Court File and Parties

COURT FILE NO.: FC-21-00000238-0000 DATE: 20220222

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

KEATON JOSEPH HEPBURN Applicant Father – and – KEISHA EILEEN TRIMPER Respondent Mother

Counsel: Tania Harper, for the Applicant Anna Towlson, for the Respondent

HEARD: November 22, 23, 24, 25 and November 26, 2021 and January 31, February 1, 2, 3, and 4, 2022.

THE HONOURABLE MADAM JUSTICE PICCOLI

Reasons for Decision

1The court heard a ten-day trial. As counsel estimated that five days of trial were needed, and that estimate was incorrect, the matter was heard during two separate sittings.

2The issues in dispute are:

i. What is the impact of the Parenting Agreement, dated December 2020 on these matters?

ii. Who will make decisions for the child Emma-Lee Rose Gallant born December 2, 2018 (“the child”) – both parents as requested by the Applicant (“Father”) or only the Respondent (“Mother”) as she requests?

iii. Will the child be allowed to relocate to British Columbia?

iv. If the child is allowed to relocate to British Columbia, how should the costs of travel be apportioned?

v. What will the parenting schedule for the child be if she is not allowed to relocate to British Columbia? The parties have reached agreement on the parenting schedule should the child be allowed to relocate to B.C.

vi. If the child is allowed to relocate to British Columbia, should the Father’s extended family be granted Facetime contact, independent of the Father’s Facetime contact?

vii. If the child is allowed to relocate to British Columbia, should there be a mobility restriction on the child’s residence of 100 km from British Columbia?

viii. Should the arrears in child support ($10,000.00) owed by the Father to the Mother be offset by the costs the Mother owes to the Father?

ix. Should a payment schedule be put in place for the Father to pay the arrears of child support?

x. Should child support paid in 2022 be readjusted retroactively in the summer of 2023 to reflect the Father’s actual income in 2022?

xi. Who should be responsible for the cost to file the Name Change Application?

xii. Costs.

3On the last day of trial following receipt of the updated orders, it was clear that a number of matters had been resolved on consent. These consents are reflected in the consent orders section.

Witnesses and Credibility Findings

4The Father called two witnesses; himself and his mother, Sabine Prihoda (paternal grandmother).

5I did not find the Father to be a credible witness. He did not answer questions directly or a straight-forward matter. He was evasive and at times untruthful. The affidavit he relied upon for his urgent interim motion in March 2021 contained a number of statements that deviated from the truth. Further, he admitted to deleting social media messages that were not in his favour. He stated he did this because he was so disgusted with himself. I find this to be a lie. He did this because those posts were harmful to his case and he did not want the court to see them. Had the Mother not taken screenshots of the posts, the court would not know the truth of what he said to the Mother. In his affidavit of March 28, 2021, used in support of the motion to have the child return to Ontario, the Father states “[t]he accusation that I would bring a girlfriend to the hospital to ‘make out’ in front of [the Mother] is ridiculous. [The Mother] exaggerates and fabricates”. Because the Mother had taken a picture of the post, the court was able to see that this is exactly what the Father threatened to do.

6The Father asserts that he was not taking his Attention Deficit Disorder (ADD) medication during trial and that I should take this into account in considering whether he was deliberate or evasive. He states it was not his intention to be misleading but because he did not take his medication during the trial, his ability to deal with the written word and recall information was hampered. As there is no medical information before the court as to the impact of not taking his medication, I am unable to take this into account in assessing his credibility.

7I find the paternal grandmother was at times credible and at other times not credible. She is aligned with her son and this alignment sometimes impacted her ability to answer in a forthright manner. It is clear she loves the child but at times her alignment with her son prevented her from always acting in the child’s best interests. Her evidence in regard to Kate Wilson, the Father’s previous girlfriend, showed a preference to her son. She called her “crazy Kate” yet the evidence did not support this derogatory reference.

8The Mother called 5 witnesses: herself; her grandfather, William Robert Flintoft; her grandmother, Judy Mary Flintoft (collectively “maternal great-grandparents”); her friend, Ammaly Sisombath; and Kate Wilson. The evidence in chief of all the witness, except the Mother, were submitted on consent by affidavit. The Father was given an opportunity to cross examine all witnesses.

9I find that the Mother was credible. She answered questions posed to her directly in a clear, straightforward, and honest fashion. She acknowledged when she was wrong and apologized. She has no issues with her memory, she was well-prepared and appeared to have a clear and accurate recall of material details.

10The Father agrees that the Mother was straightforward and frank in her evidence and admitted her errors and apologizes. He states that she was not completely honest in her affidavit sworn in B.C. – he points to her statements regarding the amount of her OSAP loan (in one affidavit she estimated that $10,000 was owing and then later admitted the amount of be $13,644) was owing. He also points to her refusal to acknowledge that she had enough support when the child was in daycare full time and the Father had the child three out of four weekends per month and in the fourth week, one evening. He asserts I should make different findings of credibility on different issues. I disagree – the amount of irrelevant questions about the OSAP loan did not shake her credibility. Further, I find that she does lack support in Ontario.

11Where the evidence of the Mother and the Father, or the Mother and the paternal grandmother conflict, I accept the Mother’s evidence.

12I found the maternal great-grandparents of the child credible. Their love for the Mother and the child were evident. The Father agrees.

13As the Father chose not to cross examine Ammaly Sisombath (“Ms. Sisombath”), her credibility is not at issue.

14The Father did not cross-examine Kate Wilson (“Ms. Wilson”) on the more significant issues before the court. Where her evidence and that of the Father differ, I accept the evidence of Ms. Wilson.

15The Mother asks that I draw an adverse inference against the Father for his failure to call his girlfriend, Tobi, as a witness. She states that he knew what the evidence of Kate Wilson would be, as he had her affidavit in advance. He knew it was the Mother’s position that he showed a pattern of intimate partner violence. The paternal grandmother confirmed that Tobi was available. The Mother asks that I infer Tobi’s evidence would have been harmful to him. The Father states I cannot draw such an inference, that the court does not know what her evidence would be and that he was trying to conserve costs. I agree with the Father.

Background

16The parties met in the Fall of 2017 when they both worked for “Fastenal”. The Father was the Mother’s supervisor. At the time the parties met, the Father was 20 years of age and the Mother was 19 years of age.

17The Mother became pregnant. The Father wanted her to abort or alternatively give the child up for adoption to his sister Samantha, who resides in Victoria, B.C.

18The Mother lived with her uncle in Grey County during her pregnancy. The child was born in Grey County, Ontario on December 2, 2018. Despite the Mother’s request, the Father did not attend the birth. He did not see the child until she was two or three weeks old when the Mother brought the child to him.

19Within a couple of months of the child’s birth, the Mother took her to Newfoundland to visit her mother (maternal grandmother) for a few months. They returned to Ontario briefly to visit the Father.

20In March 2019, the Mother and child moved to Chilliwack, B.C.

21There is disagreement between the parties as to whether the move to B.C. by the Mother and child in early March 2019 was permanent or temporary. The Mother’s position is that the move was permanent, and the Father planned to follow them to B.C. after he completed school. The Father’s position is that the move was temporary. The evidence is clear the Mother and child moved to B.C to live with maternal great-grandparents, with the consent of the Father. Both parties believed the maternal great-grandparents would be able to support the Mother and child physically, emotionally and financially. The plan was for the Father to move to B.C after he finished school. The move was permanent. After the Father completed school, he found that B.C. lacked job opportunities and that Ontario held more job opportunities for him. As a result, the parties began discussing the Mother and child coming to Ontario.

22The Mother and child lived in B.C. from March 2019 to September 2020.

23The Mother and child arrived in the Region of Waterloo, Ontario in September 2020.

24The parties understood the move from B.C. to Ontario in September 2020 differently. I accept that when the parties started to discuss the move to Ontario, it was on the basis that they would rent a home together and share expenses. Shortly before the move to Ontario, this plan fell apart. The Mother discovered the Father had a girlfriend and that the parties would not be residing together as a family. The Mother and child came in any event. The Father states he made it clear to the Mother that they were never going to be a family. I find the Father’s actions were anything but clear. The parties were intimate on every occasion they were together overnight, the parties were jealous of relationships the other may be having, and there are numerous messages between the parties that illustrate the confusing nature of the parties’ relationship. Ms. Sisombath’s evidence summarizes the situation - she said that the Father “dangled the possibility or plan of being a family in front of [the Mother] when it suited him and for his own personal gain.”

25When the Mother and child came to Ontario in September 2020, they had nowhere to live. The Mother stayed with a friend while she waited to be provided an apartment at Monica-Ainslie Place (“MAP”), a women’s shelter. She and the child moved into MAP approximately two weeks after they arrived in Ontario.

26The Father arranged paternity testing which was completed in October 2020. It confirmed he is the biological father of the child.

27Due to the COVID-19 pandemic, and the policies in place at MAP, in order for the Father to have overnight parenting time with the child, the parties had to sign an agreement or obtain a court order setting out the Father’s overnight parenting time. The parties disagree as to whether the Father’s parenting time had to be limited to 25 or 30 percent in order for the Mother to be able to continue to reside at MAP.

28MAP also requires its residents to secure employment or engage in schooling to stay in the facility.

29At some point in or around December 2020, the parties signed a Custody Agreement dated December 2, 2020 (“Custody Agreement”).

30Both parties signed the Custody Agreement. Neither party received independent legal advice before signing the Custody Agreement.

31I accept that no one witnessed the Mother’s signature to the Agreement when she signed it. The witness noted beside her signature is that of the paternal grandmother. The paternal grandmother could not recall the Mother being in her presence to sign. The witness beside the signature of the Father is his grandfather who was not called as a witness in this trial.

32The Mother states that the Father perpetrated family violence against her after she and the child came to Ontario in September 2020.

33The Mother asserts that the Father assaulted her, physically intimidated her and blocked her path on January 1, 2021.

34On January 11, 2021, the Father was charged with assaulting the Mother on January 1, 2021. On June 7, 2021 he entered into a Peace Bond.

35Part of the conflict and interactions between the parties that occurred on January 1, 2021, was captured by the video cameras at MAP.

36After the Father was charged, he was subject to terms that included a no contact order with the Mother. As a result, the paternal grandmother was agreed as the contact person.

37The Father participated in an 8-hour on-line anger manager presentation and the Partner Assault Response (“PAR”) program after being charged.

38The Father had previously engaged in five years of anger management counselling between the ages of 16 and 21.

39The Mother and child moved out of MAP in January 2021 and resided in a rental apartment with a friend.

40The Mother secured subsidized daycare assistance for the child from January 26, 2021 to March 5, 2021 in Ontario.

41On March 1, 2021, the Mother wrote to the paternal grandmother:

“I came to Ontario so [the child] could have a relationship with her father. I paid for every bit of the travel expenses, I also paid majority of Sam’s plane ticket. I came to a city where I had literally nobody, with [the Father] saying he’d be there for me to help out. Since I’ve gotten here, what has he done?

I’ll admit to the world I’m sometimes not the easiest to deal with sometimes but I packed everything up and came here for nothing. I’ve been unemployed since I’ve gotten here, and if an emergency happens, I have nobody to help. When he took [the child] that morning I went to the hospital, he was extremely nasty and said whatever is on my liver, he hopes it kills me. He was going to bring [the child] to the hospital without feeding her and leaving it up to me. He was going to bring [Tobi] to the Hospital to make out with her in front of me and that he was going to make my life a living hell.

That’s the help I got. I got him pinching me, screaming at me, pushing me, shoving me, grabbing me. Now it’s this. I didn’t want this to happen. I’m still extremely upset that all of this has happened.

With that being said, I cannot risk mine or [the child’s] well-being being here with nobody. I’ve been talking about this since September and I believe it’s time to go back to British Columbia with [the child]. My grandparents are there and it is safer, more affordable there. I cannot afford to stay here without going to a shelter.

I can promise this is not out of spite as I have a job offer there as well as support. I will be continuing school for nursing at Sprott Shaw.

I’m not willing to give [the child] up 100% and I do not expect [the father] to either and that’s why we need an agreement that will be court official after everything settles. But until then I’m willing to sign a document or anything to prove I’m not taking [the child] away from anyone”

42On March 7, 2021, the Mother wrote to the paternal grandmother:

“Hi Sabine. As I mentioned before, I cannot stay in Kitchener. I have been mentioning it since September and I’m scared to stay there now. I hope you guys can understand and I will be willing to further discuss it with you. As for now, we are on the plane going back out west to stay. You guys are 100% able to FaceTime her, call her, come see her, anytime you want. I am not keeping her from you guys and I hope we can come to a conclusion on how she’ll spend time with all of us. I am willing to work with you guys for visitation as well. Again, I am not trying to take [the child] from her family.”

43The Mother left for B.C. with the child on March 7, 2021.

44The Mother commenced family court proceedings via Application issued in the Chilliwack Court in B.C. on March 24, 2021.

45The Father commenced an Application in Ontario. His Application was signed on April 11, 2021, and was issued on April 12, 2021.

46The Father brought an urgent motion on March 29, 2021 after he was served on March 26, 2021 with the Mother’s B.C. Application. The Father relied heavily in the Custody Agreement at the interim motion.

47After the urgent motion was argued on May 14, 2021, the Mother was ordered to return the child to the Region of Waterloo (“the Region”) by June 17, 2021. The Mother was ordered to pay costs to the Father in the amount of $6,000.00, inclusive of H.S.T., which were ordered deferred for six months to December 21, 2021, and thereafter she was to pay these costs at a rate of $200.00 per month. The parties were ordered to resume the schedule set out in the Custody Agreement.

48The Mother returned the child to the Region as ordered. She arrived in the Region with the child on June 16, 2021. The Mother stayed with Ms. Sisombath for approximately two weeks until she could secure accommodation at MAP.

49The Mother and child have been staying at MAP since late June/early July 2021. MAP provides its residents with a private “apartment” type living arrangement. MAP has allowed the Mother and child to remain during the trial but it is unknown how long they can continue to reside at MAP.

50From before the child’s birth to the present, the Father has lived with his mother, his sister Mia, and his grandfather in a five bedroom home in the Kitchener-Waterloo Region. The Father lives on the top floor where there are two bedrooms; one of which is occupied by his sister Mia. When the child is in his care, she sleeps in Father’s room in either a playpen or, more recently, a toddler bed. The Father either sleeps in his bed or on the couch. The home has a backyard with a play area for the child, as well as a swimming pool.

51The parties have been following the schedule set out in the Custody Agreement, which is that the Father has care of the child three out of four weekends a month. On the fourth week, he has the child in his care on Tuesday during the week for a few hours. The Tuesday evening parenting time was changed to Wednesday evening at the request of the paternal grandmother, to accommodate her schedule and availability. On July 26, 2021, a pick-up time of 4:30 p.m. on Fridays and a drop off time of 5:00 p.m. on Sundays, for Father’s weekend parenting time, was agreed and confirmed in correspondence between parties’ counsel.

52The statement of agreed facts confirms the numerous requests for financial disclosure made by the Mother, which he did not always answer in a timely fashion or at all.

Validity of Custody Agreement, dated December 2020

53Although the Custody Agreement does not fit squarely within the definition of a separation agreement, both parties agree it is a contract. Both parties also agree this is not a variation application.

54It is the Mother’s position that the Custody Agreement is not valid in that it did not meet the formal requirements of being dated and witnessed. She did not have independent legal advice. She further states that even if the Agreement was valid it was limited in its scope to the period of time when she resided in MAP. She states that if I deem the Agreement to be invalid or only in place while at MAP, there was nothing to stop her from leaving.

55The Father states that the Custody Agreement was and is valid. He asserts that there have been material changes in circumstances that allow the court to revisit the Agreement. It is his position that, other than the joint decision-making, how to deal with emergencies, and the notice required for a move outside the Region, the remainder of the Agreement should be varied to provide him equal parenting time and to allow the child’s surname be changed.

56Both parties indicate they did not have independent legal advice. The Father states he relied to some extent on the paternal grandmother as she had previously entered into two separation agreements.

57The Father relies on three sections of the Custody Agreement:

Paragraph 1 “The Mother, Keisha Eileen Trimper and the Father, Keaton Joseph Hepburn agree to have joint custody of the Child, Emma-Lee Rose Gallant born on the 2nd of December 2018, whose primary residence will be with the Mother.”

Paragraph 4: MAJOR DECISION-MAKING: The mother and father agree to work on getting to a mutual agreement concerning all major decisions regarding the Child’s upbringing, including but not limited to the Child’s education, health, religion, daycare, extra-curricular activities and general welfare. The final decision will require the signature of both parents.”

Paragraph 10: ‘CHANGE OF RESIDENCE BEYOND THE REGIONAL MUNCIPALITY OF WATERLOO: The Mother will not change the Child’s permanent residence from the Region of Waterloo without giving the Father 90 days advanced notice in writing.

58I accept the Mother’s evidence that she did not sign the Agreement before a witness and that her signature was witnessed thereafter. I also accept the Mother’s evidence that the Agreement was meant to be in place for the period she and the child lived in MAP. This evidence is corroborated by electronic communication between the parties and by the paternal grandmother.

59I further find that, at the time the Custody Agreement was signed, the Mother was struggling, she needed help with the child, and she was bound by the restrictions of MAP. MAP had a policy that the Father could not exercise overnight parenting time unless there was an agreement in place. It is clear that the Mother needed some support and that the support could only be provided by the Father.

60Despite this, the relevance of the Custody Agreement is that it was an expression of the parties’ intention of the situation at that time. It is a representation of the commitment between the parties. The Mother was required to provide notice of her intention to leave the Region of Waterloo. The custody agreement requires 90 days, the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (“CLRA”) requires 60 days.

61I find that the Mother gave notice of her intention to relocate on March 1, 2021. Although she had communicated her intention to return to B.C. as early as September 2020, I accept the Father’s position that those expressions were not notice, as they were made during times of frustration and anger between the parties.

62My comments with respect to who should make decisions about the child follow.

Who should make decisions about this child?

63Section 20(1) of the CLRA states “Except as otherwise provided in this Part, a child’s parents are equally entitled to decision-making responsibility with respect to the child”.

64The Father requests that the parties share decision-making for the child. He relies on the Custody Agreement, the legislation and his position that although communication between the parties is problematic, it does not rise to the level that there should not be shared decision-making.

65The Mother requests that she solely should make decisions in reference to the child. She states the Custody Agreement is not valid and s.20(4) of the CLRA applies. She argues that even if it is valid, she has had de facto decision-making authority both prior to and following the signing of the Custody Agreement. Although she has consulted with and sought input from the Father, he has always deferred to her. Furthermore, she states that the parties’ communication is so terrible (they cannot communicate effectively or at all) that making decisions jointly would not be in the best interests of the child. She further asserts that the family violence has been severe and that if she is forced to make decisions with the Father, in order for resolution to be reached, she will have to acquiesce to him.

66Although the Father concedes that the parties’ communication is problematic, he asserts that both parties have contributed to the problematic communication and that it does not rise to the level such that there should not be shared decision-making.

67For the reasons that follow, I order that the Mother have sole decision-making authority (previously referred to as sole custody) with respect to the child.

68There are a number of Court of Appeal for Ontario decisions that deal with the issue of sole versus joint custody, including: Kaplanis v. Kaplanis (2005), 2005 ONCA 1625, 249 D.L.R. (4th) 620 (Ont. C.A.); Ladisa v. Ladisa (2005), 2005 ONCA 1627, 11 R.F.L. (6th) 50 (Ont. C.A); Ursic v. Ursic (2006), 2006 ONCA 18349, 32 R.F.L. (6th) 23 (Ont. C.A); and Rigillo v. Rigillo, 2019 ONCA 548, 31 R.F.L. (8th) 356. Although the terminology in the legislation has changed from custody to decision-making, the considerations remain analogous.

69In Jackson v. Jackson, 2017 ONSC 1566, Chappel J. summarized the law with respect to custody. At para. 65, Chappel J. held that the decision as to whether an order for sole custody or joint custody is in a child’s best interests is ultimately a matter of judicial discretion. However, several general principles have emerged from the jurisprudence to assist the court in the decision-making process. These can be summarized as follows (citations omitted):

i. There is no default position in favour of joint custody. Each case is fact-based and discretion-driven.

ii. Joint custody should only be considered as an option if both parents are fit parents and able to meet the general needs of the children. This is a threshold issue before the court considers the question of whether the parties are able to effectively communicate on issues relating to the children.

iii. The quality of past parenting and decision-making, both during the parties' relationship and post-separation, is a critical factor in determining whether joint custody is appropriate.

iv. However, the mere fact that both parents acknowledge that the other is a “fit” parent does not mean that it is in the best interests of the child for a joint custody order to issue. The decision regarding the appropriate decision-making arrangement must take into consideration all factors relevant to the child’s best interests.

v. Although some measure of communication and cooperation between the parties is necessary to support a joint custody order, the court is not required to apply a standard of perfection in assessing the parents’ ability to work together.

vi. The fact that one party insists that the parties are unable to communicate with each other is not in and of itself sufficient to rule out the possibility of a joint custody order… The question for the court to be determine is whether a reasonable measure of communication and cooperation is in place, and is achievable in the future, so that the best interests of the child can be ensured on an ongoing basis.

vii. There must be a clear evidentiary basis for believing that joint custody would be feasible.

viii. In cases involving very young children, the court must take into consideration the fact that the child is unable to easily communicate their physical, emotional, developmental and other needs. Accordingly, the need for effective communication between the parties in a joint custodial arrangement will be particularly pressing in such circumstances.

ix. The wishes of the child will also be relevant to the decision respecting the appropriate custodial disposition in cases involving older children.

x. Evidence as to how an interim custody and access order has worked, and in particular, whether the parties have been able to set aside their personal differences and work together in the best interests of the child, will be highly relevant to the ultimate decision regarding the appropriate custodial regime.

70In analyzing the ability of the parties to communicate, the court must delve below the surface and consider the source of the conflict. The Court of Appeal for Ontario has clearly stated that one parent cannot create conflict and problems with the other parent by engaging in unreasonable conduct, impeding access, marginalizing the other parent, or by any other means and then justify a claim for sole custody in their favour on the basis of lack of cooperation and communication: see Ursic; Andrade v. Kennelly (2006), 2006 ONSC 20845, 33 R.F.L. (6th) 125 (Ont. S.C.), aff’d 2007 ONCA 898, 46 R.F.L. (6th) 235.

71Although the mere suggestion of ineffective communication cannot by itself rebut joint custody of a child, the inability to communicate for the best interests of the children can: see Lambert v. Peachman, 2016 ONSC 7443.

72I accept that although both parents are fit and can meet the basic needs of the child, the general needs of the child can be better met by the Mother. She has shown by her actions and her words that she wants the Father and child to have a relationship.

73The Mother has made the decisions regarding the child since birth. She keeps the Father informed but he is either indifferent or defers to her. He chose not to speak to daycare, not to go to the doctor, or even contact the doctor, the eye surgeon or the Montessori school. Other than the Mother’s moves, the Father, to his credit, does not deny the Mother has made decisions that are in the child’s best interests.

74The level of conflict in this case does reach a level where joint decision-making is not workable.

75The Father has shown a pattern of abusive and manipulative behavior against the Mother which has impacted this young child. He has been physically, verbally, emotionally and financially abusive towards her. Since January 2021, communications have been between the Mother and the paternal grandmother.

76Although the Mother’s communications with the Father have not always been perfect and she has made mistakes, it is clear that she has tried to work with the Father and involve him in all aspects of the child’s life. She asks for his input on a regular basis. When she does lash out at the Father, it is in response to his demeaning and/or abusive behaviour. The video of the Mother telling the child she was not going to see her Father was a lapse in judgment on the Mother’s part, which she clearly admitted.

77The Father has been unable to set aside his anger and personal differences in a way that joint decision-making would be in this child’s best interests. The electronic communication between the parties are at times disturbing and abusive. The Father prefers to speak on the phone and through Snapchat which disappears. I accept Mother’s evidence that those communications are even worse than the social media communications.

78The Father has not always made child focused decisions. Examples include: forcing the Mother and child to leave his paternal grandmother’s home (which is also his home) during Christmas 2020 in a snow storm because he did not want to see the Mother; not readily agreeing to keep the child longer when the Mother was in hospital in November 2020 and threating to “torture” the Mother and to “bring tobi there and make out with her in front of [the Mother]”; threatening to bring the child to her at the hospital so she could feed her; forcing the Mother to share the driving responsibilities for the child when he knew she did not have car insurance as she had no money; threatening to call the authorities and say the Mother is suicidal; using the child to coerce the Mother to return outside on January 1, 2021 so he could access her car fob.

79These parties cannot communicate in an effective, healthy or civil manner. I find that the Father is the source of the conflict.

80The evidence supports that the Father has committed family violence against the Mother. This will be discussed in more detail below.

81It is in this child’s best interests that the Mother solely make decisions in reference to this young child.

Should the child be allowed to relocate to British Columbia?

82As these parties were never married, the parties agree that their respective claims are pursuant to the CLRA, as amended, and the Family Law Act, R.S.O. 1990, c.F.3, as amended.

83The Father agrees that the Mother complied with the Notice Provisions set out in section 39.3 of the CLRA in that, at the very least by March 7, 2021, she gave notice of her intention to relocate to B.C.

84The parties agree that the Father has the onus of proving that the relocation would not be in the best interests of the child.

85It is the Mother’s position that she should be allowed to relocate. Although she is not arguing about jurisdiction as it was determined at the interim motion, she states that B.C. is her home and is the child’s home. It is in the best interests of the child that she be allowed to relocate to B.C. as she will have emotional, physical and financial stability. The child is bonded with the maternal great-grandparents who will provide 24/7 care, as they are retired. The child will also be able to continue her relationship with her paternal aunt, who lives in Victoria, B.C. The Mother states hers is the better plan.

86It is the Father’s position that he has been the stable factor in the child’s life. The child has a close and loving bond with him, the paternal grandmother and the child’s aunt Mia. The relocation would have a significant impact on the child’s relationship with him and his family because she would lose regular, meaningful contact with them. He states that the Mother does, or should, have the supports she needs in Ontario and that living in Ontario is the better plan. He further asserts that Mother shows a lack of stability as a result of her frequent moves.

87For the reasons that follow I order that the child be able to relocate to B.C.

88Section 39.4(3) of the CLRA states:

Best interests of the child

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

(a) the reasons for the relocation;

(b) the impact of the relocation on the child;

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

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

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

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

(g) whether each person who has decision-making responsibility or parenting time or is an applicant for a parenting order with respect to the child has complied with their obligations under any applicable Act, regulation, order, family arbitration award or agreement, and the likelihood of future compliance. 2020, c. 25, Sched. 1, s. 15.

89I will deal with each of the enumerated factors in turn.

(a) The reasons for the relocation;

90The Mother asserts she and the child should be allowed to return to B.C which she has always considered home. This is the best place for the child as she has great support and has developed a close bond with the maternal great-grandparents who are both retired. The Mother will have the support she needs to move forward with her education and work. She will have the use of a vehicle and built in child-care. In short, she will have financial, emotional, physical and psychological support.

91The Father acknowledges that parental well being is a factor in the relocation caselaw. He agrees that the Mother will have financial stability and emotional support in B.C. He agrees that the maternal great-grandparents are a positive support for the Mother and child, that they are retired and available 24/7 and that the bond between the Mother and the maternal great-grandparents is strong and sincere. He admits that it might not be fully reproduced in Ontario but states that the Mother does have some supports here with her stepfather’s extended family and her friend, Ms. Sisombath. She can make friends and establish relationships in Ontario.

92No one has suggested, nor do I find, that the Mother’s request to relocate the child’s residence to B.C. is grounded on an improper motive.

(b) The impact of the relocation on the child;

93The Father states (as was the case in Zorab v. Zourob, 2021 ONSC 6552) that impact of the relocation on the child will be significant in that she will not have easy and regular in-person contact with him nor her extended paternal family. In Zorab, despite that impact, the court allowed the child to relocate from London, Ontario to Winnipeg, Manitoba. In this case, the child will not be required to start a new family, social and education life, as was the case in Zorab. She has lived in B.C. with her maternal great-grandparents before. They love her and support her. The child is not yet in school, nor has she developed a social life with friends.

94The impact of not spending easy regular in-person contact with the Father and his family is mitigated by the support she will receive from the Mother and the maternal great-grandparents. Furthermore, the child will have Facetime parenting time with the Father three times per week and based on the schedule, she will see him approximately 10 weeks per year. Although this is not as regular as the current schedule, it is similar in amount to the time she spends with the Father now (39 weekends per year) and 13 evenings per year, which are not overnight.

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

95The Father’s parenting time is three weekends out of four, and one evening during the fourth week. Other than holidays and some other times when the Father has cared for the child at the Mother’s request, the child is in the care of her mother.

96Although the Father has been involved in the child’s life since September 2020, all major decisions have been made by the Mother. She is the parent who has enrolled the child in daycare (the Father did not even know the name of the daycare provider), taken her to the doctor and dentist and has been responsible for meeting her needs. He chose not to become involved with the third parties in the child’s life. He was notified of medical appointments and he did not make any effort to go. Communication in October 2020 showed that he was stressed out and tired and he wanted time for himself.

97The Mother is the person who spends the most time with the child and is most involved in her life.

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

98The parties agree that notice has been provided.

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

99This issue has been addressed previously.

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

100The Father acknowledges the Mother’s proposal for parenting time, if the child relocates to British Columbia is reasonable. The Mother agrees to share 30 percent of the cost of the airline tickets or gas for the Father to exercise his parenting time. She believes the tickets are $200.00. The Father believes the airline tickets cost between $500.00 - $900.00. The Father requests an equal sharing of this cost. The issue of cost allocation will be addressed later in this decision.

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

101The Father concedes that both parents will comply with an agreement or court order. He states neither should be faulted. The only issue he raised was the Mother paying her first installment of the cost award 7 days late. I do not consider this a factor as the Father did not pay full child support that month (amount not yet agreed to) and because the Mother is financially destitute and unable to eat at times. She relies on food banks.

102I have no concerns about that the Mother will comply with a court order. I have no concerns that she will do her part in ensuring that the Father has a good relationship with his daughter.

103In reaching my decision, and in following s. 39.4(4), I have not considered whether, if the relocation were prohibited, the person who intends to relocate the child would relocate with or without the child.

104Section 24(3) of the CLRA states:

Best interests of the child

24 (1) In making a parenting order or contact order with respect to a child, the court shall only take into account the best interests of the child in accordance with this section. 2020, c. 25, Sched. 1, s. 6.

Primary consideration

(2) In determining the best interests of a child, the court shall consider all factors related to the circumstances of the child, and, in doing so, shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being. 2020, c. 25, Sched. 1, s. 6.

Factors

(3) Factors related to the circumstances of a child include,

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

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

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

(d) the history of care of the child;

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

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

(g) any plans for the child’s care;

(h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;

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

(j) any family violence and its impact on, among other things,

(i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and

(ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to co-operate on issues affecting the child; and

(k) any civil or criminal proceeding, order, condition or measure that is relevant to the safety, security and well-being of the child. 2020, c. 25, Sched. 1, s. 6.

105I will deal with each of the factors under s. 24(3) in turn.

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

106Although the Father agrees the Mother can meet the child’s needs, he asserts that he is the more stable parent as he has resided in the Kitchener-Waterloo Region since prior to the child’s birth. The Mother, on the other hand, has moved provinces.

107Although the Father concedes that the maternal great-grandparents can provide a safe, calm, warm environment, he asserts that the child needs to remain in Ontario where she can have the stability he provides and regular contact with him and his family.

108The Father states that the Mother’s actions have created a panic for everyone else, including the child – she should not have been moved back to B.C. in March 2021 because things were stable. The Mother had adequate funding, was in school and the child was in daycare. Had the Mother talked to people and planned, the Father asserts, the parties would not be in this situation. This is a situation that the Mother created. In other words, she had a role in this.

109It is true that the Mother moved from Ontario to B.C., from B.C to Ontario, and then from Ontario to B.C in a short period of time. I do not find though that, as a result she is less stable. I find that she moved to B.C. in March 2019 with the Father’s consent. Both parties agreed that at that time, the Father could not provide the necessary support as he was focussed on school. The plan was that the Father would find work in B.C. He could not and, as a result, the parties discussed the Mother and child returning to Ontario and living together as a family. This did not come to fruition. The Mother and child lived at MAP. The Father could not provide the support necessary for the Mother to advance either her schooling or her employment. This had a devasting effect on the Mother and, as a result, the child, financially.

110I further find that when the Mother was able to secure employment on weekends, the Father refused to provide care for the child on the fourth weekend and went so far as to chastise the Mother for taking a weekend job and not involving him in this decision. He lashed out saying she was irresponsible and that she did not care. When the Mother then said she would find a babysitter for the fourth weekend, the Father’s response was to again lash out. He prioritized his job to hers.

111The Father has not been supportive of the Mother’s efforts. His position at trial in support of allowing the parties to have equal parenting time is not reasonable or in the child’s best interest. If the Mother cannot rely on him to react in a supportive fashion in the event of an emergency (such as the November 2020 hospital attendance) or when she finally finds weekend work, this speaks volumes to the lack of support the Father has provided.

112Further, the Father failed to meet his financial obligations to the child. The Father required the Mother to repay him for numerous items and he kept a tally. His tally was wrong. Despite this, he persistently pressured repayment even when he knew she had no money. During this time, he was also not paying the proper amount of child support nor was he providing all of the income information requested. Additionally, he failed to return items to the Mother that she had purchased.

113In B.C., the child will have the support of her great-grandparents. She will start school in September 2023. Her family doctor, specialist and dentist are in B.C. The day-to-day plan is to resume where they left off.

114In short, the child’s physical, emotional and psychological safety, security and well-being will best be met by allowing her to relocate to B.C.

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

115The Father asserts that the child has a strong bond with each parent, his mother, his sister. He agrees that the child has a strong bond with the Mother and maternal great-grandparents and a bond with maternal grandparents.

116The Mother does not deny that the child has a bond with her Father, paternal grandmother and paternal aunts, Mia and Samantha. Samantha lives in B.C. She states the child’s strongest bond is with her.

117There is no doubt that the child’s strongest bond is with her Mother.

118The Facetime contact as well as the extensive schedule agreed to by the parties will allow the child to maintain her bond with the Father and paternal family. I have confidence that the Mother will allow contact between the child and her paternal aunt, Samantha, in B.C. who she describes as “great”.

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

119The Father asserts that despite the conflict, he supports the maintenance of a relationship between the Mother and child. He agrees that the Mother supports a relationship between the child and him and his extended family.

120The Mother is concerned that the Father’s attitude towards her and lack of respect for her will filter down to the child.

121It is clear that the Mother will facilitate a relationship between the child and the Father. She has encouraged and pushed for this relationship from the child’s birth. The evidence is overwhelming in that regard; whether it be her move to Ontario so that the Father could be a more hands-on parent, to the cards and pictures, Christmas collages, emails, and videos that the Mother provided to the Father in support and encouragement of that relationship.

122I find that the Mother is more willing to support the development and maintenance of the child’s relationship with the Father. I am concerned that the Father’s animosity towards the Mother will impact the child.

(d) the history of care of the child;

123There is no dispute that the Mother had primary care of the child since her birth.

124The Father acknowledges that the child was out of the province from 3 months of age to 21 months of age. He agreed to the Mother and child moving to B.C. He concedes that he was not ready to be a father; he was not present at the birth and he was not available because of school, but since he finished school he has “stepped up”. He points to the fact that he went to B.C. for visits. He has made an investment of time and money to build the bond as between himself and the child. He is stabilized now and his bond with the child is sincere.

125He asks this court to consider the context of the unplanned pregnancy and asks that I do not put a lot of weight on the early days.

126Prior to September 17, 2020, the Father’s parenting time with the child was limited to one week before she left for B.C. in March 2019, one week in between her visits to Newfoundland and move to B.C. in the Spring 2019 (and only when he could get to the hotel), and upon her return back for another week. He then only saw her off and on. Additionally, he went to B.C. 3 times. On almost each occasion, the Mother took the lead in caring for the child. When he went to B.C. and took the child to visit his sister, he started to perform more of the parenting role.

127From September 17, 2020 to December 4, 2020 the Father’s parenting time with the child was Friday, Saturday and Sunday, 3 weeks a month, for daytime visits only. MAP policy would not allow overnight parenting time without an agreement or court order. By October 2020, he was complaining about being overwhelmed, tired and wanting time for himself in the context of his availability to care for the child. He wanted to change his 3 weekends to alternate weekends. He lied about his work schedule so as to not have to care for the child.

128Commencing around December 4, 2020, the overnight visits started independent of the Mother for the first time. The visits were during the first three weekends of the month (Fridays to Sundays) and Wednesday evenings for a few hours during the fourth week. This continued to March 7, 2021 when the Mother took the child to B.C. When the Mother and the child returned to Ontario in June 2021, this schedule resumed.

129In the Fall of 2020, the Father did not work on Fridays, but the paternal grandmother was the one to care for the child on Fridays. He worked for a while on Sundays and the paternal grandmother would care for the child.

130On December 10, 2020, the Father asks the Mother if she wanted him to take the child some weekdays and then every other weekend when he started his new job. The Mother was offered a job on weekends and asked the Father to take the child every weekend. He declined. The Mother responded with “you have 3 weekends a month. Ill figure out a babysitter for the last.” The Father answered “Until you move our [sic] Then that agreement [sic] is not longer valid.” He insisted the Mother should have spoken to him before accepting employment that required her to work weekends. When she responded that it was none of his business, his answer was “see if you were as respectful as you think you are you would consult me before you make Decisions because unfortunately for you my opinion does matter.”

131Other than one request, the Father neither requested nor offered to take the child more times. The Mother would have to cajole him to assist her. Even when his or paternal grandmother’s schedule (who had Mondays and Fridays off) allowed them to care for the child, they did not.

132It is clear that the Father has, at times, struggled to care for the child. In the early days, he required time off from caring for the child to study and to apply for jobs. As Ms. Sisombath indicated, if the Mother asked him to care for the child, he made a huge deal of how the Mother was inept and inconsiderate and self-centered.

133I agree that the paternal grandmother provided the Father with a lot of assistance during his periods of care with the child. She provided meals, laundry, outings with friends, activities, as did Aunt Mia. It was the paternal grandmother that contemplated taking the child for a vacation in the summer of 2021. The paternal grandmother collected the child from her Montessori school. She is the one who arranged for alternate childcare for the child. She took the child for medical attention. She cares for the child when the Father is at work. I accept that paternal grandmother would have provided more support to the Mother and child but at Father’s insistence, she did not.

134The Mother’s move to Ontario in September 2020 presented the Father with his opportunity to co-parent. He had so many opportunities to do more than he did – he did not make the most of it. Instead, he made the Mother’s life difficult.

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

135In this case, the child just turned three years of age. Neither party attempted to tender evidence of the child’s views and preferences. This is appropriate given her young age.

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

136No evidence was given on this issue.

(g) any plans for the child’s care;

137The Father asserts that the challenge facing this court is that there are two good plans.

138The Father states the child is important to him, and he is important to her. He has a strong bond with her; he does things with her. His plan is that the child reside in Kitchener-Waterloo. He has housing, consistency, a new and established career, and his family is close to him. His plan is to continue to reside at the paternal grandmother’s home and remain at this same employment. He seeks to have the child in his care 50% of the time. He asserts this is the best plan because this is where the relationship began, this is where the child was born, the Custody Agreement commits the parties to this area (I find that it does not- it requires notice), and the child will be able to maintain her relationship with him and his extended family. He states the Mother has the ability to go to school and get employment in Ontario as equally as in B.C.

139Although the Father concedes that the Mother is struggling emotionally and financially in this Region, he posits that she requires an inordinate amount of support. Even when she has childcare all day and he has the child in his care three out of four weekends a month, she still needs support – to him this is unreasonable. He further argues that if he has the child in his care 50 percent of the time that will provide her with the additional support she needs.

140The Father acknowledges the child is connected to the community in B.C. and that she spent a significant period of her young life in B.C. It is a safe place for her and the maternal great-grandparents are an important support. The Father argues he is a stabilizing factor and he is an important person in the child’s life. He states the Mother has been impulsive, does not always put the child first, and has moved for boyfriends in the past. He argues that the Mother is young and has moved provinces from time to time. He is critical of the move in September 2020 to the extent that it was not properly planned and was motivated by the Mother’s desire to be with him. He and his mother have helped in the past and will continue to help. A shared parenting schedule would a reliable schedule and when the Mother needs extra help, he will do his best. Previously, he could not accommodate last minute requests.

141The Mother wants to return home to B.C. – she never really settled in Ontario between September 2020 and March 2021. She argues that this is not a true relocation – she wants to go back to where she has been which she has been saying since she arrived in September 2020, even though they did not believe her. She states that in B.C. she and the child will have the emotional, physical and financial stability they need to move forward. She asserts that in Ontario she has very little and she cannot build a good life for the child.

142I find that the situation in Ontario is not feasible, nor in the child’s best interest. The Mother is in a shelter - she does not have a home here nor can she afford a home in the Region. She was in school here and was not allowed to miss more than 3 days. She does not have the basic necessities here. She tries to get a job that coincides with the Father’s weekends with the child and, not only does he not help, but he sabotages it. In B.C., she will return to school to complete her nursing program, she will have the maternal great-grandparents to provide a home and built-in childcare. She and the child will have stability.

143I find that the Mother’s plan is the better plan. Allowing the child to relocate to B.C. is in the child’s best interests.

(h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;

144The Father submits both parents are willing to meet the needs of the child emotionally and financially. Although he states a shelter may not be appropriate, the Mother can find housing. I do not agree. Staying at the shelter is not a long-term plan. She cannot afford a home independently. She does not have the necessary emotional, financial or day to day support needed to attend school or find employment. The Father has not been flexible or supportive enough.

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

145History has shown that the Mother has been able and willing to involve the Father in matters affecting the child. In fact, she has pushed him to become involved. The Father has not always co-operated or acted in a child-focused manner. Just one example of this is Christmas evening in 2020 when he refused to allow the Mother and child to remain at his home despite a snowstorm, causing her to scramble for a place for her and the child to stay.

(j) any family violence and its impact on, among other things,

i. the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child,

146The Father has throughout denied that he has committed family violence. In his affidavit of March 28, 2021, the Father states that conflict was instigated by the Mother, who has various mental health challenges and personality diagnoses.

147I find that the Father has committed family violence against the Mother and child, despite the Father’s denial.

148As a substantial amount of time during trial was spent on videos from the cameras at MAP regarding the incident between the parties on January 1, 2021. I will address the incident specifically. Time was spent on the playing of the videos, timing issues with the videos and missed time with the videos. Here is what is clear. On January 1, the Mother told the Father she was not home – she was. The Father waited. Within minutes, the Mother came down with the child. The Father wanted the child’s coat and the playpen. The Mother wanted the return of the child’s hat. Both parties were immature. Approximately one hour and 11 minutes elapsed. The Father admits that he grabbed the Mother’s sleeve and she walked away. The videos show he grabbed her three times. While she walked up the ramp, it is clear she wanted to get away from him. The Father grabbed the Mother when he had the child in his arms. The Father persistently sought out the Mother and would not leave. He texted her, called her and went to the window of her apartment. He walked around with the child while she had no jacket on. He used the child to entice the Mother back out of her residence, to kiss the child good-bye.

149For 11 seconds there is no video coverage. I accept the Mother’s evidence that he grabbed her again during that time to access the key fob in her pocket to unlock her car so that he could take the playpen. The paternal grandmother confirms that Mother was surprised to discover that Father had the playpen.

150The following are other incidents of family violence:

i. Anal intercourse not consented to by the Mother.

ii. Choking the Mother after they engaged in intimate relations and the Mother threatened to tell his girlfriend.

iii. His persistent manipulative control of the Mother. For example, on one occasion when Mother refused to re-add him on Snapchat despite his persistence, his response was “Then you don’t want help Because that was compromise”. She responds, “Leave me alone” and he responds “Your honestly a fucking retard lmfao Like I help you with so much shit and the one thing I ask is for you to have me on social media.” He then tells her she is “loosing” the only help she gets. When she responds, “You’re her dad” – he responds, “I don’t care. I don’t need to sacrifice my health for yours.” To this she responds, “You make me want to kill myself every day. You make me want to run away and never come back. You make me cry 24/7 Leave me alone.” His answer: “Good I don’t care about you I hope your suffering Like how the fuck do you think I feel.” Later, he says, “And it’s my right not to have [the child] right now” and then threatens to bring her back to the Mother if she does not “play nice”.

iv. The text messages were sent when Mother was ill on November 3 and 4, 2020.

v. His constant demeaning comments about Mother’s mental health. For example, he had told her, “Just go take your meds and be normal.” The uncontradicted evidence of Ammaly Sisombath is that she “saw first-hand some of the communications between [the Mother and Father] to know that when there was a disagreement [the Father] would almost always mention [the Mother]’s young age and use her mental health against her to belittle her and justify his treatment of her. He said terrible things to her. He would actually taunt her by mentioning her mental health. I understood based on what I saw and read that [the Father]’s treatment of [the Mother] was abusive.”

vi. His failure to provide proper child support in the face of the Mother’s poverty, including requiring her to drive one way for pick up and drop offs while knowing she could not afford and did not have car insurance and his failure to return the toddler bed purchased by the Mother, despite her request. The Father concedes that it was not until March 2021 that monthly support started to flow to the Mother, and that in September 2021, the amount more reflected the Guidelines. Further, the Father failed to give the child a gift from her paternal grandfather. He kept the money.

(j) any family violence and its impact on, among other things,

(i) the ability and willingness of any person who has engaged in family violence to care for and meet the needs of the child, and

(ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to co-operate on issues affecting the child; and

(k) any civil or criminal proceeding, order, condition or measure that is relevant to the safety, security and well-being of the child. 2020, c. 25, Sched. 1, s. 6.

151Criminal charges against the Father were resolved through a Peace Bond. Both parties agree there has been no criminal conviction against the Father and that the Peace Bond is not an admission of guilt. As a result of the Peace Bond, there is a no contact order in place such that the Father cannot communicate with the Mother except through legal counsel or pursuant to a valid family court order.

152Section 24(4) outlines factors that the court must consider if family violence has occurred. The provision states:

Factors relating to family violence

(4) In considering the impact of any family violence under clause (3) (j), the court shall take into account,

(a) the nature, seriousness and frequency of the family violence and when it occurred;

(b) whether there is a pattern of coercive and controlling behaviour in relation to a family member;

(c) whether the family violence is directed toward the child or whether the child is directly or indirectly exposed to the family violence;

(d) the physical, emotional and psychological harm or risk of harm to the child;

(e) any compromise to the safety of the child or other family member;

(f) whether the family violence causes the child or other family member to fear for their own safety or for that of another person;

(g) any steps taken by the person engaging in the family violence to prevent further family violence from occurring and improve the person’s ability to care for and meet the needs of the child; and

(h) any other relevant factor. 2020, c. 25, Sched. 1, s. 6.

153I will deal with each factor in turn.

(a) the nature, seriousness and frequency of the family violence and when it occurred;

154The Father admits that if I find that he choked the Mother, it is serious violence. I am satisfied, on a balance of probabilities, that the Father choked both the Mother and Ms. Wilson.

155I find that the physical, emotional, psychological and financial abuse are serious. The abuse continued throughout the parties’ relationship. Even when the Mother was giving evidence during this trial, the Father was making faces at her. It is clear he does not respect her. It is also clear that paternal grandmother does not respect her.

(b) whether there is a pattern of coercive and controlling behaviour in relation to a family member;

156I find that there is a pattern of coercive and controlling behaviour by the Father against the Mother. Although the Father acknowledges the insulting and derogatory text messages he sent, he states that both parties participated in such conduct. He states he is remorseful and that he has done programs and has shown regret and remorse in understanding the impact it had. I do not agree. Despite the programs, the pattern persisted.

(c) whether the family violence is directed toward the child or whether the child is directly or indirectly exposed to the family violence;

157The child was involved in the January 1, 2021 incident. Further, the Father’s actions have impacted the child because he has failed to make child-focused decisions, whether it be the threat to bring the child to the hospital to be fed, or refusing the Mother and child to remain at his home despite a snowstorm. His derogatory treatment of the Mother is obvious and continued at the trial. This will seep through to the child.

(d) the physical, emotional and psychological harm or risk of harm to the child;

158The Father states they can manage the conflict through Our Family Wizard and hence there is no risk of harm to the child. He further states that by requiring pick up and drops offs at school or daycare, conflict will be avoided.

159The Father fails to realize how his actions towards the Mother impact the child emotionally, physically, financially and psychologically.

(e) any compromise to the safety of the child or other family member;

160The Father states the involvement of the paternal grandmother will ensure the child’s safety. He suggests that the parties make exchanges at neutral locations. He states that the prior behaviour is behind them, but that “time will tell.”

161I do not find that the Father would purposefully put the child in harm’s way. I find though, that his anger towards the Mother has caused him to make decisions that could impact the safety of the child, e.g. requiring her to drive in a snowstorm.

(f) whether the family violence causes the child or other family member to fear for their own safety or for that of another person;

162The family violence has caused the Mother to fear for her own safety.

(g) any steps taken by the person engaging in the family violence to prevent further family violence from occurring and improve the person’s ability to care for and meet the needs of the child; and

163The Father has taken two courses following the January 2021 incident. These were perquisites to his Peace Bond resolution. However, he has not acknowledged that certain events have occurred and accordingly they have not been addressed. He had a lot of anger management counselling yet the behaviours have continued despite his apologies. When there has been abuse and intimate partner violence that persists, the concern is that it will continue to be an issue moving forward. It is concerning that in the face of all of this assistance, the Father has been unable to manage his behaviour.

(h) any other relevant factor. 2020, c. 25, Sched. 1, s. 6.

164Ms. Wilson’s evidence corroborates the Mother’s evidence and establishes a pattern of the Father not accepting “no”, using manipulative guilt tactics and gaslighting, choking, anger control issues, and controlling behaviors. Family violence is an important factor in this case. It reaches a level where the court is concerned about the emotional, physical and psychological well-being of the Mother.

165Section 24(5) requires the Court to not take into consideration the past conduct of any person, unless such conduct is relevant to the issues:

Past conduct

(5) In determining what is in the best interests of the child, the court shall not take into consideration the past conduct of any person, unless the conduct is relevant to the exercise of the person’s decision-making responsibility, parenting time or contact with respect to the child. 2020, c. 25, Sched. 1, s. 6.

166The Father’s past conduct and its impact on decision-making have been addressed.

167Section 24(6) discusses allocation of parenting time:

Allocation of parenting time

(6) In allocating parenting time, the court shall give effect to the principle that a child should have as much time with each parent as is consistent with the best interests of the child. 2020, c. 25, Sched. 1, s. 6.

168The schedule has been agreed to.

169I conclude that this move is in the child’s best interests for the following among other reasons:

i. The Mother’s family in British Columbia has a long and strong relationship with the Mother and with the child relative to her age.

ii. The Mother’s family members in British Columbia have made the child and the Mother a priority.

iii. The Mother’s family in British Columbia will continue to support the Mother and the child.

iv. The Mother is struggling in the Region as a single mother living alone, with limited financial means and very little support. She and the child would benefit from the support of her family in British Columbia.

v. The Mother will regain her confidence and her emotional, psychological, social, and economic well-being, which will benefit the child and therefore is in the child’s best interests.

vi. The child will benefit from a close connection with the Mother’s extended family, will have better living arrangements and more financial stability.

vii. The child is close to her paternal aunt who lives in Victoria, British Columbia.

viii. The Father does not respect the Mother and fails to recognize that his disrespect of her has harmed the child (for example, there have been times when the Mother living in her car because she was so destitute). The paternal grandmother expressed her disappointment at Mother for “doing this”.

vii. I find that the Mother will facilitate the relationship between the Father and the child and between the child and paternal grandmother. The evidence is clear that the Mother has been focused on the father-child relationship from the outset.

viii. The Mother has generally been compliant with court orders and agreements. She is very compliant in general. Her plan is reasonable.

ix. The Mother always puts the child first. She makes decisions and makes sure the child is well cared for. For example, in her evidence, the Mother said she did not now seek the return of the toddler bed she bought because she did not want the child sleeping in a play pen.

x. In considering all of the factors in the best interests analysis under s. 24 of the CLRA, the benefits to the child in returning to B.C. outweigh the benefits to the child of staying in Ontario. The Father has not discharged his onus under section 39.4(6) of the Act of proving that relocation would not be in the best interests of the child, for the reasons outlined.

Should the father’s family be provided with additional Facetime contact with the child?

170The paternal grandmother should have Facetime contact with the child independent of the Father. She has bonded with the child and has cared for her. I trust that the Mother will facilitate said contact. I order at minimum one monthly Facetime contact between the paternal grandmother and the child.

What should the parenting schedule be?

171As I have allowed the relocation to British Columbia, the parties have agreed on the parenting schedule and this is reflected in the consent orders below.

172The child can have a wonderful close, meaningful relationship with her father by spending extended time with him in the summer, on holidays and through Facetime. He can spend time with her in B.C. The Mother supports this. The Mother has made it happen in the past – there is no reason to suggest she is not going to make it happen in the future.

Should the Mother be restricted from moving more than 100 km from Chilliwack B.C?

173The Father seeks that if I grant the relocation, I restrict the Mother from moving more than 100 km away from B.C.

174The Mother should only be restricted from moving if it impacts the Father’s parenting time. In this case, the restriction is not necessary.

Costs of Relocation

175Section 39.4(9) of the CLRA states:

Costs of relocation

(9) If a court authorizes the relocation of a child, it may provide for the apportionment of costs relating to the exercise of parenting time by a person who is not relocating between that person and the person who is relocating the child. 2020, c. 25, Sched. 1, s. 15.

176Both parties agree that in making a determination under s. 39.4(9) of the CLRA, there is no need to prove undue hardship.

177Both parties agree that the Father will pay upfront costs of any flights (for him to exercise his parenting time) or the costs of gas.

178The Mother’s position is that she will pay 30 percent of the cost of the airline tickets or gas, if the Father drives. She is approaching this as a section 7 expense but takes no position as to whether the cost should be revisited if Mother’s financial situation improves.

179The Father’s position is that the Mother should pay 50 percent of the cost of the airline ticket or gas as this is fair, practical, and reasonable. He states that fairness requires her to accept responsibility for the move. He will agree to make best efforts to obtain the most affordable flight available, applying the standard of reasonableness.

180The Mother states that 50/50 sharing is not appropriate based on current income of the parties. She did not put herself in this situation. If the Father made more of an effort to make the Ontario move successful, they might be in a better place right now. She came to Ontario for him, to try to make co-parenting work and it did not. If fault is going to be placed, it should be placed on him. The Mother is also asking that if, at the time the Father purchases the airline ticket or gas, he is still in arrears of child support, that she not be required to pay her 30 percent of these costs.

181There is differing evidence on the cost of travel to British Columbia. The Father states the cost of airfare is between $500.00 and $900.00 while the Mother states that there are now more affordable airlines, such as Swoop Airlines, that flies out of Kitchener with the costs as low as $200.00.

182For the reasons that follow, I accept Mother’s position.

183In apportioning costs, the court is to consider the means of the parties (see D.S. v. K.C., 2021 SKQB 178). In this case, the Mother lives in poverty. She has no job and no income. She is in debt. Her situation will improve with the move. She has had part time work in the past. Her plan is to return to school. Her plans for education have been hampered by her requirement to return to Ontario and by the Father’s failure to be supportive. Her employment has been hampered for the same reasons. Her financial circumstances are dire. On the other hand, the Father’s 2021 income will be at least $77,806.79. He does not pay rent. Although in his evidence he said he expected to pay rent, the paternal grandmother does not have this expectation.

184The Mother’s proposal to pay 30 percent of the cost is reasonable. This is subject to a material change in circumstances. If the Father still owes to the Mother arrears of support, she will not have to make a payment towards this cost but will instead make the payment within 30 days following the arrears being paid in full.

Child Support Issues (repayment of arrears, set off and imputation of income to the Mother)

(a) Retroactive Readjustment

185The parties were able to resolve the issue of child support arrears in that they have agreed that the Father owes to the Mother the sum of $10,000.00 as at November 30, 2021 as per the Minutes of Settlement, dated November 26, 2021. Counsel confirmed that year-to-year income was used to calculate retroactive child support. Namely, the Father’s 2018 income was used to calculate 2018 child support, 2019 income was used to calculate 2019 child support and so on.

186During closing, both parties proposed that ongoing support for the child based on an income imputed to Father of $75,000.00. Each party sought that the amount of child support be retroactively readjusted to his actual income except that the Mother seeks this adjustment only if Father’s income is higher than $75,000.00. As at the end of trial, the Father had paid $700.00 for the months of December 2021 and January and February 2022.

187For the reasons that follow, there will be no retroactive readjustment.

188The statement of agreed facts has relevant information in relation to financial issues. The Mother had made requests for simple disclosure. The Father understood the request but did not always think the Mother was entitled to current income information. It was his understanding until recently that child support payable was based on prior years income

189The Father’s income in 2021 is at least $77,806.99 being his income from Fastenal as of February 2021 (when Father states he stopped working for Fastenal in any capacity) and his income from Automobotics for 50 weeks of work. The year-end paystub provided was for the pay period ending December 19, 2021, the additional week will be added to 2022 income.

190The Father has been, at times, been untruthful and evasive about his income. His evidence in cross-examination was that he continued to work for Fastenal until February 2021. He said he worked one Sunday each month for 3 hours and he estimated he earned $120.00. When his paystub was finally provided in February 2022, it revealed that as at February 2021, he earned more than 10 times per his estimate or $1,362.86 as of February 2021. The Mother does not even know if this is his last paystub.

191The Father had counsel as of March 2021. He should have provided the requested disclosure despite the focus on parenting issues in the spring of 2021. Further, the Father did not comply with the direction I gave him in November 2021 to provide T4 slips and paystubs on November 2021 and he did not provide those until Feb 3, 2022.

192The Father is concerned that his income might be lower and seeks a readjustment in August 2022, while the Mother is concerned that his income might be higher. As the Father’s position is that he may not earn as much in 2022 as 2021 in that he may not travel as much, he should have provided some evidence from his employer to that effect. He travelled three times in 2021 (amounting to eight and a half weeks) and when he travels, he may earn more. His evidence was that he would take advantage of out of town trips if he did not have the child in his care.

193Financial reconciliations have been difficult for these parties as is evidenced by the numerous issues in respect of the loan repayment. Accordingly, there will be no reconciliation per se. When each party receives the other’s 2022 income, he or she can decide if an adjustment should be pursued commencing following the exchange of the information in 2023.

(b) Imputation of Income

194The Father suggests I impute minimum wage to the Mother. He asks that I impute an income of $10,000.00 to her at this time and then commencing January 1, 2023, that an income of $30,000.00 be imputed to her, unless she is in school full-time. He acknowledges there is no evidence before the court as to minimum wage in B.C. He asks that I take judicial notice of the minimum wage in B.C. It is $15.20 per hour.

195The Father seeks to impute minimum wage based on the Mother’s past work history at places such as a camper park, a liquor store, and a Bath and Body Works store.

196For the reasons that follow, I decline to impute income to the Mother at this time.

197The factors for imputation of income are set out in s. 19 of the Child Support Guidelines, O. Reg. 391/97 under the Family Law Act. The only possible category that would apply here is s.19 (a) which states:

Imputing income

19. (1) The court may impute such amount of income to a parent or spouse as it considers appropriate in the circumstances, which circumstances include,

(a) the parent or spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of any child or by the reasonable educational or health needs of the parent or spouse;

198The Mother has already agreed to pay 30 percent of section 7 expenses, despite her nominal income. She is not seeking spousal support. The Mother’s change in residence to Ontario in order to facilitate a relationship with the Father, the Father’s lack of support in assisting the Mother in caring for the child to allow her to work, and his insistence that she remain in Ontario until this trial was decided have wreaked havoc on the Mother’s plans for an education. It is not reasonable or necessary to impute an income to the Mother at this time. She is not intentionally under-employed or unemployed.

(c) Off-setting arrears owing by Father with costs owing by Mother

199The Father seeks an order that his arrears of $10,000.00 be offset against the costs Mother owes to Father which she was ordered to pay commencing December 2021 at a rate of $200.00 per month.

200This court asked the Father’s counsel what authority it had to make this order – no authority was provided.

201The Supreme Court in Michel v. Graydon, 2020 SCC 24, refers to child support as the “right of the child”, and a “financial entitlement due to children by their parents” (see paras. 38, 41, 54-56, 60 and 77). It may be found to be a debt (see para. 79 of Michel). Sections 29, 33, and 37 of Family Law Act gives the court latitude to determine to whom this debt is owed, whether the debt may be set off against equalization, and whether there are costs and interest owing (see Woo v. Chin, 2007 ONSC 50880 and Colt v. Colt, 2009 ONSC 6999). In this case, the Mother went without the proper amount of child support since the birth of the child. It is clear that her financial circumstances are dire. She is unable, at times, to feed herself; she has put all of her meagre funds towards raising the child. This is not a case therefore when there should be a set-off of the costs against the child support as this may harm the child.

202I decline to order a payment plan. The Father suggests I make an order that he pay $200.00 per month towards the arrears to coincide with the timing of the payment of the Mother’s costs. The Father has resources. He lives at his mother’s home rent free and has done so since before the child’s birth. The paternal grandmother’s evidence was clear, she will do what she can to assist her son. I have reviewed the financial statement of the Father. It is unclear why he has no savings. The Mother can move to enforcement.

Cost of Name Change Application

203The parents were able to resolve the change of name issue such that the child’s name shall be changed from Emma-Lee Rose Gallant to Emma-Lee Rose Hepburn Gallant. The only issue is who should pay the cost to register the name change.

204Neither party led evidence as to the cost of the name change. When this court asked the question in closing submissions, the Father’s lawyer was unsure but believed the cost to be $70.00. It is undisputed that the Mother asked the Father to be present at the birth of the child and that he chose not to. The Father states this is “his biggest regret.” The Father did not see the child until she was two or three weeks old. The Mother brought the child to him. Although the Father states that he advised the Mother in advance of the birth that he wanted his surname incorporated into the child’s name, he did not take any real steps in that regard. The Custody Agreement that he so heavily relied upon at the interim motion indicated the child’s name would not be changed without the consent of the other party or a court order. The Mother has now consented. The Father chose not to be present for the birth, he is the one that requested the name change, and he has the higher income. Accordingly, he will be responsible for the cost of the Change of Name Application.

Orders on Consent:

1. The name of the child Emma-Lee Rose Gallant, born December 2, 2018 shall be changed to Emma-Lee Rose Hepburn Gallant (“the child”).

2. The parties shall communicate about the child using Our Family Wizard (“OFW”). The parties shall ensure that within 14 days, he/she has registered and downloaded the app, and shall commence using the app for all communications relating to the child. The parties shall make best efforts to respond to each other within 24 hours. The only exception to communicating only via the OFW app is in the event of an emergency. In the event of an emergency involving the child, the party in whose care the child is shall forthwith and by whatever means available communicate the emergency to the other party.

3. The parties shall have the right to request and receive information from all third-party service providers involved with the child.

4. Neither party shall disparage the other or the other’s family members in the presence or earshot of the child nor shall either party allow any other person to do so.

5. Both parties shall keep each other informed of their current contact information, including residential address, phone numbers and email addresses.

6. Both parties shall be able to attend the child’s school and extracurricular events where family members are welcomed. At all times, at such events, the parties will behave in a respectful manner to each other and each other’s guests. There shall be no conflict in the presence of the child. The parties will arrange to attend their own parent-teacher interviews or other meetings with service providers separately if either party elects or arranges to do so.

7. The Mother shall possess and keep safe the important documents of the child including but not limited to her birth certificate, health card, SIN card, vaccination records, passport, etc. The Mother shall provide the Father, with a copy of the child’s important documents.

8. Either party may travel with the child, outside of Canada with the written consent of the other party which consent shall not be unreasonably withheld. A party intending on travelling with the child shall provide to the non-travelling party a full and complete itinerary of their travel plans, including dates of departure and return, flight carriers if applicable, destinations, and contact information for where the parent and the child can be reached for the duration of the trip. The travelling party is responsible for obtaining and paying for any travel consents necessary to facilitate travel. The non-travelling party shall cooperate by signing and returning the consents promptly. The Father shall be given the child’s passport for travel purposes and it shall be returned promptly to the Mother following travel.

9. Both parties shall cooperate and sign all necessary documents to allow the Mother to apply for, obtain, and renew a passport for the child.

10. The Father shall pay to the Mother the sum of $10,000.00 in arrears of child support as at November 30, 2021.

11. Commencing March 1, 2022 and on the first of each and every month thereafter, the Father shall pay child support to the Mother for the child in the amount of $700.00 per month based on his estimated income in 2022 of $75,000.00.

12. The parties shall proportionately share the section 7 special and extraordinary expenses, of the child with the Father paying 70% and the Mother paying 30%. Necessary and recommended (per the child’s professional service providers) out-of-pocket medical and dental expenses are pre-approved section 7 expenses as are all out-of-pocket child-care expenses for the purposes of employment. The child’s post-secondary expenses shall be proportionately shared after considering the ability of the child to contribute a reasonable amount towards her own education and shall be determined by the parties if and when the child is contemplating attending a post-secondary educational institution. All other out-of-pocket section 7 expenses shall require the written consent of both parties before proportionate reimbursement is enforceable. Consent shall not be unreasonably withheld.

13. The Father, shall maintain the child on the benefits (extended medical, dental and health) he has available to him through his employment for so long as the child is a dependent. The Father shall provide the Mother with the particulars of the coverage available for the child on an ongoing basis. The Father shall provide the Mother with the policy details and a benefits card, if available, such that the Mother can engage in direct billing practices with participating third-party service providers. Claims shall be submitted promptly, and reimbursements distributed forthwith upon receipt to the appropriate person(s) entitled to same.

14. The Mother, shall maintain the child on the benefits (extended medical, dental, and health) she has available to her through her employment (now and in the future) for so long as the child is a dependent. The Mother shall provide the Father with the particulars of the coverage available for the child on an ongoing basis.

15. The parties shall cooperate to maximize the benefits coverage available to the child via their respective benefits plans.

16. The Father and the Mother shall provide to each other full and complete copies of their Income Tax Returns with all schedules and attachments by June 1 of each year commencing June 1, 2022, and shall provide to each other full and complete copies of any and all Notices of Assessment and Notices of Reassessment received from the Canada Revenue Agency forthwith upon receipt. The parties shall email this disclosure and shall keep proof of his/her compliance with this term.

As I have permitted the child to relocate to British Columbia the following are also on consent:

17. The child shall attend school in the catchment associated with the Mother’s residence.

18. The Father shall have parenting time with the child as follows:

Up to the child commencing school in September 2023:

19. Two consecutive weeks in the Spring of 2022 and 2023, to be selected by the Father by February 15th in each of those years (in the year 2022 he shall make this selection by March 30, 2022);

20. Either one four-week period in each of the Summers of 2022 and 2023, or two three-week periods in the Summers of 2022 and 2023, to be selected by the Father by April 1st of each of those years;

21. Three parenting time video sessions for a minimum of 30 minutes three times per week.

22. For the first 10 days of the Christmas holidays (which holidays shall be defined by the school calendar even though the child is not yet in school).

When school starts:

23. For the first 10 days of the Christmas school holidays in all even numbered years;

24. For the last 10 days of the Christmas school holidays in all odd numbered years;

25. For six consecutive weeks during every school summer holiday with weeks to be selected by March 1 of each year;

26. For the Spring school break (i.e. “March Break”);

27. Reasonable and generous times on reasonable notice if the Father is in British Columbia;

28. Such further and other times as the parties may agree upon in writing.

29. At all other times the child shall be in the care of the Mother, Keisha Eileen Trimper.

30. Three parenting time video sessions per week for a minimum of 30 minutes three times per week.

Orders not on consent:

31. The child shall be permitted to relocate to Chilliwack, British Columbia.

32. The primary residence of the child shall be the residence of the Mother.

33. The Mother shall have decision-making authority in regard to major decisions affecting the child.

34. The travel expenses, which are limited to the reasonable costs of economy class (or similar category) airline tickets (in the event of flying) or the costs of gas (in the event of driving), relating to the Father’s exercise of parenting time (“travel expense”) shall be dealt with and apportioned as follows: the Father shall pay the upfront costs of the travel expense. The Father shall provide the Mother with documentary proof the travel expense was incurred and paid for. The Mother shall pay to the Father 30% of the cost of the travel expense. Payment shall be made within 30 days of the Mother receiving documentary proof the travel expense was incurred and paid for. If the Father owes the Mother arrears of support under paragraph 10 of this order, the Mother’s 30% owing shall be paid within 30 days of the arrears of support being paid in full.

35. The child shall have FaceTime or other video contact with the paternal grandmother at least once per month at the request of the paternal grandmother with the dates and times to be agreed upon between the Mother and paternal grandmother.

36. The Father shall pay for the cost of the name change.

37. I strongly encourage the parties to resolve the cost issue. If the parties are unable to resolve costs, the Mother may file written submissions on costs within 21 days. The Father may file responding written submissions within 14 days thereafter. The Mother may provide brief reply 7 days thereafter. Submissions are not to exceed four pages, plus a detailed bill of costs and copies of any offers to settle. There shall be no extension of these timelines. If a party does not submit submissions respecting costs in accordance with these deadlines, there shall be no costs payable to that party, although costs may still be awarded against that party. Cost submissions shall be sent to carolina.sanchez@ontario.ca and to Kitchener.SCJJA@ontario.ca