ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Elisabeth Panduro

Applicant

– and –

William Josiah Edwards Davis

Respondent

Heather Hansen/Faria Soutter, for the Applicant

Brian Burke/Courtney Wile, for the Respondent

HEARD: September 14, 15, 16, 17 and 18, 2020

E.L. Nakonechny, J.

[1] This trial concerns a three-year-old child, F. The applicant, Lisabeth, and the respondent, Josiah, agree that they will share joint custody of F.

[2] Lisabeth and Josiah moved to Toronto from Victoria in 2014. F. was born in Toronto in 2017.

[3] The parties separated in late 2018. They shared decision making and agreed upon parenting time with F. in Toronto. In December 2019, Lisabeth took a job in Vancouver. She worked remotely in both Vancouver and Toronto. She moved to Vancouver permanently in February 2020. F. spends blocks of time with each party in an agreed-upon schedule in both Toronto and Vancouver.

[4] Lisabeth wants the child to reside primarily with her in Vancouver, British Columbia with access to Josiah in Toronto. Josiah wants the child to reside primarily with him in Toronto with access to Lisabeth in Vancouver.

[5] For the reasons that follow, I find that the child’s primary residence should remain in Toronto with Josiah.

Background

[6] Lisabeth and Josiah met in Victoria, British Columbia. They began dating in 2010 or 2011. Josiah was an assistant professor at the University of Victoria. Lisabeth worked at an insurance brokerage.

[7] Josiah was born In Washington, D.C. He attended university in Rhode Island (Brown), Cambridge, England (Cambridge) and Philadelphia, Pennsylvania (U. Pennsylvania). He taught for a year as a visiting professor in Indiana before moving to Victoria to teach in 2008. His parents and sister reside in the United States.

[8] Lisabeth was born and grew up in Victoria. She attended the University of Victoria and for one year at the University of Toronto. She has a large immediate and extended family and many lifelong friends who reside in Victoria, Vancouver and the surrounding area.

[9] In 2013, the parties began cohabiting in a townhouse owned solely by Lisabeth. Around that time, Josiah sought tenure at the university. He was not successful. Josiah did not want to continue teaching without tenure. He applied to and was accepted to attend law school at the University of Toronto commencing in September 2014.

[10] The parties married in July 2014. In August 2014, the parties drove from Victoria to Toronto for Josiah to attend law school. Josiah moved into student housing. Lisabeth returned to Victoria while she looked for work in Toronto. She leased her townhouse. In October 2014, Lisabeth returned to Toronto to work at Zurich Insurance Company.

[11] F. was born April 30, 2017. Lisabeth took a nine-month maternity leave.

[12] At the time F. was born, Josiah was completing law school and studying to write his bar admission exams in June 2017. He started his articles at the Gowlings law firm in the fall of 2017.

[13] Lisabeth took F. to Victoria to see her family and friends from September to November, 2017. During this time, Josiah had visits with F. by video and in person.

[14] Lisabeth returned to work part-time in January 2018, and full-time in April 2018. F. began attending daycare. She attends the same daycare today.

[15] Josiah began working as an associate at Gowlings in August 2018. By then the parties were having problems in their marriage. Lisabeth had returned to work full-time and was the primary caregiver to the child. Josiah was working long hours in a high-stress environment. Lisabeth felt socially isolated, exhausted and unsupported. She missed her family and friends.

[16] The relationship continued to deteriorate. Lisabeth wanted to move back to Victoria. Josiah did not agree. The parties had many disagreements. The marriage broke down in October or December 2018.

[17] Lisabeth applied for employment in British Columbia. In December 2018 she advised Josiah that she had accepted employment in Victoria and would be moving there with F. who was then about 1½ years old.

[18] Josiah did not agree to the child moving. Lisabeth commenced this proceeding and immediately brought an interim motion seeking permission to move with the child to Victoria.

[19] Justice Hood dismissed Lisabeth’s interim motion to relocate with F. to Victoria.

[20] Lisabeth remained in Toronto. The parties attended mediation and negotiated an interim parenting schedule. Josiah’s parenting time increased incrementally over a few months to an equal schedule. This schedule was incorporated into a consent order of Stewart J., dated August 6, 2019.

[21] In October 2019, Lisabeth advised Josiah that she was planning to move to Vancouver imminently. If Josiah did not agree to F. moving with her, the parties would need to put a parenting schedule in place. Lisabeth proposed a schedule for the child to spend a number of weeks with each parent in Toronto and Vancouver.

[22] The onset of the COVID-19 pandemic meant that both parties began working from home. Lisabeth has had parenting time with F. in Toronto and Vancouver. Josiah also works from home. He and F. have developed their own routines during their time together.

[23] The parties agree that the other is a good parent and that F. has a close and loving bond with each of them.

The Applicant’s Position

[24] Lisabeth states that she has been F.’s primary caregiver since the child’s birth. When Lisabeth found out that she was pregnant, she immediately began researching childcare, pediatricians and other supports for the child. She was happy, motivated and ready to be a parent with Josiah.

[25] Lisabeth acknowledges that Josiah took some role in parenting but says he worked constantly. Even when he was at home, he was working and did not help her much. Josiah took some time off after his bar exams and between articling and working as an associate when he was able to parent more equally.

[26] Lisabeth became very lonely and unhappy as the primary parent of a young child with no support network. She suffered situational depression. She lost weight. She felt she was failing both as a mother and at work.

[27] Lisabeth denies that the parties agreed to move to Toronto permanently. She knew that Josiah was not comfortable living in Victoria and did not want to continue teaching there after he did not receive tenure.

[28] Josiah applied to the University of Toronto because he believed it was the best law school. Lisabeth had attended university in Toronto and had enjoyed living there. She still had some friends in Toronto. Lisabeth agreed to move to Toronto on the understanding that they would move back to British Columbia at some point. She did not sell her townhouse in Victoria because it was her intention to return to live in it. Lisabeth conceded that there was no specific plan as to when the parties would move back.

[29] After her maternity leave ended, Lisabeth told Josiah she was looking for work in Victoria. She thought he would agree to look for work there as well so the parties could parent F. together. Josiah told her he wanted to stay in Toronto for at least five years to concentrate on his career. Despite this, Lisabeth continued to apply for positions in Victoria.

[30] The parties’ relationship did not improve when Josiah began working at Gowlings as an associate. He continued to work long hours and Lisabeth continued to feel isolated and unhappy.

[31] In October 2019, Lisabeth had an opportunity to travel to New York for a long weekend. This would be her chance to get away and relax with friends. Josiah told her she could not go because he was not able to take the time off work to care for F. It was then that Lisabeth decided that she had to end the marriage. She could not continue to reside in Toronto without her support network of family and friends. The situation was detrimental to her own health and well-being which was detrimental to F.

[32] After separation, the parties resided in the same home for a period of time. Lisabeth says she continued to be the primary caregiver with limited help from Josiah. She had difficulty leaving work early to pick up F. from daycare. Josiah worked long hours and at least one day every weekend which put the burden of caregiving on her.

[33] Lisabeth believed the best solution for her and the child was to move to Victoria. When Josiah did not agree, she felt she had not choice but to commence this proceeding and seek permission from the court.

[34] After the order of Hood J., Lisabeth began to look for positions in Vancouver rather than Victoria. There are more direct flights between Vancouver and Toronto which would facilitate Josiah’s access.

[35] Lisabeth argues that it would be in F.’s best interests to live with her in Vancouver and be close to her family including F.’s grandparents, aunts, uncles and cousins and network of friends and their children. F. has known these friends and family members from a very young age. She will continue to have the support and love of this community where she is familiar and can thrive.

[36] Lisabeth, herself, grew up surrounded by a lot of friends and family with whom she made lifelong bonds. She says this is a rare and special circumstance that she wants to recreate for F. so that she can grow up experiencing the same love and support.

[37] Lisabeth says that since returning to Vancouver she is physically, mentally and emotionally stronger. She has the nearby support of the people who love her and her daughter. This will help Lisabeth succeed in her employment and as a parent to F.

[38] Lisabeth lives in a home in a forested area of Vancouver located five minutes from the ocean. F. has a room with toys and books where she is familiar and comfortable. F. has experienced and enjoys outdoor activities and spending time with family and friends for holidays and other gatherings.

[39] The schools in the catchment area of Lisabeth’s home and her aunt’s home in Vancouver are ranked as the best in the province. Lisabeth has investigated F.’s attendance at both of the schools. Lisabeth’s aunt teaches piano. If F. attended school in that catchment area, she could have lessons after school as Lisabeth did.

[40] F. has attended Kids & Company daycare in Vancouver beginning in February 2020. Lisabeth acknowledges that Josiah did not consent to F. attending daycare in Vancouver.

[41] F. could attend an affiliated Kids & Company daycare in Toronto part time as needed. This is a different daycare than F. attends now but there would be a continuity of programming with the Vancouver daycare and possibly a financial benefit.

[42] Lisabeth believes that F. will have a better quality of life, standard of education and standard of daycare in Vancouver. F. will grow up with all of the love and benefits that Lisabeth experienced as a child.

[43] Lisabeth argues that F. does not have a similar support network in Toronto with Josiah. His family all reside in the United States and only see one another a few times a year. The emergency contact listed for F. at the Toronto daycare is a friend of Lisabeth’s, Lisa Hopcroft.

[44] Ms. Hopcroft is a physiotherapist who lives in Toronto and works at Sunnybrook Hospital. She has been friends with Lisabeth since they attended university. Ms. Hopcroft testified that she does not know Josiah very well and hasn’t had a full conversation with him since the fall of 2018. Although she has picked up the child from daycare when asked by Lisabeth, she testified that her work is about 40 minutes from the daycare and her home is about one hour from the daycare.

[45] Lisabeth also called as witnesses her mother, Valerie Huggett, her sister, Anne Marie Panduro, and her friends Jessica Prince, and Danica Charpentier. Ms. Huggett, Ms. Panduro and Ms. Prince live in Victoria. Ms. Charpentier lives in Squamish. Each of these witnesses testified that they had a close relationship with Lisabeth for many years and that they had observed her as a loving parent to F. Each of them testified that they did not know Josiah well. Ms. Prince and Ms. Charpentier had limited observations of Josiah as a parent.

[46] I found Ms. Hopcroft, Ms. Panduro, Ms. Price and Ms. Charpentier to all be credible witnesses. Each of them testified that they had a loving relationship with Lisabeth and F. and that they wished to help the Lisabeth by supporting her move to Vancouver.

[47] Ms. Huggett testified that she had seen a big change in her daughter since Lisabeth returned to live in Vancouver. At the time of marriage breakdown, she observed that Lisabeth was very sad, not sleeping well and often crying. She was taking medication for depression. Since returning to Vancouver Lisabeth is much happier and better able to handle stress. Lisabeth enjoys her new job. She is excited about her future with F. in Vancouver and has made plans for F.’s school and activities. Ms. Huggett travelled with F. between Toronto and Vancouver once and said it was a positive experience for the child.

[48] It is clear that Ms. Huggett wants her daughter and granddaughter to reside near to her so they can have frequent contact. I found Ms. Huggett’s evidence was understandably coloured by her wish to support her daughter and to give her granddaughter the benefits of the close family relationships that are so important to Lisabeth.

[49] Lisabeth proposes that the child reside primarily with her in Vancouver and spend about one third of the year in Toronto with Josiah until she starts attending school full-time. Her parenting plan sets out a five-year plan with dates for travel between Toronto and Vancouver. It is not mandatory for F. to attend school full-time until grade one when she will be six. Lisabeth agrees that the travel schedule can be more flexible until F. commences school full-time.

[50] When F. begins school full-time, Lisabeth proposes that Josiah have access to F. in Toronto 15 weeks per year. Josiah could also come to Vancouver to have access to F. at other times. Lisabeth would move from her home and Josiah could reside there with F. during the access. Lisabeth says she will take all steps to increase Josiah’s contact with F. including video chats, photos, etc. She would also facilitate F.’s visits with Josiah’s family once COVID-19 travel restrictions from the United States are lifted.

[51] Lisabeth acknowledges that the flights to Toronto and back to Vancouver are four hours and five hours, respectively, with additional travel time from home and waiting time at the airport. There is a three-hour time difference between the two cities. It takes F. about a day to get back on her sleep schedule. Lisabeth says that F. is a “good flyer” and that the travel is not difficult for her.

The Respondent’s Position

[52] Josiah states that he and Lisabeth discussed their future plans, which included moving from Victoria, even before he was not given tenure. When he was accepted to law school in Toronto, Josiah believed that he and Lisabeth were moving to start a new future there. They both had better employment prospects and better social and financial opportunities in Toronto.

[53] Josiah found law school and articling very demanding and time consuming. He was challenged and sometimes bewildered by the extent of work and commitment required. Hire back at Gowlings was competitive and he felt he had to work all the hours he could to do what was required of him to succeed.

[54] Josiah also acknowledged that becoming a father was a learning experience that he was not prepared for. Before F. was born, the parties had many disagreements about when to have children. Lisabeth had a plan of when and how far apart she wanted their children to be born. Josiah felt they were not ready and wanted to wait until his career was more certain.

[55] When F. was born, Josiah had just finished law school and was studying for bar exams. Both Lisabeth’s mother and Josiah’s mother came to stay with them to help with the baby.

[56] Josiah says that Lisabeth proposed a system for child and home care that they agreed would work. For her nine-month maternity leave, Lisabeth was primarily responsible for the child. Josiah cared for F. in the mornings until he started articling. He helped with changing diapers, bottle feeding, walks, running errands, some cooking and some housecleaning.

[57] The situation in the home became difficult during Josiah’s articling year. Josiah thought he was contributing to home and childcare but Lisabeth felt isolated and unsupported. She said that Josiah was always working and not home to help her. Josiah tried to work from home but this was not acceptable to his employer. Lisabeth began to talk about moving back to Victoria.

[58] Communication and the relationship between the parties continued to deteriorate. The parties attended marriage counselling but this was not successful. Lisabeth continued to apply for jobs in Victoria. Josiah insisted that he would not move back to Victoria. The arguments escalated after October 2018 when Josiah did not agree to Lisabeth travelling to New York. Josiah states the separation occurred in mid-December 2018.

[59] The parties continued to live together after separation. Josiah says that things became more difficult after Lisabeth commenced this court proceeding. He felt he was under constant pressure from Lisabeth, her lawyer and her family to “give in” and let Lisabeth move to Victoria with F.

[60] In 2019, Josiah decided to leave Gowlings to work at a different firm. He wanted to specialize in corporate tax and be at a firm where the culture was more supportive of family obligations. Josiah spoke to a recruiter specifically about his increased childcare responsibilities. Josiah began working at Miller Thompson in October 2019.

[61] When Lisabeth moved to Vancouver in December 2019, Josiah hired a nanny, Karen Ann, to assist him with childcare. The access schedule was then in the second phase of the Stewart order. Josiah was taking a CPA course which required him to attend classes online in the evenings. He knew that he would have conflicts and needed assistance.

[62] Since Lisabeth moved to Vancouver, Josiah has been an equal caregiver to F. Due to the COVID-19 closure of F.’s daycare and travel restrictions, there were periods in 2020 that the child resided with Josiah more than with Lisabeth.

[63] F. has attended Childspace Day Care since 2018. The parties chose this daycare when Lisabeth returned to work after maternity leave. Josiah walks F. to daycare in the morning because it is near their home. F. is happy and settled there with her friends and caregivers.

[64] Josiah believes that the parties have done their best to shield F. from any hostility between them. He agrees that Lisabeth is a very good parent and that she and F. have a strong loving bond.

[65] Josiah believes that it is in F.’s best interests to continue to reside primarily in Toronto with him. She has lived in this community all of her life. The neighbourhood has many green spaces and facilities for outdoor activities. F. has playmates who live nearby. Josiah is involved with F.’s friends’ parents and has sought out information about schools and activities. He wants F. to continue to have the stability of her friends and community as she grows up.

[66] Josiah believes it is important for F. to be protected from the disruption of travelling back and forth between two homes that are 4000 kilometres apart. He wants F. to have the security of her home base in Toronto. He acknowledges the importance of F. spending time with Lisabeth and her family but he argues that it is in F.’s best interest to have the continuity of the stable home environment in Toronto that the parties began as an intact family.

[67] Josiah proposes a residential schedule that proceeds in phases. The phases are tied, in part, to F. commencing junior kindergarten in September 2021. Once she attends school, F. would reside with Lisabeth about 35 percent of the time with visits to Vancouver incorporated into breaks in the school year. Lisabeth could also exercise access in Toronto. Josiah would facilitate frequent FaceTime for F. with Lisabeth and her family.

Credibility

[68] Lisabeth argues at the outset that, where there is conflicting evidence, I should prefer her evidence to Josiah’s because she was sincere and frank in her testimony and made reasonable concessions where Josiah did not. She says that Josiah was reticent in cross-examination and would not concede even on matters that were not especially contentious. On this basis, she states that his evidence should be found to be insincere and, thus, less credible: White v. R. 1947 1 (SCC), [1947] S.C.R. 268, [1947] S.C.J. No. 10, at para. 10; van Staveren v. Coachlite Roller Gardens Inc., 2012 ONSC 5941, at para. 13.

[69] As the trier of fact, I am charged with determining the truth. On occasion, that task can be rendered unenviably difficult when both sides of a dispute are motivated to offer evidence designed to “fit” within a specific theory of the case. In Prodigy Graphics Group Inc. v. Fitz-Andrews, [2000] O.J. No. 1203, [2000] O.T.C. 237 (S.C.J.), at para. 46, Cameron J. offered a non-exhaustive list of traditional criteria by which the evidence of each witness, and, where appropriate, the exhibits presented at trial, ought to be assessed:

1. Lack of testimonial qualification

2. Demeanour of Witness: apparent honesty, forthrightness, openness, spontaneity, firm memory, accuracy, evasiveness

3. Bias/Interest in the Outcome (if a party, motive)

4. Relationship/Hostility to a party

5. Inherent probability in the circumstances i.e. in the context of the other evidence does it have an "air of reality"

6. Internal consistency i.e. with other parts of this witness' evidence at trial and on prior occasions

7. External consistency i.e. with other credible witnesses and documents

8. Factors applicable to written evidence:

(a) Presence or absence of details supporting conclusory assertions

(b) Artful drafting which shields equivocation

(c) Use of language in an affidavit which is inappropriate to the particular witness

(d) Indications that the deponent has not read the affidavit

(e) Affidavits which lack the best evidence available

(f) Lack of precision and factual errors

(g) Omission of significant facts which should be addressed, and

(h) Disguised hearsay

[70] I carefully listened to and observed the testimony of all the witnesses called by both parties at trial. I also reviewed the exhibits relied upon by the parties.

[71] Each party presented their evidence in a very different way. Lisabeth gave her evidence in a calm, straightforward and direct manner. Josiah had more difficulty giving his evidence. He was, at times, emotional. He provided extensive background and lengthy descriptions of his version of events. Ms. Hansen sometimes had to ask her cross-examination questions more than once.

[72] This difference in presentation alone does not, to me, make Josiah’s evidence less credible. It does demonstrate to me the differences in how each party processes and relays information which may have caused difficulties in communication between them. A good example of this is the dispute between the parties about travel schedules during the COVID-19 pandemic.

[73] Lisabeth proposed dates and times to Josiah for her travel with F. between Vancouver and Toronto. When he didn’t respond promptly, she felt this was disrespectful and an example of his hostility toward her. This created friction between the parties. Josiah’s response to this was that he was not being disrespectful but that he needed time to think things through in order to “get it right” before the child got on an airplane for four hours during a pandemic. On this issue, I found both parties to be genuine and believable in their own perception of the events.

[74] For the most part, each party’s evidence focussed on the issues that had to be addressed. Neither party exaggerated nor overstated their case. Neither party took positions that were inconsistent with the exhibits nor lacked an air of reality.

[75] The evidence of the parties was not substantially contradictory. There were disputes such as whether there had been an agreement to move back to British Columbia, and the time spent by each party caring for F. But the parties also agreed on many aspects of their parenting of the child and her love and bond with the other parent.

[76] If anything, Lisabeth’s evidence showed a lack of insight into how deeply Josiah would be affected by her unilateral decision to leave Toronto with F. She implied that because Josiah was too busy when he was a law student, articling student and associate lawyer to support her and care for F. as she would have wished, it would not affect him substantially if she and the child moved 4000 kilometres away. Lisabeth blames Josiah for the some of the difficulties between the parties without considering how her own actions may have provoked his frustration and added to his negative reactions.

[77] For the foregoing reasons, I do not have serious concerns about either party’s credibility. Where I do prefer the evidence of one party over the other, I will address it below.

Law and Analysis

[78] Bill C-78, An Act to Amend the Divorce Act, the Family Orders and Agreements Enforcement Assistance Act and the Garnishment, Attachment and Pension Diversion Act to make consequential amendments to another Act, received Royal Assent on June 21, 2019. It has not yet come into force. The Bill creates a new framework to deal with relocation issues. The amendments were scheduled to take effect on July 1, 2020, but this was postponed due to the COVID-19 pandemic.

[79] As the amendments to the Divorce Act are not yet in effect, I have not relied on the new relocation provisions in deciding this case.

[80] The only consideration that governs the court’s decision in a custody, access or mobility dispute is the best interests of the child in the particular circumstances of each case: Divorce Act, s. 16(8); Young v. Young, 1993 34 (SCC), [1993] 4 S.C.R. 3, [1993] S.C.J. No. 112, at para. 120; Gordon v. Goertz, 1996 191 (SCC), [1996] 2 S.C.R. 27, [1996] S.C.J. No. 52, at para. 49(5); Berry v. Berry, 2011 ONCA 705, [2011] O.J. No. 5006, at para. 10; and Porter v. Bryan, 2017 ONCA 677, [2017] O.J. No. 4516, at para. 10. The rights and interests of the parents are not relevant, except to the extent that they impact on the best interests of the child: Gordon at para. 37.

[81] In determining the best interests of the child, the court must consider all aspects of the child’s well-being: physical, economic, emotional, psychological, intellectual and moral: Elliott v. Elliott, 2008 27033 (ON SC), [2008] W.D.F.L. 3740, 53 R.F.L. (6th) 423 (S.C.J.), aff’d at 2009 ONCA 240, [2009] O.J. No. 1112.

[82] In an original application, where the court is required to decide the issues of custody, access and mobility, the issues of custody and access must be determined first: Bjornson v. Creighton, 2002 45125 (ON CA), [2002] O.J. No. 4364, 62 O.R. (3d) 236 (C.A.), at paras. 18-19; Bazinet v. Bazinet, 2020 ONSC 3187, at paras. 42-43.

[83] In this application, the parties have agreed that they will share joint custody of F. whether she has her primary residence in Vancouver with Lisabeth or in Toronto with Josiah. Each party has proposed a residential schedule which presumes the child residing primarily with them. I must decide the relocation issue and determine a residential schedule that will be in F.’s best interests. These issues are intertwined and cannot be considered independent of each other.

[84] Section 16 of the Divorce Act governs applications for custody and access orders. It includes the following provisions:

(8) ... 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.

(9) ... 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.

(10) ... 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.

[85] In determining best interests, courts in Divorce Act proceedings have routinely referred to the best interests of the child test set out in the Children’s Law Reform Act, R.S.O. 1990, c. C.12, s. 24(2)(a)-(h). This test sets out a list of needs and circumstances the court shall consider in determining the child’s best interests. The list is not exhaustive:

24(2) Best Interests of Child – The court shall consider all the child’s needs and circumstances, including:

(a) the love, affection and emotional ties between the child and;

(i) each person including a parent or grandparent entitled to or claiming custody of or access to the child,

(ii) other members of the child’s family who reside with the child, and

(iii) persons involved in the child’s care and upbringing;

(b) the child’s views and preferences, if they can reasonably be ascertained;

(c) the length of time the child has lived in a stable home environment;

(d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;

(e) the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing;

(f) the permanence and stability of the family unit with which it is proposed that the child will live;

(g) the ability of each person applying for custody of or access to the child to act as a parent; and

(h) any familial relationship between the child and each person who is a party to the application.

Relocation

[86] In Gordon, at paras. 49-50, the Supreme Court of Canada set out the criteria the court should consider in determining the issue of relocation:

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

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

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

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

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

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

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

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

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

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

(d) the views of the child;

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

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

(g) disruption to the child consequent on removal from family, schools, and the community he or she has come to know.

In the end, the importance of the child remaining with the parent to whose custody it has become accustomed in the new location must be weighed against the continuance of full contact with the child’s access parent, her extended family and her community. The ultimate question in every case is this: what is in the best interests of the child in all the circumstances, old as well as new.

[87] In Bjornson, the Ontario Court of Appeal ruled that the legal principles in Gordon apply, with necessary modifications, in relocation cases where there is no prior custody or access order: paras. 18 and 39. These modifications include: (1) there is no threshold requirement to demonstrate a material change in circumstances, (2) there are no findings of a prior trial judge that must be taken into consideration, and (3) the parties cannot be divided into the “custodial parent” and the “access parent.” The court may find that one parent can be identified as the child’s primary caregiver for purposes of determining the relocation issue: Porter v. Bryan 2017 ONCA 677, [2017] O.J. No. 4516, at para. 16.

[88] In Gordon, the Supreme Court held that when considering the best interests of the child, there is no presumption in favour of the custodial parent. However, the court did find that the views of the custodial parent who has been primarily responsible for the care of and decision making for the child are “entitled to great respect and the most serious consideration,” at para. 48.

[89] The Supreme Court also held in Gordon that the parent’s reasons or motives for wanting to move are relevant only if they impact the parent’s ability to meet the child’s needs. It is only in exceptional cases that a parent’s reason for wanting to move should enter into the court’s inquiry into best interests, at para. 23. See also Berry at para. 19, Knop v. Nezami, 2016 ONSC 3179 at paras. 241-244 and Cory v. Cory, 2018 ONSC 1273 at paras. 52-54. But in Bjornson, the Ontario Court of Appeal recognized that there is a relationship between the physical, emotional and economic well-being of the primary parent and their ability to parent the child, at para. 30. The well-being of the parent leads to better parenting which is in the child’s best interests.

[90] Lastly, the court held in Gordon that it should try to maximize contact with both parents as is consistent with the child’s best interests, at paras. 24 and 25. A court’s consideration of the “maximum contact” principle is mandatory, but not absolute. However, it will be an error if a trial judge does not give appropriate weight to the maximum contact principle: Berry at paras. 13-15, Rigillo v. Rigillo, 2019 ONCA 548, 31 R.F.L. (8th) 356, at paras. 6-10.

[91] Lisabeth brings this application to permit her to change F.’s primary residence from Toronto to Vancouver, British Columbia. She is not applying to change an existing custody or access order or agreement. She does not need to demonstrate a material change in circumstances affecting the child.

[92] Lisabeth has resided in Vancouver since December 2019. She is settled in her employment and her home. She has reconnected with her large circle of family and friends. F. has spent time in British Columbia since her birth and is familiar with her family there.

[93] The parties agree that during her nine-month maternity leave and until about December, 2019, Lisabeth was F.’s primary caregiver. Since Lisabeth moved to Vancouver, the parties have had an equal parenting schedule. At some points in 2020, F. spent more time with Josiah than with F. due to COVID-19 restrictions.

[94] The parties also agree that each of them is a loving, capable parent and that F. looks to both of them for care and comfort. There is no question that each of them is capable of parenting the child and has done so when she is in their care.

[95] Both Lisabeth and Josiah work full-time – now from home due to COVID-19. Lisabeth argues that she has the stronger support network of family and friends to assist her with F.’s care when required and that this should be preferred. She says Josiah does not have that close network in Toronto and requires third-party care which is less reliable.

[96] Lisabeth acknowledged that her family and social situation in British Columbia is a “rare circumstance” and that she is very fortunate to have it. She wants that same circumstance for F. She argues that F.’s situation in Toronto is not in her best interests because Josiah does not have a similarly large, close support network.

[97] I do not agree. Lisabeth seeks to move F. from her established home in Toronto because she, herself, needed to return to her own family and friends. This move will take F. away from where she has spent most of her life and from her close bond with her father.

[98] Many parents who work full-time rely on private caregivers, and before- and after-school care to assist them. Lisabeth acknowledged that she has no concerns about Childspace Day Care (which the parties chose together) or Karen Ann, Josiah’s nanny.

[99] Lisabeth brought an interim motion in February 2019 to move with F. to Victoria. She already had a job offer and was waiting for the court to grant her permission to move before she accepted it. After Hood J. dismissed her motion, Lisabeth continued to seek employment in British Columbia. She knew that Josiah would not move to British Columbia. She knew that even if the parties could agree to a time-sharing schedule in the short term, once the child began school full-time, F.’s time with one parent would be drastically reduced.

[100] Lisabeth testified that, despite Hood, J.s’ ruling, she had to move back to Vancouver for her own personal identity and mental and physical health. I accept that she felt this was necessary for her personal well-being and happiness. Her evidence and the evidence of her witnesses confirms that she is now a much happier and contented person with a positive work/life balance. I accept that this will help her be a better parent to F. and I give these views serious consideration and respect. However, what is necessary for Lisabeth’s well-being and happiness does not necessarily correlate to what is in F.’s best interest.

[101] F. is not yet aged four. She has lived primarily in Toronto since her birth. For the last year at least, she has spent about equal time with both parents, much of it in Toronto. If F. moved to Vancouver, it would significantly reduce the time F. spends with her father and her connection to her stable home here.

[102] Lisabeth concedes that Josiah has “stepped up” since separation to become an equal parent to F. He sought out a position at a different law firm to have more flexibility for the parenting schedule. He researched and hired a nanny to help him with childcare and investigated options for F.’s school.

[103] At her young age, it is even more important to F.’s development that she have frequent meaningful contact with her father. The test for determining a child’s best interests focuses on maximizing contact with both parents and minimizing disruption to the child: Gordon, at para. 49, Berry, at para. 27. A move to Vancouver would significantly reduce the time F. spends with her father and disrupt the stability of her home and community. The length of time that a child has resided in a stable home environment is a relevant consideration in the best interests and relocation analysis. In my view, the negative impact of F.’s relocation is not offset by the positive aspects of the move to Vancouver to be with Lisabeth and her own support network.

[104] The move would relegate much of Josiah’s parenting time to FaceTime or other digital communication. This type of communication is more difficult to sustain with a young child’s attention span. Josiah would not be present in person for the big and small daily milestones that nurture and develop the bond between parent and child. This would reduce his ability to maintain a meaningful relationship with F.

[105] The parties made a decision together to move from Victoria to begin a life together in Toronto. They may have had different ideas about if or when they would return to British Columbia. At least part of the reason why the marriage broke down was because Lisabeth was very unhappy in Toronto, felt unsupported by her husband and missed her home and family.

[106] Lisabeth moved to re-engage with her extended family and friends on a closer and more frequent basis. While the move has made her happier, I do not believe the move was necessary to improve Lisabeth ability to parent or meet F.’s needs. Lisabeth and Josiah both gave evidence that Lisabeth was an excellent mother to F. when she resided in Toronto.

[107] I do not fault Lisabeth for wanting to return to a place where she can be her “best self” and thrive as a mother and in her work. But this does not outweigh the child’s right to grow up having maximum contact with both parents and to be spared the disruption that the move would cause to her stability of home and community. Although both parents earn a very reasonable income, the distance, time and cost of travel is a significant factor that will impact on F. and the time she spends with her father.

[108] Lisabeth made the choice to move to Vancouver before there was a final decision from this court on the child’s relocation. She was not prepared to remain in Toronto where the parties were sharing equal time with the child. I understand her reasons for doing so, but I find that Lisabeth’s actions were driven by her personal wishes and focussed on the advantages she saw for the child in Vancouver. She did not consider the significant disruption to F. of a move from her home environment since birth and the loss of her father as an active parent in her life.

[109] Lisabeth says she is prepared to facilitate Josiah’s access, but only on her terms, which are that she and F. will reside in Vancouver regardless of Josiah’s objections. This suggests to me that Lisabeth does not place enough importance on the child’s relationship with her father and prioritizes her own interests over the interests of the child. It implies that F.’s relationship with Lisabeth’s extended family, friends and their children is more beneficial than her relationship with her father.

[110] When she is with her mother, F. will live in Vancouver, not Victoria where most of Lisabeth’s family resides. Victoria is a drive and ferry ride away from Vancouver. A maternal aunt resides in Vancouver but the connection to cousins and friends’ children is still some distance away.

[111] Lisabeth will have block monthly parenting time with F. In addition, F. will spend all of March Break and most of the summer with her mother. F. can build relationships and enjoy time with family and friends during these visits uninterrupted by the regular school, work and other obligations that govern the daily schedule.

[112] I recognize that my order reduces the time that F. will spend with her mother. However, Lisabeth chose to move a long distance from the child’s home. The court must determine what is in the child’s best interests considering F.’s present circumstances in Toronto and what is proposed in Vancouver.

[113] For the reasons above, I find that moving F.’s principal residence to Vancouver is not in her best interests.

Parenting Schedule

[114] Having concluded that the proposed move to Vancouver is not in F.’s best interests, I must now determine which parenting schedule is in her best interests.

[115] Historically, the parties had disagreements and tense exchanges about the parenting schedule. This has been exacerbated by the travel and other restrictions arising from the COVID-19 pandemic. At present, I cannot determine when or how travel restrictions between or within provinces might change while the pandemic continues. The parenting schedule ordered by the court must, in the circumstances, be subject to changes arising from COVID-19, whether the pandemic brings further restrictions or if the situation improves and travel becomes more open.

[116] The parties have maintained an about equal parenting schedule since Lisabeth moved to Vancouver. Both parties agree that F. is doing well with this shared schedule. Both parties also agree that the schedule cannot continue once F. starts school full-time. Lisabeth says that should be in September 2023 when F. is required to begin grade one. Josiah says that should be in September 2021 when F. is eligible to attend junior kindergarten.

[117] I have found that it is in F.’s best interests to have maximum contact with both parents. This can best be achieved by continuing the about equal time sharing schedule until September 2022 when F. begins senior kindergarten.

[118] F. will continue to attend Childspace Day Care. She will remain with her friends there, some of whom she will then attend kindergarten with. In my view, it is more important for F. to have more time with Lisabeth for the next 20 months than to reduce the time so F. can attend junior kindergarten.

[119] Both parties have proposed schedules for parenting time when the child starts attending school full-time. Each of the schedules provides that the parent who does not have primary residence shall have about 15 weeks of parenting time with the child over the year. Lisabeth’s schedule proposes two weeks at March break, seven weeks in the school summer holiday, two weeks in October at the school fall break and two weeks in December at the winter school break. Josiah’s schedule proposes one week in each of February, April, May, September, and October (attached to the long weekend in that month, if applicable), two weeks each in March and December, and six weeks in the school summer holiday.

[120] Lisabeth’s proposed schedule adheres to time around the holidays in the Vancouver school calendar. I have found that F. shall reside primarily in Toronto with Josiah. For that reason, the parenting schedule when F. begins attending school full-time should follow the schedule proposed by Josiah which reflects the holiday breaks of the schedule of the Toronto District School Board. It also allows for monthly contact between F. and her mother which is important at her young age.

[121] If the parents agree that F. should attend a private school (which was discussed but not at issue before me), the schedule can be adjusted to reflect that school holiday schedule.

[122] I have made a parenting order at the end of these reasons based on the draft orders submitted by the parties and my findings of what is in F.’s best interest.

Child Support

[123] Since the parties moved to a shared parenting schedule for F., neither party has paid child support to the other. Both parties agree that there are no arrears of child support to date.

[124] I have decided that until September 2022, F. will continue to share her residential time equally between her parents in Toronto and Vancouver. Neither party shall pay monthly child support to the other during this time. Both parties shall be responsible for their own cost of daycare and other expenses for the child while she resides with them. Lisabeth shall be responsible for the cost of the child’s travel to and from Toronto. If the parties cannot agree upon a time-sharing schedule for the next 20 months, counsel may arrange a conference call with me to set a timetable for written submissions on this issue.

[125] Commencing September 1, 2022, F. shall be residing primarily with Josiah. Lisabeth will have an obligation to pay child support for F. pursuant to the Federal Child Support Guidelines, SOR/97-179.

[126] Section 3 of the Guidelines sets out the presumptive amount of child support payable, which is the table amount, when there is no split or shared parenting.

[127] Section 10 of the Guidelines permits the court to consider any undue hardship when determining child support. Section 10(1) states:

(1) On either spouse's application, a court may award an amount of child support that is different from the amount determined under any of sections 3 to 5, 8 or 9 if the court finds that the spouse making the request, or a child in respect of whom the request is made, would otherwise suffer undue hardship.

[128] Circumstances of undue hardship include "unusually high expenses in relation to exercising access to a child": Section 10(2)(b). The party claiming undue hardship is required to file standard of living comparisons as evidence before the court.

[129] Lisabeth has not made a claim for undue hardship. I have no evidence of the comparative standards of living of the parties to perform the analysis required in Section 10 of the Guidelines.

[130] Josiah acknowledges that Lisabeth will incur substantial costs to exercise her parenting time with the child in Vancouver. He agrees that Lisabeth should pay an amount of support that is different from the table amount to take into account these access costs.

[131] Section 15.1(5) of the Divorce Act permits a court to order an amount of support that is different from the Guideline amount if the court is satisfied that special provisions have been made for the support of the child and the application of the applicable Guidelines would result in an amount of child support that is inequitable given these special provisions.

[132] In my view, the agreement to depart from the amount of table support because of increased access costs is such an agreement. I am satisfied that this is a reasonable financial arrangement for the support of the child. Both parties earn income over $100,000. It is important to F. to have as frequent contact with Lisabeth as is possible once she starts school full time. Lisabeth is obligated to contribute to F.’s support while she resides primarily with Josiah, but if she was required to pay the table amount of monthly support, this could reduce her ability to pay for the cost of frequent access. This would not be in F.’s best interests.

[133] Section 15 of the Guidelines provides that a payor’s annual income is to be determined in accordance with sections 16 to 20. Section 16 provides that a payor’s annual income is their income set out under the heading “Total income” in the T1 General form on their income tax return, subject to sections 17 to 20 and adjusted in accordance with Schedule III.

[134] Lisabeth’s current base salary is $150,000 per year. She is eligible for an annual bonus which is not fixed. In 2019, Lisabeth received a $15,000 bonus. She did not anticipate receiving a bonus in 2020 due to COVID-19.

[135] Lisabeth’s Financial Statement, sworn September 2020, showed employment and rental income from her Vancouver townhouse which totalled $152,670. Monthly support for one child at this income is $1,318.

[136] Between February and September 2020, Lisabeth paid about $21,000 for the cost of travel for her, F. and Ms. Huggett between Toronto and Vancouver, including the cost of hotels, taxis, transit and food while residing in Toronto. Lisabeth was able to use her airline points for some flights and her employer paid for some flights. Airfare fluctuates but is between $600 to $750 for the return flights.

[137] Lisabeth must travel twice to accompany F. to and from each visit. If she visits once per month and for one of the two summer months, she will be paying about $22,000 per year to have parenting time with F. in Vancouver. This is a cost of about $1,800 per month. In her Financial Statement sworn September 1, 2020 Lisabeth has stated monthly travel costs for access of $2,250.

[138] Commencing September 1, 2022 when F. begins to attend school full time, I find it would be reasonable for Lisabeth to pay monthly child support to Josiah of $659 per month. This amount is 50% of Lisabeth’s monthly table amount of support for her income . It presumes F. is residing primarily with Josiah in Toronto and Lisabeth is paying all of the costs of F.’s travel to Vancouver for parenting time with her. This amount shall be adjusted in September 2022 to be 50% of the monthly table amount of support based on Lisabeth’s 2021 total income.

[139] Josiah’s 2020 income of $130,000 was reduced by his employer to $104,000 in April 2020 due to the COVID-19 pandemic.

[140] I have determined that each party shall pay for the section 7 expenses they incur for the child while she is in their care without contribution from the other until September 1, 2022. Thereafter, the parties shall share the child’s agreed-upon section 7 expenses in proportion to their respective incomes.

Order

[141] The Respondent, William Josiah Edwards Davis ("Josiah") and the Applicant, Elisabeth Panduro ("Lisabeth") shall share joint custody/have joint decision-making responsibility with respect to their daughter, F., born April 2017 for all issues related to F's education, health, religion, and major extracurricular activities/programs.

[142] Each parent shall be entitled to receive copies of all medical, dental, school, and other reports and records relating to F. Each parent shall be listed as a parent and point of contact on all documents pertaining to F.

[143] Each parent shall be permitted to attend all school functions and extracurricular activities, irrespective of the parenting schedule.

[144] F. shall reside with both parents in Toronto and Vancouver on an equal time-sharing schedule until September 1, 2022, when F. begins senior kindergarten. If the parties cannot agree upon a time-sharing schedule, counsel may arrange a conference call with me to set a timetable for written submissions on this issue.

[145] Commencing September 1, 2022, F. shall reside primarily in Toronto, Ontario with Josiah. Neither parent may move F.'s residence outside the Province of Ontario without the prior written consent of the other parent or a court order.

[146] Commencing September 1, 2022, F. shall have parenting time with Lisabeth in British Columbia, Toronto or any other location agreed upon by both parties in advance for fifteen weeks each year as follows:

a. one week in September, to include Labour Day weekend;

b. one week in October, to include Thanksgiving weekend;

c. two weeks in December, to include Christmas Eve and Christmas Day in even-numbered years;

d. one week in February, to include the Family Day long weekend;

e. two weeks in March, to include March Break;

f. one week in April, to include Easter weekend if applicable;

g. one week in May, to include the May long weekend;

h. six weeks in the summer (in two three week blocks or one four week block and one two week block); and,

i. such other parenting time in Ontario as the parties may agree.

[147] F. shall commence full-time junior kindergarten in Toronto, Ontario in September 2022.

[148] Each parent shall be permitted to travel with F. during his or her holiday/vacation time, provided the consent of the other parent is obtained in advance, such consent not to be unreasonably withheld. The travelling parent shall request the consent of the non-travelling parent at least 21 (twenty-one) days in advance of the proposed trip, unless otherwise agreed. The non-travelling parent shall provide a notarized "Travel Letter" authorizing the child to travel with the travelling parent a minimum 14 (fourteen) days in advance of the scheduled trip.

[149] Josiah shall retain F.'s identity documents, including but not limited to her passport, birth certificate, immunization records (yellow books) and SIN card (when available). Lisabeth shall receive notarized copies of F.'s identity documents. She shall have access to the original identity documents when required and shall return them promptly to Josiah when finished with them.

[150] There shall be no retroactive child support owing between the parents, on account of either periodic/table child support or F.'s special or extraordinary expenses, from the date of separation until the date of this order.

[151] For so long as Lisabeth continues to reside in British Columbia and F. continues to reside primarily with Josiah in Ontario, commencing September 1, 2022 and on the first day of each month thereafter, Lisabeth shall pay Josiah monthly child support, in the amount of 50% (fifty percent) of Lisabeth's table child support obligation. As an example, based on the income disclosure of $152,400 on Lisabeth's Form 13.1: Financial Statement, the child support payable would be $659: 50% of the total monthly amount of $1,318.

[152] Lisabeth shall be solely responsible for the costs of F.'s travel to and from British Columbia, together with her own costs to accompany F. on the flights.

[153] Commencing September 1, 2022, the parties shall share the cost of F.'s agreed upon section 7 expenses in proportion to their respective incomes at that time. Each party must agree to the expense in advance in writing.

[154] Each party shall pay their proportionate contribution of any section 7 expense paid by the other parent within 14 days of receiving proof of the expense from the other parent.

[155] Child support shall be reviewed annually. Commencing in 2023, by no later than May 15th each year, Lisabeth and Josiah shall exchange their respective income tax returns and notices of assessment (when available), together with any other relevant documentation under section 21 of the Guidelines. Following the exchange, the amount of modified table child support shall be adjusted. The adjustment shall take effect on July 1st of the year in question and the new amount shall be payable from and after July 1st to and including June30th, with the same 50% (fifty percent) amount applied to Lisabeth's Table child support payable for as long as Lisabeth resides outside Ontario.

[156] For the tax years 2020, 2021 and 2022, the parties shall share the Canada Child Tax Benefit, the Universal Child Care Benefit, the refundable children's GST/HST credits, the federal non-refundable tax credit amount for children under 18, and the eligible dependant credit for F. Commencing in 2023, Josiah shall claim the Canada Child Tax Benefit, the Universal Child Care Benefit, the refundable children's GST/HST credits, the federal non-refundable tax credit amount for children under 18, and the eligible dependant credit for F.

[157] The parents shall each maintain F. as beneficiary of any medical, extended health, and dental coverage available to them through their employment (or, if not available through employment, available through any private plan either may have), for as long as it is available and F. remains eligible for coverage under the plan(s).

[158] Lisabeth and Josiah shall each maintain a life insurance policy with a face value of no less than $180,000, and designate the other as irrevocable beneficiary, in trust for F. Within 14 days of release of these reasons, each party shall provide the other with a copy of the policy and the irrevocable beneficiary designation. For so long as F. is eligible for support each party shall keep the policy in force and not borrow against the policy and ensure that it remains unencumbered.

[159] Within 14 days of the release of these reasons, each party shall provide the other with an authorization and direction permitting the other parent to confirm directly with the insurer that the life insurance policy is unencumbered and in force.

[160] The quantum of the principal secured under the life insurance policies shall be reviewed at least once every five years and may be reviewed earlier at the request of either party if there is a material change in circumstances (including a material change in the policy premiums or a material change in either parent's support obligation).

[161] When F. is no longer entitled to child support, Josiah and Lisabeth may each cancel their life insurance policy, or otherwise deal with it as he or she pleases. The other parent shall execute any documents required to facilitate this.

[162] A support deduction order shall issue.

[163] If the parties cannot agree on costs, Lisabeth shall serve and file submissions on costs within 14 days from the release of these reasons. Josiah shall have 14 days thereafter to serve and file his submissions. The submissions shall be no more than three pages, exclusive of any costs outline, case law, and offers to settle. Lisabeth may serve and file reply submissions of two pages, seven days after Josiah’s submissions have been served. Submissions may be sent to: Patrizia.Generali@ontario.ca.

E.L. Nakonechny

Released: February 4, 2021