D.G. v. A.M., 2022 ONSC 2478

COURT FILE NO.: FS-18-003859-001

DATE: 20220422

ONTARIO SUPERIOR COURT OF JUSTICE

RE: D.G., Applicant

AND:

A.M., Respondent

BEFORE: Justice Mohan D. Sharma

COUNSEL: Shawn Richard, Limited Scope Retainer for the Applicant

Ernst Ashurov, for the Defendant

HEARD: February 22, 23, 24, 25, 28, and March 1, 2, 3, 4, 7, 8, 9, 11, 2022

JUDGMENT

[1] The applicant mother and respondent father have two children. They separated in 2016 and entered into a separation agreement in February 2019. On a consent basis, their separation agreement formed the basis of a final order from Paisley J., dated June 6, 2019. Among other things, the order gives the parties joint decision-making responsibility, equal parenting time on a week-on-week-off basis and prohibits the children’s place of residence being outside the Greater Toronto Area (“GTA”).

[2] On September 30, 2020, the applicant filed a Motion to Change. An amended Change Information Form (Form 15A) was filed on March 1, 2021.

[3] In her motion, the applicant seeks an order to change the children’s residence from the GTA to Niagara-on-the-Lake, Ontario (“Niagara”). She also seeks sole decision-making responsibility of the children, and to change the parenting schedule such that the respondent’s parenting time with the children would be exercised only on alternating weekends, and on alternating Thursdays to Fridays.

[4] The respondent seeks an order dismissing the applicant’s motion to change. In addition, if the applicant’s motion is denied and the applicant moves to (or remains in) Niagara, the respondent seeks primary residence of the children, child support, and a parenting schedule with the children spending the bulk of their time with the respondent.

A. Preliminary Issues

i. Initialization Order

[5] The applicant brought a motion at the start of trial to initialize the style of cause, the names of the parties and their children. She argues that there are serious allegations, sensitive Children’s Aid Society (“CAS”) records, as well as personal information about the children. If the children came to learn of these allegations, it would be inappropriate and would negatively impact the children’s right to privacy. The respondent takes no position on this motion.

[6] I advised the parties that I would determine this motion at the conclusion of the trial, after I have heard the nature of the evidence, considered its sensitivity and the potential impact on the children if an initialization order were not made.

[7] The open court principle demands that court hearings be open to the public. However, the Court has discretion to limit access to information where such an order is necessary to prevent a serious risk to the administration of justice because reasonable alternative measures will not prevent the risk, and where the salutary effects of an initialization order outweigh the deleterious effects on the rights and interests of the parties and the public: see Vancouver Sun (Re), 2004 SCC 43, [2004] 2 S.C.R. 332, at para. 29. Individual sensitivities are not enough to limit the openness principle: see E.(E.) v. F.(F.) and G.(G.), 2007 ONCJ 456, at para. 7. However, safeguards are appropriate when the privacy interests of children are at stake: see Ontario (Children’s Lawyer) v. Ontario (Information and Privacy Commissioner), 2018 ONCA 559, 141 O.R. (3d) 481, at paras. 73-75.

[8] This is an appropriate case to make an initialization order. The evidence in this trial includes personal information that the children communicated to a mental health professional in a therapeutic context which is found in a Voice of the Child Report (VOC Report). There are notes of discussions with the children recorded by CAS workers. This dispute is between their parents, yet the children (aged 11 and 9) were required to disclose their personal views for the purpose of the VOC Report and to CAS workers. The children gave their consent for their views to be recorded within the VOC Report, but I am not aware of them knowing or consenting to the public dissemination of any information they provided, nor am I satisfied of their capacity to give consent in an informed manner given their age.

[9] There are allegations of physical and emotional abuse towards the children, and family violence between the parties. There was evidence of emotional suffering by one child, which may have been caused or contributed to by the conduct of the parties. If the identity of the children came to be known, I have serious concerns that their privacy and dignity interests would be violated, and that their emotional turmoil may be compounded with serious consequences to their well-being. I have weighed the importance of safeguarding the children’s interests with the deleterious effects of an initialization order. The applicant is not seeking a publication ban or a sealing order. As compared to those orders, an initialization order does not unduly interfere with the public’s right to know of this case, the evidence, or the decision rendered.

[10] For these reasons, I grant an order initializing the names of the parties, their children, and any family members who have given evidence in this case to protect the identity, interests and well-being of the children.

ii. Respondent’s Motion and s. 16.92(2) of the Divorce Act

[11] At the start of the trial, I raised an issue with respect to the respondent’s motion. To consider it, I would need to make a finding of where the applicant would be living if I refuse to authorize her relocation with the children to Niagara. However, s. 16.92(2) of the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.), states:

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

I asked for submissions on whether I could entertain the respondent’s motion, given this statutory prohibition.

[12] The parties agreed that the statutory prohibition only limits the Court’s ability to assess a person’s intention around where they will live when “deciding to authorize a relocation”. They agreed that I can receive evidence of the applicant’s intention to relocate if her relief is not granted, but that I must disabuse myself of that evidence when determining whether to authorize the relocation. If I decline the applicant’s relief, I could then consider the applicant’s intention in the context of the respondent’s motion to grant him sole decision-making, child support, and the majority of parenting time.

[13] In my view, the approach agreed upon by the parties is a sensible one. It will allow the Court to deal with this case justly, consistent with r. 2 of the Family Law Rules, O. Reg. 114/99. The rationale for s. 16.92(2) of the Divorce Act is to avoid the difficult position moving parties find themselves in on relocation motions. If a parent says they will relocate without a child, it may suggest the parent is not devoted to the child. If a parent says they will not relocate without the child, it suggests the relocation is not sufficiently important. However, if I do not receive evidence on the applicant’s intention to move, I am unable to determine the respondent’s motion. This would necessitate a further hearing on his motion after the applicant decides to move (or not), with much of the same evidence being relied upon during this trial. This would waste the parties’ resources and would lead to prolonged uncertainty for this family, none of which is in the children’s best interests.

[14] For these reasons, I have decided to receive evidence of the applicant’s intention to move to Niagara, not for the purpose of determining whether the relocation should be authorized, but for the purpose of determining the respondent’s motion.

B. Factual Background

[15] The applicant, DG, and the respondent, AM, started living together on January 14, 2010. They were married on January 24, 2010. They resided in Toronto throughout their marriage. The parties separated on November 1, 2016.

[16] The parties had their first son, VG, in May of 2010. He is now 11. They had their second son, VM, in March 2013. At the time of trial, he was 8, but has now turned 9.

[17] The children’s school and extra-curricular activities have only been in Toronto. Their school goes to grade six. Neither party currently lives in the catchment area of the school, but the school has permitted the children to continue their attendance there. VG will need to attend a new middle school in September of 2022 when he enters grade 7.

[18] Since the parties’ separation in November of 2016, the children have been living 50% of the time with each party, on a week-on-week-off basis, with the children staying with the other household on Thursdays overnight. However, the applicant disputes that the respondent has been exercising 50% of his parenting time since separation. She argues that the respondent has passed-off significant portions of his parenting time to the applicant, the children’s paternal grandparents or to his girlfriend.

Parties’ Employment

[19] The respondent is an IT consultant and is self-employed. His evidence was that he generally works from 9 am to 5 pm, but his work demands and project deadlines may require different hours or occasional work on weekends. The parties had agreed in their separation agreement to impute an annual income of $150,000 to the respondent for child support calculation purposes.

[20] The applicant was not working when the children were first born. The family had financial difficulties. In 2015, the applicant applied and began working as a Canada Border Services Officer. This required her to attend training in Rigaud, Quebec from February to June of 2015. She was then stationed in Sarnia from June to December of 2015 but would return to Toronto regularly to spend time with the children.

[21] In 2016, she transferred to Pearson International Airport (“Pearson”). She would work long shifts at Pearson, sometimes late into the evening or early in the morning. In November 2016, she applied for a fixed schedule of work from 8 am to 4 pm, Monday to Friday, citing as a reason her separation from the respondent and a need to meet her family responsibilities. This request was accommodated. In February 2018, she applied for a transfer to allow her to work from Billy Bishop Airport (“Billy Bishop”) in Toronto, citing difficulties meeting her parental responsibilities while working out of Pearson. This request was also accommodated. The COVID-19 pandemic significantly impacted operations out of Billy Bishop and her ability to work from there.

[22] The applicant is currently on leave from work. She applied for a transfer to be stationed at Queenston Bridge, Niagara, Ontario. When she is not on leave, she earns an annual income of $82,000 no matter where she is stationed, but she may earn more if she works overtime. Pursuant to their separation agreement, the set-off is used to determine child support.

The grandparents

[23] The respondent’s mother, NG, and his step-father, WT, are the children’s paternal grandparents (the “grandparents”). The grandparents have spent considerable and regular time with the children since birth which continues. They are actively involved in the children’s education, extra-curricular activities and general upbringing. The grandparents reside in Toronto, within the catchment of the children’s school. As of 2021, both grandparents are retired. WT was a schoolteacher. NG had positions in sales and as a dance teacher. The children enjoy a close, loving relationship with their grandparents.

[24] The evidence at trial was that the grandparents would pick up the children after school most days and spend time tutoring them or take them to extra-curricular activities and would return them to one of the parties at 5:30 or 6:00 pm most nights, or sometimes later if the children attended extra-curricular activities (e.g., swimming). On weekends and in the summer months, the grandparents would also spend time with the children on excursions to Canada’s Wonderland, the Royal Ontario Museum, the Aquarium, the Science Centre, SkyZone, the CNE, theatre events, and sleepovers at the grandparents’ home. This was often initiated by the grandparents or sometimes at the request of the parties.

[25] After the parties’ separation in 2016, the pattern of regular involvement by the grandparents continued during the applicant’s and respondent’s parenting time. The evidence was that WT, even after separation, would often attend to childcare duties on the applicant’s parenting time at her home early in the morning (e.g., 6:00 am), to allow the applicant to arrive at work on time. WT would wake the children, feed them, get them ready for school, and drop them off at daycare before he arrived at his own job. However, in September of 2019, following an argument between the applicant and NG, the applicant no longer permitted the grandparents to spend time with children during the applicant’s parenting time. Now, the grandparents only engage in activities with the children during the respondent’s parenting time.

Procedural History and Order of Justice Paisley

[26] On July 18, 2018, the applicant commenced an application for a divorce, child support, parenting time, equalization and spousal support. In her application, the applicant sought to share parenting time with the children on a 50-50 week-on-week-off basis, with Thursday nights alternating between households. The applicant’s supporting affidavit, sworn July 13, 2018, indicated that she was not aware of violence or abuse that the court should consider.

[27] On February 7, 2019, the parties entered a separation agreement, settling all issues in dispute. The applicant was represented by her lawyer, Mr. Shawn Richard, when the agreement was signed, who also served as her counsel throughout trial.

[28] The separation agreement acknowledges that the applicant had independent legal advice and that she was “entering into this agreement without any undue influence, fraud or coercion whatsoever” and that she was signing the agreement voluntarily. The agreement also acknowledged that the respondent had been told to obtain independent legal advice, but that he had declined it.

[29] The separation agreement had an unusual and notable supplementary agreement. This agreement states that both parties have obtained information that could be harmful to the other’s life, both financially and socially. It was defined as “harmful information”, but without further particulars. They agreed that if it was disclosed, it “might be highly damaging and might seriously injure or prejudice [the applicant].” As such, the respondent undertook to maintain all harmful information in the strictest of confidence. If the respondent disclosed harmful information, the applicant would be entitled to damages, and the applicant would be entitled to high end spousal support under the Spousal Support Advisory Guidelines on an imputed income of $150,000.

[30] The applicant brought a motion, on consent for a final order, resulting in Paisley J.’s order of June 6, 2019. The order largely reflects the terms of the separation agreement, but not the supplementary agreement. The terms of the order relevant to this motion are:

Para 1. The applicant and respondent shall have shared custody of VG and VM.

Para 2. “The children shall reside 50% of the time with each party based on the schedule to be agreed upon between the parties from time to time. The parties intend to implement the 50-50 parenting through a week-on-week-off schedule; however, they shall maintain flexibility. The parties shall exchange the children on Mondays with one parent dropping off the children to school at the beginning of the school day and the other picking them up from school at the end of the school day.”

Paras 3 and 4. On Thursday evenings, overnight from after school until the start of school on Fridays, the children shall reside with the other parent and not with the parent whose parenting week it is.

Para 5. “It is in Children’s best interests to spend time with the other party rather than with a third party, other than the Respondent’s parents and the Applicant’s sister, [MG]. Accordingly, if a party with whom the Children are scheduled to be according to the schedule above at paragraphs 2 to 4 cannot care for the Children for more than 4 hours, that party shall notify the other party and give the other party the opportunity to care for the Children. If the other party cannot care for the Children, the party with whom the Children are scheduled to be according to the schedule above at paragraphs 2 to 4 shall be solely and financially responsibility for making alternate childcare arrangements.”

Para 6. “Neither party shall change the Children’s place of residence to a location outside the boundaries of the Greater Toronto Area without prior written consent of the other or a court order.”

Para 7. “Neither party shall change the Children’s school without the other’s prior written consent or a court order.”

Para 11. “The Applicant and the Respondent shall make all important decisions about the Children’s welfare together, including but not limited to decisions about their:

a. Education;

b. Major non-emergency health care;

c. Sports training, travel and participation in competitions;

d. Major recreational activities; and

e. Religious upbringing and activities.”

Paras 21-24. The respondent shall pay child support pursuant to the Child Support Guidelines, based on a set-off. The respondent’s income for the purposes of child support was imputed at $150,000. The applicant’s annual income for purposes of child support was $60,000. Applying the set-out, the respondent shall pay child support of $1,162 per month to the applicant commencing December 1, 2018.

Para 28. “The Respondent shall pay child support directly to the Applicant and not to the Family Responsibility Office. Neither party shall file this Order with the Family Responsibility Office for enforcement unless the Respondent defaults in payment and does not rectify the default within ten (10) business days of the Applicant providing written notice of the default.”

[31] In September 2020, the applicant commenced this motion to change.

[32] On November 20, 2020, the parties appeared before Akbarali J. at a case conference. Orders were made to finalize the transfer of a pension from the respondent to the applicant, to cooperate for the release of unredacted CAS records involving the children, and financial disclosure. They also agreed upon a process to obtain a VOC Report. An order for questioning was granted.

[33] Mr. Jared Norton completed a VOC Report on January 18, 2021. I discuss its contents in my analysis.

[34] The applicant brought a motion for an updated VOC Report. Kimmel J. heard that motion and denied the applicant’s relief on November 4, 2021. Kimmel J. also heard a motion by the respondent, seeking an order to compel the applicant to return to the GTA, which relief was denied.

[35] In denying an updated VOC Report, and as part of her reasons, Kimmel J. was concerned that the children will have been influenced by the applicant’s unilateral actions to move the children to Niagara for a period of ten months. As a further reason, she found that the respondent’s concerns about the applicant influencing the children was not unfounded, because VM already indicated to Mr. Norton that he was under the impression he would be moving to Niagara. Kimmel J. was concerned that ordering an updated VOC Report runs the risk of encouraging further manipulation of the children, citing B.J.S. v. X.Q.Z., 2019 ONSC 781.

Applicant Re-Married & Residence

[36] In 2017, the applicant started dating FC. She is now married to FC. FC works as an executive for a company in the USA. He has held executive positions with different companies in the United States, now in Texas and before that, in Arizona. He is a Canadian citizen but has a green card to work in the United States. Because of the COVID-19 pandemic and his current position, he has been able to work remotely from Canada. FC would like to become a citizen of the USA. To achieve this, it was his evidence that he must spend a certain number of nights in the USA.

[37] FC has two children from a prior marriage, E (aged 7) and D (aged 4). Those children reside primarily in Pickering, Ontario with his former spouse. However, FC has regular parenting time with those children four days every two weeks. Even though he lived in the USA, he would still exercise his regular parenting time with his children.

[38] FC’s 2020 income was roughly $650,000 USD, or approximately $820,000 CDN, comprised of a base salary and bonuses. His base salary is $330,000 USD or approximately $420,000 CDN. He pays $10,000 in spousal support and $10,060 in child support each month.

[39] In Toronto, the applicant and FC lived together in his 3-bedroom apartment on Walmer Road in Toronto (“Walmer apartment”). Their respective children would also stay at the Walmer apartment with them, when they were in their care.

[40] FC purchased a home in Niagara in July 2020 that closed in November 2020. It is on 2-acres of land. FC and the applicant admitted at trial that they did not consult or seek the respondent’s agreement before doing so.

[41] There is a dispute as to whether the children were living in Niagara while they were in the applicant’s care for certain periods since November 2020. At trial, the applicant testified that they had been using the Niagara home as a cottage, but from September 2021 to November 2021, she admitted that she had no home in the GTA and was in breach of the order of Paisley J. On February 27, 2021, the applicant advised the respondent that she had a place in Oshawa, Ontario. She testified that it was leased from March 2021 to June 2021. She said, however, when the children were attending school online, she was in Niagara. She further testified that since November 2021 to the present, she rents one bedroom within a two-bedroom unit in Etobicoke that belongs to FC’s cousin. She states that this is now where she exercises her parenting time during the week with the children.

[42] On cross-examination, the applicant was taken to a transcript from her questioning on January 21, 2021, where she indicated she was mostly in Niagara, but she responded that it was being used as a cottage. She was also taken to her affidavit, sworn on November 1, 2021, in support of her motion before Kimmel J. where she stated: “For the past 10 months the children have spent the bulk of their time with me in St. David’s, Niagara-on-the-Lake.”

[43] I am satisfied that the applicant made a unilateral decision, without consultation or agreement with the respondent, to relocate with the children to Niagara. At minimum, she relocated to Niagara without a home in the GTA from September 2021 to November 2021. I am also satisfied that for the first 10 months of 2021, the children were predominantly with her in Niagara and not the GTA.

Respondent Re-partnered & Residence

[44] In 2018, the respondent started dating NS. The respondent and NS began living together in 2019. NS was friends with the applicant, although they are no longer friends. NS has a son, M, who is the same age as VG. M and VG have spent much time together since they were very young and remain good friends. NS gave evidence, as did others, that M also has a close relationship with the parties’ younger son, VM.

[45] The respondent, NS and M live in a 2-bedroom townhouse. When the children are in the respondent’s care, VG, VM, and M all share a room together and sleep in a bunk bed. The respondent and NS both gave evidence that they plan to move to a larger space in Toronto in the near future.

CAS Involvement and Records

[46] The Children’s Aid Society of Toronto (“CAST”) and Family and Children’s Services Niagara (“FACS”) have been involved with this family. Workers from CAST and FACS provided evidence.

[47] I admitted the complete records of CAST and FACS as exhibits. I thought it best that the court have a complete record of the CAS records, and I would assess what weight to give to aspects of those records. In my review of these records, certain aspects constitute business records under s. 35 of the Evidence Act, R.S.O. 1990, c. E.23. CAS workers, in the course of their prescribed duties, made contemporaneous records of facts arising from their own observations or contacts with family members. However, and notwithstanding this statutory hearsay exception, I advised the parties that I would not ascribe truth to the complete content of those records.

[48] The CAS records, in addition to recording facts as observed, often record what others reported to CAS as having been observed. Such evidence, without being tested through examination and cross-examination, without corroborating evidence, lacks reliability. They also contain expressions of opinion from CAS workers, other professionals and third parties, which I have not accepted as reliable opinion evidence.

[49] Some CAS workers gave evidence and were cross-examined on their records, mostly to confirm the accuracy of what was contained in the CAS records. Some of the individuals who called CAS were witnesses in this case. They were cross-examined on what they observed and what they told CAS workers. This gave the court an independent basis to assess the reliability of what was witnessed and recorded in the CAS records.

[50] In my assessment of CAS records, I have considered the nature of the evidence and indicia of reliability, the purpose for which the CAS record is being tendered, its importance in relation to the best interests of the children, the unreliability of second- and third-hand hearsay and expressions of opinions, whether there was cross-examination on the CAS record, and the impact of refusing to admit the evidence in relation to the issues in this trial: see Catholic Children’s Aid Society of Toronto v. L.(J.), [2003] O.J. No. 1722 (C.J.) at para. 40. After considering these factors, I have given greater weight to certain aspects of the CAS records, and no weight to others.

[51] The CAS documents were in excess of 400 pages. I summarize the relevant entries and interactions, along with any corroborating or contradictory witness testimony.

a. CAST Files

[52] CAST received seven intakes involving the children and concluded four investigations. All CAST files are closed. No supervisory or protection orders were sought by the CAST.

Report of Guns & Adult Movie

[53] In February 2019, the principal of the children’s school called CAST to report that VM (who was 5 at the time) told friends about a movie he watched where a man was dressed as a woman and there was a woman who got undressed, sat on the man and peed on him. The principal also reported to CAST that the child “was talking about all the guns that his parents have at home and appeared very obsessed with guns.” The principal spoke with the applicant who advised him that since she was a border patrol officer, there was talk of guns at home due to the training she received. CAST closed the file after speaking with parties and discussing proper supervision.

[54] There was direct evidence from the applicant and respondent around this issue. The applicant testified that she lied to the principal about her having exposed the children to talk of guns. She testified that the children had told her that the applicant had shown a gun to the children. It was a gun that she had bought for the respondent in 2012 and which was registered in her name. She testified that she lied to the principal because she did not want to get the children in trouble at school and she wanted “to cover up.” She admitted as a border services officer, she does keep weapons at home. She said that she never exposed the children to inappropriate movies and only watches children’s shows.

[55] The respondent denied having a gun and confirmed it belonged to the applicant. In terms of the movie, the respondent said he did not expose the children to such a movie, and that they may have seen preview clips of movies while they were in a hotel in Blue Mountain on a ski trip. He admitted that he did allow the children to watch Deadpool, an R-rated movie, but only after he watched a trailer which suggested to him there would be no inappropriate content.

[56] I do not place much weight on this complaint in assessing the parties’ ability to parent. The complaint was hearsay and no direct evidence of this event was received, other than from the parents’ testimony. The only evidence of the respondent exposing the children to a gun was the applicant’s evidence of what the children had told her. If the children were exposed to a gun, it would appear more probable that it was the gun registered to the applicant who possesses weapons for the purpose of her profession. I have no basis to find that her possession of weapons for her job creates a risk for the children. With respect to the movie, I found the respondent’s explanation of any inadvertent disclosure to inappropriate movies to be credible.

Hit on the Head by Respondent

[57] On May 14, 2019, a staff person at the children’s daycare called CAST. The CAST record states the staff person stated she was conflicted about making the call, but that the children’s “mother is insisting that she calls CAS.” The record states:

The caller stated that on May 1st she saw [VM] walking with his mother to go to school…She said hello to [VM] and he responded “my dad hit me” and he appeared sad. The caller asked where and he said “on the head” and he pointed to his right side of his head. [VM] said his dad asked him not trade (sic) his pokemon cards with his brother and he did. [VM] said his father was swearing at him in their language (the family speak Russian).

The caller asked [VM] if the father hit him before and he said “yes”. He said once he was skipping in the garage and dad hit him. He said he did not feel good around his dad because he slaps and hurts him. He doesn’t like being at his father’s house. He said when dad loses his patient (sic) he’ll take his toy and throws it away.

The caller said she also spoke with [VG]. [VG] said his father “throws us” in the corner and slaps us or both. [VG] said one time he ran into the parking lot and the father smacked him in the head.

[58] CAST conducted interviews with VM, and his parents. The record states VM reported to a CAST worker that:

[H]e often speed walks in the garage area, in public parking areas and his father hit him on the head. He was mad at him for not listening to him not to run in the garage…His father does not usually hit him but did because there was a car that was coming out of the parking lot. His father said something in Russian to him but he did not understand. Another time his father hit him twice on the head. He has told his mother that his father did this before…Father hit him again another time he recalls.

[59] The CAST worker interviewed the applicant. The CAST record of that interview states:

She stated she would prefer that [the respondent] not be made aware that she knows about the hitting and the disclosure that [VM] made in school and to daycare.

[60] The CAST worker interviewed the respondent. The CAST record of that interview states:

We discussed the disclosure and he stated that he does not hit the boys but he does redirect them especially because they run in the parking lot at times when they are walking. He stated that he would never hit his sons. I expressed concerns especially around hitting on the head and that physical redirection is fine as long as the children do not experience any pain from it. He agreed and thanked me.

[61] CAST closed this investigation, concluded that the complaint of physical harm was not verified as this was an isolated incident and caused a moment of pain.

[62] At trial, the respondent spoke about this allegation of hitting the children and another similar incident at Canada’s Wonderland (discussed below). He denied hitting his children. He said, however, that he has used a motion to get the children’s attention, particularly when he needs to do so quickly when there is a dangerous situation, such as moving vehicles in a parking lot. He demonstrated that with his palm faced down and his arm extended, he turns his wrist upwards quickly with his fingers brushing the hair on the back of their head. He said that he does not do it forcefully, and that it only brushes the children’s hair. He explained that he does not swing his arm or use any force.

[63] I found the respondent’s evidence on this issue not entirely credible. While I found him nervous at times when giving evidence, I found him particularly nervous on this issue. He offered extensive explanation and his demeanour changed and became defensive.

[64] I am satisfied that the respondent never used excessive force the times that he has used this motion on the children, although I find that he likely used some minor force – intentional or not – to obtain the children’s attention, for minor discipline, or when the respondent was suddenly frustrated with the children’s behaviour. I accept that he did not swing his arm when engaging this motion. As I explain, this issue was reported a few other times to CAS workers, although the reports confirm it has not happened any further. I do not excuse physical harm to children, but I am not satisfied that the nature of the harm or its frequency is a major parenting concern in this case.

Suicidal Ideation & Emotional Harm

[65] On December 3, 2019, a further complaint was made to CAST by a psychiatrist, Dr. Yaroshevsky. He was the applicant’s psychiatrist and he had seen the children on a handful of occasions over the past few years. Dr. Yaroshevsky reported that the children’s pediatrician had referred VG to him because of some suicidal ideation. The CAST record states VG had reported feeling suicidal at times, however, he did not have a plan to commit suicide and does not actually want to die; he just thinks about it sometimes. This call resulted in an investigation.

[66] The evidence at trial established that the applicant did not obtain the respondent’s consent to have the children seen by Dr. Yaroshevsky, even though they had joint decision-making. Dr. Yaroshevsky was not a witness.

[67] Following an investigation by Roxanne Mathalon at CAST, who gave evidence at trial, CAST closed their file. Ms. Mathalon’s investigation concluded that there was no concern of physical harm to VG after VG reported that he could not remember the last time the respondent hit him.

[68] However, her investigation concluded that there was a concern about emotional harm because the children had told her that they are not allowed to cry in front of their father. VG also reported to Ms. Mathalon that the respondent said to VG that “if he keeps telling people information about him, dad will go to jail.” VG also expressed a concern about the respondent yelling at him, and that the respondent and his girlfriend often yelled at each other.

[69] Ms. Mathalon spoke with the respondent about these concerns. According to her notes and her testimony, the respondent stated “he grew up in Russia, and in his culture, crying is a sign of weakness for men.” The respondent further advised Ms. Mathalon “that if the children want to cry, they can go in their room until they stop.” Ms. Mathalon expressed concern to the respondent if the children don’t feel safe expressing when something is wrong to him. The respondent said to Ms. Mathalon that “he has an open door policy, he notices when something is wrong with his children, and talks to them about it, but he wants his kids to be strong, he is raising ‘men’, and he believes that it is a sign of weakness for men to show emotion.”

[70] He acknowledged to Ms. Mathalon being aware of yelling at the children if they forgot something and that he was going to develop strategies to help VG remember things, and the respondent would work at not being so hard on VG when he forgets something.

[71] He admitted to Ms. Mathalon about speaking with the children about the applicant trying to take the children away from him, and that he told the children the applicant was taking them to a psychiatrist to get them to speak against him. Ms. Mathalon explained why it was inappropriate to speak of the conflict between himself and the applicant.

[72] Ms. Mathalon recommended to the respondent that he participate in a program, Caring Dads, due to her concerns around emotional harm, which suggestion the respondent rejected. CAST closed the file because the respondent was unwilling to continue to work with CAST or attend the Caring Dads Program.

[73] At trial, the respondent gave evidence on these issues. On cross-examination, he denied telling the children that if they keep telling people information about him, he would go to jail. However, the note recorded by Ms. Mathalon suggests that the respondent admitted to her having some discussion with the children about the applicant’s efforts to get from the children information to use against him. Based on the totality of the evidence, and the fact that Ms. Mathalon would have no motivation to distort her record of her conversation with the respondent, I find that the respondent did discuss with the children that the applicant was trying to get the children to speak with others so that she could use it against him.

[74] At trial, the respondent explained that if the children were crying, he would speak with them to find out what was wrong and try to solve the problem. However, he said if they were “in hysterical cries”, he would tell them it is never going to help, that it would have no result, and he would send them to their room. He said he does not prohibit crying; he just teaches them not to have hysterical cries. On cross-examination, he repeated that hysterical crying is not appropriate, and that children may do it in public or at a store to obtain a gift or candy, and he teaches his children not to cry in public.

[75] I am satisfied that, at least to some extent, the respondent has communicated to the children that it is inappropriate for them to cry. I am also satisfied that he holds views about when and how boys should express their emotions, which may not be informed by the most current social and psychological research about a child’s emotional health and well-being. In this regard, I believe that the respondent and his children would benefit from the respondent attending a parenting program where insight into children’s emotional needs and well-being may be offered.

Plastic Sword Incident

[76] On May 25, 2020, the applicant called CAST because the children had reported to her that the respondent slapped one child on the head, and the other was hit on the buttocks. According to the CAST record, the applicant reported that the children were not injured but they were upset and did not understand why the respondent would hit them. She reported to CAST that there had been similar incidents in the past of physical discipline.

[77] CAST investigated and closed this file also. The children reported to CAST that they were playing on a weekend, the respondent was on a work call, he entered the room where they were playing, told the children to be quiet and he went back to work. The children became loud again, and the respondent took a toy plastic sword they were playing with and hit them both on the back and the neck, VM told the respondent to stop but he would not, and then the respondent put the children in time out in a corner for about 45 minutes. The children also repeated a concern about the respondent and his girlfriend yelling at each other in Russian.

[78] The CAST worker interviewed the respondent. According to the CAST record of the interview, the respondent acknowledged being angry with the children that weekend because the children had spat on a neighbour’s car, and he took away their technology and told them to apologize to the neighbour. The next day, while he was on a work call, the children were loud, he told them to be quiet, they became loud again, and he put them in a timeout. He said he did not hit them. The CAST worker discussed with the respondent why physical discipline is not recommended, and that the respondent acknowledged that he did not believe physical discipline is an effective form of discipline. CAST closed the file because they concluded that physical harm was not verified.

[79] At trial, the respondent said the children were playing with a plastic sword that weekend and banging it on a bed that made a sound through the floor. He told them twice not to. He said he went into the room, grabbed the sword and threw it to the side. He said he did not beat the kids with the sword, he just threw it to the side. He testified that he would never hit them with an object and that it was “absolutely ridiculous.”

[80] On a balance of probabilities, I find that if the respondent did strike the children with the plastic sword, it was done unintentionally and that it was not done with any force.

Report of VM being Hit; VG has panic attack

[81] On October 16, 2020, a staff person from the children’s school called CAST. According to the CAST record, the caller advised that VM got into an altercation with another student. When the staff person spoke with VM, VM said “my father hits me in my face,” and that when he misbehaves, the respondent said he has the right to hit him. VM further said to the staff person that he and his mother are going to move away soon, and then he won’t have to visit with his father as often.

[82] An investigation occurred, again by Ms. Mathalon. She met with the children on October 22, 2020. VM reported to Ms. Mathalon that the respondent had not hit him recently; he was referring to an incident in the past in May when CAST was involved. Ms. Mathalon recorded VM saying positive things about the respondent, namely the things he likes to do with his father, and that he knew his father loves him because he acts like it. Ms. Mathalon also interviewed VG and recorded in her notes that VG said the respondent had said negative things about the applicant and that he had called her a liar. VG also reported that the respondent was fighting less with NS, that “lately dad had been nicer, trying to be more calm.”

[83] On December 19, 2020, following these initial interviews, the children’s paternal grandfather, WT, called CAST to report a panic attack that VG had while with the applicant on December 17, 2020, resulting in the applicant calling paramedics. WT reported that he believed this panic attack was a product of VG not wanting to move to Niagara. Ms. Mathalon spoke with the applicant about this incident, and the applicant reported to her that VG got angry with the applicant because she was “taking [him] away from [his] dad and grandparents,” and that VG said he saw a document showing that the applicant was asking for the children to only see their father on weekends. VG got upset and started hyperventilating. He calmed down sufficiently by the time the paramedics arrived and he was seen by his family physician the next day.

[84] This investigation was also closed as no physical harm was verified. During her testimony, the applicant confirmed the events as they were reported in the CAST record.

[85] The evidence of the respondent and WT at trial was that VG had reported to them he had a panic attack because the applicant had been pressuring VG to agree to move to Niagara. According to the respondent, VG had reported to him that the applicant had told VG “he had no choice.”

[86] On a balance of probabilities, and from other evidence of FC discussed below, I am satisfied that the applicant exerted pressure on VG to agree to move to Niagara and that this was a contributing factor, if not the sole factor, leading to VG having a panic attack.

b. FACS Records

July 2021 Canada’s Wonderland incident

[87] On July 23, 2021, the applicant called the police after she said VM reported to her that the respondent hit VM on the back of his head while they were at Canada’s Wonderland. The police then contacted FACS. The police interviewed the children in the applicant’s presence. VM reported that he and VG were playing a game around a fence, and he accidentally tripped or pushed VG. The respondent then slapped VM on the back of the neck and told him to apologize to VG. The police reported there were no signs of injury. VG reported to the police that he did not see the respondent strike VM.

[88] Jennifer Williamson was the assigned FACS case worker, who also gave evidence at trial. She interviewed the respondent who said he did not strike VM. He stated to Ms. Williamson that VM fell on VG and VG cut his ankle. The respondent said that he gently grabbed VM by the back of the neck said “enough!” At trial, the respondent’s testimony was generally consistent. He said VG fell and VM fell on top of him. He picked up VM and turned him from his neck towards the respondent to calm him down and to speak to him. He denied hitting VM.

[89] The FACS note records that the respondent told the police that the applicant had made numerous claims to CAS against him to paint him in a bad light in relation to this trial.

[90] In the context of this investigation, FACS attended scheduled and unscheduled visits at the applicant’s home in Niagara.

[91] Ms. Williamson conducted an unscheduled visit on July 30, 2021. At this visit, the applicant reported to Ms. Williamson that when she was in a relationship with the respondent, he was emotionally abusive.

[92] On the same day, Ms. Williamson also spoke with the children separately and in private. VM is reported as saying he finds his father’s home “boring” as there are not a lot of things to do at home. VM reported that the physical discipline, like the incident at Canada’s Wonderland, happens once in a while (about 3 times per year), and disclosed no concerns about returning to his father’s home. VG reported that the incident at Canada’s Wonderland occurred because he and his brother were fooling around, that his father became upset and called VM “stupid”, and that VM appeared upset but was not crying. VG reported enjoying spending time at his father’s.

[93] At a scheduled visit on August 27, 2021, the note reflects that the applicant and VM were waiting in the driveway when another FACS worker, Ms. Ashley Mellen, arrived. The note states VG declined to speak with Ms. Mellen. It also states that VM was comfortable and playful when speaking with Ms. Mellen but became more serious when speaking about his father. It further states:

[VM] provided lots of positive feedback about his mother. He told me that she is nice, helpful, and that she takes very good care of him. Without prompting, [VM] told me that he would like to live with him (sic) mom all of the time and visit his father less.

When I inquired about this further [VM] told me that it is not fun at his dad’s house and that he was feeling upset because [NS] is mad at him and won’t talk to him anymore. [VM] told me that he was not sure why and that he did not know what to do about it. [VM] said that he talked to his mom and that was helpful, but he has not talked to his dad or [NS] because they will not care. [VM] and I talked about counselling and [VM] told me that he would like someone outside of his family to talk to about the things that bother him.

[VM] told me that he has no worried (sic) about his dad or his time at dad’s house, except for NS talking to him.

Ms. Mellen did not give evidence at trial.

[94] Ms. Williamson also spoke with the children’s pediatrician, Dr. Anthony Hui, who had not seen the family since early 2021. Dr. Hui apparently reported to Ms. Williamson that VG was feeling anxious and suffering from panic attacks. He had no concerns about the children’s physical presentation.

[95] In addition, Ms. Williamson spoke with Dr. Felix Yaroshevsky who reported that he saw VG on February 4, 2021, and VM on August 4, 2021. Dr. Yaroshevsky is reported to have said that VM did not like to go to the respondent’s home “because he is bored” and that VG did not report any concerns. He also reported that both children have anxiety (although not diagnosed or treated) due to the divorce and not knowing where the children will attend school in the fall, and it was Dr. Yaroshevsky’s view that the children need stability. Dr. Yaroshevsky did not provide evidence at trial.

[96] FACS’ investigation concluded that there was a physical harm identified because both children reported an incident of physical discipline at Canada’s Wonderland. While the respondent denied physical force, he did acknowledge laying hands on VM. The file was transferred to on-going service, to the extent the family wished to engage FACS’ services. The respondent was offered a referral to a Caring Dads program, which the respondent said he was not interested in.

FACS Records from On-Going Service

[97] On September 15, 2021, Ms. Liadan McNaughton attended the applicant’s home, and she had private interviews with both children. After interviewing VG, there were no reported concerns with the respondent’s home and VG said “it was good to go back and forth between his mom’s and dad’s houses because they both had pros and cons.” In terms of physical discipline in his father’s home, VG said that his father “used to use it sometimes but doesn’t anymore” and that he has no worries with being in his father’s home.

[98] When meeting with VM, he is reported to have said to Ms. McNaughton that he wished he could live with his mom more. When asked why, VM said he felt his mom loved him more and had more time for him; and he didn’t always like going to his dad’s house because he “slapped the back of his head” at least three times and it hurt. He also said he did not like his school because the kids were mean.

[99] Ms. McNaughton gave evidence at trial confirming the accuracy of her notes.

[100] On September 15, 2021, Ms. Williamson spoke with Clara, a domestic violence worker with whom the applicant had met on September 13, 2021. Clara reported that the applicant had reported to her very troubling allegations of family violence by the respondent against the applicant in the past. The allegations reportedly made by the applicant to Clara, and listed in an email from Clara to Ms. Williamson on September 13, 2021, include:

a. After their first year of marriage, the respondent became very emotionally abusive by swearing at the applicant, calling her worthless, fucking stupid, trash. She would leave the room, and he would follow her.

b. The respondent had beat a cat and put the cat in a cold shower.

c. One time, he pushed her down, but later denied pushing her and said he was only helping her sit down.

d. He constantly threatened to take the children from her.

e. They had a firearm in their home, and when things were escalating, he would assemble and disassemble the gun in front of her, and that he said he would never shoot her with this gun because it was registered.

f. He would threaten her with calling his army buddies back home paying them $10,000 to get rid of her and take the kids.

g. He threatened to smear her name, plant drugs on her or create a scenario so she loses her work.

h. She felt threatened by how powerful he was and that he can manipulate anything he needs.

[101] The applicant, during her testimony, gave evidence of past family violence perpetrated by the respondent before their separation. The respondent also gave evidence disputing all of these allegations. I discuss this evidence later in my reasons.

[102] On September 27, 2021, Ms. Williamson called the children’s principal, who reported that VM had a rough start to the year, and that VM had reported that he had to be in the car by 6 am to get to school on time from Niagara and he has been struggling to sleep because he does not want to be at school the next day. The principal reported that VM bit a student at school to get back at someone for scratching him. He also reported that VG was doing fine in school, although his teachers reported that VG looked tired.

[103] On September 30, 2021, Ms. McNaughton had a further visit at the applicant’s home. The applicant is reported to have said to Ms. McNaughton that VM told her that the respondent favours VG over VM and calls VM “fat” and “stupid”. The applicant also advised Ms. McNaughton “that she believes she will lose custody of her children and become a ‘weekend mom’ if FACS does not take a position at their February trial.”

[104] On October 26, 2021, Ms. McNaughton, the on-going case worker assigned to this file, again attended the applicant’s home. At this visit, VM asked to speak with Ms. McNaughton first. VM told her about both homes. The note reads:

He stated that at mom’s house, he feels happy and safe and mom buys him lots of things. He stated dad buys him less things but they are more expensive. I asked [VM] to tell me about dad’s house and he shrugged. I pointed out that he said mom's house is safe and asked if dad's house is safe or not. [VM] shrugged again and said sometimes he feels unsafe at dad's house. I asked [VM] for an example of this and he disclosed that recently (within the last few weeks), there was a conflict at bedtime regarding a book, and he had witnessed [AM] throw a book at [M, NS’s son]. I asked [VM] if the book had hit and he nodded. I asked where and [VM] initially said it hit [M’s] head, then corrected himself and pointed to his chest, saying the book hit [M’s] chest and he looked scared. [VM] stated he did not feel safe watching this and was scared.

[VM] also discussed conflict between [his father and NS] and saying that they swear in Russian and he doesn't know what they are saying but doesn't like it. I asked about discipline at dad's house and [VM] described electronics being taken away if its "bad". [VM] said if it is "really bad" and demonstrated an open-palm hit to the back of his head. I asked about an example of this and [VM] said he remembers it happening when he was running in the garage once. I asked when that incident occurred and he said it happened when he was 5. He stated it has happened again since then but did not have further examples or dates of when.

[105] Ms. McNaughton offered to meet with VG on this visit, but he declined. Ms. McNaughton met with the applicant, DG. The notes from that interview read:

[DG] voiced concerns about [AM’s] behaviour with the boys throughout the last month. She stated that the boys have been allowed to watch violent content such as the show "Squid Game" and [AM] taught them how to access illegal streaming sites for shows not on Netflix, which [VG] has been using to watch violent TV shows at [DG’s] as well due to the parental controls limiting mature content on her Netflix. [DG] also stated that [AM] says negative things about her to the children in her presence (ex: at access exchanges).

[DG] advised she does not know if she should tell me this because she does not want [VM] to "get in trouble". She stated that [VM] has voiced that he wants to live with [DG] only, and has asked her if he should begin to "purposely" act out at [his father’s] house so that [AM] will get frustrated and not want to "deal" with [VM’s] behaviours and he can live with his mom full-time. I advised [DG] to keep any conflict between the two of them out of sight where the boys are not exposed to it, as the separation has been extremely hard on them. [DG] asked if FACS is able to provide a letter of support in their custody trial and I advised we are unable to interfere or provide opinions in CLRA matters.

[106] On October 31, 2021, the respondent called CAST to report a concern about the applicant’s neglect of VG because she took him to school when he had COVID symptoms. He was referred to FACS because the applicant was in Niagara. The applicant said VG did not report symptoms that morning.

[107] On December 29, 2021, a further FACS worker, Ms. Shannon D’Arcey, attended an announced visit at the applicant’s home. The only remarkable note from this visit was that VG, for the first time, reported that he wanted to live at his mom’s place primarily. After reporting on what appears to have been a very positive and enjoyable Christmas holiday and trip to Quebec with his father and brother, VG is reported to have said:

When asked if he had any questions or wanted to tell us something, [VG] said that his mom told him that this may be the last time he is speaking to someone so he should let them know where he would like to live. [VG] said that he would like to live at mom's house and that he would spend time at [the respondent’s] but primarily be at mom's.

Credibility of Witnesses

[108] I found the applicant’s testimony to be honest and reliable in certain respects. She was forthright in admitting errors she made, notably, having breached the court order prohibiting relocating the children. She was not argumentative. She spoke factually.

[109] However, there were aspects of her testimony that impacted her credibility and the reliability of the information she offered. She admitted to having had engaged in insurance fraud and having lied to a school principal in the context of a CAS investigation. She recounted incidents that the children had reported to her, and I was alive to the potential of her embellishing or altering what they reported to her. There was also clear evidence from her husband, FC, that she pressured the children to discuss the relocation, which in my view, was inappropriate given her interest in the outcome of this trial. The various CAS records also suggest that the applicant intentionally involved the children in this dispute, and that she influenced the children’s views as to where they wanted to live. At one scheduled visit by the CAS to the applicant’s home, VM offered without being asked, that he wanted to live with the applicant. The CAS records also suggest that the applicant called the police, the CAS, or had others call the CAS over relatively minor concerns, and that she was hoping FACS to take a position to support her unilateral decision to move to Niagara. All of this made clear her motives and caused me to question her credibility.

[110] Similarly, I found the respondent’s testimony to be credible and reliable in certain respects. He spoke openly and candidly. He was able to explain details of some of the allegations made against him. He was not shy to explain his views on parenting informed by his cultural upbringing, even though certain aspects may not be consistent with current approaches to parenting.

[111] However, in response to some of the allegations against him, he offered excessive explanation at times possibly out of fear of the potential consequences, leading me to question the truthfulness of some of his statements. Some of the allegations against him were serious, and as I’ve found, I believe he minimized his recounting of the instances of physical discipline with the children. I am also of the opinion that he was less than honest in denying the negative comments he made about the applicant to the children (i.e., that she was a liar), based on what the children had reported to CAS workers.

[112] I found the evidence of the grandparents, NG and WT, to be honest and largely reliable. They had specific recollections of events. I perceived that they both spoke from a perspective of what they viewed as being in the best interests of the children, and not motivated by an allegiance to the respondent or a distrust of the applicant.

[113] There was no reason to doubt the credibility of the CAS workers, who primarily confirmed the accuracy of the records they took.

[114] There was further evidence of the applicant’s psychotherapist, Ms. Joan Montgmorie. For reasons given below, I did not find her evidence reliable.

C. The Law

[115] The applicant’s original application, issued on July 18, 2018, sought custody and access orders under the Divorce Act. This resulted in the final order of Paisley J., dated June 6, 2019. The motion to change was issued on September 30, 2020.

[116] Bill C-78, An Act to Amend the Divorce Act, 1st Sess, 42nd Parl, 2019 (assented to 21 June 2019), S.C. 2019, c. 16, made significant changes to the Divorce Act. Most changes came into force on March 1, 2021. Section 35.3 of the amended Divorce Act provides that the amended provisions of the Divorce Act apply to matters that were commenced prior to the amendments coming into force on March 1, 2021 but were not finally disposed of before March 1, 2021. This trial commenced on February 22, 2022. Accordingly, my consideration of this case is governed by the amendments to the Divorce Act in place since March 1, 2021.

[117] I find that the Final Order was made pursuant to s. 16.1 of the Divorce Act and that the Motion to Change, issued on September 30, 2020, was brought pursuant to s. 17(1) of the Divorce Act.

Relocation

[118] The amended Divorce Act contains new provisions with respect to a motion to relocate children. Under s. 2, “relocation” is defined as:

relocation means a change in the place of residence of a child of the marriage or a person who has parenting time or decision-making responsibility — or who has a pending application for a parenting order — that is likely to have a significant impact on the child’s relationship with

(a) a person who has parenting time, decision-making responsibility or an application for a parenting order in respect of that child pending; or

(b) a person who has contact with the child under a contact order;

[119] Section 16.9(1) requires a person who has parenting time or decision-making responsibility and who intends to relocate to provide 60 days’ notice of the expected date of relocation to any other person with parenting-time, decision-making responsibility or contact with the child.

[120] When making a parenting order, the court shall only take into consideration the best interests of the child (s. 16(1)). The court shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being, and all factors related to the circumstances of the child shall be considered when determining the best interests of the child (s. 16(3)).

[121] When deciding whether to authorize a relocation, the court shall consider further factors, in addition to those under s. 16 (see s. 16.92(1)).

[122] Where the parties substantially comply with an order that provides that a child substantially spends equal time in the care of each party, the party who intends to relocate the child has the burden of proving the relocation would be in the best interests of the child (s. 16.93(1)).

Change in Circumstances of the Child

[123] Before the Divorce Act amendments, the two-stage test in Gordon v. Goertz, [1996] 2 S.C.R. 27, governed relocation applications: at para. 9.

[124] First, a party seeking to vary an order had to show a material change in the situation of the child to meet the requirement in s. 17(5) of the Divorce Act which provides that the court shall not vary a custody or access order absent a change in the “condition, means, needs or other circumstances of the child”. A material change in circumstances was: (a) a change in the condition, means, needs of the child and/or the ability of the parents to meet the needs of the child; (b) which materially affects the child; and (c) which was either not foreseen or could not have been reasonably contemplated by the judge who made the initial order: Gordon, at para. 13.

[125] The second stage of the test is a consideration of the best interests of the child.

[126] If the applicant failed to prove a material change under the first stage, the inquiry would go no further: Gordon, at para. 10. A trial judge had no authority to interfere with a final order unless the threshold issue of material change was first established: see Litman v. Sherman, 2008 ONCA 485, at para. 37. Where on a proposed relocation, the move was in the contemplation of the parties at the time the previous final order was made, a material change was not established: see Elliot v. Turcotte, 2009 ONCA 240, at paras. 14-16.

[127] The amendments to the Divorce Act change things.

[128] Section 17(5.2) states: “a relocation of a child is deemed to constitute a change in the circumstances of the child for the purposes of subsection (5)”.

[129] There have been two decisions of this court which have held that s. 17(5.2) deems there has been a change in the circumstances of the child, and therefore, the parent seeking the relocation order does not need to demonstrate, and the court does not need to satisfy itself, that there has been a change in the circumstances of the child beyond the proposed relocation: see Al Kowatli v. Berrwin, 2021 ONSC 4999, at paras. 17-20 ; Cote v. Parsons, 2021 ONSC 3719, at para. 50.

[130] In this case, the final order expressly prohibits a change in the children’s residence outside of the GTA. In Al Kowatli and Cote, the final orders subject to the motion to change did not prohibit relocation. The question arises whether this distinguishing fact triggers s. 17(5.3) of the Divorce Act, another new provision, which states:

17(5.3) A relocation of a child that has been prohibited by a court under paragraph (1)(b) or section 16.1 does not, in itself, constitute a change in the circumstances of the child for the purposes of subsection (5).

[131] In “The Divorce Act Changes Explained” found on the Government of Canada’s website, it explains that s. 17(5.3) “prevents the variation of an order simply on the basis that an application for relocation was denied.” It explains the reason for the change as follows:

If there is no change to the child’s circumstances, the fact that a request for relocation has been denied does not, in and of itself, form the basis for a variation.

At any time, however, if there was a material change in circumstances, a party could seek to vary a parenting order.

This provision is similar to one in British Columbia’s Family Law Act.[^1]

[132] This explanation suggests that where there has been a request for relocation which has been “denied” (i.e., requested and rejected by the Court), this does not in itself form the basis for a variation order. For example, after denying a relocation, the court must still satisfy itself there has been a material change before changing the primary care from one parent to another.

[133] As explained by Prof. Rollie Thompson, “[a] simple proposal to relocate, that is refused, does not empower a court to make other changes in the terms of a parenting order…The concern underpinning 17(5.3) is that judges will treat a failed relocation proposal as grounds to change custody or primary care to the other parent, unconditionally, a noticeable trend in the relocation case law.”[^2]

[134] In my view, s. 17(5.3) does not require that a material change analysis be undertaken when a prior court order exists which prohibits relocation. Rather s. 17(5.3) must be interpreted more narrowly to prevent the court from making other parenting orders automatically when a relocation is denied.

[135] This interpretation is consistent with the deeming provision found in s. 17(5.2) and the definition of “relocation” in s. 2(1). A relocation is only a “relocation” as defined in s. 2(1) if it has a “significant impact” on the child’s relationship with parents and those with whom the child has contact. Because of the “significant impact” requirement in the new definition of “relocation”, in almost all cases of relocation, there will a “material change.” Therefore, the deeming provision in s. 17(5.2) makes sense. Nothing turns on whether there is or is not an existing court order. In either case, a finding that the proposed move would have a “significant impact” on the child suggests that there is a material change, and therefore, it is not necessary to conduct a further material change analysis.

[136] With this understanding, s. 17(5.3) can be understood in its narrow context as described on the Government of Canada’s website and by Prof. Thompson.

[137] Accordingly, I interpret s. 17(5.3) as meaning that only where the court has denied a relocation (in this case, in the context of a motion to change), this denial does not, in itself, form the basis for a variation on another aspect of the parenting arrangement. Its application in this case only arises if I deny the applicant’s relocation and contemplate changes to the existing parenting order, as requested by the respondent.

[138] Of course, I must still consider the existence of a prior order restricting a relocation. Section 16.92(2)(e) expressly requires that I consider, on a relocation motion, the existence of an order that specifies the geographic area in which the child is to reside.

D. Analysis

Issue #1: Would the applicant’s move constitute a “relocation” as defined in the Divorce Act?

[139] I am satisfied that the children’s relocation to Niagara would likely have a significant impact on the children’s relationship with the respondent and his exercise of parenting time.

[140] If the children relocate to Niagara and attend a school in Niagara, the respondent will spend considerable time commuting. There was evidence in the CAS records of the children having to wake up at 5:30 am in Niagara to arrive at school on time in Toronto, and that the children appeared exhausted at school. The applicant confirmed on cross-examination that they would wake up around 6:00 am, and she acknowledged that they were tired. The children’s attendance record at school confirmed that the children were sometimes arriving late to school in the fall of 2021 when commuting from Niagara. If the relocation were authorized and the current parenting schedule maintained, the respondent would have similar challenges that would not be in the children’s best interest and would impact the respondent’s parenting time. Spending time on the road commuting with children is not meaningful parenting time, as compared to engaging in activities with them.

[141] If the respondent’s parenting schedule were reduced to what the applicant proposes (alternating weekends and alternating Thursdays overnight), that would also significantly impact the respondent’s parenting time. First, his parenting time would be significantly reduced. Second, the respondent adduced evidence of the activities he regularly engages in with the children – ski trips to Collingwood and Quebec, tennis, swim lessons, and day trips around and outside Toronto. If the respondent had to first pick up the children from Niagara (or drop them off), many of these activities would not be feasible and it would impact his ability to engage in these activities with the children on weekends.

[142] There was evidence of commuting time presented by both sides. The maps showed distances and travel times between:

(a) the respondent’s home in Toronto to the applicant’s home in Niagara (137 km; 1h 31 min);

(b) the respondent’s home to Burlington – the southwestern end of the GTA (33 km; 56 min);

(c) the respondent’s home to Clarington – the eastern end of the GTA (88 km; 58 min);

(d) the respondent’s home to Brock – the northern end of the GTA (108 km; 1h 24 min);

(e) the applicant’s home in Niagara to Burlington (67 km; 43 min);

(f) the children’s school in Toronto to the applicant’s home in Niagara (124 km; 1 h 30 min); and

(g) the respondent’s home in Toronto to the children’s school (12 km; 26 min).

[143] I do not find these maps, the distance or commuting time they suggest determinative. First, for anyone who has ever commuted in the GTA or the Golden Horseshoe Area, it is well known that commuting times can extend significantly during rush hour, when there is construction, or motor vehicle accidents – all of which are regular occurrences in the GTA and the Golden Horseshoe.

[144] Second, the definition of “relocation” in the Divorce Act is not confined to moves from one municipality or region to another. It is defined as any change in the place of residence of a child that it likely to have a significant impact on the child’s relationship with a parent or a person with whom they have a contact order.

[145] At most, these maps and distances, along with the evidence of the impact that commuting has had on the children, lead me to the following factual findings:

a. Commuting from Niagara to the children’s school is longer than what ought to be tolerated by these children and it is not in their best interests.

b. Commuting from any end of the GTA to the children’s current school ought not be tolerated by these children and it is not in their best interests.

c. The quality of parenting time spent by the respondent with the children would be negatively impacted were he to have to commute the children back and forth between his home and Niagara.

[146] Finally, while there is no express contact order granting the grandparents rights of contact with the children, the separation agreement and final order contemplated the grandparents spending regular time with the children. The evidence showed that the grandparents exercised that time and have had a close relationship with the children. A relocation to Niagara would significantly impact the children’s relationship with their grandparents, their ability to spend time with them, and the activities the children engaged in with the grandparents.

[147] For these reasons, I am satisfied that the applicant’s proposed relocation would significantly impact the children’s relationship with the respondent and the nature and quality of his parenting time, as well as their relationship with their grandparents.

Issue #2: Is the relocation in the best interests of the children?

[148] In deciding whether to authorize a relocation, and to determine what is in the best interests of the child, the court shall consider the factors in s. 16.92(1) and s. 16 of the Divorce Act.

Reason for Relocation

[149] The applicant’s evidence was brief as to why she sought to relocate to Niagara, and the bulk of the evidence on this issue came from her husband FC.

[150] Several reasons were offered for the relocation: (a) an assumption the respondent would not oppose the relocation and that the move to Niagara was a “red herring”; (b) the needs of the applicant’s husband, FC; (c) housing affordability and the benefits to the children of a stable home in a community like Niagara; and (d) the applicant’s employment.

(a) Respondent’s consent or acquiescence to the relocation

[151] The applicant testified that in 2019 she agreed to the term in the separation agreement and final order prohibiting relocation, but that she “did not think it through clearly.” She explained that she and FC were living together in 2019, and that she had been living in his Walmer apartment most of the time in 2018. They had started talking about a move to Scottsdale, Arizona, where FC was working at the time. She said she discussed with the respondent a potential move to Scottsdale. According to the applicant, the respondent’s stepfather, WT, had told the applicant that the respondent was “okay” with a move to Arizona.

[152] The applicant admitted at trial that she did not consult with the respondent, nor did she seek his consent to relocate to Niagara before FC purchased the home in Niagara in 2020. The applicant and FC testified that because the respondent had agreed to a relocation to Arizona, they assumed he would consent to a relocation to Niagara and that this issue would settle. Furthermore, FC explained that since the parties had an underlying dispute about where the children would attend school next, the issue of relocating to Niagara – which was only 90 minutes away – was a “red herring.”

[153] FC testified that the applicant had told him that the respondent offered the possibility of the children coming to Arizona. For this reason, like the applicant, FC was surprised that this issue resulted in a trial. On cross-examination, FC stated the applicant had told him that this would never go to trial, because the applicant was of the view that the trial would cost the respondent a lot, and his girlfriend, NS, would not want him to spend this money.

[154] At trial, the respondent admitted that there were discussions with the applicant about her considering a move to Arizona, but he rejected there was ever an agreement for the children to relocate to Arizona. He testified that it would be near impossible for him to exercise his parenting time if she relocated to Arizona, and he would never have agreed to the children relocating there. WT similarly gave evidence that the respondent never agreed to a relocation to Arizona.

[155] I prefer the evidence of the respondent father to the applicant mother on this issue. At best, the applicant’s understanding of the respondent’s position on a relocation to Arizona was from WT. However, WT confirmed that the respondent never agreed to the relocation. There is nothing in writing to support the applicant’s assertion that the respondent was “okay” with a relocation to Arizona. Given the love, devotion and critical role the respondent and his parents have had in the children’s lives, it is difficult to accept that the respondent would have casually agreed to the children relocating to Arizona.

(b) Needs re: FC’s Career and USA Citizenship

[156] The applicant knew FC’s career was based in the USA. It was FC’s evidence that he first moved to the USA in July 2011 to work for Just Energy. He spent the past 11 years working in various executive roles in the USA with different employers. FC testified that he has a green card to work in the USA, which expires in April 2026. Once it expires, and if not renewed, he is not legally able to work in the USA. He said that an extension of his green card was not guaranteed, but on cross-examination, he stated it should be possible to get an extension.

[157] His evidence was that he was keen to spend 50% of his nights in the USA, because if so, that would be a criterion enabling him to obtain USA citizenship. This was one reason he offered as to why the Niagara property was attractive, allowing him to easily spend nights in the USA. He testified that he preferred a USA citizenship, over a green card, because his employment prospects were much better in the USA. Given the depth of his skills, in de-regulated energy and solar power, there are not a lot of work opportunities for him in Canada; there is a much larger domain in the USA. The applicant admitted that when she requested a transfer to work in Niagara, she indicated that FC needed to live by the USA border.

[158] FC further testified that he started his current position in March 2020, returning to his former employer, Just Energy, but this position was to begin as the COVID-19 pandemic was declared. He has been working remotely since. A term of his employment with Just Energy was that he only needed to be in its head office in Houston, Texas, 50% of the time. He testified that this was attractive to him and gave him more flexibility to spend time with his children, E and D, as well as with the applicant and her children.

[159] I accept FC’s evidence and find that FC’s employment in the USA was a motivating factor for the applicant and FC to decide upon a home in Niagara, as opposed to elsewhere.

(c) Housing Limitations, Affordability & Benefits of Niagara

[160] FC testified about the limitations of his Walmer apartment. As one reason for the move to Niagara, FC said that the Walmer apartment, a 3-bedroom apartment, was nice but it became difficult during the pandemic when his and the applicant’s children were there together, attending school online, and while he was working remotely. He said that the children wanted to go outside often, and they needed more space for the six of them.

[161] FC explained in detail why Niagara was chosen by him and the applicant. He testified that their budget was $800,000 - $900,000, which meant a home in Toronto was not affordable. He stated they had looked at homes in the Durham region, Bradford and Burlington, among other locations. They had settled to purchase a home west of Toronto because Billy Bishop was not operating due to the pandemic, and employment prospects for the applicant were either at Pearson or at the Queenston Bridge in Niagara. According to FC, “Burlington was okay, but Niagara was perfect.” FC says they factored in sporting activities, culture, the community, and school ratings when ultimately deciding upon Niagara over Burlington.

[162] The applicant’s evidence was similar. She reasoned that it is in the best interests of the children for them to have access to what Niagara has to offer, and that it was better for the children to have one stable home, where they could all be together longer in the same building. She spoke of the school in Niagara which has high ratings. She further testified that the children would still have access to the respondent, but mostly on weekends and during summer vacations. She testified they could still have a meaningful relationship with the respondent and the grandparents while living in Niagara.

[163] I am not satisfied that this reasoning is logically sound, or that it is a compelling reason for the relocation. While the pandemic has created difficult circumstances for many families the world over, it was a temporary situation. A move out of the Walmer apartment may have been sought by FC and the applicant for personal reasons, and notably FC’s desired citizenship status. But it did not necessitate a move outside the GTA. FC gave evidence of flying in and out of Pearson for years in the past to accommodate his parenting and work responsibilities.

[164] On cross-examination, FC explained that while he does have an income of approximately $800,000, he is not comfortable having a lot of debt, and for this reason, he and the applicant only budgeted $800,000 - $900,000 for the purchase of a home. He noted that he pays in excess of $20,000 per month in child and spousal support combined, and that his future employment was not guaranteed. He explained that he was able to get the home in Niagara with a mortgage that was largely similar to the rent of $3,200 per month he was paying on the Walmer apartment. This leads me to conclude that they could have certainly afforded a rental place in Toronto, and quite possibly the purchase of a home in Toronto, but chose not to.

[165] I am also not satisfied that Niagara is so unique and that it offers more benefits for the children as compared to Toronto. While I am sure Niagara offers many benefits for families and children, so does Toronto and other communities that the applicant and FC were considering. How well one school ranks in Niagara is not a determining factor, especially when there are many exceptional schools in Toronto, and when the children will soon need to leave their current school in Toronto to attend a new middle school. Other decisions of this court have held that school rankings do not dictate what is in a child’s best interests: see Anderson v. McIntosh-Anderson, 2018 ONSC 4688. In my opinion, the applicant failed to give much or any consideration to the substantial impact that the move would have on the children’s relationship with the respondent, and the significant change that would result in terms of the activities in which the children could engage in with the respondent.

(d) Applicant’s employment

[166] While the applicant is currently on leave from CBSA, she testified that she would be able to get daytime work hours in Niagara. In her affidavit in support of the motion, the applicant states that she would be able to earn a higher income in Niagara, noting that employees in Niagara have the opportunity to take on overtime hours, unlike positions at Billy Bishop where they are heavily staffed. She testified that she earns approximately $82,000 as a base salary no matter where she works. She said that with overtime opportunities, she anticipated earning a six-figure salary working in Niagara.

[167] I am not satisfied that she would earn a higher salary working in Niagara as compared to Toronto. She produced no evidence that there would be more overtime in Niagara as compared to working out of Pearson or Billy Bishop. While she testified that there is minimal overtime at both Pearson and Billy Bishop, her employment records indicated that she did work overtime at Pearson, and therefore, there would seem to be at least some opportunities for her to earn more than her base salary if she worked out of Toronto. Furthermore, she testified that she wanted regular daytime hours while working out of Billy Bishop to allow her to have more parenting time. If she did work overtime hours in Niagara, beyond regular daytime hours, it would reduce the time available to spend with her children.

[168] Furthermore, the documentary evidence suggests that the reason for her employment relocation was not to earn a higher income, but because of her husband, FC. On September 21, 2020, she wrote to a director with the CBSA seeking to be transferred from Billy Bishop to Niagara. In her email, she indicated the reason was “due to spousal relocation.” She further explained that “my family is moving to and settling down in Niagara, and I want to be at a port close to my husband and children.” Notwithstanding the language used in her request, she had not even raised with the respondent or sought a court order authorizing her to relocate with the children. Her motion to change was not filed until a few days later, on September 30, 2020.

[169] In conclusion, I find that the reasons for the move to Niagara was because the applicant and FC wanted to buy a home and a home in Niagara was the most ideal option for the applicant’s husband, FC. I find that the secondary reason was home affordability, although I am not satisfied the applicant and FC could not afford a home in the GTA – whether rented or owned. I am not persuaded that the move to Niagara was required for the applicant’s employment or that there are any significant benefits for the children to her working out of Niagara as compared to Toronto. I am also not satisfied that a home in Niagara has more benefits for the children as compared to a home in Toronto.

Impact of the Relocation on the Child

[170] For reasons discussed, I am satisfied that if the children relocated, it would have a substantial impact on the children’s relationship with the respondent. It would also have a significant impact on their relationship with their grandparents. In my opinion, the applicant failed to meaningfully consider the impact of the move on the children’s relationship with their father or grandparents when deciding to relocate to Niagara.

Amount of time spent with the children by the parents

[171] As a ground for her motion to change, the applicant argues the respondent has not exercised his 50% parenting time as set out in the final order. She argues that she agreed to a 50-50 sharing of parenting time in the hope that the respondent would use his parenting time, but that he has not. She testified this did not start until March of 2020. And since then, she says he has passed his time off to the grandparents or his girlfriend. This is a basis upon which she argues the Court should grant her motion to change to give her more parenting time.

[172] I have considered the evidence as to whether the respondent has exercised his parenting time. The applicant adduced into evidence calendars of time spent by the respondent with the children. Assuming they are accurate, those calendars are from 2017, before the final order was obtained.

[173] Based on the applicant’s evidence, I am satisfied that by March 2020, he was exercising his 50% time, as the applicant had hoped. While exercising his 50% time, I do not accept that the respondent has been passing care of the children off to others any more than how the parties cared for the children post-separation or since 2019 when the separation agreement and final order were finalized. Nor do I accept that the respondent is passing the children off more than the applicant.

[174] The grandparents spent significant time with the children before and after the parties’ separation. During the applicant’s cross-examination, she was taken to numerous text messages showing that during her parenting time with the children, the grandparents regularly took care of the children, often at the applicant’s request. This was often after school until dinner time, on weekends, or on special outings during the summer. The respondent’s evidence was that this is how his parents were similarly engaged during his parenting time. More than simply caring for the children, the grandparents have developed strong bonds with the children and the children enjoy spending time with the grandparents. This time, in my view, must be nurtured for the children’s benefit. I do not accept that it ought to somehow be deducted from the respondent’s parenting time, especially when the applicant herself requested and relied upon the grandparents in the same manner as the respondent before and after the parties’ separation.

[175] The applicant states that the respondent also passes the care of the children on to his girlfriend. Her only evidence of this is that the children volunteered information to the applicant that this occurred, but that evidence, at most, is that NS drives the children to school because the respondent is busy. The applicant admitted during questioning that her husband, FC, also helps with pick-ups and drop-offs, that he is sometimes home with the children while the applicant is out, and that this is normal, which prior testimony she adopted at trial. While the applicant does not consider that she is passing off childcare responsibilities to FC, she accuses the respondent of this. She rationalizes the distinction based on the frequency with which this happens in the respondent’s home, and the infrequent number of times this happens in her home. However, her only evidence is what the children volunteer to her. She testified that she has not asked the children about this, and that she cannot precisely quantify how often the respondent passes the children off to his girlfriend.

[176] The respondent’s evidence was that he spends as much time with the children as possible, and just like any other parent. He testified that after school, he cooks, he goes shopping, and he does homework with them. He further testified that he does activities with them each week, such as taking them to the theatre, SkyZone, go-kart racing, Canada’s Wonderland, the Museum, and the Science Centre. He spends considerable time engaging them in sports, such as skiing, tennis, swimming, fishing and wakeboarding. The applicant agreed that the respondent does participate in many activities with the children, but she could not confirm all the activities.

[177] On weekdays, the respondent acknowledged that the children often spend time with the grandparents after school, but that they come home around dinner, much like other working parents. He then helps them with homework and reads to them.

[178] On weekends, the evidence showed he also spends considerable time with them engaging in the activities mentioned. He admitted that his parents also spend time with the children after school, and this can also occur on weekends.

[179] There was contradictory evidence from the paternal grandmother, NG, and the paternal grandfather, WT, as to how often sleepovers with the grandparents occur, which is either once every week, or once every two weeks. This contradictory evidence, in my view, does not sufficiently establish that the respondent fails to exercise his 50% parenting time. The respondent’s evidence was that he will also sleepover at his parents’ home with the children from time-to-time.

[180] I generally found the respondent to be credible and reliable on the topic of his parenting time, which was largely corroborated by the grandparents and NS. He was forthright and passionate in describing his activities with his children. He testified with particular pride about the time he spends teaching them how to ski and play tennis, as well as their accomplishments. He was, in my assessment, genuinely saddened by the prospect of not being able to engage in activities with them if the applicant’s motion to relocate to Niagara was granted, and that this would be a loss for the children.

[181] I found both the grandparents to be credible and reliable witnesses about the level of involvement the respondent has had in the children’s lives. They testified that he was a caring, committed and loving father. They were both passionate in their testimony, which evidenced a deep affection for their grandchildren. I was not persuaded that they were offering evidence for the sole or predominant purpose of supporting the respondent. I was persuaded that they were working hard to keep the parties’ conflict away from the children, and that they were motivated by what is in the children’s best interests.

[182] I recognize that photos in family cases are of limited evidentiary value, as many parents today have thousands of photos which capture wonderful moments with their children, but which cannot capture a comprehensive assessment of a parent’s time with a children. The photos adduced by the respondent, however, do support the respondent’s testimony of the scope of activities he has been engaged with the children and his general involvement in their lives.

[183] For these reasons, I am satisfied that the respondent has exercised his parenting time with the children with some of that time spent with the grandparents. Before March 2020, and before this motion to change was brought, it may have been true that the respondent was relying on the applicant to assume more than 50% of the parenting time. However, since March 2020, he has been exercising his time.

[184] The regular participation by the grandparents in the children’s lives has continued during the respondent’s parenting time, as contemplated in the parties’ separation agreement and the final order. It must come from one parties’ parenting time, and cannot result in a conclusion that the respondent not fully exercised his parenting time. The evidence of the respondent passing parenting responsibilities off to his girlfriend, NS, is not reliable. In any event, the type of passing-off that may occur between the respondent and NS would appear to be similar to the passing-off that the applicant also engages in with FC.

[185] For these reasons, I am satisfied that the relocation would have a negative impact on the amount of time that the children spend with the respondent.

[186] Because I have found that the children spend substantially equal amounts of time with both parties, the applicant has the burden of proving the relocation would be in the best interests of the children: see s. 16.93(1) Divorce Act.

Existence and Compliance with an Existing Order

[187] There is a court order prohibiting a relocation beyond a geographic area, which the respondent admitted breaching in the past, but says she is no longer in breach.

[188] As I have found, the applicant did not consult with the respondent or seek his agreement before agreeing with FC to purchase a home in Niagara, and she unilaterally moved to Niagara for several months and for as many as 10 months in 2021. She apologized to the court and rationalized her decision, in part, because the children were learning remotely and it made little difference where they were learning. However, the evidence showed that the children commuted from Niagara to Toronto on several days and were tired and often arrived late to school in the fall of 2021.

[189] In 2019, the parties agreed to the terms of separation and a court order which they viewed as being in the children’s best interest. No child-focused explanation was offered by the applicant as to what changed between the final order in 2019 and November 2020 when they bought the Niagara home, other than she didn’t think through clearly the prohibition against relocation when she agreed to it in 2019.

[190] I would agree that she did not think this through properly. In 2019, the applicant was in a relationship with FC, who she knew worked in the USA. She was also living out of the Walmer apartment and would have been aware of its size limitations. None of these factors changed between 2019 and 2020. The things that did change were the pandemic, FC’s new job with Just Energy in the USA, and his ability in his new job to work 50% of the time remotely.

[191] The other influencing factor for breaching the order was the applicant’s perception that the respondent would not fight her on this issue, because she believed his girlfriend, NS, would not want to spend money on fighting this in court.

[192] In my opinion, none of the reasons for breaching this aspect of the order considered the best interests of the children.

[193] There is also a court order requiring the payment of child support by the respondent, which he breached.

[194] In the past, the respondent did not pay child support on the 1st of the month. He explained that this was because, as an independent contractor, he did not get paid at the start of each month. He also did not pay child support in November 2019, and there was a 10-month period thereafter when it was not paid.

[195] The applicant says the reason why he did not pay child support was because they had a phone call following a fight the applicant had with the respondent’s mother, NG. During that call, the applicant said he threatened not to pay as “a lesson” to the applicant.

[196] The applicant then provided the respondent notice of late payment. When the default was not cured, she sought the assistance of the Family Responsibility Office (FRO). FRO sought payment of arrears from the respondent for five preceding months, which the respondent said was an error because he had paid the applicant for those months. In December of 2019, the applicant advised FRO of the payments made by the respondent for those five months to assist in correcting FRO’s error. The respondent paid December 2019 child support, but it was paid late in January 2020. Then, for 10 months, the respondent admitted he did not pay child support while the matter was being resolved with FRO. He became current with his child support obligations just prior to the case conference with Akbarali J. in November 2020. Payments are now made through FRO.

[197] The tone and tenor of the respondent’s text messages in November 2019 suggest that the respondent may have intentionally held back child support at that time. However, on a balance of probabilities, and after review of the parties’ text messages in February of 2020, there was a willingness on the respondent’s part to pay child support directly to the applicant at that time. In response, the applicant stated that “child support is to go through FRO.” In further text messages on February 24, 2020, the applicant states that the respondent will have to call FRO. These messages support the respondent’s position that he did not pay support because he was working to resolve things through FRO.

[198] In conclusion, I find that the applicant did not comply with the prohibition against relocating for several months, and that she did not comply for reasons that were related to her husband, her desire to live in Niagara, and her assumption that the respondent would not oppose her move. I am not satisfied that her decision to breach the court order considered the impact the move would have on the children or their relationship with their father.

[199] I find that the respondent did not pay his child support payments as they became due, but this was a time-limited problem, and is now corrected by enforcement through FRO. I also find that if the respondent intentionally withheld child support in November of 2019, it was time-limited and there was an intention to correct this by at least February 2020.

Reasonableness of the Proposal of the Parent Who Intends to Relocate

[200] For reasons already given, it is not in the children’s best interests for them to be commuting daily between Niagara and Toronto. In the VOC Report, VM said the drive was “tiring.” If the relocation is granted, the applicant’s proposal to have the majority of parenting time with the children would be reasonable. However, I do not find it reasonable that on alternating weeks the children would have one overnight with their father on Thursdays to Fridays. It is not child focused for the children to have to commute nearly 300 kms to and from their father’s home over a 24-hour period. As stated earlier, parenting time spent commuting is not the same as parenting time spent engaging with children. This is particularly true for the respondent and the children in this case, where there was evidence of the respondent being involved and engaged with the children in many activities and in their day-to-day living.

[201] The challenge with the applicant’s proposal is that there is not a child centered solution that would allow the children to maintain the close bond, frequent contact, and relationship that they have with the respondent, or the other relationships that the children have with others in Toronto, including their grandparents. I discuss this next in my analysis of the best interests of the child factors.

Best Interest of the Child Factors

[202] Section 16(2) of the Divorce Act states that when making a parenting order, the Court shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being. Section 16(3) lists the factors to be considered.

a. Children’s needs, given their age and stage of development

[203] The children are now 11 and 9. Both of their lives have been centered around Toronto since birth. Their homes, schooling, grandparents, friends and extra-curricular activities (e.g. competitive swimming) are all based in Toronto. VG has a particularly close bond with NS’s son, M, who he has known since infancy. The VOC Report confirms that VG also likes to spend a lot of time with friends. The children are not yet young adults, but they are also no longer infants. They can likely tolerate some disruption to the stability that they have enjoyed up until now.

[204] The evidence from the VOC Report and other witness testimony allows me to conclude that the parties play important roles in different domains in the children’s development and well-being. The applicant has an influential and supportive, nurturing role in the children’s lives, particularly with respect to their emotional and psychological development. The respondent similarly plays an influential and supportive role around discipline, academics, and sporting activities. There was evidence of the other parent also playing a role in the other parent’s primary domain. Given their age and stage of development, I am satisfied that any parenting order should support the continued role both parents play in their children’s lives.

b. Nature and strength of children’s relationship with each spouse, siblings, grandparents

[205] I am satisfied that the children have a very strong relationship and love for both of their parents. I am also satisfied that they have a very strong relationship with their grandparents, who also play a very important role in the children’s lives. This was evident from the witness testimony, and was described well by the children themselves in the VOC Report:

[VG] spoke positively of both parents and expressed that he cared for both parents. He further stated that at time, when it comes to ‘sport,’ he feels more connected to his father, and that when it came to ‘chilling and talking about emotional stuff,’ that he felt more connected to his mother.

[VM] described his mother as ‘good.’ He informed that his mother had recently made him pancakes and let him make French toast which he enjoyed. [VM] informed that when he is with his mother that they usually play games and go on walks. Further, that when she is busy that he and his brother are ‘outside having fun.’ [VM] said that his favorite thing to do with his mom is play with her and go outside for walks.

[VM] described his father as ‘fun’ and ‘good.’ He said that his dad talks to him about being a kid growing up in Russia. [VM] informed that on weekends his dad takes him skiing and that they had recently gone to Mont Tremblant. [VM] expressed that when he is at his father’s house that his father cooks. He further stated that in the summer they do ‘much

more fun stuff,’ and recalled that he ‘drove the boat’ and did ‘kite surfing.’

[VM] informed that when he stays with his dad that he sees his grandparents often. He described his grandparents as ‘fun,’ and said that they do ‘lots of fun stuff.’ [VM] informed that when they were at school that his grandparents would pick him up at school and he would sometimes sleep over. [VM] informed that currently during the week he sees his grandparents just ‘to do the school thing’ and ‘online learning.’ He further stated that when he comes home from his grandparents that he plays games, has dinner, talks with his father, and goes to bed.

c. Willingness to support development & maintenance of relationship with other spouse

[206] There was conflicting evidence about the willingness of each parent to support and maintain the children’s relationship with the other spouse. The applicant, in her testimony, spoke positively about the role the respondent plays in the children’s lives, although she minimized his role to one primarily of a “weekend dad” who was only involved in sporting activities with the children. It is on this basis that she rationalized her proposed parenting schedule, allowing the respondent to “still be involved” with the children’s sports on holidays and weekends.

[207] From all the evidence, I do not accept that this is the minimal role the respondent has played in the children’s lives. His testimony, corroborated by his parents and girlfriend, is that he has been engaged in all aspects of the children’s lives. On this issue, I found the respondent’s testimony to be truthful. This conclusion is also supported by the children’s views captured in the VOC Report and text messages exchanged between the parties, which show the respondent has been involved in more than just sporting activities and that he is directly involved in all aspects of the children’s daily living.

[208] In his testimony, the respondent offered nothing positive about the applicant or her parenting abilities. However, he did acknowledge that it was important for the children to have a good relationship with their mother.

[209] Each party alleged that the other was preventing the children from speaking with them while in their care. I decline to make any findings on this issue. The children have their own cell phones. There may be legitimate reasons why the children did not answer or return phone calls immediately. I am satisfied that both parents provided opportunities for the children to speak with the other parent while in their care.

[210] The applicant testified that VG reported to her that the respondent had called the applicant a liar. This was also recorded in a CAST note from an interview Ms. Mathalon had with VG. On a balance of probabilities and based on the tone and content of the respondent’s written communication to the applicant, it is more likely than not that the respondent told the children their mother was a liar.

[211] There was clear evidence of the applicant pressuring the children to have them decide where they wanted to live. FC’s evidence was that the applicant would pressure the children about where they wanted to live, although he later qualified his evidence by stating the applicant was not pressuring the children to decide to live with her, but rather to find out the reasons why VG did not want to live with her full-time and for the children to make up their minds. The respondent also gave evidence that immediately upon being dropped off at the respondent’s home, VM’s first statement to him was not “Hello Papa”, but “I want to live with mom.”

[212] I am satisfied that the applicant did have regular discussions with the children about where they wanted to live and that she exerted pressure on them around this issue. Even if her intention was not to pressure them, it would have been very clear to the children what it was that the applicant wanted. Most children of that age would want to please their parent. In my view, the repeated conversations the applicant had with the children on this topic was entirely inappropriate, placed the children in a difficult and unenviable position, and most likely created undue stress on the children.

[213] To a much lesser extent, there was some evidence of the respondent discussing with the children this conflict about where the children would live. For example, Ms. Mathalon reported in a CAST record that the respondent admitted to her about speaking with the children about the applicant trying to take the children away from him. However, the VOC report suggests that the respondent wanted the children to report on what they truly felt, rather than having one view.

[214] These discussions with the children do not manifest an intention to support the maintenance of the children’s relationship with the other. To the extent any party pressured the children to decide to live with them, or spoke negatively about the other parent, it would convey to the children that their relationship with the other parent was unimportant or less important. I find that both parties engaged in this behaviour to some extent.

d. History of Care

[215] Both parties indicated that they have always been the primary parent in relation to the children’s care. The applicant’s position is clearly not correct. From February to December 2015, when the applicant went for employment training in Rigaud, Quebec followed by a post in Sarnia, the respondent was the primary caregiver.

[216] The parties separated in 2016 and had a week-on-week-off schedule since then and were both significantly supported by the grandparents. I accept the applicant’s evidence that up to March 2020, the children were likely with the applicant slightly more than 50 percent of the time based on the fluidity with which the parties would exchange or swaps days. However, from March 2020 onwards, there has been an equal sharing of care for the children.

e. The children’s views and preferences

[217] There were four sources of evidence on the children’s views and preferences: (1) the VOC Report; (2) CAS Records; (3) testimony of Ms. Montgomerie, who was the applicant’s psychotherapist, and (4) testimony of the applicant and FC.

VOC Report

[218] In my view, the only reliable evidence about the children’s views and preferences is the VOC Report, which was completed in January 2021. Mr. Norton, who prepared the report, has training to extract and report on the children’s views in a neutral and objective fashion. I give significant weight to his report. I copy the relevant portions that speak to the children’s views about where they would like to live:

[VG] informed that his mother has expressed that if he lived with her in Niagara that he would see his father during winter breaks and more during the summer. [VG] expressed that he thought Niagara was ‘pretty good,’ but that he would miss his father if he lived there all the time. He further stated that if this were the case that he would call his father every day after school.

[VG] expressed that his father has told him that it was up to him to ‘choose where I want,’ and that to ‘just be honest.’ He further stated that his father has expressed to him ‘don’t worry’ because he will ‘always be his dad’ and loves him.

[VG] acknowledged that part of him would really like to move, but at the same time, he didn’t want to. He further acknowledged that he likes being in Niagara, but that he also wants ‘to see dad to[o].’ He expressed that he felt ‘fifty-fifty’ about moving, and that he ‘would like to stay with mom and dad.’ He further stated that he also ‘really would like to stay at [his school].’

[VM] informed that currently he lives with his mom for a week and then his dad for a week. [VM] expressed that his mother ‘doesn’t like to spend a week without’ him and his brother. [VM] acknowledged that sometimes during the week he misses his father and mother. He stated that was ‘usually in the middle a little bit.’

[VM] described the alternating week schedule as ‘annoying,’ stating that he has to ‘pack and bring stuff, chill, pack, and chill’ and that he ‘moves a lot.’ Further, that sometimes the drive from Niagara to Toronto can be ‘tiring,’ but that it was ‘ok.’

[VM] informed that at his mother’s residence he also resides with [FC], whom he described as ‘nice.’ He further informed that he had a younger brother and sister, and that he has ‘fun with them,’ but that sometimes it was ‘annoying.’ [VM] informed that at his father’s residence he resides with [NS] and [M].

[VM] expressed that he believed his parents ‘get along a tiny bit.’ He further stated that he did not know what his parents thought of each other and expressed that ‘I don’t hear it.’

[VM] stated that he thought he was moving to Niagara, but didn’t know when because he was ‘not a judge.’ [VM] expressed that he wanted to live in Niagara and that there was ‘fun stuff’ there, including a ‘good ice cream shop’ and a ‘secret beach.’ [VM] expressed that he assumed that his father didn’t want him to move to Niagara. He further expressed that this was because ‘he will miss me.’ [VM] acknowledged that if he moved, he would also miss his father. [VM] stated that it was a ‘hard choice to choose where to live.’

[219] I assess VM’s view of where he would like to live considering my previous finding that the applicant exerted pressure on the children about where they wanted to live. VM reported to Mr. Norton “that he thought he was moving to Niagara, but didn’t know when because he was ‘not a judge.’” This suggests to me that the applicant had already influenced VM’s view. I am also concerned that VM is assuming the role of a parent, to protect the applicant, because VM expressed that his mother “doesn’t like to spend a week without” him and his brother. It is not the responsibility of a child to protect a parent’s wishes.

[220] The most critical part of both children’s reported view, in my view, is that they would miss each parent when they are not with them.

CAS Records

[221] I do not consider CAS records to be reliable indicators of the children’s views and preferences for two reasons.

[222] First, those views were reported to CAS workers while the children were in the applicant’s home, and I am concerned that the applicant influenced the children’s views just prior to the children reporting their views. This conclusion is supported by the following notes recorded in CAS records:

a. On August 27, 2021, the FACS worker reported that the applicant and VM were waiting on the driveway for the worker to attend a scheduled visit. At that visit, the note reads: “Without prompting, [VM] told me that he would like to live with him (sic) mom all of the time and visit his father less.”

b. On December 29, 2021, a FACS worker reported on her discussion with VG. The note reads: “When asked if he had any questions or wanted to tell us something, [VG] said that his mom told him that this may be the last time he is speaking to someone so he should let them know where he would like to live. [VG] said that he would like to live at mom's house and that he would spend time at [the respondent’s] but primarily be at mom's.

[223] Second, I am concerned that the applicant sought to engage CAS workers and records for the purpose of providing a one-sided perspective of the views of the children in these court proceedings. At a visit with the applicant on September 30, 2021, the record from FACS states that the applicant also advised Ms. McNaughton “that she believes she will lose custody of her children and become a ‘weekend mom’ if FACS does not take a position at their February trial.”

[224] In my view, the applicant was engaging CAS to provide a function that the parties had already agreed would be performed by Mr. Norton because she was unhappy or concerned about the VOC Report. According to FC’s testimony, when the VOC Report was received, the applicant interpreted it as VG wanting to live with the respondent, and as a result, she would speak with VG regularly, at least monthly, to understand his decision and wishes. What the FACS record of December 29, 2021 shows is that more than just trying to understand VG’s wishes, she encouraged him to share his view with FACS workers for the purpose of this litigation. Such evidence, in my opinion, should be given little to no weight.

[225] I can understand why both parties would want evidence that accurately reflects the views of the children. However, the CAS records include strong indicia to support the conclusion that those views were influenced by the applicant to influence the outcome of this litigation (e.g., VM’s views were offered unsolicited to CAS workers, and VG’s views were prefaced by “my mom told me this would be the last time to speak to someone about where I wanted to live”).

Evidence of Joan Montgomerie

[226] The third source of the children’s views came from Ms. Joan Montgomerie.

[227] Ms. Montgomerie is a psychotherapist who has had individual sessions with the applicant, and at various points, the applicant brought the children to some sessions, which were held in person or virtually due to the COVID-19 pandemic. I have given little to no weight with respect to Ms. Montgomerie’s observations of the children’s views for the following reasons:

a. The respondent did not give his consent for the children to attend any sessions with Ms. Montgomerie; the applicant alone took the children to these sessions. Ms. Montgomerie did not interview or meet with the respondent to have a complete understanding of the family dynamics before she met with the children, although she had met with the applicant individually and was aware of her perspective. This gives a perception that the children may have been manipulated or that Ms. Montgomerie’s observations were distorted by the applicant’s views.

b. Only in a handful of Ms. Montgomerie’s notes did she record what the children said to her directly. In her examination in chief, she noted that a lot of her notes reflected her impression of what the children were saying to her.

c. She stated in her examination in chief that VM only had sessions with Ms. Montgomerie while the applicant was present. She resiled from that position during her cross-examination, and I am not satisfied that her recollection of whether the applicant was present or not was accurate. The notes reflect that at least during the Zoom sessions, the applicant was present. The fact that the applicant was present for any of these sessions implies that some influence may have been exerted on the children.

d. She acknowledged that she often had several iterations of the same note and that they were not always prepared contemporaneously. This leads me to suspect the accuracy of her notes.

e. It was apparent to me that many of her responses appeared to demonstrate a bias in favour of the applicant. For example,

i. She admitted on cross examination that she was “not entirely impartial”. I would agree with this assessment based on many answers she provided during her testimony. She said that she believed that the children were being coached by the respondent and denied that the applicant could have coached the children. Later she said that it was highly likely that it was the respondent who was influencing the children, and only later accepted that the children could be hearing about this dispute from both households. She admitted that she did not ask the children about whether either parent was coaching the kids. She also admitted that when she discussed a parenting time proposal with the children, the children could have only come to learn of one proposal (i.e. being with the respondent three weekends per month) from the applicant.

ii. She gave the opinion that the grandparents could still have a close relationship with the children if they had video chats or if the grandparents visited Niagara. This is the position the applicant took during trial. I am concerned that Ms. Montgomerie formed this opinion without speaking with the children’s grandparents or with the respondent. An understanding of the nature of the relationship between the children and their grandparents, in my view, required that Ms. Montgomerie appreciate the nature of that relationship by speaking with the grandparents before giving her opinion.

iii. She often gave evidence that favoured the relocation to Niagara. She testified that now that the home in Niagara has been purchased, the children have seen the school, and the children would like living in Niagara, “we should let it happen.” However, she had not met with the respondent, his grandparents, or others to weigh or assess what the children would be giving up by leaving Toronto. She acknowledged that it was the applicant alone who had set the foundation for the move to Niagara.

iv. She gave the opinion that, at one visit, the younger child was seeking to avoid discussing a traumatic event that allegedly occurred while the children were with the respondent and he was instead discussing other things. Ms. Montgomerie saw this as an attempt to avoid discussing the traumatic event. However, Ms. Montgomerie assumed that the traumatic event as reported by the applicant to her had in fact occurred. Her assessment of the situation, in my view, was strongly influenced by what the applicant alone had conveyed.

[228] I appreciate and respect Ms. Montgomerie’s desire as a clinician to assist these children work through difficult emotions. However, her evidence is so clearly grounded on the applicant’s version of facts and can have unintended consequences for the children. The problem was compounded by the fact that Ms. Montgomerie was also the applicant’s psychotherapist, and because she did not have the respondent’s consent or obtain his perspective. For these reasons, Ms. Montgomerie’s evidence cannot be relied upon by the Court as a reliable reflection of the children’s views.

Evidence from FC

[229] FC gave considerable evidence of the children’s views. While I found FC’s evidence to be truthful and reliable, it contains significant indicia that any views reported by the children were influenced by the applicant.

[230] According to FC, when the VOC Report was received, the applicant interpreted it as VG wanting to live with the respondent. At this point, according to FC, the applicant would speak with VG regularly to understand his decision and wishes, but not with the intention of changing his mind. FC testified that she did this at least monthly, but sometimes the topic came up organically in response to questions raised by the children about where they were going to school next year. FC then testified that the applicant called FC into a room and said that VG wanted to share something. VG then told FC that he wanted to reside in Niagara. The applicant then told the child he had to tell his father, and she provided him with her phone so that he could text his father of his decision. VG did as he was told and, according to FC, carefully drafted a message.

[231] Then, when the children returned to the care of the applicant after being with the respondent, the applicant would ask the children what their father said. FC testified that this was in the summer of 2021. The children came back and said, “Papa said no.” The children then asked their father a second time, and reported to the applicant that he still said no. On the third return to the applicant’s home, the children reported to the applicant that “Papa still says no and to stop asking.” It was FC’s evidence that because of this change in the children’s position that the applicant wanted an updated VOC Report.

[232] As stated, I am satisfied that the applicant exerted undue and inappropriate pressure on the children around this issue, such that any evidence of the children’s views reported from sources other than the VOC Report, must be discounted. The applicant was in a position to influence the children. While her intentions may have been genuine, she must understand that she was not neutral on this issue.

[233] The relocation and this legal proceeding were the subject of discussions in her home, and the children may well have fully understood or at least inferred that it was the applicant’s strong preference that the children reside primarily with her. Therefore, I cannot conclude that the children’s views were arrived at independently and that they were not influenced by a desire to please their mother.

[234] The fact that the applicant directed VG to text his father of his decision on the day the decision was made, and that VG then spent several minutes composing a text message before sending it to his father, evidences that there was pressure exerted on the child with respect to this communication. The fact that the children were repeatedly asked, after successive visits with their father as to his position, further suggests that the applicant placed the children in an impossible and inappropriate position.

[235] There is evidence of other factors that may have influenced the children’s views as reported to the applicant. First, FC testified that the applicant was not as strict with rules in her home, because she reasoned that this was “not the right time” to be hard on the children. According to FC, she wanted to keep things light and happy in her home while this litigation unfolded. This deviation from usual parenting may well have impacted the children’s views as to where they would prefer to live, and likely resulted in parenting decisions by the applicant that were not in the children’s best interest.

[236] Second, FC testified that VM was very protective of his mother. If so, I question whether his desire to live with his mother was informed by a view that his mother needed protection, especially since the applicant had discussed this proceeding with the children. I have already stated that children should not be in the position of having to protect their parents.

[237] Third, the children were living in a spacious home in a lovely community in Niagara. The applicant admitted that at least for a few months, and likely for as many as 10 months, she had relocated there without a court order or consent. The VOC report suggests the home in Niagara was a factor that influenced the children’s views. One child reported the Niagara “house was bigger and had a big back yard”; the other said “he wanted to live in Niagara and that there was ‘fun stuff’ there, including a ‘good ice cream shop’ and a ‘secret beach.’” When compared to sharing a single bedroom with their mother in a shared apartment once she resumed a residence in Toronto, logic suggests that any child would be influenced by how much “better” things were in Niagara. These factors should not be permitted to influence a child’s views, especially when it is a product of a party knowingly defying a court order. While I am not entirely discounting the children’s views on this issue, what is in the best interests of children should not be determined by the size of a parent’s backyard when at jeopardy is the loss of strong relationship with the other parent.

[238] For these reasons, I place little to no weight on the children’s views and preferences as reported by FC in his testimony.

f. Children’s cultural, linguistic, religious and spiritual upbringing and heritage

[239] The children are of Russian / Ukranian heritage. The parents speak Russian. They are also Christian. There was some limited evidence of the respondent teaching the children about Russian history. In this case, as both parents are of the same heritage, this factor has little impact on any parenting order I make.

g. Plans for child’s care

[240] I have already discussed the applicant’s intention with respect to her employment and the children’s care should the children relocate to Niagara. She has identified a school they would attend. I am satisfied from her testimony that she would likely have regular daytime working hours and could care for the children after school, except if she chose to work overtime as she cites as a reason for the relocation, which I have also discussed.

[241] I have discussed the hours that the respondent generally works and expect that he would continue to be involved in their daily care if the children’s residence remained in Toronto. The grandparents would also continue to play an important role in the children’s upbringing, especially now that they are retired. I am satisfied that both parties have appropriate plans for the care of the children.

[242] In terms of schooling, the applicant has identified a school in Niagara where the children would attend. If the children’s school remains in Toronto, the parties will have to determine very shortly which middle school VG will attend in September 2022.

[243] I find that there would be better supports for the children in Toronto as compared to Niagara. In addition to the continued care from the grandparents and the regular opportunities they would continue to provide to the children, the children have friends, routines and extra-curricular activities in Toronto. In Niagara, I accept that new supports and activities could be developed, but it would represent a marked departure from the established supports in Toronto to which the children are accustomed.

h. Ability and willingness of the parties to care for and meet the needs of the children

[244] Both parties are willing to care for and meet the needs of the children. I have already mentioned the parties’ different strengths in terms of their ability to parent. There are areas in which I believe each party could improve upon their parenting abilities.

[245] I respect the respondent’s views on how boys should be raised in his Russian tradition. At the same time, I am concerned that there are times when the respondent lacks capacity to respond to the children’s emotional and psychological needs. He testified that he has an open-door policy when it comes to listening to concerns of the children. From his evidence, I accept that he will always listen to his children’s concerns and will work with them to find solutions to whatever may be bothering them.

[246] However, I am also satisfied from the evidence that he has sent the children to their room when they are crying, and that he has sent a message to them that it is not okay to cry. While he may be able to understand the distinction he described between “hysterical cries” and other cries, that distinction may be lost on the children. The children reported to CAS workers that they are “not allowed” to cry, full stop and without distinction. As such, they likely perceive it is never okay to express certain emotions, which can lead to negative mental health consequences now and in the future. I conclude that there is a risk of emotional harm to the children if they form a view that it is unsafe to express their emotions in front of their father.

[247] In my view, it is critical that the respondent better understand current social and psychological understanding of children’s emotional and mental health, and that it is in the children’s best interest that he acquires skills to better respond to their emotions.

[248] There was also evidence of the respondent not allowing the children to own pink things. The respondent explained that he never disallowed them from owning or wearing pink items, but if it was going to be a source of ridicule among the children’s peers, his view was to eliminate the problem. Again, the respondent’s approach to this issue may not reflect current psychological thinking about supporting a child’s individual identity and helping children develop a capacity to resolve conflict independently.

[249] For these reasons, I believe that the respondent’s parenting would be improved were he to attend a program like the Caring Dads program, which strives to enhance the safety and well-being of children by examining how men father. At trial, the respondent remained of the view that he did not need to attend such a program. In his words, “you do not put a cast on an arm that is not broken.” I understand why the respondent believes he does not need this program. He may have rejected participation in such a course out of concern with how it may impact this litigation. In my view, he is a good father, and this program can assist in making him a better father.

[250] Finally, I believe both parties would benefit from new skills on how to co-parent effectively. From the applicant’s perspective, she needs to understand the consequences of engaging the children in her feud with the respondent, and ways to resolve conflict with the respondent in the future. From the respondent’s perspective, he must use improved communication skills with the applicant, perhaps through a co-parenting communication tool like Our Family Wizard. I discuss communications in the next section.

[251] There are many co-parenting programs available that would benefit these parties. Families in Transition offered by Family Service Toronto offers one co-parenting program.

[252] With these supports, I am satisfied that the current ability of both parties can be improved.

i. Ability and willingness to communicate and cooperate

[253] In terms of their ability and willingness to communicate and cooperate, there remains work for both parties, and notably with the respondent.

[254] Many text messages were introduced into evidence. From 2019 onwards, most exchanges were practical, civil, accommodating, and cooperative. However, when there were disagreements, sometimes over trivial matters, the text messages sent by the respondent to the applicant were sometimes rude, accusatory and disrespectful of the applicant. The applicant’s evidence was that when she discussed matters over the phone with the respondent, the respondent’s manner of communication was even worse. If the tone and content of his text messages is an indicator, on a balance of probabilities, it is more likely than not that this is true.

[255] The applicant’s text messages rarely fell to the same level. To her immense credit, she did not take the bait of a fight even when prodded by the respondent.

[256] However, there were instances when the applicant was unwilling to cooperate, and she flatly rejected certain reasonable requests by the respondent. For example, the parties had sensibly negotiated as part of their separation that the children would spend Thursday overnights in the other party’s home to ensure the children’s absences were not too prolonged from the other parent. This made good sense when the children were younger. When they were older, the applicant was unwilling to change the parenting schedule to eliminate this Thursday swap. There was a further disagreement about the respondent’s request to have an extended summer holiday with the children so that he could travel to Europe with the children. The applicant’s refusal to accommodate this request may have also been unreasonable. In my view, these were not unreasonable requests. Attempts to resolve conflicts, as opposed to an outright refusal, could have benefited the parties’ co-parenting relationship.

[257] Further evidence of her unwillingness to cooperate was her unilaterally registering the children in a school in Niagara, and moving there without consulting the respondent.

[258] For these reasons, I believe both parties should attend a co-parenting program to find ways to improve their communication and ways to resolve conflict, and that they use a communication application like Our Family Wizard to improve their co-parenting communication.

j. Family violence and its impact on (a) the parties’ ability and willingness to care for and meet the needs of the children, (b) the appropriateness of an order requiring parties to cooperate.

[259] Evidence of family violence was received at trial but which was not alleged in the pleadings. In none of the applicant’s motion material did she address family violence perpetrated by the respondent to the applicant. Nor was it included in her original application filed in 2018, or her consent motion for a final order submitted in 2019.

[260] With the amendments to the Divorce Act, Parliament has given clear direction that judges are to consider family violence and its impact when assessing the best interests of the children, and when making parenting orders. This recognizes the profound effects all forms of family violence can have on children, directly if children have been exposed to family violence, or indirectly if the victimized parent’s physical, emotional and psychological well-being are compromised: see McBennett v. Danis, 2021 ONSC 3610, at para. 86.

[261] There can be many reasons why a spouse may not wish to disclose allegations of violence in initial court filings while they await a hearing. The allegations may instigate further violence. The time between filing and the hearing may provide opportunities for further violence to unfold. The violence may take many forms. It may include physical, emotional and psychological abuse, as well as coercive and controlling behaviour such as non-payment of child support as a means to financially coerce the opposing party.

[262] For these reasons, it is incumbent that the court provide flexibility to those alleging violence while at the same time, ensuring there is sufficient and timely disclosure to ensure that a trial unfolds fairly and without surprise. This is consistent with r. 2 of the Family Law Rules which states that the primary objective of the rules is to enable the court to deal with cases justly.

[263] The applicant testified about prior abuse in her relationship with the respondent and the related fear she experienced towards the respondent. Most of this evidence related to conduct by the respondent that occurred prior to their separation, or at least prior to the separation agreement and final order in 2019. Respondent’s counsel objected to the purpose for which this evidence was being adduced. The applicant was testifying that she felt coerced to agree to the terms of the 2019 final order, based on the prior violence she endured. It appeared she was arguing that the 2019 final order should therefore be set aside on the grounds of duress. If that was the case, there were two problems.

[264] First, the trial before me as set out in the motion to change was not a motion to set aside the separation agreement and final order on the ground of duress. Second, Mr. Richard, who represented the applicant in the preparation of the separation agreement was also representing the applicant at trial on a limited scope retainer. He would be a likely witness. Following a break, Mr. Richard confirmed that the applicant was not seeking to set aside the final order due to duress; the evidence of past family violence was being adduced for the purpose of considering it in the context of the best interests of the child analysis under the amended Divorce Act provisions in s. 16.

[265] The applicant’s allegations of prior family violence were largely those she recounted to a domestic violence worker, and which were reported to Ms. Williamson of FACS, as found in the FACS record from September 15, 2021. I identified those allegations earlier in my reasons.

[266] There were other incidents of family violence on which the applicant gave evidence. If accepted, it tended to show that the respondent was controlling and emotionally abusive. She entered into evidence an English translation of an email in Russian the respondent had sent to the applicant on October 26, 2011 with explicit instructions on how she was to maintain the home, care for VG, and tend to her own hygiene. One line reads, “Please wash yourself more thoroughly; you are not always fresh when you get out from the shower – sorry that I am telling you that.”

[267] She recounted that there were often arguments when she lived with the respondent, and that he would often yell and call her names. She recounted that on the day of the birth of their second son, VM, she and the respondent were home and an argument escalated. She was crying and the respondent was not stopping. She went to the washroom, and she felt something was wrong. She realized she was bleeding, although their baby was not due for another few weeks. She wanted to go to the hospital alone, but the respondent insisted on coming. They asked the respondent’s step-father, WT, to watch VG, and then they both went to hospital.

[268] She further testified that, as they were discussing the formal separation agreement, the respondent would insist that she hand him or leave behind her phone so that she could not record their conversations.

[269] In 2017, the parties were exchanging texts about his request to take his summer vacation with the children over a 1-month long period to allow him to travel to Europe. In one of his responding texts to the applicant, he wrote:

In addition, you mentioned today that I should be nice if I want to spend 1 month of vacation during summer with kids… If you go this road, I will go into war with you over kids, money, your job, etc. I will wipe you or get wiped… As simple as that.

[270] She also said that she had fears based on the respondent’s threats and behaviour, and because he knew her skeletons. At trial, she admitted that she and the respondent had engaged in insurance fraud, that she had worked in a massage parlour, and that she had been a victim of sexual abuse as a teenager. She was concerned that the respondent would use this information as a tool to blackmail her. For this reason, the supplementary agreement to the separation agreement was drafted which give her financial protection in the event the respondent disclosed “harmful information” about the applicant, and to deter the respondent from disclosing it.

[271] At trial, she also argued that in breach of the supplementary agreement, the respondent must have told WT about her prior sexual abuse, which WT had reported to CAST.

[272] She further alleged that the respondent’s non-payment of child support for 10 months was him following through on a threat of financial coercion.

[273] The respondent denied these allegations.

[274] He explained that the reference to “wipe you or get wiped” was in reference to the financial cost of litigation, and that one of the two would be financially “wiped” at the conclusion of trial. He reasoned that a lot of their disagreements were because the applicant would rarely follow through on her commitments, and that her responses and reactions to reasonable proposals were not what a “normal” person would do. As explained earlier, he said that the non-payment of child support was not him following through on a threat; it was that he was trying to sort out things with FRO. He also denied sharing with WT information about the applicant being sexually abused.

[275] WT gave evidence on some of these matters. He also denied that the respondent had told him about the applicant being sexually abused. He said that when he reported this to CAST, it was only a suspicion because of what he knew about her upbringing and that she left home at a young age. He explained that he was concerned about the children and reported it because he understood that victims of sexual abuse often go on to abuse others. Ms. Kalpa Patel, the CAST worker who received WT’s call, provided an affidavit in which she confirmed her duty to accurately record information given to her in CAST records, and that prepared the CAST record of WT’s call. The CAST record states that WT reported that the applicant “has a history of sexual abuse.”

[276] In my view, whether WT reported this to CAST, and whether the source of his information was the respondent, has little to no bearing on parenting orders I am required to make. To the extent it is relevant, the best evidence before me is the evidence of WT who explained his rationale and intention for the statement he made to CAST. I found his evidence credible, and I accept his explanation.

[277] With respect to the alleged fight on the day of VM’s birth, WT gave evidence of attending at the home. He testified that the mood was “happy” and “lovey-dovey” when he arrived. He said he came to babysit VG because the parties went out for dinner. Later, he took a photo of the parties on the same day as they left to go to hospital. The photo appears to show the parties happy and smiling. He said that everything appeared to be “great”. Again, I found his evidence to be credible and prefer it over the applicant.

[278] I have carefully considered how to address the allegations of family violence. On a motion to change a final order, a judge must consider what circumstances have changed since the final order was made. For this reason, I am reluctant to consider allegations of family violence that occurred before the final order was obtained in 2019, except if those allegations evidence a pattern of continuing family violence relevant to any new parenting order. By examining family violence, courts can correct power imbalances as between parties when making parenting orders. However, the court must assume that those issues were properly dealt with at the time the original order was obtained, except in cases where one party seeks to set aside the original order due to duress, which is not the case before me.

[279] I am not satisfied that there is an on-going power imbalance that would cause me to consider allegations of family violence that occurred before 2019. I note that the applicant was represented when the final separation agreement was signed. That agreement attaches a certificate attesting to the fact that the applicant received independent legal advice and that she was not signing the agreement under duress. In contrast, the respondent was not represented. The supplementary agreement, attached to the separation agreement, gives the applicant additional financial protections should the respondent disclose “harmful information.” She admitted to not maintaining a residence in the GTA without the respondent’s consent (or consultation), contrary to her separation agreement and court order. She took the children to therapy, without the respondent’s consent, yet she accused the respondent of enrolling the children in a swim program without her consent. She enrolled the children in a school in Niagara, without the respondent’s consent. Her husband, FC, testified that the applicant told him that the respondent would never take this issue to trial because his girlfriend would not support spending money on this trial. In much of her email and text communication with the respondent, she would assert her own position on issues in dispute. None of these facts support a conclusion that she is living in fear of the respondent; rather it shows that despite the certainty of the agreements reached with terms favourable to her, she had taken unilateral steps to assert her own wishes.

[280] I do, however, consider the impact of any direct family violence on the children in the context of a parenting order, and in this case, coercive or controlling behaviour that constitutes harassment, psychological abuse or financial abuse and the extent to which the children may have been exposed to such conduct since 2019 (see definition of “family violence” in s. 2(1) of the Divorce Act).

[281] As I have already found, the instances of physical harm to the children have been minor and limited to a few instances in the context of physical discipline. I am not satisfied that these instances are sufficiently serious, that they have occurred often, or that they will be repeated.

[282] I have considered the tone and content of the respondent’s communication to the applicant. As I found, several were rude, accusatory and disrespectful of the applicant. He engaged in sarcastic comment and in one exchange, described her conduct as “pathetic.” After having carefully considered all of the respondent’s communication, I cannot conclude that the frequency or content of the respondent’s communication rose to the level of harassment or psychological abuse. While a handful were offensive and angry, those texts arose and were limited to the context of specific disputes the parties were having. There were many communications between the parties that were civil, cooperative and practical. In my view, they do not constitute a pattern of harassment or psychological abuse.

[283] I have addressed the issue of the respondent’s non-payment of child support for ten months and found that it was not in response to a threat or a form of financial coercion, but because he was working to resolve things through FRO.

[284] There was evidence of the children being exposed to violence while on a trip to Mount Tremblant. As the respondent and NS were packing their car to leave, VG, VM and M were playing in a pile of snow. M was using a ski pole to push snow aside, and he accidentally poked VG in the mouth and chipped VG’s tooth. The applicant heard a version of what happened from the children. According to the applicant, the children reportedly told her that the respondent wrestled M to the ground, he yelled and swore at M, and he yelled with profanities at NS and M for hours on the drive home to Toronto.

[285] The respondent and NS testified about this. The respondent stated he moved M away in the snow, and possibly quickly, because he wanted to get to his son, and then he tried to calm VG down. He did not raise his voice at NS or M. He testified that he lectured M about how this accident could have been prevented. He admitted to having an argument with NS about the appropriate punishment for M on the drive home which lasted no more than 30 minutes. NS gave similar corroborating evidence. I accept their evidence as truthful. It has an air of reality and is proportionate to the incident. In any event, they were the only witnesses who saw what occurred and I prefer it over the hearsay evidence from the applicant.

[286] There were other allegations that came up at trial, including an allegation that the respondent swears at the children or calls the children stupid or fools, and that the respondent and NS constantly argue in front of the children. The evidence of this came from what the children had reported to CAS workers. The evidence of the respondent, NS, and WT does not support these allegations. The respondent admitted that he has raised his voice at the children, but that he has not screamed or swore at them. He also admitted that he may have used a phrase, “are you stupid to do anything like this?” but he has not called them stupid or fools. He also acknowledged that he and NS have disagreements at home, but they are normal. NS and WT both testified that they have not seen the respondent swear at the children or call them stupid or fools. NS stated that the respondent does not yell or swear at her. In my view, there is insufficient evidence to establish that the respondent swears at his children or calls them stupid or fools. I am satisfied that there have been disagreements between the respondent and NS in front of the children, but there is insufficient evidence for me to conclude that this is a constant dynamic or significant parenting concern in this case.

[287] For these reasons, I am not satisfied that there has been continuing direct or indirect family violence since the final order was obtained. To the extent that there have been incidents of family violence since 2019, they have been minor and not sufficiently serious to merit a change to the parenting order in place. I do not condone the few and minor incidents of physical discipline or arguments to which the children have been exposed. However, in my view, the harm to the children of a significant reduction in parenting time with the respondent is far greater than the limited and minor incidents of family violence to which the children have been exposed. I am also satisfied that those incidents are unlikely to be repeated.

E. Conclusion on Relocation and Parenting Orders

[288] For the reasons given, the applicant’s motion to relocate with the children to Niagara, to give her sole decision-making responsibility, and to alter the parenting schedule such that she has the bulk of the parenting time is denied.

[289] The respondent’s motion, for him to have sole decision-making and the bulk of parenting time, presupposes that the applicant will live exclusively in Niagara. Her evidence at trial was that if her motion to relocate was denied, she did not know where she would live. Accordingly, I decline to grant the respondent’s motion. During trial, the applicant indicated that the Niagara home was used as a cottage at one point. It is my hope, for the children’s well-being, that she will find appropriate living accommodations in Toronto, and keep the Niagara home as a cottage as she intended.

[290] There is sufficient conflict between the parties such that they are unable to make decisions cooperatively that are in the children’s best interests. Previously, they were able to resolve and agree on issues such as the children’s school, their extra-curricular activities, and medical care. They are no longer able to do this. There is also evidence of emotional difficulties that VG has because of the parent’s conflict around relocation. In my view, these are material changes in the circumstances of the children that have occurred since the final order of 2019. As a result, and pursuant to s. 17(5) and (5.3) of the Divorce Act, I am satisfied that it is appropriate to make a variation order.

[291] I make the following orders (with reasons unless already provided), which in my view, are necessary in the best interests of the children which vary the final order of Paisley J. in certain respects:

a. Paragraph 11 of the final order with respect to joint decision-making is terminated. I have considered the principles governing when a joint decision-making order should be made, summarized thoroughly in McBennett, at para. 97. In my view, an unworkable outcome would result for the children if this aspect of the order were not vacated. The respondent has indicated an intention to move; the applicant’s future home in Toronto is uncertain; decisions about schooling and extra-curricular activities will need to be made, as will decisions around the children’s mental health supports. With a week-on-week-off schedule, extra-curricular activities will likely fall on the same day/night of each week and on the other’s parenting time. The opportunities for conflict are ripe. I have also considered the evidence at trial, the parties’ recent inability to agree upon matters, and the likelihood of those conflicts escalating beyond being uncomfortable or difficult. They would be unworkable. Accordingly, I make the following orders around decision-making:

i. The applicant shall have sole decision-making with respect to medical, dental and mental health needs of the children. In exercising her decision-making, she shall follow the medical, dental or mental health advice of the treating physician or counsellor. Those service providers shall be in Toronto. She shall consult the respondent before making decisions and shall promptly advise him of any decisions made. This does not preclude the respondent from taking the children for urgent or immediate medical, dental or mental health appointments, as required. The respondent shall be entitled to meet with physicians, dentists, mental health providers, and to obtain information/records from them.

ii. The respondent shall have sole decision-making with respect to education and extra-curricular activities. He shall consult with the applicant and children before making decisions and promptly advise the applicant of any decisions made. The children may each be scheduled in one extra-curricular activity that falls of the applicant’s regular parenting time, and more than one if the applicant consents. The respondent shall not schedule the children in educational or extra-curricular activities on the applicant’s vacation time. In selecting the children’s school and extra-curricular activities, the respondent shall consider and have due regard to the extent those decisions will impact the applicant’s parenting time, her work schedule and the time required for her to commute the children to school and other activities on her parenting time. The applicant shall be entitled to meet with educators and extra-curricular program staff, and to obtain information and records from them.

iii. The children shall remain of the Christian faith. Both parties shall encourage the children to participate in such religious activities as the children wish.

b. Paragraphs 3 and 4 of the final order are vacated to eliminate the Thursday night swap between households. The regular schedule shall be a week-on-week-off basis as set out in paragraph 2 of the final order. The children, in my view, are of an age and maturity level where they can withstand weeklong absences from the other parent. Furthermore, I think it is in the children’s interest and more convenient for them to minimize the number of swaps between homes by eliminating this mid-week swap.

c. I make no adjustment to the vacation schedule in paragraphs 8 or 9 of the final order, other than order that during the summer vacation months, the parties may each take up to three consecutive weeks of vacation to accommodate travel outside of Canada, on consent of the other party, which consent shall not be unreasonably withheld. For clarity, if one party has three consecutive weeks of vacation, the other party is also entitled to have three consecutive weeks of vacation in a given summer; nothing in this order detracts from the equal sharing of vacation time.

d. Paragraph 6 of the final order is amended such that neither party shall change the children’s place of residence outside the boundaries of the City of Toronto, rather than the GTA. For reasons already given, travelling distances within the GTA, should any party decide to live at one extreme of the GTA, would result in unmanageable commuting times that are not in the children’s best interests.

e. The children shall attend a minimum of three sessions of counselling with Jared Norton, or if he is unavailable, a social worker or psychologist in Toronto who has expertise in child counselling as selected by the applicant. The children shall attend such further sessions as recommended by the counsellor after consultation with the parties. Any uninsured cost of the sessions shall be paid for proportionately by the parties based on their imputed incomes of $82,000 (applicant) and $150,000 (respondent). The counselling sessions shall be closed and the counsellor nor his/her records shall be admissible in a court proceeding. A copy of this decision shall be provided to the counsellor.

f. The respondent shall register for and attend the next available program offered by Caring Dads.

g. Both parties shall register and attend a co-parenting workshop offered by Families in Transition Program of Family Services Toronto. They may agree to attend another co-parenting program. The parties shall not attend the same co-parenting program at the same time.

h. Both parties shall communicate through Our Family Wizard or such other communication application as agreed upon by the parties. In cases of medical or other emergency, they may call or text the other party. When communicating with each other, neither party shall engage in name calling, sarcasm, or use derogatory or threatening language.

i. When communicating the outcome of this decision to the children, and at all times in their communication with the children, neither party shall speak in a negative, disparaging, or condescending way about the other party.

F. Costs

[292] The parties are encouraged to agree upon costs. If they are unable to agree, parties may deliver a maximum of 5 pages in written submissions, with any attachments they see fit. The respondent shall deliver his cost submissions within 14 days, the applicant shall deliver hers 14 days thereafter, and the respondent shall deliver reply submissions (if any) 14 days thereafter.

Justice Mohan D. Sharma

Date: April 22, 2022.

[^1]: See Government of Canada, “The Divorce Act Changes Explained – Variation, rescission, suspension” (last modified 07 March 2022), online: Government of Canada <www.justice.gc.ca>.

[^2]: Rollie Thompson, “Legislating About Relocating Bill C-78, N.S. and B.C.” (Paper delivered at 28th Annual Institute of Family Law Conference 20, Quebec, 5-6 April, 2019), at p. 33.