COURT FILE NO.: FS-19-00000109-00

DATE: 2021 09 20

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

H.R.

Applicant

S. Cocieru, for the Applicant

• and -

P.R.

Respondent

M. Conroy, for the Respondent

HEARD: August 3 to 5, 2021 with Written Closing Submissions filed August 13, 2021.

REASONS FOR JUDGMENT

Dennison J.

Overview

[1] J.R. is a very lucky boy. He has two parents who love him very much. A final order entered into on September 28, 2018, provided that J.R. would alternate weeks living with his parents. At that time, J.R.’s mother resided in Mississauga and J.R.’s father resided in Pembroke.

[2] This alternate week schedule worked reasonably well because J.R. was not of school age. His mother brought an urgent motion to change the final order of James J. in August 2020. J.R.’s mother requested J.R. reside with her permanently in Barrie as he was entering grade one. Trimble J. denied the mother’s interim motion. As a result, J.R. resided with his father for the duration of grade one, primarily because J.R. attended the same school part-time the year prior, the mother recently moved to Barrie and the final report of the Office of the Children’s Lawyer’s (“OCL”) had not yet been released.

[3] This court had the unenviable decision of determining where J.R. should reside on a permanent basis. Shortly after hearing the motion to change, I provided a very brief endorsement ordering that J.R.’s primary residency would be with his mother so the change in residency could occur before the new school year commenced. These are the detailed reasons for my decision.

Undisputed Facts

[4] The parties married on January 11, 2014, in Ukraine.

[5] Immediately after their wedding, the Respondent Father sponsored the Applicant Mother and her two children from a previous marriage (V.P. and A.P.) to immigrate to Canada.

[6] Their son J.R. was born on October 17, 2014, in Ukraine. J.R. was added to the immigration application when he was born. The Father visited Ukraine three times before the family immigrated. He first visited when J.R. was born. He later visited for another two weeks, and finally returned for five weeks just prior to the family immigrating to Canada.

[7] The Mother and three children arrived in Toronto on September 13, 2015. J.R. was approximately 11 months old. The family resided at the Father’s residence in Pembroke, Ontario.

The Separation

[8] The relationship did not work out. The parties separated in April 2016. The Mother took the children to a shelter and family law proceedings commenced shortly thereafter. The Father did not see J.R. from April 2016 until June 2016.

[9] In June 2016, the Father began spending time with J.R. In January 2018, the Father’s parenting time with J.R. was increased to one overnight visit per week and two daytime visits per week. That schedule remained in place until September 2018.

[10] A final consent order was made on September 28, 2018. In that order, the parties had joint decision-making authority with respect to J.R, and J.R. resided with both parents on a week on/week off schedule. J.R. resided in Mississauga with his mother and in Pembroke with his father.

The Motion to Change

[11] In September 2018, the Father registered J.R. in kindergarten in Pembroke. The week on/week off schedule continued. J.R. attended kindergarten at two different schools in 2019.

[12] In March 2019, the Mother commenced a motion to change the final order of James J. The Mother sought sole decision-making authority with respect to J.R., and requested J.R. reside with her while the Father have parenting time.

[13] On January 6, 2020, Valle J. ordered that the OCL be appointed. Due to the COVID-19 pandemic, there were some delays in the OCL providing their final report.

[14] On July 31, 2020, the parties attended the OCL disclosure meeting via telephone conference. A draft report was provided. The report recommended that J.R. reside primarily with his mother.

[15] In August 2020, the Mother brought an urgent motion to deal with J.R.’s schooling. The Mother’s motion was dismissed. Trimble J. ordered that J.R. reside primarily with his father and attend school in Pembroke pending the final determination of the motion to change. He found that J.R. had stability while attending school in Pembroke, whereas the Mother’s recent move to Barrie, in May 2020, meant J.R. would have to attend another school pending the determination of J.R.’s primary residence.

[16] On November 19, 2020, the OCL’s final report was served and filed with the court. Ms. MacKenzie of the OCL recommended that commencing September 6, 2020, J.R. should reside in the Mother’s primary care and attend the same school as his half-brother A.P. Ms. MacKenzie also recommended that J.R. be in the Father’s care on alternate weekends, and that all other holidays be shared equally.

[17] A settlement conference was held. All matters aside from primary residence were settled. The parties agreed they should share joint decision-making responsibility for J.R. The issue of primary residency was set down for trial.

The Trial Process

[18] The Mother and Father’s evidence in chief was presented by way of affidavit. Each party was permitted to cross-examine the other party on their affidavit. The OCL report was made an exhibit and both parties cross-examined Ms. MacKenzie about her report.

[19] Other affidavits from friends and family were filed and made exhibits. There was no cross-examination on these affidavits. The weight to be given to the third-party affidavits was left to the trial judge to determine.

[20] Before the trial commenced, the parties agreed the affidavits and the exhibits to their affidavits would be made exhibits in the trial. The parties also agreed that each party’s books of documents would be made exhibits on the trial and were admitted for the fact that the documents had been created. During the trial, the parties referred to specific documents in their book of documents by reference to the page number in CaseLines.

[21] Upon the conclusion of the evidence, the parties prepared written closing submissions. Given the volume of material filed and admitted on consent, the court instructed the parties that any document or piece of evidence they felt was relevant to this court’s decision must be cited in closing submissions. The court should not be expected to wade through a thousand pages to find one sentence that a party later submits would have changed the outcome of the trial.

Summary of the Evidence Heard at Trial

Family Relationships

[22] As noted above, the Mother has two children from her previous marriage. J.R. is very close to his half-brother, A.P., who is six years older than J.R. The Father agrees that J.R. is very close to A.P. The Father states he facilitates video chats with A.P. every day and supports the relationship.

[23] The Father is self-employed in masonry. When the father is working, his eldest daughter, R.C., who lives two doors down from him, looks after J.R. until 2:30 p.m. when the Father gets off work. J.R. spends time with R.C.’s daughter, N.C., who is three years older than J.R. N.C. resides with her mother part-time. The father states N.C. and J.R. are very close. J.R. also gets along well with R.’s 19-year-old daughter, E.C., who is like a big sister to J.R.

[24] Since the Father is from a family of ten, J.R. has many aunts and uncles and many relatives around Pembroke.

[25] J.R.’s half-sister, V.P. now resides on her own in Pembroke. It is the Mother’s position that between September 6, 2020, and November 17, 2020, the Father denied V.P., from seeing J.R. She was told that she could only see J.R. during her mother’s time. After November 17, 2020, the Father allowed V.P. some time with J.R.

[26] The Father denies that he does not foster J.R.’s relationship with her family, including the Mother’s adult daughter from another previous marriage L., and the Mother’s sister, S. The Father states that once the proceedings commenced, he did not receive any return messages from the Mother’s family.

[27] It is the Father’s position that the Mother wants nothing to do with his family and does not foster J.R.’s relationship with his family. The Father states his family would be negatively impacted if the Mother had primary care of J.R. In support of this, the Father’s affidavit claims the Mother stated she did not want to see the Father’s family while talking to J.R. The Mother explained that she wanted to spend her time with J.R. and not the Father’s family when she called to speak to J.R.

J.R.’s Schooling

[28] Prior to September 2020, J.R. attended two schools. One in Mississauga and one in Pembroke. The Mother stated J.R. did well in the school in Mississauga. However, it was pointed out to her in cross-examination, that she did not include one page of the report card which stated J.R. could benefit from daily practice at home to develop his reading and writing skills.

[29] It is the Mother’s evidence that in September 2020 the Father advised school officials in Pembroke that he had sole custody of J.R. and did not include the Mother’s information on the school file. When the Mother discovered this, she travelled to Pembroke to show the school the court order. The Father allowed the Mother to see J.R. for two hours that day at a park. The Mother states she has always been in regular contact with J.R.’s teachers.

[30] The Father denied telling school officials to withhold information from the Mother. The Father states he advised the school that no one, aside from him, could pick up J.R. because the Mother lived in Barrie. The Father admits that he failed to include information about the Mother in the school file, which was an oversight on his part. The Father states he continually sent school updates to the Mother, as he had done in the past. He did not try to withhold information about J.R. from the Mother.

[31] In October 2020, J.R. was falling behind in school. The Father testified he immediately took steps to solve the problem. He used flash cards to help J.R. learn to read. He claims the Mother did not include all the emails from the school about J.R.’s progress in an attempt to show that J.R. is not flourishing with his Father. J.R.’s report cards greatly improved over the course of the year. During the lockdown periods, R.C. would ensure that J.R. did his homework when the Father was at work. Once he got home, the Father states he would do additional work with J.R.

[32] The Father testified there was a miscommunication about missed homework in September 2020. J.R. was doing his homework via paper copies and not Google Classroom. This issue was rectified by October 2020. The Father filed emails to the teacher showing the difficulties the Father had with Google Classroom.

[33] The Father’s evidence is that the Mother’s English is very poor. She used A.P. as an interpreter with the OCL. The Father states J.R. benefits from the constant use of English in his home, as opposed to the Mother’s home.

[34] The Mother denies the Father’s suggestion that she is unable to assist J.R. with his schoolwork because her English skills are lacking. She has raised two other children, both of whom attended post-secondary school. The Mother states the Father did not make J.R. do his homework and, as a result, J.R. fell behind in school.

J.R.’s Behavioural Issues

[35] The Mother’s evidence is that the change in primary residency to the Father’s home has negatively impacted J.R. The Mother describes J.R. as sad, distant, withdrawn, and unhappy.

[36] The Father disputes this assertion. The Father states J.R. is a happy child who plays with his friends at school and church. Both parties filed photographs of J.R. spending time with each parent having a good time.

[37] The Mother states that when the change in primary residence occurred in September 2020, J.R. began to defecate in his pants again, despite being toilet trained two years prior. She tried to address this issue with the Father, but he refused to discuss it. The Mother states that at the end of January 2021, J.R. defecated in his pants 15 times in one day. The Mother stated the Father dismissed her concerns.

[38] The Mother reached out to her family doctor to see if there was a physiological reason for the defecation and it was determined there was not. The Mother then contacted a psychologist to meet with J.R. It was the psychologist’s view that J.R. suffered from anxiety.

[39] The Father states the Mother is exaggerating the toileting issues to use them as a weapon in these proceedings. The Father states J.R. had issues with toilet training that predated the change in residence. He took J.R. to see the family doctor about this issue in August 2019. The doctor told the Father it was normal for a five-year-old to have some toilet training issues.

[40] The Father states the toilet training issues were also discussed with the OCL in July 2020 and February 2020, well before J.R. primarily resided with the Father. The Father also testified he has not heard anything from the school about J.R. defecating in his pants.

[41] The Father also states the Mother did not tell him about J.R. defecating in his pants 15 times. He learned about it from the Mother’s affidavit.

[42] The Father states J.R.’s toilet training has improved in his care. The Father uses a reward system. J.R. has not soiled himself since June 7, 2021.

[43] The Mother also states J.R. has tantrums when he must return to Pembroke on Sundays because he does not want to go to his Father’s home. The Father agreed that J.R. has tantrums, but states this is because the Mother takes away J.R.’s iPad before J.R. leaves. The Father also states the Mother is not encouraging J.R. to go with his father as she should.

[44] In addition, it is the position of the Mother that it is not in J.R.’s best interests to go hunting with his father. She states J.R. has nightmares from hunting. The Father states J.R. likes hunting and that they have fun together.

Allegations of Abuse

[45] The Mother states the Father was emotionally, verbally, and physically abusive towards her during the marriage. The Father denies this. When the parties were together, Children’s Aid Society (“CAS”) became involved and noted the children were subjected to conflict between the parties and “were at moderate risk of emotional harm.”

[46] The Mother states the Father caused the bruise/scrape that J.R. received on his head in October 2020. The Father denies this allegation and notes the Mother did not raise it until her July 2021 affidavit. J.R. was picked up from school that day by the Father and driven to Barrie. Neither R.C., the teacher or the Father noticed the bruise before or during the school day.

[47] On consent, the Mother filed a recording A.P. made between A.P. and J.R. During that conversation, the following exchange took place:

A.P.: How did it happen? Tell me please.

J.R.: I was watching the T.V. too much.

A.P.: Come sit, come clear, come closer, and tell me everything. What did you say?

J.R.: I was watching T.V. too much

A.P.: You were watching T.V. too much? So Pappa did what?

J.R.: He slammed the door.

A.P.: On your head?

J.R.: -- no audible response --

A.P.: He slammed the door on your forehead?

J.R.: -- no audible response --

A.P.: O.K. and then what happened?

J.R.: I cried.

The date and time of the recording is not authenticated.

[48] A.P. saw a therapist regarding separation issues he was having with J.R. living primarily with the Father. The matter was reported to CAS because A.P. told his therapist that J.R.’s father hit J.R.’s head against the wall because he was watching cartoons. In the CAS report, A.P. said the Father hit J.R. with a door. When CAS interviewed J.R., he told CAS that the bruise happened at school. J.R. did not express any fear of his father and the CAS file was closed.

[49] The OCL report indicates that J.R. said his father spanks him. The Father denies this allegation. The affidavits from R.C. and other family members state the Father is a calm man and did not use physical discipline with his other children.

[50] The Father states the Mother’s new partner has pulled J.R.’s ear in the past. He did not report this to CAS, as it is common in Ukrainian culture.

Co-operation Issues between the Parents

[51] The Father agrees that the parties previously had co-operation issues, but states that in the past ten months they have been more co-operative. The parties agreed to joint decision-making, which demonstrates the parties are willing to co-operate to put J.R.’s best interests first. The parties entered into an agreement for shared parenting time during the summer.

[52] The parties’ prior conduct is only relevant in determining J.R.’s best interests. Both parties provided several examples where the other party did not share information or acted unilaterally. I will review some examples.

[53] The Mother stated the Father baptized J.R. without her knowledge in March 2019. She learned about the baptism via Facebook. The Mother texted the Father, but he never responded. The Mother stated she would have liked to attend the baptism.

[54] The Father admits he should have contacted the Mother about the baptism. The Father felt the Mother would disrupt the baptism because the parties were not co-operating well at the time.

[55] Both parties accuse the other of not advising them of various medical appointments. The Mother stated the Father booked a doctor’s appointment in July 2021. The Mother requested to attend, but the Father did not reply. The Father admits the Mother contacted him about this doctor’s appointment. The Father reached out again to see if she wanted to attend, but she was unable to because of her upcoming wedding. The parties agreed to keep the appointment.

[56] The Father states the Mother did not inform him that she took J.R. to a psychologist. The Mother filled out the anxiety questionnaire and the Father feels this questionnaire therefore reflected only one point-of-view. The Father states that the first time he learned about the therapy was when he received the Mother’s affidavit for her motion to change, dated May 19, 2021.

[57] The Father also states he was not told that the Mother took J.R. to see her family doctor, or that J.R. had tests done regarding his toileting issues.

[58] The Mother states the Father unilaterally enrolled J.R. at school in Pembroke, which she learned about via Facebook.

[59] The Father states the Mother’s son A.P. had been registered at the same school when he lived in Pembroke. There was no question that J.R. would attend that school.

[60] The Mother also states the Father is not co-operative in altering the parenting schedule. The Mother points to the fact that when she visited Ukraine, she asked to change the schedule so she would not go two weeks without seeing J.R. The Father declined to vary the time.

[61] The Father testified that the Mother moved to Mississauga prior to the granting of the court order in 2018 that permitted her to move.

[62] In May 2020, the Mother, her new partner, and her son A.P. moved to Barrie. The Mother stated the move allowed the family to reside in a bigger house in a nicer area for less money than in Mississauga. The drive between Barrie and Pembroke is also shorter. The Mother operates a small daycare from her home in Barrie.

[63] The Mother stated she told the Father about the proposed move during a parenting exchange in February 2020. The Mother asked the Father if they could meet at a new location. The Mother also stated she told the OCL clinician, Ms. MacKenzie, about the move. It was not the Mother’s intention to keep the move secret.

[64] In the OCL report, the Mother stated her lawyer told the Father that she had moved, and the lawyer gave him her new address.

[65] The Father denies being told about the move. The Father states the first time he learned about the move was on July 1, 2020, after he saw a Facebook post indicating the Mother had a daycare in Barrie. For two months prior to this post, the parties had continued to meet at the half-way point between Mississauga and Pembroke, despite the fact the Mother moved to Barrie in May 2020. After he learned about the move, he contacted his lawyer to alter the meeting place for parenting exchanges.

The OCL Report & Ms. MacKenzie’s Evidence

[66] Ms. MacKenzie’s OCL final report was issued on November 19, 2020. The investigation commenced on January 28, 2020. There were numerous delays because of COVID-19 and the school’s late response. Ms. MacKenzie interviewed both parents, met with J.R. twice, and observed J.R. once in each parent’s home. Collateral telephone interviews were also done with a number of parties. In addition, Ms. MacKenzie reviewed the CAS reports, an Ontario Provincial Police (“OPP”) report, various hospital records, and court documents. Her report erroneously states that the Father was charged with impaired driving.

[67] Ms. MacKenzie’s recommendation is that J.R. reside primarily with his mother. She was aware at the time she issued her report that J.R. resided primarily with the Father. The following factors contributed to her decision:

1. The Mother was the primary caregiver when J.R. was younger. The Father was not as active until after the parties separated.

2. J.R. has always been with A.P. and they have a very close relationship. J.R.’s relationship with R.C. and N.C. is an extended family relationship because of caregiving as opposed to living with them.

3. With respect to sharing decisions, the Father clearly left the Mother out with respect to the baptism. He also states the Mother cannot make good decisions.

4. The Father is dismissive about concerns raised by the Mother. For example, with respect to hunting, the Father’s view is that J.R. will be fine. Similarly, when it came to J.R. attending two schools, the Father’s view was that it was only kindergarten.

[68] At the time of trial, Ms. MacKenzie considered the report still valid as it was not yet a year old. She recognized that she does not know if there have been significant changes since issuing the report because she has not interviewed anyone further.

[69] Ms. MacKenzie observed J.R. in both homes. J.R. was shy and quiet at his father’s house. Ms. MacKenzie reported that the home was untidy and appeared in need of cleaning but was not unsafe. J.R. interacted positively with his father.

[70] When Ms. MacKenzie observed J.R. at his mother’s house, J.R. was giggling and ran into the room with his brother. J.R. appeared quite animated and relaxed. At the time of the report, J.R. was very focused and appeared connected to his mother and brother. Ms. MacKenzie did not know if that connection had changed in any way since her report.

[71] Ms. MacKenzie testified that switching schools at this age is not difficult for a child. It is much more difficult when children are in their teenage years.

[72] J.R. told Ms. MacKenzie that he misses his mother when he is with his father but did not usually miss his father when he was with his mother. J.R. described A.P. as his best friend. J.R. said when he stays with his father he sometimes plays with his cousin. J.R. likes spending time with his father in the summer when he can go outside more.

Issues to Be Decided

[73] The primary issue to be determined is whether it is in J.R.’s best interests for his primary residence to remain with his father or move to Barrie with his mother.

[74] The credibility of the parties is a key consideration. I may accept some, all, or none of the evidence of the parties on any particular issue. Some of their evidence is corroborated by supporting affidavits or the doctor’s notes. However, the evidence of those other witnesses was not tested, except for Ms. MacKenzie. Where family members provided affidavits, I have given them very little weight considering their inherent bias in favour of their relation, unless there is other documentary evidence in support of their evidence. There are aspects of both parties’ evidence that I do not find credible. My reasons for accepting or rejecting their evidence are woven into my judgment when considering what is in J.R.’s best interests.

[75] I also must determine what weight, if any, to give to the OCL report. I will deal with that issue first before considering where J.R. should primarily reside.

The OCL Report

[76] The Father submits that no weight should be given to the OCL report because it is out of date and shows bias.

[77] In particular, the Father submits that the report is biased because it focuses on the Father’s failure to notify the Mother about the baptism, but makes no comment on the Mother’s failure to notify the Father about her move to Barrie, or that she breached a court order in doing so.

[78] The Father also submits that the report gives undue weight to J.R. attending school with his brother A.P. The Father notes that the brothers will be in the same school for only one year as A.P. is in grade eight. By the time J.R. reaches high school, A.P. will have graduated.

[79] The Father also submits that the OCL did not interview J.R. in the presence of N.C. or E.C., with whom J.R. spends significant time. This fact taints Ms. MacKenzie’s comments about the close relationship between A.P. and J.R. because she did not observe N.C. and J.R. together.

[80] The OCL report also does not acknowledge that the Mother has no communication with the Father’s family and she does not wish to do so.

[81] The OCL report also does not address the Mother’s inability to assist J.R. with his reading. The report is outdated with respect to J.R.’s difficulties in school. Ms. MacKenzie did not speak to J.R.’s teacher to obtain up to date information, but rather only spoke to the school principal.

[82] The Mother submits that significant weight should be given to the OCL opinion, given Ms. MacKenzie’s expertise and her observations.

[83] Courts often give significant weight to reports from the OCL. Ms. MacKenzie is highly trained in creating reports to assist the court with respect to children’s issues. The reports are not binding on the court, but a report that provides extensive investigation with firsthand information deserves serious consideration. Reports that are i) outdated, ii) biased, iii) use poor methodology, iv) use incorrect or improper assumptions, v) contain limited or incorrect evidence, or vi) reach conclusions inconsistent with objective evidence, may be given little or no weight: Maharaj v. Wilfred-Jacob, 2016 ONSC 7925 at para. 67.

[84] I do not find the report so outdated that it cannot be relied upon for any purpose, particularly factual information, particularly as it relates to Ms. MacKenzie’s observations of J.R.’s relationship with his parents and J.R.’s relationship with A.P. I give significant weight to her observations as corroborative of other evidence in this case.

[85] I do, however, give little weight to Ms. MacKenzie’s opinion that J.R. should reside primarily with his mother, than I otherwise would, for the following reasons.

[86] First, virtually all the interviews were completed before J.R. began residing primarily with his father. J.R. has now resided primarily with his father for approximately eleven months.

[87] Second, I agree the report is outdated with respect to J.R.’s schooling. J.R.’s schooling situation has improved significantly since November 2020, and I therefore give no weight to that part of the report.

[88] Third, the report is also outdated with respect to J.R.’s friends. At the time of the report, J.R. could not identify any friends in Pembroke. However, he later told the psychologist he had seven friends. In cross-examination, Ms. MacKenzie agreed that making friends is important, but she stated this would not impact her ultimate decision.

[89] Fourth, Ms. MacKenzie’s report considered both decision-making responsibility and parenting time. Ms. MacKenzie agreed that she did not separate those areas in her investigation. By the time of trial, the only issue remaining was parenting time.

[90] I do not find the report flawed because Ms. MacKenzie did not see J.R. interact with N.C. As Ms. MacKenzie stated, N.C. did not reside with J.R. at the father’s home. Instead, N.C. resides part-time with her mother, R.C., so J.R. and N.C. see each other regularly but do not reside together. The situation is therefore different than with A.P. J.R.’s comments about his relationship with A.P. and N.C. reflect the nature of their respective relationships. I find that J.R. is much closer to A.P. than he is to N.C.

[91] I also do not find the error regarding whether the Father was charged with impaired driving to be significant. The documentation provided by the police was confusing and could lead anyone not familiar with this type of document to believe he had been charged. Moreover, Ms. MacKenzie gave no weight in her report to the fact he was charged with impaired driving, which is appropriate given that he had no criminal convictions.

[92] I also do not find Ms. MacKenzie exhibited bias because she did not refer to the Mother’s move, but instead relied heavily on the Father’s failure to notify the Mother of J.R.’s baptism, which was a significant event. Ms. MacKenzie was under the impression the Father knew of the move. However, she testified it would not have altered her decision had she known otherwise. The Father’s behaviour with the Mother excluded her from an important event in their son’s life. This is different from the move, which did not impact the Father’s role with his son. The failure to notify the Father was, however, relevant to the ability of the parents to communicate.

Legal Principles

Material Change in Circumstances

[93] There was a previous court order in place. Therefore, the court must be satisfied there has been a material change of circumstances that affects or is likely to affect the best interests of the child: Children’s Law Reform Act, R.S.O. 1990, c. C.12, s. 29 (“CLRA”).

[94] The Supreme Court of Canada set out a two-step process in Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] 2 SCR 27, at para. 49, in determining whether to grant a motion to change. First, the parent applying for a change in custody must demonstrate there is a material change in circumstances. If this threshold is satisfied, the court “must embark on a fresh inquiry into what is in the best interests of the child, having regard to all the relevant circumstances relating to the child’s needs and the ability of the respective parents to satisfy them.” This process is somewhat modified based on the new amendments in s. 16 of the Divorce Act, R.S.C. 1985, c. 3 (2nd Support).

Best Interests

[95] Although there have been recent amendments to the Divorce Act, the sole focus remains on the best interests of the child. In determining whether the best interests of the child require decisions to be made primarily by one parent or jointly by both parents, the new language of s. 16(1) of the Divorce Act states the court should take into consideration only the best interests of the child in making a parenting order. The Divorce Act also lists a number of factors to consider, but states that when considering these factors, the primary consideration shall be each child’s “physical, emotional and psychological safety, security and well-being”: s. 16(2).

[96] Subsection 16(3) of the Divorce Act provides a non-exhaustive list of factors for the court to consider in determining the child’s best interests. These factors are similar to the factors set out in s. 24 of the CLRA. Section 16(3) reads as follows:

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.

[97] In determining the best interests of the child, the court shall not take into consideration the past conduct of any person unless it is relevant to the exercise of parenting time, decision-making responsibility or contact with the child: Divorce Act, s. 16(5); CLRA, s. 24(5).

[98] The Divorce Act also states that a child should have as much contact as possible with a parent as is in the child’s best interests: Divorce Act, s. 16(6); see also CLRA, s. 24(6).

Factors to Consider when Relocation is Involved

[99] In Gordon, at paras. 49-50, the Supreme Court of Canada set out the factors to be considered in determining if relocation is in the best interests of the child:

1. The parent applying for a change in the custody or access order must meet the threshold requirement of demonstrating a material change in the circumstances affecting the child.

2. If the threshold is met, the judge on the application must embark on a fresh inquiry into what is in the best interests of the child, having regard to all the relevant circumstances relating to the child's needs and the ability of the respective parents to satisfy them.

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

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

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

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

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

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

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

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

(d) the views of the child;

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

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

(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?

[100] The amended Divorce Act has now codified the factors that the court is to consider in requests for relocation. The Divorce Act, at s. 2(1), defines relocation as follows:

relocation means a change in the place of residence of a child of the marriage or a person who has parenting time or decision-making responsibility — or who has a pending application for a parenting order — that is likely to have a significant impact on the child’s relationship with

(a) a person who has parenting time, decision-making responsibility or an application for a parenting order in respect of that child pending; or

(b) a person who has contact with the child under a contact order[.] 

[101] The Divorce Act’s new relocation provisions require specific advance notice by a person with decision-making authority: s. 16.9(1). The notice must set out the expected date of the relocation, the address of the new residence, and a proposed plan for parenting time and decision-making: s. 16.9(2). These substantive requirements have been satisfied by the Mother in this application.

[102] Section 16.92(1) of the Divorce Act sets out additional factors that must be considered when relocation is requested:

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.

[103] In deciding whether to authorize the relocation of the child, the court is not to consider, if the relocation is denied, whether the party seeking the relocation would relocate without the child or not relocate: Divorce Act, s. 16.92(2).

[104] Where the court order provides that the child of the marriage spends substantially equal time in the care of both parents, the party who intends to relocate has the burden of proving that it would be in the best interests of the child: Divorce Act, s. 16.93.

Issue #1: Is there a Material Change in Circumstances?

[105] I am satisfied there has been a material change of circumstances. J.R. is now attending school full time and cannot attend two different schools as was done in the past. Indeed, neither party really refuted this material change. The previous court order provided for a week on/week off schedule. This order was not meant to last forever. This schedule worked when J.R. was little and could attend two different kindergartens, but J.R. now needs the stability of attending one school. The week on/week off schedule cannot continue as it is not in J.R.’s best interests.

Issue #2: Is it in J.R.’s Best Interests to Reside with his Mother or Father?

[106] Having found there has been a material change in circumstances, it is necessary for the court to determine whether it is in J.R.’s best interests to reside with his mother in Barrie or his father in Pembroke.

[107] J.R. is a six-year-old boy who was behind in school and now is average in school. Both parents agree that J.R. needs stability. Both parents state they can provide this stability.

[108] I do not accept the Father’s submission that the Mother is not likely to provide the stability J.R. needs because she has moved twice and will likely move again. The Mother explained the reason for moving to Barrie. It provided her family with a better lifestyle. The family was able to afford a larger house for less money. The Mother is marrying her partner and has started a business in Barrie. It is speculative to suggest the Mother will move again.

[109] The Mother and her new partner will live with J.R. and A.P. The children will attend the same neighbourhood school. The Mother will be able to care for J.R. whether schooling is in person or not. The Mother is operating a home daycare and will be able to care for J.R. before and after school.

[110] If J.R. resides with his father, he will continue to go to R.C. for childcare when the Father works. He will continue to attend the same school as he attended last year.

Relationships with Parents and Extended Family including History of Care

[111] I have also considered the relationship J.R. has with his parents, siblings, and extended family. Both parents clearly love J.R. and have meaningful relationships with him.

[112] I give significant weight to the fact that J.R.’s mother was the primary caregiver of J.R. for the first four years of his life. The Mother has a very close bond with J.R. In his first year of life, J.R. lived in Ukraine with his mother and siblings. His father was able to visit when J.R. was born on October 17, 2014, and twice more for a total period of seven weeks. The family arrived in Canada and lived together from September 2015 to April 2016 (8 months) when the parties separated. During this time the Mother was the primary caregiver for J.R.

[113] When the parties separated, the Father did not see J.R. from April 2016 to June 2016. I do not accept the Father’s explanation that he was told by police not to contact the Mother. There were no outstanding criminal charges or restraining order that prevented contact. The Father sought parenting time with J.R. after the Mother contacted him. From June 2016 to September 2018, the Father spent parenting time with J.R. approximately three times a week.

[114] From September 2018 to September 2020, J.R. had equal parenting time with his parents. As of September 2020, J.R. lived primarily with his father. In January 2021, when the schools were not in person, he spent equal time with his parents.

[115] I also give significant weight to the importance of maintaining J.R.’s relationship with his half-brother A.P. J.R. described A.P. as his best friend. Ms. MacKenzie noted that there was a strong bond between J.R. and A.P., and that A.P. does activities with J.R. because he wants to, not because he has to. She also noted that the age gap of six years between the brothers did not interfere with their connection. The brothers’ love for each other is demonstrated by A.P. suffering emotionally when his brother resided primarily in Pembroke, as shown by the therapist reports. I give significant weight to the bond between these two siblings in determining what is in J.R.’s best interests.

[116] I accept the Father’s evidence that he recognizes and fosters the relationship between J.R. and A.P. through daily phone or video calls. A.P. is welcome to spend time with J.R. when A.P. visits his sister in Pembroke, or to stay with the Father and J.R. during the summer. However, this is not the same as residing with your sibling, as J.R. has done for five of his six years.

[117] The Father submits that J.R. has a close relationship to N.C. By the way J.R. described his relationship with N.C., it is clear it is not as close of a relationship as with A.P. There is no dispute that J.R. spends a lot of time with N.C. when she is with her mother, R.C. However, as noted by Ms. MacKenzie, this is an extended relationship arising from caregiving arrangements and not the result of J.R. residing with N.C.

[118] J.R. is obviously very close to R.C. as she looks after him when his father is at work. She has assisted him with his homework on a daily basis during the COVID-19 lockdown, as she is currently not working. J.R. also has a meaningful relationship with his half-sister V.P. who resides in Pembroke.

[119] The Mother submits that the Father’s other extended family is not very involved with J.R.’s life. I agree, the Father only provided two examples of the extended family spending time with J.R. They went to a party in Ottawa and came over to the house once. I find that while the Father has extended family in the area, J.R.’s primary relationships are with R.C., N.C. and E.C.

[120] I am concerned about the Mother continuing to foster J.R.’s relationship with R.C., N.C. and E.C. Therefore, I am of the view that additional clauses must be put in place to ensure that J.R. maintains a meaningful relationship with his father’s family. The Father filed a text message in which the Mother stated, “Please make sure that I don’t see your relatives in the camera while I am talking to my son. I do not wish to see them.” The Father submits that the Mother’s plan of care is void of his family members. R.C. stated she is worried of what will happen to her relationship with J.R. if the Mother is given primary care.

[121] I do not accept the Mother’s submission that the Father does not foster relationships with her family, including allowing V.P. to visit J.R. The Father submits that V.P. cherry-picked his messages. While there has been some tension between the families, I am satisfied on the balance of probabilities that the Father would continue to facilitate contact as demonstrated by the numerous text messages filed with the court.

[122] With respect to J.R.’s friends, I note that while the OCL report stated J.R. did not have friends in Pembroke, the report was prepared before the 2020/2021 school year. In the psychologist’s report dated March 2021, it notes that J.R. likes his school where he has seven close friends. The OCL report also notes that J.R. has friends in Barrie as well.

Supporting Each Parent’s Role in J.R.’s Life

[123] I have significant concerns about the Father’s willingness to support the Mother’s role in J.R.’s life, given that he did not tell the Mother about J.R.’s baptism until after the fact. I recognize the Father apologized for his actions. However, his conduct shows a blatant effort to exclude the Mother from an important event in J.R.’s life. It is fundamentally different than the Mother moving. The move did not affect the Father’s involvement in J.R.’s life. The Mother’s move is, however, relevant to the communication between the parties as I will discuss below.

[124] Another example of the Father’s disregard was his enrollment of J.R. in grade one in Pembroke. I find that the Father did not provide the school with the Mother’s contact information for the fall of 2020. The Father states this was an oversight on his part because in the past when J.R. attended two schools both parents just kept each other apprised of what J.R. was doing. Even accepting it as an oversight, failing to provide the Mother’s contact information shows a lack of concern for the Mother’s involvement in J.R.’s life.

[125] The Mother’s conduct is also not perfect in keeping the Father involved in her son’s life, as demonstrated by her conduct when dealing with J.R.’s toileting issues.

[126] Much was made about J.R.’s toileting accidents and how each party handled the situation. The Father submits that the Mother did not put J.R.’s best interests first, but rather tried to use J.R.’s accidents to demonstrate that J.R. was suffering from anxiety and did not want to stay with his father. The Mother submits that the defecation was the result of J.R. having to go back to his father’s, and that the Father did not take it seriously.

[127] For the following reasons, I find that the Mother has embellished her evidence that J.R. defecated in his pants 15 times in one day. First, in the psychologist’s report, there is no mention of J.R. defecating in his pants 15 times a day. Rather, the concern is that he is withholding his stool and defecating in his sleep. Second, the Mother’s evidence about J.R. defecating in his pants 15 times in one day at the end of January 2021 is inconsistent with her evidence that J.R.’s issues were better when they had shared parenting. In January 2021, the parents had shared parenting.

[128] I find the Mother did not properly communicate with the Father about J.R. defecating 15 times in his pants. I accept the Father’s evidence that he learned about this situation when he received the Mother’s affidavit. The Mother took J.R. to a doctor and a therapist without advising the Father. I give no weight to the doctor’s opinion, as the majority of the information given to the doctor was provided by the Mother without any input from the Father. The Mother’s conduct causes me serious concern about her willingness to include the Father in decisions involving J.R. and weighs against granting the Mother primary residency.

[129] I also do not accept that the Father did not take the matter seriously. It is clear from the OCL report that Dr. Gauthier, the family doctor, stated the Father expressed concern over J.R. not being fully toiled trained, but Dr. Gauthier’s opinion was that toileting issues are not uncommon for J.R.’s age.

[130] I do not find that the Father is not able to meet his son’s medical needs based on the Mother’s evidence. The Father took J.R. to the doctor about his toilet training issues in 2019. He testified toileting was going well, through reminding J.R. to go to the bathroom before bed and by utilizing a reward system. He advised the OCL about the issues and explained how he was dealing with it. Moreover, the Father did not receive any indication from the school or R.C. that J.R. was defecating during the day.

[131] The Father booked J.R. a doctor’s appointment after learning the mother’s allegation that J.R. defecated 15 times in one day. While the Mother neglected to tell the Father of this incident, the Father showed a similar disregard for the Mother in booking this appointment without consulting with her. Although, he did tell her about the appointment before it occurred, unlike the Mother who failed to mention the incident until her affidavit. Regardless, the Father scheduled the appointment right before the Mother’s wedding so that she could not attend. He stated this was a scheduling error. Again, assuming it was an error, it shows a lack of consideration for the Mother’s schedule.

[132] Neither party put J.R.’s best interests first when dealing with his toileting issues. Thankfully, it appears that J.R.’s toileting issues have resolved as of June 7, 2021.

Mother’s Allegations of Abuse

[133] The Mother’s affidavit states that the Father was emotionally, verbally, and physically abusive towards her. Yet, she did not raise any abuse concerns in her s. 35.1 affidavit. The allegations are overly broad and therefore I give them no weight in my assessment. There is no evidence that either J.R. or the Mother fear for their safety. The Mother does not submit that the Father is an unfit parent.

[134] At the time of separation, it is clear there was emotional hostility between the parties. As noted in the CAS report, the children were exposed to significant conflict between the parties and were “at moderate risk for emotional harm.”

[135] I am not satisfied on the balance of probabilities that the Father slammed the door on his son’s head. With respect to the audio recording, I note that the audio recording was surreptitiously recorded. There are good policy reasons for excluding such recordings: Paftali v. Paftali, 2020 ONSC 5325, at paras. 54-55.

[136] In this case, the parties consented to having the recordings admitted as evidence.

[137] I find that the audio recording has limited probative value for two reasons. First, in the audio recording A.P. leads J.R. in his questioning. A.P. asks J.R. “How did it happen?” and asks J.R. to move closer. J.R. says he “was watching the T.V. too much.” A.P. then asks, “So Pappa did what?”, to which J.R. states, “He slammed the door.” A.P. then suggests, “He slammed the door on your forehead?” To this question, there is no audible response from J.R. A.P. then asks what happened and J.R. says he cried.

[138] Second, the recording was made at a time when A.P. did not want to be separated from his brother. A.P. loves his brother very much. I am not prepared to find that the Mother manipulated A.P. or J.R. to give the audio recording. Ultimately, I cannot determine if what J.R. said was true or if the recording is A.P.’s attempt to find a reason for them to stay together. I do not, however, fault the Mother for having the matter investigated.

[139] I do not find the Father hit J.R. with the door as claimed. The Mother testified the bruise appeared to be a couple of days old. I find it difficult to believe that if the bruise was indeed a couple of days old, neither R., J.R.’s teacher or the Father noticed the bruise. J.R. told his teacher he received the bruise while at school. The CAS investigated and J.R. raised no concerns or fears, so CAS closed the file.

[140] In addition, V.P. told the OCL she never witnessed anything physical while she lived in the Father’s household. Similarly, R.C. stated her father did not use physical discipline on her when she was a child. J.R. told Ms. MacKenzie his father spanked him. Whether the Father did or did not is of no consequence, since there was no concern that the discipline rose to the level of abuse.

[141] Finally, I do not agree with the Father’s submission that the Mother is unwilling to support the development of J.R.’s relationship with him because she told the psychologist he hit J.R., but she agreed in court that she could not say with certainty how J.R. was injured. The Mother is entitled to her beliefs and to express those beliefs when seeking treatment for J.R. Where she erred was not including the Father in the discussion.

[142] The Father submits that the Mother’s new partner abused J.R. by pulling him by the ear. In support of this allegation, the Father relies on a journal entry he made. There is no independent evidence as to when the journal entry was made. The Father did not report this to Ms. MacKenzie during any of the interviews. I therefore give this evidence no weight in my analysis.

Schooling

[143] The ability of the parent to assist the child with homework and the degree to which the parent can participate in the child’s education are relevant factors to consider in determining J.R.’s primary residence.

[144] The Father submits the Mother will not be able to assist J.R. given her lack of English language skills. While this is a concern, the Mother has the educational background to indicate she is more than capable of learning the English language. There are many parents whose first language is not English, who successfully support their children in school. Arguably, the fact the child will learn a second language is also an educational benefit. Indeed, the Mother’s other grown children have been successful in school and completed post-secondary degrees.

[145] I have concerns about the Father’s ability and willingness to support J.R. with his schoolwork. In the OCL report, the Father stated he worked a lot, so he did not do much schoolwork with J.R. Rather, he said R.C. assisted J.R. and that “it was just kindergarten.” He believed attending online schooling for kindergarten was optional.

[146] When grade one commenced, the Father testified it took a month to resolve the issues with J.R.’s schoolwork and Google Classroom. I do not find this a satisfactory explanation given that classes were in person in September 2020. I agree, however, that once it became apparent J.R. was behind in school, the Father took steps to work with J.R. to improve his reading.

[147] In the past, the Father took J.R. out of school when he wanted to. He agrees that he has taken him to work to teach him how to lay bricks. He also took him hunting in November 2020, although the Father states he and J.R. worked tirelessly with flashcards on the hunting trip. The Father also agreed that while school was online from April 2021 to June 2021, R.C. supervised most of J.R.’s homework while he was at work. He would do additional work with J.R when he got home.

[148] I also recognize J.R. transferring schools will result in a period of instability. The impact is not as great as it might otherwise have been due to COVID-19. J.R. did not attend school in person in March 2020 due to COVID-19. He attended school beginning in September 2020 until in person schooling ended due to COVID-19 in January 2021. While students returned briefly to the classroom, in person schooling ended again from April 2021 to June 2021. As such, J.R. did not have the benefit of a full year of in person education. He also did not attend Google Classroom, so he was not with his classmates during this time. It appears J.R. has made some friends at his Pembroke school, but he has also made some friends in Barrie.

[149] Children, particularly younger children, are adaptable. The disruption to J.R.’s life at this point is less significant than to the life of a teenager: Reeves v. Brand, 2018 ONCA 263, 8 R.F.L. (8th) 1, at paras. 30-31. While there will likely be a period of adjustment, the court must focus on what is in J.R.’s best interests in the long term. I also note that, in this case, J.R. will have the love and guidance of his older brother, A.P. to assist him in adjusting to the new school for the first year.

J.R.’s Preference

[150] J.R. told Ms. MacKenzie he misses his mother when he is with his father but does not usually miss his father when he is with his mother. At the time, J.R. was six years old. Given J.R.’s age, I give little weight to his preferences: B.G. v. R.G., 2014 ONSC 7500, at para. 63; I.S. v. J.W., 2021 ONSC 1194, at para. 165.

[151] I also do not give any weight to the video of J.R. having a tantrum as indicating J.R.’s preference to reside with his mother. Children have tantrums for many different reasons and at this age a child will often tell each parent that they want to stay with that parent. I am somewhat concerned about the Mother’s comments. While not discouraging the child to go with his father, her comments do not reflect the encouragement one would hope to see. Rather she comments that going with the Father is not for too long: Melikov v. Galkina, 2020 ONSC 3228, at paras. 26 and 80.

The Parents’ Ability to Communicate and Co-operate with One Another

[152] There have been issues with respect to communication between the parties. It appears the communication has improved, but both parties must be vigilant to ensure that they continue to communicate in J.R.’s best interests.

[153] I will review some of the communication issue. For example, the Father failed to tell the Mother about the baptism, as discussed above. The Father also did not communicate his intention to continue taking J.R. to church. It should not be surprising to the Mother that J.R. attends church given that the family attended church while they were together for a least a period of time. Nonetheless, the matter should have been discussed with the Mother, particularly when the Father is not aware of the Mother’s religion. The scheduling of the doctor’s appointment this summer is another example of poor communication by the Father.

[154] I also find that the Mother has not communicated openly with the Father. However, I do not find that the Mother moved to Mississauga in 2018 prior to the court order, as the Father suggests. This is speculation on the Father’s part, the fact that the Mother had enrolled A.P. in Mississauga before the move does not support position as the Mother was hoping to be permitted to move to Mississauga.

[155] I do find the Mother did not tell the Father prior to moving that she was going to live in Barrie. Her evidence on this point was inconsistent. She initially said she told him at a drop off, but in cross-examination she stated her lawyer told him repeatedly that she was moving. If the Father was aware of the move, it would have made sense to change the drop off location, but this change did not occur until July 2021 when the Father states he learned the Mother had moved.

[156] I also accept the Father’s evidence he did not know about J.R. defecating in his pants 15 times until he saw the Mother’s May 2021 affidavit. This is reflected in the text message where the Father advised that he planned to take J.R. to the doctor, and the Mother replied she took J.R. to the doctor in January 2021. There were no texts or emails filed to demonstrate the Father was told about the doctor’s or therapist appointment scheduled by the Mother.

Culture and Heritage

[157] Church is very important to the Father and J.R. has had significant involvement in the church. Farming and hunting are also important parts of the Father’s family heritage. The Mother has not indicated how she will foster J.R.’s involvement in these areas. This causes the court some concern. Efforts must be made by the Mother to foster these activities.

[158] The Father has indicated that he will do what he can to foster J.R.’s knowledge of the Russian language and his heritage. Interestingly, the Father does not even know the Mother’s religion, which also causes the court some concern as to the extent of the Father’s knowledge of the Mother’s heritage.

Conclusion

[159] Neither parent is perfect. Both have tried to downplay certain personal behaviours and emphasize bad behaviour of the other party. I believe that both parents truly want what is in J.R.’s best interests. They just disagree as to what that is.

[160] This was a difficult decision. Ultimately, I am satisfied on the balance of probabilities it is in J.R.’s best interests to reside with his mother and have extensive parenting time with his father. I give significant weight to the caregiving role the Mother has had in J.R.’s life and J.R.’s relationship with his half-brother A.P. I also give some weight to the Father’s conduct with respect to the baptism and Ms. MacKenzie’s opinion that it is in J.R.’s best interests to reside with his mother.

[161] As noted above, I have concerns regarding the Mother’s willingness to communicate with the Father and his family. The Mother must be vigilant in ensuring that she keeps the Father apprised of all relevant information regarding J.R. I am adding some additional terms to ensure that occurs. The Mother also must be vigilant to foster J.R.’s relationship with R.C., N.C. and E.C. I am adding additional terms regarding those relationships as well.

[162] My final order is as follows:

1. J.R., shall primarily reside with the Applicant Mother in Barrie, Ontario.

2. The Respondent Father shall have liberal parenting time with J.R. as agreed to by the parties.

3. The Respondent Father shall pay child support to the Applicant Mother in accordance with his income and the Federal Child Support Guidelines, SOR/97-175, until such time that:

a) J.R. becomes 18 years of age and ceases to be in full-time attendance at an educational institution;

b) J.R. becomes 23 years of age;

c) J.R. marries or otherwise withdraws from parental control;

d) J.R. dies; or

e) The Respondent Father dies, provided that the Respondent Father has a life insurance policy in good standing.

4. The parties shall contribute their proportionate shares towards J.R.’s extraordinary expenses.

5. The parties shall not incur any special or extraordinary expenses without prior consultation and written consent of the other. If a party unilaterally incurs a special or extraordinary expense, that party shall bear the full cost of same.

6. The party who incurs the agreed upon expense shall provide proof of same to the other forthwith and the other party shall then compensate the party who incurred such expense for his or her proportionate share therefore within fifteen (15) days from being presented with such proof or before the expense is due.

7. The Applicant Mother may claim the Canada Child Tax Benefit including the National Child Benefit Supplement and the Universal Child Care Benefit, the refundable Children’s HST credits and the eligible dependent credit for the child. These benefits will not affect the quantum of child support payable by the Respondent Father.

8. By June 1 of each year, the parties shall provide to each other their respective Notices of Assessment for the purposes of recalculating their child support obligation and their proportionate share towards J.R.’s extracurricular activities.

9. Unless the Support Order is withdrawn by the Director of the Family Responsibility Office, it shall be enforced by the Director and amounts owing under the Support Order shall be paid to the Director, who then pays them to the person to whom they are owed.

10. For as long as child support is to be paid, the parties, must provide updated income disclosure to each other, within 30 days of the anniversary of this Order, in accordance with s. 24.1 of the Child Support Guidelines.

11. This Order bears interest at the rate of 3% per annum effective from the date of this Order. Where there is a default in payment, the payment in default shall bear interest only from the date of default.

12. Both the Applicant Mother and the Respondent Father shall have the right to information regarding the child’s school progress, as well as to the release of information pursuant to the Personal Health Information Protection Act, 2004, S.O. 2004, c. 3, Sched. A (“PHIPA”) regarding the child’s heath and general wellbeing. The Respondent Father and Applicant Mother may provide a direction and consent to disclose personal health information pursuant to the PHIPA, authorizing the other party to contact, teachers, school officials, doctors, dentists authorizing them to provide information directly to that party. The other party shall sign and return the authorization within ten days of receipt.

13. The Respondent Father has the right to communicate with the child and the child has the right to communicate with the Respondent Father in private, by email, Facetime, or any other electronic means, at any reasonable time when the child is in the Applicant Mother’s care.

14. R.C., E.C. and N.C. have the right to communicate with the child in private by email, Facetime, or any electronic means, at any reasonable time when the child is in the Applicant Mother’s care.

15. The Applicant Mother is not to change the child’s residence. If the Applicant Mother intends to move, she shall give the Respondent Father sixty days written notice of her intention to move and shall include the new intended address.

Costs

[163] The parties are encouraged to work out the issue of costs between themselves.

[164] If the parties are unable to resolve the issue of costs, the Applicant Mother shall serve and file written submissions of no more than two pages, double-spaced, twelve-point font, with relevant case law, a detailed bill of costs (if not already provided), and any offers to settle, within ten days of receipt of this endorsement.

[165] The Respondent Father may file a response consisting of written submissions of no more than two pages, double-spaced, twelve-point font, with relevant case law and a detailed bill of costs (if not already provided), and any offers to settle, within ten days receipt of the Applicant Mother’s submissions.

[166] The Applicant Mother may file a one -age reply, double-spaced, twelve-point font, within five days of receipt of the Respondent Father’s submissions on costs.

Dennison J.

Released: September 20, 2021