COURT FILE NO.: FC-18-1067-01 DATE: 2022 05 03

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Mitchell Rushlow Applicant Self-Represented Applicant Ruby Leung, for the Applicant on May 25, 26, 27, 28, 31, June 1, 2, and 4, 2021

• and -

Alexis-Rose Tremblay-Garland Respondent Robert MacGregor for the Respondent

HEARD: May 25, 26, 27, 28, 31; June 1, 2, 4; October 18; and November 16, 2021

REASONS FOR DECISION

HUGHES J.

Background

[1] The parties dated for a short time in 2017; they were twenty-one years of age. They had already broken up when Ms. Tremblay-Garland discovered she was pregnant. Their daughter, Ivy-Rose Tremblay-Garland was born June 10, 2018, at which time the parties were not on good terms.

[2] Mr. Michell Rushlow commenced an application on June 26, 2018, just days after his daughter’s birth, seeking to, among other things, obtain regular scheduled parenting time with Ivy-Rose, and to have his surname reflected in the child’s surname. Mr. Rushlow’s paternity was confirmed through testing, and he also sought to have the child’s birth registration amended to reflect this fact.

[3] The application was defended by Ms. Tremblay-Garland. Ultimately, the parties were able to negotiate final Minutes of Settlement which became the foundation for the final order of Her Honour, Justice K.D.M. Leef dated April 23, 2019 (the “Leef Order”) and it addressed the following issues:

i. Custody (now “decision-making”); ii. Primary residence; iii. Access (now “parenting time”); iv. Childcare; v. Ivy-Rose’s contact with the maternal and paternal grandparents; vi. Ivy-Rose’s government documentation; vii. Holiday parenting time; viii. Parental communication; ix. Change to Ivy-Rose’s middle name; x. Relocation; xi. Travel; xii. Parental contributions to Ivy-Rose’s section 7 special and extraordinary expenses; xiii. Child support; xiv. Exchange of financial disclosure; xv. Family Responsibility Office (FRO) enforcement; xvi. Variation of child support upon commencement of shared parenting.

[4] When the Leef Order was made, Ms. Tremblay-Garland was residing at her parents’ residence in Beaverton, in the Region of Durham. Mr. Mitchell Rushlow had relocated from Newmarket to his mother’s residence in Sunderland/Brock Township, also in the Region of Durham, to be closer to his daughter Ivy-Rose who was primarily residing with Ms. Tremblay-Garland, in accordance with the Leef Order. The Leef Order contemplated that as of March 2020, Mr. Rushlow would be having Ivy-Rose more than forty (40%) percent of the time and shared parenting would be in place between the parties. The Leef Order also directed that the child’s middle name be changed to include her father’s surname, Rushlow, and that the long form birth certificate for the child be amended to include the paternity of Mr. Mitchell Rushlow.

[5] On September 1, 2019, Ms. Tremblay-Garland relocated with Ivy-Rose to Orillia, Ontario. This move out of Durham Region was not opposed by Mr. Rushlow, and the timeline to a shared parenting schedule contemplated in the Leef Order was accelerated.

[6] From the date the Leef Order was made, on April 23, 2019, Mr. Mitchell Rushlow’s parenting time with Ivy-Rose was gradually expanded to a shared parenting arrangement. More specifically, the parents gradually began sharing their time with Ivy-Rose on a two-week rotating basis, with exchanges occurring alternating Sundays.

[7] In February 2020, Ms. Tremblay-Garland requested, for the first time, Mr. Mitchell Rushlow’s consent to her relocation with Ivy-Rose to the military base/community in Winnipeg, Manitoba, where Ms. Tremblay-Garland wished to join her partner, Mr. Michael Niewiadomski, who was to be stationed there.

[8] On July 13, 2020, Ms. Tremblay-Garland relocated to Winnipeg, Manitoba. At the parenting exchange on July 26, 2020, Ms. Tremblay-Garland picked up Ivy‑Rose from Ontario and travelled to Winnipeg, Manitoba, by car.

The Current Proceeding

[9] On November 19, 2020, Ms. Tremblay-Garland (hereinafter referred to as the “Respondent/Moving Party”, abbreviated to the RMP) issued a motion to change the terms of the Leef Order and she made reference in the motion to change to specific terms of a Consent agreement made between the parties which was reduced to writing and signed by her on or about October 11, 2019 (the “Consent”), which altered some of the terms of the Leef Order as follows:

i. it varied the access schedule to provide for a two-week rotating arrangement whereby access exchanges between the parents took place every two weeks on Sundays; ii. it provided that Ivy-Rose’s surname (not her middle name as directed in the Leef Order) would be changed to “Rushlow-Garland” which change was finalized December 18th, 2019; iii. ongoing child support was terminated; iv. enforcement of the child support obligation was withdrawn from FRO; v. Mr. Mitchell Rushlow was to pay outstanding arrears of $2,944.00.

[10] A written copy of the Consent was never produced. However, the parties continue to adhere to the changes made to the parenting terms specified in the Leef Order.

[11] The motion to change was predicated on the RMP’s plan to relocate with the child, Ivy-Rose, to Winnipeg, Manitoba to reside with Michael Niewiadomski, whom she identified as her new partner. The motion to change was defended by Mr. Mitchell Rushlow, (hereinafter referred to as the “Applicant/Responding Party”, abbreviated to the ARP) and was set to proceed to trial at the May 2021 Trial Sittings. The RMP requested that the trial be adjourned because she and her partner, who is a member of the Canadian Air Force, had been granted a request to be relocated from Winnipeg to Trenton, Ontario.

[12] The ARP opposed the RMP’s request for an adjournment, and the trial proceeded on May 25, 26, 27, 28, 31, June 1, 2 and 4, 2021, on the following issues:

i. Relocation/mobility: child’s primary residence; ii. Parenting issue: communication, decision-making responsibility and parenting time; iii. Imputation of Respondent Mother’s Income; iv. Child support, including s.7 expenses ongoing and retroactive, and adjustment of Canada Child Benefit received; v. Costs.

[13] On June 4, 2021, the court released an endorsement that read:

The Respondent Mother’s parenting plan is now predicated on a move to Trenton, Ontario anticipated to occur on or before the end of September 2021. It is therefore premature for me to render a final order based on the occurrence of an event that may or may not happen.

[14] As a result, the conclusion of the trial was recessed to October 18, 2021 and counsel for both parties were directed to file an affidavit from each of their clients to update the court on the return date. The court reserved its discretion to set a time for cross-examination on the affidavits to be subsequently filed, if determined necessary. A temporary order was made to address the parenting issues in the interim.

[15] The RMP issued an amended motion to change dated June 3, 2021, in which she clarified the changes she is seeking to the Leef Order as amended by the Consent to be as follows:

i. A continuation of the alternating two (2) week shared parenting arrangement, until such time as the child reaches school age, specifically junior kindergarten, at which time the ARP shall exercise parenting time with Ivy-Rose three (3), consecutive weekends out of each month following drop-off of the child on Fridays after school, until Ivy-Rose’s return on Sunday at 7:00 p.m.; ii. Though the RMP does not oppose a continuation of the joint custodial decision-making arrangement with the ARP, she seeks a final decision-making mechanism wherein, following a thorough canvassing of the issue with the ARP and failing an agreement through mediation, the RMP would reserve final decision-making authority in respect to the child’s health, education, culture, language, religion, and spirituality, and extracurricular activities; iii. A holiday parenting schedule that alternates the major holidays, specifically March/Spring Break, Easter, Summer Vacation, Thanksgiving and Christmas Break/Eve/Day; iv. A holiday parenting schedule that permits the minor holidays to fall as they may during the regular parenting schedule, specifically Family Day, Victoria Day, Canada Day, August Civic Holiday, Halloween and the child’s birthday; v. A holiday parenting schedule that permits each party the respective holidays of Mother’s and Father’s Day; vi. A continuation and ongoing promotion of the child’s relationship with the maternal and paternal grandparents; vii. A termination of the clause limiting the jurisdiction in which the child may reside, specifically that of only the Durham Region, to a less restrictive clause, which adheres to the notice provisions contained in the Children’s Law Reform Act, as amended on March 1, 2021; viii. Proportional contribution to the child’s section 7 special and extraordinary expenses; ix. Arrears of child support payable by the ARP in the amount of $2,944.00; x. Child support payable pursuant to section 9 of the Child Support Guidelines and section 3 of the Child Support Guidelines once applicable; xi. Enforcement of support and section 7 expenses, through FRO.

[16] The trial resumed November 18, 2021, by which time the RMP had relocated to Trenton, Ontario, and final submissions were concluded at that time.

Issues

1. Was there a written agreement (Consent) between the parties amending the terms of the final order of Her Honour Justice Leef dated April 23, 2019, and if so, what were the terms?
2. If not, has there been a material change in circumstances that justifies an amendment to the Leef Order?
3. If so, has there been a material change in circumstances that justifies an amendment to the Leef Order, as modified by the Consent?
4. If so, what parenting plan would be in the best interest of the child, Ivy-Rose Rushlow-Garland, born June 10, 2018?
5. What resolution of the child support and section 7 expense issues are in the child’s best interest?

Position of Ms. Alexis-Rose Tremblay-Garland

[17] The RMP wishes to continue to be jointly responsible for parental decision making, with the RMP having final decision-making authority in the event of an impasse. The RMP also wishes to continue the alternating two (2) week shared parenting schedule until Ivy-Rose commences school in September 2022.

[18] However, it is the RMP’s position that once the child starts school, it is in the best interest of Ivy-Rose to primarily reside with her in Trenton for the following reasons:

i. The RMP has been and remains Ivy-Rose’s primary care giver since the child’s birth, which has grown and flourished into an inseparable bond between mother and daughter; ii. The RMP has continued to promote and foster a relationship between the ARP and Ivy-Rose; iii. The RMP has continued to communicate regularly and in an effective manner with the ARP; iv. The RMP has and will continue to promote a relationship between Ivy-Rose and the paternal grandparents; v. The RMP has presented a plan of care, both now and in the future, which will maximize the ARP’s time with Ivy-Rose; vi. The RMP will resume her self-employment as a floral/events designer with her company, Designs by Alexis Rose, which will allow her to accommodate her work schedule to fit Ivy-Rose’s needs. The RMP works from her home studio, is readily available to provide immediate care to Ivy-Rose and will not require daycare. On those occasions when she must be away from the home, her partner is able to organize his schedule to provide care for Ivy‑Rose and, in the event of an emergency, childcare is available on the military base around the clock; vii. The ARP has not continually acted in Ivy-Rose’s best interests; viii. The ARP has attempted to portray the RMP in a negative light to gain a litigation advantage during these Court proceedings.

[19] In her oral testimony, and in her written material, the RMP recites a litany of incidences with the ARP alleging that his past parenting conduct has been characterized as deceitful, manipulative, coercive, threatening, unresponsive, irresponsible and based on his own self-interest, not on the best interests of Ivy‑Rose.

Position of Mr. Mitchell Rushlow

[20] The ARP wishes to continue to be jointly responsible for parental decision making, and to continue the alternating two (2) week shared parenting schedule until Ivy‑Rose commences school in September 2022.

[21] However, it is the ARP’s position that once she starts school, it is in the best interest of Ivy-Rose to primarily reside with him in Sunderland for the following reasons:

i. The ARP relocated from Newmarket to Durham shortly after Ivy-Rose’s birth for the sole reason of being close to his daughter. He has remained residing at the same residence since the final order was made, and pursued the steps necessary to obtain a shared parenting arrangement whereby he provides care to his daughter on an alternating two week schedule. By doing so he has been able to develop a strong and loving relationship with Ivy-Rose. The ARP has positively met the child’s need for physical, emotional and psychological safety, as well as her security and well-being; ii. The ARP has met Ivy-Rose’s needs and in particular provided her stability; iii. The ARP has ensured that Ivy-Rose has had the stable custody and access arrangements necessary to form strong relationships with both her parents. In particular he has made sure she has had sufficient contact with both her parents, without prolonged separations, to maintain a meaningful and close relationship with both of them. In resolving parenting disputes, he has recognized the importance of bonding, attachment and stability in her young life. iv. The ARP has provided Ivy-Rose psychological stability while in his care and, by providing a stable environment for her throughout her young life, he has met her emotional needs. He has not experienced any past instability in his living arrangements or introduced new partners in a manner that represents instability for Ivy-Rose, and has shown himself to be the parent most able to provide the stability required to her; v. The ARP has provided as much care to Ivy-Rose as the RMP would allow, with a gradual expansion over time to the point where he has been sharing her care on an equal basis since September 2019, with the exception of a short period following the Covid lockdown during which the parties agreed that it would be prudent to do so given the nature of the ARP’s work (essential service) and the risk to Ivy-Rose; vi. The ARP is able to meet Ivy-Rose’s financial needs by being gainfully employed over the years and continuously upgrading and improving his skills. His foresight in recognizing the importance of establishing a Registered Education Savings Plan for Ivy-Rose as early as 2019 is reflective of his ability to plan ahead and ensure that her education and financial needs are looked after; vii. The ARP has demonstrated himself to be a parent who is willing to co‑operate and communicate with the RMP when faced with parenting challenges.

[22] In his oral testimony, and in his written material, the ARP recites a litany of incidences with the RMP alleging that her past parenting conduct has been characterized as deceitful, manipulative, coercive, threatening, unresponsive, irresponsible, violent, and based on her own self-interest, not on the best interests of Ivy-Rose.

Analysis and the Law

[23] Variation of a final order dealing with the parenting of a child whose parents were never married is governed by s.29(1) of the Children's Law Reform Act, which reads:

A court shall not make an order under this Part that varies a parenting order or contact order unless there has been a material change in circumstances that affects or is likely to affect the best interests of the child who is the subject of the order.

[24] On a variation application, such as the motion to change brought by the RMP, a two-stage inquiry is what must be conducted. Firstly, is there a material change in the circumstances of the child which requires the existing order to be changed? And, if so, what parenting plan is in the best interests of the child in the “new circumstances”?

Material Change

[25] The material change in this case is not that the RMP has changed her residence to Trenton. The shared parenting regime between her parents, on a two-week rotating basis, has been the status-quo for Ivy-Rose, with the exception of a few weeks following the Covid lockdown in March of 2020, since her Mother’s move to Orillia in September of 2019. It continued following her Mother’s relocation to Winnipeg, Manitoba, and it has continued following her Mother’s relocation to Trenton, Ontario. The material change in the circumstances of Ivy-Rose which necessitates a variation to the current parenting plan is that she will be starting in-person school in September 2022.

[26] Ivy-Rose’s Mother resides in Trenton, Ontario and her Father resides in Sunderland, Ontario. The distance between her parents’ residences requires travel time of approximately one hour and forty-five minutes one way, in good weather. The physical geography between the two residences makes it impractical for her to attend school from both residences. This new circumstance makes it necessary to vary the current alternating two (2) week schedule. Ivy-Rose’s parents cannot agree on the required variation and, therefore, it is the responsibility of the court to determine whether it is in Ivy-Rose’s best interest to reside primarily with her Mother and attend school in her Mother’s catchment area in Trenton, or to reside primarily with her Father and attend school in her Father’s catchment area in Sunderland.

Extent of the Variation

[27] Final orders resolving parenting issues are deemed to be appropriate and in the best interest of the child concerned. When such an order is based on the parents’ Minutes of Settlement there is a presumption that the parents agreed that the terms were in the best interests of the child at the time (see A.T.W. v K.W.W., 2020 ONSC 4894, at para. 42). Accordingly, when a judge is considering changes proposed by a child’s parents as a result of a material change triggering a review of a final order the court must take a careful and measured approach and only alter those provisions necessary to address the impact of the material change on the child’s circumstances.

[28] Only those elements of the Leef Order that require variation due to the change in the child’s circumstances should be altered and then only in a manner that is in the child’s best interest. The new order must specify precisely which paragraphs are being changed or terminated to reflect the child’s new circumstances, and the balance of the terms in the final order should remain in full force and effect, unless those terms are no longer in the best interest of the child. Parents can always make amendments to a final order where both parents consent to the amendment.

Best Interest Test

[29] In determining the best interests of a child, the court shall consider all factors related to the circumstances of the child, and, in doing so, shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being. (see s.24(2) CLRA). The factors to be included in the consideration of the child’s circumstances include,

Factors

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

(a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability; (b) the nature and strength of the child’s relationship with each parent, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life; (c) each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent; (d) the history of care of the child; (e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained; (f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage; (g) any plans for the child’s care; (h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child; (i) the ability and willingness of each person in respect of whom the order would apply to communicate and co-operate, in particular with one another, on matters affecting the child; (j) any family violence and its impact on, among other things, (i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and (ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to co-operate on issues affecting the child; and (k) any civil or criminal proceeding, order, condition or measure that is relevant to the safety, security and well-being of the child. 2020, c. 25, Sched. 1, s. 6.

Factors relating to family violence

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

(a) the nature, seriousness and frequency of the family violence and when it occurred; (b) whether there is a pattern of coercive and controlling behaviour in relation to a family member; (c) whether the family violence is directed toward the child or whether the child is directly or indirectly exposed to the family violence; (d) the physical, emotional and psychological harm or risk of harm to the child; (e) any compromise to the safety of the child or other family member; (f) whether the family violence causes the child or other family member to fear for their own safety or for that of another person; (g) any steps taken by the person engaging in the family violence to prevent further family violence from occurring and improve the person’s ability to care for and meet the needs of the child; and (h) any other relevant factor. 2020, c. 25, Sched. 1, s. 6.

Past conduct

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

Allocation of parenting time

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

Application to related orders

(7) This section applies with respect to interim parenting orders and contact orders, and to variations of parenting orders and contact orders or interim parenting orders and contact orders. 2020, c. 25, Sched. 1, s. 6.

[30] The Leef Order addressed the issue of mobility specifically at paragraph 18, which reads:

The child shall continually reside in the Durham Region. In the event either party wants to remove the child from Durham Region, the parties shall have the other parent’s consent or shall obtain a court order for same.

[31] I accept the RMP’s evidence that the parenting time pursuant to the terms of the Leef Order quickly turned into a shared parenting arrangement due to the RMP’s request of the ARP that he consent to her relocation to Orillia, Ontario. I also accept her evidence that the ARP granted verbal consent conditional upon the RMP executing a written agreement (the Consent) varying specific terms of the Leef Order, including:

i. early commencement of a shared parenting arrangement, specifically a two (2) week rotating parenting schedule, with exchanges occurring on alternating Sundays; ii. holidays to be exercised pursuant to the 2 week schedule, save for Christmas; iii. a termination of the ARP’s child support obligation; iv. withdrawal from FRO enforcement; v. the hyphenation of the child’s surname to “Rushlow-Garland”; vi. payment of outstanding arrears of $2,944.00.

[32] The RMP fully complied with the Consent she swore she signed. Following her move to Orillia on September 1, 2019, the ARP’s first two (2) week block of parenting time commenced September 8, 2019, and the schedule agreed to in their Consent has continued to date virtually uninterrupted by the RMP, with the exception of the initial Covid Lockdown. Instead of Ivy-Rose’s middle name being altered to reflect the ARP’s surname as provided for at paragraph 15 of the Leef Order, the child’s surname was hyphenated to Rushlow-Garland in accordance with the ARP’s original claim, and this task was completed in October 2019. Also, the notice of withdrawal from FRO was executed by the RMP on September 18, 2019.

[33] I find it probable that there was a written consent agreement as described by the RMP prepared and executed by the RMP and requested by the ARP, for the following reasons:

i. The ARP had already been involved in litigation regarding parenting issues including child support, and it is reasonable to assume that he would have become aware of the mechanisms in place to enforce child support obligations, including written agreements, written orders, and their enforcement by the FRO. Armed with this experience, I find it more likely that the ARP would have required the RMP’s agreement in writing to terminate his obligation to pay her child support, and would not have relied on her oral agreement only. This finding is buttressed by the fact that the Leef Order contemplated that the RMP would have primary residence of Ivy-Rose for a fixed period and then a shared parenting schedule would be in place (see paragraph 2 of the Leef Order). Paragraph 29 of the Leef Order specifically provides that when the shared parenting takes effect, child support shall be set off between the parties and will continue to be enforced through FRO. However, the evidence shows that the ARP has relied on the Consent and ceased paying child support to the RMP as of September 1, 2019, contrary to the Leef Order, and enforcement of the child support terms of the Leef Order terminated shortly thereafter; ii. The ARP admits in his material that the move to Orillia proposed by the RMP would have her residing closer to his residence in Sunderland than if she relocated to other areas in Durham, such as Pickering or Ajax; iii. The ARP has displayed a pattern throughout this litigation of requiring that parenting arrangements between the parties be reduced to writing; he commenced an application within days of Ivy-Rose’s birth seeking a detailed parenting plan, he withheld Ivy-Rose in September 2020 until ongoing arrangements with the RMP were reduced to writing. Thereafter, 14B motions on consent were filed with the court on roughly a monthly basis to reduce to writing the ongoing parenting arrangements between the parties as those arrangements evolved. This is not meant as a criticism – this is a reasonable and measured approach to take where there are trust issues between the parties. However, the trust issues in this case slice both ways.

[34] I therefore find that the RMP complied with paragraph 18 of the Leef Order and did obtain the consent of the ARP prior to moving to Orillia. I find that the ARP is not being truthful when he submits that the RMP moved twice without his consent – once to Orillia, and again when she moved to Winnipeg.

[35] I find it probable that the ARP failed to produce a copy of the Consent because he may believe, or has been given advice to the effect, that it was not in his self-interest to do so for the following reasons:

i. The RMP had already admitted in her motion to change all of the concessions she made in exchange for him permitting her move to Orillia, and so production of the Consent would provide him no further benefit; ii. If he produced the Consent it would be an admission that: a) he consented to a change in the Leef Order which allowed the RMP to relocate with the child outside of Durham; and, b) he owed the RMP arrears of child support pursuant to the Leef Order in the amount of $2,944. The ARP has proven himself to be a shrewd negotiator throughout his dealings with the RMP and I find it likely that, if the ARP did not owe the RMP child support arrears at the time she was seeking to relocate to Orillia, he would have requested an equal share of the Canada Child Benefit when the shared parenting regime commenced. The final submissions of the ARP do not actually deny that arrears were owing to the RMP at the time. Instead the ARP, in his final submissions, challenges the RMP to prove it.

[36] The mistake the RMP made was that she did not insist that the ARP sign the Consent first so she could depart their meeting with a fully executed copy in hand. I reject the suggestion of counsel for the ARP that his email to the RMP dated March 22, 2020 supports his evidence that there was no Consent signed for two reasons:

i. This communication concerns the proposed move to Winnipeg, and not Orillia; ii. The ARP states in his email, on March 22, 2020, “I feel it’s better we stay in Durham until we agree on a school…”, failing to acknowledge that six and a half months earlier, on September 1, 2019, the RMP had already relocated out of Durham to Orillia, Ontario, along with Ivy-Rose, (see paragraph 15, Statement of Agreed Facts).

[37] I find it unlikely that the RMP was coerced or misled by the ARP into agreeing to these terms, as she originally alleged in her testimony, for the following reasons:

1. The Leef Order already anticipated that a shared parenting arrangement would be in place by March 2020. Expediting the schedule would leave the RMP freer to pursue her romance with Mr. Niewiadomski who initially was in British Columbia but subsequently had arranged a transfer east to Winnipeg;
2. The RMP has been consistent throughout these proceedings that the nature of her work and her general circumstances makes childcare unnecessary. It is one of the reasons she cites for why Ivy-Rose should be in her primary care. The Leef Order, however, anticipated the need for childcare and provided that the party exercising parenting time shall be solely responsible for ensuring adequate care is secured and for any costs that arise from same. I find it likely that this clause was intended to protect the RMP for any liability for the sharing of the ARP’s childcare expenses as, given the nature of his work at the time, it was likely that he would have to incur childcare expenses in order to transition to a shared parenting arrangement. I can find no basis for the RMP’s allegation that she agreed to expedite the shared parenting regime because the ARP led her to believe that a change at his work meant that he would be providing care to Ivy-Rose at all times during his two weeks. If this were so, and he were trying to conceal this fact from her as she alleges, I find it unlikely that he would have sought childcare from a childcare facility known to the RMP and where he knew she had a friend employed.
3. The RMP relocated to Orillia with Ivy-Rose on September 1, 2019 (see Statement of Agreed Facts), and the alternating two (2) week shared parenting arrangement officially commenced on September 8, 2019, when the ARP exercised his first 2 weeks of parenting time with Ivy-Rose. However, it was the evidence of the RMP that the Consent she refers to was not signed until October 2019. I am therefore unable to find, as alleged by the RMP, that she was coerced or misled into signing the written consent as a precondition of her move to Orillia;
4. It is not unreasonable that the parties would agree that child support cease at the time the shared parenting began, as opposed to the set-off contemplated in the Leef Order: The ARP would have Ivy-Rose half the time, and he would be responsible for 100% of the daycare expense incurred to accommodate his work pursuant to paragraph 7 of the Leef Order. As well, it was not a term of the consent that the RMP was required to share the Canada Child Benefit, as is commonly done in shared parenting arrangements;
5. Both parties have adhered to the first five terms of the Consent detailed by the RMP. The RMP claims that the ARP has failed to comply with the term of the Consent that he pay child support arrears that were owing as of the commencement of the alternating two (2) week shared parenting schedule in September 2019 in the amount of $2,944;
6. Finally, the RMP did not have to accept the terms proposed by the ARP. She had the option of returning to court to obtain an order in accordance with the mobility provisions of the Leef Order, and thereby avoid agreeing to the terms she now claims were being extracted unfairly by the ARP. It is unlikely that the ARP would have opposed the motion given his admission that Orillia is closer to his residence than many other areas within Durham, where she could have chosen to move without his consent or obtaining a court order.

Evidence of Poor Parenting

[38] As is common practice when parenting issues remain unresolved and end up at trial, these parties spent 8-10 days of trial time focusing on every fault of the other parent they could identify since their child was born; embellishing on the other parent’s shortcomings, and minimizing their own. It is not necessary in this decision to scrutinize every transgression alleged by the parties because, by the end of the trial, after having heard them speak about their experience parenting Ivy-Rose, I am convinced that she is a very fortunate little girl, that she has two devoted and competent parents who are able and willing to meet Ivy-Rose’s needs, and a strong extended family network who love and support her in every possible way. I will, however, touch on several highlights in order to illustrate to the parties that they have both been guilty of behaviour in the past that was not child focused, and ignored their daughter’s needs.

i. The Drive

[39] In February 2020, the RMP approached the ARP seeking his consent to relocate to the military base/community in Winnipeg, Manitoba, with Ivy-Rose, as that is where her partner, Mr. Michael Niewiadomski, was to be based. This was the first time the RMP raised with the ARP the issue regarding her plans to relocate to Manitoba with Ivy-Rose, (see paragraphs 16,17 of the Statement of Agreed Facts). The RMP alleges that in February 2020, the ARP gave his verbal consent to her proposed relocation, and on that basis she proceeded with her plans to move.

[40] I find it unlikely that the ARP gave his consent verbally at their meeting in February 2020 as alleged by the RMP for two reasons:

a) His past conduct (concessions negotiated to obtain his consent to her relocation to Orillia) suggests that he would have requested some concession in exchange for his consent, such as a request that the Canada Child Benefit be split, but the RMP mentions no such discussion; b) I find it probable that she would have pointed out with some vigor her reliance on his earlier verbal consent in her email response when he denied his consent in writing, (see email exchange on March 22, 2020) but instead she stated, “I’m sorry to hear that you don’t consent. I can see how that will unfortunately be an issue going forward.”

[41] If the RMP had sought legal advice in the face of the ARP’s refusal to consent to her proposed relocation, she would have been advised that the general rule in Ontario at that time in early 2020 was that, if the relocation does not impact on the other parent’s time with the child, then neither consent nor a court order was necessary. The amendments to the Children's Law Reform Act specifying parental obligations including notice requirements in the event of a proposed relocation of a child, were not proclaimed into law until March 2021.

[42] I find every complaint made by the ARP regarding the impact of the RMP’s decision to relocate to Winnipeg, Manitoba with Ivy-Rose to be valid including, without limitation, the following:

a) The one month then switch schedule initially proposed by the RMP to accommodate the move and maintain the shared parenting regime was not in Ivy-Rose’s best interest because it was too long a period for her to be away from either parent, given her young age and stage of development. Ivy-Rose was barely twenty (20) months old when the RMP requested the ARP’s consent to this further relocation. At that age Ivy-Rose required frequent quality contact with both parents to maintain a robust and loving attachment to each of them. This change in her routine would substantially increase the likelihood that she would make strange and suffer separation anxiety as a result of the monthly transition in care. I find it likely that exchanges would have caused Ivy-Rose much more distress than the alternating two (2) week routine that she was accustomed to; b) The twenty (20) plus hour drive from Durham to Winnipeg every two weeks to maintain the alternating two (2) week shared parenting schedule would be arduous for an adult, never mind a toddler. The suggestion made by the RMP that she was able to make it a “fun road trip” for them every time is unlikely, and ignores the risks posed by the realities of inclement weather, heavy truck traffic, and the remoteness in the event of distress or mechanical failure; c) Concerns regarding the risks associated with the ongoing covid pandemic were also not adequately addressed with the ARP.

[43] I find that this decision by the RMP was not child focused. The compromise reached, that Ivy-Rose’s parenting time with the RMP would be exercised at the maternal grandparents’ residence in Pembroke, Ontario was a much better plan, allowing for the shared parenting schedule between her parents to be maintained, and frequent regular contact with her maternal grandparents to resume.

ii. The Termination of Child Support

[44] When the RMP relocated to Orillia, Ontario, along with Ivy-Rose on September 1, 2019, the ARP ceased paying the table amount of child support for his daughter Ivy-Rose, and a Notice of Withdrawal from FRO was executed shortly thereafter, on September18, 2019. The RMP’s relocation to Orillia accelerated the plan toward the shared parenting schedule specified in the Leef Order by roughly seven (7) months, to September 2019. The commencement date anticipated in the Leef Order was March 2020. The Leef Order stipulated at paragraph 29 that, “As of March 2020, when shared parenting takes effect, child support shall be set off between the parties and will continue to be enforced through FRO.”

[45] I find that the ARP was able to extract from the RMP, as conditions of his approval of her proposed relocation outside of the Durham Region, both a termination of his child support obligation pursuant to the Leef Order and a withdrawal from FRO.

[46] The Child Support Guidelines provide at s. 9 for shared custody arrangements such as the one in place between the parents of Ivy-Rose, and it reads as follows:

Shared parenting time

9. Where each parent or spouse exercises parenting time with respect to a child for not less than 40 per cent of the time over the course of a year, the amount of the order for the support of a child must be determined by taking into account,

(a) the amounts set out in the applicable tables for each of the parents or spouses; (b) the increased costs of shared parenting time arrangements; and (c) the condition, means, needs and other circumstances of each parent or spouse and of any child for whom support is sought. O. Reg. 32/21, s. 3.

[47] A consideration of these factors often results in a set off payment as stipulated in the Leef Order particularly where, as in the case at bar, there is a significant disparity between the incomes of a child’s parents.

[48] I find that the ARP was motivated by his own self-interest when he requested these concessions from the RMP in exchange for his consent to her relocation outside of Durham. The ARP confirmed in his evidence that his occupation was an essential service and therefore the Covid pandemic and the rolling lockdowns had little impact on his employment, and his income remained relatively steady, but for a short period where he completed a program to enhance his trade skills. Through his testimony it was confirmed that he was quite familiar with the nature of the RMP’s occupation, and that she was self-employed through her own business, namely Designs by Alexis Rose, a floral company for events, for which she was well qualified, both by education and experience.

[49] I find it probable that the ARP would have been aware that the RMP’s occupation would not be designated as an essential service. I also find it probable that he was aware of the negative impact the restrictions on social gatherings would have on her business which included providing flowers and event services to weddings, bridal and baby showers, anniversary and birthday celebrations, and funerals. At the time she agreed to change the Leef Order from an entitlement to a set off amount for child support to a termination of child support, the RMP could not have anticipated that in a few short months her industry would be negatively impacted by Covid restrictions.

[50] The ARP touted his steady stable income as a factor to be considered when accessing Ivy-Rose’s best interest. He suggested in his submissions that the RMP’s financial instability increased her financial dependence on her current partner, and that such dependence detracted from the RMP’s argument that her parenting plan was in Ivy‑Rose’s best Interest. In making this argument the ARP has ignored the fact that his failure to pay set-off child support for his daughter Ivy-Rose exacerbates the economic dependency of which he complains. Child support is the right of the child, and I find that this decision by the ARP was not child focused.

iii. The Withholding of Ivy-Rose

[51] I find that both parties embellished their respective accounts of the events which transpired between September 20-21, 2020, and that both parties behaved inappropriately. Although the RMP’s behaviour could be characterized as an immature and irresponsible display of poor judgement, I find that it does not rise to the level of domestic violence contemplated in the amendments to the Children's Law Reform Act as alleged by the ARP. I reject the ARP’s submission that the RMP’s conduct on September 20 and 21, 2020 was harassing and, therefore, constitutes family violence as defined in the Children's Law Reform Act, s.24(4).

[52] From the RMP’s perspective, she had granted significant concessions to the ARP in exchange for his consent to her move out of Durham Region to Orillia, on September 1, 2019. In September 2020, approximately a year later, the ARP was demanding that she agree to return to reside in Durham Region in accordance with the Leef Order, even though she had agreed that there would be no change to the ARP’s parenting time (two weeks on/two weeks off) resulting from her relocation to Winnipeg. The ARP’s demand would have appeared high handed and arbitrary given that he had consented to her move to Orillia and she had not lived in Durham since September 1, 2019, had no support network to return to; no partner, no parents, and no bricks and mortar employment.

[53] I find that the ARP was not being truthful when expounding his narrative that this was the second time the RMP had relocated out of Durham Region contrary to the Leef Order and without his consent. I find that he intentionally withheld a copy of the Consent signed by the RMP, and at the same time was challenging her to produce proof of the Consent.

[54] I find it likely that the approach taken by the ARP, to withhold Ivy-Rose at the conclusion of his parenting time (Ivy-Rose had no parenting time with her Mother from August 25, to October 2, 2020) and demand a new parenting agreement that would include a police enforced provision that Ivy-Rose not be removed from Durham Region, incited the RMP’s equally disingenuous behavior.

[55] From the ARP’s perspective, the RMP had ignored paragraph 1 of the Leef Order which provided that they make major decisions effecting Ivy-Rose jointly, and if they were unable to come to an agreement, they would attend mediation. Instead, the RMP ignored his concerns and unilaterally moved forward with her plans to relocate to Winnipeg and had done so before he even became aware of it. I find that he was genuinely concerned for the welfare of his daughter and fearful that despite the RMP’s assurances that she would continue to comply with the shared parenting arrangement, the grueling nature of the trip every two weeks – even in good weather – would soon erode her resolve.

[56] I accept the evidence of the ARP that, from his perspective, the RMP was becoming increasingly non-compliant with the Leef Order and he was concerned about the difficulties he would have when trying to enforce his parenting rights in Winnipeg, in the middle of a pandemic. This does not excuse his attempt to ignore the existence of the Consent and extort a new agreement from the RMP that would include a police enforced provision that she would not remove Ivy‑Rose from Durham Region. I agree with the ARP that the RMP’s behaviour over those two days in September 2020 did not constitute good, effective and cooperative communication conducive to de-escalating a conflict between two parents, but neither did his threat to her that she was not to show up at his residence for the exchange or he, or a member of his family, would call the police.

[57] The bright spot in the drama that unfolded in those few days in September was that it was resolved in a manner that was in Ivy-Rose’s best interest – her mother did the commute between Winnipeg and Durham Region, but she did not – Ivy-Rose spent two weeks with her Father at the paternal grandmother’s home in Durham Region, then two weeks with her Mother at the maternal grandparent’s home in Pembroke, Ontario.

[58] Both parties must take responsibility for escalating beyond reason the conflict between them in this instance, and thereby putting their daughter’s wellbeing at risk. Given their past conduct I find it would not be in Ivy-Rose’s best interest to give either of her parents final decision making authority. Better decisions have been made for her where both parties agree, or there is a third party intervention.

The Factors

A. The child’s needs, given the child’s age and stage of development, such as the child’s need for stability

[59] The parties were barely twenty years old when Ivy-Rose was born, and their short romance had already ended when the RMP shared the news of her pregnancy with the ARP. Early adulthood is typically a time of instability for most Canadian young people. A period of changing partners, changing jobs and changing locales is considered somewhat of a rite of passage from youth into adulthood. The decade between the age of 20 and the age of 30 is typically characterized by change, which often includes leaving the home of parents and establishing one’s independence and autonomy. In the human experience this change often includes partnering. The RMP has made this transition since Ivy-Rose was born. The ARP has not yet done so and continues to reside at his mother’s residence, where he moved to be closer to Ivy-Rose following her birth.

[60] The ARP has pointed to the changes in the RMP’s life since Ivy-Rose’s birth and asked the court to characterize her conduct as unstable for purposes of assessing which parent’s plan is in Ivy-Rose’s best interest. He invites the court to conclude that, because she has moved a number of times and has now partnered with a member of the Canadian Armed Forces (where transfers are routine), this instability is likely to continue. The ARP submits that the RMP’s unstable behaviour is in stark contrast to his own conduct which has been to maintain the same residence in the same jurisdiction where the child and her mother resided at the time of Ivy-Rose’s birth.

[61] The instability contemplated under the best interest test is of a nature that would be detrimental to a child. The evidence before the court relating to the child Ivy-Rose who will be turning four years old in June of 2022, is that she has formed strong attachments to both her parents, has maintained meaningful and close relationships with both of them since her birth, and that her bond to both parents is strong and stable. There is no evidence before the court that the changes made by the RMP since the child’s birth have had a detrimental impact on Ivy-Rose at all.

[62] The ARP is over twenty-six (26) years of age and, at the time of trial, had been in a stable relationship with the same woman for a significant length of time. Given the ARP’s age, his stable employment and what appears to be the committed nature of his current relationship, I find it unlikely that he will continue to live with his mother indefinitely. I don’t think a relocation by the ARP would create instability for Ivy-Rose; it would just be a transition and there is no reason to believe that the ARP would not continue to meet all of Ivy-Rose’s needs while she is in his care, just as he has always done. As a result, I find that there is just as great a chance of the ARP changing residences as there is of the RMP accompanying her partner on a transfer to a new base. However, I find that these moves pose little risk to Ivy-Rose’s physical or emotional wellbeing because both of her parents, with the few exceptions I have already pointed out above, have made sure their daughter’s needs are met.

[63] I reject as invalid the ARP’s complaint that the RMP’s “premature introduction” of Ivy-Rose to her current partner Michael Niewiadomski is indicative of her inability to provide stability for Ivy-Rose. There might be some merit to this argument if there was a pattern of successive intimate partners, but the RMP has continued in the same committed relationship with Michael Niewiadomski since 2019, when Ivy-Rose was barely a year old.

[64] Although the RMP’s employment has not been deemed an essential service, as has the ARP’s, and has been impacted negatively by the Covid restrictions, there is no evidence before the court that it has had a negative effect on the RMP’s ability to provide for Ivy-Rose’s day to day needs such as food, clothing and shelter.

B. The nature and strength of the child’s relationship with each parent, and grandparents

[65] It is not disputed that both parties love Ivy-Rose dearly and both have a strong and loving relationship with her. At the time Ivy-Rose was born, the RMP was still residing with the maternal grandparents and the ARP resumed residing with the paternal grandmother, with the paternal grandfather in close proximity. Both extended families provided the parties tremendous support in the care of their new baby, and Ivy-Rose has had routine contact with both sets of grandparents since birth. The evidence before the court is that she is accustomed to being cared for by her grandparents for whom she has a strong and loving attachment. Consistent and meaningful access between Ivy-Rose and her grandparents was specifically anticipated by the parties at the time they entered into the Minutes of Settlement on November 5, 2018, and the provision in the Leef Order dealing with this issue requires no amendment as a result of the child’s change in circumstances.

C. Each Parent’s willingness to support the development and maintenance of the child’s relationship with the other parent

[66] The ARP alleges that the RMP has failed to support his relationship with Ivy‑Rose, and he goes into significant detail about his concerns in this regard. The ARP’s complaints do have some validity, but they are predominantly historical in nature and relate to circumstances immediately following the birth of Ivy-Rose. The ARP admits that after the parties entered into their Minutes of Settlement dated November 5, 2018, which formed the basis of the Leef Order, their parenting relationship improved significantly and they were able to cooperate and accommodate one another for a significant period of time.

[67] The ARP alleges that, once he refused to consent to the RMP’s request to relocate to Winnipeg, their ability to coparent deteriorated and the RMP was no longer supportive of his relationship with Ivy-Rose. He points to the sacrifice he made giving up his parenting time when the Covid pandemic began in order to keep Ivy-Rose safe, and how the RMP tried to turn it around and argued that it was evidence of his disinterest in parenting his daughter. I accept the ARP’s evidence on this point, and I also agree with his submission that enlisting the assistance of his parents or a daycare service while he is working has not diminished his involvement as a father or an equal parent. I find that he has been and continues to be a devoted and committed father to Ivy-Rose, and I reject the RMP’s allegations to the contrary.

[68] I find that the parties’ trust in one another began deteriorating over the early months of 2020, ultimately culminating in the events of September 2020 when police involvement was required, and that both parties must take responsibility for the “tit for tat” game-playing that started to go on, with the ARP challenging the RMP to produce the Consent, knowing he had failed to give her a copy, and suggesting that she had moved out of Durham Region to Orillia without his consent and contrary to the Leef Order.

[69] Ultimately, however, the evidence shows that the parties agreed to a shared parenting arrangement on an alternating two (2) week schedule commencing September 1, 2019, when Ivy-Rose was barely 15 months old. The evidence also shows that, for the most part, the RMP has held up her end of the bargain since, even after the ARP refused to consent to her move to Winnipeg, and to the point that she undertook to drive twenty (20) plus hours every two weeks to ensure that Ivy-Rose continued to be parented fifty percent (50%) of the time by the ARP. I, therefore, must reject the ARP’s argument that the RMP failed to support his relationship with Ivy-Rose.

D. History of Care of the Child

[70] Both parties have played an equal and active role in Ivy-Rose’s parenting since September 1, 2022, and both have shown an excellent capacity to parent by ensuring that all of the child’s needs have been met while in their care.

E. Child’s Cultural, Linguistic, Religious and Spiritual Upbringing and Heritage

[71] The parties appear to be aligned on the child’s cultural linguistic, religious and spiritual upbringing and heritage. There was no evidence placed before the court regarding parental conflict in this area of Ivy-Rose’s upbringing.

F. Plans for Child’s Care, the Amount of Time Spent with the Child by Each Parent, and the Maximum Contact Principle (s.24(6))

[72] The court must adhere to the maximum contact principle when considering which of the parties’ parenting plans is in the best interest of Ivy-Rose. Simply stated, it means that a child should have as much time with each parent as is consistent with the best interests of the child. This principle applied to cases under the Children's Law Reform Act before the amendments that came into force in March 2021 but has now been specifically proclaimed at s.24(6) of the Children's Law Reform Act which reads,

Allocation of Parenting Time

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

[73] Since September 2019, Ivy-Rose has been in the care of each parent equally based on their alternating two-week shared parenting arrangement and, in accordance with the Leef Order, the parties have shared joint decision-making authority.

[74] The ARP’s proposed parenting plan is that, until Ivy-Rose begins junior kindergarten in September 2022, she shall continue to be cared for by each party jointly, that is, to continue their alternating two-week shared parenting arrangement. Thereafter, Ivy‑Rose would reside primarily with him, and would commence school at McCaskill’s Mills Public School, part of the Durham District School Board. Students attend that school from kindergarten to grade eight, and it has a French immersion program. The school is within a ten-minute drive from the ARP’s home. Also, Stonemoor Day Care where Ivy‑Rose would attend while he was working (if Stonemoor is unavailable due to Covid, Ivy-Rose would be in the care of his parents) is located within the same building as the school which removes any need for further transportation.

[75] When the ARP works day shifts, he would be responsible for Ivy-Rose’s drop-off and pick-up from Stonemoor and will resume his parenting duties once he is finished work. For night shifts, he will spend time with Ivy-Rose from the morning until he leaves for work at around 5:00 pm. Thereafter, the paternal mother, with whom Ivy-Rose resides, would look after Ivy-Rose while he is at work. The ARP has not, and will not, take on jobs on the weekends when Ivy-Rose is in his care. The ARP considers this a reasonable plan as it allows him to continue to work full-time while ensuring Ivy-Rose is being properly cared for and having social interaction with children of her age.

[76] It is the ARP’s plan, as normalcy resumes after Covid, to enroll Ivy-Rose in activities that are appropriate for her age and interests, namely, he will continue to take her to dads-and-tots type martial arts classes, tap dancing and piano lessons. He recognizes that as a young child, Ivy-Rose’s interests will constantly evolve and these decisions are fluid and subject to change at times. He will remain constant in his plan to love and care for her and to foster her relationship with her grandparents and extended paternal family.

[77] Under the ARP’s plan, the parties will equally share all major holidays and the RMP will have parenting time with Ivy-Rose three weekends out of every four weekends, from Friday after school to Monday return to school, and an equal share of the summer vacation.

[78] The ARP considers this proposal to be his way to ensure that Ivy-Rose’s time with her mother will be maximized, however, I find that in crafting this parenting plan, the ARP has failed to consider the nature of the RMP’s work. As mentioned in the ARP’s submissions the RMP has three years of university education, five years of retail sales experience and eight years of floral design experience, she has been self-employed in an online floral design/event business she operates as “Designs by Alexis Rose”. I accept the evidence of the RMP that she provides planning and floral services for weddings, showers, anniversaries and other special occasions from which she generates her income. It is common knowledge that the majority of these events are scheduled on weekends, and this conflicts with the parenting time proposed for the RMP in the ARP’s parenting plan. This makes the ARP’s plan that Ivy-Rose enjoy parenting time with her Mother three weekends out of four untenable for the following reasons:

i) Ivy-Rose would have to be cared for by her Mother’s partner or a third party provider in order for the RMP to maintain her income from employment, and would negatively impact the amount of quality parenting time Ivy-Rose would have with her Mother; or, ii) The RMP would have to give up her opportunity to earn an income from her employment to have parenting time with Ivy-Rose, which may destabilize her long-term ability to meet the child’s financial needs.

[79] Neither option is in the child’s best interest. However, the schedule set out in the order below ensures to the extent possible, that Ivy-Rose has parenting time with her Father when he is likely to be available to spend meaningful time with her, and parenting time with her Mother when she is likely to be available to spend meaningful time with her. The parenting arrangement set out below meets the objective specified in the legislation (s.24(6) supra), while the parenting plan proposed by the ARP does not.

[80] The ARP gave evidence that his employment is predominantly Monday to Friday, includes shift work and the occasional weekend. He also gave evidence that he could accept additional weekend work on those weekends where he was not parenting Ivy-Rose. The ARP also indicated in the course of his final submissions that there had been some changes in the terms of his employment giving him additional flexibility over his working hours through the week. I am hopeful that this change will allow the ARP to keep Ivy-Rose in his care overnights on Sunday in addition to his Friday and Saturday nights.

[81] The ARP’s suggestion that the parenting plan proposed by the RMP will mean that Ivy-Rose’s tight ties to her paternal family, including her grandparents and his siblings, will be severely affected is simply not true. Nor is it true as alleged by the ARP that Ivy-Rose will be removed from an environment that she has grown up in and is familiar with. Pursuant to the parenting plan specified in the order below, Ivy-Rose will be continuing to have parenting time with her Father at his residence on almost a weekly basis, she will enjoy equal time with him throughout her summer vacation and be with him for half of all major holidays. Given the current strong and healthy nature of her attachment to her Father and his family, it is likely that Ivy-Rose will have no difficulty transitioning to the new parenting schedule where she will be having parenting time with her Father on a regular and frequent basis.

G. Ability and Willingness to Care For and Meet the Needs of the Child

[82] In general, both parties are able and willing to meet Ivy-Rose’s needs. Her parents have relied on one another at times to ensure that her needs were met, and when one party was unable to attend Ivy-Rose’s medical appointments, the attending parent would apprise the other of the outcome of the appointment. The parties have not always agreed on the best approach to meeting her medical needs but they have both continued to follow the advice of Ivy-Rose’s family doctor. Ivy-Rose is well cared for, and her needs are readily met when she is in the care of either parent or her grandparents. She is a very fortunate child to have such loving support from both her maternal and her paternal family.

H. Ability and Willingness to Communicate and Cooperate

[83] Historically, communication and cooperation between the parties has been problematic due in large part to their inexperience and immaturity. However, as their ability to parent has evolved, there have been many points in time when their communication and cooperation has been completely child focused and exemplary, as occurred following the issuance of the Leef Order. Unfortunately, there have also been instances where they have been more concerned with their own agendas and have been avoidant, disrespectful, inflammatory and dishonest with one another. Where trust is absent suggestions such as family counselling, mediation, Google Calendar, and other tools to improve communication are likely to be rejected or ineffective.

[84] Both parties have, however, shown a willingness to improve their capacity to parent, and in particular their capacity to coparent. Between the commencement of the trial in May 2021 and final submissions at the conclusion of the trial, both parents committed to completing the post-separation coparenting program offered through the John Howard Society, and the feedback was very positive. I am satisfied that these parents will implement the strategies and tools taught in the program to keep their future communication more child focused. They have learned that, to the extent they can minimize and not escalate any conflict between one another, Ivy-Rose will enjoy a healthier, happier childhood.

[85] Both parties have much to offer Ivy-Rose and she should not be deprived of the opportunity to have both parents share in her upbringing. They have proven that they do not always agree but their compromises often prove to be in Ivy-Rose’s best interest. Accordingly, the joint decision-making authority granted at paragraph 1 of the Leef Order shall continue.

I. Self-Help Conduct – Raising Serious Issues About a Parent’s Ability to Act as a Parent (s.24(5))

[86] Both parents have exercised self-help conduct, the RMP when she ignored the court-ordered obligation to make major decisions regarding the child jointly and, instead of attending mediation as directed in the court order, ignored the objections of the ARP and relocated with Ivy-Rose to Winnipeg anyway. The ARP did so by failing to produce the Consent signed in good faith by the RMP setting out the terms agreed to by the parties when she relocated outside of Durham to Orillia in September 2019, and again when he ignored the parenting schedule and withheld Ivy-Rose from the RMP in September 2020, while demanding that she agree to a police enforced provision that she not remove Ivy-Rose from the Region of Durham.

[87] The parties are reminded that court orders are not suggestions; they are judicial directives and must be followed. Considerable upset, unnecessary risk to the child, and considerable legal expense may have been avoided if the parties had first followed their court order and proceeded to mediation when they could not agree on a major decision impacting Ivy-Rose.

J. Whether Each Party has Complied with their Obligations Under the Act, Order, or Agreement and the Likelihood of Future Compliance

[88] I find that, when the RMP first considered a move outside of Durham Region, she did the right thing and in accordance with paragraph 18 of the Leef Order she approached the ARP for his consent. For the reasons already stated above, I find that the parties entered into a written agreement, (the Consent), wherein the RMP made significant concessions, none of which she has reneged on, in exchange for the ARP’s consent to her move outside of Durham Region to Orillia.

[89] I find that the ARP’s decision not to produce the Consent, not to acknowledge the arrears he agreed were owed to the RMP in the Consent, and not to acknowledge he had consented to her move to Orillia showed bad faith and contributed to the RMP’s decision to disregard a number of the provisions of the Leef Order, including paragraphs 1, 11, 18, and 19.

[90] As previously reviewed, it is likely that the RMP was advised that she would be absolved of any breach of the Leef Order caused by her relocation as long as she maintained the ARP’s parenting time. I find that the ARP’s subsequent allegations that she had moved twice without his consent in blatant violation of the Leef Order, and his demand that she enter into a new agreement whereby she would agree to a police enforced term not to remove Ivy-Rose from Durham Region, further undermined the RMP’s trust in the ARP and led to the dramatic escalation in the conflict which occurred in September 2020.

[91] Both parties must share responsibility for the deterioration in their mutual trust, and both parties must share responsibility for the resulting escalation in conflict which occurred in September 2020. It is that combination of unfortunate circumstances that has led to litigation, the RMP commencing a motion to change on October 27, 2020, and this trial.

[92] In summary, I find that the RMP violated the terms of the Leef Order, and that the ARP breached the terms of the Consent by which the parties agreed to modify the Leef Order.

[93] I am hopeful that both parties have learned how costly it can be in many ways when parties ignore the terms of orders and agreements and how important it is, for their daughter’s sake, that they deal with one another in a more honest and forthright manner as they continue to co-parent.

K. Child Support and s.7 Expenses

[94] The ARP, who is not self-employed, produced notices of assessment for the following years:

2017 – $51,803.00 2018 – $49,779.00 2019 – $27,328.00 2020 – $43,253.00

[95] The RMP who is self-employed through her own business, namely Designs by Alexis Rose, produced notices of assessment for the following years:

2017 – $13,945.00 2018 – $25,528.00 2019 – $18,915.00 2020 – $10,000.00

[96] Pursuant to paragraph 24 of the Leef Order dated April 23, 2019, the ARP began paying child support to the RMP for the support of their daughter, Ivy-Rose born June 10, 2018, in the amount of $368/month commencing December 1, 2018. The Leef Order contemplated that the ARP would pay set off child support to the RMP when the shared parenting schedule contemplated in the Order commenced, which was anticipated to be March 2020. The shared parenting arrangement was accelerated and commenced with the ARP enjoying his first two-week block of time with Ivy-Rose commencing September 8, 2019. I have found, for reasons earlier explained herein, that the parties entered into a Consent signed by the RMP on approximately October 11, 2019 which relieved the ARP of his obligation to pay set-off child support to the RMP for Ivy-Rose commencing September 1, 2019, the date she relocated with Ivy-Rose to Orillia.

[97] I accept the RMP’s evidence that included in the Consent was the ARP’s acknowledgement that he owed arrears of child support to September 1, 2019, of $2,944.00. However, since September 2019, the RMP has continued to receive the full amount of the Canada Child Benefit in the sum of $568 per month, even though Ivy-Rose has been in her Father’s care half the time since that date. As a result, I find that the RMP has more than recouped the child support arrears owing on the date the shared parenting regime commenced by virtue of receiving the ARP’s share of the Canada Child Benefit for the last two and a half years. The ARP’s share of that Canada Child Benefit was $284 and it would have taken just over ten months to retire the child support arrears.

[98] The RMP commenced a motion to change on October 27, 2020, in which she sought ongoing child support payable by the ARP to the RMP on the first (1st) day of each month in accordance with the Federal Child Support Guidelines. Child support is the right of the child and I find that this action commenced by the RMP would have resuscitated the obligations set out at s.9 of the Child Support Guidelines applicable to shared custody arrangements, and the set-off previously stipulated in the Leef Order. I find that the ARP would have been entitled to a credit against the monthly set-off amount for his share of the Canada Child Benefit that the RMP has continued to receive subsequent to the satisfaction of the child support arrears stipulated in the consent and throughout the balance of the shared parenting arrangement.

[99] I have some sympathy for the ARP’s argument that, because of the RMP’s self-imposed circumstances, she was intentionally underemployed and failed to mitigate the impact of Covid on her industry by seeking other employment. Both parents have a legal obligation to support their children and must earn what they are capable of earning. There is no evidence before the court that the RMP sought other gainful employment. The evidence shows that she chose instead to rely on the support of her new partner Michael Niewiadomski and continued to promote her business, hoping that her industry would recover.

[100] A parent is considered intentionally underemployed if they choose to earn less than they are capable of earning, and there is no need to find a specific intent to evade child support to make such a finding. In considering whether to impute income on this basis, the court must consider what is reasonable in the circumstances. ( See Drygala v. Pauli, (2002), 2002 41868 (ON CA), 61 O.R. (3d) 711 (Ont. C.A.)) The average of the RMP’s last four (4) years of annual income amounts to $17,097. I find it reasonable to impute to the RMP an annual income for 2020 of roughly her average income over the last four (4) years, in which case the set-off amount payable by the ARP would have been satisfied by his share of the Canada Child Benefit.

[101] I have no evidence of either party’s income for 2021 and will not guess at what their set-off obligations for 2021 would be, however, I suspect it would be roughly the same. Commencing September 1, 2022, the ARP must pay to the RMP the full table amount of child support payable for one child, Ivy-Rose, based on his 2021 income, and s.7 expenses as defined in the Child Support Guidelines shall be shared in proportion to the parties’ respective incomes. Section 7 expense shall not include routine extra-curricular expenses but must be special and/or extraordinary in accordance with the definition set out in the Child Support Guidelines. As proposed by the RMP, during July and August, set-off child support shall be payable to reflect the shared parenting arrangement for those two months. There shall be no adjustment to the Canada Child Benefit, which shall continue to be collected by the RMP.

Conclusion

[102] It is the right of Ivy-Rose to enjoy the best parenting arrangements possible, in the circumstances of her parents. The analysis undertaken by the court in the crafting of that parenting arrangement is governed by what is in her best interest from her perspective and not from the perspective of either one of her parents. It is a child-centric analysis, and both contextual and future focused. Ivy-Rose’s parents are loving, committed parents equally able to meet her needs in all respects. The following order maintains her parents’ capacity to earn an income sufficient to meet her day to day financial needs and ensures, to the extent possible, that Ivy-Rose’s in-person parenting time with both parents is maximized.

[103] Final Order to go:

1. Paragraphs 1, 3, 4, 6, 7, 8, 9, 10, 11, 12, 14, 17 and 20 of the final order of Leef, J. dated April 23, 2019, shall remain in full force and effect.

Primary Residence

2. The RMP shall have primary residence of the child, Ivy-Rose, commencing September 3, 2022, however, both parties may attend Ivy-Rose’s first day of school. Ivy‑Rose’s parents shall remain civil and courteous to one another in order to share in celebrating this day with Ivy-Rose. Mr. Niewiadomski is welcome to attend every other school day with Ivy‑Rose, however, her first day of school shall be reserved to the RMP and the ARP who have had shared parenting of Ivy-Rose since she was a toddler.

Entitlement to Information about the Child

3. Pursuant to s.20(5) of the Children's Law Reform Act, both parties shall be entitled to make enquiries and to be given information about the child’s health, education, and general welfare from all the child’s service providers including, without limitation, all her doctors, dentists, teachers, childcare providers, coaches, tutors, etc. The RMP as the primary care parent, shall post to the parties’ parenting app, a list of all Ivy-Rose’s service providers including contact information, and update the information promptly in the event of any change. The child’s schedule on the parenting app will include all her appointments, school and extra-curricular activities. If required, the parties shall consent in writing to the release of information from all the child’s service providers to each respective parent.

Parenting Time

4. From now until September 3, 2022, Ivy-Rose shall continue to reside with the ARP and the RMP on the alternating two (2) week shared parenting schedule that has been the status-quo since September 2019. If Ivy-Rose is in the care of the ARP on September 3, 2022, she shall be returned to the care of the RMP in order that Ivy-Rose may settle in and be ready to start in person school in the RMP’s catchment area, anticipated to be the week of September 6, 2022.

5. Commencing the first Friday following Ivy-Rose’s commencement of school, the ARP shall have parenting time with Ivy-Rose three weekends out of every four weekends, from Friday at 6:30 pm until Sunday at 6:30 pm. The return of Ivy-Rose may be extended to return to school in Trenton on Monday morning which shall be in the ARP’s discretion. The ARP shall advise the RMP at the exchange on Friday whether he will be returning Ivy‑Rose to school Monday morning at the conclusion of his parenting time. If Monday is a holiday the ARP’s option of returning Ivy-Rose to school after his parenting time shall be extended to return to school Tuesday morning. Otherwise, his parenting time shall end Monday at 6:30 pm.

6. Unless the parties otherwise agree in writing, all exchanges shall take place at the Walmart Plaza, at highway 401 and Stevenson Road South, Oshawa.

7. Virtual parenting time (video chats and telephone calls) with the other parent shall occur three times per week, sixty (60) minutes before Ivy-Rose’s regular bedtime. Ivy-Rose shall be permitted to call either parent anytime she requests.

8. The following holiday schedule shall override the regular schedule referred to above:

i. Summer Holidays – Ivy-Rose shall reside with the ARP and the RMP on an alternating two (2) week schedule which shall start on the first Sunday after the end of the school year until the Saturday before the commencement of the new school year. For each year, the child shall reside with the RMP from the Saturday before the start of the new school year. If Ivy-Rose is not otherwise in the RMP’s care, the exchange shall take place on Saturday at noon; ii. Christmas/New Year – The parties shall equally share the child’s Christmas Break. The child shall stay with the RMP for the first half of the Christmas Break in odd-numbered years and the last half of the Christmas Break in even-numbered years, and with the ARP for the first half of the Christmas Break in even-numbered years and the last half of the Christmas Break in odd-numbered ears. The first half will start on the Sunday after the last day of school in December and end at noon on the date that is the half-way point of the Christmas Break. The second half will start at noon on the date that is the half-way point of the Christmas Break and end on the Sunday at noon before the start of school on the January return date; iii. Spring/March Break – The child shall stay with the ARP during the Spring Break in odd-numbered years and with the RMP in even-numbered years, from the next day after the break starts until the start of school after the break, or as the parties otherwise agree in writing; iv. Good Friday/Easter Monday – The child will stay with the RMP in odd-numbered years and with the ARP in even-numbered years, from Thursday at 6:30 pm to Monday at 6:30 pm; v. Mother’s Day – if the child is not otherwise with the RMP on this weekend, the parties shall switch a weekend in May; vi. Father’s Day – if the child is not otherwise with the ARP on this weekend, the parties shall switch a weekend in June; vii. If a long weekend falls on the ARP’s weekend, the child shall remain in his care on that day. For clarity, this includes both Family Day and Victoria Day; viii. Any other times the ARP and the RMP may agree to in writing.

9. Paragraph 3 of the Leef Order which provides that, “Both parties may attend extracurricular activities, scheduled events, and appointments regardless of the parenting schedule.”, shall be expanded to include:

The RMP shall be responsible for scheduling all of the child’s routine medical and dental appointments and shall notify the ARP within forty-eight (48) hours of scheduling the appointment. Provided the professional does not object, the ARP shall have the liberty to attend the appointment virtually and the RMP shall facilitate same at the outset of the appointment. In the alternative, should the ARP wish, he shall attend the appointment in person. In the event the ARP is unable to attend the appointment virtually or in person, the RMP shall provide an update to the ARP regarding her discussion with the professional(s) within 24 hours of the appointment.

10. Paragraph 6 of the Leef Order which provides that “Any additional access requested by the parties must be given in writing at least twenty-four hours prior to. Access shall not be unreasonably withheld.”, shall be expanded to include that the parent making the request will be responsible to pick up and return the child, unless the parties otherwise agree.

11. Paragraph 10 of the Leef Order which provides that “In the event Ivy-Rose is ill, parenting time shall continue as scheduled, unless the child’s doctors advise in writing that she is unable to travel. In the event the child is unable to attend access due to illness, the access time shall be compensated.”, shall be expanded to include that missed time shall be made up within 60 days, otherwise parenting time shall only be changed upon the written consent of both parties.

12. Neither party, nor anyone on their behalf, shall post, share or repost any details as to the parties’ family law matter, the other party or the other party’s family in any capacity on any social media platform. The parties shall, at all times, maintain civil communication as it relates to co-parenting the child, namely Ivy-Rose Rushlow-Garland, and shall not disparage the other parent or their family in the child’s presence, nor allow any other adult to do so. Both parties shall strictly adhere to the attached Judges’ Rules for Separated Parents, and have been cautioned that a breach of these rules may constitute child abuse because it may put Ivy-Rose at risk of emotional harm.

Child’s Identification

13. Paragraph 17 of the Leef Order that provides “Both parties’ signatures shall be required for the renewal of any and all government identification.”, shall be expanded to include:

Both parties will act in good faith and not unduly delay this process. In the event the child obtains a passport, the RMP shall be the custodian of the child’s passport, along with the child’s other legal documents, and shall provide the ARP with same should he wish to travel internationally with the child and has obtained the RMP’s consent in advance. Within two (2) weeks of the child’s return from her vacation, the ARP shall return the child’s passport to the RMP.

Travel

14. Paragraph 19 of the Leef Order that provides “The parties shall not travel with the child outside of Ontario without the written consent of the other parent.”, shall be expanded to include:

, or court order – parental consent not to be unreasonably withheld. The parties shall inform one another of the particulars of any travel plans outside of Ontario, including but not limited to where the child will be staying, who the child will be with and relevant contact information. In the event the travel plans include the child flying, a complete itinerary shall be provided at least 14 days in advance of departure.

Relocation

15. In the event the parent having primary residence of Ivy-Rose wishes to relocate with the child, they must comply with the provisions of the Children’s Law Reform Act governing Decision-Making Responsibility, Parenting Time and Contact – Residence and Relocation – currently s.39.1 through s.39.4.

Child Support

16. There are no child support arrears owing by either party to the other as of today.

17. From now until August 31, 2022, there shall be no child support payable by either party to the other.

18. The RMP shall continue to be solely entitled to the child’s Canada Child Benefit, and there shall be no retroactive division of the Canada Child Benefit between the parties.

19. Commencing September 1, 2022, and on the first of every month thereafter, the ARP shall pay to the RMP for the support of their daughter, Ivy-Rose Rushlow-Garland, born June 10, 2018, a monthly amount which shall be based on the ARP’s annual income for 2021 and the Child Support Guidelines. The parties have leave to bring a 14B motion on notice to my attention to set this amount if a consent order cannot be agreed to. This provision shall not apply for July and August of every year for which months the ARP shall pay to the RMP the set-off amount for child support, to reflect their shared parenting of Ivy-Rose during her summer vacation.

Section 7 Expenses

20. The parties shall share Ivy-Rose’s special and extraordinary expenses in proportion to their respective incomes and in accordance with the Child Support Guidelines. Only extraordinary extracurricular activities shall be considered a s. 7 expense. For a s. 7 expense to be eligible for reimbursement, the written consent of the other party must be obtained in advance and shall not be unreasonably withheld. The party seeking the reimbursement shall provide the other parent with the receipt of the expense and the other party shall provide his/her payment within 30 days, unless the parties otherwise agree.

21. For purposes of this section, the RMP’s proportional share shall be based on the greater of her actual income, or the amount that she would earn if she were employed on a full-time basis at Ontario’s minimum wage.

Costs

22. A date shall be obtained from the Trial Coordinator to make oral submissions on costs. Parties to comply with Rule 24 (12.1) of the Family Law Rules.

23. The parties shall exchange income information as outlined in s. 21 of the Child Support Guidelines including income tax returns and notices of assessment by August 1st of each year for the previous year, such that child support including s. 7 contributions may be adjusted by September 1st of the current year.

24. In accordance with s. 9(1) of the Family Responsibility and Support Arrears Enforcement Act, 1996, S.O. 1996, c.31, “[U]nless this order is withdrawn from the Director’s office, it shall be enforced by the Director and… amounts owing under the order shall be paid to the Director, who shall pay them to the person to whom they are owed.”

25. This Order bears interest at the rate of 2% per annum on any payment or payments of which there is a default from the date of default.

HUGHES J. Released: May 3, 2022