COURT FILE NO.: FC1674/12-3

DATE: October 18, 2021

ONTARIO

SUPERIOR COURT OF JUSTICE

FAMILY COURT

BETWEEN:

Ahmad Mohamed Zorab

Kelli McPhail for the Applicant

Applicant

• and -

Arwa Nehad Saleh Zourob

Genevieve M. Samuels and Courtney Davis for the Respondent

Respondent

HEARD: September 20, 21, 22 and 23, 2021

TOBIN J.

REASONS FOR JUDGMENT PART I

Introduction

[1] In N. v. F., 2021 ONCA 614, Hourigan J.A. observed, at para. 1, that:

Trial courts are frequently called upon to make difficult decisions about the future care of children due to the break-up of parental relationships. Trial judges are parachuted into a family, made privy to its most intimate details, and charged with determining the best course for the children's future in the face of the parents' opposing viewpoints. ...

[2] This is one of those cases. The respondent (“mother”) asks that she be allowed to move the parties’ child from London to Winnipeg. The applicant (“father”) wants the child to remain in London and be in his care.

[3] Relocation cases are difficult cases. In Reeves v. Brand, 2018 ONCA 263, para. 17, Laskin J.A. wrote:

Relocation or mobility cases, where one parent wants to take a child and move some distance away from the other parent, are among the most difficult cases in family law. If the custodial parent is permitted to move with the child, inevitably the relationship between the non-custodial parent and the child will be affected and may suffer. Typically the court must balance the custodial parent's legitimate interest in relocating with the non-custodial parent's legitimate interest in maintaining a relationship with the child. But in every case, the ultimate question is what is in the best interests of the child.

[4] With recent amendments to the Children's Law Reform Act, R.S.O. 1990, c. C.12 (“CLRA”), a more detailed procedural and substantive structure has been established to govern relocation cases.[^1] Even with these amendments, the challenges recognized in Reeves remain.

Preliminary Matters

1. Under which Act are the parenting orders being requested in this case?

[5] This case was started by the mother’s motion to change the order of Mitrow J. dated September 14, 2014 (“Mitrow Order”). That order does not recite under which Act it was made.

[6] At the opening of this trial, counsel were asked which Act governed this proceeding. Both stated that the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.) was to be applied.

[7] It was necessary to review the Mitrow Order to determine if counsel were correct.

[8] The Mitrow Order is a final order that dealt with parenting issues. It also contained a provision that the parties’ divorce was to proceed on an uncontested basis. The divorce order was granted on November 28, 2014, approximately two and a half months after the Mitrow Order was granted.

[9] As these parties were not divorced when the Mitrow Order was made, the court could not then make a final order for corollary relief under the Divorce Act. A final order for corollary relief under the Divorce Act cannot be made until a divorce is granted: Rothgiesser v. Rothgiesser, 2000 1153 (ON CA), 2000 O.J. No. 33 (Ont. C.A.) and Okmyansky v. Okmyansky, 2007 ONCA 427 (ONCA) and Kelly v. Yensen, (May 4, 2021) Doc. FC-912/19 London Family Court (Ont. S.C.J.), Mitrow J.

[10] After further consideration, counsel submitted that this case is to be decided under the CLRA. I agree.

2. Should the issues of relocation and decision-making responsibility be bifurcated?

[11] The mother, on oral motion, made at the beginning of trial, requested that the issue of relocation be dealt with first and, once decided, the parties then proceed to try the issue of decision-making responsibility.

[12] In support of her request, counsel for the mother relied upon Moreton v. Inthavixay, 2021 ONCA 501. In this case, the appeal court was asked to decide if the trial judge erred by determining the issue of relocation before deciding the issue of custody. The appellant in that case relied upon the Ontario Court of Appeal decision in Bjornson v. Creighton (2002), 2002 45125 (ON CA), 62 O.R. (3d) 236 (C.A.), leave to appeal refused [2003] S.C.C.A. No. 14. The appeal court rejected the submission that Bjornson established an absolute rule or requirement that the issue of custody must be determined before the issue of relocation. In Moreton, the court held that the sequence of issues to be decided “depends on the circumstances of each case and, specifically, the best interests of the children,” (para. 9). In Moreton, it was in the children’s best interests to have relocation decided first, so as to provide stability in their living arrangements, finality, and closure.

[13] After hearing argument from counsel, I directed that the trial not be bifurcated for the reasons that follow.

[14] The Trial Scheduling Endorsement Form (“TSEF”) dated August 23, 2021 specifically identified decision-making responsibility as an issue to be tried. The question of bifurcating the issues of relocation and decision-making responsibility was not raised in the TSEF.

[15] There was no evidence before the court upon which to consider the prejudice to the mother or the child if a bifurcation order was not made. In Moreton, the decision to bifurcate was made before trial by a judge other than the trial judge and, presumably, on motion with evidence.

[16] To bifurcate in this case would not be an efficient way to try this matter. There was no suggestion that to do so would shorten the amount of time necessary to try the case. The parties were present and ready to proceed on all issues.

[17] It is in the best interests of the child that all issues raised by the parties be resolved without further delay. This case was expected to be tried in the spring of 2020, but the interruption to the court’s schedule due to the pandemic delayed this trial by approximately one and a half years. Given court scheduling challenges, it would be many months before this matter could be assigned further trial days.

[18] Counsel for the mother argued that one reason for the request to bifurcate was to allow the parties to negotiate the issue of decision-making responsibility once the relocation issue was decided. Counsel was confident the parties would be able to reach agreement on this issue.

[19] In response to this submission, I advised counsel and the parties that I would release my decision on relocation and then give the parties a brief period to try and resolve the issue of decision-making responsibility themselves. If they were not able to do so within two weeks following the release of the decision on relocation, I would release the balance of my reasons that would address decision-making responsibility.

3. Credibility and Reliability Assessment

[20] The parties had different versions or perspectives of some events that bear on the issues to be decided in this case.

[21] Where there is a conflict in the evidence, I generally prefer the mother’s evidence over the father’s evidence.

[22] The father was evasive in answering some questions put to him. For example, when he was questioned about what he advised Ontario Works regarding his living arrangements, he did not answer the questions that were put to him. The father did not give direct answers to some difficult questions put to him, rather he would try to deflect from what was being asked. When asked whether the child made certain statements, he denied the substance of the statements and not whether the statements had been made, which was the question put to him. Another example was when he was asked about the mother being responsible for planning the child’s summer vacation, the father did not focus his answers on the questions asked. He attempted to explain away his actions and question the mother’s motives.

[23] In some instances, he attempted to minimize his responsibility for certain events, such as explaining why the child was often late for school while in his care.

[24] Some text messages produced, contradicted his evidence. He denied talking to the child about this court case, but a text message suggested the contrary. Also, there was an inconsistency in his evidence and a text about his bedroom door being locked.

[25] My concern regarding the father’s credibility is not meant to suggest that I reject all the evidence provided by him. A court may accept none, part, or all of a witness’ evidence and may also attach different weight to different parts of a witness’ evidence. I accept much of the father’s evidence but, as stated above, where it contradicts the mother’s, I generally prefer her evidence.

[26] In contrast, I found the mother’s evidence was detailed, consistent and delivered with candour. She readily agreed with facts put to her in cross-examination that either supported the father’s position or exposed a weakness in hers.

[27] She remained calm during the searching cross-examination conducted by the father’s counsel. She did not argue with counsel during her cross-examination. She answered the questions put to her directly.

Facts

[28] The respondent mother is 35 years of age.

[29] The applicant father is 52 years of age.

[30] They married on November 25, 2008 and are the parents of one child, Sofia Zourob, born December 10, 2010 (“child”).

[31] On July 1, 2012, the parties separated.

[32] The final order of Mitrow J. dated September 21, 2014, the Mitrow Order, made pursuant to Minutes of Settlement provided, in part:

• the mother was granted custody of the child;

• the father was granted regular and holiday access;

• the mother was able to move with the child within 200 kilometres of London for an educational opportunity or employment;

• upon relocation – the father’s regular access would change – they would share access-related transportation; and

• neither party would travel with the child outside Canada without the consent of the other, which consent was not to be unreasonably withheld or upon obtaining a court order.

[33] The parties were divorced by divorce order dated November 28, 2014.

[34] By order of Aston J. dated March 23, 2016, (“Aston Order”), the father was to assist the mother with childcare, relieving her of some of the costs in this regard two or three nights each week on dates chosen by the mother. If the father assumed that responsibility, he would be credited with $70 towards his monthly child support payment. This would reduce that monthly child support payment from $170 to $100.

The Mother

[35] The mother grew up in Egypt. Prior to her marriage in 2008, she earned her bachelor’s degree in Agricultural Science from Suez Canal University.

[36] Following her marriage, the father was required to undertake the immigration process to allow her to move to Canada. The mother arrived in Canada in 2009.

[37] After arriving in Canada, the mother pursued further education. In August 2012, the mother obtained a pharmacy assistant’s licence after attending Medix School.

[38] In September 2012, the mother began undergraduate studies at Western University. She completed her bachelor’s degree in Earth Sciences in 2017.

[39] In September 2017, the mother started a two-year masters program in the Earth Sciences department.

[40] In March 2019, the mother started this motion to change, requesting that she be allowed to move with the child outside of Canada for an educational opportunity or employment. She had applied to graduate programs elsewhere. She was accepted at the University of Alberta to begin in September 2019. As well, she was accepted by the University of Aberdeen. The mother chose to accept the University of Alberta offer but deferred her acceptance by one year because this case was not yet resolved. Delays occasioned by the COVID-19 pandemic resulted in this matter not being reached for trial until September 2021.

[41] In addition to these educational endeavours, the mother has been successfully learning Turkish[^2] and French the past two years.

[42] In February 2021, the mother obtained a certificate from the University of Toronto to teach English as a second language.

[43] Despite the mother’s educational achievements, she has had difficulty finding employment in her chosen field. In no small part, this is because of the delay the parties have had in having this case resolved and which in turn would determine whether the child could move with the mother while she pursued her educational or employment goals. This delay has caused some changes in her plans.

[44] The mother was able to support the child and her while living in London by working part-time (10 to 15 hours per week) as a pharmacy assistant from 2012 until 2020. Throughout this period the mother was primarily responsible for caring and providing for the child.

[45] In May 2017, the mother was offered employment in Cobalt, Ontario. She asked the father to care for the child until her probationary employment period ended, the child’s school year ended, and she could find stable housing. The father refused. He wanted custody of the child. As a consequence, the mother did not pursue this job. Instead she worked as a research assistant at Western University until September 2017. She then started to work as a teaching assistant. This position lasted until December 2019.

[46] In January 2020, the mother was a thesis student and therefore not eligible to continue working at the university.

[47] To supplement her income, the mother obtained a second part-time pharmacy assistant job in London, Ontario.

[48] In March 2020, the pandemic began. This case, which was scheduled for trial, could not proceed.

[49] With the pandemic ongoing, schools were closed for in-person attendance. The child had to begin online learning. The mother had to be home to care for the child during the child’s online school day. As a consequence, the mother could not be available to work as many hours as her employer required and therefore, she had to leave this job. By June 2020, the second part-time job ended because the pharmacy did not have enough hours to give her.

[50] It was in these dire circumstances and feeling under much stress, the mother decided to go to Egypt for the summer of 2020. There, she would have family support, including from her fiancé. The mother had been in a relationship with Mostafa El Sayed (“husband”) subsequent to the mother’s divorce. They also decided to marry that summer and did so in August.

[51] The father refused to allow the mother to take the child with her to Egypt that summer.

[52] In July 2020, the mother went to Egypt, expecting to return in September 2020 for the start of the trial in this case. The mother’s evidence on this point was, and I accept, that allowing the child to be in the father’s care during the summer would be in accord with the plan she wanted to put in place were she allowed to relocate with the child.

[53] In September 2020, the mother learned that the trial in this case would not be heard until 2021. Due to her being away from the child and her concerns regarding the care the father was providing, the mother returned to London in October 2020. It was the mother’s understanding that the child was not happy in the father’s care. The basis of this understanding will be addressed below in these reasons.

[54] Upon her return to London, the child returned to the mother’s care on November 12, 2020. It required the assistance of police to have the child returned to her care.

[55] Upon her return, the mother actively looked for a job but without success. She asked the father to contact CRA and arrange for the Child Tax Benefit to be provided to her. He refused to do this. Instead, he kept the benefit and gave her a portion of the money because he said he had weekend time with the child. He also claimed a portion of the Ontario C.B., since the child was with him two nights a week as had been contemplated in the Aston Order. At the same time, the father was not paying the $100 in child support as had been ordered.

[56] The mother applied for Employment Insurance benefits.

[57] Without sufficient financial support, employment or a stable and safe residence, the mother did not have the means to stay in London. In these circumstances, the mother decided that she had no choice but to return to Egypt. She tried twice to have urgent motions heard to allow her to take the child with her until trial. Both requests were denied.

[58] The mother returned to Egypt in January 2021 without the child, hoping the case would be heard in March 2021 as the case was scheduled to be spoken to at that time. However, due to the pandemic and as stated above, this case was postponed until September 2021.

[59] In December 2020, the mother applied to bring her husband to Canada on a visitor’s visa so that she could return with him. Due to restrictions in place because of the pandemic, the mother’s application was not successful.

[60] In 2021, the mother sponsored her husband’s immigration application. He received his permanent residence status in mid-August 2021. The husband, who is an assistant professor in the structural engineering department at Cairo University, applied for work in Canada, including within 200 kilometres of London. He was successful in obtaining employment as an engineer in Winnipeg. This offer of employment was made on August 10, 2021. The mother and her husband then made plans to move to Winnipeg. The father was informed of the mother’s intended move on August 18, 2021.

[61] The husband’s job is a fulltime one, subject to his completing a probationary period of employment.

[62] The mother and the husband arrived in Winnipeg on September 11, 2021. They now live in a rented two-bedroom townhome. They are settling in Winnipeg.

[63] The mother’s plan is to have the child live with her and her husband in Winnipeg. The child will have her own bedroom and will attend a nearby elementary school. The mother plans for the child to attend Islamic school on the weekends, as well as enroll her in extracurricular activities she is interested in, including drawing and music. The mother and husband have community support from a friend of the husband’s, also from Egypt, who has lived in Winnipeg with his family for at least the last ten years. The mother wants to encourage the child to attend university in Canada when she has completed high school. The mother’s plan also provides for the father to have regular virtual contact with the child and extended in person parenting time with him during the child’s vacations from school.

The Father

[64] The father resides in London in the home of his mother and father (“the paternal grandparents”).

[65] The father has health problems to such an extent he has been in receipt of ODSP since November 2018. Prior to that, the father was in receipt of Ontario Works from 2014 because of his inability to work.

[66] The father had his first heart attack in 2012 and his second one in 2016.

[67] In 2017, the father was diagnosed with angina.

[68] In 2018, the father was diagnosed with a brain aneurysm that requires an operation to repair. This surgery has not yet been scheduled and, in the meantime, he is followed by a neurologist.

[69] The father also suffers from chronic back pain.

[70] His medical conditions have required him to stay in hospital on occasion for a few days at a time.

[71] The father takes all the medications prescribed for him and has adjusted his lifestyle and diet to improve his health. But he is unable to maintain fulltime employment because he has difficulty focusing sometimes and experiences fatigue and migraines. These health conditions result in the father not being able to reliably commit “to being on my feet for a work schedule set weeks in advance.”

[72] The father claims that his health conditions do not impair or impact his ability to care for the child because she is ten years old. When he feels unwell, the paternal grandparents, or his sister who lives nearby, are able to help. There was evidence in this trial that the maternal grandmother had been treated for cancer. The paternal grandparents are elderly. The paternal grandfather did not give evidence as to the assistance he provides in caring for the child other than playing games with her and helping her with her homework.

[73] Prior to the mother leaving for Egypt, and despite his health problems, the father did have the child in his care as arranged by them. He developed a close relationship with the child.

[74] The child has been in the father’s care from July 2020 to November 2020 and again from January 2021 to the present.

[75] The paternal grandfather describes the father as a kind, generous and supportive father. He encourages the child to study more if she has trouble with her homework. The father’s brother observed that the father and child seem to have a good relationship. He sees the child approximately one or two times a week. The father’s sister also observed that the child and father have a good relationship and seem very attached to each other. The father’s sister sees or speaks with the father and child “virtually every day.”

[76] The father’s plan is to have the child remain with him in his parents’ home. He will have the child continue to attend school and have contact with her extended paternal family and her friends. The father will support the child’s relationship with the mother through contact with her during school breaks, electronic communication and whenever the mother is in London.

The Child

[77] The child is described by all witnesses in positive terms: she is healthy, makes friends easily, and enjoys school and her family. She enjoys gymnastics, swimming, music, and art as well as activities arranged by the father and his extended family. The paternal grandfather described her affectionately as a “goofball” – a girl who loves to sing and dance and make people laugh.

[78] The child has a close relationship with both parents. The father spends as much time as he can with the child enjoying each other’s company. Although the child has been residing with the father since January 2021, the child still communicates with the mother about her concerns and feelings. The evidence discloses that the child looks to the mother for emotional support.

[79] The mother described occasional behaviour by the child which she suggests that she was upset or not coping with her situation while in the care of the father. For example:

1. During the summer of 2020, when the mother was in Egypt, the child would call her between 1 a.m. and 4 a.m. EST because the child could not sleep and needed her mother to help her calm down. The child would ask the mother to stay on the video calls until she could fall asleep.

2. When the child returned to the mother’s care in November 2020, the mother described the child as mentally exhausted and upset. The child “cried continuously for two days.”

3. The child’s schoolwork had not been submitted regularly and she needed help from the mother to get her back on track.

[80] The father was not able on occasion to meet the child’s needs or see to her care. For example:

1. The child missed a number of days of school between September and November 2020. The father’s evidence was that the child would sleep in before signing on and that is why she was late. This does not explain the child’s absences.

2. The child could not get help from the father during the night because he locked his door. The father denies this was the case. I do not believe his evidence on this point. There is a text between the child and mother dated August 29, 2020 in which the child tells the mother the father’s door is locked.

3. The child had access to create a TikTok account where she posted provocative videos and looked for a boyfriend.

[81] The father acknowledges that he had a few minor challenges in parenting the child but that he took steps to correct them.

[82] The child’s attendance in person at school beginning September 2021 has been very good.

[83] The mother’s husband was candid in his evidence about the child’s and his relationship. While it was quite positive before he became engaged to the mother, it cooled afterwards. The husband observed a change in the child’s behaviour toward him. The husband suggests that this change in behaviour was influenced by the father. The basis for his conclusion in this regard is that the child’s behaviour toward him changed after she spent time with the father. The father denies this was the case. His evidence is that he never spoke about the husband while the child was in his care. I do not find the father’s evidence on this point to be credible. The mother’s friend, Tasneem Bedeir, gave evidence that she asked the child about her mother’s engagement to the husband. This witness testified that “Sofia specifically said to me she would never mention to her father that mother had gotten engaged because he would get angry.” This statement was admitted in evidence as being a reliably accurate account of the child’s words and state of mind.

[84] Ms. Bedeir also observed the change in the child’s demeanour when she returned from the father’s home. She described the child as not being her usual self, not wanting to talk or play or watch television. When the child did ask questions, it was apparent to Ms. Bedeir that the father had been “feeding her false and derogatory information about her mother.” When asked in cross-examination, the witness stated that the father told the child “you’ll never see your dad if you move to Egypt.” I accept that the child said these words.

Legal Considerations

Material Change in Circumstances

[85] This case comes before the court by way of the mother’s motion to change an existing parenting order made under the CLRA. The mother requests the court authorize the relocation of the child under s. 39.4 of the CLRA.

[86] Before a court can change an existing parenting order, there must be a finding that there has been a material change in circumstances that affects, or is likely to affect, the best interests of the child who is the subject of the order: CLRA s. 29(1). See also Gordon v. Goertz (1996), 1996 191 (SCC), 19 R.F.L. (4th) 177 S.C.C. which sets out a two-step process for motion to change parenting orders. First, the moving party must establish a material change in circumstances. Second, if the threshold is met, the court must embark on a fresh inquiry into what is in the child’s best interests.

[87] Section 29(2) of the CLRA provides that, for the purposes of s. 29(1), the relocation of a child in accordance with s. 39.4 constitutes a material change in circumstances.

[88] There is no dispute between the parties that the mother’s request to move the child’s residence to Winnipeg constitutes a request to relocate under the CLRA.

[89] In these circumstances, therefore, the requirement that there be a material change in circumstances, as provided for in s. 29(1), has been made out.

Burden of Proof

[90] Subsections 39.4(5), (6) and (7) set out who has the burden of proof that the proposed relocation would, or would not, be in the best interests of the child as follows:

Burden of proof

39.4(5) If the parties to the proceeding substantially comply with an order, family arbitration award or agreement that provides that a child 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.

Same

(6) If the parties to the proceeding substantially comply with an order, family arbitration award or agreement that provides that a child spend the vast majority of time in the care of the party who intends to relocate the child, the party opposing the relocation has the burden of proving that the relocation would not be in the best interests of the child.

Same

(7) In any other case, the parties to the proceeding have the burden of proving whether the relocation is in the best interests of the child.

[91] The father submits that because the parties are not in substantial compliance with the existing order, both should have the burden of proving whether the relocation is in the child’s best interests.

[92] The mother argues that she has been and remains the sole custodial parent of the child and her primary caregiver.

[93] Under the Mitrow Order, the child was to be in the father’s care as defined in paras. 8 and 9 as follows:

8. The Applicant shall have access to the child as follows:

a. during the child’s school year:

i. each Wednesday, from 3:45 p.m. to 6:00 p.m.;

ii. on alternate weekends, from Saturday at 10:00 a.m. to Sunday at 6:00 p.m.

b. during the child’s summer holidays:

i. each Wednesday, from 3:30 p.m. to Thursday morning at 10:00 a.m.;

ii. on alternate weekends, from Saturday at 10:00 a.m. to Sunday at 6:00 p.m.

c. such further dates and times as may be agreed between the parties from time to time.

9. The following holiday schedule shall override the regular access schedule:

a. Fiter Eid: the child shall be in the Respondent’s care for the first day and in the Applicant’s care for the second day of Fiter Eid, with the parties to agree on the exchange times at least twenty-four (24) hours in advance;

b. Sacrifice Eid: the child shall be in the Respondent’s care for the first day and in the Applicant’s care for the second day of Sacrifice Eid, with the parties to agree on the exchange times at least twenty-four(24) hours in advance;

c. Egyptian Mother’s Day: the child shall be in the Respondent’s care on Egyptian Mother’s Day, with the parties to agree on the exchange times at least twenty-four (24) hours in advance;

d. Mother’s Day: the child shall be in the Respondent’s care on Mother’s Day, with the parties to agree on the exchange times at least twenty-four (24) hours in advance;

e. Father’s Day: the child shall be in the Applicant’s care on Father’s Day, with the parties to agree on the exchange times at least twenty-four (24) hours in advance;

f. Applicant’s Birthday: the child shall be in the Applicant’s care on his birthday, with the parties to agree on the exchange times at least twenty-four (24) hours in advance;

g. Respondent’s Birthday: the child shall be in the Respondent’s care on her birthday, with the parties to agree on the exchange times at least twenty-four (24) hours in advance.

[94] The Aston Order increased the father’s time with the child two or three overnights each week, if requested by the mother.

[95] While these orders were being followed, the child spent the vast majority of her time in the mother’s care.

[96] However, from January 2020 until November 11, 2020 and from mid-January 2021 to the present, the parenting schedule provided for in the two orders has not been followed. This is the case because the mother was not able to care for the child in Canada. She was left with no choice but to go to Egypt where she had the support, including financial, of her husband and her family. I accept the mother’s evidence that it was not her intent to give up her role as the primary caregiver to the child. The exigencies of the pandemic, which caused a delay in this trial being heard and not being allowed to have the child in her care in Egypt while awaiting the trial date, caused the parties not to be in substantial compliance with the existing parenting time orders since January 2020, excluding the time the child was in the mother’s care when she returned to Canada in November 2020.

[97] Under s. 39.4(5) and (6), time in care of each parent determines whether the child spends substantially equal time in the care of each parent or the vast majority of time in the care of the party who intends to relocate the child’s residence.

[98] These subsections do not state the period over which the court is to consider whether there has been substantial compliance with the existing order. As well, these subsections do not refer to the reasons why the parties may not be in substantial compliance with the existing court orders.

[99] In this case, from at least the date of the Mitrow Order to January 2020, the child was in the mother’s care the vast majority of the time. This changed in January 2020 for the reasons stated above. If the trial had proceeded as expected in March 2020, the onus would have been on the father pursuant to s. 34.4(6). However, since that date, the parties have not been in substantial compliance with the original parenting time order except for the two months when the child was with the mother in November 2020 to January 2021.

[100] If I were to determine substantial compliance having regard to the period starting March 2014 to the present and the reasons for the change in January 2020, I would find that the burden of proof would rest upon the father as the party opposing the relocation pursuant to s. 39.4(6).

[101] However, in this case, the parties have not been in substantial compliance with the parenting time order for a little over one year. That is the current situation.

[102] In these circumstances, I find that s. 39.4(7) should determine the burden of proof in this case. Both parties will have the burden of proving whether the relocation, at this time, is or is not in the child’s best interests.

Best Interest Factors

CLRA s. 24

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

[103] The child is ten years old. Her stage of development can be described as that of a pre-teen.

[104] On the evidence, she appears to be developing normally. She has experienced some instability in her care since at least July 2020. Prior to the onset of the pandemic, she benefitted from the very stable and predictable care schedule followed by the parties. Now that this case has been tried, a court order will be made that returns the child to a stable and predictable plan of care.

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

[105] The child has a positive relationship with both parents. However, I find that the child’s relationship has been much stronger with the mother than with the father.

[106] The mother was the child’s primary caregiver before and after the parties separated and this remained the case until the summer of 2020. Even after the mother was unable to take the child to Egypt while waiting for this trial to begin, the mother and child communicated regularly. When distressed or upset, the child successfully sought comfort and advice from the mother. The mother was able to inform the father of certain of the child’s needs while the child was in his home and that he did not see.

[107] The father submits that any statements made by the child and relayed by the mother should not be given any weight because the mother has a motive to fabricate and there is no corroborating evidence. If the court does consider the child’s statements, the father submits that the statements were often made one time only.

[108] During the trial of this matter, threshold admissibility rulings were made for each tendered child’s statement. Counsel agreed that the evidence given on the voir dires, related to threshold admissibility, would comprise evidence in the trial.

[109] The statements that I give weight to and which demonstrate the child’s close attachment to the mother are:

• The child told the mother that she could not handle the arguments between the parties anymore (February 2019).

• The child was sad thinking about not living with the mother. This statement was made in the context of the child not travelling with the mother to Egypt in the summer of 2019.

• The child texted the mother that she was left alone in a hotel room with “Adam” (December 2019). The father minimized this event on the basis that he was away for only a few minutes. The child called the mother, crying, because the father yelled at her for calling the mother.

• During the summer of 2020, the child often called in the very early morning hours “for her” (the mother), who was then in Egypt and asked her to stay on the video call until she was able to fall asleep.

• In a text exchange between the child and the mother, the child was upset because no one was home caring for her. The father denies the truth of the child’s reasons for being upset but not that she was upset and sought comfort from the mother.

[110] The father describes his relationship with the child as good and closer in the last 14 months. He describes activities he organizes for and with the child and describes the things she likes to do.

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

[111] I find that the mother is more willing than the father to support the child’s relationship with the other parent.

[112] The father has spoken with the child about matters concerning the parties’ separation. For example:

• The child was upset – “crying without stopping” – because the father told her that the mother was going to send him to jail.

• I find the child cooled her relationship with the mother’s husband because of what the father would say to her about him and the mother.

• The father told the child about this court case.

• The father refused to allow the child to videocall the mother from a store to show her the new clothes she was going to buy.

[113] I do not accept the father’s evidence that he did not do as described above.

[114] In May 2021 the father prevented the child from communicating with the mother. The father acknowledged that he took the sim card out of the child’s phone and other devices for three days. He did this to punish the child. He did not tell the mother what he had done. I find that preventing the child from communicating with the mother in these circumstances was inappropriate.

[115] These incidents are consistent with a pattern of behaviour and intention that has been ongoing for a number of years.

[116] However, I also take into account that the father did make a proposal for the mother to have reasonable time with the child if the child is placed in his primary care.

[117] The father does not identify any recent events or circumstances whereby the mother was not supportive of his relationship with the child.

(d) the history of care of the child

[118] As noted above, the mother was the child’s primary caregiver before and after the parties separated in 2012. This remained the case until the mother returned to Egypt in July 2020. Since then, except for November 2020 to January 2021, the child has been in the care of the father with the assistance of the paternal grandparents and paternal aunt.

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

[119] There is no independent evidence of the child’s views and preferences made on a clear and consistent basis. I do not attach weight to the child’s various complaints about the state of affairs in the father’s home as being evidence of her views and preferences regarding relocating to Winnipeg.

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

[120] Both parents can support the child’s religious upbringing and Egyptian cultural heritage.

(g) any plans for the child’s care

[121] The plans proposed by the parties are as set out above in these reasons.

[122] The father’s plan will allow the child to remain in London, at her new school and close to her paternal extended family.

[123] The mother’s plan will require the child to start anew in Winnipeg at a new school, make new friends and become acquainted with the City’s amenities appropriate for a child her age.

(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

[124] I find that the mother is able and willing to care for and meet the needs of the child. She has married and settled in Winnipeg with her husband. She is in a stable and supportive relationship. The husband has moved to Canada to support the mother. She again has the financial security that eluded her while the pandemic was ongoing. Her plan demonstrates that she understands the child’s needs, all of them, and can meet them.

[125] I also find that the father is able to care for the child. He has the financial support of his parents. They provide him with a home that can accommodate the child. He also has some day-to-day support from his sister, the child’s paternal aunt.

[126] In the past, the father did not consistently meet all of the child’s needs. While in his care, the child was often late for school. However, this year, the child has been attending regularly and on time.

[127] While in the father’s care, the child became infected with head lice and returned the child to the mother in this condition.

[128] There is also some risk with respect to the father’s long-term ability to meet the child’s needs because of his health problems. He will need surgery for a brain aneurysm. He remains on ODSP, unable to be gainfully employed because of his serious medical conditions. It is not clear how long he will be able to enjoy the support of his elderly parents in caring for the child.

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

[129] The parties have enjoyed some periods where they could communicate well on matters affecting the child. For example, the mother was able to let the father know about needs the child had while in his care, which he acted on. There have been periods where the father in particular, and to a lesser extent the mother, have made ill-advised statements to or about the other. The father’s counsel described their history as “somewhat complex.” I agree.

(j) family violence

[130] The father did enter into a peace bond in 2014. I also take into account that the access exchange provisions of the Mitrow Order provided that these exchanges were to take place at the child’s school or at Merrymount Children’s Centre. There is no evidence of a recent pattern of family violence.

CLRA s.39.4

(a) the reasons for the relocation

[131] The mother relocated to Winnipeg because that is where her husband was able to find employment as close as possible to London. The husband is employed by a firm that has offices in Southwestern Ontario. He asked to be posted to this area but was refused. His skills are required by the firm’s Winnipeg location.

[132] The mother is unable to further pursue her education in London, after earning her masters degree. Her employment prospects for work in the area of her post-secondary education require her to look outside of London. The mother’s move to Winnipeg with her husband will provide the stability and security that she was unable to obtain in London.

[133] I do not find that the mother’s request to relocate the child’s residence to Winnipeg is grounded in any way on an improper motive.

(b) the impact of the relocation on the child

[134] The impact of the relocation on the child will be significant. She will not have easy and regular in-person contact with her father, nor her extended paternal family. It will require the child to start a new family, social and educational life. This impact will be mitigated by the support she will receive from the mother and the child’s ability to adapt to new circumstances.

(c) the amount of time spent with the child by each person who has parenting time or is an applicant for a parenting order with respect to the child, and the level of involvement in the child’s life of each of those persons

[135] This factor has been dealt with earlier in these reasons.

(d) whether the person who intends to relocate the child has complied with any applicable notice requirement under section 39.3 and any applicable Act, regulation, order, family arbitration award and agreement

[136] The mother made the father aware of her request to relocate with the child outside of London when she began this motion to change in March 2019. The notice requirements under s. 39.3 did not come into force until March 2021. In these circumstances, I am of the opinion that it is appropriate that the notice provisions do not apply to the request to relocate to Winnipeg: CLRA s. 39.3(4). The mother advised the father in a timely fashion of her plans.

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

[137] The Mitrow Order, with respect to relocation, is permissive as opposed to restrictive. The order allows the mother to move 200 kilometres from London for educational opportunity or employment, provided only that 60 days advance notice is provided. At the time the order was made, the parties recognized that a move might be necessary.

[138] The Mitrow order does not specifically prohibit the mother from requesting permission to move further than 200 kilometres from London.

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

[139] The mother’s parenting time proposal for the father’s parenting time, should she be allowed to relocate the child’s residence, is a mostly reasonable one. It provides for the father to have extended time with the child during school holidays, except Christmas time. The mother is concerned about the possibility of weather delays in either going to or returning from parenting time during the Christmas season. Instead, she proposes to extend the time the child is with the father during the school March break and provides for long weekends in the fall. The mother is proposing that she pay the child’s transportation costs from Winnipeg to Toronto for the summer and March break parenting time.

(g) whether each person who has decision-making responsibility or parenting time or is an applicant for a parenting order with respect to the child has complied with their obligations under any applicable Act, regulation, order, family arbitration award or agreement, and the likelihood of future compliance

[140] The father has expressed concern that the mother may take the child to Egypt and not return with her to Canada. This concern is not supported by the mother’s past travel experience. The mother and child travelled in the summers as follows:

• In 2015, for five weeks in Egypt.

• In 2016, for two weeks in Dubai and UAE.

• In 2017, for four weeks in Egypt.

• In 2018, for two weeks in Egypt.

[141] The mother returned with the child each time.

[142] The father has not complied with the child support obligation he had. He is in significant arrears.

[143] The mother did not provide child support to the father while the child has been in the father’s care.

Decision

[144] I have carefully considered the best interest factors in relation to the evidence presented and submissions made in this difficult relocation case.

[145] I also take into account that the best interest considerations contained in the CLRA are not an exhaustive list. These factors do not comprise a checklist to be tabulated with the highest score winning. Rather, the Act requires the court to take an holistic look at the child, her needs, and the people around her. See: Phillips v. Phillips, 2021 ONSC 2480 at para. 47.

[146] Despite Ms. McPhail’s very able advocacy, I find that the child relocating to Winnipeg to be in the primary care of the mother is in the child’s best interests.

[147] The mother has met her burden of proof as required under s. 39.4(7), the father has not.

[148] Allowing this relocation will better meet the child’s physical, emotional and psychological safety, security and wellbeing.

[149] The move will allow the child to resume the very longstanding and positive primary care arrangement that had been in place until July 2020. The mother did not abrogate her responsibility as the child’s parent. The change that occurred in July 2020 was not caused by either party. It was the result of the pandemic and the attendant delay in having this matter tried. The mother left the child in the father’s care that month, thinking she would be back in September 2020 for the trial. It was a reasonable expectation that, if she were allowed to move with the child, the father would have the child in his care during the child’s summer vacation from school.

[150] Despite being physically apart, the mother and child have remained in close and regular virtual contact. The significant psychological and emotional role that the mother had with the child continues. With the child in the mother’s care, she will be able to resume the physical care of the child as well.

[151] The mother has a keen perception of who the child is and what she needs. This knowledge and ability to meet these needs was developed over the many years of her attending to the care of the child, from the mundane day-to-day ones, to the most significant ones. This keen perception does not appear to have been lost while the child was in the father’s care. The evidence does not satisfy me that the father developed this same keen perception.

[152] The child will have some challenges in adjusting to a new city and school. However, I accept the evidence that the child has and can adapt to changes, such as her changing school in May 2021. She will have the presence and support of her mother in negotiating these changes. The child will again get to know the mother’s husband with whom she did have a positive relationship. I am satisfied that the husband will act in a sensitive and supportive manner with the child.

[153] I also accept that the mother and her husband have a plan to provide a stable and secure home in Winnipeg for the child.

[154] In summary, when considering what will be gained and lost by the child, the best interests of the child are better met by her being in the care of the mother in Winnipeg than remaining in the father’s care in London. In other words, I find that the child’s needs are more likely to be best served by her returning to the mother’s care and this consideration offsets the reduction in contact with the father that will as a result occur: see Gordon v. Goertz, 1996 191 (SCC), [1996] 2 S.C.R. 27, at para. 25.

[155] The mother shall attend in London as soon as she can make arrangements to do so, but in any event no later than November 13, 2021 to take the child to Winnipeg with her personal possessions. The mother shall give the father five days advance notice of the day and time she will arrive.

[156] Children's Law Reform Act s. 24(6) provides that, when allocating parenting time, the court shall give effect to the principle that a child should have as much time with each parent as is consistent with the child’s best interest.

[157] This decision will result in the father’s in-person parenting time being reduced. That is what makes relocation cases difficult. As was the case with the mother since July 2020, the father will have the ability to connect with the child virtually on a regular and frequent basis. I recognize that virtual contact is not a complete substitute for in-person contact however, the child will also spend extended periods during the year with the father. This would not be the case if the mother had remained in London.

[158] An issue raised with respect to parenting time is the mother’s ability to travel outside of Canada with the child. On the evidence, this request is made so that the mother would be allowed to travel to Egypt with the child, to see their extended maternal family. This trip is usually made during the child’s summer vacation from school. This vacation period is also the time when the father will be able to have extended parenting time with the child. The mother’s request should not reduce the amount of parenting time the father has every summer. The mother shall be able to travel with the child every second summer. The father shall have the child in his care for the first seven weeks of the child’s summer vacation in even-numbered years and for four weeks in odd-numbered years.

[159] The father will also have parenting time with the child during her school March break and Christmas holidays beginning in 2022.

[160] The mother requested that the father not have the child during the Christmas school holidays because of the potential for weather to interfere with the child’s ability to travel. I do not find this a sufficient reason to deny the father this extended parenting time opportunity. The mother’s proposal to have the child spend additional time during a long weekend in the fall and extended time during the March break would require the child to miss a number of days of school. This is not necessary.

[161] The mother may apply for and renew the child’s passport without the father’s consent or signature. This will allow the mother to travel with the child without interference or delay caused by the father.

[162] If either party intends to travel outside of Canada with the child, that parent shall provide to the other, within two weeks before the intended departure date, with a copy of their and the child’s paid for return airline tickets (if travelling by air) and details of the travel itinerary, including the addresses where they will stay and the telephone numbers where they can be reached.

Decision-making Responsibility

[163] Under the Mitrow Order, the mother was granted custody of the child, now referred to as decision-making responsibility. In his response to the motion to change and also in his proposed draft order, the father asks that he be granted decision-making responsibility.

[164] Earlier in these reasons, I stated that I would delay releasing my decision with respect to the issue of decision-making responsibility for 14 days following the release of these reasons.

[165] This will give counsel, as requested by them, time to attempt to resolve this issue.

[166] I acceded to this request because it is a reasonable one. In Colucci v. Colucci, 2021 SCC 24, at para. 69, the court observed that “[t]here is a trend in family law away from an adversarial culture to a culture of negotiation.” The Family Law Rules, O. Reg. 114/99 also have been amended recently with a view to encouraging, where appropriate, alternative dispute resolution. The parties should be given the opportunity to resolve the issue of decision-making responsibility and other matters arising from the decision to allow the child to relocate to Winnipeg and be in the primary care of the mother.

Child Support

[167] At the opening of trial, counsel advised that the parties reached an agreement on the issue of child support. They filed partial minutes of settlement that provide, in part, as follows:

1. Child support arrears for the child of the marriage, Sofia Zorab (born December 10, 2010) shall be fixed at zero dollars as of September 30, 2021.

2. For child support purposes, the applicant’s annual income shall be fixed at $21,320 in accordance with s. 17 of the Federal Child Support Guidelines, SOR/97-175.

[168] The partial minutes of settlement also deal with the issue of costs related to the child support claims. That will be addressed when the issue of costs is before me.

Conclusion

[169] For these reasons, an order shall issue as follows:

Under the Children’s Law Reform Act

1. The orders of Justice Mitrow dated September 21, 2014 and Justice Aston dated March 23, 2016 shall be varied as follows:

“1. The respondent, Arwa Nehad Saleh Zourob, is authorized to relocate the residence of the child, Sofia Zourob, born December 10, 2010, to the residence of the respondent in Winnipeg, Manitoba no later than November 13, 2021.

2. The mother shall attend in London as soon as she can make arrangements to do so, but in any event no later than November 13, 2021 to take the child to Winnipeg with her personal possessions. The mother shall give the father five days advance notice of the day and time she will arrive.

3. Paragraphs 8 to and including 16 of the order of Mitrow J. and paragraphs 7 to and including 10 of the order of Aston J. are vacated.

4. The applicant, Ahmad Mohamed Zorab, shall have in-person parenting time with the child, Sofia Zourob, born December 10, 2010, as follows:

(a) during the child’s March break from school every year beginning in 2022, from Saturday to the following Sunday;

(b) during the child’s summer vacation from school beginning in 2022, in even-numbered years, for seven weeks and, in odd-numbered years, for four weeks;

(c) during the child’s Christmas school break beginning in 2022, for a period of ten days; and

(d) at any other time(s) the parties agree upon.

5. The respondent shall pay for the child’s airplane travel expenses to and from the Winnipeg airport to and from the Toronto airport for the summer and March break parenting time. The applicant shall pay for the child’s airplane travel expenses to and from the Winnipeg airport to and from the Toronto airport for the Christmas holiday parenting time.

6. The applicant and the respondent shall have regular video, telephone, or other virtual parenting time with the child while she is in the other’s care and this virtual parenting time shall occur a minimum of two times per week.

7. The respondent shall not change the residence of the child from Winnipeg, Manitoba to a location farther away from London, Ontario without the written consent of the applicant or an order of a court of competent jurisdiction obtained in advance of the move.

8. The respondent may apply for and renew the passport of the child, Sofia Zourob, born December 10, 2010, without the consent or signature of the applicant. If the respondent wishes to obtain or renew any other government identification for the child and consent of the applicant is required, such consent shall not be unreasonably be withheld. The respondent shall retain all government identification and important documents of the child and shall provide copies of all current government documents and identification to the applicant.

9. If either party intends to travel outside of Canada with the child, that parent shall provide to the other, within two weeks of the intended departure date, a copy of their and the child’s paid for return airline tickets (if travelling by air) and details of the travel itinerary, including the address where they will stay and the telephone numbers where they can be reached.

Under the Family Law Act

10. Paragraphs 17 to and including 19 of the order of Mitrow J. and paragraph 11 of the order of Aston J. are vacated.

11. Child support arrears owing by the applicant to the respondent under the orders of Mitrow J. dated September 21, 2014 and Aston J. dated March 23, 2016 shall be fixed at zero as of October 30, 2021.

12. Commencing on the first day of December 2021 and on the first day of each month thereafter, until further order of the court, the applicant, Ahmad Mohamed Zorab, shall pay to the respondent, Arwa Nehad Saleh Zourob, child support for the child, Sofia Zourob, born December 10, 2010, in the amount of $171 per month based upon: (a) Ontario Child Support Guidelines, O. Reg. 391/97, s. 3(1)(a); and (b) the applicant’s annual income being fixed at $21,320 per year.

[170] The order provided for in these reasons shall not be issued until after the addendum to these reasons dealing with the issue of decision-making responsibility and any other matters raised in this case that may be agreed upon by the parties is released in 14 days.

Released: October 18, 2021

REASONS FOR JUDGMENT PART II: ADDENDUM

Decision-Making Responsibility

[171] The issue of decision-making responsibility is addressed in this part of my reasons. They are a continuation of my reasons released October 18, 2021.

[172] I delayed the release of these reasons with respect to decision-making responsibility because the parties asked that they be allowed some time after the relocation issue was decided to attempt to resolve this issue themselves. The parties were given 14 days to do so.

[173] Despite counsel’s optimism, the parties did not reach agreement on decision-making responsibility. Hence, these reasons.

[174] Under the Mitrow Order, the mother was granted custody of the child and the father access.

[175] Under the Children's Law Reform Act, R.S.O. 1990, c. C.12 (“CLRA”), these terms – custody and access – have been changed to decision-making responsibility for custody, and parenting time for access.

[176] The transition provisions in the CLRA provide, in part, that a person who had custody of a child in accordance with an order under Part III is deemed, as of the transition date, to have decision-making responsibility with respect to the child: see CLRA s. 76(2).

[177] In his proposed order filed at the start of the trial, the father asked for decision-making responsibility with respect to the child after consulting with the mother and any relevant service providers. In final submissions at the end of the trial, the father submitted that the best interests of the child would be met if the parties had joint decision-making responsibility with final decision-making authority to whomever was granted primary care.

[178] The mother, in her draft order filed at the opening of trial, did not ask for any change to the custody provision (that is, decision-making responsibility) of the Mitrow Order. She reiterated this position when final submissions were made on her behalf at the end of the trial.

Legal Considerations: Decision-Making Responsibility

[179] The term decision-making responsibility is defined at s. 18(1) of the CLRA as follows:

18 (1) In this Part,

“decision-making responsibility” means responsibility for making significant decisions about a child’s well-being, including with respect to,

(a) health,

(b) education,

(c) culture, language, religion and spirituality, and

(d) significant extra-curricular activities …

[180] In Nderitu v. Kamoji, 2017 ONSC 2617, at para. 52, the court set out a helpful summary of the guidelines found in the jurisprudence when a court is considering whether a joint custodial regime (now shared or joint decision-making responsibility) is in a child’s best interests, as follows:

(a) the parties need not consent to an order for joint custody, but before ordering joint custody the court must have some evidence that the parties are able to communicate effectively with each other; (Kaplanis v. Kaplanis, 2005 1625 (ON CA), 2005 CarswellOnt 266 (Ont. C.A.));

(b) simply relying on allegations of conflict will be insufficient to preclude a joint custody order. The analysis must be what is the nature, extent and frequency of conflict such of [sic] conflict impacts are as likely to impact on the wellbeing of the child if the evidence is that the parties have been able to shelter the child from the conflict reasonably well and put the child's interest ahead of their own, an order for joint custody may be appropriate. (Ladisa v. Ladisa, 2005 1627 (ON CA), 2005 CarswellOnt 268 (Ont. C.A.));

(c) one parent cannot create problems with the other parent then claim custody on the basis of a lack of cooperation (Lawson v. Lawson, 2006 26573 (ON CA), 2006 CarswellOnt 4789 (Ont. C.A.));

(d) where it is necessary to preserve the balance of power between the parties, particularly cases were [sic] both parties are caring and competent parents but one party has been primarily responsible for the conflict, joint custody versus sole custody may be appropriate. (Khairzad v. Macfarlane, 2015 ONSC 7148 (Ont. S.C.J.) and Fraser v. Fraser, 2016 ONSC 4720 (Ont. S.C.J.)); and,

(e) in determining whether a reasonable measure of communication and cooperation is in place and is achievable in the future the court must consider the source of the conflict, consider whether one parent is creating the conflict and engaging in reasonable conduct, impeding access, marginalizing the other parent or by other means and then claim sole custody of the basis of lack of cooperation communication. (Khairzad v. Macfarlane, 2015 ONSC 7148 (Ont. S.C.J.)).

[181] In Warcop v. Warcop, 2009 6423 (ON SC), [2009] O.J. No. 638 (Ont. S.C.J.), at para. 94, the court also addressed the nature of the communication that would indicate whether it would be in a child’s best interests to make an order for joint custody, as follows:

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

[182] When the Mitrow Order was made and the mother was granted custody, she had been the child’s primary caregiver since separation, a period of almost two years. As well, there was a no contact order in place between the parties because of outstanding criminal charges the father faced. At that time, effective communication between the parties regarding significant issues concerning their child would have been a challenge.

[183] Subsequent to the Mitrow Order being made, the criminal charges were withdrawn. When the mother needed help caring for the child when she was not available, the mother looked to the father for help.

[184] As described in these reasons, the father had the child in his primary care for almost 15 months prior to the trial’s commencement. He claims that he, in effect, had decision-making responsibility for the child during that time.

[185] However, the mother submitted that the relationship between the parties has been a difficult one, where conflict and coercion existed. She argued that there was little cooperative decision-making during their relationship. After they separated, the father would not cooperate with her. He could be transactional when it came to the care of the child. He wanted to pay less than the table amount of support because he would be asked to care for the child two or three nights per week so the mother could work. This gave rise to the Aston Order.

[186] The mother also argues that, when considering whether the parties can effectively communicate, that the court consider email exchanges she had with the father, which she submits demonstrate the father to be a bully.

[187] The family dynamic has changed materially since the Mitrow Order was made. It has gone from a prohibition against communication to one where it has, on occasion, been undertaken for the benefit of the child.

[188] When I consider the best interests factors, I find that the parties did have some periods where they could communicate well on matters affecting the child and times that they did not. As I found at para. 129 of these reasons, the parties enjoyed periods where they did communicate effectively regarding their child. When the child resided with the father, the mother was able to let the father know about some of the child’s needs that the father had to address, and he did. I find that the parents did demonstrate that they are capable of communicating in a constructive manner regarding their child. They have shown that they can communicate and cooperate adequately.

[189] As was stated in the Warcop case, a standard of perfection with respect to communication is not required and is not obviously achievable. What has been established with respect to these parents is that there has been demonstrated in the past a reasonable measure of communication and cooperation and that it is achievable in the future. I have found that the mother is supportive of the father’s relationship with the child.

[190] Another best interest consideration relevant to this case is that the father did have primary day-to-day care and control of the child while the mother was in Egypt after June 2020 – though this arrangement was not without challenges for the child, as described earlier in these reasons. He arranged for the child to change schools to one in the catchment area where he lived with his parents. When the child had a problem with other students when she first attended this new school, the father contacted the school and worked with them for a solution and resolution of the child’s difficulty. While in the care of the father, the child saw that he was making decisions regarding her care.

[191] I also take into account that the child will now be living with the mother in Winnipeg. The mother will have primary care of the child. In Lamont-Daneault v. Daneault, 2003 MBCA 111 (Man. C.A.), the Manitoba Court of Appeal expressed the view that, as a general rule, final decision-making authority should rest with the parent with primary control. This can be the case even in cases where the parties are granted joint custody/decision-making responsibility. At para. 20, the court stated:

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

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

[192] The Lamont-Daneault decision was relied upon by Broad J. in Bourke v. Davis, 2020 ONSC 7667. In that case, the court decided that the parties would be granted joint custody (para. 98) and that the child could relocate with the mother to Washington State (para. 146). The court then addressed the question of final decision-making authority as follows, at paras. 147-150:

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

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

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

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

[193] The trial decision was upheld by the Ontario Court of Appeal in Bourke v. Davis, 2021 ONCA 97, at paras. 64-67.

[194] I find that it will be in the child’s best interests for the parties to have joint decision-making responsibility, with the mother having final decision-making authority if the parties are not able to reach agreement after meaningful consultation.

[195] The situation in this case is similar to that as in the Bourke case. The parties will reside in different jurisdictions. By granting the mother final decision-making responsibility, complications arising because of the parties living in two different jurisdictions will be obviated.

[196] The mother will be the primary caregiver of the child. While living in Winnipeg, it is the mother who will have greater responsibility for the child’s upbringing.

[197] By granting the parties joint decision-making responsibility, the child will be able to understand that both parents are involved in collaborating in her care and upbringing.

[198] The mother will be allowed to exercise final decision-making responsibility after there has been meaningful consultation between the parties.

Order

[199] For these reasons, the orders of Mitrow J. dated September 21, 2014 and Aston J. dated March 23, 2016 shall be further varied as follows:

1. The parties shall have joint decision-making responsibility with respect to the child.

2. The parties shall consult and confer with each other before making significant decisions about the child’s wellbeing. In the event the parties are unable to reach an agreement after having a meaningful discussion, whether in person, virtually, or electronically, the mother shall make the final decision and keep the father informed.

[200] The final order to be issued in this case shall be a combination of paragraphs 169 and 199.

Costs

[201] If the parties are unable to resolve the issue of costs, the mother may make written submissions within ten days of the release of these reasons. The father shall have ten days after the receipt of the mother’s submissions to respond. The submissions shall be no more than 3 pages, double-spaced and a minimum of 12-point font, together with a bill of costs and any offers to settle. The party opposing a claim for costs shall include in their submissions documentation showing their own fees and expenses: see Family Law Rules, O. Reg. 114/99 r. 24(12.2).

“Justice B. Tobin”

Justice B. Tobin

Released: November 9, 2021

COURT FILE NO.: FC1674/12-3

DATE: 2021-10-18

ONTARIO

SUPERIOR COURT OF JUSTICE

FAMILY COURT

BETWEEN:

Ahmad Mohamed Zorab

Applicant

• and -

Arwa Nehad Saleh Zourob

Respondent

REASONS FOR JUDGMENT

TOBIN J.

Released: October 18, 2021

[^1]: Bala, N., Bill C-78: The 2020 Reforms to the Parenting Provisions of Canada’s Divorce Act, (2020) 39 C.F.L.Q. 45, at p. 31 and footnote 83. The CLRA amendments are substantially the same as the Divorce Act amendments.

[^2]: The mother’s brother owned a travel agency in Turkey. He asked the mother to work in that agency. The mother considered this opportunity as a way to earn income to support her and the child while she pursued her education.