Court File and Parties

COURT FILE NO.: FS-54328-19

DATE: 2020/12/16

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

DARCY BOURKE Applicant

– and –

JENNIFER DAVIS Respondent

COUNSEL:

Emily M. Carroll, for the Applicant

Richard Noll, for the Respondent

HEARD: November 16, 17, 18 and 19, 2020

BEFORE: D.A. Broad

REASONS FOR JUDGMENT

Introduction

[1] The predominant issue in this case is that of mobility – namely whether the respondent should be permitted to relocate with the parties’ children Ronan, age 6 (d.o.b. 19/06/2014) and Hudson, age 4 (d.o.b. 27/03/2016) (the “children”) to Washington State, U.S.A., to reside with her new spouse and their infant child Zoey (born 27/04/2020). The respondent opposes the relocation of the children to Washington State.

[2] Issues associated with the mobility question include custody and primary residence of the children, access to the children and child support. The parties have resolved all property issues between them by a partial separation agreement. No interim or final order has been made to date respecting the parenting issues.

[3] The applicant seeks a final order for joint and shared custody of the children by way of a 2-2-3 residential schedule and an order that she pay set-off child support to the respondent.

[4] The respondent seeks sole custody of the children and that she be permitted to move their residence to the United States of America, specifically Washington State, with generous and liberal access with the children to the applicant. In her Answer the respondent sought an order for child support to be paid by the applicant, however, in submissions she waived any claim for child support and s. 7 expenses if she is granted permission to move the children’s residence to Washington State in order to offset the cost to the applicant of exercising access to the children.

[5] The following insightful observations by Ingram, J. in the case of Drury v. Drury, [2006] O.J. No. 833 (S.C.J.) at paras. 1 and 3 help to frame the dispute between the parties and the approach to be taken by the court in resolving it:

Few, if any, issues cause reasonable and cooperative parents to resort to litigation as does mobility of children. While most types of family law disputes are amenable to some form of resolution prior to trial, mobility cases leave little room for compromise. Two committed parents may be faced with the prospect that either, one will be disappointed in not being able to progress with their future life in a new community, or one will be disappointed in not being able to maintain the same involvement in the children's lives.

…There are uncertainties attached to any move. The potential negative consequences of a move are balanced by potential lost opportunities for a parent and child if the move is denied. Social science does not provide a simple formula for accurately predicting the future. For the sake of the children, as desired by these parties and as directed by the law, the focus of this case will be on the children.

Background

(a) Pre-marriage and marriage

[6] The applicant Darcy Bourke and the respondent Jennifer Davis (previously Bourke) were married on June 22, 2012. The parties do not agree on the date of separation. The applicant says that separation occurred on July 30, 2017. The respondent says that it occurred on January 1, 2017. Despite the dispute concerning the date of separation, the parties were able to resolve all property issues consequent upon their separation by a partial separation agreement.

[7] The parties were divorced on August 27, 2018.

[8] The applicant is a transgender woman. In accordance with her identity and wishes the applicant will be referred to throughout these Reasons using female pronouns, even in historical reference.

[9] The parties met in 2008 in Kitchener. The applicant was working in information technology for a manufacturing company. The respondent was working as a freelance graphic designer. They struck up a friendship and began dating. Although they initially maintained separate residences, the respondent would often stay at the applicant’s home prior to marriage. In the Application it is stated that the parties commenced living together in 2009. The respondent’s Answer dis not state the date the parties commenced living together.

[10] While they were dating, the applicant made the respondent aware of her preference for and enjoyment of cross-dressing. The respondent stated that she approached the applicant prior to the marriage with concerns respecting whether the applicant was gay or transgender. The applicant informed her that she had been seeing a social worker respecting her sexual identity. The respondent testified that the applicant advised her that she was happy in the male gender role and it was not an issue. In contrast, the applicant testified that she informed the respondent that she did not identify as a man and that she had been in counselling with a social worker for gender dysphoria for approximately 10 months, until about one year before they met. The applicant stated that, prior to marrying, in response to a question from the respondent, she advised that she did not plan to transition to a female in the future. The parties did not discuss the question of the applicant transitioning prior to Ronan’s birth.

[11] In August or September 2014, approximately 2 to 3 months after Ronan’s birth, a crisis occurred in the relationship. The applicant went for the weekend alone to work on the cottage property in Eastern Ontario the parties had purchased with the applicant’s aunt and uncle. While at home in Kitchener the respondent had difficulty breast-feeding Ronan and began experiencing panic attacks which she attributed to a “hormonal dip” associated with post-partum depression. She went to the hospital crisis clinic for assistance and treatment and was released. She was unable to contact the applicant evidently due to poor cell-phone reception at the cottage property.

[12] The respondent described the applicant as distant and unengaged following her return to Kitchener the next day. After a few days the applicant disclosed to the respondent that she had intended to throw herself off the roof of the cottage to kill herself in order that the respondent and Ronan might benefit from insurance proceeds. The respondent testified that the applicant was struggling with her gender identity which she had not wished to disclose to her. The respondent testified that for approximately one year following the incident, the applicant went through cycles of depression during which time she had difficulty engaging with Ronan. She stated that the applicant became introverted and suffered from social anxieties.

[13] The applicant testified that she did have “passive thoughts” of suicide including the thought that it would be better for the respondent not to have her around. She related to the respondent her thoughts of staging her suicide to look like an accident to collect insurance money. After disclosing these passive suicidal thoughts, she began thinking of transitioning to a female. She testified that the respondent pressed her to try using antidepressant medication instead of transitioning, but she would not oppose her transition if the antidepressants did not resolve the issue. The applicant testified that she did not feel that she needed antidepressants at that time and did not go on them until a year later.

[14] Following Hudson’s birth in March 2016 the applicant began hormone therapy associated with her transition. The parties differed in their testimony on the impact the applicant undergoing hormone therapy had on their relationship. However, it was clear that by late 2016 the relationship was irretrievably damaged. Prior to January 1, 2017 the applicant moved into the basement of the matrimonial home. She testified that the respondent had been verbally abusive of her and that the atmosphere in the home was hostile and toxic. The respondent testified that the applicant was fixated on her hormone therapy, would not speak of anything else and expressed almost constant suicidal ideation, even in the presence of the children. She stated that the applicant withdrew from her and the children’s lives. The applicant restricted her involvement to working outside the home and performing other household chores while the respondent looked after the children.

[15] It is noted that the respondent took one-year maternity leave from her employment following the birth of each child.

[16] The respondent testified that, by the end of July, 2017, she had come to the realization that the applicant’s mental state was such that it risked adversely impacting the children. She informed the applicant that she and the children needed to be separate from her while she worked on her mental health. She presented two options to the applicant – either the applicant would move out of the matrimonial home or she and the children would do so. The applicant agreed that it would be better for the children’s well-being if she moved out and the respondent and the children remained in the matrimonial home. The applicant moved to her mother and stepfather’s residence at Moffat, Ontario. She remained there for approximately two months before moving to live with friends in Breslau, Ontario.

(b) Post-separation

[17] Following the applicant’s departure at the end of July 2017 the applicant began visiting the children at the matrimonial home, accompanied by her mother, each Sunday afternoon from 2:00 p.m. until after supper. Commencing in October 2017 daytime visits were added on Thursdays.

[18] The applicant underwent reconstructive surgery to her forehead in October 2017. The recovery was not lengthy, and she was able to participate in Halloween trick-or-treating with the children together with the respondent, her brother and some friends.

[19] Commencing in February 2018 the applicant’s access with the children expanded to overnight visits from Saturday to Sunday on alternate weekends with mid-week non-overnight visits. In mid-March 2018 the alternate weekends were extended from Friday to Sunday with the mid-week visits continuing.

[20] In August 2018 the applicant underwent surgery associated with her transition and experienced complications. As a result, access visits with the children were largely interrupted from August 18 to October 14, 2018. By early November the previous schedule was reinstated.

[21] In early 2019 the parenting schedule was changed to provide for the applicant’s pickup time to afterschool at 3:30 p.m. The applicant had the children for a full week in each of July and August 2019.

[22] The respondent offered the applicant additional time with the children from December 31, 2019 to January 5, 2020.

[23] Commencing with the onset of the school shut-down associated with the Covid-19 pandemic in the spring of 2020 the applicant’s mid-week afternoon access visits expanded to overnight. When the children returned to school in September 2020 these overnight mid-week visits discontinued, and the previous schedule was reinstated.

[24] There have been numerous extra access visits offered by the respondent to the applicant. The applicant also missed a number of scheduled access visits, as disclosed by the “parenting time” records put into evidence by the respondent. These records were not largely disputed by the applicant.

[25] Each of the parties referred, in their evidence, to extracts from lengthy “Communication Briefs” containing copies of text messages and emails passing between them following separation. It is evident from the exchanges of written communications that the parties remained civil with one another and able to refrain from the use of profane, demeaning or aggressive language. The parties have been able to attend functions together and to interact civilly – including Halloween trick-or-treating with the children and a birthday party for Ronan in June 2020. Fortunately, there have been few examples of the parties being required to address decisions concerning the children’s welfare and any which did arise were resolved. The children’s medical visits to date have been routine immunizations and wellness checks and there have been relatively few dental visits. Hudson has experienced behavioural issues at daycare and at school involving hitting and biting other children and teachers, however this has not resulted in the escalation of conflict between the parties.

[26] The parties were able to agree upon the return of the children to school following the re-opening in September 2020. Any areas of conflict between them centred primarily on the access schedule but were not prolonged or irreconcilable. One area of difficulty that continues to impact effective communication is the applicant’s insistence that all communications be in writing and not by telephone.

(c) Respondent’s Relationship with her Current Spouse

[27] The respondent first became acquainted with her current husband Bradley Davis in March 2017, talking online through Facebook and an online game. They were connected initially by mutual friend. The respondent found that they were well-matched and shared experiences and the relationship grew.

[28] Mr. Davis lived at that time in Redmond, Washington and was employed at Microsoft Corporation, with which he remains employed. He has an eight-year-old son Elijah. He has a shared custody/access arrangement in respect of Elijah with his ex-wife Alicia Drake who currently resides with Elijah in San Antonio, Texas. Mr. Davis testified that he maintains an amicable relationship with Alicia.

[29] The respondent first visited with Mr. Davis in Toronto in the fall of 2017 for a four-day weekend. The applicant was with the children at the cottage along with her mother and her aunt and uncle.

[30] Following this first meeting the respondent spent an extended long weekend each month with Mr. Davis. The respondent testified that she spent time with Elijah on a number of occasions on these visits. Mr. Davis was given the opportunity to relocate with his employer to San Antonio, Texas to a position that involved considerable travel. His employer allowed him to make his return trips to Canada which allowed him to visit with the respondent and the children.

[31] The respondent and Mr. Davis married on December 14, 2018.

[32] An opportunity subsequently arose for Mr. Davis at the Microsoft head office and he returned to Redmond, Washington in April 2019. Davis was able to arrange his schedule to reside for two weeks with the respondent in Kitchener and two weeks in Redmond, Washington.

[33] On December 20, 2019 the respondent travelled with Ronan and Hudson to Redmond, Washington to be with Mr. Davis for a ten-day visit.

[34] With the onset of the Covid-19 pandemic in February 2020 Mr. Davis was able to arrange a temporary placement with his employer working remotely from home in Kitchener. He obtained an extension to his work visa and has remained in Canada since February. However, his work visa expires on December 31, 2020 at which time he will be required to return to the United States. He maintains an apartment and a vehicle in Redmond, Washington but has not visited there since February 2020.

[35] The applicant and Mr. Davis’ daughter, Zoey Davis, was born on April 22, 2020.

[36] The respondent and Mr. Davis each testified that Elijah has expressed a desire to reside with Mr. Davis. His mother Alicia has indicated an intention to relocate to Portland, Oregon which would be within one and one-half hours’ driving distance of Redmond, Washington.

[37] Mr. Davis testified that Ronan and Hudson have spent time with Elijah on three occasions, a couple of weeks at a time, twice in Ontario and once in Washington State and they have bonded closely with him. They have maintained a relationship via Skype and by playing an online game approximately weekly.

[38] Mr. Davis testified that he relates well with Ronan and Hudson and they enjoy spending time together.

[39] Mr. Davis has met the applicant frequently at access exchanges and a couple of events including Ronan’s birthday party and Halloween. He described no conflict or derogatory words being utilized in their interactions and he feels no discomfort around the applicant.

[40] Mr. Davis testified that Ronan “dotes” on his sister Zoey who is now 8 months and Hudson is getting used to being with her.

(d) The Respondent’s Parenting Plans

[41] The respondent presented three alternate parenting plans associated with her intended move to Washington State to be with her husband, summarized as follows:

Plan # 1 - the children move with the respondent and Mr. Davis to Washington State and the applicant moves to British Columbia;

Plan # 2 - the children move with the respondent and Mr. Davis to Washington State and the applicant chooses not to move;

Plan # 3 - the children are not awarded mobility and stay in Ontario with the applicant and the respondent moves to Washington State with Mr. Davis and Zoey.

[42] The respondent testified that, according to Google Maps, the driving distance between Redmond, Washington and Vancouver, British Columbia is two hours and 45 minutes. Should the applicant relocate to the Vancouver area she would propose that the children have overnight visits with the applicant on alternate weekends from Friday after school until Sunday at 5:00 p.m., alternating Christmas and the New Year, alternating Easter and Thanksgiving weekends, winter break, spring break, early summer and end of summer breaks. This would comprise an approximate total of 102 overnights, being 48 more than the current parenting schedule which provides for approximately 52.

[43] With respect to Parenting Plan # 2, the respondent proposes visits for the children with the applicant alternating Christmas and the New Year, winter break, extended long weekend in March, spring break, extended long weekend in May, early summer break, end of summer break, October extended long weekend and November extended long weekend. She proposes that the applicant fly with the children from Washington to Ontario to exercise access, with the cost to be offset by the elimination of child support and section 7 expenses. This proposed plan would involve approximately 69 overnight visits, being 17 more than the current parenting time schedule.

[44] The respondent was unable to give details with respect to proposed access under Parenting Plan # 3, which contemplates the respondent moving to Washington with Zoey to reside with Mr. Davis and Ronan and Hudson remaining in Ontario with the applicant, as those details would have to be provided by the applicant.

[45] The respondent confirmed that if her claim for mobility with the children is denied, it would be very difficult, but her intention would be to move to Washington State with Zoey. She has no intention of remaining in Ontario. It is not possible for Mr. Davis to move his role with Microsoft Corporation to Canada as he is not employed by the Canadian subsidiary of Microsoft Corporation. She said it would not be economically feasible for the family to continue to reside in Ontario on her salary alone. If Mr. Davis resigned his employment, he would lose the generous benefits through his current employment with Microsoft Corporation in which she and her three children are currently enrolled.

[46] The respondent testified that the children being able to relocate with her to Washington State would provide them with a stable family unit and the opportunity to develop close relationships with their sister Zoey and stepbrother Elijah. She testified that the children would benefit from the favourable educational and other opportunities available to children in the communities of Redmond or Woodinville (each of which she described as “progressive”) and the support of extended family of Mr. Davis and a network of close friends. She stated that it was her intention to foster the children’s relationships with the applicant and to provide her with the maximum time possible with the children. She stated that she and Mr. Davis would welcome the applicant and her family members to visit the children at her and Mr. Davis’ home in Washington State. She would also encourage frequent virtual contact between the children and the applicant by means of Skype, FaceTime, online gaming, the establishment of a One Drive account, and the exchange of pictures and videos.

[47] On cross-examination the respondent stated that the children have three parents, herself, the applicant and Mr. Davis. She denied any suggestion that her request to move to Washington State was motivated by a desire to get further away from the applicant or to minimize the applicant’s time with the children. She stated that she proposed that the applicant’s time with the children increase with the move. She believes that the children’s best interests call for them to have as much time as possible with the applicant. She did agree that in the short term the COVID-19 pandemic and the requirement to quarantine following entry to Canada would affect the applicant’s time with the children and would therefore propose longer periods of access in the short term to accommodate quarantine requirements.

[48] The respondent stated that she has applied to U.S. Immigration for a spousal visa and that the process is almost complete, being at the interview stage.

(e) Applicant’s Response to the Respondent’s Proposed Move and Her Parenting Plan

[49] The applicant testified that she does not feel positive about the respondent’s request to relocate with the children to Washington State. She is of the view that it would change the children’s relationship with her and that it is important for the children to spend time with her.

[50] The applicant also stated that she worries about the long-term effects of a move by the children to the United States. She stated that her rights as a transgender woman are in contention in the United States and she worries about what the children’s idea of her will develop into.

[51] The applicant expressed concerns respecting travel, indicating that she experienced anxiety when she travelled to British Columbia a couple of times a year. She is also concerned that the COVID-19 pandemic would adversely affect her ability to see the children. She described the United States as “in chaos” and stated that she has concerns about the children contracting COVID-19.

[52] When asked about the prospect of her relocating to British Columbia, the applicant pointed to her extended family in Ontario, indicating that she does not have any intention to move to British Columbia. Although her father resides in British Columbia, he has not maintained a relationship with her since her transition.

[53] The applicant pointed out that the children are Canadian and by moving to the United States they would lose their culture, which she finds “horrifying.” She stated that as a member of a minority she is uncomfortable in the United States. She previously travelled to the United States for work but has requested of her employer not to be sent there. She stated that she experienced uncomfortable incidents when travelling in Tennessee in 2016, during a time that she was on hormone therapy.

[54] On re-examination, the applicant acknowledged that she would be “much more open to a discussion” respecting the respondent moving with the children to another location within Canada.

[55] The applicant’s parenting plan calls for a 2-2-3 shared parenting regime. Her plan therefore pre-supposes that the respondent will remain in Ontario with the children. The applicant stated that she considered moving closer to the children’s residence and school in Kitchener. However, her mother Lisa Bourke testified that in July 2020 the applicant moved back to her home in Moffat, Ontario, which is a three-bedroom bungalow situated on a 2-acre rural property. She plans to renovate the basement into a separate apartment and expressed the hope that the applicant will continue to reside at her property. When asked how she would be able to support the applicant she responded that “I am here if she needs me” and that she would be able to pick the children up from school.

[56] The applicant testified that she is able to set her own work schedule and has considerable flexibility to spend time with the children.

(f) Evidence of OCL Clinician Glory To

[57] Pursuant to the Order of Justice Breithaupt Smith dated May 21, 2019, the Office of the Children’s Lawyer (OCL) was requested to become involved. The OCL consented to provide services pursuant to s. 112 of the Courts of Justice Act. The matter was assigned to OCL Clinician Mr. Glory To on July 16, 2019.

[58] Mr. To undertook two interviews with each of the applicant and the respondent between July 25 and September 21, 2019. He conducted an observational visit with the children and the applicant on July 31, 2019 and an observational visit with the children and the respondent on August 13, 2019.

[59] Mr. To also received and reviewed information from professional collateral contacts, namely Dr. Thomas Irvine, family physician, Waterloo Regional Police Service, Dr. Olufemi Banjo, the applicant’s psychiatrist, Dr. Christopher Lund of ARCH Clinic, a physician who provides the applicant with a transgender hormone, counselling, support and referral for surgery, and Waterloo Family and Children Services. He also interviewed Mr. Davis and conducted a telephone interview with Lisa Bourke.

[60] Mr. To reported that he attempted individual interviews with Ronan and Hudson at the home of each of the parties, however, neither of them showed any interest or understanding of custody and access issues, and, except to consistently express that they enjoy visiting with the applicant, their preferences were not able to be ascertained.

[61] Mr. To conducted a disclosure meeting on January 9, 2020 with the parties and their counsel respecting his findings and recommendations.

[62] Mr. To’s s. 112 Report and supporting Affidavit was included in the Trial Record. On consent of the parties he testified in-chief at the outset of the trial as a witness of the court and was examined viva voce by each counsel.

[63] In his report Mr. To expressed the view that the applicant’s concerns respecting the respondent’s ability to provide care for the children by denying her involvement with the children and limiting her access to them were not supported. Specifically, he found no indication that the respondent withheld any significant medical appointments from the applicant and that, with regard to not being notified of the children’s school events, such events are available through the school’s website and the onus does not necessarily fall on the respondent to notify the applicant. In addition, the access schedule records demonstrate that the frequency of access and offers of additional visits did not substantiate that the respondent was actively preventing the applicant from maintaining a relationship with the children by limiting access. He noted that it appeared that the respondent did not outright refuse for the children to address the applicant as “mom” but rather she asked for professional guidance on the issue to avoid confusion for the children.

[64] Similarly, Mr. To stated that the respondent’s concerns about the applicant’s ability to meet the children’s needs for extended periods of time due to the applicant’s mental health and housekeeping ability were unwarranted. Although the respondent’s concerns about the impact that the applicant’s mental health may have upon her ability to provide care for the children was not without justification, there was no evidence to indicate that the applicant is currently suffering from the same degree of depression and anxiety as she had previously. The applicant’s psychiatrist stated that if she becomes depressed again, her mental health issues could have an impact on her ability to provide care for the children, however, at the present time she is mentally stable. The respondent’s concern regarding the unhealthy physical environment of the applicant’s home was not able to be substantiated. Mr. To stated that the applicant’s apartment was in tidy and clean condition on his visits.

[65] Mr. To observed that the respondent has provided care for the children during the parties’ marriage when the applicant was suffering from depression and anxiety. He stated that the respondent is the primary care provider for the children post-separation and no concern was expressed by the family physician, school and daycare about her care of the children.

[66] Mr. To was unable to ascertain Ronan and Hudson’s views and preferences due to their lack of understanding and interests with regard to custody and access issues. He did note that they both seem to have established strong emotional ties with both of their parents. During the observation visits, the children were equally comfortable and playful with the applicant as well as with the respondent. During attempted interviews with the children, both indicated that they greatly enjoy visiting with the applicant.

[67] With respect to the major issue concerning the respondent’s relocation to Washington State, Mr. To noted that, although her plan to relocate the children appears to be well thought out, “there are concern (sic) about not being in the interests of the children” as “relocation would severely limit the frequency of visits between [the applicant] and the children.” Mr. To was of the view that for children of Ronan and Hudson’s age, frequency of visits is deemed more important than length of visits. He stated that the applicant’s parental role would be limited to that of the visiting parent, and it would be difficult for the applicant to be involved in the children’s education, health and religion if the children reside in Washington State.

[68] Mr. To concluded with his recommendations and suggestions as follows:

(a) upon review of the parties’ ability to provide for care for the children, the children’s emotional ties with the parties, and the conflicts between the parties, it is suggested that the respondent be allowed to assume sole custody of the children;

(b) in order to ensure that the applicant continues to have a parenting role, he recommended that she be given the right to receive advance notice prior to any major decision-making with regard to the children’s health, education and religion as well as the right to provide input to the service providers involved;

(c) due to the impact that relocating the children to Washington may have upon the relationship with the applicant, relocation of the children is not recommended;

(d) the children have one overnight access with the applicant once a week and every other weekend from Friday to Sunday;

(e) in light of the applicant’s past mental health issues, he strongly recommended that she continue to receive psychiatric counselling; and

(f) he suggested that the applicant and the respondent should receive professional guidance with regard to helping the children to accept parental gender changes.

[69] It is noted that the suggestion at para. (f) above was not included in the list under the heading “Recommendations” at the conclusion of Mr. To’s report.

[70] On cross-examination, Mr. To acknowledged that, notwithstanding his statements respecting conflict between the parties and difficulties with communication, he was not aware of any major decisions the parties were unable to make and that he did not inquire of the parties what issues they had been able to resolve.

[71] He stated that he did consider alternatives to sole custody, such as the retention of a parenting coordinator, however he did not believe it to be practical. In his view, given the level of conflict, he did not consider joint or parallel parenting to be realistic. He did not have a concern that an order for sole custody to the respondent would marginalize the applicant. The desirability of avoiding marginalization was why he recommended consultation with the applicant on major decision-making for the children.

[72] Mr. To acknowledged that, although the applicant indicated that she felt depressed even in university, she did not go into details in the interviews and he did not discuss suicidal ideations with the applicant, even though he had observed references to the applicant having “passive suicidal thoughts” in Dr. Irvine’s records. He also noted reference to the applicant having been diagnosed with a major depressive disorder in her medical records. In spite of this, he relied upon Dr. Banjo’s note that the applicant was mentally stable at the time of the investigation. Nevertheless, he strongly recommended that the applicant continue to receive psychological counselling.

[73] When questioned on the basis for his opinion that it is more important for there to be frequent visits for children at a younger age, Mr. To stated that he was unable to cite specific research on the question. He stated his belief that children have different concepts of time and frequency of visits helps their memory. He did acknowledge that access exercised by large blocks of time could compensate for a lack of frequency. He agreed that contact by electronic means is relevant, but it has its limitations.

Guiding Principles

[74] As the parties were married, s. 16 of the Divorce Act, R.S.C. 1985, c.3 (2nd Supp.) governs the determination of custody and access. Subsection 16(8) directs that the court shall take into consideration only the best interests of the child as determined by reference to the conditions, means, needs and other circumstances of the child. Subsection 16(10) directs that the court shall give effect to the principle that a child should have as much contact with each spouse as is consistent with the child’s best interests and shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact.

[75] Subsection 16(6) provides that the court, in making an order for custody and access, may impose such other terms, conditions or restrictions in connection with the order as it thinks fit and just. Section 16 does not admit a freestanding order concerning the primary residence of a child. For such an order to be made under the section, the court must first make an order determining either custody or access (see Hejzlar v. Mitchell-Hejzlar, 2011 BCCA 230 (B.C.C.A.) at para. 18).

[76] With respect to best interests, factors to consider include those referred to at subsection 24(2) of the Children’s Law Reform Act, R.S.O. 1990, c. C.12 ( “CLRA”) which remain relevant in a Divorce Act proceeding (see Corbeil v. St. John, 2018 ONSC 805 (S.C.J.) at para. 14).

[77] Subsection 24(2) of the CLRA provides as follows:

(2) The court shall consider all the child’s needs and circumstances, including,

(a) the love, affection and emotional ties between the child and,

(i) each person, including a parent or grandparent, entitled to or claiming custody of or access to the child,

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

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

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

(c) the length of time the child has lived in a stable home environment;

(d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;

(e) the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing;

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

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

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

[78] The pre-eminent authority on the issue of mobility and residency is the case of Gordon v. Goertz, 1996 191 (SCC), [1996] 2 S.C.R. 27. That case concerned a variation under s. 17 of the Divorce Act. Nevertheless, with the exception of the those that relate to material change in circumstances, the principles laid down in Gordon v. Goertz apply to determine mobility on an originating application equally as on an application to vary (see Corbeil, at para. 15, Nunweiler v. Nunweiler, 2000 BCCA 300, [2000] B.C.J. No. 935 (B.C.C.A.) at para. 27 and Bjornson v. Creighton, 2002 45125 (ON CA), [2002] O.J. No. 4364 (C.A.) at para. 18).

[79] The legal principles which are applicable to an originating application were summarized in Gordon v. Goertz at paras. 49-50 as follows:

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

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

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

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

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

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

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

(d) the views of the child;

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

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

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

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

[80] Para. 4 of the summary, which speaks of the need to afford great respect to the views of the custodial parent, reflects the more expansive statement of the Court at para. 48 that

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

[81] As noted by Minnema, J. in Corbeil at para. 17, relying on Porter v. Bryan, 2017 ONCA 677 (C.A.) at para. 16, it is the views of the “primary caregiver” rather than the person with the legal status of joint and shared custody, that are afforded special consideration. The primary caregiver is the parent “who lives with the child and is charged with making decisions in its interest on a day-to-day basis.”

[82] In Garvin v. Garvin, 2002 BCSC 1690 (B.C.S.C.) Chamberlist, J. suggested at para. 51 that the primary parent and custodial parent are the same in mobility cases, observing that, where there is joint custody “a primary caregiver’s relationship with the children is generally the same as that of custodial parent when viewed through the eyes of the child.” (see also Drury v. Drury at para. 51).

[83] Chappel, J. highlighted this point in Thompson v. Drummond, 2018 ONSC 1975 (S.C.J.) at para. 47-4 as follows:

The courts have also emphasized the principle that the custodial parent's wishes must be given significant weight and respect in the analysis of a relocation claim. The Ontario Court of Appeal has clarified that this principle extends to the parent who is the child's primary caregiver, and not simply to the party who has formal decision-making rights respecting the child (Porter v. Bryan, 2017 ONCA 677 (Ont. C.A.)). Having regard for the importance of this principle to the relocation analysis, the courts have underlined that the determination of the custody issue must be addressed before deciding the mobility question in these cases (Bjornson, at para.19; Norris v. Norris, 2004 CarswellOnt 3298 (Ont. S.C.J.); Csorba v. Csorba, 2017 ABCA 190 (Alta. C.A.); Romita v. Humphries, 2018 ONCJ 18 (Ont. C.J.), at para. 18; Corbeil v. St. John, 2018 ONSC 805 (Ont. S.C.J.)).

[84] The “maximum contact” principle, referenced in the summary in Gordon v. Goertz at subpara. 7(c), was discussed at greater length at paras. 24 and 25, and confirmed that the requirement to give effect to the principle, while mandatory, is not absolute, as the duty of the court is to respect it only to the extent that it is consistent with the best interests of the child. The court stated that

the second factor which Parliament specifically chose to mention in assessing the best interests of the child is maximum contact between the child and both parents. Both ss. 16(10) and 17(9) of the Act require that "the court shall give effect to the principle that a child of the marriage should have as much contact with each former spouse as is consistent with the best interests of the child". The sections go on to say that for this purpose, the court "shall take into consideration the willingness of [the applicant] to facilitate" the child's contact with the non-custodial parent. The "maximum contact" principle, as it has been called, is mandatory, but not absolute. The Act only obliges the judge to respect it to the extent that such contact is consistent with the child's best interests; if other factors show that it would not be in the child's best interests, the court can and should restrict contact: Young v. Young, 1993 34 (SCC), [1993] 4 S.C.R. 3, at pp. 117-18, per McLachlin J.

The reduction of beneficial contact between the child and the access parent does not always dictate a change of custody or an order which restricts moving the child. If the child's needs are likely to be best served by remaining with the custodial parent, and this consideration offsets the loss or reduction in contact with the access parent, then the judge should not vary custody and permit the move. This said, the reviewing judge must bear in mind that Parliament has indicated that maximum contact with both parents is generally in the best interests of the child.

[85] The question of the custodial parent’s (or primary caregiver’s) reason for moving referenced in the summary at subpara. 7(e) was addressed at greater length at para. 23, as follows:

Under the Divorce Act, the custodial parent's conduct can be considered only if relevant to his or her ability to act as parent of the child. Usually, the reasons or motives for moving will not be relevant to the custodial parent's parenting ability. Occasionally, however, the motive may reflect adversely on the parent's perception of the needs of the child or the parent's judgment about how they may best be fulfilled. For example, the decision of a custodial parent to move solely to thwart salutary contact between the child and access parent might be argued to show a lack of appreciation for the child's best interests: see McGowan v. McGowan (1979), 1979 3608 (ON SC), 11 R.F.L. (2d) 281 (Ont. H.C.); Wells v. Wells (1984), 1984 2646 (SK QB), 38 R.F.L. (2d) 405 (Sask. Q.B.), affirmed (1984), 1984 165 (SK CA), 42 R.F.L. (2d) 166 (Sask. C.A.). However, absent a connection to parenting ability, the custodial parent's reason for moving should not enter into the inquiry.

[86] The British Columbia Court of Appeal in Hejzlar set forth at paras. 24-27 four important principles arising from the authorities which are to be applied in reference to a proposed relocation of a child against the wishes of the non-moving parent:

(a) while subsection 16(10) of the Divorce Act provides that the court must consider maximizing contact between the child and parent, the same subsection makes it clear that maximizing contact is not an absolute principle, and is only to be pursued within the limits of that which is consistent with the best interests of the child;

(b) barring an improper motive for the proposed move, there must be an attitude of respect for the custodial parent/or primary caregiver. This means, in part, the party seeking to move need not prove the move is necessary, although any degree of necessity, such as for income-earning reasons, may bear upon the best interests of the child;

(c) the authorities generally do not favour the status quo as a “default position” as such an approach reinserts into custody discussions a presumption which is contrary to the instructions in Gordon v. Goertz to assess each case individually, and is contrary to the principle that presumptions are inappropriate in custody cases and detract from the individual justice to which every child is entitled; and

(d) courts in Canada have discouraged reliance by a judge on any expression by the parent who is seeking to move that he or she will not move if the child cannot accompany him or her, as it places the parent in a “classic double bind.” This point was explained in Spencer v. Spencer, 2005 ABCA 262 (Alta C.A.) at para 18 as follows:

In conducting this inquiry, it is problematic to rely on representations by the custodial parent that he or she will not move without the children should the application to relocate be denied. The effect of such an inquiry places the parent seeking to relocate in a classic double bind. If the answer is that the parent is not willing to remain behind with the children, he or she raises the prospect of being regarded as self interested and discounting the children's best interests in favour of his or her own. On the other hand, advising the court that the parent is prepared to forgo the requested move if unsuccessful, undermines the submissions in favour of relocation by suggesting that such a move is not critical to the parent's well-being or to that of the children. If a judge mistakenly relies on a parent's willingness to stay behind "for the sake of the children," the status quo becomes an attractive option for a judge to favour because it avoids the difficult decision the application presents.

The inquiry the court was referring to in this passage from Spencer was the weighing of the importance of the child remaining with the parent whose custody it has become accustomed in the new location against the continuance of full contact with the child's access parent, its extended family and its community, as described in Gordon v. Goertz at para. 50 (see Spencer at para. 17).

See also Drury v. Drury at paras. 42-43.

[87] Chappel, J. addressed the best interest analysis in a situation where the primary caregiver plans to move and has indicated that maintaining the status quo is off the table in Thompson v. Drummond, at para. 47-11 as follows:

if the primary caregiver plans to move and has indicated that maintaining the status quo is off the table, the best interests analysis cannot focus on comparing the effect on children if they are permitted to relocate with the primary parent versus maintaining the status quo with that parent in the current location. The courts have indicated that approaching the issue in this manner ignores a key component of the Gordon test, namely the effect of removing the child from the care of their primary caregiver after that parent moves (McAlpine v. Leason, 2016 ABCA 153 (Alta. C.A.); leave to appeal refused Leason v. McAlpine, 2016 CarswellAlta 2158 (S.C.C.); Spencer v. Spencer, 2005 ABCA 262 (Alta. C.A.), at paras. 15 and 19; Christmas v. Christmas, 2005 ABCA 213 (Alta. C.A.), at para. 5; MMG v. JAS, 2017 ABCA 209 (Alta. C.A.), at para. 23).

Analysis

(a) Custody

[88] As indicated above, the applicant seeks an order for joint custody of the children, while the respondent seeks sole custody.

[89] Gray, J. succinctly summarized the principles which should guide the court in considering whether to make an order for joint custody in the case of Warcop v. Warcop, [2009] No. 638 (S.C.J.) at para. 94, as follows:

In the final analysis, in my view, an order for joint custody is not to be rejected based on any rigid standard as formerly reflected in Baker, supra. The focus is simply on the best interests of the child. The best interests of the child will obviously not be fostered if the parents are unable to communicate and cooperate in making decisions that affect the child. However, a standard of perfection is not required, and is obviously not achievable. The issue is whether a reasonable measure of communication and cooperation is in place, and is achievable in the future, so that the best interests of the child can be ensured on an ongoing basis. In making this assessment, the Court must be governed by the evidence that has been presented as to the communication and cooperation between the parties to date; the mechanisms that are in place to ensure that it will continue; and the assessment of the judge as to the capabilities of the parties to do so in the future.

[90] I find that there is a reasonable measure of communication and cooperation in place and that the parties have the ability to make decisions respecting the best interests of the children. As indicated above, the written communications between the parties by text and email which were entered into evidence were largely civil and free of profane, demeaning or aggressive language.

[91] The parties were able to engage in positive communications respecting the medical and dental care of the children, additional access time to the applicant, educational issues, including the return of the children to school in September 2020, and arrangements for events such as the children’s birthday parties. The applicant was invited by the respondent to participate in events involving the children and the parties were able to set aside their differences to enjoy time with the children on these occasions.

[92] One caveat was the insistence of the applicant that all communication be in writing. The applicant evidently lacks sufficient trust for her to participate in telephone communications with the respondent. The source of this mistrust was not readily apparent in the evidence. The possibility for positive direct verbal communication would be in the best interests of the children to facilitate fulsome discussions of issues affecting their welfare, especially in cases of urgency. This will be particularly important given that the respondent has indicated that she will be moving to Washington State regardless of the outcome of her mobility application.

[93] It has been held that the court is not required to apply a standard of perfection in assessing the parties’ ability to communicate and work together. It is sufficient if the necessary cooperation is workable and adequate (see Jackson v. Jackson, 2017, ONSC 1566 (S.C.J.) at para. 65-5).

[94] In his report, Mr. To pointed to the history of conflicts between the parties as a concern. He concluded that “there is little trust and a lack of ability to communicate between them. The conflicts between the parties do not appear to be conducive for them to work together in making decision (sic) about the children’s well being.”

[95] Immediately preceding the foregoing statement, Mr. To noted that both parties acknowledged that they began having conflicts shortly after Ronan’s birth in 2014 and became greatly intensified when the applicant began her gender-transition in 2016. He also noted that the applicant alleged that the respondent was physically, verbally and mentally abusive of her and that the respondent alleged that the applicant was the one who was abusive.

[96] Although Mr. To, in the “Discussion” section of his report, reviewed the nature and extent of the pre-separation conflict between the parties, he did not analyze the ability of the parties to communicate adequately and in a workable manner with respect to decision-making for the children’s well-being following their separation.

[97] I find that Mr. To’s conclusion that the relationship between the parties is not conducive for them to work together in making decisions for the children’s well-being is not supported by the evidence that was led at trial. To their credit, the parties have demonstrated that they have been largely able to set aside their differences in order to communicate adequately with respect to the children’s well-being.

[98] I find that, in the circumstances, an order for joint custody would be in the children’s best interests. Although there is no support in the evidence for any suggestion that the applicant’s parenting role is at risk of being marginalized by the respondent, and indeed the evidence is to the contrary, an order providing for joint custody would serve to manifest the applicant’s important parenting role in the children’s lives.

[99] The question of whether final decision-making authority should be conferred on one or other of the parties should be deferred pending a determination of the mobility question, for the following reasons.

[100] The respondent has made it clear that she intends to move to Washington State with her infant daughter to be with her husband. I did not understand the applicant to argue, nor do I find, that the respondent’s decision to relocate to Washington State was made for an improper purpose. Maintenance of the status quo is therefore not an option. Which parent will have primary care and control of Ronan and Hudson going forward will depend upon the resolution of the mobility question, which will in turn inform the decision on whether final decision-making authority should be conferred on one of the parties.

[101] In the case of Lamont-Daneault v. Deneault, 2003 MBCA 111 (Man. C.A.) the Manitoba Court of Appeal addressed the considerations which apply when considering whether to confer final decision-making authority in a joint custody situation. Twaddle, J.A. expressed the view that, as a general rule, the final decision-making authority should rest with the party with primary care and control, explaining as follows at paras. 18-20:

The sharing of custody works well in the case of mature parents who are able to recognize that, as parents, their role is to make decisions which are in the best interest of the child. Unfortunately, not all separated parents are able to do this. It is therefore not uncommon for a judge, seeing a potential for future discord, to designate one of the parties as the one with the final decision-making authority with respect to the child generally or with respect to certain major issues, e.g. schooling, medical treatment.

The choice of party on whom the final decision-making power should be conferred will depend on many factors. As a general rule, however, the decision-making power should, in my opinion, be conferred on the party with primary care and control.

Despite an order of joint custody, the parent with primary care and control will ordinarily have the greater responsibility for the children's upbringing. It is he or she who must implement decisions made with respect to the child and live with those decisions. Steel J.A. put it this way in Sawatzky v. Sherris (2002), 170 Man. R. (2d) 51, 2002 MBCA 143 (Man. C.A.) (at para. 5):

Single parenting is a difficult enough job at the best of times. Depriving the parent who has day-to-day care of the children . . . of the final decision-making power can only increase those difficulties.

(b) Mobility

[102] The determination that the parties should have joint custody of the children opens the way to direct consideration of the issue of the children’s primary residence going forward (see Hejzlar at para. 21). The first step in this determination is to decide whether the respondent has been and is currently the primary caregiver of the children, such that her views respecting relocation with the children should be afforded “great respect and the most serious consideration” as directed by the Supreme Court of Canada in Gordon v. Goertz.

[103] The Ontario Court of Appeal in Porter v. Bryan stated at para. 11 that “the motion judge made an error in principle by not characterizing the mother as the primary caregiver of the child, which led to the further error that her reasons for moving were not entitled to the serious consideration required by Gordon v. Goertz.”

[104] At para 16 of Porter, the Court stated as follows:

We do not agree that the legal status of joint and shared custody forecloses the possibility that one parent can be, for the purposes of a mobility motion, the primary caregiver. On the record before us, it is evident that although the parties have joint and shared custody, the mother is nevertheless the primary caregiver. This conclusion is not only supported by the mother's evidence, but from the father's admission on his Form 35.1 affidavit, his answers in cross-examination, and affidavits from two of the father's aunts. Accordingly, the consideration articulated in Goertz comes into play, and the mother's reason for moving bears special consideration.

[105] Saunders, J.A. addressed the same point in Hejzlar at para. 33 as follows:

"Primary residence" is a sub-set of custody, so to speak, falling short of the full legal responsibility inherent in that term. As a vital aspect of parental care for a child, however, it seems to me only right that the same considerations should apply to a decision on primary residence as apply to custody questions. I consider that in circumstances of a parent who is and has been the primary caregiver, and provides the primary residence for the child, the Gordon v. Goertz instruction to respect the views of the mobile parent, applies fully.

[106] I find on the evidence that the respondent has been and remains the primary caregiver for the children.

[107] As indicated above, Mr. To concluded that respondent “has provided care for the children during the parties’ marriage when [the applicant] was suffering from depression and anxiety” and “[the respondent] is the primary care provider for the children after the parties’ separation.” I agree with Mr. To’s observations in this respect.

[108] The reality is that the respondent has been the consistent presence in the children’s lives, accepting primary responsibility for their care both during the marriage and after separation.

[109] I find that following Hudson’s birth, coincident with the applicant’s decision to commence hormone therapy and to concentrate her focus on her transition and on her mental health, the applicant did withdraw to a significant extent from the children’s lives and that the respondent assumed an even greater responsibility for their care. This was particularly so after the applicant moved to the lower level of the matrimonial home in late 2016 or early 2017. The parties disagree on the reasons for and their respective responsibility for these changes in their relationship. My findings in this respect must not be interpreted as any comment on the applicant’s undoubted right to proceed with her gender transition, to avail herself of all appropriate medical care and treatment in that respect, and her need to focus on her own self-care during a vulnerable time in her life. However, the focus of this case is on the children, and from their point of view, the respondent remained their steady presence and support through the changes in the parties’ relationship and their primary caregiver throughout.

[110] At the time of final separation, to her credit the applicant determined that it would be in the children’s best interests that she leave the matrimonial home rather than requiring the applicant to find another residence with the children. Since separation, the respondent continued in her primary caregiving role. In doing so, I find that she encouraged and supported the applicant and the children in the maintenance of a healthy and loving relationship between them. The respondent was receptive to expansion of the applicant’s access time with the children as circumstances permitted, particularly during the school closure due to the pandemic, and she was receptive to the applicant’s requests for extra time on an ad hoc basis. However, the applicant has remained the children’s access parent, and the former matrimonial home continues to be their home with the respondent as their primary caregiver. Although the applicant seeks equal parenting time on a 2-2-3 schedule in the application, she did not bring any motion seeking equal parenting time on an interim basis prior to trial.

[111] I find that, as the children’s primary caregiver, the respondent’s views with respect to her proposed move with the children to Washington State should be afforded great respect and the most serious consideration.

[112] I find that the respondent has carefully researched, in a child-focused manner, the implications of the proposed move to Washington State for the children and for their immediate and extended family. She has carefully researched available options for schooling for the children as well as the economic, cultural, recreational and social characteristics and amenities of the communities being considered by her and Mr. Davis to settle in, the Cities of Redmond and Woodinville, both suburbs of Seattle.

[113] The respondent has also carefully considered practical and realistic steps that can be implemented in order to maintain and enhance the children’s relationships with the applicant and has identified blocks of time throughout the year for the children to spend quality time with her. The respondent acknowledges that the frequency of the children’s visits with the applicant would be reduced with her proposed schedule but maintains that this could be compensated for by the increased length of visits. The respondent indicated that the applicant and her family would be welcome for visits with the children at her and Mr. Davis’ home in Washington State.

[114] The respondent has identified a lengthy list of extended family members, albeit those of Mr. Davis, and family friends in Washington State and throughout the Western U.S.A. who would comprise a network of support for the children and her family.

[115] The respondent has also considered the economic benefits that would accrue to the children and the family through Mr. Davis being able to maintain his well-remunerated employment and benefit package with Microsoft Corporation in Redmond, Washington. She has also researched the availability of employment opportunities for herself there.

[116] I am unable to accept the submissions of Ms. Carroll that a more reasonable plan would be for the respondent to remain with the children in Ontario with Mr. Davis travelling back and forth between Washington State and Ontario and that the respondent’s financial considerations in favour of the move to Washington State are unfounded.

[117] It is well known that the court has no jurisdiction to order an adult person to reside in a certain place. As noted above, absent an improper purpose for a move, such as to deprive the non-moving parent of access to the children, it is not the place of the court to second-guess or question the decision of a primary care parent seeking to move with the children on what is best for her and her family.

[118] Effectively, the applicant’s submission is that the respondent’s proposed move to Washington State is unnecessary as Mr. Davis could easily divide his time between Washington State and Ontario, or he could immigrate to Canada and seek employment in Ontario, both of which would avoid upsetting the status quo of the children residing in Ontario.

[119] The British Columbia Court of Appeal in Hejzlar addressed a comparable submission. The trial judge had denied the applicant mother’s application to move with the child at issue and her two younger children to reside with her husband in Edmonton who had accepted employment there after losing his job in British Columbia. The trial judge drew adverse conclusions based upon a determination that the proposed move was unnecessary because the applicant’s husband could have continued to look for work in British Columbia and he should have considered taking employment earning substantially less than he had previously earned in British Columbia and was currently earning in Alberta. The Court of Appeal rejected that approach on the basis that exploration of the necessity for the move ignored the direction in Gordon v. Goertz and diverted from the issue before the court, stating as follows at para. 47:

Yet there is no improper motive imputed to the appellant for the move, and so the matter fell to be seen through the lens of respect as discussed in Gordon v. Goertz. In other words, the question was not the soundness of the financial decisions made by the mother and step-father, although it appears they found a reasonable solution to rather pressing circumstances. I conclude that to the degree the reasons for judgment explored the issue of "necessity" and reached adverse conclusions, they diverted from the issue before the court.

[120] I accept that the reality is that the respondent will move to Washington State with her infant child to be with her husband. The applicant, in her submission, effectively suggests that the court should presume that it is never in the best interests of the child to move with his or her primary caregiver and that it would be best for the children to maintain the status quo.

[121] The Alberta Court of Appeal rejected this approach in the case of McAlpine v. Leason, 2016 ABCA 153 (Alta C.A.), leave to appeal refused 2016 CarswellAlta 2158, stating at para 11:

It is an error to presume, as the trial judge seems to have done here, that it is never in the best interests of a child to move with his or her primary caregiver. As this Court recognized at para 55 of MacPhail v. Karasek, 2006 ABCA 238, 273 D.L.R. (4th) 151 (Alta. C.A.), a move will always result in decreased contact with one parent. The trial judge's approach is really another way of saying that it would be best for the child to maintain the status quo, without considering the effect on the child of staying in her current location without the primary caregiver. Although the trial judge commented that the status quo was off the table, his approach to the relevant factors suggests otherwise. This is the kind of error discussed in MacPhail and the other cases cited above, and it is an error in principle.

[122] I am also unable to accept Ms. Carroll’s submission that the court should find that it is unlikely that the respondent will actually move to Washington State without the children or would not do so unless there were a parenting plan in place for the children. In my view this would constitute improper speculation, as it would represent the type of “double bind” inquiry which the Court in Spencer and cases which have followed it have cautioned against.

[123] As indicated above, the court in Hejzlar at para. 27 noted that courts in Canada have discouraged reliance by a judge on any expression by the parent who is seeking to move that he or she will not do so if the child cannot accompany her or him. If it is improper for the court to rely upon such an expression, it would be equally improper for the court to speculate that the parent would not move without the children despite her assertion to the contrary.

[124] I do not accept Ms. Carroll’s submission that, by testifying that she intends to move to Washington State even if her mobility application is denied, the respondent is “holding the court up to ransom.” This submission effectively attributes a bad faith motive to the respondent. If, as indicated above, it is problematic to rely on representations by the primary care parent that she will not move without the children should the application to relocate be denied, surely it is problematic and improper to draw an adverse inference against a primary care parent who states that she will move without the children should the relocation application be refused. I am unable to ascribe a bad faith intention to the respondent by her testimony in this respect.

[125] With respect to the maximum contact principle, is abundantly clear that, regardless of the mobility determination, the respondent’s move to Washington State will have an impact on the contact between the children and one or other of their parents. Should the children’s move with the respondent be approved, the frequency and nature of their contact with the applicant will be affected. Conversely, should the children’s move be denied, their contact with the respondent will be affected.

[126] As has been noted, the principle of maximum contact is applied within the context of the overall best interests of the child. Moreover, s. 16(10) of the Divorce Act directs that, for the purpose of achieving consistency between the best interests of the child and the principle of maximum contact, the court shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact.

[127] I accept that the respondent is willing to facilitate the applicant’s contact with the children and has demonstrated a determination to foster the maintenance of a healthy and beneficial relationship between them. Her plan seeks to maximize the children’s contact with the applicant commensurate with their educational schedule.

[128] With respect to the question of disruption to the children consequent on removal from family, schools, and the community they have come to know, it is important to consider the young ages of the children. Their attachment to their particular school and community is of relatively short duration. This is not a case involving adolescents who have developed deep-rooted attachment to their school and community. The court in McAlpine observed at para. 9 that the potential harm caused by requiring a child to move away from his or her current school would not be the primary concern in the case of the child of five or six.

[129] In any event, even if the move by the children to Washington State were denied, it is likely that a change to the children’s school situation would occur in any event, as it would be expected that they would be enrolled in school with a catchment area which includes the applicant’s residence.

[130] With respect to the children’s connection to extended family such as grandparents and aunts and uncles, it is observed that in the modern world change is inevitable and it is not uncommon for persons and families to relocate with their children in order to pursue employment and other opportunities. I may take judicial notice that it is not unusual even in intact families for children to live at great distances from their grandparents and extended families. Smith, J.A. put it this way in Falvai v. Falvai, 2008 BCCA 503 (B.C.C.A.) at para. 40:

In today's world, individuals rarely live their entire lives in the same community in which they are born. We exist in a far more mobile society. Work demands often require families to move; some require one parent to work in a community apart from where the family lives.

[131] This may call for extended family members to adapt and accommodate in order to maintain meaningful contact with the children. The availability of a broad range of electronic means for maintaining such contact would go a long way to mitigate the separation. I do not see this as a major factor in the circumstances of this case.

[132] Moreover, there is an important countervailing consideration, that of fostering the children’s connection to their sibling Zoey and their stepsibling Elijah that bears on the best interests determination. Twaddle, J.A. dealt with this issue in Hejzlar at para. 49 as follows:

It is not easy to address these issues where, as here, the primary caregiver has a blended family, and yet the child should maintain a strong and lasting relationship with the other parent (and extended family). As often noted, the principle of maximum contact with a parent yields to the overall best interests of the child. How are those to be determined? In a well-functioning family, as this appears to be, those interests cannot be determined in isolation from other near and extended family members. It is, in the least, worth remembering, that a child's connection to his siblings must be appropriately fostered, in the best interests of all the children affected by the order. So not only are the eyes upon the older generation, they are also upon the child's own generation. Here the result of the order is either to separate the child from his siblings, or to separate the child's siblings from their father, who is employed in Edmonton supporting the entire family. Had the matter been considered in this light, I do not expect the order would have been made in its current form.

[133] In McAlpine the trial judge had ordered that primary care of an (almost) seven-year-old girl be transferred from her mother to her father in Calgary, rather than being permitted to move with her mother to Winnipeg. The mother had applied to move with the child to Winnipeg in order to avail herself of family support in that city with regard to child-care and because she had a new partner there. Her mobility application was denied by the trial judge.

[134] The Alberta Court of Appeal admitted fresh evidence that, subsequent to the conclusion of the trial, the mother had another child with her fiancé who was four months old at the time of the appeal. The court found at para. 14 that the trial judge had failed to properly consider what the impact on the child would be if she were removed from the care of her mother for more than 50% of the time and that the impact on the child were she to be removed from the care of her mother and be without her new sibling made it a more pressing concern. The court noted the importance of the sibling relationship and the need to consider it in assessing the best interests of the child in a mobility application.

[135] At para. 16 the Court of Appeal concluded that the child’s best interests were best served in maintaining a close tie with her parents and her new sibling and that the best way of promoting that was to allow her to move to Winnipeg with her mother.

[136] The parenting plan proposed by the applicant in the case at bar is premised on the maintenance of the status quo represented by the respondent remaining in Ontario, which as I have noted, is not realistic. The applicant did not propose a plan for her primary care of the children and for access to the children by the respondent based upon the respondent relocating to Washington State without the children. Specifically, she did not present a concrete plan for the children’s schooling and before and after-school care, as needed. She also did not present a plan for the fostering of Ronan’s and Hudson’s relationships with their sister Zoey, and the maintenance and enhancement of their relationships with the respondent.

[137] It is clear that Mr. To’s recommendation against relocation of the children to Washington State was premised on the respondent remaining in Ontario should her mobility request be denied, as his parenting-time recommendation calls for primary residence to remain with the respondent, with weekly mid-week access and alternate weekend access to the children by the applicant.

[138] Notwithstanding his observation that the respondent has been, since separation, the primary care provider for the children and remains such, Mr. To did not, in his report, consider where the best interests of the children would lie in the context of the respondent relocating to Washington State and the status quo not continuing. Specifically, he did not assess the implications to the children of being separated from their primary care provider.

[139] I find that it would be an error, when considering the best interests of the children, to presume the continuance of the status quo. I therefore do not find Mr. To’s recommendation on the mobility question to be persuasive.

[140] Although not pressed in argument by Ms. Carroll, it is necessary to address the applicant’s opposition to the respondent’s mobility application based upon what she perceives to be “cultural differences” between the United States and Canada and the effect that they may have on the children, as well as the differences between the two countries with respect to legal protections to counter discrimination experienced by transgender persons.

[141] It was clear from her testimony that the applicant’s concerns respecting these issues are sincere and strongly held. However, no expert evidence was led that would suggest that living in the State of Washington, with exposure to the local culture, would adversely affect the children’s development and best interests. Similarly, no expert evidence was led with respect to differences between the legal protections afforded to transgender persons in the State of Washington and the Province of Ontario or the relative prevalence with which transgender persons may experience discrimination in the two jurisdictions. I did not understand the applicant to say that she would be deterred from visiting the children in Washington State or travelling with them to or from there by reason of her concerns in this respect. I also did not understand the applicant to have any concerns with respect to possible exposure of the children in the respondent’s and Mr. Davis’s home to discriminatory attitudes or behavior. Indeed, I find that the evidence is to the contrary. The applicant’s concerns are with respect to such exposure in the broader community. I find that these issues raised by the applicant relate in large measure to her own interests and concerns however strongly held, but have not been shown to affect the best interests of the children.

[142] Issues related to the Covid-19 pandemic and the obstacles it may place on the exercise of access to the children by the access parent, at least in the short term, were alluded to in testimony during the trial.

[143] In my view, the children’s best interests must be viewed from a long-term perspective. I can take judicial notice that currently the ability to travel freely between Canada and the United States is adversely affected by public health restrictions. I am also able to take judicial notice that local, regional and international public health restrictions related to the coronavirus are subject to change from time to time based upon assessments of the course of the pandemic by public health and governmental authorities. However, I am unable to make any findings with respect to how long such restrictions may be expected to affect the exercise of access.

[144] Moreover, given that the respondent will be moving to Washington State, even if her request for the children to move with her is denied, her access to the children in Ontario would be impacted in a similar fashion to the applicant’s access should the children be permitted to move. The effect on the children’s best interests would be felt by them either way.

[145] I find that the shorter-term effects of the pandemic on the ease by which access may be exercised would be eclipsed by the longer-term effects on the children of their separation from their primary care provider and from their sibling and stepsibling.

[146] For the reasons set forth above, I find that allowing the respondent’s application to move with the children to Washington State, with generous and liberal access to the applicant, would be in the children’s best interests.

(c) Final Decision-Making Authority

[147] In my view, notwithstanding my finding that joint custody would be in the children’s best interests, it would also be in their best interests that final decision-making authority rest with the respondent in the event the parties are unable to agree on a major decision respecting their well-being. This is particularly so given the distance the parties will be apart, and on the fact that the parties will be situate in different jurisdictions. Expeditious resort to the court in resolve an impasse between the parties would be complicated and hampered by the fact that the applicant resides in Ontario and the children and the respondent in Washington State.

[148] Moreover, I agree with the observations of the Manitoba Court of Appeal in Lamont-Daneault v. Deneault, referred to above that, in the circumstances of the case at bar, the decision-making power is best conferred on the party with primary care and control. The respondent, as the parent with primary care and control, will have the greater responsibility for the children's upbringing and for implementing decisions made for their well-being and will have to live with those decisions.

[149] In the case of Newstead v. Hachey, 2018 ONSC 1317 (S.C.J.) Minnema, J. observed at para. 67 that a joint custody order that assigns to one party final decision-making authority may not be a true joint custody order in the usual sense of requiring the parties to make major decisions together. However, at para. 68, he noted that, in the case before him, there was a benefit and certainly no harm in utilizing the terminology of joint custody as it more closely aligned with the children’s perception that the decisions concerning them are a collaborative parental effort.

[150] In my view similar considerations apply to the present case. I find that that it is appropriate that final decision-making, if necessary after meaningful consultation, be assigned to the respondent.

(d) Child Support

[151] The respondent proposes that the applicant be relieved of the obligation to pay child support or to contribute to section 7 expenses in order to compensate for the extraordinary expense that she would be subjected to exercise access to the children.

[152] The jurisdiction of the Court to order a credit against child support in order to account for extraordinary travel expenses in a mobility case was addressed by Finlayson, J. in the case of Choudry v. Cater, 2018 ONCJ 238 (O.C.J.) at paras. 337-349. In reliance on the case of Morrone v. Morrone, 2007 CarswellOnt 7392 (S.C.J.) Finlayson, J. found that such jurisdiction is founded on s. 28(1) (b) of the CLRA which provides that the court may determine any aspect of the incidents of the right to custody or access. At para. 49 of Morrone Quigley, J. concluded that the jurisprudence “provide[s] authority to the court to apportion additional costs of access that arise as a result of a relocation as between the parents, and to apply those increased costs to offset other amounts that might otherwise be payable.”

[153] I find that it is appropriate to waive any requirement that the applicant pay child support or to contribute to s. 7 expenses in order to compensate for the extra travel costs which will be incurred by her as a consequence of the children’s relocation to Washington State. This would avoid the inconvenience and potential for confusion and dispute which could result from the respondent being required pay or all or a part of the travel costs on an ongoing basis.

Disposition

[154] For the foregoing reasons, it is ordered as follows:

1. The title of proceedings is amended to change the name of the respondent to Jennifer Davis.

2. The applicant Darcy Bourke and the Respondent Jennifer Davis shall have joint custody of the children of the marriage, namely Ronan William Bourke, born June 19, 2014 (male) and Hudson Jeremy Bourke, born March 27, 2016 (male).

3. The parties shall consult and confer with each other regarding all major educational, medical or religious decisions affecting the children. In the event the parties are unable to reach an agreement after having a meaningful discussion, the respondent shall make the final decision, keeping the applicant informed.

4. The respondent shall be permitted to relocate with the children of the marriage, namely Ronan William Bourke, born June 19, 2014 and Hudson Jeremy Bourke, born March 27, 2016 to Washington State, United States.

5. Until the children relocate to Washington State, United States, the applicant shall have access to the children as follows:

a. Alternating Wednesday and Thursday evenings from 5:30 p.m. until 7:30 p.m. Wednesday evening access visits shall be in weeks ending with the weekend access visits referred to below, while Thursday access visits shall be during the alternate weeks; and

b. Alternate weekends from Friday from the end of the school day (3:30 p.m.) until Sunday at 6:00 p.m.;

c. the Christmas school break 2020 shall be shared equally by the parties, as agreed upon in a manner consistent with manner in which the parties shared time with the children in 2018 and 2019;

or such other times as may be agreed upon by the parties in writing.

6. Once the children relocate to Washington State, United States, the applicant shall be entitled to exercise the following parenting time with the children in Ontario, Canada:

The children shall be in the care of the applicant, in accordance with the following schedule, which aligns with the children’s school vacation calendar:

a. Winter Break each year: In 2021, dates are February 13th – 21st;

b. Extended long weekends each year: In 2021, dates are March 18th – 21st and May 28th – 31st

c. Spring Break each year: In 2021 dates are April 10th – 18th

d. Summer: Two weeks in early summer break and two weeks at the end of summer break;

e. Extended long weekend each year in October;

f. Extended long weekend each year in November;

g. One week at Christmas each year alternating the week; and

h. Such other and further dates as agreed upon by the parties.

7. commencing in 2021, the respondent shall provide the applicant with a copy of the children’s school calendar and the proposed parenting time for the full year including summer, extended long weekends, Christmas, winter break and spring break as set out in paragraph 6 above.

8. the applicant shall be permitted to exercise additional parenting time with the children in Washington State, or in British Columbia.

9. the applicant shall exercise liberal telephone, video-call, Skype, and email contact with the children. The parties shall both be flexible with regard to the children’s schedule and availability for said telephone and/or video access. The applicant’s family shall be permitted to exercise telephone, video-call, Skype or email contact with the children, in the event the applicant is unable to do so.

10. the respondent shall be permitted to reasonably contact the children during the applicant’s time with them via video-call, Skype or telephone.

11. the respondent shall set up a OneDrive account for the children in order to share frequent photos, videos, school calendars, school events, and information directly with the applicant and her family.

12. the children shall fly to Ontario from Washington, non-stop via Air Canada or another agreed upon airline, departing from Seattle-Tacoma Airport and landing at Toronto Pearson Airport. Until such time as the children are of the age to utilize the Unaccompanied Minor Service offered by the airlines, the applicant shall be responsible for travelling with the children, if applicable. The parties shall share equally in any costs associated with utilizing the Unaccompanied Minor Service.

13. the respondent shall obtain and pay for Nexus passes for the children to expedite the process at the airport and to ensure easy cross-border entry to assist in facilitating the applicant’s parenting-time with the children.

14. the costs associated with the applicant’s access with the children shall be offset as the applicant’s child support obligations for the children.

15. a. The respondent may apply for, renew and/or replace the children's passports without the consent of the applicant.

b. The parties shall cooperate to facilitate one another’s international travel with the children which shall include but not be limited to the following:

(i) executing travel consent letters and/or other documentation as may be required;

(ii) exchanging the children’s identification; and

(iii) adjusting the children’s regular residential schedule as may be reasonably necessary.

c. If either party travels with the children to a destination other than between the homes of the parties, they shall advise the other party of the location and dates of travel. In the event that this travel is for a period in excess of 72 hours, they shall provide the following additional details:

i. If the children are travelling by air, the name of the airline, the dates and times of the flights and the flight numbers;

ii. Full details of where the children will be staying, including names and addresses of any hotels or other accommodations; and

iii. Emergency contact telephone numbers for the children.

16. the respondent shall pay for all of the Section 7 Special or Extraordinary expenses for the children.

17. there are no arrears of child support and/or Section 7 Special or Extraordinary expenses owed by the applicant to the respondent.

18. the respondent shall advise the applicant in writing of the names, addresses and telephone numbers of all third parties involved with the children including but not limited to all educational professionals and health care professionals (teachers, principals, tutors, physicians, psychologists, social workers, counsellors, dentists, etc.).

19. if required by the children’s educational or health care professionals, the respondent shall provide written permission to these professionals to release information directly to the applicant.

20. the applicant may directly contact all third parties involved with the children, namely, Ronan William Bourke, born June 19, 2014 and Hudson Jeremy Bourke, born March 27, 2016 and shall be entitled to complete access to any information regarding the children, including and not limited to, all educational professionals and health care professionals.

21. the applicant and the respondent shall maintain the children of the marriage, Ronan William Bourke, born June 19, 2014 and Hudson Jeremy Bourke, born March 27, 2016 on any extended health and medical benefits available to them through their employers.

22. the applicant and the respondent shall at all times keep each other apprised of their current contact information including but not limited to address, telephone number and email address.

Costs

[155] The parties are strongly urged to settle the issue of costs between themselves. If the parties are unable to do so, the respondent may make written submissions as to costs within 21 days of the release of these Reasons for Judgment. The applicant has 14 days after receipt of the respondent’s submissions to respond. The respondent shall have a further 7 days to reply. The initial written submissions shall not exceed five (5) double-spaced pages exclusive of Bills of Costs or Costs Outlines, offers to settle and authorities. Any reply submissions shall not exceed 3 double-spaced pages. All such written submissions are to be forwarded to me via email to the Superior Court of Justice at Kitchener at the same address as utilized for filing the trial materials.

[156] If the parties are able to settle the question of costs counsel are requested to advise the court accordingly.

D.A. Broad, J.

Released: December 16, 2020