Kent Bradley Sammon v. Susan Anne Krajewski

Court File No.: FC-17-1996 Date: 2021/12/17 Ontario Superior Court of Justice

Between:

Kent Bradley Sammon Applicant

– and –

Susan Anne Krajewski Respondent

Counsel:

Cynthia Squire for the Applicant

Richard P. Bowles for the Respondent

Heard: November 22-26, 2021

Reasons for Judgment

Justice Engelking

Introduction

[1] Pursuant to the endorsement of Justice Audet dated November 3, 2021, this is a trial to be decided in two parts. The first is with respect to the issues of primary residence and parenting time of the child, B.R.S., born in November of 2015. The second, which will take place in the January 2022 trial sittings, is with respect to the outstanding financial issues.

[2] The court must determine which of the parents’ plans are in B.’s best interests, Mr. Sammon’s plan for his primary residence to be in Renfrew with parenting time with his mother in Kapuskasing or Dr. Krajewski’s plan for B. to reside in Kapuskasing with parenting time with his father in Renfrew.

[3] For the reasons that follow, I find that it is in the best interests of B. that his primary residence be with his mother, Dr. Krajewski, with specified parenting time with Mr. Sammon.

Background Facts

[4] Mr. Sammon is a registered nurse who works fulltime at the Renfrew Victoria Hospital (“RVH”) in Renfrew, Ontario. Dr. Krajewski is a general surgeon currently employed by the Kapuskasing & District Professional Health Care Recruitment and Retention Committee in Kapuskasing, Ontario.

[5] Mr. Sammon and Dr. Krajewski met when they both worked at RVH. They commenced a relationship in 2013. As indicated, B. was born in November of 2015. The parties separated on or around June 1, 2016. They were never married.

[6] Mr. Sammon has four children from his previous marriage, three sons C. (19), L. (15), J. (13) and one daughter, O. (13). C. is independent, but Mr. Sammon shares parenting of the younger three children with his former wife on a 50% basis.

[7] Dr. Krajewski has one son from a former relationship, N. (10), who now resides in her fulltime care in Kapuskasing.

[8] After separation, and pursuant to Interim Minutes of Settlement dated May 25, 2017, the parties agreed to joint custody of B. and a 2-2-3 shared parenting schedule, which later changed on agreement to a week on/week off schedule. There were subsequent court orders and further Interim Minutes of Settlement which refined, streamlined or specified portions of the parties’ agreements, but essentially, a shared decision-making and parenting schedule remained in place until September of 2020.

[9] Dr. Krajewski found the work environment very stressful when both she and Mr. Sammon returned to work after their respective parental leaves, and in May of 2018, she took a medical leave from her position at RVH. In March of 2019, Dr. Krajewski resigned from her position as the hospital was unable to accommodate scheduling in a manner which would, in her view, reduce that stress. She subsequently worked on locums, including at the Sensenbrenner Hospital in Kapuskasing, while she searched for fulltime employment. In July of 2020, Dr. Krajewski advised Mr. Sammon that she had been offered a one-year contract position in Kapuskasing as a general surgeon commencing in September of 2020. She wished to move to Kapuskasing with B. and Mr. Sammon did not agree. An urgent motion on whether Dr. Krajewski would be permitted to relocate with B. to Kapuskasing was heard by Justice Mackinnon on September 17, 2020. It appears that for the purposes of a temporary order and pending a final one, Dr. Krajewski’s position was that B. should spend alternating months with her in Kapuskasing. Mr. Sammon’s position on the motion was that B. should reside primarily with him in Renfrew.

[10] In her decision dated September 21, 2020, Justice Mackinnon found at paragraph 19: “The overriding consideration is [B.’s] best interests and it is clearly my view that they are best served by remaining in his father’s care during the twelve months of the mother’s employment contract, with liberal and generous parenting time to her in Kapuskasing and in Renfrew.” Justice Mackinnon found this is part due to the uncertainty of Dr. Krajewski’s employment at the end of her one-year contract.[^1] Justice Mackinnon deferred the issue of specifying Dr. Krajewski’s parenting time until her new work schedule was known and a decision on her ability to relocate with her other son, N. was known.

[11] On September 25, 2020, Justice James released his decision permitting Dr. Krajewski to relocate to Kapuskasing with N. on a temporary basis with access to N. by his father to be in Dr. Krajewski’s discretion and in accordance with N.’s best interests.

[12] On October 8, 2020, Justice Mackinnon released her deferred decision on Dr. Krajewski’s parenting time with B., which was as follows:

• October 16 to 20 in Renfrew – the evidence revealed that Dr. Krajewski, her partner, Kurtis and N. travelled by vehicle to Renfrew round-trip for this visit

• November 13 to 22 in Renfrew – Dr. Krajewski and N. travelled by vehicle to Timmons and then flew to Ottawa round-trip for this visit

• December 19 to January 9, 2021 in Kapuskasing – B. was exchanged in Temagami on December 19, 2020, and Mr. Sammon travelled by vehicle to Kapuskasing on January 9, 2021 to pick him up

• February 11 to 16, 2021 in Renfrew – the dates of this visit were changed to February 18 to 23, 2021 and Dr. Krajewski, Kurtis and N. travelled by vehicle to Renfrew round-trip

• March 13 to April 4, 2021 in Kapuskasing – the dates of this visit were changed to April 9 to May 1, 2021 and B. was exchanged in Temagami on April 9, 2021 and driven back to Renfrew on May 1, 2021 by Dr. Krajewski, Kurtis and N.

• May 20 to 25, 2021 in Renfrew – Dr. Krajewski and N. travelled by vehicle round- trip

• Six weeks during the summer of 2021 in Kapuskasing – this visit occurred from July 4, 2021 to August 15, 2021. B. was exchanged in Temagami on July 4, 2021 and returned to Renfrew by Dr. Krajewski by vehicle on August 15, 2021

• Additional weekend visits in Renfrew with notice, and

• FaceTime contact on Mondays, Wednesdays and Fridays and on either Saturday or Sunday

[13] Unless Dr. Krajewski chose to fly to and from Ottawa, all exchanges of B. for time in Kapuskasing were to occur in Temagami, Ontario.

[14] Given that Justice Mackinnon’s schedule ended in the summer of 2021, the parties agreed upon further parenting time leading up to this trial and into December of 2021. Dr. Krajewski, thus, also had parenting time with B. from September 15 to 19, 2021 in Renfrew, where she drove to Timmons and flew to and from Ottawa, from October 8 to 17, 2021 in Renfrew, where Dr. Krajewski, Kurtis and N. travelled by vehicle round-trip, and November 10 to 14, 2021 in Renfrew, where Dr. Krajewski, Kurtis and N. travelled by vehicle round-trip. B. is also scheduled to spend some time in Kapuskasing over the Christmas break commencing on December 27, 2021.

Positions of the Parties

[15] It is Mr. Sammon’s position that he and Dr. Krajewski should continue to have joint decision-making authority for B., and that B. should reside primarily with him in Renfrew, with Dr. Krajewski’s parenting time with him scheduled on a yearly basis to include the majority of school holidays, with the exception of each Christmas and three weeks in the summer, and to be exercised in either Kapuskasing or Renfrew. Mr. Sammon believes that it is B.’s best interest to remain in Renfrew as he has lived there his whole life, goes to school there, has friends and extended family there and lives with three of his siblings on a half time basis there.

[16] It is Dr. Krajewski’s position that it is in B.’s best interests to have his primary residence in Kapuskasing with her and his brother, N. and that Mr. Sammon have specified parenting time with him in 2022, in both Kapuskasing and Renfrew, which would include major holidays and six weeks in the summer. Dr. Krajewski is of the view that she is, and has always been, very attuned to B.’s needs, and is best suited to meet them. It is her further position that for 2023 and subsequent years, the parties should agree upon a parenting schedule by November 1 for the following year.

[17] At trial, Dr. Krajewski was content for there to be an order of joint decision-making authority with Mr. Sammon, and this has ceased to be an issue.

Analysis

[18] Although this has become a case about relocation due to Dr. Krajewski’s circumstances, this is a trial of the application commenced by Mr. Sammon on January 26, 2017 and amended by him on June 24, 2021. In his original application, Mr. Sammon was seeking an order of joint custody (decision-making authority) and shared parenting, as well as spousal and child support. In his amended application, Mr. Sammon included a request for “An order for the child’s primary residence to be with the Applicant father in Renfrew, Ontario.”

[19] In her Answer dated March 20, 2017, Dr. Krajewski made claims for custody of B., child support and access for Mr. Sammon. In her amended Answer of June 16, 2021, Dr. Krajewski requests to be able to relocate B. to Kapuskasing and she seeks to be compensated for her contribution to renovating Mr. Sammon’s home based on a claim of unjust enrichment. She also disputes Mr. Sammon’s claim of spousal support.

[20] As these parties were never married, their respective claims are pursuant to the Children’s Law Reform Act, R.S.O. 1990, c.C.12, as am and the Family Law Act, R.S.O. 1990, c.F.3, as am. Section 39.4 of the recently amended Children’s Law Reform Act governs a situation where a person intends to relocate a child and it provides:

Authorization of relocation

39.4 (1) In this section,

“family arbitration award” has the same meaning as in the Arbitration Act, 1991.

Same

(2) A person who has given notice of a proposed relocation in accordance with section 39.3 and who intends to relocate a child may do so as of the date referred to in the notice if,

(a) The relocation is authorized by a court; or

(b) No objection to the relocation is made in accordance with subsection 39.3(5) and there is no order prohibiting the relocation.

Best Interests of the child

(3) In determining whether to authorize the relocation of a child, the court shall take into account the best interests of the child in accordance with section 24, as well as,

(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 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;

(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;

(e) The existence of an order, family arbitration 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 decision-making responsibility, parenting time or contact, taking into consideration, among other things, the location of the new residence and the travel expenses; and

(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.

Factor not to be considered

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

Burden of proof

(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 interest 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 interest 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 interest of the child.

Burden of proof, exception

(8) If an order referred to in subsection (5) or (6) is an interim order, the court may determine that the subsection does not apply.

Costs of relocation

(9) If a court authorizes the relocation of a child, it may provide for the apportionment of costs relating to the exercise of parenting time by a person who is not relocating between that person and the person who is relocating the child.

[21] Mr. Sammon submits that Dr. Krajweski carries the burden of demonstrating that a relocation of B. to Kapuskasing is in his best interest, based either on the order of Justice Mackinnon of September 21, 2020 or the previous agreements and orders which provided for a shared parenting schedule. Dr. Krajewski. submits that, pursuant to subsection 39.4 (8) of the CLRA, this court can, and should, determine that subsection 39.4 (5) does not apply. Rather, she asserts that in this case, because it is a hearing of the original application, subsection 39.4 (7) applies and the parties share the burden of proving whether the relocation is in the best interests of B. or not. With this I agree.

[22] Unless it reinforces a pre-existing status quo, a temporary order does not, in my view, create a new status quo. It is simply a holding order, pending the final outcome of the matter. Thus, Justice Mackinnon’s temporary order of September 24, 2020 granting primary residence of B. to Mr. Sammon did not create a new status quo. The status quo of these parties, almost from the time of B.’s birth, was one of shared parenting. However, because this is the hearing of the original application, subsection 39.4(5) does not apply and both parties, in my view, share the burden of demonstrating to the court which of their respective plans for B. is in his best interests.

[23] In coming to a determination on that issue, I am instructed by subsection 39.4 (3) of the Act to consider both the best interests factors outlined therein as well as those outlined in subsection 24(3) of the Act.

Subsection 24(3) Best Interest Factors

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

[24] This trial was done by the evidence-in-chief of all witnesses being given by affidavit, upon which they were then cross-examined and re-examined. The evidence before me demonstrates that Dr. Krajewski is the parent most tuned into B. needs, developmental and other wise.

[25] To begin with, her affidavit sworn on November 18, 2021, is primarily about B., his needs and her efforts and ability to meet them. By contrast, a great deal of Mr. Sammon’s affidavit sworn on November 17, 2021 is about Dr. Krajewski. To be fair to Mr. Sammon, he did not know until the trial that Dr. Krajewski was accepting of an order of joint decision-making authority. Nevertheless, his affidavit is still, to an inordinate degree, focused on what he sees as issues or communication difficulties with Dr. Krajewski. In her affidavit, Dr. Krajewski, on the other hand, described B. at length, including the positive aspects of his personality and intelligence as well as his struggles and frustrations. She also described her efforts and strategies deployed to assist B. in overcoming them.

[26] Second, the evidence demonstrated that when Dr. Krajewski raises issues about B.’s behaviors or attitudes which require attention or correction with Mr. Sammon, he ignores her, minimizes her concerns or reacts to her in a passive aggressive manner. One example of this is an exchange between them on Our Family Wizard (“OFW”) between March 6 and 15, 2019,[^2] wherein Dr. Krajewski identified to Mr. Sammon that B. had become very difficult to put to bed, indicating he “is absolutely hysterical and difficult to settle”. Mr. Sammon responds that B. “does not have behavior problems here”. And although Dr. Krajewski had indicated in her message to Mr. Sammon of March 13, 2019 that B. sleeps in the same room as N. and that B. has only slept in her bed twice (in response to Mr. Sammon’s original query), Mr. Sammon’s response of March 15, 2019 goes on to state: “He does not have bedtime struggles here, prior to his bedding with you, that is.” While Dr. Krajewski’s message is about B. and what he is experiencing at bedtime, Mr. Sammon tells Dr. Krajewski that B.’s “biggest behaviour problem is when he’s going back to you”, and he seems to dismiss her concern about what B. has told her he has watched at Mr. Sammon’s house by saying: “There are other children here who get screen time that is age appropriate for them, and obviously varies from Brady’s viewing”. Mr. Sammon then goes so far as to say: “My entire family knows this situation well. We are all aware it is your preference to take [B.] away from us. (via staged DUI, parenting accusations, etc).” Mr. Sammon’s response seems disproportionately aggressive to the issue being discussed (and originally initiated by him), that being B.’s difficulties at bedtime.

[27] Dr. Krajewski provides another example at paragraph 191 of her affidavit[^3] regarding her having raised concerns about B.’s reaction to not getting what he wants, and Mr. Sammon’s response by text message dated June 13, 2019 was:

I will say…[B.] is able to benefit a fair amount with driving activities here. When he’s alone with me, he has me 1-on-1 for everything. When his sibs are here, they are very much people pleasers (or Brady pleasers) and he commands much attention, and everyone is happy to do things Brady’s way. Paw Patrol on TV – he is largely catered to in every way. It’s all just love and good attention. Sorry if it causes him to be overly demanding there. He’s definitely your son. You’re both obsessed with control, and not happy whenever control is contested.

[28] Again, rather than engage in a discussion which seriously attends to the issue Dr. Krajewski is raising about B.’s behaviour, Mr. Sammon dismisses her concern, and accuses her of being obsessed with control. His response, to say the least, is not helpful, most particularly to B.

[29] Dr. Krajewski has also expressed concerns about B.’s absences from online learning while in Mr. Sammon’s care. Her evidence is that B. was engaged in online learning from January 4 to 8, 2021 in her care in Kapuskasing, and that when he returned to Mr. Sammon’s care, B. attended 2 of 10 days of online learning between January 11 to 22, 2021. School then became in-person for a time and returned to online learning on April 19, 2021. B. attended remotely for two weeks while in her care. He returned to Mr. Sammon’s care on May 1, 2021 and was there for the remainder of the school year. According to Dr. Krajewski, who was relying on B.’s report card[^4], as well as an attendance record that she received from the school[^5], B. attended one day of school in May and one day in June. Both her and Mr. Sammon’s evidence was that for a student to be considered present each day, he had to either attend a portion of online synchronous learning or submit an asynchronous learning assignment. Overall, B. was noted to have missed 57 days of school in the 2020/2021 school year.

[30] In his affidavit at paragraph 100, Mr. Sammon acknowledged that B. “had numerous absences in the 2020/21 school year”, but blamed them on Dr. Krajewski, stating “he was in Kapuskasing with the Respondent for many weeks at a time during the school year”. When faced with evidence about the absences occurring largely while in his care, Mr. Sammon disputed that B. was extensively absent from school, stating that he was likely marked absent in error because on the days that B. did not attend online synchronous learning while in his care, he did submit asynchronous learning assignments. Unfortunately, Mr. Sammon did not provide any evidence from B.’s school to support that this was in fact the case. Additionally, it is contrary to his evidence that L. was assisting B. with online schooling while he worked. Thus, on the face of the evidence before me, I find that B. missed 57 days of school last year, most of them while in the care of Mr. Sammon.

[31] Dr. Krajewski noted improvements in B.’s most recent Report Card[^6], which she attributes in a significant part to the work and attention she was able to expend on and do with B. over his six weeks with her in Kapuskasing in the summer, which attribution Mr. Sammon did not really dispute.

(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

[32] B. has very strong and positive relationships with both of his parents. He is well loved and cared for in both homes, and he is closely bonded to Mr. Samman and to Dr. Krajewski.

[33] B. also has several siblings, four on Mr. Sammon’s side and one on Dr. Krajewski’s. Mr. Sammon’s eldest son, C., lives independently of his parents, but he still visits and, along with his girlfriend, has a presence in B.’s life. Mr. Sammon’s younger three children, L., J. and O., live with him week on/week off. According to Mr. Sammon, although they are only officially with him half of the time, they frequently drop by or visit when it is not their week with him. B. does not attend the same school as these siblings, and the nearest in age to him are the thirteen-year-old twins, J. and O.

[34] Dr. Krajewski’s son, N., lives with her on a fulltime basis. Until Dr. Krajewski and N. moved to Kapuskasing, B. essentially grew up with N, who is 10 years of age.

[35] Dr. Krajewski’s evidence as to her relationship with Mr. Sammon and B.’s early life was as follows:

• She and Mr. Sammon met in May of 2012.

• They began a public relationship in January of 2013.

• She met Mr. Sammon’s children in June of 2013.

• They began to spend time in each other’s homes in the fall of 2013; during the relationship they maintained their own homes and paid their own mortgages and expenses.

• B. was a planned pregnancy. While pregnant, Dr. Krajewski and N. lived in her home on Rosebrugh Road.

• In the summer of 2015, Dr. Krajewski and Mr. Samman agreed to renovate Mr. Sammon’s home to accommodate the blending of their families there together.

• B. was born in November of 2015 and Dr. Krajewski, N. and B. moved into Mr. Sammon’s renovated home in December of 2015.

• Dr. Krajewski took maternity leave from October of 2015 to the end of March 2016, at which time she returned to work part-time (3 days per week, 5 hours per day). Mr. Sammon also took a parental leave from the end of May 2016 to November of 2016. While both were on leave, they cared for B. together.

• Dr. Krajewski went back to work fulltime in the middle of May 2016.

• At the end of May 2016, Dr. Krajewski, N. and B. moved back into her home on Rosebrugh Road. Mr. Sammon cared for B. during the day, and he spent evenings and weekends with Dr. Krajewski.

• B. had a fulltime caregiver, Tynna McChesney, in Dr. Krajewski’s home from November of 2016 through December of 2018

• B. lived with Dr. Krajewski and N. approximately 60% of the time from November 2016 to September 2017.

• From September 2017 to September 2020, B. lived with both parents equally, originally on a 2/2/3 schedule and later on a week about schedule.

[36] Mr. Sammon’s evidence differed somewhat from Dr. Krajewski’s in that he indicated they started living together in the fall of 2013, though he did not indicate where (in whose home), and that his parental leave began in March of 2016. Mr. Sammon indicated that he was B.’s primary caregiver from March to November of 2016, when he returned to work, though in the same breath he stated that Dr. Krajewski “treated me as her paid babysitter”, which actually supports her evidence that B. was with Mr. Sammon during the day while she worked, and with her and N. the remainder of the time. Mr. Sammon then stated that once Tynna was hired Dr. Krajewski severely limited his time with B., including by preventing him from having overnight visits. This evidence is not supported by Tynna, who indicated the following at paragraphs 7 and 8 of her November 18, 2021 affidavit[^7]:

7. On the days that [B.] was overnight with Brad, [B.] would be dropped off in the morning before Brad went to work. Initially, [B.] would be dropped off to Susan before I arrived. There were several times that I arrived, and Susan was quite upset. I did not witness these instances, but it sounded as though Brad could be quite rude and aggressive at handovers.

8. Ultimately, I started coming earlier so that I could be there for handovers and then agreed to meet Brad at the highway for exchanges. I left early in order to do this and this probably saved Brad 10-15 minutes each morning. I’m quite certain he never thanked me for this.

[37] Tynna’s evidence supports that Mr. Sammon was in fact exercising regular parenting time over the period of her involvement, including overnight parenting time. Additionally, Mr. Sammon’s own evidence of text messages exchanged between him and Tynna over the same period also supports this.[^8] Nevertheless, B. lived primarily with Dr. Krajewski until the shared parenting regime was implemented in September of 2017.

[38] As I indicated above, although B. has spent time with all of his siblings, he essentially lived and grew up with N. until September of 2020, but for the days he was in Mr. Sammon’s care.

[39] N. and B.’s relationship is described by Dr. Krajewski, her fiancé, Kurtis Millette, Ms. McChesney, and Dr. Krajewski’s friends, Jennifer Grant and Tyson Andress as very close, “greatly bonded”, always thinking of the other, wanting to talk to/see the other virtually, extremely happy to see each other in person, buying things for the other and “inseparable”.[^9] They constantly play together, and N. teaches B. about all kinds of things and helps him with his reading. They sleep in the same room at Dr. Krajewski’s home. They went to school and took the bus together in Renfrew, and they would go to school and take the bus together again in Kapuskasing. I have little difficulty finding that B.’s relationship with N. is extremely important to him. N. plays a very significant role in B.’s life, and it is in B.’s best interests that their relationship be preserved and fostered to the greatest extent possible.

[40] This is not to say that B. does not have a close relationship with his other four siblings. He does. However, the eldest lives independently and the younger three live with Mr. Sammon part of the time. They are seven, nine and twelve years older than B. respectively, as opposed to four. B. thrives on the attention he receives from C. and his girlfriend, when they visit “every other week or two”[^10], and he is noted to have a very good relationship with L., who assisted him with on-line learning part of the time. When J. is in Mr. Sammon’s home, he and B. share a bedroom. O. plays with B. and sometimes does math and reading with him.[^11] By his own admission, however, as noted in paragraph 27 above, the role that Mr. Sammon’s children play, by and large, is to indulge B., to his possible determent. Their relationships with B. are very different than that which B. has with N., and I find that they can be readily maintained and fostered through Mr. Sammon’s parenting time.

[41] B. is also close to his grandparents on Dr. Krajewski’s side, both biological and adoptive, and with his grandmother on Mr. Sammon’s side. Based on Mr. Sammon’s work schedule, his mother, Monika Sammon currently provides before school care for B. She spends a great deal of time with B. and they have a very close relationship. It is not, however, a relationship which should usurp either Dr. Krajewski or N.’s relationship with B. They can continue to have a grandchild/grandmother relationship through his father, as do Dr. Krajewski’s parents through her and as do most grandparents.

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

[42] Although Mr. Sammon sees himself as most accommodating and flexible, he appears to really struggle in genuinely supporting B.’s relationship with Dr. Krajewski. Mr. Sammon’s communications are largely negative, or at least unfailingly seem to have a negative element or slant to them. I have outlined some examples above, but there are many others. On one occasion in 2018, Mr. Sammon refused to sign a travel consent for Dr. Krajewski to travel with B. and family friends because of “parental child abduction” concerns, noting: “My concern is, and will continue to be – that you are not coming back on one of these occasions.”[^12] I heard no evidence over the course of the trial that would lead to the conclusion that any such risk ever existed in this file. Ultimately Mr. Sammon signed the travel consent, but all his refusal would accomplish is such a scenario is to deprive B. of an opportunity he would not otherwise have.

[43] A particularly glaring example of Mr. Sammon’s approach to Dr. Krajewski occurred in January of 2021, after she suffered a broken ankle which required surgery while B. was in her care. B. was scheduled to return to Mr. Sammon’s care after the Christmas break, and Dr. Krajewski intended to drive him to Temagami for the exchange as Mr. Millette was going to be away at work. On January 3, 2021, Dr. Krajewski sent Mr. Sammon a message on OFW advising him of the break and surgery. In her message, Dr. Krajewski stated the following:

This does raise some problems with transferring [B.] back to Temagami.

I applied for a variation in order to drive him but am now unable to drive as it is my right ankle in a cast.

Laurie was going to try to come for the week and then drive him back but Evan’s roommate just tested positive for COVID.

Options are:

1. You drive here to pick him up next weekend

2. He stays here for online learning and Kurtis can meet you in Temagami when he is back from work.

3. My colleague has to travel to Hamilton for a procedure and was willing to take [B.] as far as North Bay. She suspects that this will be in the next 2 weeks but it has not been scheduled yet.

I am off clinic for a minimum of 4 weeks and likely unable to operate for 8 weeks or so, I will be home for at least the next month…

[44] To understand her message, it is important to know that firstly, Mr. Millette was at the time working in the north on a two week in/two week out schedule. Secondly, in March of 2020, Dr. Krajewski had been charged with impaired driving, which charge was withdrawn and replaced with a guilty plea on one count of careless driving under the Highway Traffic Act, R.S.O. 1990, c H. 8 with a one-year probationary period commencing August 21, 2020, which included a condition not to drive except for work purposes. Once she moved to Kapuskasing, Dr. Krajewski needed to (and did) apply to have the condition varied to permit her to drive for custody/access purposes as well. This is, in fact, noted in the decision of Justice Mackinnon dated September 21, 2020 at paragraph 20.[^13]

[45] Mr. Sammon’s response to Dr. Krajewski’s January 3, 2021 message was a) completely lacking in empathy and b) accusatory. In it, he stated[^14]:

Your foot fracture is unfortunate, but kind of unrelated. It appears had your foot not been broken, we would be in the exact same situation, because of lack of planning. You embarked on this custody arrangement with a solid plan to get [B.], but it appears you never had a plan in place for returning him. That is disappointing, and extremely destructive to our co-parenting, to say the least.

My lone recommendation, and the only plausible one, is that you will have to accompany [B.] via bus, to the arranged meeting point in Temagami.

[46] Frankly, the vitriol in this message is incomprehensible. First, Dr. Krajewski informed Mr. Sammon that she had applied to vary her driving condition “in order to drive him”. Clearly it was her intention to drive B. to Temagami, but for the ankle injury. Second, Dr. Krajewksi made efforts to find an alternative (her friend, Laurie) prior to even contacting Mr. Sammon. Third, Mr. Sammon had never, on any other occasion, done the drive to Kapuskasing; this was a one-time suggestion in exceptional circumstances. Fourth, Dr. Krajewski provided other options (waiting for Mr. Millette or for her colleague to be able to drive B. down, either of which would have been perfectly acceptable given that B. was at that time engaged in online learning). Finally, the “only plausible” recommendation, according to Mr. Sammon was, in fact, the least plausible one given that it would entail an 8-hour trip each way by bus on a post-surgical, non-weight bearing, broken ankle with a 28 hour lay over (and possibly another child, N., in tow). Ultimately, Mr. Sammon drove to Kapuskasing to pick B. up, which was, in fact, the only plausible option if he didn’t want to wait an extra week or two (with Dr. Krajewski at home) for B. to be delivered to Temagami or North Bay.

[47] Similarly, in the summer of 2021, Dr. Krajewski was willing to drive to Renfrew to pick up B. so that she could arrange a visit for B. with her parents prior to returning to Kapuskasing for six weeks. This would have saved Mr. Sammon an eight-hour drive, however, Dr. Krajewski needed to return to Kapuskasing on July 4, 2021. She, therefore, asked Mr. Sammon on June 24, 2021 if she could pick up B. one day early, July 3, to see her family before driving back. Dr. Krajewski’s evidence is that she would also have been willing to bring B. back one day early at the end of her six weeks. Mr. Sammon’s response to her request was: “I don’t understand why you would feel so entitled to be demanding extra days at the 11th hour.”[^15] Dr. Krajewski’s request was neither demanding nor at the 11th hour; it was simply a request and ultimately not even for an extra day. It was also intended to be benefit B. Alas, it did not happen, and Dr. Krajewski reverted to picking B. up in Temagami on July 4, 2021.

[48] Dr. Krajewski also included in her evidence numerous messages from Mr. Sammon which were about B. being nervous, not wanting to come, not liking being with Mr. Millette, and not liking to FaceTime with Dr. Krajewski.[^16]

[49] Additionally, in an April 4, 2019 OFW message to Dr. Krajewski, Mr. Sammon accused her of several professional improprieties, including improperly accessing his and his ex-spouse’s medical charts and abusing him at work, and advised her he had made an anonymous complaint in relation thereto to the College of Physicians and Surgeons of Ontario (“CPSO”). Mr. Sammon stated in his message:

Obviously, they were clear that some of this triggers automatic punitive measures, while some is subject to investigation. I have had no interest in any of that becoming reality, despite the fact I was urged to, which would have been reasonable given the legitimacy. I am supportive of you, as [B.’s] mother, and will continue to cooperate so that you may work at every opportunity, and that shared custody functions smoothly.[^17]

[50] It is entirely unclear to me from their exchange why such information was included in Mr. Sammon’s communication. Even if Mr. Sammon had (or has) legitimate concerns in this regard, they are completely unrelated to the purpose of the exchange, which was to organize dates for Mr. Sammon to care for B. so Dr. Krajewski could work some locums. His references to her alleged wrongdoings, therefore, seem intended, for reasons unknown, to humiliate, intimidate or somehow threaten Dr. Krajewski.

[51] Mr. Sammon has nevertheless indeed frequently accommodated Dr. Krajewski’s parenting time in relation to her work schedule, most particularly when she was working locums in 2019 and 2020 prior to obtaining her contract with the hospital in Kapuskasing. It was, however, in his interests to do so as well, as both he and B. benefited financially from Dr. Krajewski’s ability to work. Dr. Krajewski was also during this period seeking to change the 2/2/3 schedule to week about to precisely permit her to work locums more effortlessly, without constantly having to seek accommodation from Mr. Sammon.

[52] Mr. Sammon experiences Dr. Krajewski as generally difficult to communicate with and he identified one OFW message sent by her on July 2, 2020 which he found inappropriate.[^18] For the most part, however, her messages tend to focus on logistical arrangements, and she indicated in her evidence that she tries now to simply acknowledge Mr. Sammon’s concerns, if he expresses any, and to no any longer engage. Although she too finds Mr. Sammon difficult, Dr. Krajewski’s evidence is that she is fully supportive of B. having a very positive relationship with him, and with his siblings and grandmother in Renfrew. Indeed, Dr. Krajewski would have liked N. to continue to have a relationship with Mr. Sammon’s children post-separation, but Mr. Sammon was not supportive of this. Dr. Krajewski has promoted and maintained a relationship by. N. with his father’s other son by another relationship, R., who lives in Ottawa. She provided evidence of maintaining contact with R.’s mother, arranging virtual visits between the boys and recently having an in-person visit in Ottawa.

[53] Dr. Krajewski has also offered to Mr. Sammon to send pictures of himself and B.’s family to put up in the play room in Kapuskaping, while B. is there, and she offered over Christmas of 2020 and on another occasion to have B.’s siblings and paternal grandmother FaceTime with B. anytime.[^19]

[54] Additionally, Dr. Krajewski attests to not speaking ill of Mr. Sammon to or in the presence of the children, and this is supported by Mr. Millette, Mr. Andress and Ms. Grant, all of whom indicate they have never heard Dr. Krajewski say anything negative about Mr. Sammon to or in front of B. The same cannot, I fear, be said of Mr. Sammon, whose own messaging to Dr. Krajewski in March of 2019 included: “My entire family knows this situation well. We are all aware it is your preference to take [B.] away from us.” Clearly, Mr. Sammon has, by his own admission, shared very negative messaging about Dr. Krajewski to his own children (who would have been approximately 17, 14 and 10 at the time). Whether B has been exposed to any such messaging is an unanswered but concerning question.

[55] On another occasion in 2019, Dr. Krajewski had to advise Mr. Sammon that she “will not engage in any type of discussion about parenting at our exchanges in front of our child”[^20], and that he was welcome to express his concerns in writing through OFW. Mr. Sammon’s response was to say B. was being dressed by his brother in another room at the time, and he “merely asked you if you had worked through your anger, and reached a point where you could effectively co-parent with me & have more open communication.”[^21] He then accused Dr. Krajewski of becoming very angry. Mr. Sammon appears to have missed the point that the exchange was within the earshot of B. and ought not to have happened at all.

[56] Mr. Sammon has indicated in his affidavit that if B. would continue to reside primarily with him in Renfrew, he would facilitate contact between B. and his maternal grandparents, who live in Ottawa[^22]. However, no evidence was led before me that he has done so in the past year, and Dr. Krajewski indicated that Mr. Sammon’s first invitation for them to visit with B. was received from Mr. Sammon in October of 2021[^23], despite her requesting it “many moons ago” (as acknowledged by Mr. Sammon in his message).

[57] Overall, I find that Dr. Krajewski is more focused on what is beneficial to B. and is, therefore, the parent better equipped to support his relationships not only with his other parent, but with the other people who are important to him.

(d) The history of care of the child

[58] This has been largely dealt with above. Although B. was in mostly the primary care of Dr. Krajewski in his early years, he has been subject to a shared parenting regime since September of 2017, up until September of 2020, that is.

[59] Dr. Krajewski appears to have also been the parent most likely to attend to B.’s educational medical and other needs. She coordinated and attended all of Brady’s medical appointments. Most astonishingly, this includes taking B. for his MMR vaccine in Renfrew when she was most recently there in November of 2021. If he did not have it before November 12, 2021, B. would have been unable to attend school, however, Mr. Sammon took no steps to ensure B. had this vaccination. He attempted to cast the blame for this on Dr. Krajewski for not appropriately informing him of the requirement. However, Mr. Sammon has had B. in his primary care for more than a year and has access to both his medical practitioners and school records. That he did not, as B.’s primary parent, arrange for him to receive the required vaccination is puzzling, in the very least.

[60] Dr. Krajewski coordinated and attended all of B.’s dental appointments, even after she moved to Kapuskasing. She attended his optometry appointments, coordinated (and paid for) his in-home childcare needs, registered him for daycare, registered him for school, registered him for swimming lessons, basketball and soccer, obtained a library card for him and obtained his health card and passport.

[61] Mr. Sammon complains that Dr. Krajewski does these things unilaterally and fails to inform or consult him. However, OFW contains several exchanges over the issues of daycare, registration for kindergarten and kindergarten orientation[^24]. Dr. Krajewski testified that she does not typically inform Mr. Sammon of routine appointments, but that she has and would certainly do so for anything serious or out of the ordinary. On one occasion when B. was sick upon his return to his father’s care, Mr. Sammon declined Dr. Krajewski’s suggestion of taking him to his doctor, “Jen”, who was aware of the need and willing to see B. the following day, stating: “I’m sure Jen would take great care of [B.], but given her personal feelings towards me – I’ll just use ER if needed.”[^25] That Mr. Sammon would chose to take B. to an ER rather than take him to his own doctor for care (indeed, “great care”) based on the reason given is somewhat incomprehensible.

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

[62] The court has received no evidence as to B.’s views and preferences, which at six years of age would hold little weight in any event. To the credit of both parents, neither appears to have attempted to solicit views and preferences from B. for their own purposes before the court.

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

[63] This factor does not appear to be applicable. The parties’ approaches to same are in sync, for example in relation to B. attending a French immersion school, and I am confident that they will continue to jointly make decisions for him that are in his best interests when it comes to B.’s cultural, linguistic, religious and spiritual upbringing and heritage.

(g) Any plans for the child’s care

[64] Mr. Sammon’s plan is for B. to remain living in Renfrew with him and visiting with Dr. Krajewski in both Renfrew and Kapuskasing, essentially as he has been doing since September of 2020. His plan entails Dr. Krajewski having an extended weekend with B. in Renfrew or Eastern Ontario once per month, all extended school holidays, but for three weeks in the summer and alternating Christmas Eves and Days. Exchanges for Kapuskasing visits would continue to occur in Temagami. Dr. Krajewski would have regular FaceTime visits with B. on Monday, Wednesday and Friday, as well as on either a Saturday or Sunday from time to time. B. would continue to attend Central Public School in Renfrew. Monika Sammon would continue to provide before school (and other) care to B. so long as it is required, and she can do so.

[65] Dr. Krajewski’s plan is for B. to live with her, N. and Mr. Millette in Kapuskasing as of December 27, 2021, and to visit with Mr. Sammon for an extended weekend in February (Val D’Or hockey tournament), April (Easter in Renfrew), May (Kapuskasing), September (Kapuskasing), October (Thanksgiving in Renfrew) and November (Kapuskasing). Additionally, Mr. Sammon would have parenting time with B. for March break in Renfrew with the exchange to take place in Temagami, six weeks in the summer in Renfrew with the exchange in Temagami and from December 27, 2022 to January 7, 2023 in Renfrew with the exchange in Temagami. Dr. Krajewski would additionally bring B. to Ottawa/Renfrew when she attends a yet unscheduled medical conference in 2022. The parties would also create a parenting schedule for 2023 and each subsequent year by agreement by November 1 of the preceding year. Mr. Sammon would have regular FaceTime with B. on Monday, Wednesday, Friday and Sunday evenings. B. would attend Saint Patrick’s Catholic School in Kapuskasing.

[66] Both parents’ plans provide for joint decision-making authority and the ability of each parent to travel with B. with the consent of the other. Each would also have B. participate in extracurricular activities in accordance with his interests. Currently, B. is registered in hockey (Wednesday and Saturday) and “Small Ball” (yet to start at the time of trial).

[67] Mr. Sammon has the support of his mother, Monika, who lives very close to him, as well as B.’s siblings. Although Mr. Sammon also referenced his sister and brother as being included in his support system, his affidavit contained no evidence as to any specific role either have played in providing him support. Rather, his mother (and occasionally her partner) and his children appear to be the extent of Mr. Sammon’s support system. Indeed, in paragraph 86 of his affidavit, Mr. Sammon deposed: “[B.’s] ‘care team’ in Renfrew consists of his immediate family only. He is not left with caregivers or adults he does not know well while he is in my primary care” Based on some of the OFW messages Mr. Sammon has sent to Dr. Krajewski, I suspect that the latter sentence was intended to reference a contrast to when B. is in Dr. Krajewski’s care, but I cannot say this with one hundred percent certainty. In any event, Mr. Sammon appears to rely mainly on 76-year-old Monika Sammon and his 15-year-old son, L. to care for B. in his absence. Indeed, L. assisted B. with online learning when school was virtual, and on a few occasions Dr. Krajewski was required to return B. into the care of L. or J. rather than Mr. Sammon[^26]. Mr. Sammon’s colleague, Laura Mick, is also available to assist Mr. Sammon by covering the majority of his “on- call” evenings at the hospital.

[68] Mr. Sammon works Monday to Friday from 7:30 a.m. to 3:00 or 3:30 p.m. His plan is to continue with B. at Central Public School and for him to continue dropping B. with Monika Sammon in the mornings to prepare him breakfast and get him to school. Mr. Sammon will continue to pick B. up from school in the afternoons.

[69] Activities in which B. is engaged in Renfrew with his family include golf, hiking, picnics, water parks, snowshoeing, skating, attending the Drive-In and swimming.

[70] Dr. Krajewski’s support system in Kapuskasing consists of Mr. Millette, with whom she now lives, his parents, Noel and Florence, who live three minutes from her home and his sister, Marilyn, who lives eight minutes from her home. Marilyn and her husband also have three kids. Dr. Krajewski indicates that there are several families on her block that are available in an emergency, as are members of her and Mr. Millette’s “camping family” (four families who camp together every summer). Dr. Krajewski’s parents, Jean and Dick Krajewski also travel to Kapuskasing from Ottawa for visits and have previously provided care for N. when she was working locums. Her biological parents, Laurie Clark and John Dawson, have also each travelled from their respective homes (Toronto and British Columbia) to visit with the boys and/or care for N.

[71] Dr. Krajewski’s evidence is that the family dines at Florence and Noel’s home on Sunday nights, and that they have dinner with their “camping family” at least once every two weeks. They spend time together frequently with Marilyn and Shawn Carriere and their children, and they have also visited with Mr. Millette’s brother, Clayton, in Ottawa. Mr. Millette’s niece, Trinity, spent a week in Renfrew with the family, and also stayed with them in Kapuskasing to help out when Dr. Krajewski broke her foot.

[72] Dr. Krajewski has investigated available activities for B. in Kapuskasing, and they include hockey in a program similar to that in which he is enrolled in Renfrew, downhill and cross-country skiing (both of which she and N. both do), snowshoeing, ice fishing, soccer, softball, swimming lessons, tennis and the Kapuskasing Kids Sports program and Kapuskasing Kids park. These are in addition to the family’s seasonal trailer at Remi Lake Holiday Bay campsite, where the children engage in numerous activities, including swimming, boating, fishing and tubing.

[73] Dr. Krajewski has also ensured that everything that may be required is in place for B. to attend St. Patrick’s Catholic School in January of 2022, and this is confirmed by affidavit of the school Principal, Gretchen Morgan, sworn on November 18, 2021.[^27]

[74] Dr. Krajewski’s evidence is that pursuant to her work schedule, she is available before and after school every Tuesday, Thursday and Friday. She is in the OR on Monday and Wednesday and is on-call two nights per week and one weekend per month, which schedule may be reduced with the addition of a third General Surgeon to the Sensenbrenner Hospital, which is currently being negotiated. Mr. Millette, who earlier this year left his job which required him to work in the north and started his own contracting business, is available any morning or evening that she is not. The plan, therefore, is that B. would prepare for school and have breakfast at home. He would then go to school with N.

[75] I find that Dr. Krajewski’s plan is more fulsome and more child focused.

(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

[76] This factor has been addressed above. While both parents love and provide more than adequate physical care to B., Dr. Krajewski is more turned to what B.’s needs actually are. Her household is more structured, and she has more expectations regarding appropriate behaviour from the children. The activities in which her family engages are more consistently child focused. The evidence revealed that Mr. Sammon enjoys golf and plays a minimum of three timer per week during the golf season (May to October), one of which (Mondays) may involve B. and/or C. While Mr. Sammon is free to engage in any activity he pleases, this schedule takes up a great deal of time, time which he is not spending with B. or focusing on his interests and needs. B. is cared for by Monika or one of his siblings while Mr. Sammon is golfing. All activities in Dr. Krajewski’s house, on the other hand, are centered around the children, and often include some or all of Mr. Millette’s five nieces and nephews.

[77] Additionally, during cross-examination, Mr. Sammon was questioned about recently stating to N. at the hockey rink in Renfrew: “Your father misses you”. Mr. Sammon, who rarely has occasion to speak to N., admitted to making the statement and indicated, when asked, that he did not consider it inappropriate to do so. N.’s father, who is entitled to access at Dr. Krajewski’s discretion pursuant to an order of Justice James dated September 25, 2020, has not visited with him in almost two years. He has not contacted Dr. Krajewski since September of 2020, and she does not know his whereabouts or have a telephone number for him. In essence, he has abandoned N., something with which the boy has had to contend. Mr. Sammon said in re-examination that he “took the opportunity to send a message that his dad missed and loved him.” Dr. Krajewski’s impression was that he intended to suggest to N. that she was somehow getting in the way of N.’s father visiting him, which she submits is untrue. Mr. Sammon did not explain whether he had any recent contact with N.’s father or why he thought it necessary to convey that message to a 10-year- old boy. That Mr. Sammon did not appreciate the inappropriateness of his comment, or it’s potential impact on N, is extremely concerning, and does not, in my view, bode well in relation to his ability to meet the needs of a child, or put a child’s needs ahead of his own.

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

[78] This factor has been addressed. The parties can communicate and co-operate on matters affecting B., though that communication can be very challenging at times, to say the least. Although he considers his greatest strength to be communication, Mr. Sammon can, in particular, be very negative and resentful in some of his messaging, as outlined above.

(j) Any family violence and its impact on a person’s ability to meet the child’s needs or the appropriateness of an order which would require cooperation

[79] This factor is, thankfully, not applicable to these parents.

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

[80] As I indicated above, Dr. Krajewski was charged in March of 2020 with driving under the influence. She explained the incident in her affidavit and took full responsibility for the error in judgment she had made, including placing N. at risk, about which she has the “utmost regret”. She advised her family and close friends and reported the charge to the College of Physicians and Surgeons, which did an investigation and closed the file. She had one meeting with the Child and Family Services of Renfrew/Pembroke with no further follow up. Dr. Krajewski underwent an evaluation by Renfrew Addictions Treatment Service, which found no concern for a substance abuse disorder. She voluntarily abstained from alcohol for a period and underwent weekly urine screens to confirm it. She pled guilty to one count of careless driving and agreed to a one-year probationary period, which ended in August of 2021. What Dr. Krajewski did not do is advise Mr. Sammon of the charge, which she ought to have done. He only became aware of it from looking her up on the CPSO. However, there have been no further issues in this regard, and I find that while this incident is regrettable, it has no current relevance to the safety, security and well-being of B.

Subsection 39.4 (3) Factors

(a) The reasons for the relocation

[81] After things did not work out at the RVH, Dr. Krajewski needed to find a position where she could do surgery fulltime, or risk losing some of her credentials. She had been doing locums at the Sensenbrenner Hospital in Kapuskasing for some time, and she was offered a one-year contract in the spring of 2020 to commence in September of 2020. Dr. Krajewki had also already met Mr. Millette at some point, as by the time of trial they had been in an 18-month relationship. However, the clear reason for her relocation was because it was necessary for her career.

[82] Dr. Krajewski is now well settled in Kapuskasing. She has purchased a house. Her contract with the Sensenbrenner Hospital has been extended for a least three years, and is, for all intensive purposes, a permanent position. She is engaged to Mr. Millette, with whom she began cohabiting in October of this year. Her life, for the foreseeable future, appears to be in Kapuskasing.

[83] At the time of her temporary order of September 21, 2020, Justice Mackinnon was concerned about whether Dr. Krajewski’s situation was impermanent or not. She made the following observations in this regard:

Paragraph 13: “Not even the mother knows where she will be working and living at the end of her one year contract in Kapuskasing.”

Paragraph 15: “Here the concern is not whether a temporary order would be reversed at trial but the fact that the mother’s current proposal is not sustainable in the long term. If embarked upon now, after twelve months of demanding travel arrangements and life in two communities [B.] would undoubtedly face another set of changed circumstances whether the mother remains in Kapuskasing or not.”

Paragraph 17: “What resonates is that it is not knowable whether the move to Kapuskasing will be the final move for the mother and if so what the outcome of a future relocations application for [B.] may be.

Paragraph 18: “Unlike most cases the decision here does not turn on the comparative merits of the parents as parents. Rather, there is a genuine issue for trial created by the uncertainty of the mother’s future plans despite the good reasons for taking the contract position in Kapuskasing.”

[84] Unlike the temporary decision, this decision does turn on the “comparative merits of the parents as parents” (or their respective parenting plans). Given the reasonableness of Dr. Krajewski’s relocation and the permanency of her situation in Kapuskasing, I find for the reasons stated throughout this decision, that B.’s best interests dictate that he reside primarily with Dr. Krajewski in Kapuskasing.

(b) The impact of the relocation on the child

[85] Mr. Sammon submits that it would be unjustifiably disruptive to B. to relocate to Kapuskasing. B. has lived his whole life in Renfrew, as has Mr. Sammon. Mr. Sammon’s other children and his mother, with whom B. has close and loving relationships are in Renfrew. B. has only gone to school at Central Public School in Renfrew. He has friends at school and in hockey. B. has two dogs he adores and misses when he is not with him.

[86] Dr. Krajewski submits that while a move may have been disruptive to B. in September of 2020, that is no longer so. B. has now spent a great deal of time in Kapuskasing, and he is used to the travel between her home and Mr. Sammon’s. He is well integrated into her family and community, which includes the children on their street and their “camping family”, consisting of eight children and their parents. B. is very close to Mr. Millette’s family, particularly his nieces and nephews, with whom B. and N. spend much time. Most significantly, B. is with N. (and vice versa) when he is in Kapuskasing. Additionally, B. is only in Grade 1, and spent much of the last school year engaged in virtual learning. Dr. Krajewski submits that it would not be particularly disruptive for B. to attend St. Patrick’s Catholic School, particularly as he would be doing so, including busing to and from, with N.

[87] I agree with Dr. Krajewski. In my view, it would not be overly disruptive to essentially reverse the situation that has been in place since September of 2020, and have B. live primarily with Dr. Krajewski and spend significant parenting time with Mr. Sammon. The benefits of B. living in Kapuskasing with Dr. Krajewski, the parent whom I have found more capable of attending to his needs, and with N. fulltime, far outweigh the impact of the initial disruption.

(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

[88] This factor has been addressed above.

(d) Whether notice requirements were complied with

[89] This factor is not applicable in this case. Dr. Krajewski advised Mr. Sammon in July of 2020 of her anticipated move, and, as outlined above, the parties attended a motion on the issue of a temporary relocation in September. In any event, subsection 39.3(1) of the CLRA setting out the notice requirements was not in effect at the time.

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

[90] As I have indicated above, because this trial was the hearing of the original application of Mr. Sammon and answer of Dr. Krajewski, as amended, and not a variation of a previous final order, this subsection is also not applicable in this case. A decision is required on which of the parent’s plans is in the best interests of B. In my view, as I have outlined, it is Dr. Krajewski’s plan.

(f) The reasonableness of the proposal of the person who intends to relocate the child to vary parenting time or contact

[91] Mr. Sammon and Dr. Krajewski’s proposals for the other person’s parenting time, if B. is in his or her primary care, are very, very similar, and are, therefore, equally reasonable. They are, in fact, also very similar to what has transpired in the last year, except that Dr. Krajewski’s proposal is more reasonable as to the sharing of the transportation of B. for exchanges of parenting time. In the past year, she has, by far, assumed the burden of exercising her parenting time with B. She has done three exchanges in Temagami and nine roundtrips from Kapuskasing to Renfrew and back, which are approximately 19 hours each, while Mr. Sammon has done three exchanges in Temagami and one roundtrip (under protest) from Renfrew to Kapuskasing and back. Her proposal includes more sharing of the responsibility for travel, where she would be responsible for bringing B. to Ottawa/Renfrew for two long weekends over the course of the year.

(g) Whether each parent has complied with their existing obligations

[92] This factor is not applicable.

Order

[93] For all the reasons given above, there shall be a final order as per the proposed draft order of Dr. Krajewski pursuant to the CLRA as follows:

1. The Applicant ("Brad") and the Respondent ("Susan") shall share decision-making responsibility and authority for the child of the relationship, namely, B. R. S. born on November **, 2015.

2. On December 27, 2021, B, shall transition into Susan's care.

3. Commencing December 27, 2021, B.'s primary residence shall be with Susan.

4. Commencing January 3, 2022, B. shall attend at Saint Patrick's Catholic School in Kapuskasing, Ontario.

5. Brad's parenting time with B. will be as the parties shall from time to time agree, but shall include in 2022 the following:

(a) February 3-6, 2022 – N.'s hockey tournament in Val D'Or, Quebec or February 19-22, 2022 (long weekend) in Kapuskasing.

(b) March 12-26, 2022 (March break) in Renfrew. Exchange in Temagami. Allow flexibility for weather and call schedule.

(c) April 15-18, 2022 (Easter) - Susan to bring B. to Ottawa for Easter to spend the weekend with Brad in Renfrew.

(d) May 20-23, 2022 (Victoria Day) in Kapuskasing.

(e) July 3-August 14, 2022 (Summer) - 6 weeks allowing for flexibility for call schedules and vacation schedules (of both parties)

(f) September weekend, dates to be agreed upon, in Kapuskasing.

(g) October 7-10, 2022 (Thanksgiving) - Susan to bring B. to Ottawa for Thanksgiving to spend the weekend with Brad in Renfrew.

(h) November weekend, dates to be agreed upon, in Kapuskasing

(i) December 27, 2022 - January 7, 2023 in Renfrew, exchanges in Temagami. Allow flexibility for weather and call schedule.

6. Brad shall have FaceTime calls with Brady every Monday, Wednesday, Friday and Sunday weekly, the calls to occur after supper and before Brady's bedtime.

7. Each parent may travel with Brady. Each parent will execute the necessary travel consent letter (https://travel.gc.ca/travelling/children/consent-letter) upon request after being provided with the completed form by the traveling parent.

8. The parenting schedule for 2023 and each subsequent year to be addressed and agreed upon by November 1 of the preceding year.

Costs

[94] As this is Part I of the parties’ litigation, failing agreement by counsel as to the liability for costs of this Trial, costs submissions shall be deferred until Part II is completed. If the parties can resolve the financial issues without the necessity of a trial, the court can be advised and a schedule for costs submissions made at that time.

Released: December 17, 2021

Engelking J.

[^1]: See paragraph 18 of the Endorsement of Mackinnon J. dated September 21, 2020 [^2]: Trial Exhibit #6, Affidavit of Susan Krajewski sworn on November 18, 2021, Exhibit “H” and Trial Exhibit #5, Affidavit of Susan Krajewski sworn on November 18, 2021, paragraph 94 [^3]: Trial Exhibit #5, Affidavit of Susan Krajewski sworn on November 18, 2021, paragraph 191 [^4]: Trial Exhibit #1, Affidavit of Kent Sammon sworn on November 22, 2021, Exhibit “GG”, Report Card dated June 22, 2021 [^5]: Trial Exhibit #8 Attendance Record of B. dated June 15, 2021 [^6]: Trial Exhibit #1, Affidavit of Kent Sammon sworn on November 22, 2021, Exhibit “FF”, Report Card dated November 10, 2021 [^7]: Trial Exhibit #10, Affidavit of Tynna McChesney sworn on November 18, 2021, paragraphs 7 and 8 [^8]: Trial Exhibit #1, Affidavit of Kent Sammon sworn on November 22, 2021, Exhibit “D” [^9]: Trial Exhibit #5, Affidavit of Susan Krajewski sworn on November 18, 2021; Trial Exhibit #12, Affidavit of Kurtis Millette sworn on November 18, 2021; Trial Exhibit #10, Affidavit of Tynna McChesney sworn on November 18, 2021; Trial Exhibit #11, Affidavit of Tyson Andress, sworn on November 18, 2021; Trial Exhibit #13, Affidavit of Jennifer Grant sworn on November 18, 2021 [^10]: Trial Exhibit #1, Affidavit of Kent Sammon sworn on November 22, 2021, paragraph 78 (a) [^11]: Trial Exhibit #1, Affidavit of Kent Sammon sworn on November 22, 2021; Trial Exhibit #3, Affidavit of Monika Sammon sworn on November 16, 2021 [^12]: Trial Exhibit #6, Affidavit of Susan Krajewski sworn on November 18, 2021, Exhibit “A”, OFW message from Brad Sammon to Susan Krajewski sent on July 24, 2018 at 2:57 PM [^13]: Trial Exhibit #1, Affidavit of Kent Sammon sworn on November 22, 2021, Exhibit “O”, Endorsement of Justice Mackinnon dated September 21, 2020, paragraph 20 [^14]: Trial Exhibit 2A, OFW message from Brad Sammon to Susan Krajewski sent 01/03/2021 at 3:30 PM [^15]: Trial Exhibit #6, Affidavit of Susan Krajewski sworn on November 18, 2021, Exhibit “AA” [^16]: Trial Exhibit #6, Affidavit of Susan Krajewski sworn on November 18, 2021, Exhibits “H”, “P”, “Q”, “W” and “Z” [^17]: Trial Exhibit #6, Affidavit of Susan Krajewski sworn on November 18, 2021, Exhibit “J” [^18]: Trial Exhibit #1, Affidavit of Kent Sammon sworn on November 22, 2021, Exhibit “L” [^19]: Trial Exhibit #6, Affidavit of Susan Krajewski sworn on November 18, 2021, Exhibits “P” and “W” [^20]: Trial Exhibit #6, Affidavit of Susan Krajewski sworn on November 18, 2021, Exhibit “I”, OFW message from Susan Krajewski to Brad Sammon sent March 23, 2029 at 10:35 PM [^21]: Trial Exhibit #6, Affidavit of Susan Krajewski sworn on November 18, 2021, Exhibit “I”, OFW message from Brad Sammon to Susan Krajewski sent March 23, 2029 at 11:34 PM [^22]: Trial Exhibit #1, Affidavit of Kent Sammon sworn on November 22, 2021, Exhibit “L” [^23]: Trial Exhibit #6, Affidavit of Susan Krajewski sworn on November 18, 2021, Exhibit “KK”, OFW message from Brad Sammon to Susan Krajewski sent October 24, 2021 at 10:59 AM [^24]: Trial Exhibit #6, Affidavit of Susan Krajewski sworn on November 18, 2021, Exhibits “C”, “F” and “L” [^25]: Trial Exhibit #6, Affidavit of Susan Krajewski sworn on November 18, 2021, Exhibit “E” [^26]: Trial Exhibit #6, Affidavit of Susan Krajewski sworn on November 18, 2021, Exhibits “HH” and “JJ” [^27]: Trial Exhibit #9