COURT FILE NO.: 93/18

DATE: 2021-05-21

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Michael John Cote, Applicant

AND:

Mary Elizabeth Parsons, Respondent

BEFORE: Justice A. C. Trousdale

COUNSEL: Mr. Cote, Self-represented

Danielle Russell, Co-Counsel for the Respondent

HEARD: April 8, 2021

ENDORSEMENT ON MOTION TO CHANGE

[1] The Applicant Mr. Cote (“the father”) brings a Motion to Change the Final Order made on consent of the parties on October 8, 2019. The father wishes to be allowed to relocate the residence of the two children of the marriage from Kingston, Ontario to Kitchener, Ontario, and he seeks a corresponding change in child support.

[2] The Respondent Ms. Parsons (“the mother”) opposes the father’s request to move the children’s residence to Kitchener, Ontario and asks that the father’s motion be dismissed. She believes that a move of the children away from Kingston and away from a shared parenting regime is not in the best interests of the children.

Background and History of Care

[3] The parties met in British Columbia when they were both college students and married there on July 18, 2009. They moved to Kingston, Ontario in 2009 where the father worked at Kingston Health Sciences as a part-time Registered Practical Nurse and the mother took the Early Childhood Education program at St. Lawrence College. In April 2011, the parties moved to Edmonton, Alberta to be closer to the mother’s family, some of whom live in Alberta and some of whom live in B.C. After 6 months there, the parties moved to Kitchener, Ontario where many of the father’s relatives live. The father’s mother began living with the parties at that time.

[4] The parties had a daughter born in Kitchener in June 2013. The mother took a maternity leave of 12 months after the birth of this child. At the end of the 12 month maternity leave or at 18 months old (the date is disputed) the elder child was in a French daycare for 2 or 3 days per week (the number of days is also disputed) and was looked after on the other days by the paternal grandmother (and/or by the father as alleged by the father but disputed by the mother). The father was working part-time in nursing and was studying part-time to obtain his Registered Nursing degree according to his version of that time, or working mostly full-time and studying full-time according to the mother’s version of that time.

[5] The parties had a son born in Kitchener in April 2015. The mother took a 12 month maternity leave. The older child remained in daycare for 2 or 3 days per week and was cared for by the mother at home on the other days.

[6] In or about February 2016, the parties moved to Kingston, Ontario as the father obtained a job as a Registered Nurse in Kingston. The mother is an Early Childhood Educator and obtained a part-time casual job at a registered daycare in Kingston starting in April 2016 when her maternity leave ended. The mother obtained a full-time job there in September 2016. The paternal grandmother also moved to Kingston with the family and continued to reside with the family. The daughter was 2 1/2 years old and the son was 10 months old when the family moved to Kingston.

[7] The elder child started at a French daycare in Kingston part-time in April 2016. She commenced Junior Kindergarten in Kingston in a French school adjacent to the daycare in September 2016. The younger child commenced full time daycare at the French daycare in September 2016.

[8] The parties separated on January 22, 2018. They both remained living in the matrimonial home until it was sold in April 2018. The parties each obtained their own accommodation in Kingston and the paternal grandmother continued to live with the father.

[9] The father commenced his relationship with S.D. in the spring of 2018.

[10] From April, 2018 to the end of August, 2018, the children resided with the father on Monday and Tuesday each week, with the mother on Wednesday, Thursday, and Friday including Friday overnight each week, and each party had the child for alternate weekends. The father maintains that on the mother’s days on Wednesday, Thursday and Friday each week, the mother would drop off the children at his home at 8:00 a.m. and pick the children up at 5:30 p.m. after she finished work. The children would be cared for after school by the father or the paternal grandmother.

[11] In the summer of 2018, the younger child continued on at the French daycare to keep working on French, in preparation for commencing Junior Kindergarten in French in the fall of 2018. The elder child was cared for by the father on the father’s Mondays and Tuesdays, and by the paternal grandmother and/or the father and/or S.D. on the mother’s Wednesdays, Thursdays, and Fridays while the mother was at work. The mother disputes or does not recall this.

[12] In September 2018 the younger child commenced Junior Kindergarten at the same French school as the older child.

[13] At the end of August 2018, the mother began putting the children into daycare after school on her Wednesdays, Thursdays and Fridays with the children, rather than having the children being picked up at school by the father or the paternal grandmother, where the children would do their homework and have their dinner at the father’s home until the mother picked them up from the father after her work.

[14] From the end of August 2018 to October 8, 2019, the children resided with the father on Monday and Tuesday each week and every second weekend, and the children resided with the mother on Wednesday, Thursday, and Friday each week and every second weekend.

[15] At the end of December 2018, the mother met C.D. who lived with his three children in Wellington, Ontario. C.D.’s wife had passed away in August 2018. In February 2019, the mother advised the father that she was going to move into C.D’s home in Wellington which is a 1 ½ hour drive from Kingston. The father was concerned about the mother’s move to Wellington and how that would impact the existing schedule. He was also concerned regarding the children travelling frequently on the 401 to get to school and to return to the mother’s new residence for a number of trips each week. The mother advised that she would be able to manage driving the children to school and picking them up on her days. The father states that he did not object to the mother moving to Wellington but he did not consent to the children moving there.

[16] On February 15, 2019, the mother took a leave of absence from her employment in Kingston and began to spend time in Wellington. The mother states that she moved to Wellington on April 1, 2019. The children began to arrive late at school/daycare on a number of the days the mother was driving the children to Kingston from Wellington. The children had some full or half days where they were absent or removed from school on the days they were in the care of the mother, with no explanation given to the school. The children missed some of their extracurricular activities in Kingston when the children were in the care of the mother.

[17] On the basis of the father’s concerns regarding school and the frequent travel on the 401, on May 15, 2019, the father commenced an Application for divorce and asked for an order for shared custody of the children, with the father to have final decision-making over the children’s health, extracurricular, and educational decisions, after consultation with the mother, and that the children reside with him in Kingston.

[18] On October 8, 2019, the parties consented to a Final Order which set out a schedule that has been in place from that date to the hearing date on April 8, 2021. Pursuant to that order,

(a) The father and the mother have joint and shared custody of the children.

(b) The children reside with the father every Monday from 8:20 a.m. at school to every Friday at 8:20 a.m. at school and the children reside with the mother every Friday from 8:20 a.m. at school to every Monday at 8:20 a.m. at school. The mother’s weekends are extended from Thursday after school or to Tuesday at school if there was a holiday or a PA Day attached to the weekend. In each of the months of September, October, November, February, April, May and June the father has the children for one Friday overnight at 8:20 a.m. to Saturday at 1:00 p.m.

(c) The children reside with the mother from the last Friday immediately before the commencement of March Break until the Friday during the March Break at 8:20 a.m. and they reside with father for the final weekend of March Break from Friday at 8:20 a.m. to Sunday or until their return to school.

(d) The children reside with each parent on a week-about schedule from Friday to Friday during the Summer School Break.

(e) In even-numbered years, the children reside with the mother for the first week of the Christmas Break, and with the father for the second week of Christmas Break. In odd-numbered years, the schedule is reversed.

[19] In late December 2019, C.D. proposed to the mother and she accepted his proposal. However, 3 days later the mother rescinded her acceptance and the parties terminated their relationship on a friendly basis. In January 2020, the mother moved back to Kingston, Ontario and on January 13, 2020 she re-commenced work at her former place of employment at the daycare. The mother’s evidence is that although she requested to return to the parenting schedule that had existed prior to the Final Order dated October 8, 2019, the father would not agree to do so.

[20] Commencing in January 2020, when the mother moved back to Kingston, the parties started talking about the possibility of both parents moving away from Kingston and continuing shared parenting. They talked about moving to Edmonton, Alberta where the mother has relatives, or to Kitchener, Ontario where the father has relatives. In the meantime, the mother and the paternal grandmother were looking at buying a house in Kingston for the mother to live with the children during her parenting time with the children.

[21] In February 2020, the father went on short term disability leave due to stress arising from alleged workplace harassment against him that he maintained had gone on for at least a year.

[22] The discussions between the mother and father did not result in an agreement and on March 31, 2020, the mother advised the father that the maternal grandmother’s offer to purchase had been accepted for a house for the mother and the children in Kingston, closing on April 29, 2020, and that the mother was going to continue to reside in Kingston.

[23] S.D., now the fiancée of the father moved to Kitchener as of April 27, 2020 where she started work as a Registered Nurse, as S.D. stated she had been unable to find employment in the Kingston area.

[24] On May 1, 2020 the father advised the mother that he intended to move to Kitchener and had obtained employment there. The father’s shot-term disability ended in May 2020 and he was then in receipt of Employment Insurance at 33% of his usual income. As the father maintained that he had not been able to find an alternate nursing position in the Kingston area, he accepted a position as a Registered Nurse at a hospital in Kitchener commencing in June 2020 or alternatively he could extend the commencement to August 2020.

[25] The father continued to maintain a residence in Kingston for himself and the children when they were in his care, but travelled to Kitchener for his work.

Procedural History of this Matter

[26] On February 27, 2018, the mother started a divorce and a claim for corollary relief including custody of the two children, spousal and child support, and equalization of net family property.

[27] On May 10, 2018, the mother totally withdrew all of her claims.

[28] On May 15, 2019, the father started an Application which included a claim for divorce, and shared custody with the father to have final decision-making over the children’s health, extra-curricular activities and education, and for child support. The father requested that in the school year the children would live with him in Kingston from Sunday evening at 7:00 p.m. to Friday after school plus one out of every 4 weekends for the father, with the mother having the children with her from Friday after school until Sunday evening at 7:00 p.m. on 3 out of every 4 weekends, and a regime for holiday and summer parenting time.

[29] On July 4, 2019 the mother filed an Answer / Claim which included a claim for joint custody, that each party have no less than 40% of physical custody of the two children, that she have parenting time every weekend from Friday at 2:30 p.m. to Monday at 8:30 a.m., or alternatively that she have parenting time every Sunday at 7:00 p.m. to Friday at 3:30 p.m., and a claim for child support and spousal support and equalization of net family property.

[30] On August 13, 2020, on consent of the parties, an Order was made requesting the Office of the Children’s Lawyer to represent the two children of the marriage.

[31] On October 8, 2019, a Case Conference was held. The parties consented to a Final Order regarding custody and parenting time, which is the order which the father seeks to vary now in this Motion to Change.

[32] On October 18, 2019, the Office of the Children’s Lawyer declined to accept the case due to limited resources.

[33] On February 19, 2020, a Settlement Conference was held on the remaining issues. A Final Order was made on consent of the parties for set-off child support to be paid by the father to the mother in the net amount of $606.00 per month commencing January 1, 2021 with arrears of child support fixed at $780.00 as of December 31, 2019. The remaining issues of spousal support and property were adjourned to a Trial Scheduling Endorsement Conference on April 17, 2020. This did not take place due to Covid.

[34] In June 2020 the father tried to start a Motion to Change the Final Order made on October 8, 2019 to permit him to move the children’s residence to Kitchener. However, he advises that he was told by the court office that he could not commence a Motion to Change as there were still outstanding issues in the original Application. He maintains he was advised that he could only bring the matter forward if he brought an urgent motion. The father did bring an urgent motion seeking permission to move the children’s residence from Kingston to Kitchener, and for sole custody and primary residence. I reviewed the material filed on the motion as the Triage Judge. On June 19, 2020 I dismissed the motion as I found the matter was not urgent. I indicated that if the father wished to proceed with a request to move the children’s residence, he could bring a Motion to Change as an extension of the original Application.

[35] On August 14, 2020 the father commenced a Motion to Change for custody of the children and to permit him to move the children’s residence to Kitchener.

[36] As part of that Motion to Change, the father brought a temporary motion where he sought to be permitted to have the children start online school in September 2020. The mother opposed this motion as she wanted the children to attend school in-person in Kingston. On September 2, 2020, the father’s motion was dismissed and it was ordered that the children attend in-person at their school in Kingston until further order of the court or the written agreement of the parties. In October 2020, the father was ordered to pay costs of $3,000.00 to the mother.

[37] In October 2020, the mother filed her Response to the Motion to Change in which she sought the dismissal of the father’s Motion to Change. She asked for a return to the parenting schedule that existed prior to the Final Order of October 8, 2019.

[38] On January 12, 2021, a Case Conference was held on the Motion to Change. The matter was adjourned, on the undertaking of the father to pay the outstanding costs order made in October 2020, and a litigation schedule was set for each party to file their updated affidavits and to conduct a one hour cross-examination of the other party.

[39] On April 8, 2021, this matter was heard by me on the affidavit evidence filed by the parties, including a transcript of each party’s cross-examination, and on the oral submissions of the father and of the mother’s counsel. Each of the parties filed a Factum.

Partial Minutes of Settlement

[40] The day before the hearing of this Motion to Change, the parties entered into Partial Minutes of Settlement in which they agreed that they would continue to have shared and joint decision-making responsibility for the two children of the marriage.

[41] In the partial Minutes of Settlement, the parties dealt with four separate possible scenarios, and they agreed on the parenting time of each party, and the issue of child support in each of those four possible scenarios, with the exception of the parenting time each parent would have during the summer school holiday in two of those scenarios. Those four possible scenarios are as follows:

(1) Father is not permitted to move the children’s residence to Kitchener, but he moves his residence more than 50 kilometres from Kingston but less than a four hour drive away from Kingston.

(2) Father is not permitted to move the children’s residence to Kitchener, but father resides less than 50 kilometres from mother’s residence in Kingston.

(3) Father is permitted to move the children’s residence to Kitchener and mother continues to reside more than 50 kilometres from the father’s new residence in Kitchener.

(4) Father is permitted to move the children’s residence to Kitchener, but mother resides less than 50 kilometres from father’s new residence in Kitchener.

Issues

[42] The parties entered into Partial Minutes of Settlement which settled all matters regarding the Motion to Change except for the following three issues which the parties agreed should proceed to the hearing of the Motion to Change and be determined by the court:

(a) Should the father be permitted to move the children’s residence from Kingston, Ontario to Kitchener, Ontario?

(b) If the parties are not residing in the same location, or within 50 kilometres of each other, how much parenting time should the non-primary parent have during the children’s summer holiday?

(c) Costs.

Should the father be permitted to move the children’s residence from Kingston, Ontario to Kitchener, Ontario?

[43] As the original Application started by the father claimed a divorce and a claim for custody and access of the children pursuant to the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) as am., I find that the Final Order made on consent on October 8, 2019 was made pursuant to Section 16 of the Divorce Act and that the Motion to Change custody and access commenced by the father in August 2020 was brought pursuant to Section 17(1) of the Divorce Act prior to its amendment.

[44] The Divorce Act was amended on March 1, 2021. Section 35.3 of the amended Divorce Act provided as a transitional provision that the amended provisions of the Divorce Act apply to matters that were commenced prior to the amendments coming into force on March 1, 2021 but were not finally disposed of before March 1, 2021. The matter before me was commenced in August 2020 but was not heard until April 8, 2021 after the amendments came into force on March 1, 2021. Accordingly, my consideration of this matter will be governed by the Divorce Act as amended on March 1, 2021.

[45] The March 1, 2021 amendments to the Divorce Act introduced a whole new section on relocation in Sections 16.9 to 16.96. The following section is relevant to this case:

16.92 (1) In deciding whether to authorize a relocation of a child of the marriage, the court shall, in order to determine what is in the best interests of the child, take into consideration, in addition to the factors referred to in section 16,

(a) the reasons for the relocation;

(b) the impact of the relocation on the child;

(c) the amount of time spent with the child by each person who has parenting time or a pending application for a parenting order and the level of involvement in the child’s life of each of those persons;

(d) whether the person who intends to relocate the child complied with any applicable notice requirement under section 16.9, provincial family law legislation, an order, arbitral award, or agreement;

(e) the existence of an order, arbitral award, or agreement that specifies the geographic area in which the child is to reside;

(f) the reasonableness of the proposal of the person who intends to relocate the child to vary the exercise of parenting time, decision-making responsibility or contact, taking into consideration, among other things, the location of the new place of residence and the travel expenses; and

(g) whether each person who has parenting time or decision-making responsibility or a pending application for a parenting order has complied with their obligations under family law legislation, an order, arbitral award, or agreement, and the likelihood of future compliance.

(2) In deciding whether to authorize a relocation of the child, the court shall not consider, if the child’s relocation was prohibited, whether the person who intends to relocate the child would relocate without the child or not relocate.

[46] In determining the best interests of the child regarding relocation, Section 16.92 requires the court to also take into consideration the factors referred to in section 16 which is a new section and which states as follows:

16 (1) The court shall take into consideration only the best interests of the child of the marriage in making a parenting order or a contact order.

(2) When considering the factors referred to in subsection (3), the court shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being.

(3) In determining the best interests of the child, the court shall consider all factors related to the circumstances of the child, including

(a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;

(b) the nature and strength of the child’s relationship with each spouse, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;

(c) each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse;

(d) the history of care of the child;

(e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;

(f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;

(g) any plans for the child’s care;

(h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;

(i) the ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child;

(j) any family violence and its impact on, among other things,

(i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and

(ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child; and

(k) any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child.

(4) In considering the impact of any family violence under paragraph (3)(j), the court shall take the following into account:

(a) the nature, seriousness and frequency of the family violence and when it occurred;

(b) whether there is a pattern of coercive and controlling behaviour in relation to a family member;

(c) whether the family violence is directed toward the child or whether the child is directly or indirectly exposed to the family violence;

(d) the physical, emotional and psychological harm or risk of harm to the child;

(e) any compromise to the safety of the child or other family member;

(f) whether the family violence causes the child or other family member to fear for their own safety or for that of another person;

(g) any steps taken by the person engaging in the family violence to prevent further family violence from occurring and improve their ability to care for and meet the needs of the child; and

(h) any other relevant factor.

(5) In determining what is in the best interests of the child, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the exercise of their parenting time, decision-making responsibility or contact with the child under a contact order.

(6) In allocating parenting time, the court shall give effect to the principle that a child should have as much time with each spouse as is consistent with the best interests of the child.

(7) In this section, a parenting order includes an interim parenting order and a variation order in respect of a parenting order, and a contact order includes an interim contact order and a variation order in respect of a contact order.

[47] In the case before me, pursuant to the consent Final Order made on October 8, 2019, the parties have joint custody of the children. The amended Divorce Act replaces the concept of “custody” with “decision-making responsibility” and replaces the concept of “access” with “parenting time”. Pursuant to the transitional provision in Section 35.4 of the amended Divorce Act, unless the court orders otherwise, the parties in this case are deemed to be persons to whom parenting time and decision-making responsibility have been allocated. An interim or final order dealing with decision-making responsibility or with parenting time is a “parenting order” (See Section 16.1(1) of the amended Divorce Act.)

[48] In the Partial Minutes of Settlement filed by the parties, the parties have incorporated the new terminology from the amended Divorce Act and they have agreed that they shall continue to have shared and joint decision-making responsibility for the two children of the marriage

[49] Subsection 17(5) is an amended section of the Divorce Act which states as follows:

Before the court makes a variation order in respect of a parenting order or contact order, the court shall satisfy itself that there has been a change in the circumstances of the child since the making of the order or the last variation order made in respect of the order, or of an order made under subsection 16.5(9).

[50] The mother’s position is that the father’s decision to change jobs did not constitute a material change in circumstances as the father states that harassment of the father at his workplace was already taking place before the time that the parties agreed to the Final Order on October 8, 2019. However, the mother accepts in her Factum that the proposed relocation of the children constitutes a material change in circumstances pursuant to the new subsection 17(5.2) of the amended Divorce Act which states that the relocation of a child is deemed to constitute a material change in the circumstances of the child for the purposes of subsection 17(5).

[51] Since the Final Order was made, the father has had the children in his care during the school year for four days per week, all of which are school days and for one Friday overnight in seven months of the year. The mother has the children in her care for three days per week, two of which are weekend days and for three overnights per week, except for the seven months in which the father has one Friday overnight in each of those months. The parties had the children week on/week off in the summer pursuant to the Final Order.

[52] Given the aforesaid schedule, I find that the parties to the proceeding substantially comply with an order that the children spend substantially equal time in the care of each party as set out in a new subsection 16.93(1) in the Divorce Act as amended which states:

16.93(1) If the parties to the proceeding substantially comply with an order, arbitral award, or agreement that provides that a child of the marriage spend substantially equal time in the care of each party, the party who intends to relocate the child has the burden of proving that the relocation would be in the best interests of the child.

[53] Accordingly, I find that the father has the burden of proving that the relocation would be in the best interests of the children.

[54] In considering whether the father should be permitted to move the children’s residence to Kitchener, the court is directed by subsection 16(1) of the amended Divorce Act in making a parenting order regarding the two children in this case to take into consideration only the best interests of the children in determining whether there should be a relocation. Further, in considering the factors referred to in subsection 16(3), the court is directed in subsection 16(2) to give primary consideration to the children’s physical, emotional and psychological safety, security and well-being. Relevant information pertaining to a consideration of the factors set out in subsection 16(3) is as follows:

(a) the child’s needs, given the child’s age and stage of development, such as the child’s needs for stability.

[55] The children are now almost 8 years old and 6 years old. They are in Senior Kindergarten and Grade 2. They are still relatively young and they are at a stage of development where they do need stability. Both parties agree that the children have no special medical, educational or developmental needs.

[56] The mother argues that she was the primary caregiver for the children prior to the separation of the parties which will be further discussed later in this Endorsement.

[57] The father argues that the parenting of the children prior to separation was shared by the mother, the father and the paternal grandmother. He claims he was always involved in the care of the children. The father submits the parties had shared parenting time after separation, but he maintains he has been the primary caregiver of the children since the consent Final Order dated October 8, 2019, where he has had the children in his care for 80% of their school time.

[58] Recently, the 6 year old son was involved in a couple of incidents of bullying or being bullied at school. The mother argues that the child is anxious about the father’s proposed move and that the father talks to the children about adult issues. The father states that the child’s issue at school has been resolved and the father disputes that it had anything to do with his proposed move. He denies that he talks to the children about adult issues.

[59] The father alleges that the mother did not worry about the children’s stability and moving them from Kingston when she gave up her employment and decided to move an hour and a half away from Kingston to Wellington, Ontario in April 2019 in order to live with a new partner. The mother had difficulty getting the children to school on time on a number of days, and the children were sometimes absent for full or half days with no reason given to the school. The children were also not always at their extracurricular activities in Kingston.

[60] The mother acknowledged that she did have some difficulty on occasion getting the children to school on time when she lived in Wellington due to adjusting to the drive and “what goes along with the 401”.

[61] The mother’s evidence is that soon after the consent Final Order of October 8, 2019 was made, she realized that the new schedule was not in the best interests of the children as it was better for the children to have some school time with each parent and some weekend time with each parent.

[62] The father argues that the mother did not worry about the children possibly moving away from Kingston when in January, February and into March 2020 the father and the mother talked about the possibility of both of them moving away from Kingston and setting up separate households with shared parenting in either Edmonton, Alberta (the mother’s choice) or Kitchener, Ontario (the father’s choice). These discussions did not end in the parties coming to a mutual agreement on a joint move away from Kingston.

[63] The mother’s evidence is that she came to the conclusion that it was in the best interests of the children to remain in Kingston where the children’s home, school, friends, and activities are. The mother submits that the children have no memory of living anywhere else besides Kingston and that their stability is in Kingston.

[64] The mother argues that the father brought his Application before the court in May 2019 seeking that the children reside with him during the school week on the basis that the mother resided an hour and a half away and that the frequent travel on the 401 jeopardized the safety of the children. Now, however, the father himself is seeking to move the children 3 ½ to 4 hours away and to have the children travelling to and from Kingston on the 401 every second weekend for 7 to 8 hours.

(b) the nature and strength of the child’s relationship with each spouse, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life.

[65] Both parties acknowledge that the mother and the father are the most important persons in the lives of the children. The children love each of their parents and enjoy spending time with each of their parents. The parents love each of the children. Both parties acknowledge that the other is a good parent to the children. The children have done well in the shared parenting arrangement. Both parties acknowledge that it would be best for the children if the mother and father lived in the same location.

[66] The children are closely bonded to each other.

[67] The maternal grandmother has been an important and consistent person in the lives of the children. She lived with the parties since 2011 when the parties moved to Kitchener, and in February 2016, she moved to Kingston with the parties and the children where she continued to reside with the family. The paternal grandmother was involved in the care of the children and both parties agree that the children have a close bond with their paternal grandmother. After separation, the paternal grandmother continued to reside with the father until just recently when she moved back to Kitchener. She now has her own accommodation and will not be residing with the father and his fiancée. She lives approximately 10 minutes away from the father’s home in Kitchener.

[68] The mother alleges that the paternal grandmother decided to move back to Kitchener as the father and her fiancée were moving to Kitchener. The father states that the paternal grandmother was already planning on moving back to Kitchener prior to the father considering that move as the paternal grandmother has all her doctors in Kitchener and was finding it difficult to travel in the winter to Kitchener for her medical appointments.

[69] Since the spring of 2018, the father has been in a relationship with S.D. who is now the father’s fiancée. They are expecting a baby girl in July, 2021 who will be a half-sister to the children in this case. It is agreed by both the mother and the father that the children have a good relationship with S.D. The children have known S.D. for approximately three years now.

[70] The children also have a good relationship with the mother’s partner for the last year, M.P. and his four children.

[71] The maternal grandmother and step-grandfather reside in British Columbia. The children usually have had visits with them twice per year. The mother also has relatives in Edmonton whom the children see approximately once per year. These visits take place when the children are in the care of the mother.

[72] The father’s relatives in Kitchener include aunts and uncles, his sister, a cousin, and other relatives. The children were seeing those relatives perhaps once per year when the parties resided together in Kingston. The children have been seeing them more frequently during the last year as the father’s fiancée now resides and works in Kitchener, and the children have been spending more time in Kitchener when they are in the father’s care, including longer visits last summer.

(c) each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse

[73] The parties have been able, for the most part, to successfully parent the children jointly since the separation.

[74] The mother maintains that although she was the primary caregiver of the children prior to separation, she nevertheless agreed to a shared parenting schedule after separation as she felt it was important for the children to spend time with the father. The father disputes that the mother was the primary caregiver of the children prior to separation. He states that the childcare responsibilities were shared by the mother, the father, and the paternal grandmother as other than the mother’s 12 months maternity leave after the birth of each child, both parents were working outside the home. The father argues that his hours of work were more flexible than those of the mother which made him more available to care for the children. The father states that he agreed to a shared parenting schedule after separation so that both parents would be involved in the lives of the children.

[75] The mother did not request to move the children to Wellington when she moved there at the end of March 2019. Initially, she continued on with the same shared parenting schedule. As the commute began to affect the older child arriving at school on time and the father brought an Application before the court in May 2019, the mother agreed to adjust the schedule to remedy that problem, which is how the consent Final Order of October 8, 2019 came about.

[76] However, there have been some instances or circumstances where each party claims that the other has not been supportive of the other’s relationship with the children. Some examples follow.

[77] The mother points out that in these court proceedings, the father has claimed final decision-making and/or custody of the children on a couple of occasions, whereas since the mother withdrew her initial Application in May 2018, the mother has always claimed joint custody of the children.

[78] In late August 2018 the mother placed the children in after-school care on her days rather than continue to allow the children to go to the father’s home until she finished work. When the father complained to the mother in August 2018, about her arbitrarily changing the status quo from the schedule that had been in place since April 2018 where the children were picked up after school on the mother’s days and cared at the father’s home by either the father, the paternal grandmother or S.D., the mother had her lawyer send an email to the father that the police would be called to the school if he attempted to pick up the children from school on the mother’s days.

[79] When the mother agreed to the Final Order on October 8, 2019 in which during the school year, she basically had the children in her care for all or most of all weekends and the father had the children in his care for 4 school days each week, this change in schedule had come about because of the father’s concern about the risks of the 1 ½ hour travel each way on the 401 for the children to get to and from school from where the mother was residing in Wellington, and the elder child being late or absent sometimes for school.

[80] However, when the mother terminated her relationship with her partner in Wellington and the mother moved back to Kingston in January 2020, only 3 months after the Final Order was made, the father would not agree to return to the previous parenting situation or something along those lines where each party had the care of the children for part of the school week and each party had the care of the children every second weekend. This was so, even though the mother was available to care for the children during the week and subsequent to the Final Order, the father’s work schedule had changed so it was more difficult for him to be available for the children. Shortly thereafter, the children’s school closed because of Covid-19. At that point the mother was laid off from her daycare job and was in receipt of CERB and could have assisted in providing care for the children during the day. The mother’s position is that the father’s refusal to change the schedule was not supportive of her relationship with the children.

[81] The elder child and/or children being late for school had not occurred before the mother moved to Wellington nor is there any evidence it has occurred after the mother moved back to Kingston from Wellington. The father’s position now is that because he was primarily responsible for the children’s care during much of the school week since October 2019, he was the primary caregiver of the children since October 2019, which is disputed by the mother.

[82] The father states that he has permitted the children to spend additional time with the mother away from his home when it was his time on the schedule, such as on Mother’s Day, and on Christmas Day, but he states that the mother did not return the same gestures, such that he did not have the children on Father’s Day and he was only offered a short visit with the children at the mother’s home on Christmas Day when it was her turn to have the children on Christmas Day. The mother disputes this and states that she invited the father and the paternal grandmother to have Christmas dinner with them at her home on Christmas Day, but the father decided to only have a 15 minute visit in his vehicle.

[83] The parties acknowledge that the joint parenting of the children has gone well. However, it is the father who wishes to move his and the children’s residence to Kitchener, which the mother alleges would substantially and negatively impact the mother’s role in the lives of the children. The children’s time with the mother would be significantly decreased. The mother would have difficulty being involved in the children’s schooling or their extracurricular activities. The mother argues that the father is prioritizing his alleged necessity for a change of employment and his relationships with his family in Kitchener over the children’s relationship with their mother, even though he acknowledges that the mother is the other most important person in their lives along with himself.

(d) the history of care of the child

[84] I have set out the history of care of the children earlier in this Endorsement. The mother maintains that she was the primary caregiver of the children prior to the separation, and that she and father have had shared parenting since the separation.

[85] The father claims that the caregiving of the children prior to separation was shared by the mother and the father and the paternal grandmother and the caregiving of the children continued to be shared by the father and the mother after separation until the Final Order made October 8, 2019. The father takes the position that he has been primarily responsible for the children’s education, dental, medical and extracurricular activities since that time.

[86] The mother points to her 12 month maternity leave with each of the children and the father’s busy nursing schedule with night and day shifts in Kitchener together with his studies at that time when the children were very young. She also argues that the additional teaching positions the father took over and above his nursing job in Kingston did not leave a lot of time for the father to care for the children. The father disputes this.

[87] The mother alleges that the father has never cared for the children on his own. He has always had her help, his mother’s help, and now S.D.’s help. The father disputes that claim.

(e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained

[88] The children are 6 years old and almost 8 years old. Neither parent put forward evidence of the wishes of the children. The evidence before the court is that both children love both parents and both children enjoy spending time with both parents.

(f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage

[89] The father has French-Canadian heritage through his father, although he was not brought up in a French-speaking home. He did take some French courses at college. The father encourages and supports the children’s French heritage and he was the parent whose idea it was to register the children in a French school. The father has worked with the children on their French at his home by making up games in French for them, and by hiring and paying for a weekly French tutor for the children. The evidence is that the children are doing very well in French language studies and doing very well in school overall. If the father is permitted to move the residence of the children to Kitchener, he would enroll the children in a French school close to his home which apparently has class sizes of approximately 20 students per class.

[90] Although the mother is not fluent in French, she has been supportive of the children attending a French school in Kingston and she intends that the children would continue to attend that school. At this point she has been able to assist the children with their French homework. The mother has friends who are able to help her with French if need be. The mother is also willing to hire a French tutor for the children.

[91] The father’s evidence is that the mother has on two occasions talked about changing the children’s school. Because the father believes that the mother is less committed to a French school (ie a purely French school rather than French immersion), and the father has worked very hard with the children on their French and other school subjects, the father is concerned the children will regress if they are not in his care in Kitchener during the school week as they have been since October 2019.

[92] The mother claims that she is also involved in the education of the children, is in touch with the teachers, and assists the children with the little amount of homework they have at their young ages. The mother states that she has no plans to change the children’s school.

[93] The mother and the children appear to have attended a church in Kingston at times, but this does not seem to have been a significant part of their upbringing to this point.

(g) Any plans for the child’s care

The father’s plan

[94] The father’s plan is for the children to reside in Kitchener with him and his fiancée, S.D. who are expecting a baby girl in July, 2021. As of March 1, 2021, the father and his fiancée, S.D. have rented a four bedroom home in Kitchener, five minutes from a large park with lots of activities. The home is close to their respective places of employment. The children’s paternal grandmother with whom they have a very close bond resides 10 minutes away. The children would attend a French school which is a ten minute drive from the home. The school has a dance program which would be enjoyed by the younger child, and a lunchtime science club which would be enjoyed by the older child. There are many opportunities for extracurricular activities for the children in Kitchener.

[95] The father is more fluent in French than the mother and is better able to assist the children with their school homework. The father also does extra work with the children which he believes has resulted in the children doing very well at school.

[96] The father has a full-time permanent job as a Registered Nurse at a hospital in Kitchener. He works every Friday for 7.5 hours and every Saturday and Sunday for 11.25 hours per day. He has a position referred to as a “weekend warrior”. In this position, he works for 32 hours each week but gets paid for 37.5 hours per week with benefits, vacation and pension. The father states that this would leave him free during most of the week to be available to take the children to school and pick them up from school. He would however be working every weekend for 11.25 hours on each of Saturday and Sunday.

[97] His fiancée, S.D. is employed as a Registered Nurse at a long-term care home in a managerial position. She works 8:00 a.m. to 4:00 p.m. Monday to Friday and has the weekends off. The father states that with the combination of their working hours, he and his fiancée would not require third party care for the children. The father and his fiancée are expecting a baby in July, 2021. If the children were to reside with the father in Kitchener, he submits that the children would be able to grow up and go to school with their expected new sister.

[98] The children spent one half of the summer in 2020 in Kitchener and spent time with their paternal grandmother, aunts, uncles, cousin and her children, and some long-time friends of the father, all of whom reside in the Kitchener area. The children have no relatives, other than their mother residing in the Kingston area.

The mother’s plan

[99] The children would continue to reside in Kingston in a three bedroom home which the maternal grandmother purchased for the mother and children, with the understanding the title would be transferred to the mother when she is able to get financing. The home is near parks and other activities. The children have been living in that home when they are in the mother’s care since May 2020. The home is a 10 minute drive to their French school which is the only school the children have ever attended and which they would continue to attend. The children attend the French childcare centre attached to their school for after school care and have done so at different times over several years. The children both have friends in that daycare.

[100] The mother works at an established day care centre where she has been employed since April 2016 with the exception of a leave of absence she took from April 2019 to January 2020. The mother has been able to arrange her hours Monday to Friday from 8:30 a.m. to 4:30 p.m. This allows the mother to drop the children off at school in the morning and to pick the children up from the daycare at 4:45 p.m. The children would be in after school care from 2:45 p.m. to 4:45 each school day.

[101] The mother met her current partner, M.P. in March 2020. He has four children who are a 6 year old boy, a 9 year old girl, a 12 year old boy, and a 22 year old daughter who has a one year old daughter. M.P. has joint and shared custody of his three younger children. M.P. has his children every second weekend. The mother and M.P. have separate residences at this time. On the weekends when M.P. has his children, they spend Friday night with their respective children in their separate residences and then spend the next day all together. The children all get along together well. On the weekends when M.P. doesn’t have his children, he spends time with the mother and the two children in this case.

[102] The children would continue to be treated by their current physician and dentist in Kingston. Although Covid-19 has interfered with their usual regular extracurricular activities, the children have previously been involved in karate, gymnastics, and soccer.

[103] The mother and the children are good friends with other children and other adults in the Kingston community. They are able to visit with the mother’s family in B.C. and Alberta and their maternal grandmother visits them in Kingston as well. The mother submits that the children would be able to see S.D., their paternal grandmother and their soon-to-be-born sister and other paternal relatives when they are enjoying parenting time with their father.

(h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child

[104] Both parties agree that each of the parents is a good parent to the children and that each parent is able and willing to care for and meet the needs of each of the children.

[105] The father maintains that he had demonstrated that he prioritizes the children’s schooling and that he is more committed than the mother to ensuring that the children excel at school. The mother’s evidence, however, is that she is also very involved with the children’s school and intends the children to continue their education at their present school.

(i) The ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child

[106] The parties agree that they have generally been able to communicate and cooperate with one another on matters affecting the children.

(j) Family violence

[107] There is no evidence of any family violence in this case.

(k) Any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child

[108] This factor is not applicable in this case.

ADDITIONAL FACTORS

[109] Pursuant to the new Section 16.92 of the amended Divorce Act set out earlier, the court must also consider the following additional factors in deciding whether to authorize a relocation of the children of the marriage:

(a) the reason for the relocation

[110] In the case of Gordon v. Goertz, 1996 191 (SCC), [1996] 2 S.C.R. 27, the Supreme Court of Canada held that the reasons for the move should not be considered except in the exceptional case where it is relevant to that parent’s ability to meet the needs of the child. The new Section 16.92 in the amended Divorce Act however, expressly directs the court to consider the reason for the relocation as being one factor of a number of factors which should be considered by the court in determining whether the relocation is in the best interests of the child.

[111] In this case, the father states that he is relocating to Kitchener in order to provide stability for himself and his family, and for the benefit of his mental health. An additional benefit of the move is that he would be residing in the same location as his mother and other relatives. The father maintains that he made every reasonable effort to stay in Kingston and/or to come to an agreement with the mother on an alternate mutually agreeable relocation so the parents could continue their shared parenting.

[112] Commencing in or about the end of 2018, the father alleges that there were vicious untrue rumours circulating about him at his work which resulted in unrelenting harassment against him at work, in spite of him complaining to management. In the fall of 2019, his teaching educator position at the hospital was terminated due to a change in funding. This job had provided a lot of flexibility in terms of his ability to be available for the care of the children. He was once again in a nursing pool with 11 or 12 hour day shifts and evening shifts.

[113] The father maintains that all of these factors seriously affected his mental health. In February 2020 when it became apparent to the father that the negative rumours had spread throughout the Kingston hospital community, he took a short term leave of absence for stress reasons from his full-time work as a Registered Nurse. In his view, his once successful career was pulled out from under him. The father was subsequently advised by his physician, and by his nurse practitioner and by his counsellor that a change in his work environment would be of benefit to his mental health.

[114] In January 2020, the father and the mother began discussing the possibility of both of them and the children moving to another location as the mother had just terminated her relationship with her former partner in Wellington and she had moved back to Kingston and was arranging new accommodation for herself and the children. The maternal grandmother put in an offer on a house in Kingston to rent to the mother for herself and the children near the beginning of January 2020 but decided not to proceed with buying that house after a house inspection revealed issues.

[115] The mother was interested in moving to Edmonton where the mother has relatives and where the parties had worked and lived earlier in their marriage. It would also be closer to the maternal grandmother and step-grandfather who reside in British Columbia. The father made an inquiry to a former colleague in the health care field in Edmonton and was advised that nursing jobs were scarce in Alberta. The father did not actually apply for any jobs in Edmonton. He also came to the conclusion that the moving costs to Edmonton would be too much for him financially.

[116] The father was interested in moving back to Kitchener where he has a number of relatives, where both of the children were born, and where the parties had lived from 2011 until February 2016 when they moved to Kingston. His mother had also decided to move back to Kitchener to be closer to her doctors.

[117] The mother and the father had some discussion about the possibility of a move to Kitchener but never came to an agreement on it. Near the end of March 2020 the mother advised the father that the maternal grandmother had purchased a home in Kingston to rent to the mother with the deal closing in May 2020 and that the mother planned on staying in Kingston.

[118] The father claims that he made efforts to find employment in the Kingston area. His evidence is that he also tried to go back to work at one of the hospitals in Kingston in October 2020 with the assistance of a return to work counsellor. However, he states he was so emotionally overcome and physically ill on the drive to start his first day back that he could not bring himself to go to work.

[119] The mother alleges that the father made minimal efforts to obtain alternate employment in Kingston and in the surrounding areas as he wanted to move to Kitchener.

(b) the impact of the relocation on the child

[120] The most significant impact of a move to Kitchener for the children would be the substantial decrease in the time that they would have with their mother. During the school year, the children would only see their mother every other weekend. This would likely have serious negative implications for their relationship with the mother now and in the future.

[121] Each parent’s plan offers similar housing, schooling and activities being available to the children. The father’s plan offers the benefit of having the paternal grandmother who has been significantly involved in the lives of the children throughout their lives, living 10 minutes from the father’s home, although the paternal grandmother would no longer be residing in the same home with the children as she used to do.

[122] If the father is permitted to move the children’s residence to Kitchener, the children will be changing their city, their community, their home, their school and their friends. This will also be a substantial change in the lives of the children.

(c) the amount of time spent with the child by each person who has parenting time and the level of involvement in the child’s life of each of those persons

[123] Both parents have been very involved in the lives of the children and have spent approximately equal parenting time with the children since separation.

(d) whether the person who intends to relocate the child complied with any applicable notice requirement under section 16.9, provincial family law legislation, an order, arbitral award or agreement

[124] The notice requirement came into force just 8 days before this Motion to Change was heard. In my view, it is not applicable in the circumstances of this case. The Final Order does not prohibit relocation of either party, nor does it provide for notice to the other party of a wish to relocate. In June 2020, the father brought an urgent motion that he wanted to move the children’s residence to Kitchener, Ontario so the mother was aware of the father’s intentions. In August 2020, the father brought this Motion to Change which requested permission to move the children’s residence to Kitchener.

(e) The existence of an order, arbitral award, or agreement that specifies the geographic area in which the child is to reside

[125] There is no such order, arbitral award or agreement.

(f) the reasonableness of the proposal of the person who intends to relocate the child to vary the exercise of parenting time, decision-making responsibility or contact, taking into consideration, among other things, the location of the new place of residence and the travel expenses

[126] If the parties are living more than 50 kilometres apart, the parties have agreed in the Partial Minutes of Settlement that the children will be having parenting time with the non-resident parent every second weekend including any PA/PD day attached to that weekend during the school year. There are special provisions for holidays that have been agreed upon with the exception of the number of weeks in the summer school vacation that the non-resident parent would have with the children each year if the parents are living more than 50 kilometres apart from each other. The father’s proposal to relocate the children’s residence to Kitchener does involve significant travel time for the children every second weekend.

(g) whether each person who has parenting time or decision-making responsibility has complied with their obligations under family law legislation, an order, arbitral award, or agreement, and the likelihood of future compliance

[127] These parents have generally complied with court orders in this proceeding. There is a very good likelihood of future compliance by both parties.

Other considerations

[128] Subsection 16(7) of the amended Divorce Act deals with the maximum parenting time principle, and that a child should have as much time with each spouse as is consistent with the best interests of the child. The parties agree that it would be best for the children to have a shared parenting schedule if the parties live within 50 kilometres of each other.

[129] A further amendment to the Divorce Act, Subsection 16.92(2) states that in deciding whether to authorize a relocation of the child, the court shall not consider, if the child’s relocation was prohibited, whether the person who intends to relocate the child would relocate without the child or not relocate. Accordingly, I am not considering that in coming to a decision whether the father should be permitted to relocate the children to Kitchener.

Analysis

[130] The court is directed by Subsection 16(1) of the amended Divorce Act to take into consideration only the best interests of each of the children in this case in making a parenting order. Pursuant to Subsection 16(2), the court is required to give primary consideration to the child’s physical, emotional and psychological safety, security and well-being. None of the factors in the non-exhaustive list of factors in Subsection 16(3) is any more important than any other. Rather, the list is a guide or check-list for the court of a number of customary factors that the court should ordinarily consider when determining what is in the best interests of the child. Not all of the factors will apply in each case, and there may be other factors not in the list which may be relevant in other cases.

[131] Similarly, when the court is considering whether the relocation of a child should be permitted, none of the factors set out in in Section 16.92 of the amended Divorce Act is more important than any another and none of those factors is determinative of the case. Rather, they are a non-exhaustive guide or check-list of usual factors more specific to relocation to be considered (in addition to the factors referred to in Section 16), in determining whether a relocation is in the best interests of the child.

[132] I find on the evidence of the history of care of the children that the mother was the primary caregiver of the children prior to the separation. When the parties separated in January 2018, the children were ages 4 and 2. The mother took a 12 month maternity leave for each of the children and was at home full time during that time. That time period was a significant portion of each of the children’s lives at that point where the mother was at home caring for the children. The father was working and going to school at that time and was not as available as the mother for the day-to-day care of the children. I find the father assisted with and was involved with the care of the children prior to separation but he was not the primary caregiver of the children at that time. The mother acknowledges that the paternal grandmother who lived with them also helped out with meal preparation and some child care, but the paternal grandmother was not the primary caregiver of the children.

[133] From the separation of the parties to October 8, 2019, the parties had more equal care of the children. Subsequent to the Final Order made October 8, 2019, the parenting schedule changed but the parties still had fairly equal care of the children.

[134] The father has filed evidence from his fiancée, his former manager, his mother, other relatives in Kitchener, and friends in which they attest to the close bond that the father has with the children, the involvement of the father in the children’s lives, and the excellent care that he provides for the children.

[135] Similarly, the mother has filed evidence from her current partner, her former partner, her supervisor, and friends as to what an excellent mother she is to the children, her close bond with the children and her significant involvement in the children’s lives.

[136] On the evidence before me, I find that both parents are very good parents. Each parent has a close and loving bond with both children. Both children love their parents and enjoy spending time with each of their parents. Both parents want the best for their children and strive to provide the children with a good education, appropriate extracurricular activities, and other fun and enriching experiences for their children. The children have no special medical, educational or developmental needs. The parents each have different parenting styles, but each of them has a great deal to offer the children. Both parents acknowledge that it would be the least change for the children if both parents were to continue to reside in Kingston.

[137] I find on the evidence before me that it would be in the best interests of the children for both parents to reside in the same geographic location and to continue to have shared parenting time with the children. In the Partial Minutes of Settlement, the parties have agreed that if they reside within 50 kilometres of each other, the parenting plan would be as follows:

(a) From Monday at 8:20 a.m. to Wednesday at 8:20 a.m. in the care of the father;

(b) From Wednesday at 8:20 a.m. to Friday at 8:20 a.m. in the care of the mother;

(c) Friday at 8:20 a.m. until Monday at 8:20 a.m. shall be with the father in one week and with the mother in the alternate week;

(d) Week on and week off with each party in the summer school vacation;

(e) Special arrangements for a sharing of Christmas, March Break, Easter, and Thanksgiving.

[138] The aforesaid parenting schedule would provide the children with maximum parenting time with each parent, which would be in the children’s best interests.

[139] On the evidence before me, I am not satisfied that the father made best efforts to find an alternate work environment in nursing in Kingston or to find nursing work in other communities within driving distance of Kingston, such that shared parenting time of the children could continue.

[140] Although the parties discussed in early 2020 the possibility of a mutual decision to relocate their residences, they did not come to an agreement on that. A mutual decision to relocate would have allowed the parties to continue shared parenting in the best interests of the children. That situation is very different than the father’s proposed relocation of the children’s residence to Kitchener which would put an end to the continuation of the shared parenting to which the children are accustomed, and under which parenting plan the children have thrived.

[141] The issue before me is whether the father should be authorized to move the primary residence of the children to Kitchener.

[142] Each of the parties offers a fairly similar plan for the upbringing of the children, whether the children’s primary residence is in Kitchener, or whether it is in Kingston. The children would have appropriate accommodation in either location. The children would attend a French school in either location. They would have a French tutor to assist them, if necessary. The children would engage in extracurricular activities in either city. The mother would require after school care for the children for 10 hours per week, which is not unusual for a parent who is working. The father would be available for the children during the week but would be largely unavailable on his weekends to care for the children as he would be working long shifts.

[143] The father has done a good job of working on the children’s schooling with them and they are both doing very well. However, I find that both parents are capable of ensuring that the children continue to work hard at school.

[144] In taking into account the primary consideration to the children’s physical, emotional and psychological safety, security and well-being as set out in Subsection 16(2), on the evidence before me, I find that there would be a significant disruption to the lives of the children, and to their psychological and emotional security and well-being if the father were authorized to move the primary residence of the children to Kitchener.

[145] The most significant disruption would be the drastic decrease in the time which the children would be in the care of the mother during the school year in contrast to the current situation where the parties basically have equal time with the children. The mother was the primary caregiver of the children prior to separation. She has continued to be an equal caregiver of the children and I find that in these circumstances, the continuity of the mother’s equal care and involvement in the lives of the children is very important to the psychological and emotional security and well-being of the children.

[146] In addition to the great loss of involvement of the mother in their day-to-day lives, the children would also have other important aspects of their lives significantly disrupted by a move to Kitchener. They would be changing their school and their friends at school and in the community. They would be losing the familiarity and security of the Kingston community in which they have been raised for the last 5 years. They would have travel of 7 to 8 hours every second weekend to spend time with the mother.

[147] The father is also a very important figure in the children’s lives. He wishes to continue to be very involved in the children’s lives and believes that although a move of the children to Kitchener would cause some disruption now, it would result in long term stability for the children. The fact that the paternal grandmother has moved back to Kitchener and would be able to continue her close relationship with the children would also be of benefit. I note, however, that in the father’s plan, the paternal grandmother would no longer be living in the same household in Kitchener with the children as she has obtained her own accommodation. The children could continue the close relationship with their paternal grandmother when they are in the care of the father.

[148] Pursuant to Section 16.93 of the amended Divorce Act, the father has the burden of proving that the relocation of the children to Kitchener would be in the best interests of the children. I find on the evidence before me that the father has not proven that the relocation of the children to Kitchener is in the best interests of the children.

[149] After considering all the circumstances of this case and the factors set out in Sections 16 and 16.92 of the amended Divorce Act, and for the reasons set out in this endorsement, I find that it is in the best interests of the children that they continue to reside in Kingston and that the father’s request to move the primary residence of the children to Kitchener should be dismissed.

[150] I find that it is in the best interests of the children that the children’s French heritage which both parties have encouraged and nurtured, should be continued. There shall be an order that the parties shall not change the children’s current French school in Kingston without the prior written consent of the other or the order of this court.

[151] In addition, I find that it is in the best interests of the children that there shall be an order that neither party shall move the children’s residence from the City of Kingston without the prior written consent of the other or the order of this court.

How much time should the non-primary resident parent have with the children each summer?

[152] The parties have agreed that if the father is residing less than 50 kilometres from the mother’s residence in Kingston, the children shall reside with each party in alternate weeks from Friday at 5:30 p.m. until the following Friday at 5:30 p.m. during the summer school vacation.

[153] The father’s position had been that if he were permitted to move the primary residence of the children to Kitchener, the mother would have the children with her for 7 weeks in the summer school vacation, which would mean that he would have the children for approximately 2 weeks in the summer school vacation. The father had agreed that he would not choose the first two weeks in July which are traditionally the weeks in which the daycare at which the mother works is closed for a two week vacation.

[154] The mother’s position, if the father’s motion were dismissed, and if the father lived more than 50 kilometres from the mother’s residence in Kingston, was that the father should have the children with him for 5 weeks in the summer school vacation, with the proviso as above regarding the first two weeks of July being reserved for the mother’s parenting time with the children.

[155] The summer school vacation generally has a minimum of 8 weeks and more likely has 9 or very close to 9 weeks of vacation. If the father does not reside within 50 kilometres of the mother’s residence in Kingston, he needs to have some additional time with the children in the summer as his parenting time with the children during the school year will be substantially decreased to every second weekend during the school year. However, the mother also needs to have some summer vacation time with the children each summer, as vacation time is of a very different nature and quality than the more regimented time during the school year.

[156] I find that the appropriate allocation of the summer school vacation in those circumstances would be 6 weeks to the father, with the mother to have the balance of the summer school vacation, subject to the conditions the parties have agreed to in the Partial Minutes of Settlement. As agreed by the parties in the partial Minutes of Settlement, the exchanges would take place on Sundays at 5:30 p.m. unless otherwise agreed upon the parties in writing.

[157] Accordingly, paragraph 4 1b) of the Partial Minutes of Settlement shall have the blank in that paragraph filled in with “six” prior to the word “weeks”.

Child Support and Section 7 Expenses

[158] In their Partial Minutes of Settlement, the parties agreed that paragraph 1 of the Final Order of Justice Minnema dated February 19, 2020 regarding child support and special and extraordinary expenses should be struck and that the child support would be as set out in the Partial Minutes of Settlement in accordance with where each of the parties is living and the distance they are living apart from each other.

Order

[159] There shall be a Final Order as follows:

(1) The Applicant’s Motion to Change to permit him to relocate the residence of the children of the marriage to Kitchener, Ontario is dismissed.

(2) The Final Order of Trousdale, J dated October 8, 2019 shall be terminated.

(3) The Final Order shall incorporate therein from the Partial Minutes of Settlement dated April 7, 2021, the whole of paragraph 2, all the terms set out in paragraph 4 after the introductory sentence (with the blank in 4 I b) to be filled in with “six”), and the whole of paragraph 6.

(4) Neither party shall change the children’s school from the French school the children are currently attending in Kingston without the prior written consent of the other or the order of this court.

(5) Neither party shall move the children’s residence outside the City of Kingston without the prior written consent of the other of the order of this court.

[160] Final Order to go accordingly, with the Respondent to prepare the draft order.

Costs

[161] If the parties are unable to resolve the issue of costs between them, the parties may make written submissions on costs to me through the court’s generic email. By June 4, 2021, the mother may serve and file written submissions regarding costs of no more than four typewritten double-spaced pages, in addition to any Offers to Settle and a Bill of Costs. Within 14 days after being served with the mother’s submissions on costs, the father may serve and file his written submissions on costs of no more than four typewritten double-spaced pages, in addition to any Offers to Settle and a Bill of Costs. The mother may serve and file any reply of no more than one typewritten double-spaced page within 7 days of being served with the father’s submissions on costs. If no submissions regarding costs are received within the aforesaid times, there shall be deemed to be no order as to costs.

Justice A. C. Trousdale

Released: May 21, 2021