubt that he cares for his children.
[85] He stated that he has one son in Barrie and one in Simcoe. The one in Simcoe has two daughters of similar ages to the ones the court is concerned with. He described the four girls as being like peas in a pod and like sisters.
[86] In addition, there are aunts, uncles and great aunts in the Simcoe area. He also stated that the paternal grandparents live in Simcoe, all the children’s doctors practice in Simcoe and there is huge family support for the mother in the Simcoe area.
Cross-Examination of Charles McInally by Charles Morrison
[87] He understood the husband was to pay 75% of the daycare and suggested that the husband was in contempt for not doing so.
[88] He also stated it was not joint custody because she had the children five out of seven days each week.
[89] He was aware that his daughter was found in contempt.
[90] He acknowledged that the father gets along well with the children, is not a bad parent and the children like him. He also acknowledged that the father should have an important role in the children’s lives.
Michael McInally - Mother’s Brother
[91] He is the mother’s brother and has lived in the Simcoe area most of his life. He is married with two young daughters aged 4 and 7.
[92] He knew his sister had some money problems before she moved back to Simcoe in 2016. Since then they have spent some time together, particularly the four girls who get along very well.
[93] He stated that because his sister does not have her children on the weekends and because he and his wife work full time, it is often difficult to get the girls together for playtime. He further stated that since they are so close in age and all get along, they would certainly see each other a lot more if the children lived in the Simcoe area.
[94] His wife is a teacher, while he works in IT.
[95] He views his sister as a very good attentive mother.
[96] He stated that they have a large family and pre-COVID there would be several gatherings per year in Norfolk County, which would include at least, some summer barbecues and Christmas.
[97] He testified that he only has a cursory knowledge of the plans for his sister to take over the cleaning business.
[98] He has had very little contact with the father, has no dislike for him and stated that he appears to be a little distant.
Cross-Examination of Michael McInally
[99] When asked about the court orders, he responded that his sister was between a rock and a hard place because she had no money.
[100] He also said that the contempt was in the past and everyone should be looking towards the future.
Ryan Malcolm - Father
[101] He rents a multilevel three-bedroom home in Cambridge where he has been since January 2015. Both children share a bedroom.
[102] The home is in a newer subdivision with a partial backyard where the children can play, and it is close to their school. Ivy is in Grade 1 and Alice is in Grade 3. He takes them to and picks them up from school.
[103] He has been a line set up technician for 9 ½ years for Comtech Manufacturing, which is a division of Linamar. His work week commences at 10:30 p.m. Sunday night and finishes at 6:00 a.m. on Friday morning. This means he works the night shift from 10:30 p.m. to the following 6:30 a.m. each night.
[104] His normal routine would be to have a shower when he gets off work, walk his dog, have a sleep from about 9:00 a.m. to 2:30 p.m. He would then catch a few winks again at 8:00 p.m. before going to work.
[105] He has a large German shepherd cross and the children love to play with the dog.
[106] He has a girlfriend, Carina Boufford who moved in to live with him a few months ago. He initially met her 14 years ago when she went to school with his younger sister. She has recently been in Ireland taking a Bachelor’s course in business and tourism
[107] The girls get along well with her, they play dolls together and she paints their nails. All four of them play in the park and go for walks on local trails.
[108] He described Alice as a bubbly, happy, friendly, inquisitive girl who is a little shy. They have a great relationship and she always wants to help with whatever he is doing, whether it’s cooking, cleaning or laundry.
[109] He described Ivy, as feisty and always on the go. She is more of a tomboy than Alice, he described her as fearless.
[110] Before COVID they partook in many activities at the YMCA, including swimming at 4:30 p.m., dance on Saturday and Taekwondo on Sunday. Both children have friends in the community.
[111] He acknowledged that his parents live in Simcoe where he was born. He lived with his parents in Simcoe and/or his grandmother in Port Dover so he could assist with his sick grandfather. He moved to Cambridge when he got his current employment in 2011.
[112] His mom is an accountant for a company and his father is an industrial millwright mechanic. Both work full time Monday to Friday.
[113] He denied spending all his time on weekends at his parents and testified that they would come to his place to visit the children. He estimated that he may take the children to Simcoe every one or two months.
[114] His sister Anna lives in Woodstock and is a Constable for the Guelph Regional Police. She is married with a 7 month old child. In addition, his grandmother is still alive. Because his sister has a larger house, most family gatherings take place in Woodstock.
[115] Both children have a great relationship with his sister.
[116] He currently sees the children commencing Friday morning. After getting off work he picks up the children at 7:30 a.m. at their mother’s home and returns to his home until it’s time to get the children to school by 8:50 a.m. He then has a nap, some free time and picks the children up from school in the afternoon.
[117] Because Justice Neill gave the mother some weekend time, the mother now contacts him on one or two Mondays per month and they decide whether she will have some weekend time on Friday or Sunday. He said the trade-off was that he got the children at 7:30 a.m. on Friday morning and the mother got some weekend time.
[118] With respect to communication, he said it depends on the issues. He said communication on most day-to-day things goes well, but on medical and when things happen to the children, not as well.
[119] He acknowledged that the current order is vague with respect to holidays and they tend to split the holidays down the middle.
[120] His plant shuts down for the last two weeks of December and the first week of January. In addition, the plant shuts down for two weeks in the summer and he cannot have extra time off during the summer. In addition to plant shutdown, he gets four weeks of annual vacation.
[121] With respect to the mother’s proposal to live in Waterford, he said the drive one way on a good day is a little over an hour and when the weather is not so good it could be 1½ hours. In addition, he would not be close enough to look after the children when their mother was not available, something he referred to as the babysitting clause.
[122] He testified that he has always been an active dad and wants to remain an active dad. He stated that the clause in the order that they both live within 15 minutes of each other was very important to him because he wanted both of them to be able to attend medical appointments, along with sports, school and other activities that involve the children.
[123] He acknowledged that the mother was only employed part time when the agreement was struck, but stated he expected her to get a job. From his perspective, the sharing of the children was going well until she moved to Norfolk County.
[124] He denied ever telling the mother that she could not get her driver’s license. He stated that the G1 license is only a written test, she tried it several times and failed.
[125] He testified that after the changes made by Justice Neill, the mother never offered to share the driving or the cost of fuel. He also testified that at the current time with the mother living in Cambridge, she seems to be managing her job just fine.
[126] He testified that he was told about her initial moved to Simcoe basically at the same time he went to return the children and the same was true about her move from Simcoe to Waterford.
[127] With respect to Justice Bradley’s order, the mother never got daycare in Waterloo and never kept him informed of her attempt to do so.
[128] Because of the children being in school and the availability of family members to assist, there is no current need for daycare.
[129] He said the court process has been frustrating because he could never get a response from the mother or her lawyer about what attempts she was making to find daycare or a job.
[130] He disagrees that the mother was in compliance with the court orders when she moved the children’s residence to Waterford for the summer.
[131] Despite his opinion, the mother would drop off the children early on Friday morning and he would return the children on Sunday.
[132] In short, he simply does not trust the mother to live up to her promises.
[133] Although the mother is now claiming for past daycare expenses her lawyer has never sent a DivorceMate calculation which would factor in the actual cost to the mother after taking government benefits into account.
[134] He stated that the mother has never offered his parent’s time with the children. However, both parents work full time and the children are with him in Cambridge on the weekend. In addition, there is no evidence before the court that his parents ever requested to have time with their grandchildren.
[135] He acknowledged that Alice seems to struggle a bit with school but that there has been no diagnosis yet and no specific program at Hillcrest school. He testified that he helps her with school and gave some examples.
[136] It was his opinion that Alice has to learn how to cope with whatever shortcomings she has. He stated that he was not told about the meeting with the pediatrician until the day of the meeting and he was simply unable to get there in time. Since he was not at the meeting, he does not know why the mother is suggesting that Alice may need medication, particularly when no diagnosis has been made. He further stated that if there was a second appointment with the pediatrician, he was not informed about it.
[137] With respect to the incidences involving the children, he stated he was not informed about Ivy chewing or swallowing something like Advil and was never given any information about it. He ended up going to the hospital to see her medical record. Fortunately, Ivy had no ill effects. Similarly, he was not told about the curling iron burning her foot until several days after the event. In similar fashion, he did not find out about the sexual interference until the police came to his house. The police never indicated to him that they had told the mother not to speak to him about the incident. He suggested that had the babysitting clause worked as it was intended, the person involved with the sexual interference would never have been looking after the children.
[138] He suggested that counselling could start within one or two weeks through his work benefit package, but no lawyer’s letter or other document was filed with the court to verify this or show that this information was given to the mother.
[139] He testified that the allegation of the mother potentially taking over the dry-cleaning business never came up until just before the trial.
[140] With respect to his ability to see the children, he filed Exhibit 5 which sets out the approximate cost of his going to pick up and/or deliver the children. He is suggesting he be reimbursed for $7,748.41.
Cross-Examination of Father by Drew Bowyer
[141] The father acknowledged that there should be some changes to the parenting schedule.
[142] It was suggested to him that he does not follow court orders because he has not paid any of the $9,000 in costs awarded by Justice Gordon. He replied that it was not that he did not want to pay the costs, it was simply not possible. He went on to say that this legal action has landed him in debt, including his credit cards. How is this different in theory from the mother’s financial problems leading up to her move?
[143] He could not remember the name of Ivy’s teacher but did remember the name of Alice’s teacher.
[144] With respect to the letter written by his lawyer about whether or not Alice was enrolled in school in Cambridge, he admitted that the mother had told him, but he did not have any confirmation of the fact.
[145] With respect to the children’s doctors he conceded that he could make an appointment to talk to them if he wanted. He admitted he knew of the second pediatrician appointment but was running late and did not make it.
[146] He said in contrast he advises the mother of all the dental appointments and in most cases both parents attend each appointment.
[147] He said he told the mother in person that Ms. Boufford was moving in with him. Apparently, the children had met her approximately four years before and were involved in some video chats while she was in Ireland. It was the father’s position that it was not disruptive for the children to have her move in.
[148] The father also acknowledged that shortly after the split, he allowed his ex-wife to move in, in a platonic way, to help her through some difficult times.
[149] He also allowed his niece to move in for a period of time, also in a platonic manner.
[150] He acknowledged that the mother could not continue to be covered by his medical benefits at work once they were separated. He did not advise the mother of this eventuality.
[151] He denied that he went to live with his grandmother because he was having problems getting along with his parents.
[152] He maintained his position that if the children were to miss their extracurricular activities at the YMCA one week a month they would simply be dropped from the class. This does not seem to be the case, based on the printout from the YMCA’s website entered as exhibit 6.
[153] In addition to a two week shut down at his plant in the summer, there is an approximate three week shutdown over the Christmas season and he is entitled to an additional four weeks of vacation which would mean a total of between eight and nine weeks.
[154] He told the court that his girlfriend, Boufford, had some children from an abusive relationship when she was a teenager and because of her age and financial situation, she put the children up for adoption. He was unaware if she has any access which would mean, at the very least, that she has not had any access since she moved in with him
[155] It was suggested to the father that having any of the three ladies move into his house without first advising the mother was inappropriate, because she was entitled to know who he was living with during the times when Alice and Ivy were staying under his roof. He replied that he had known all three of the ladies for years. This seems to miss the point that was being made.
[156] Mr. Bowyer suggested to the father that this was an issue of trust.
[157] With respect to counselling through his employee assistant plan, he told the court he obtained an application from Homewood on November 8, 2020 but had not sent it to the mother yet. It was then suggested to him that he only brought up the issue of counselling because of the trial.
[158] When asked if he would be interested in joint counselling with the mother, he responded that he had not considered it until he was asked the question. He further suggested it was a two-way street and the mother had not suggested it either.
[159] With respect to the issue of reimbursement for the father’s travel expenses, he stated that he tried to discuss it with the mother, but she never offered to pay anything.
Reply by Morrison
[160] He stated he called about counselling in November 2020 right after the Waterloo F & CS recommended it.
Anna-Marie Depaepe – Father’s Sister
[161] Ms. Depaepe is the father’s sister, lives in Woodstock and is a Constable with the Guelph police force. In addition, she and her husband run a functional fitness gym and she is the mother of a 7 month old daughter and currently on maternity leave.
[162] When working, she commutes 45 minutes to Guelph for a round-trip of approximately 1½ hours per day and 7.5 hours per week.
[163] She told the court about her extended family which lives in the area between London and Port Dover. She described the children we are concerned with in this court action in glowing terms.
[164] She described her brother (the father) as attentive, using appropriate discipline and that he and his children have fun together.
[165] She said the father was heartbroken when the mother took the children to Simcoe in 2016, because he could not see them as often as he could when they were living in Cambridge. She said the driving time simply cuts into his time with the girls.
[166] She described the ride to or from the Simcoe area, as too stressful and time-consuming, but did not elaborate on why it would be stressful.
Cross Examination of Anna-Marie Depaepe by Drew Bowyer
[167] She knows Boufford because she went to school with her approximately 8 years ago which is the last time she saw her. She was unaware if she had children of her own. She does not know whether Boufford ever supervises the children but stated she has no concerns about her moving in with the father.
Lori-Ann Williamson - Father’s Co-worker
[168] Williamson also works at Comtech and is a machine operator and quality control person. She has worked at Comtech for nine years and has known the father for that length of time. In addition, they are friends outside of work.
[169] She has also spent some time with the children and described them in terms similar to how they have been previously described.
[170] She testified that the father loves his children and wants them to be independent. She described him as instructional and stated that the children know that he means no when he says no.
[171] It was her opinion that his relationship with the children would suffer because of the driving, if the mother was allowed to move to Waterford. She did not expand on why she thought this.
Cross-Examination of Williamson by Drew Bowyer
[172] She stated the last time she babysat was for a couple of hours in August 2019, when the father was having problems with his vehicle.
[173] While she has met Boufford who appears nice, she was not aware if she has any children and has not seen her interact with these children.
Submissions by Drew Bowyer
[174] In addition to his oral summation, Mr. Bowyer filed a 13 page written brief along with a few legal cases.
[175] He submitted the seminal case, the Supreme Court of Canada’s decision in Gordon v. Goertz 1996 CanLII 191 (SCC), 1996 CarswellSask 199. He referred the court in particular to paragraphs 49 and 50 which read as follows:
49 The law can be summarized as follows:
The parent applying for a change in the custody or access order must meet the threshold requirement of demonstrating a material change in the circumstances affecting the child.
If the threshold is met, the judge on the application must embark on a fresh inquiry into what is in the best interests of the child, having regard to all the relevant circumstances relating to the child’s needs and the ability of the respective parents to satisfy them.
This inquiry is based on the findings of the judge who made the previous order and evidence of the new circumstances.
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.
Each case turns on its own unique circumstances. The only issue is the best interests of the child in the particular circumstances of the case.
The focus is on the best interests of the child, not the interest in rights of the parents.
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 reasons for moving, only in the exceptional case where it is relevant to that parent’s ability to meet the needs of the child;
f) disruption to the child of a change in custody;
g) disruption to the child consequent on removal from family, school, and the community he has come to know.
50 In the end, the importance of the child remaining with the parent to whose custody it has become accustomed in the new location must be weighed against the continuance of full contact with the child access parent, it is extended family and his community. The ultimate question in every case is this: what is in the best interests of the child and all the circumstances, old as well as new?
[176] He submits, once a court finds there is a material change, it then begins a fresh inquiry on what is in the best interests of the child.
[177] He submits there is a material change. The main one is the economic advantages to the mother and therefore the children. In addition, the mother’s whole family support network is in Simcoe and includes both her family and the father’s parents.
[178] The financial condition of the mother, and therefore the children, in 2016 was that she was unemployed, (except for a part time minimum-wage job) financially destitute, and contemplating having to take her children to a shelter, she could not afford her rent, utilities or food without monthly financial assistance from her family.
[179] She was offered full-time employment by her father along with an apartment above his business. This family assistance has now blossomed to the point where she is being groomed to take over her father’s dry-cleaning business. In addition, she gets some very advantageous “rent” for a house in Waterford and her employment furnishes her with a full-time vehicle and cell phone.
[180] In addition, she has several members of her family to assist if and when necessary with the children including her mother who is a retired teacher.
[181] Mr. Bowyer submits that because the children lived with the mother five days out of seven, she qualifies as the primary parent and is therefore owed a measure of deference when it comes to her making decisions of where the children should live. In support of this proposition he relies in part on the Ontario Court of Appeal case of Porter v. Bryan, 2017 ONCA 677, where the court stated at paragraphs 15 and 16, that a parent can be the primary caregiver even though both parents are described in an agreement or court order as having joint and shared custody. In the Porter case, the initial order, as here, was obtained on consent. The court went on at para. 17 to state:
17 There is, in our view, a valid and compelling parenting-based reason for the move: it is necessary to enable the primary caregiver to remain financially viable while providing care for the child. The mother has done all she can be expected to do to secure employment in Cochrane. It has not worked out, and there is no good reason for her and her son to live in poverty when she has secured employment in Thunder Bay that will allow her both the parent her son and provide economically for him.
[182] In the Porter case, the distance between Cochrane in Thunder Bay would preclude any type of weekend access, other than perhaps by air.
[183] In this case, since the mother parents the children approximately 66% of the time, she is the primary caregiver.
[184] Mr. Bowyer also drew the court’s attention to paragraph 48 of the Gordon v. Goertz case which states:
48 While a legal presumption in favour of the custodial parent must be rejected, the views of the custodial parent, who lives with the child and is charged with making decisions in its interest on a day-to-day basis, are entitled to great respect and the most serious consideration. The decision of the custodial parent to live and work where he or she chooses is likewise entitled to respect, barring an improper motive reflecting adversely on the custodial parent parenting ability.
[185] Mr. Bowyer submits that the mother is only seeking narrow relief from the court and that neither party is seeking to change the shared parenting. Both parties are involved in the children’s education and help with homework, father looks after making dental appointments and the children’s extracurricular activities while mother does the rest. It seems to be working well.
[186] Neither party is seeking to fundamentally alter the time father spends with the children.
[187] In essence, both parties will be able to spend similar amounts of time with the children if they live in Waterford and the maximum contact with each parent can be achieved. (See Goertz para, 49(7)(c))
[188] The children have friends in both places and will continue to have those friends. They feel comfortable in both places and will continue to feel comfortable in both places.
[189] With respect to the issue of daycare expenses, the mother seeks reimbursement only for the years 2018 and 2019. She submits father should pay $2,150 which is half the amount as calculated by mother’s accountant and set out in exhibit A.
[190] With respect to the mother’s contempt, Mr. Bowyer submits it was never malicious and she never impeded access. She was simply between accepting assistance from her family or moving with her children into a shelter.
Submissions by Charles Morrison
[191] In addition to his oral summation, Mr. Morrison has filed a brief, complete with statutes and case law, which is approximately 1½” thick and has been reviewed by the court.
[192] He submitted that the parenting relationship was an integrated plan.
[193] In this case, unlike the Porter case, the mother did not do all she could to find employment in the Cambridge area.
[194] He submits there has not been a material change and that the mother simply self-engineered the situation to get the change she wanted. He submits, based on the case of Thompson v. Drummond 2018 ONSC 1975, that this court should only consider the changes in circumstances since the order was made. He then went on to point out that prior to the Minutes of Settlement being entered into, the mother had lost her job and was working part-time at Zehrs and therefore those facts should not be entertained by this court in deciding on whether or not there is been a material change.
[195] He stated that there is no evidence about whether the mother asked Zehrs for full-time employment, however the court notes that mother was not asked that question.
[196] He submits the territorial restriction in the order makes sense because father works the night shift and cannot change it.
[197] He relies in part on the case of Lapatowski v. Lapatowski, 2018 ONSC 824 and in particular paragraphs 56- 60, for the proposition that there must be good faith in contractual performance. Those paragraphs read:
56 I am assisted in this analysis by a consideration of the unanimous judgment of the Supreme Court of Canada in Bashin v. Hrynew, 2014 SCC 71,… In that case, the court recognized a general organizing principle of good faith contractual performance, and particularly that there is a common law duty which applies to all contracts to act honestly in the performance of contractual obligations:…
57 The Court made it clear that these principles apply to all types of contractual relationships. I see no reason why they should not apply to family law contractual relationships, and indeed in some ways they perhaps should be applied even more strongly to family law contractual relationships.
58 In this case, the parties entered into a clear agreement to the use of the parenting coordinator with broad powers to assist them in parenting disputes, which was to include arbitral authority if necessary. The principle of good faith and honest contractual performance would require that the parties take the steps necessary to make that agreement operative. In a case such as this, the parties, represented by experienced counsel, would know that certain formalities would be required, including statutory formalities. At the outset, when they made their agreement, if either party was concerned about whether something in the potential parenting coordinator agreement might be an impediment, one might have expected experienced counsel to raise it, or at least see a draft parenting coordinator agreement before executing the Minutes of Settlement. Similarly, if either party thought any of the statutory formalities were an issue, one might have suspected counsel to raise it.
59 Not only were none of these raised at the time the Minutes of Settlement were issued, they were not raised at the time of the motion before Gibson J. As noted by Gibson J., the only objection raised by the applicant to the appointment of the parenting coordinator was that she could not afford it.
60 It was not until several months later that the applicant raised the issue of the validity of the relevant paragraphs in her orders, and their enforceability. The apparent difficulties regarding the provisions of the draft parenting coordinator agreement were only raised very recently. The actions of the applicant, in my view, are more consistent with the desire to escape from what she now regards as a bad deal than with legitimate concern about the terms of the parenting coordinator agreement. Her actions, in my view, are inconsistent with the principle of good faith and honest contractual performance as recognized in Bashin. She was ordered by Gibson J to execute the parenting coordinator agreement, and she must do so. She may, as stipulated by Mr. Brenner, can be appealed.
[198] He also directed the court’s attention to paragraphs 45 – 47 in the case of J.D. and M.C. v. P.D. and B.H., 2020 CarswellOnt 10653 which is similar in nature.
[199] Mr. Morrison submits that the mother has not honestly performed or tried to perform the deal that she made. She has never produced a list of job applications or interviews, she simply used the self-help of getting a U-Haul rather than bringing an application to the court.
[200] There was a lack of communication from the mother with respect to her attempts to return, and after her return, a lack of communication about where she lived and proof of having a lease. She put little, if any, effort into placing Ivy in daycare in Cambridge, she moved the children to Waterford three summers in a row, and for some reason she could not get to a second job interview, notwithstanding she had friends and family that could have driven her.
[201] Even if the court finds a material change, it must look at the mother’s disobedience of court orders and her very cavalier attitude towards them. He pointed out that she gets paid $11.40 per hour from her father, which is likely minimum wage, she fought the contempt motion and tried to make the “best interests of the children” argument before Justice Bradley, she promised to return to Cambridge but missed the date by six months.
[202] After she lost the contempt motion, she then asked herself, what can I do now to get what I want?
[203] Notwithstanding that the parties have a co-parenting plan, she has not been forthcoming with respect to moderate to serious matters affecting the children, notably, sexual interference by an adult male, a child possibly ingesting Advil, her curling iron burning one of the children’s feet and the sexualized behaviour by the children.
[204] The mother never pleaded the business opportunity about taking over her father’s business in her Form 35.1: Affidavit in Support of Claim for Custody or Access. It appears to be an eleventh-hour add-on. It was first raised by Mr. Bowyer in an off-the-cuff remark during the Trial Scheduling Conference. Mr. Morrison suggests a red herring.
[205] Mr. Morrison submits that the mother’s father may be a hindrance in the future, and he worries about the mother’s future compliance.
[206] With respect to the issue of retroactive daycare, he took the court through exhibit B and submitted the mother’s best position was $2,716.
[207] Mr. Morrison submitted that while the wife has some flexibility in her schedule, the father has none. Based on the current parenting responsibility times, their work schedules dovetail with each other.
[208] If the mother is allowed to move to Waterford, the father loses his two extra days per month as well as his ability to attend any of the children’s school activities. In essence, the father is being marginalized.
[209] So far, the mother has not offered any time for his mother, father or grandmother to spend with the children. Unfortunately, this question was not put to the mother, nor was any evidence called with respect to whether or not the father’s parents requested any time with the children. However, the court notes that the paternal grandparents both work full time, Monday to Friday, and since the children spend the weekends in Cambridge, there is little time left to get the children and the paternal grandparents together.
[210] With respect to credibility, Mr. Morrison submitted that the mother’s answers were evasive while the father answered directly.
[211] Mr. Morrison drew the court’s attention to upcoming amendments to the Divorce Act, where the parent wishing to relocate must give at least 60 days notice. In addition, factors are set out that the court should take into consideration in arriving at its decision. (Respondent’s Brief of Case Law P. 4 & 6)
[212] He submitted that the case of Thompson v. Drummond 2018 ONSC 1975 stands for the following propositions, which he has set out at pages 11 - 12 of the Respondent’s Brief of Case Law. The following references are to paragraphs in the Thompson case.
(a) It must be assumed that the existing order was correct and the court should only consider changes in circumstances of the order. (para 34).
(b) A change in circumstance will only be accepted as “material” if it has altered the child’s need or the ability of the parents to meet those needs in a fundamental way. The change relied upon should represent a distinct departure from what the court could have reasonably anticipated in making the previous order. (para. 35)
(c) The change was either not foreseen or could not have been reasonably contemplated by the judge to meet the initial order. (para 35)
(d) The court must consider whether the change was real and not one of choice. (para. 37)
(e) Where the child has enjoyed frequent and meaningful contact with the non-primary parent, a move that would seriously curtail that contact will be accepted by the court as a change which materially affects the circumstances of the child and the ability of the parents to meet those needs. (para. 39)
(f) A party’s extensive noncompliance with an existing court order can amount to a material change in circumstances for the purposes of the variation analysis if the breaches have a harmful effect on the child. (para. 40)
(g) Where the evidence indicates that both parents had played an equal role in terms of custody and caregiving, the views of both parties respecting the proposed move should be given equal consideration. (para. 47)
(h) The Ontario Court of Appeal has highlighted the importance of giving sufficient weight to the maximum contact principle in deciding relocation cases and the impact of a proposed move on the child’s relationship with the other parent. (para. 47(7))
(i) If one parent does not facilitate a child’s relationship with the other parent or improperly undermines a relationship, this will be an important consideration in determining their ability to meet the child’s needs. (para. 47(7))
(j) In addition to the factors set out in Gordon v, Goertz the court should look at:
i. the quality and quantity of parenting time that each parent has had with the child,
ii. the quality of the child’s relationship and attachment with each parent and their partners,
iii. the potential effects on the child of a disruption of their existing social and community supports and routines,
iv. the time it will take for the child to travel between residences, any challenges associated with such travel and the cost of such travel,
v. the willingness of the moving party to ensure that access will occur between the child and the other parent.
(k) Conduct that marginalizes the other parent is relevant in the analysis. (para. 52(12))
[213] Mr. Morrison further submits that the parties specifically left out the term primary parent.
[214] He further submits that the intentional breach of a court order with a view to achieving another purpose constitutes bad faith. He also submits that the parties were on a level playing field when the Minutes of Settlement were negotiated.
Findings
[215] Family dynamics, whether the parents live under the same roof or have separated are always changing.
[216] Every court is concerned when its orders are not followed. Some acts of not complying with the court order are more egregious than others. In this case, particularly economically, the mother was between a rock and a very hard place.
[217] Although we are dealing with Justice Allen’s order, it appears it was made pursuant to Minutes of Settlement and this court has nothing before it to suggest that anything other than the Minutes of Settlement were placed before Justice Allen. There is nothing before this court to suggest that Justice Allen heard any evidence or made any findings of fact.
[218] Father’s counsel submitted that there was a level playing field when the Minutes of Settlement were negotiated. Other than the fact that both parties had lawyers, this is far from reality.
[219] The father appears to have some training beyond high school which allowed him to get a decent paying job which he has held for over 9 ½ years. He comes across as more stoic than the mother and certainly as a person who was in control of the household.
[220] The mother on the other hand:
(a) Has limited education to the point where it is of virtually no assistance in the job market other than for very low-paying and likely part-time jobs. On the evidence before the court and some general knowledge, she should have been seriously considering some retraining.
(b) At the time of negotiations, she had been distraught since the breakup of her relationship and the most important thing to her was “to keep” her daughters. Her self-esteem would have been at an all-time low.
(c) On the evidence before the court, she lost her job because she was having difficulty dealing with the breakup of her relationship, including the stress and all the other practical matters that go hand-in-hand with that situation. A case in point, would be when the father took the two daughters and would not allow her to see them for two weeks.
(d) Her job at the time that the Minutes of Settlement were entered into was a part-time job on weekends which offered her somewhere between nine and 12 hours of work per week. That would put her gross pay between $126 - $268 per week.
(e) She was not coming close to meeting her monthly expenses. In fact, she could not afford the bus fare to take her to work.
(f) She had the parties’ two daughters living with her the majority of the time, with all the expenses that come with such an undertaking.
(g) She did not have a driver’s license or a vehicle or of course the money to operate a vehicle even if she had one.
[221] If this evidence had been presented at the trial, it likely would not have taken a judge very long to come to the conclusion that the settlement was not only unfair, but it simply could not work.
[222] Can one party make too good a deal?
[223] In this case the following facts and issues were in existence at the time the Minutes of Settlement were entered into:
(a) Despite the fact that two children were born of their relationship, were living with the mother most of the time and there was a very significant difference in the parties’ income, there is no spousal support, not even time limited spousal support. The mother’s 2016 tax return shows a total of $5,721 of which $1,600 was for the universal childcare benefit, while the father’s tax return shows $57,921. For some reason at paragraph 5 of Justice Allen’s order, it shows the father’s income at $50,000 and imputes $15,000 to the mother. No evidence was presented at this hearing to explain why this was done or if it was fair. In any event the father’s income was between 10 to 14 times that of the mother’s income.
($57,921/$5,720 =10.13 or $57,921/$4,121=14.05)
(b) Notwithstanding that the father does not have the children 40% of the time, child support is being paid on a set off basis. No evidence was presented at this hearing to explain why this was done or if it was/is fair. The result was that the father pays $533 per month rather than $728 per month.
(c) Based on the above child support and the mother’s earnings, she would not have been able to even afford a decent apartment much less utilities, food, clothing and the other necessities of life for her and the parties’ two children.
(d) The part-time employed mother was tethered geographically to the father’s residence. She could not look for employment or further her education in other places.
(e) The mother gets no weekend time with the children. If this was based solely on the fact that her part-time job at Zehrs was on weekends, it was extremely shortsighted and did not take into account if this could change if she got a Monday to Friday job, which is what has happened.
[224] The only reason that Justice Allen’s order was followed for a few months was because of large influxes of cash, injected by the mother’s father in support of her and the parties’ two children.
[225] The father would have to be willfully blind not to know of the economic plight of the mother and the two children when they were in her care.
[226] The mother commenced a motion to change on May 4, 2017 and it has unfortunately taken approximately 3½ years to reach the hearing before me.
[227] Notwithstanding the father’s irritation at the mother’s not adhering to Justice Allen’s order, he appears to have been determined not to allow the motion to change to proceed on its merits. In response to the mother’s motion to change, father brought a motion for summary judgment seeking to dismiss her motion to change based on her contempt. His motion was dismissed by Justice Neill on June 18, 2018. A year had gone by since the mother’s initial filing of her motion to change.
[228] After bringing a contempt motion in front of Justice Neill, it appears he did not like some of the comments she made in her reasons dated August 8, 2018. (Ex. 3 Tab H Page 57) In particular, she stated at paragraph 39, it “was arguable that the mother was the primary parent”. She then set out in some detail why a court might find there had been a material change. (Ex. 3, Tab H, Pages 66-68)
[229] Faced with this unfavourable judicial opinion, the father decided to appeal it, rather than to proceed with the mother’s motion to change.
[230] The appeal of Justice Neill’s order came before Justice Gordon, who released his reasons on January 3, 2019. (Ex. 3, Tab K, Page 76) He dismissed the appeal and upheld Justice Neill’s order. He essentially echoed Justice Neill’s reasons and at paragraph 51 of his reasons, concluded that “the motion to change must be heard on its merits”. At this time, a year and nine months had gone by since mother initially filed her motion to change. That wasted time, not to mention the expense was caused by the father,
[231] Unfortunately, despite the combined wisdom of Justices Neill and Gordon this matter could not be resolved by the parties.
[232] There is no doubt that there has been a material change in circumstance. Most of it is financial and to a lesser degree there are emotional and other supports which could be provided by the mother’s family in Norfolk County.
[233] Despite what the father submits, I find the mother is the primary parent. In Cambridge without her father’s assistance she was a step away from having to move to a shelter with the parties two children. I am sure that even the father would find that “solution” untenable.
[234] The court acknowledges that the mother has not provided great evidence to the court about her attempts to find employment. Although for a period of time, she had neither a driver’s license nor a car, there is no evidence that she asked family or friends to drive her to job interviews. There is also no documentation evidence which one might expect in a case like this, listing the places that she applied to and their response if any.
[235] Notwithstanding the above shortcoming, based on her education and previous employment history, she would never be able to come close to the economic benefits that she and her children have in Norfolk County. These include:
(a) a full-time job working at her father’s business,
(b) the rent on her house with a backyard, owned by her mother, which is approximately one half of what it would cost to rent anything in Cambridge,
(c) the use of a company vehicle,
(d) the cost of a cell phone is paid for by the father’s company,
(e) the probability of being able to take over her father’s business in the near to medium future, both because he is 75 years old and wants to retire and has recently had some health setbacks,
(f) all of the above factors take away the crushing financial stress that she previously had after the Minutes of Settlement were entered into.
[236] In addition to the above-mentioned financial support, she has the emotional, psychological and physical support of her extended family, for the benefit of herself and the children. These include:
(a) her father lives approximately two minutes from her house,
(b) her father would look after walking the children to and from school which is approximately ten minutes each way,
(c) her mother, who was a teacher, would be able to assist with tutoring, particularly for Alice,
(d) she would be able to spend more quality time with the children because she would not have to travel 2 ½ hours five days a week, which totals 7½ hours weekly,
(e) the children’s paternal grandparents live about ten minutes away and would be able to see the children during the week, currently because the paternal grandparents both work full time Monday to Friday and the children are in Cambridge. On the weekend there is little time for their interaction, and
(f) there are several cousins in the area, including her brothers two girls who are almost the same age,.
[237] The father’s view of the overall situation appears to be that, a deal is a deal is a deal. He either does not want to, or is incapable of seeing the overall benefits that are afforded to his children if they reside in Waterford.
[238] Because their mother is better off financially and financially stress-free this provides amazing benefits for the children.
[239] In viewing this matter from the decided case law, in addition to what I have already found, I find the following:
(a) The mother is, from a practical day-to-day point of view, the primary parent. The court acknowledges that the father is a good and involved father.
(b) The distance of the move is modest, and even more so if the driving is equally split. There are many things that can be done in a car to pass the time, including having discussions, playing audiotapes and/or allowing the children to view a movie or game on a device such as an iPad etc. The time one way is between an hour and an hour and thirty minutes. The cost of such travel, if necessary, can be easily dealt with.
(c) Both parents have a good and loving relationship with the children. The contemplated move is not going to change this. Adjustments can be made by both parties to maximize the contact between each parent if the mother resides in Waterford
(d) There should be little if any disruption for the children. This is not a change in custody nor a move to an unfamiliar place.
(e) While acknowledging that the children will change schools, these children already have friends in both locations and are comfortable living in both locations. Their transition should be seamless.
(f) There should be little disruption of their existing social and extracurricular activities.
[240] Under the circumstances of this case, I am not prepared to award any retroactive daycare expenses to the mother, nor am I prepared to award any retroactive driving expenses to the father.
[241] Therefore, I make the following orders:
(a) The mother may move her and the children’s primary residence to Waterford. If the children are attending school in class, the move shall take place during the traditional school Christmas break. If the children are attending school virtually, she and the children may move when it is convenient for them.
(b) The mother shall have parenting responsibilities for the children from Monday to Friday.
(c) The mother shall have parenting responsibilities for the children on the second full weekend of each month. The first full weekend of each month shall be defined as the first weekend of the month that includes a Saturday.
(d) The father shall have parenting responsibilities on all other weekends. The draft order should specify the exact times for pickups and drop-offs. If the parties cannot agree I will make the decision.
(e) The father shall be entitled to two other evenings per month, to be arranged in accordance with his work schedule. These overnight visits could be tacked on to his weekend. Alternatively, if the father wishes, he could have dinner with the children once a week either at his parents or post COVID, at a restaurant.
(f) Weekend visits shall be extended by one day if the children are not required to attend school on the Friday before or the Monday after the weekend.
(g) The parties shall share the driving equally. The draft order should specify who is picking up and who is dropping off. Other extended family adults or significant others may pick up or deliver the children.
(h) The father shall pay child support based on his current income without any set off based on the mother’s earnings. Please insert the appropriate amount of child support and the father’s current income in the draft order.
(i) Section 7 expenses shall be shared on a pro rata basis. Please make sure the current annual incomes of both parties are inserted in this paragraph.
(j) Both parties shall forward to the other a full copy of their income tax returns by May 30 of each year and their notices of assessment forthwith after receipt of same from the government.
(k) I am prepared to allow the father $150 per month for the expense of driving to Norfolk County, such amount to be deducted from his monthly child support payment.
(l) Christmas, Easter, March Break, Thanksgiving and summer holidays shall override the usual weekend parenting responsibilities.
(m) Please advise if the parties can agree on how to divide up the Christmas, Easter, March Break and Thanksgiving holidays and if so, please include in the draft order. If they cannot agree, please advise and I will make that decision.
(n) If the father is not working for any week, he shall be entitled to four weeks’ vacation with the children during the summer. Unless agreed to by both parties, no more than two weeks can be taken consecutively. The father shall have the right to pick the weeks he wants for summer vacation first, because of his plant shutdown. He shall notify the mother by May 1 of each year, failing which she may choose her vacation weeks first. A week shall run from Friday evening to the following Friday evening
(o) Regardless of weekend access, the children shall spend Mother’s Day with the Mother and Father’s Day with the father commencing at 7:00 p.m the day before Mother’s or Father’s Day.
(p) The father shall be afforded reasonable midweek telephone and Internet contact with the children.
(q) Neither party shall schedule activities for the children during the times when it is the other parent’s time with the children, unless that parent has agreed in advance, such agreement not to be unreasonably withheld.
(r) In the event that either party is not able to care for the children for one or more days of their time with the children, they shall give the other party the option of caring for the children before arranging childcare.
(s) Both parties shall be listed as emergency contacts with the children’s schools, doctors and other organizations involved with the children.
(t) The parents shall notify each other immediately if a child experiences a medical emergency.
(u) Both parties have the right to make emergency medical decisions respecting either child while she is in their care.
(v) In the event of an emergency, both parents shall attempt to reach the other parent before making emergency medical decisions for a child.
(w) Both parties shall have the right to consult with and obtain information, records and report cards directly from each child’s teachers, doctors and other professionals involved with that child.
(x) In the event that any professional involved with the child requires the consent of the other party before providing information to him or her, the other party shall execute all necessary consents immediately upon request.
(y) The parties shall communicate regarding important aspects of the children by using “Our Family Wizard”. The parties are ordered to visit the website, and each shall enroll in the program for at least a one year subscription, not later than ten calendar days from today.
(z) Neither party shall fail to renew the annual subscription to the website without the written consent signed by both parties or court order.
(aa) If an entry from one of the parties requires a response, the receiving party shall respond within forty-eight hours unless the entry itself indicates a longer timeframe is acceptable.
(bb) Each party shall be responsible for their own costs to sign up and maintain the use of the program.
[242] I would like to make sure that the parties have only one order going forward. Therefore, if either party feels I have missed something or that something else should go into the order, such as a paragraph from Justice Allen’s order, I would ask them to discuss it between themselves first and then send me an email with the approved draft order.
[243] I look forward to receiving your draft order by December 4, 2020.
[244] If the parties are unable to agree on costs, Mr. Bowyer shall forward his brief submissions on costs to me by December 4, 2020. Mr. Morrison shall forward his brief response to me by December 10, 2020. Mr. Bowyer shall then forward his reply, if any, to me by December 15, 2020. Cost submissions may be sent to my attention by email, care of Kitchener.SCJJA@ontario.ca. Cost submissions, excluding bills of costs shall be limited to 5 pages using spacing of 1.5 and 12 pitch font.
James W. Sloan J.
Released: November 27, 2020
COURT FILE NO.: FC-15-FO000934-0001
DATE: 2020-11-27
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Shawna McInally
Applicant
– and –
Ryan Malcolm
Respondent
REASONS FOR JUDGMENT
J.W. Sloan J.
Released: November 27, 2020