Court File and Parties
COURT FILE NO.: 4635/20 DATE: 2022-05-11 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: RYAN DAVID POLUCK Applicant – and – LINDSEY CLAIRE POLUCK Respondent
Counsel: Jasmine Gassi Harnden, for the Applicant Murdoch Carter, for the Respondent
HEARD: March 7, 8, 9, 11, 2022
Varpio J.
Reasons for Decision
Overview
[1] The applicant father (the “Father”) and the respondent mother (the “Mother”) met while videogaming in 2011 or 2012. The Mother resided in Schaumburg, Illinois, which is a middle-class suburb of Chicago. The Father resided in Sault Ste. Marie, Ontario. They visited each other on two occasions and, in November 2013, the Mother moved to Sault Ste. Marie. They were married in August of 2014 and had a child, Gavin Paul Poluck, who was born in Sault Sainte Marie, Michigan on May 16, 2016. Gavin is a dual citizen of both Canada and the United States.
[2] The parties lived in a house which is located close to the Father’s parents’ house. The Father has a child from a previous relationship named Tucker. Tucker is 11 years old. At the time of separation, Tucker lived with the Father and Mother every second week.
[3] In July 2020, during a lull in the COVID pandemic, the Mother went to visit her family in Schaumburg. A few days into the trip, she contacted the Father and advised him that she wanted to separate and that she intended to remain in Schaumburg with Gavin. The Mother attempted to arrange parenting time for the Father, but implicit in her communication with the Father was the fact that Gavin would return with her to Schaumburg.
[4] In September 2020, the Mother brought Gavin to Sault Ste. Marie to see the Father. The Father refused to return Gavin to the Mother. The Father brought this application, and the matter was heard by me on an interim basis whereby a three-month rotating parenting time schedule was imposed. Gavin is currently living in Sault Ste. Marie with the Father until July 31, 2022, when he is scheduled to return to the Mother’s care.
[5] I heard a four-day trial in this matter dealing with decision-making, parenting time, relocation and ancillary issues. Based upon all of the evidence before me, and considering the entirety of the situation, I hereby find that it is in Gavin’s best interests to reside permanently with the Mother in Schaumburg. I also find that it is in Gavin’s best interests for the Mother to have decision-making authority for Gavin. I finally find that it is in Gavin’s best interests for the Father to enjoy a robust parenting schedule.
The Evidence
The Evidence Called by the Father
Mr. David Poluck (the “Grandfather”)
[6] The Grandfather testified that he is the Father’s father. He owns Northern Jewelers and other local businesses. He has two grandchildren, Gavin, and Tucker. The Grandfather testified that he helps out with his grandchildren. Gavin is stubborn and argumentative, but also kind and smart. Gavin has a fascination with gems. He knows their colours as well as their Latin names.
[7] Tucker and Gavin have a good relationship, although there is competition between the two. The last time Gavin was in Sault Ste. Marie, Tucker shoved Gavin’s head into a window.
[8] Gavin looks up to his brother, as there is a six-year age gap between the two. Tucker misses his brother. Gavin and Tucker enjoy going to camp, walking through the bush, and doing other nature-related functions.
[9] Gavin is closer to women than he is to men.
[10] The Grandfather indicated that his son is a good father, although he is not a “huggy-type”.
[11] The Grandfather testified that he was never close to the Mother, even though she was his daughter-in-law.
Ms. Kathy Poluck (“The Grandmother”)
Examination In-Chief
[12] The Grandmother is a hairstylist. Tucker and Gavin are her grandchildren. The Grandmother lives with the Grandfather in a house close to where the Father lives. When Gavin is in Sault Ste. Marie, she sees Gavin every day. She helps with pick-ups and drop-offs. If the Father is working evenings, the Grandmother watches Gavin until the Father is off work.
[13] Tucker has been affected by Gavin’s departure. Tucker has spoken with the Grandmother about Gavin’s absence and Tucker has called the situation “a tragedy”.
[14] In the summer of 2020, the Mother took Gavin to Chicago to visit her relatives. The Grandmother watched from her deck the day the Mother left. The next day, the Father came to visit the Grandmother at their camp and the Father advised the Grandmother that that the marriage was over.
[15] The Grandmother indicated that the Mother was not particularly close with Tucker and that the Mother had trouble bonding with Tucker.
[16] Gavin has extended family in Sault Ste. Marie including his cousin, with whom he goes to school.
Cross-Examination
[17] The Grandmother testified that she and the Mother generally got along. They went for walks with Gavin and Tucker. The Grandmother spent a lot of time with the Mother and the children when the Father started his current job. When the Mother worked at Joanne’s Fabrics, the Grandmother was Gavin’s caregiver.
[18] The Grandmother was asked about her son’s employment history. I do not believe that this testimony is relevant to the issues to be determined by me other than to say that the Grandmother looked after Gavin and Tucker when both parents were working. The Grandmother received some money for these efforts upon occasion.
[19] The boys did not get along at first, which the Grandmother believes was attributable to their age difference. The boys fought regularly but the fighting has improved over the last two years. The Grandmother testified that the Mother did not know how to deal with Tucker. The Grandmother also indicated that Tucker once smashed Gavin’s head against a sofa when Gavin was a toddler.
[20] The Grandmother testified that she was aware that Tucker took a pill for Attention Deficit Hyperactive Disorder (“ADHD”) but she was not aware that Gavin had an Oppositional Defiance Disorder (“ODD”) diagnosis. She is aware that Gavin’s bathroom training stagnated as a result of the separation.
The Father
Examination-in-Chief
[21] The Father testified that he manages a cell phone store in the Sault Ste. Marie mall.
[22] He has two children, Gavin, and Tucker. Tucker’s mother is Ms. Christina Riseborough-Chapman. He enjoys week-about parenting time with Tucker. Currently, Gavin lives back and forth with the Mother and the Father on a three-months on, three-months off basis.
[23] To the Father’s knowledge, Gavin has no medical issues. Some medical problems have recently arisen in Illinois like a milk allergy, a skin condition, and eyesight concerns. There were some constipation issues prior to the Mother’s permanent departure. As for treatment of these conditions, the Mother advised the Father that Gavin should avoid eating certain foods, like dairy. The Mother also described the nature of Gavin’s skin issue to the Father. Gavin is now wearing glasses, although that is a recent change.
[24] Gavin’s doctor in Sault Ste. Marie is a pediatrician. The Father does not know the doctor’s name.
[25] The Father’s work schedule is flexible. He does not work nights or weekends. If he requires childcare, his parents and/or his girlfriend assist with same.
[26] Tucker has an ADHD diagnosis, and the Father assists Tucker with taking his medication every morning. Tucker has no developmental issues other than those that one would normally associated with an 11-year-old boy.
[27] The Father said that his sons “love each other to death” but also get frustrated with each other. Tucker wants attention. Nonetheless, when Gavin returned to Sault Ste. Marie, Tucker was waiting with balloons. The Father described his sons as having a good relationship. The boys do not get into physical altercations other than pushing and shoving. They do not harm each other. The boys enjoy playing Nintendo and PlayStation together. They play “make believe” and Tucker reads to Gavin at night.
[28] In the summer of 2020, the Mother took Gavin to Illinois. The Father received a phone call through Facebook Messenger simply stating that the Mother was not coming back. This call occurred around a week into the trip. The Father testified that he effectively received an ultimatum whereby the Mother offered the Father summer access, alternating holidays and such. Implicit within this statement was the fact that Gavin would remain with the Mother permanently in Illinois. The Father believes that the Mother always intended to move back to Illinois so as to further a romantic relationship she started online.
[29] It was months before the Father saw Gavin again. When Gavin returned, the Father met the Mother at the border. The Father may have asked the Mother if she was coming back to Canada.
[30] Tucker does not want to visit Gavin in Illinois. Tucker initially had a good relationship with the Mother, but over the last three years of the marriage, the relationship deteriorated. The Father believes that the Mother saw Tucker as a nuisance and that any issue that arose in the family was, in the Mother’s eyes, Tucker’s fault.
[31] During the marriage, both the Mother and Father played video games with the boys. They taught them to cook. The Father took the boys snow machining, ice fishing and sledding.
[32] The Father has had electronic visits with Gavin since Gavin has been in Illinois. The electronic access has largely worked, although Gavin has occasionally been distracted by toys. The Mother has done a good job arranging video calls, as has the Father.
[33] Gavin has a dentist in Sault Ste. Marie and the Father is arranging meetings with Algoma Family Services to help the boy deal with issues arising from the separation.
[34] With respect to his relationship with Tucker’s mother, the Father testified that he and Ms. Riseborough were like “two ghosts in the hallway”, both trying to do their best for Tucker but never really speaking to one another. The Father learned that Ms. Riseborough is helping the Mother with her case. The Father did not believe that Ms. Riseborough and the Mother had a relationship per se prior to separation, but he testified that the two worked together regarding Tucker’s ADHD treatment.
[35] The Father testified that he is currently in a relationship with Ms. Taylor Pacello. She began living with him in September 2021. She works at Algoma Steel, and she assists with childcare.
[36] The Father has family in Sault Ste. Marie including an uncle, an aunt, and Gavin’s cousins.
Cross-Examination
[37] The Father testified that he generally works nine to five, Monday to Friday.
[38] In 2021, the Father earned approximately $56,000, but he cannot specify his salary since he had not completed his taxes at the time he testified. In 2020, he earned less than $56,000. Since separation, neither parent has paid support to the other.
[39] The Father denied that the Mother was the primary nighttime caregiver. However, the Father admitted that he worked while the Mother took care of the home. The Mother had job opportunities, such as at Mio’s Furniture, but she did not show up for work.
[40] The Mother had her own bank accounts, and the Mother was a user on his accounts. The Father denied engaging in financial abuse or other controlling behaviour. The Father contended that the Mother had a US account that contained over $10,000 during the marriage. The Father was shown a print-out of the Mother’s account that, at all material times, contained much less money than $10,000.
[41] With respect to the matrimonial home, the Father specified that he rents a house owned by the Grandfather. The Father has always paid rent at this house. The Father was taken to his financial statement, sworn in 2020, wherein he indicated that he owned the matrimonial home and that same had a valuation of $148,000. The Father indicated that the Grandfather’s name has always been on title and that the Father has lived in that home for 11 years. The Father and the Grandfather do half the repairs and the Grandfather pays for the supplies. The housing relationship was effectively a “rent-to-own” arrangement as per the Grandfather’s wish. Prior to separation, the Father did not think that he had an interest in the house. To the extent that the financial statement states that the Father has a $148,000 interest in the home, the Father testified that this was a clerical error.
[42] Prior to returning to Illinois, the Mother had been talking about visiting her family for some time. The actual date chosen was “last minute”. There had been a number of expressions of unhappiness leading up to the trip, including the fact that the Mother texted the Father about certain issues in the marriage. The Father refused to respond as he found the text to be very leading. He was suspicious that the Mother was going to leave for Illinois and use the Father’s answers as a pretext for some action.
[43] When the Mother ended the relationship on July 5, 2020, the father was surprised. The Father testified that when one is in a constant tailspin of ups and downs, it is unusual when someone finally stops the cycle.
[44] The Father disagreed that he yelled a lot. He disagreed that Gavin is terrified of him. The Father disagreed that he failed to attend family functions. He disagreed that the Mother expressed dissatisfaction about the Father’s video gaming.
[45] The Father testified that, if he had known that Gavin was going to stay in Illinois, he would not have let his son go across the border. At the very least, the couple would have gone to see a mediator.
[46] When Gavin returned to Canada in August/September of 2020, the Father kept Gavin in Canada for six months. He did not agree with Gavin being moved to Illinois. Prior to Gavin’s return, the Father and Mother messaged each other, and the Father admitted that he made it seem that Gavin would be in Canada for a short period of time. Ultimately, the parties argued a motion regarding interim living arrangements.
[47] Over the last two years of the marriage, Tucker lived with the couple every other week. When there were issues as between the Father and Ms. Riseborough, the Mother would act as mediator.
[48] Most of Gavin’s doctor’s appointments occurred while the Father was working. Accordingly, the Mother looked after doctor’s appointments, dentist’s appointments, and other medical issues. The Mother changed the majority of the diapers because the Father was bad at that task, but the Father denied that the Mother did most of the household chores.
[49] The Father testified that he is able to take care of Gavin.
[50] The Father is aware that Gavin has made friends in Illinois and that the Mother has secured a good job. The Father testified that the Mother’s job at Mio’s Furniture could have paid $70,000 per annum but that she chose not to work there.
[51] Gavin was born in Sault Sainte Marie, Michigan and, as a result, Gavin has dual US-Canadian citizenship.
[52] If Gavin were to live with his Mother in Schaumburg, it is important to the Father that he have considerable parenting time in the summer as well as during major holidays.
Ms. Taylor Pacello
[53] Ms. Pacello is the Father’s girlfriend. She lives with the Father.
[54] She spends considerable time with Gavin and Tucker. The boys have a good relationship and a very strong bond. They play for hours, and Gavin talks about how much he loves Tucker. Gavin looks up to Tucker, and Tucker is protective of Gavin. Tucker is sad when Gavin leaves.
[55] The Father and Gavin play a lot of Nintendo Switch, the Father reads to Gavin, and they do other activities together.
[56] The Father is warm, he does not over-discipline the boys and he is always emotionally present.
[57] Ms. Pacello testified that she and Gavin like to watch musicals together.
[58] She has a strong bond with Tucker and Gavin. She has no children of her own.
[59] In cross-examination, Ms. Pacello specified that she and the Father began living together in September 2021. She has not met Ms. Riseborough.
The Evidence Called by the Mother
The Mother
Examination-in-Chief
[60] The Mother testified that she is 29 years old and is an American citizen. She was born in Schaumburg. She met the Father online while video gaming in or around 2011-12. He was living in Sault Ste. Marie, while she was living in Schaumburg. He visited her and she visited him on one occasion each. She moved to Canada in 2013. They were married in August of 2014, and they separated on July 5, 2020. On the date of separation, she was visiting her parents in Schaumburg.
[61] Her son Gavin was born in Sault Sainte Marie, Michigan in May 2016. Gavin has dual American and Canadian citizenship.
[62] The Mother has a high school diploma as well as a certificate of interior design from the Illinois Institute of Art.
[63] While she was married to the Father, she was the primary childcare provider and she attended to both Gavin and Tucker when the latter was staying with the Father. She ensured that Gavin was ready to learn before he attended school and, as a result, the Mother read to him for hours a day. As for household chores, the Mother was in charge of laundry, while the Father was in charge of dishes.
[64] With respect to medical care, the Mother ensured that Gavin had a doctor in Sault Sainte Marie, Michigan named Dr. Ockenfels. She also ensured that Gavin had a doctor in Canada. Gavin had no significant medical issues other than constipation and skin discoloration. She took Gavin to all the child’s medical appointments. The Mother recalls the Father attending two medical appointments. The Mother did not recall the Father ever taking the child to medical appointments on his own.
[65] The Mother has concerns about the Father’s parenting. He was not a “present parent” with Gavin, and Gavin expressed that he was not happy with the Father. The Mother was concerned that the Father’s interactions with Gavin were mostly negative. The Mother felt that the children were not comfortable around the Father as a result.
[66] The Mother made a running list of issues in the marriage. In the summer of 2020 and prior to leaving for Schaumburg, she texted the Father. The Father did not reply to this text. The Mother felt like there were difficulties in every aspect of her marriage, especially the Father’s alleged focus on work or video games. Because he was the only “breadwinner” in the family, the Mother felt like the Father had control over the family. Although she had access to the Father’s savings and chequing account, she had to ask before withdrawing money from same. She always felt like she was being watched, or that her technology use was being monitored. The Mother testified that the Father read her private messages.
[67] In the two years prior to separation, the Mother worked part-time at Michael’s, a fabric store. The pandemic struck, and her position was made surplus. Occasionally, the Mother’s mother (the “Maternal Grandmother”) gave the Mother money for groceries.
[68] The Mother left to visit her parents on or around July 3, 2020. She had not been home for some time as a result of the pandemic. She had planned to stay two weeks in Schaumburg. She denied that she was going to go meet someone. She denied being in an online relationship at the time of separation. She did have online friends, one of whom is her current partner, Mr. Duncan Connors. Mr. Connors was living in Florida at the time.
[69] The Mother brought about a week’s worth of clothing to Schaumburg, as well as a few of Gavin’s favorite books, and a toy or two for the car ride. She asked the Father’s permission to bring Gavin to Schaumburg. She does not believe that the Father was concerned that the Mother was leaving the relationship at that time. The Father would have known that the couple was not in a good place, but the pair had not discussed separation prior to the visit.
[70] The Mother was not in Schaumburg long before she decided to separate. She did not see a path forward. She did not foresee how the Father could change in ways she needed in order for them to have a family. There was no physical or substance abuse, but there was emotional abuse of sorts. She messaged the Father when she was in Schaumburg.
[71] On July 5, 2020, the Mother and the Father spoke to discuss separation. Her parents were willing to let her live with them pending her ability to get on her feet. She looked for and found employment in Schaumburg. She started working in September 2020 at a firm called Kelly’s Services. She earned $30 USD/hour. She shared her plans with the Father. She wanted the separation to be amicable. The Mother was taken to a number of messages where she and the Father discussed Gavin’s return to Canada. The messages always made the Mother’s position clear that Gavin was to return with her to Schaumburg.
[72] Ultimately, arrangements were made as between the Mother and the Father’s lawyer whereby the Father’s lawyer confirmed that Gavin would visit the Father and then be returned to the Mother’s care. On the date of anticipated return, the Mother arrived at the border and met with the Father who indicated that Gavin would not be returning to the United States. This dispute ultimately led to the instant court application. Gavin has been rotating three months in the United States, followed by three months in Canada, since the determination of an interim motion.
[73] The Mother testified that the school district in which she rents is excellent and that she will buy a house in that school district when she is able to purchase a home. Gavin appears to have succeeded in both the Canadian and American school systems however, I note that Gavin is very young.
[74] The Mother has a new job where she earns $55,000 per annum plus commission. She interviews people for technical roles. She works primarily from home but needs to go into the office upon occasion. She gets unlimited “PTO”, or paid time off. She works a regular nine to five shift.
[75] The Maternal Grandmother and her father are able to help the Mother with Gavin. The Maternal Grandmother works from home and can take time off to take Gavin to school.
[76] Gavin has been to the dentist and to the doctor since the Mother relocated to Schaumburg. Gavin’s medical records were filed with the court.
[77] With respect to Tucker and Gavin’s relationship, the Mother testified that they did not get along while she lived in Sault Ste. Marie. There was a significant age gap and she felt as though Tucker treated Gavin as a nuisance. Tucker was aggressive with Gavin which was highlighted by physical issues. In one instance, Tucker grabbed Gavin’s head when he was a toddler and “two-handed” him into the sofa.
[78] When Tucker lived with the Father as per the “week about” parenting schedule, the Mother was primarily responsible for both Gavin and Tucker. She was the person who communicated with Ms. Riseborough. At one point, the Mother brought Tucker to the hospital for a follow-up medical appointment scheduled during the Father’s access period.
[79] Since moving to Schaumburg, the Mother has tried to speak consistently with Ms. Riseborough so that Tucker and Gavin can communicate. Generally, Gavin does not want to go back to Sault Ste. Marie or to see Tucker. The Mother testified that she will try to ensure that Gavin and Tucker see each other as often as possible. She wants to foster a relationship between the brothers. The Mother conceded that she understands that Tucker does not have a good opinion of her.
Cross-Examination
[80] The Mother testified that she is willing to facilitate an improvement in the Tucker/Gavin relationship. She is willing to assist Tucker in visiting Schaumburg if that were necessary.
[81] The Mother stated that she believes that her permanent residency status in Canada would be terminated as a result of the divorce because the Father was her sponsor.
[82] The Mother insisted that she did not go to Schaumburg with the intention of staying permanently. The decision came about quickly when she felt that she had a “safe space” to speak with her parents. After the marital breakdown, she kept Gavin for about a month-and-a-half before bringing him up to Sault Ste. Marie.
[83] The Mother insisted that she was the primary caregiver during the marriage. The Mother disagreed that her home was not very clean when the children were young, especially when one considers that the Mother had two young boys underfoot.
[84] The Mother testified that her son will always love the Father, but that the bond as between the two is not particularly strong. Gavin is afraid of his father.
[85] The Mother testified that her current partner moved to Schaumburg in order to have a relationship with the Mother.
[86] The Mother did not look for work in Sault Sainte Marie, Michigan because she thought she could provide a better life for Gavin in Chicago.
[87] Counsel pressed the Mother regarding messages sent to the Father prior to July 2020. The Mother maintained that she had not decided to relocate with Gavin prior to the July 2020 Schaumburg visit.
[88] When confronted with the fact that the Mother allegedly withheld Gavin during the summer of 2020, the Mother testified that the Father subsequently withheld Gavin for a period of six months.
[89] The Mother described her social network in Schaumburg as being robust.
[90] When the couple was together, Gavin wanted to do a lot of what Tucker was doing. Tucker played a lot of video games.
[91] As regards her relationship with Ms. Riseborough, the Mother testified that the two women share a reasonable relationship although it was always awkward. The Mother tried to “be there” for Ms. Riseborough and Tucker.
The Maternal Grandmother
[92] The Maternal Grandmother lives with her husband in Schaumburg and has lived in the same house for 32 years.
[93] The Maternal Grandmother is a claims adjuster who works from home. Her hours are generally from 7:30 to 3:30. Her work is flexible, and she is able to help the Mother with Gavin as the Mother lives close by. The maternal Grandmother will help with school pick-ups and drop-offs.
[94] The Maternal Grandmother described the close relationship that she shares with Gavin. She also testified about the large network of people that she has in Schaumburg.
[95] In cross-examination, the Maternal Grandmother testified that she did not know that the Mother was leaving the Father when the Mother came to visit in July 2020. The Maternal Grandmother also testified that the Mother’s new partner is, from all accounts, a good person.
Ms. Christina Riseborough
[96] Ms. Riseborough testified that she is the Father’s former partner and Tucker’s mother.
[97] Ms. Riseborough indicated that, during the Mother and Father’s marriage, Tucker began “week about” parenting with the Father. When Tucker was staying with the Father, the Mother was the primary caregiver. The Mother took Tucker to a variety of medical appointments.
[98] Tucker has ADHD, ODD and Obsessive-Compulsive Disorder (“OCD”). He has difficulty controlling his thoughts, he is oppositional at home, and he has a lot of outbursts. Tucker takes daily medication.
[99] Gavin and Tucker share a fairly normal bond given their age difference and the parenting time schedules imposed by the courts.
[100] Ms. Riseborough worked with the Mother to ensure that Tucker and Gavin have a decent relationship. The boys have interacted a handful of times via videocall since Gavin has been in Schaumburg.
[101] Ms. Riseborough appreciates the Mother very much. She considers the Mother a friend. If Gavin is to reside in Schaumburg, Ms. Riseborough and the Mother have discussed the possibility of Tucker coming to visit.
Mr. Duncan Connors
[102] Mr. Connors is the Mother’s partner. The couple met online videogaming in 2020. He was living in Florida at the time. He moved to Chicago in November 2020. He works with a company packaging pharmaceuticals.
[103] Mr. Connors described the Mother’s relationship with Gavin as being very supportive and affectionate. She is an involved parent, and she makes a lot of time for Gavin.
[104] When Gavin came back from Canada, Mr. Connors did not see the Mother very often because the Mother’s focus was on Gavin.
[105] Mr. Connors testified that his relationship with Gavin and the Mother is very good.
[106] In cross-examination, Mr. Connors testified that the first time he met the Mother was in August 2020 when he came up to visit Chicago. His relationship with the Mother became romantic in September of that year. He moved to Chicago in November 2020.
Mr. Grant Duerst
[107] Mr. Duerst filed an affidavit wherein he indicated that he is a friend of the Mother’s. He lives in DeForest, Wisconsin. They met while videogaming in 2016.
[108] Since separation, Mr. Duerst has visited the Mother on a number of occasions. He indicated that he believes that the Mother and Gavin share a special relationship.
[109] Mr. Duerst described the Father as being cold based upon the one instance where he met the Father.
Ms. Abigail Thomason
[110] Ms. Thomason filed an affidavit with the court. Ms. Thomason lives in Kalamazoo, Michigan. Ms. Thomason and the Mother began a friendship in 2016 as coworkers and have been friends ever since. She has witnessed the Mother’s parenting abilities and Ms. Thomason described the Mother as being “an amazing mother”. Ms. Thomason babysat Gavin on occasion.
[111] In contrast, Ms. Thomason described the Father as being cold.
Position of the Parties
[112] The Father submits that Gavin ought to stay in Canada because his relationship with Tucker is crucial to his development. Also, Gavin’s relationship with the Father, his friends and family in Sault Ste. Marie are such that Gavin’s best interests would be met by residing in Canada. If Gavin were to live in Schaumburg, the Father submits that the Father should have expanded parenting time and that he should pay limited support.
[113] The Mother submits that her economic situation has improved greatly since moving to Schaumburg and this enables her to provide a good life for Gavin. Further, as the historical primary caregiver, she is in the best position to care for Gavin, especially since the boy is in a loving and caring environment when he lives with the Mother.
The Law
[114] On March 1, 2021, the Divorce Act was amended. Sections 16(1) and (2) of the Divorce Act mandate that only the “best interests of the child” are relevant to parenting orders:
Best interests of child
16 (1) The court shall take into consideration only the best interests of the child of the marriage in making a parenting order or a contact order.
Primary consideration
(2) When considering the factors referred to in subsection (3), the court shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being.
[115] Section 16(3) of the Divorce Act codified the factors to be considered when determining the “best interests of the child”:
Factors to be considered
(3) In determining the best interests of the child, the court shall consider all factors related to the circumstances of the child, including
(a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;
(b) the nature and strength of the child’s relationship with each spouse, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;
(c) each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse;
(d) the history of care of the child;
(e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;
(f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;
(g) any plans for the child’s care;
(h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;
(i) the ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child;
(j) any family violence and its impact on, among other things,
(i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and
(ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child; and
(k) any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child.
[116] Section 16(5) of the Divorce Act states that past conduct is not relevant to the determination except in limited circumstances:
Past conduct
(5) In determining what is in the best interests of the child, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the exercise of their parenting time, decision-making responsibility or contact with the child under a contact order.
[117] Section 16(6) of the Divorce Act states that the “best interests of the child” often accords with the principle that children ought to have maximum contact with both parents, all else being equal:
Parenting time consistent with best interests of child
(6) In allocating parenting time, the court shall give effect to the principle that a child should have as much time with each spouse as is consistent with the best interests of the child.
[118] Sections 16.9 and 16.91 of the Divorce Act deal with the notice required for motions to relocate a child. Section 16.92 of the Divorce Act describes the factors to be considered when a court must determine whether to permit the relocation of a child:
Best interests of child — additional factors to be considered
16.92 (1) In deciding whether to authorize a relocation of a child of the marriage, the court shall, in order to determine what is in the best interests of the child, take into consideration, in addition to the factors referred to in section 16,
(a) the reasons for the relocation;
(b) the impact of the relocation on the child;
(c) the amount of time spent with the child by each person who has parenting time or a pending application for a parenting order and the level of involvement in the child’s life of each of those persons;
(d) whether the person who intends to relocate the child complied with any applicable notice requirement under section 16.9, provincial family law legislation, an order, arbitral award, or agreement;
(e) the existence of an order, arbitral award, or agreement that specifies the geographic area in which the child is to reside;
(f) the reasonableness of the proposal of the person who intends to relocate the child to vary the exercise of parenting time, decision-making responsibility or contact, taking into consideration, among other things, the location of the new place of residence and the travel expenses; and
(g) whether each person who has parenting time or decision-making responsibility or a pending application for a parenting order has complied with their obligations under family law legislation, an order, arbitral award, or agreement, and the likelihood of future compliance.
[119] Section 16.92(2) of the Divorce Act describes prohibited factors that may not be considered in determining the application:
Factor not to be considered
(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.
[120] Finally, section 16.93 of the Divorce Act describes the burden of proof in relocation cases:
Burden of proof — person who intends to relocate child
16.93 (1) If the parties to the proceeding substantially comply with an order, arbitral award, or agreement that provides that a child of the marriage spend substantially equal time in the care of each party, the party who intends to relocate the child has the burden of proving that the relocation would be in the best interests of the child.
Burden of proof — person who objects to relocation
(2) If the parties to the proceeding substantially comply with an order, arbitral award or agreement that provides that a child of the marriage spends the vast majority of their time in the care of the party who intends to relocate the child, the party opposing the relocation has the burden of proving that the relocation would not be in the best interests of the child.
Burden of proof — other cases
(3) In any other case, the parties to the proceeding have the burden of proving whether the relocation is in the best interests of the child.
[121] The legislative changes largely reflect the principles established by Gordon v. Goertz, [1996] S.C.J. No. 52. Counsel provided me with a number of cases that purport to show that courts have, in situations ostensibly similar to the one before me, either permitted, or not permitted the relocation of the child(ren). Ultimately, the analysis contained in this jurisprudence is largely fact-driven and the nuances of any given familial situation are such that little, if any, weight can be given to precedent when it comes to the application of the “best interests of the child” test.
Analysis
Burden of Proof
[122] Given the fact that no final order is currently in place and given the fact that no order was in place when the instant application came before the court, it is plain that both parents bear the onus of proving whether the relocation is in the best interests of the child as per section 16.93(3) of the Divorce Act.
The Parties’ Conduct
[123] As per the statutory amendments, I must consider a number of factors when determining whether relocation is in Gavin’s best interests. With respect to the Mother’s reasons for waiting to relocate to Schaumburg, it cannot be said that she was being unreasonable in the circumstances. The Mother was in a failing marriage, surrounded by her in-laws and she felt controlled by the Father. She felt trapped and abused, irrespective of the Father’s intentions [1].
[124] I accept that the Mother decided to leave the Father when she arrived in Schaumburg. This finding is supported by the fact that the Mother did not bring much in the way of clothing or other goods when she left for the visit, which is consistent with someone intending to visit for a short period of time. Accordingly, the nature and timing of the email and text exchanges regarding the failing marriage do not evince any intent by the Mother to separate prior to July 5, 2020.
[125] I also accept that the Mother ought to have brought an application in Ontario once she decided to move to Schaumburg. With that being said, the Mother attempted to communicate with the Father regarding Gavin immediately after separation. The Mother’s conduct appears to be that of a parent who made a decision without understanding the legal ramifications of her actions. Indeed, her communications with the Father show that she was trying to act in Gavin’s best interests while at the same time making clear that she needed to return home to the United States. This is not the case of a parent “sneaking away in the middle of the night” with a child. Rather, the Mother sought the support of her family.
[126] From the Father’s perspective, however, I can understand whereby he might feel that the Mother unilaterally decided to abscond with Gavin. He was in a failing marriage, and he became aware of Gavin’s removal when his child had already left Canada. Indeed, the Mother’s post-separation communication with the Father made clear that the Mother’s assumption was that Gavin would be in the United States full-time. As such, the Father’s unwillingness to abide by the agreed-upon return of Gavin to the Mother in the fall of 2020 is entirely understandable.
[127] I therefore take nothing from the conduct of either parent in the immediate post-separation timeframe.
Schaumburg or Sault Ste. Marie
[128] It is clear to me that Gavin’s living situation in both Sault Ste. Marie and Schaumburg are roughly equivalent. Gavin’s Chicago-area home seems to be in a settled suburb that features many of the advantages offered by suburban living (family, activities, good schools, etc.) while not being affected by the downsides associated with same (i.e., violence, gangs, etc.). Gavin’s Sault Ste. Marie home also appears to be nurturing, with family, good schools, and outdoor activities. The Chicago versus Sault Ste. Marie distinctions therefore do not particularly affect my analysis.
Parenting Styles
[129] In the circumstances of this case, two major issues drive the decision that I must make. First, I have concerns about the Father’s involvement with his children. The Grandfather, the Grandmother and Ms. Pacello all testified that the Father is a good parent. I agree that the Father loves and cares for Gavin and Tucker. Nonetheless, other aspects of the evidence cause me some concern about the Father’s parenting style.
[130] Ms. Pacello testified that the Father was emotionally involved with his children. That evidence is contrasted by the other evidence heard in this trial. For example, the Father testified that Tucker has ADHD, and that Tucker only has issues that are typical of an eleven-year-old boy. Ms. Riseborough, on the other hand, testified that Tucker has a number of medical issues including ADHD, ODD and OCD. She specified that Tucker has outbursts as a result. When I consider the Father’s admitted lack of involvement in this area, I accept Ms. Riseborough’s evidence that Tucker has ADHD, ODD and OCD because she was unshaken on the point and because, by all accounts, she is more involved with Tucker’s medical issues than is the Father.
[131] Although tangential to my ultimate decision, this determination is an important factual finding because it sheds light onto the Father’s parenting style. The fact that the Father does not understand the depth of Tucker’s mental health issues suggests that he is not sufficiently involved with Tucker. Indeed, one would expect an attentive parent to fully understand the nature of Tucker’s ailments especially since these conditions involve volatile emotional responses.
[132] This finding informs other aspects of the evidence. The Father testified that he and Ms. Riseborough are like “ghosts in a hallway”. The Father testified that he does not know Gavin’s doctor’s name. The Grandfather testified that the Father is not a “huggy-type”. The cumulative effect of this evidence makes clear, and I so find, that the Father is somewhat detached from his children. I must therefore reject Ms. Pacello’s evidence to the contrary.
[133] I do not wish for this finding to be seen as a glaring criticism of the Father’s parenting. It is not. I am confident that the Father is involved with aspects of Gavin and Tucker’s lives and he undoubtedly shows them love and affection. However, it must be said that the preponderance of the evidence suggests that the Father is not “present” for Gavin and Tucker, and that he is not the person that primarily attends to their emotional or physical needs.
[134] This issue is mitigated by the presence of the Grandmother and Ms. Pacello who appear to be quasi-parental figures for both Gavin and Tucker. Both presented as good people who are involved in the children’s lives and who attend to Tucker and Gavin’s needs. While their presence mitigates some of the concerns regarding the Father’s attentiveness, those concerns are not entirely negated. The Father and Ms. Pacello’s relationship is fairly new, and it may not be long-term. The Grandmother does not live in the same house as the Father and, although she lives close-by, young children require constant emotional care such that it will undoubtedly be the Father who must shoulder the majority of the load when it comes to caring for Gavin.
[135] In contrast, the Mother presented as an individual who was attentive to Gavin’s needs. I find that she was by far the primary caregiver prior to separation. She worked with Gavin’s school and his doctors. She presented as someone who undertook strong efforts to be involved in her child’s life, and the life of those around Gavin. In fact, the Mother attended Tucker’s medical appointments when same were scheduled during the Father’s parenting weeks. This evidence is corroborated by the Mother’s friends and relations who describe her strong parenting skills. I have no hesitation in finding that Gavin’s emotional needs will easily be met by the Mother were Gavin to live permanently in Chicago.
[136] The Mother also appears to have a solid support network in Schaumburg whereby the Maternal Grandmother and the Mother’s new partner assist with Gavin’s upbringing. The Mother’s network of people includes family members and others who are unlikely to walk away from Gavin if the Mother’s new relationship with her partner fails. Accordingly, I am comfortable that the Mother can provide Gavin with a nurturing environment in which to live.
[137] On the balance, therefore, I am satisfied that the Mother will meet Gavin’s emotional and personal needs much more effectively than will the Father given her caregiving skills as contrasted with the Father’s relative detachment.
Tucker
[138] The second major issue that informs my decision regarding Gavin’s best interests is the fact that Gavin and Tucker ought to share as much time together as possible. The parties called considerable evidence about the nature of the fraternal relationship. The witnesses called by the Father suggest that the brothers are close whereas the witnesses called by the Mother suggest the opposite. Whether or not the bonds as between the two boys are currently strong is not particularly relevant to my decision given the boys’ ages. There is an approximate five-year age gap between the pair and to expect them to have a powerful bond at this stage of their lives fails to consider the obvious difficulties that children of different ages can have in bonding. Further, any physical conflict between the two is likely attributable to normal boyhood roughhousing. This phenomena does not concern me.
[139] A premium must be placed upon the importance of promoting the brothers’ relationship. The boys may not be close until they are older, but the benefits they will reap from a strong sibling relationship will be meaningful. Indeed, strong sibling relationships give individuals emotional stability. Even if the goal of emotional bonding has yet to materialize, the long-term benefits of this phenomena are significant.
[140] This factor therefore augurs strongly in favour of Gavin living in Sault Ste. Marie so that he can develop a strong relationship with Tucker. While the Mother and Ms. Riseborough will undoubtedly attempt to ensure that the two boys have as much contact as reasonably possible if Gavin were to move to Schaumburg, the vital importance of the boys seeing each other every second week must be given considerable weight.
The Balance
[141] When I consider the entirety of the situation, I have two significant factors that pull in opposite directions and others that are neutral. With that said, my concerns about the Father’s attentiveness tip the scale. I find that it is in Gavin’s best interests to move with the Mother to Schaumburg because her strong parenting skills will give Gavin the best emotional foundation for a happy childhood and for future success. Were Gavin to stay in Sault Ste. Marie with the Father, there is a risk that his emotional and physical needs will not be adequately met. My concerns about moving Gavin away from Tucker and the Father can be mitigated with a robust parenting time schedule and with vigilant attempts to ensure that Gavin and Tucker see each other frequently, whether on video or in person. Although Gavin will undoubtedly suffer some emotional strain moving away from the Father and Tucker, I am confident that such a move is in Gavin’s best interests because the Mother will work with Ms. Riseborough to mitigate some of these concerns whereas the Mother’s day-to-day parenting skills will ensure the best possible life for Gavin.
[142] I note that the Mother sought joint decision-making in her portion of the application. That is unlikely to be a workable solution in the circumstances of this case given the fact that the Father resides eight hours away. Accordingly, it is in Gavin’s best interests for the Mother to have full decision-making authority so that she can guide Gavin’s life effectively.
Conclusion
[143] In order to ensure that Gavin gets maximum contact with the Father and with Tucker, a robust parenting schedule must be in place so as to provide Gavin with as much time with the Father and his brother as possible. Ergo, I hereby order the following effective August 1, 2022:
a. The Mother shall have exclusive decision-making responsibility for Gavin. The Mother shall consult the Father wherever reasonably possible prior to making decisions for Gavin;
b. Gavin’s primary residence will be with the Mother;
c. The Father shall be permitted to obtain information directly from third parties without the necessity of the Mother’s prior consent, including information from schools, medical providers, counsellors, coaches, and others;
d. Gavin shall spend six consecutive weeks with the Father in the summertime. This parenting time shall occur during Gavin’s school holiday. The Father shall specify to the Mother which weeks he wants as parenting time by March 1 of each year. The Father’s parenting time shall not land on the last week of the summer holiday (prior to the commencement of school) in order to provide the Mother with the opportunity to reacclimate Gavin to his school routine;
e. The Father shall have parenting time with Gavin during the first week of the Christmas holiday, while the Mother shall have parenting time during the second week of the Christmas holiday;
f. The Father shall have parenting time during Spring Break holidays [2]. This parenting time shall commence immediately after school on Friday, and end the following Sunday at 7:00 p.m. Gavin will travel on Friday before the break, and on the last Sunday of the break;
g. The Mother shall have parenting time during American Thanksgiving;
h. The Father shall choose one weekend in October whereby he will exercise parenting time with Gavin. If there is a school break in October, the Father will select that weekend. The Father’s time on that weekend will commence after school Thursday and will end at 5:00 p.m. on the following Monday. If there is school on the Thursday, Gavin will miss school on that day in order to travel. Gavin will travel back to Schaumburg on the Monday;
i. The parties will have Easter parenting time with Gavin in alternate years. The Father shall have parenting time with Gavin at Easter in odd-numbered years. In the years where the Father exercises parenting time at Easter, Gavin will miss school on the Thursday in order to travel. Gavin will travel back to Schaumburg on Easter Monday;
j. The Father shall enjoy reasonable video parenting time every Tuesday, Thursday, and Saturday at 6:30 p.m. for 30 minutes (assuming that Gavin is able to maintain his attention for that length of time). The timing of the video parenting time can be varied – reasonably – if Gavin is in after-school activities or on consent. The Father shall also enjoy other reasonable video access where sought, and same shall not be unreasonably denied by the Mother;
k. The Mother shall undertake best efforts to foster a strong and meaningful relationship between Tucker and Gavin. These efforts shall include, but are not limited to, hosting Tucker for visits where Ms. Riseborough and Tucker so agree, hosting video and telephone visits for Tucker and Gavin, and any other reasonable attempt to facilitate that relationship; and
l. The Father shall have any reasonable parenting time with Gavin in the Chicago-area. The Father shall give reasonable notice to the Mother regarding his intentions to see Gavin when the Father visits Chicago, and the Mother will not deny any reasonable request.
[144] The parties shall exchange Gavin in Reed City, Michigan, which is approximately halfway between Sault Ste. Marie and Chicago. The parties will pay their own travel costs.
[145] The parties shall ensure that the parent exercising parenting time is in possession of Gavin’s passport.
[146] In light of the Mother’s strong income and the heightened costs associated with exercising parenting time, there shall be no child or spousal support payable by either party.
[147] Any order flowing from these reasons shall be enforceable by police agencies in the region in which Gavin is living or visiting, whether in Canada, the United States, or any other country.
Costs
[148] The parties shall file costs submission of no more than 5 pages (excluding attachments) within 15 days of the release of these reasons.
Varpio J.
Released: May 11, 2022
[1] I accept that the Mother felt emotionally abused, and had some basis for that feeling. I do not, however, find that the Father specifically intended to engage in abusive behaviour.
[2] I have not been given a copy of the Illinois school calendar, but I assume that the calendar features a week-long break akin to “March Break” in Ontario.