COURT FILE NO.: FC-19-00000057-0000
ONTARIO
SUPERIOR COURT OF JUSTICE, FAMILY COURT
BETWEEN:
Chantal Martine Wilson, Applicant
– and –
Darren Edward Wilson, Respondent
COUNSEL:
Jeffrey Van de kleut, for the Applicant
Vaiya Ellsworth, for the Respondent
HEARD: August 28 and 31, 2020
Supplementary Submissions Received September 1, 2020
Oral Reasons Delivered September 2, 2020
REASONS FOR DECISION
Nicole Tellier J.
OVERVIEW AND PARTIES’ POSITIONS
1This case concerns the future parenting plan for Wesley Wilson, born April 9, 2014, now aged 6 and his sister Olivia Wilson, born April 2, 2016 now aged 4. The parents agree on joint decision-making. The mother, Chantal Wilson, wishes to relocate permanently with the children to Dieppe, New Brunswick, a small francophone community outside Moncton. She has the support of her parents and extended family there. This promotes her own well-being and allows her to pursue her studies. By virtue of geography, the father, Darren Wilson, would have very limited parenting time, probably only one long weekend during the entire school year, plus the bulk of the school holidays, augmented by telephone, text or facetime contact, four times weekly.
2Father opposes the children’s relocation away from eastern Ontario. He proposes a shared parenting regime, based on both parents living in relatively close proximity in Quinte West, Ontario. This is where the family chose to settle to facilitate his new career path within the military. He believes shared parenting would make for better joint decision-making and communication about matters touching on the children’s well-being. He asks that mother take the children into her full-time care when he is required to be away from home for work, as she did during their marriage, and in turn, commits to being flexible to accommodate any employment schedule she may ultimately secure.
3Alternatively, if mother chose to remain in New Brunswick without primary care of their children, then they would reside primarily with him and his new blended family in Prince Edward County. Mother’s parenting time would be similarly limited in a slightly different configuration.
4The child and spousal support entitlements and obligations can only be determined once the parenting issues are resolved. The parties agree there is an entitlement to spousal support in the mid-range but do not agree on duration. They agree the spousal support should be reviewed upon the earlier of mother’s full-time employment or September 2022.
5Last summer, approximately a year following the parties’ separation, mother sought father’s formal consent to relocate to New Brunswick with the children, then aged 5 and 3. At the time, they were in a shared parenting arrangement. Mother proposed living with her parents, while pursuing post-secondary studies for a year at New Brunswick College in the education field. Father, a member of the Canadian Armed Forces stationed in Trenton, was on the eve of commencing a new intensive training period, with the hope of securing a permanent position as part of a rapid response unit, namely the CJIRU. This unit provides a rapid chemical, biological, radiological and nuclear response for special operations missions.
6The parents achieved a compromise which allowed them both to pursue their respective training and career advancement plans, by permitting mother to reside temporarily in New Brunswick with the children for the school year and part of the summer, 2020. This also gave the parents, and indeed the court, an opportunity to see how this parenting arrangement might work on a more permanent basis. Their agreement, which prohibited future reliance on a newly created status quo residence and maintained this court’s jurisdiction, was memorialized in a consent order dated July 11, 2019.
7Father successfully completed his training and successfully obtained the desired new position. Mother, who had not been in school for some years, struggled. As a result, she did not complete her studies within the year, as anticipated, so she would have to repeat four courses, to obtain the intended designation. Father’s contemplated contact time with the children did not pan out due to the coronavirus pandemic.
8The parties’ parenting issues, including mother’s permanent relocation request, needed resolution prior to the commencement of the school year in September 2020. The parties agreed to bifurcate the parenting issues from the support issues, as the latter would logically flow from the court’s decision on parenting and they hoped to achieve a consent on the financial issues, once the parenting plan outcome was known. The parties agreed, as part of the consent temporary relocation, that the permanent parenting plan would be adjudicated on a final basis in the summer of 2020, at a focused hearing before me.
9The hearing came on only days before school was due to start so the court rendered its ruling, with brief oral reasons, on September 2, 2020, with further written reasons to follow. The court ordered that the children reside in Ontario and that they attend Massassaga-Rednersville Public School in Prince Edward County, commencing September 2020. Since then, the parties achieved a comprehensive final consent arrangement on all parenting and support issues, as well as the costs arising from the relocation hearing. A final order shall issue in that regard.
PARTIES’ PROPOSED PARENTING PLANS
Mother’s Parenting Plan
10Mother’s proposed plan was to continue studying to achieve certification as an Education Assistant, through a combination of on-line instruction and practicum placements. Her plan was to take two courses per semester on-line, while working part-time at Garderie La Cartine Daycare Inc. If successful in her studies, in June 2021, she would begin her placement hours. Assuming she was able to secure consecutive full-time placements, she would achieve her certificate in mid-October 2021 making her eligible for full-time employment only after the academic year had started. Mother believes she would find work by mid-school year but a more realistic target for a full-time position would likely be September 2022.
11Mother’s parents were an integral part of her parenting plan; their support and availability are offered as one of the main benefits arising from her proposed move. She planned to continue to live with them in the foreseeable future, until she was sufficiently established financially to live autonomously.
12Mother proposed that commencing September 2020, both children would attend school in French at École Anna-Malenfant, with Wesley to start grade one and Olivia to start junior kindergarten. They would continue to attend the Powerpoint Daycare. These facilities are relatively close to mother’s parents’ home, where she resides. The transportation to and from school would be shared by mother and the maternal grandparents.
13Mother’s health plan involves Dr. Wybouw as the family physician, her childhood doctor, and follow-up appointments with specialists Dr. Noris and Dr. MacDonald, as required. Wesley was belatedly placed on a wait list at mother’s proposed school for a speech therapist, but mother’s evidence was that he will not likely be given priority. Dr. Seger is the chosen dentist. Mother did not secure counselling for Wesley, accepting the stated advice of social worker, France Daigle, who only met with mother and not the children or father, that they did not need counselling.
14Under mother’s plan, father would have the children in his care: all of March Break; Easter weekend; all of the summer except for the weekend before school starts; and all of the Christmas holidays in odd-numbered years and about half of the Christmas holidays in even numbered years. Additionally, there would be contact by text, phone or facetime, 4 times weekly. This contact schedule assumes father is not deployed and therefore available during these restricted times for contact or in-person parenting time. Lastly, her proposal provides that the children spend one weekend monthly in the care of their paternal grandparents, who reside about an hour away in Nova Scotia.
15The mother’s original plan did not address travel logistics or costs. At the court’s urging she submitted a proposal. The mother was willing to help with the travel in two ways. At the beginning and the end of the summer, she would meet father at Levi, Quebec, which is more than halfway between Dieppe and Belleville by about 2 hours. This would be her annual contribution to the physical part of the children’s inter-provincial travel. The other travel at March Break, Easter and Christmas would be by auto and air. This would entail car rental costs for Mom, and gas and hotels expenses for both parents. She proposed that father’s annual costs associated with travel for his parenting time be set-off by or deducted from her monthly spousal support entitlement, on a tax adjusted basis.
Father’s Parenting Plan
16Father proposed the children reside equally with both parents in the Quinte West Region, Ontario, as they had post-separation, prior to the temporary relocation. There is some rhythm to his new duties in that he alternates between a year focused on training at CFB Trenton, followed by a year where he is on the ready to be deployed, possibly on little or no notice. Deployments usually do not exceed 3 months at a time. In this context, father asked that mother take on more parenting responsibilities while he is deployed, as she did while they were married. He, in turn, offered as much flexibility as possible in developing a schedule which aligns with any new employment she might secure.
17If mother stayed in New Brunswick without their children, in the face of a ruling prohibiting her permanent relocation there, he proposed that the holidays be shared relatively equally but that mother have two extra floating weeks a year, including during the school year, at her election.
18Father proposed the children attend Massassaga-Rednersville Public School in Prince Edward County, where he resides. The children’s step- brother is a student there. It has small class sizes. There is a before-and-after school program on site. As this is a rural setting, the children would be bussed to school. Jamie-Lee Wilson, father’ s spouse, would likely get them on the bus in the mornings and father plans to be the pick-up parent at the end of the school day. Father is open to committing the children to French language learning outside of school. To her credit, mother ultimately consented to the children attending this school, if the court ruled that they should return to Ontario, even though it was not her preferred choice for a local Ontario school.
19The parents had not secured a family physician since their initial move to Belleville in August 2017 from Petawawa. Father proposed they work jointly to locate one, while continuing to use the health services on the base or in the community, on an as needed basis.
20Father and Jamie had arranged for Wesley to be assessed by Holly Erwin, speech pathologist, prior to the temporary one-year parenting plan being agreed to. She determined Wesley’s language impairment fell within the severe range and made the appropriate referral to the School Based Rehabilitation Program. This referral was placed on hold due to mother’s temporary relocation. Wesley was on a pre-qualified wait list for speech therapy services in Ontario. Father intended to continue to advocate for services for Wesley.
21With mother’s consent, father arranged for Wesley to attend counselling with Tracy Holt, family counselor at Military Family Services, upon his return to Ontario this past summer. This is on-going.
ANALYSIS
The Legislative Framework
22This relocation request is brought within the parties’ initial application for divorce and corollary relief. Their parenting dispute falls under section 16 of the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.), which reads as follows:
Order for custody
16 (1) A court of competent jurisdiction may, on application by either or both spouses or by any other person, make an order respecting the custody of or the access to, or the custody of and access to, any or all children of the marriage.
Interim order for custody
(2) Where an application is made under subsection (1), the court may, on application by either or both spouses or by any other person, make an interim order respecting the custody of or the access to, or the custody of and access to, any or all children of the marriage pending determination of the application under subsection (1).
Application by other person
(3) A person, other than a spouse, may not make an application under subsection (1) or (2) without leave of the court.
Joint custody or access
(4) The court may make an order under this section granting custody of, or access to, any or all children of the marriage to any one or more persons.
Access
(5) Unless the court orders otherwise, a spouse who is granted access to a child of the marriage has the right to make inquiries, and to be given information, as to the health, education and welfare of the child.
Terms and conditions
(6) The court may make an order under this section for a definite or indefinite period or until the happening of a specified event and may impose such other terms, conditions or restrictions in connection therewith as it thinks fit and just.
Order respecting change of residence
(7) Without limiting the generality of subsection (6), the court may include in an order under this section a term requiring any person who has custody of a child of the marriage and who intends to change the place of residence of that child to notify, at least thirty days before the change or within such other period before the change as the court may specify, any person who is granted access to that child of the change, the time at which the change will be made and the new place of residence of the child.
Factors
(8) In making an order under this section, the court shall take into consideration only the best interests of the child of the marriage as determined by reference to the condition, means, needs and other circumstances of the child.
Past conduct
(9) In making an order under this section, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the ability of that person to act as a parent of a child.
Maximum contact
(10) In making an order under this section, the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact.
23Sections 16(8), 16(9) and (16)10 of the Act lay the framework for the court’s analysis in determining custody and access. Section 16(8) directs that the court only consider the best interests of the child, having regard to that child’s unique needs and circumstances. As noted in Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27 at paragraphs 44 and 50, the best interests test remains unchanged and central to the determination in the relocation context. The consideration of section 16(10) is particularly important here, given the significant impact a permanent relocation to New Brunswick would have on the children’s time in their father’s care.
The Impact of Joint Decision-Making on Relocation
24One of the main issues in Gordon v Goertz was the weight or deference to be given to a primary parent or the parent with sole decision-making authority when considering a relocation request. Notably it was a variation case. Here the parents agreed to a joint decision-making model and the permanent relocation request arose at trial, not on a motion to change.1
25The parents’ consent to joint custody or joint decision-making signals that they value each other’s views on matters affecting the well-being of their children and believe their children benefit from their equal input when major decisions need to be made. The decision-making model is an important element of every parenting plan. In these circumstances, where father’s contact and parenting time would be minimal, the court was keen to see if this aspect of his parenting role was workable from such a distance.
26It is well established law that effective communication is essential to the success of joint decision-making. Parents must be aware of upcoming decisions. They need to have and share the information required to make fully informed decisions and they need to communicate their views and opinions to each other openly and respectfully. This model assumes parents work collaboratively, not unilaterally. It is against this backdrop, that the court considered the relative success or failure of this element of the proposed parenting plans.
27A number of important decisions had to be made in the year the children resided temporarily in New Brunswick, including: whether they would be in daycare and, if so, where; what school Wesley would attend; who would be their family physician; whether testing for and treatment speech pathology would be pursued and, if so, by whom; and whether counselling for Wesley would be pursued and, if so, by whom.
28Mother’s relocation necessitated immediate access to healthcare services for the children. She was able to join her childhood family physician’s Dr. Wybouw’s patient roster, as were her children. She did this without consulting father and only provided him with the doctor’s name and contact information after several requests. Father tried to get information directly from Dr Wybouw, without success.
29While in NB, both children exhibited various health problems requiring referrals to specialists Dr. Noris and Dr. MacDonald. Both children had raspy voices. Dr. MacDonald’s report notes that Olivia had a mild articulation disorder and that Wesley had small vocal nodules. He recommended Wesley get speech therapy and that he undergoes a fiberoptic laryngoscopy in the summer.
30Mother delegated this area of parental responsibility, namely health care, to her parents. They arranged and attended the children’s medical appointments in her absence. It was not until father was served with mother’s affidavit sworn July 30, 2020 that he received the written reports of Dr. Macdonald arising from the children’s appointments in March or came to know that Dr. Noris had seen Olivia on February 14, 2020 and was investigating whether Olivia had a heart murmur. No doubt many parents need and benefit from the help of others in discharging their parental responsibilities, especially caring family members. But mother’s reliance on her parents was more of an abdication and resulted in very poor communication with the father about the children’s on-going, pressing health issues.
31Father’s communication efforts with his co-parent were not without shortcomings. He delegated this task to Jamie too frequently. Mother felt his communication style was overly critical.
32Father approached mother about the upcoming school selection before she left Ontario but she replied that she would contact him to discuss it later. He wrote mother several times asking about the school until she finally informed him on September 8, 2019 that Wesley was registered at Anna Malenfantis French School. Father was not consulted; he was informed after the fact. Not only did mother select the school without input from father, she unilaterally changed their language of instruction from English to French. And she did so knowing that Wesley struggles with speech and language.
33Father called the school twice in September leaving messages asking that Wesley’s teacher call him back. He did not receive a return call from anyone at the school. Father had to ask mother several times for Wesley’s first term report card; she sent him an email photo of it a month after she had received it.
34Mother’s proposed education plan was to put both children in French school. Other than bedtime stories, the children were not spoken to in French by their mother during marriage. Father says that during his video calls with Wesley, Wesley was visibly distraught when he shared that he was struggling at school because he could not understand his teacher.
35The parents agree bilingualism enhances opportunity. But mother did not discuss this educational plan with father. Nor had she considered how father might become involved in their children’s education, especially from a distance, when their schoolwork and report cards would be in French, a language he does not speak. He would likely encounter difficulty communicating with their educators.2
36Mother did not consult father regarding Olivia’s daycare or Wesley’s before and after school care arrangement. What he learned was predominantly from the children directly during their video calls. Father did not have any specific concerns regarding daycare until May 2020, when he discovered that both children were in daycare full-time. Mother had already finished with her school year; she was unemployed and was at home during the day. Most of the daycares were closed due to the pandemic and those that were open were to provide childcare to essential workers. At the end of May, father wrote mother indicating he did not want the children attending daycare, being exposed to unnecessary risk, if she was neither studying nor working full-time. He proposed a middle ground whereby the children would attend a couple of times per week to provide them with socialization and give mother and her parents a break, while minimizing the virus exposure risk.
37Mother continued to take the children to daycare over father’s objection. He tried to contact the day care to learn more. The staff did not return his call. He later learned mother had indicated on the daycare registration form, when translated, “Do not contact the father”. Mother said she informed the daycare and the school that she and her parents were the contact people. This does not explain her directive that father be precluded from being contacted.
38I conclude, on all the evidence before me, that mother did not make the necessary effort to inform or involve father about current or future decisions and events in a manner consistent with their joint decision-making agreement. She acted unilaterally and failed to keep father fully informed in a timely manner. Distance was not an insurmountable obstacle, given their available communication tools and technologies. Further, I find that mother did not appreciate the significance of her part in their communication failure. These findings weigh heavily in the overall analysis and ultimate result.
Other Best Interests Considerations
39Wesley and Olivia are fortunate to enjoy regular contact with both sets of grandparents, despite the approximate 1300 km distance between them. Mother’s plan would give the children the benefit of being part of her large extended family in New Brunswick. As part of their temporary order, the children saw their paternal grandparents monthly and her proposed plan continued that practice.
40There was evidence from both parents that the maternal and paternal grandparents left their homes in Eastern Canada and came to visit their grandchildren in Ontario regularly and, in the case of the maternal grandparents, for an extended period of time. I have no doubt that they will continue to do so, as permitted by COVID related restrictions and their own health, if the children are resident in Ontario. Although retired, the maternal grandparents are relatively young. This means Wesley and Olivia’s return to Ontario will not deprive them of these familial attachments.
41While mother’s parenting plan includes the children regularly spending time in the care of their nearby paternal grandparents, it necessarily entails a corresponding reduction in the children’s time with their stepsiblings and stepmother in their new blended family. The children’s relationships and attachments to all extended family members, on both sides, so to speak, cannot replace or compensate them for their loss of time with her father, with whom they enjoy a strong bond.
42Both parents gave evidence about the benefits of their proposed home communities. Both parents live in smaller communities, with ready access to nature. The children would likely become bilingual if they lived in Dieppe. Father supports extra French language education and lives in southeastern Ontario where there are Francophone and bilingual communities nearby. Mother concedes her own bilingualism may be an added asset in any future job search in Ontario, should she return. Father contends Ontario affords the children more choices and opportunities, including educational ones.
43This case highlights the difficulty of crafting parenting plans for military families. Mother argues that she can provide the children with a permanent home base whereas father may be transferred elsewhere. This may be true in many other instances but not here. The parents chose to leave Petawawa, where they lived for almost 10 years, to move near CFB Trenton, precisely so father could train for a position that offered residential permanency, with fewer deployments. He testified this move was also motivated by their shared view that Quinte West would be a great location to raise their family. Father successfully joined the CJIRU. As a rapid responder, the father’s work entails some absences from home, which can easily arise without warning. Deployments last 3 months on average.
44So what does this mean in practical terms? If the children were to remain in NB, father would have regular contact by text, phone and facetime throughout the school year. While technology allows separated parents and children to keep in contact, it is a poor substitute for a parent’s actual physical touch and affection as well as contact like rough housing, playing games or sports, or watching your child participate in school events or their chosen activities. All of father’s parenting time would occur during holidays, creating a marginalized role and presence in their care and upbringing.
45Another concern is the real possibility the scheduled contact and time in Ontario will not always occur. It took several months for father to secure regular, frequent video calls. When mother was unavailable for the scheduled call, her parents refused to facilitate them in her stead. Father described them as being hostile towards him. Father gave evidence that mother interfered while the remote contact was actually in progress. He believes this shows her support for the calls was lacking. In my view, as the children age and become more involved in extra-curricular activities and they become more preoccupied with their peer relations, there is a good chance their availability and desire to participate in regularly scheduled calls with their father may wane.
46Under mother’s plan, two visits are scheduled in winter over the March break and Easter weekend. Much of this limited time would be taken up with travel. These visits may need to be aborted or shortened due to inclement weather. And there is also the very real possibility that father may be deployed during part or all of his scheduled parenting time, in any given year. The school year and distance effectively preclude make-up time.
47Father will have to relinquish his parenting time and delegate his responsibilities on little or no notice, when he is deployed. Under his plan, father asks that mother care for the children fulltime during those unpredictable absences, unless she is agreeable to Jamie fulfilling his parental duties while he is away. This is a big ask, but it is feasible. Since it is anticipated both parents will be working fulltime, childcare arrangements will be in place for when Wesley and Olivia are not in school, in any event. Mother can elect to have the children cared for in their father’s home while he is away. If father has a lengthy deployment, perhaps mother can be compensated with temporary extra child support. These logistics are far more manageable than those presented by mother’s plan.
48Part of the court’s inquiry is directed at determining each parent’s ability to meet any special needs of their children. I have already concluded that mother delegated responsibility for the children’s health care to her parents. As a team, they delayed in organizing a full speech assessment through school or elsewhere and in pursuing speech therapy for Wesley.
49Father and Jamie had already arranged for Wesley to be assessed by Holly Irwin, a speech and language pathologist at Quinte Healthcare before it was agreed the children would temporarily reside in NB. The speech pathologist determined that Wesley’s needs fell within the severe range and that he qualifies for speech support through the School Based Rehabilitation Program.
50Mother participated in a call with the speech pathologist before she left so she was aware of this assessment and was told that Wesley required speech therapy. Father provided mother with the Speech Pathology Report, which he received by mail on September 10, 2019. Mother thanked him and told him she would pass it on to Wesley’s teacher. Other than the referral to Dr. McDonald mentioned above, mother did not arrange for Wesley to engage in speech therapy in the year that he was away. His standing on the wait list at school in Dieppe was low priority.
51Father gave evidence that both children exhibited uncharacteristic and concerning behavior following their temporary relocation to NB. For several months, Wesley exhibited angry and aggressive behaviour. He would scream and throw himself on the ground. He would plug his ears to avoid listening to his mother. Mother even called father to show him Wesley’s behaviour on video and asked him and Jamie to help intervene. Father also witnessed this behaviour during some of his scheduled video calls. In February 2020, mother reported to father that she was punishing Wesley because he had been screaming for hours, while destroying his room.
52Wesley was experiencing pain during his bowel movements. Mother did not have this checked out by their physician claiming it was an untreatable genetic issue. Father expressed his concern mother was ‘treating’ Wesley by giving him tic tac candies for the pain. It was father’s view that duping him like this was an inappropriate way to teach children about the use of medication.
53Father witnessed Olivia hit, spit and kick her mother during his video calls. It was father, not mother, who had to provide direction to her about appropriate behaviour towards her mother. Olivia left Ontario completely toilet trained but regressed and stopped using the toilet for bowel movements once in NB. During father’s visit with the children at Christmas, he noticed marks on Olivia’s body; she was actively picking at her skin and scabs. Given how many months these behaviour’s persisted, they suggest the children failed to adjust to their new residential arrangement, including their separation from father and, further, that mother was struggling to help them regulate their behaviour.
54The parents discussed some form of therapeutic support for the children. Mother asked father to call social worker, France Daigle, to provide her with insurance coverage information. He delegated this task to Jamie. Jamie was informed that Ms. Daigle would render an account for payment and then the insured parent could claim reimbursement. Jamie confirmed that father’s plan would cover Ms. Daigle’s services. Father assumed it was going ahead and was expecting to receive paid invoices for submission to his insurer for reimbursement. Mother accuses father of dropping the ball.
55Father states he followed up several times, expressing concern that the children had not yet seen the counsellor. Sometime in December 2019, mother told father she had found another counsellor to see Wesley. Father asked for information regularly. In April 2020, father wrote to mother expressing his frustration that she had informed him Wesley had been signed up for counselling, but it had yet to take place. Father implored mother to ensure Wesley saw someone.
56A couple of weeks later in May 2020, mother replied that she had done some research over Christmas and found a child psychologist who asked that mother consult with her to determine the child’s needs. She went on to report she had a second consultation, again without the children, to provide an update and this unnamed psychologist determined services were not necessary as the children were doing fine. These consultations took place without father’s prior knowledge or participation. Mother’s vague explanatory email to father about this is troubling.
57Father took steps to seek out an appropriate counsellor for Wesley upon his scheduled return to Ontario in mid-July and mother consented. Father’s efforts to secure both a speech pathologist and a counsellor for Wesley in his home community demonstrates he is both attuned to the children’s special needs and capable of sourcing the professional help they need. By contrast, mother failed to secure either speech therapy or counselling for Wesley in the 10+ months they were in her primary care in NB.
58Mother has a history of addiction to pain medication for her fibromyalgia. Wesley suffered drug withdrawal following birth. This was a source of conflict in the marriage with mother rejecting father’s urging that she seek professional help. Following separation, mother completed a rehabilitation program in November 2018. She is currently being treated with methadone. She is working towards complete abstinence.
59Father remains concerned about this. He described mother as someone who requires considerable support to function generally and gave examples of this in relation to her parenting abilities, both during marriage and post-separation.
The Maximum Contact Principle
60The court’s consideration of the maximum contact principle is mandatory. Although the SCC notes in Gordon v. Goertz that the goal of achieving maximum contact is not absolute, the Court also states that the… “judge must bear in mind that Parliament has indicted that maximum contact with both parents is generally in the best interests of the child.”. See paragraph 24, citing Young v. Young [1993] 4 S.C.R., and paragraph 25.
61I have noted above the obvious limitations posed by remote video parenting time or parenting during holidays only. Under section 16(10) of the Divorce Act, the court must also consider each parents’ willingness to facilitate contact with the other parent in arriving at its custody determination. The video contact ought to have been better supported by mother. At Christmas 2019, the paternal grandparents drove the children from New Brunswick to Ontario and back again. This gave Wesley and Olivia 9.5 days with her father and his family in Prince Edward County. Father facilitated 7 video calls between the children and mother in that timeframe. Fathers scheduled parenting time for March break and the long Easter weekend in 2020 were prohibited by the travel restrictions in place arising from the pandemic.
62In the face of this lost parenting time, father wrote to mother on May 12, 2020 asking that the children be returned to him in Ontario then, rather than the previously agreed return of mid-June. Neither the children nor mother were in school anymore so there were no impediments to an early return. Mother replied with a thumbs-up emoji. Father responded immediately with excitement indicating he had confirmed with the NB government that the border was open for child custody exchanges. Mother then replied “You can’t just pick up the kids, there are laws with our court case. I suggest you read your court orders. I have the children here in New Brunswick until July 15. ” Father made a second attempt for an early return in early June. The parents could not come to any agreement regarding the length of time he might have the children, that is whether they would stay with him until their scheduled July 15th return, so it never came to pass.
63The temporary relocation consent order was achieved because it gave each parent an opportunity to pursue their educational goals. By the time father requested the children’s early return to Ontario, his training away had ended early as had the children’s schooling because of the pandemic. Mother’s refusal to provide father with make-up time for the missed March break and Easter weekend and her refusal to return the children to Ontario early was unreasonable and not child- focused. This is precisely the kind of inflexibility and controlling conduct that the so-called unfriendly parent rule directs the court to consider. These refusals, which occurred while mother was under court scrutiny, lead me to conclude, father would likely encounter difficulty securing his already limited parenting time, in addition to the difficulties arising from distance or deployments.
64I accept father’s evidence, supported by other observers, that he was always an engaged parent, starting with his parental leaves after each child’s birth, continuing throughout the children’s lives. This is not a case where a less involved parent can achieve the same or similar level of contact with his or her children when the other parent is allowed to relocate post-separation. I see no added benefits to the children under mother’s relocation plan which would warrant such a significant reduction in father’s parenting time.
65Limited parenting time, coupled with limited or no say in decisions affecting the children, would amount to a qualitatively different parenting arrangement than what was in place during the marriage and post-separation, when the temporary relocation occurred. It would amount to a significant and lasting removal of the father from many aspects of the children’s lives, especially direct physical contact and parenting of them. This is contrary to their best interests.
CONCLUSION
66Having considered and compared each parent’s proposed parenting plan, as well as each parent’s ability to meet their children’s needs, I conclude father’s shared parenting plan in Ontario serves the children’s best interests. Accordingly, the mother’s request to relocate with the children to Dieppe, New Brunswick with the children is denied.
67Between the time the court delivered reasons orally on an urgent basis in the fall and the release of these written reason, the parents devised a fresh shared parenting plan for Ontario. The court commends them for resetting their co-parenting relationship, especially following their participation in the more adversarial hearing process.
Footnotes
- Much of this law is soon to be eclipsed by the passage of new Divorce Act which provides a new comprehensive statutory scheme for relocation cases.
- For a comprehensive summary of the law on choice of school, as between French or French Immersion, see Sussman v. Fabrega 2020 ONSC 5162. See also Perron v. Perron, 2012 ONCA 811.