ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
MARK CREDLAND
Applicant
– and –
VANESSA CYMBALISTY
Respondent
Self-represented
Self-represented
HEARD: November 8-10, 12, 15-19, 23 & 24, 2021
REASONS FOR JUDGMENT
P.J. Monahan J.
1The central issues in this proceeding are: (i) whether the parties’ nine-and-a-half year old daughter, PC, should continue to reside primarily with the Applicant, Mark Credland (“Mark”) in Toronto, or whether PC’s primary residence should be relocated to Oceanside, British Columbia, where the Respondent, Vanessa Cymbalisty (“Vanessa”) now lives; and (ii) how decision-making responsibility for PC should be allocated.
2It is commonly remarked that relocation cases are amongst the most difficult in family law,1 and this case is no exception. Mark and Vanessa both love their daughter deeply and they recognize that it is in PC’s best interest to have a strong relationship with both of them. But they now live 4,500 km away from each other, which makes a regular shared parenting schedule impractical, and they each firmly believe that it is in PC’s best interest to reside primarily with them rather than the other parent. Over the course of this 11-day trial, the continuing animosity, frustration and anger between Mark and Vanessa was palpable, and it is clear that there is no prospect of them coming to an agreement as to suitable parenting arrangements for PC, including where she should primarily reside. It therefore falls to the court to make the difficult determination of what parenting arrangements would be in PC’s best interests.
3Given the diametrically opposed positions advanced by the parties, it has been necessary for me to assess the evidence that has been tendered and make findings of credibility. Even though I have attempted to express these findings in a considered manner, I recognize that it will be difficult for the parties to read and accept my analysis and conclusions. My hope is that, over time, Mark and Vanessa will find a way to work together, so that PC will have a fair opportunity to realize the happiness, personal growth and life success that they both so desperately desire for her.
4Part I of these reasons sets out certain background facts, in order to permit the reader to properly understand the narrative and analysis that follows.
5Part II sets out the issues to be decided.
6Parts III, IV and V summarize the relevant evidence presented at trial. It should be noted that these sections are summaries only of the relevant evidence, as opposed to a verbatim account of everything that was said, or every document tendered, over the course of this trial. I note, in any event, that in addition to the 11 days of viva voce evidence, there were over 100 exhibits admitted comprising thousands of pages, rendering any attempt to summarize this entire body of material impractical.
7Part VI sets out the relevant law applicable to the issues raised by the parties.
8Parts VII - X set out my analysis of the facts and law along with my findings and conclusions.
9Part XI sets out the terms of the Final Order that should issue.
I: Background Facts
10Mark and Vanessa (the “parties”) began living together in January 2012. Their daughter PC was born on March 8, 2012. In 2014, Vanessa, Mark and PC moved into a house that Mark purchased at 189 Kingston Road in Toronto (the “Kingston Road property”).
11In October 2016 the parties separated, with Mark moving out of the house at 189 Kingston Road. In the initial period after their separation, the parties were able to agree on a parenting schedule, whereby PC resided during the week with Vanessa at the Kingston Road property and with Mark on the weekends.
12In the summer or fall of 2017, Vanessa began a long-term relationship with a new partner, Robert Pattee (“Robert”). Eventually, Vanessa and Robert began living together at 189 Kingston Road.
13On June 28, 2018, the parties consented to the order of Ferguson J. (the “Ferguson Order”), pursuant to which PC would reside with Vanessa on 9 of 14 nights over a two-week period and with Mark on the other 5 of 14 nights. The Ferguson Order further provided that PC was to habitually reside in Toronto; that neither party was to change PC’s residence from Toronto without the consent of the other or by court order; and that the OCL prepare a s. 112 report in relation to custody and access of PC.2
14On September 4, 2018, PC did not attend the first day of Grade One at Duke of Connaught Public School in Toronto (“Duke of Connaught”), where she was registered in the French Immersion program. Without Mark’s knowledge or consent, Vanessa had moved with PC to Collingwood and had registered PC at a public school there. On September 6, 2018, Mark brought an urgent motion, which resulted in the consent order of Paisley J. (the “Paisley Order”), which provided that, pending Vanessa bringing a mobility motion, the Ferguson Order remained in full force and effect. The Paisley Order required Vanessa to move back to the Kingston Road property in Toronto and that PC attend school at Duke of Connaught. In that same month, Vanessa and Robert had their first child, a daughter PAR.
15On January 30, 2020, Mark and Vanessa agreed to final minutes of settlement resolving financial issues in the litigation (the “Minutes of Settlement”). Pursuant to the Minutes of Settlement, Mark was to pay table child support to Vanessa for the benefit of PC, and spousal support in the amount of $2,800 per month until September 1, 2022, at which time his obligation to pay spousal support would cease. The terms of the Minutes of Settlement were incorporated into a Final Order issued by Goodman J. (the “Goodman Order”) on January 30, 2020.
16On March 27, 2020, Vanessa advised Mark that, due to the Covid-19 pandemic, she was moving with PC to a house Robert had rented in Collingwood, Ontario. Mark brought an urgent motion seeking an order that Vanessa return PC to his care in Toronto. This resulted in an order issued by Nakonechny J. in April 2020 (the “Nakonechny Order”), which confirmed that PC’s habitual residence was to continue to be in Toronto. However, while school attendance remained suspended due to the Covid-19 pandemic, Vanessa can continue to reside with PC in Collingwood every second week, while on alternate weeks PC would reside with Mark at his residence on Kingston Road. Nakonechny J. also ordered that once in-person school resumed, PC was to attend Duke of Connaught in person and Vanessa was directed to ensure that she had a home in Toronto for PC to reside in with her at that time.
17In September 2020, Vanessa advised Mark that she and Robert were planning on going on vacation for three weeks to British Columbia and requested Mark’s consent for PC to accompany them. When Mark refused, Vanessa left PC in Mark’s care.
18Vanessa and Robert did not return to Ontario after the conclusion of the three-week vacation and, instead, have continued to reside in Oceanside, British Columbia since September 2020. In March 2021, Vanessa and Robert had their second child, a daughter PAI.
19On July 23, 2021, Vanessa came to Toronto and, without notice to Mark, attempted to remove PC from a dance studio where PC was participating in a summer program. This resulted in an order made by Shore J. on July 28, 2021, stating that, pending trial, PC was to primarily reside with Mark in Toronto, and that Vanessa would have parenting time once a month in the Greater Toronto area, supervised by her parents (the “Shore Order”). These supervised visits never took place as Vanessa’s parents were unwilling to act as supervisors.
20In September 2021, PC began attending Grade Four in person in the English program at Norway Public School, a public elementary school near the Kingston Road property, where she lives with Mark.
II: Issues
21The following are the issues to be decided in this proceeding:
a. Is it in PC’s best interest for her to relocate from Toronto to Oceanside, British Columbia?
b. In light of the determination under paragraph (a) above, what order regarding parenting time is in PC’s best interest?
c. In light of the determinations under paragraphs (a) and (b), above, what order regarding decision-making responsibility is in PC’s best interest?
d. Should there be any changes to the Goodman Order of January 30, 2020 dealing with financial matters, including in respect of child or spousal support, or property claims relating to 189 Kingston Rd in Toronto?
22Note that I propose to address these issues in the particular order set out above. I recognize that considering the issues in this order might be seen as being inconsistent with certain cases which have held that, before determining a mobility issue, the court must first determine who is the “primary caregiver” for the child.3 These cases were decided based on the Supreme Court of Canada’s 1996 decision in Gordon v. Goertz, which decided (amongst other things) that the views of a child’s “primary caregiver” are entitled to “great respect and the most serious consideration”.4 Following Gordon v. Goertz, some courts concluded that it was necessary to first identify the “primary caregiver” of the child before deciding whether the child should be relocated.
23Recent amendments to the Children’s Law Reform Act5, described in detail below, now provide a comprehensive statutory framework governing relocation cases, one which significantly amends the principles set out in Gordon v. Goertz. The new framework also specifically defines the circumstances in which one parent or the other will bear the burden of proof on relocation issues. The views of the primary caregiver to the child are certainly a relevant and important consideration in that analysis. But the CLRA mandates a holistic analysis of the relocation issue based on the best interests of the child, guided by the primary consideration of the child’s safety, security and well-being. In my view, it would be inconsistent with this statutory framework to embark on a preliminary inquiry into which parent is or has been the primary caregiver to the child, prior to or separate from the holistic analysis contemplated by the Act. Moreover, in determining what parenting orders would be in PC’s best interests, the logically prior issue is where she should primarily reside.6 Only after that matter is settled will it be practical to consider what other parenting orders might be appropriate in the circumstances of this case.7
III: Mark’s Evidence
a. Overview
24Mark testified on his own behalf and did not call any other witnesses.
25Mark is 45 years old. He was born in the United Kingdom and most of his family continues to reside there. Since September 2020, he has lived with PC at 189 Kingston Road in Toronto, in the house he purchased in 2014. He is employed full-time as an engineer and in 2020, his annual income was $132,000.
26Mark acknowledged that throughout the parties’ co-habitation and following the separation in October 2016, his work commitments involved a great deal of travel. However, he stated that in January 2020, he accepted a management position which involves limited travel, and he now generally works from home or from an office located in Toronto.
b. PC’s Education
27Mark provided evidence as to PC’s education.
28Mark stated that during Grade One and Grade Two, PC was often absent from or late to school. He produced school records showing that in Grade One, PC was absent 22 days while over the first six months of Grade Two, PC was absent on 31 days and late on 43 other days. Mark stated that over this period of time, PC was in Vanessa’s care for nine out of every fourteen days and that the attendance issues generally occurred on days when PC was in Vanessa’s care.
29At the end of Grade One, Mark met with PC’s teacher who advised him that PC was falling behind in her literacy. Mark asked whether her being in French Immersion was part of the problem and whether PC would be better off in the English stream. The teacher advised him to give French Immersion another year.
30PC continued in French Immersion in Grade Two, but she was still struggling with her literacy skills. Her struggles were compounded by the fact that she was missing so much school. Over the fall of 2019 and the early winter of 2020, PC was either late for school or absent approximately 60% of the time. She would often arrive at school late in the morning and then call Vanessa during the lunch hour saying that she didn’t feel well and wanted to come home.
31PC’s attendance issues were so significant that they came to the attention of Goodman J., who had been conducting a number of case conferences with the parties in December 2019 and early 2020. Goodman J.’s February 28, 2020 endorsement following a case conference stated that she was sufficiently concerned that “if this situation continues [with PC not attending school], with no proactive steps being taken to determine what is going on and how to address it, the court might conclude that the child is likely in need of protection and involve the CCAS [i.e. the Catholic Children’s Aid Society].” Goodman J. gave the parties until April 3, 2020, the date of a scheduled Trial Management Conference, to demonstrate that PC’s attendance issues were being dealt with on a meaningful basis. Otherwise she would consider referring the matter to the CCAS.
32In the meantime, staff at Duke of Connaught were themselves sufficiently concerned over PC’s poor school attendance that in late February 2020, they contacted the Children’s Aid Society of Toronto (the “Toronto CAS”) to investigate the matter. A social worker from the Toronto CAS, Erin Beal, was in touch with Vanessa in early March 2020 with a view to arranging a meeting with Vanessa and officials from the school to discuss the matter. However, before that meeting could take place, all Toronto schools were shut down due to the outbreak of the Covid-19 pandemic, with the result that the planned meeting to discuss PC’s school attendance problems never took place.
33On April 1, 2020, Vanessa sent an email to Erin Beal of the Toronto CAS advising that PC’s school attendance issues had been resolved. Vanessa stated that PC’s school principal and social worker no longer had any concerns about PC’s attendance. Vanessa advised that the report that had been made to the CAS was “… the mistake of a struggling teacher… Who, full of fear and unable to cope with her responsibilities, lashed out against my family for a circumstance that she did not have any real understanding of.”
34PC’s June 24, 2020 final report card for Grade Two, which was based on her demonstrated learning prior to the school closure period, indicated that her academic performance since Grade One had certainly not improved and may well have deteriorated. Although PC continued to excel in the Arts, she was still performing much below grade level in French speaking, reading and writing, and below grade level in different elements of Mathematics. She was also now performing below grade level in Science and Technology.
35Vanessa questioned Mark over his evidence in relation to PC’s school attendance issues. Vanessa stated that when PC returned from her visits with Mark in the fall of 2019, she was sick and upset and that this caused her to miss school. Vanessa asked why Mark had failed to address her concerns in this regard.
36Mark indicated that he did not believe that PC was sick after spending time with him. He stated that PC was always in good spirits when she was with him and she attended school on days when she was in his care. Mark believed that Vanessa’s claim that PC was not able to attend school because she was sick after spending time with him was just an excuse that Vanessa was using to attempt to explain away the fact that she was having trouble getting PC to school on time.
37Vanessa questioned Mark about two school pictures that had been taken of PC in the fall of 2019, the first picture taken on a day when PC was in Vanessa’s care and the second taken on a day when PC was in Mark’s care. Vanessa asked whether PC appeared to be happier in the first school picture as compared with the second. Mark said he could not really see a difference between the two pictures. Vanessa asked whether, looking at PC’s eyes in the two pictures, she appears more relaxed in the first photo. Mark indicated that he did not know. Vanessa also asked why PC had her hair tied back in the second photo, and whether Mark had picked out her outfit for that day. Mark indicated that he probably thought PC would look more presentable with her hair tied back, and that he did pick out her outfit.
38In September 2020, the TDSB called parents to ask whether they wished their children to enroll in on-line learning for 2020-21. Mark’s evidence was that Vanessa received a call and enrolled PC in online school without consulting him, on the basis that PC had a heart condition that placed her at greater risk from Covid-19. Mark later followed up with PC’s pediatrician and with SickKids to inquire as to whether this was in fact the case. Mark was told that, although PC experienced a heart arrhythmia when she was born, she had not experienced any recurrence of these symptoms since infancy. Mark produced a January 2021 letter from a nurse at SickKids which stated that, with respect to Covid-19, PC is at no greater risk than her peers of either contracting or managing Covid-19 symptoms due to her past cardiac medical history. In the nurse’s opinion, from a cardiac perspective there are no contraindications for PC to participate in in-person learning. SickKids is encouraging families to continue to participate in in-person schooling following the guidelines provided by the provincial government.
39Mark indicated that when in-person learning resumed in the fall of 2021, he enrolled PC in in the English stream at Norway Public School, a local school in his neighbourhood. He reports that PC is now getting to school on time and has not missed any days of school this academic year. He has also arranged for a reading and literacy tutor to work with PC once a week. Mark indicates that given her difficulties with reading and writing, PC has become fearful of making mistakes when reading. However, the tutor is working with PC to overcome her anxieties and her literacy is improving.
40An October 26, 2021 email from PC’s Grade Four teacher, Bronwyn Taylor, reported on PC’s progress to that date. With respect to PC’s literacy, Ms. Taylor stated that PC is working towards grade level expectations and reading and writing, however there continue to be some areas of need. Ms. Taylor reported that they were attempting to address PC’s needs through certain identified supports, as well as through the efforts of a resource teacher, Ms. Arthur. Ms. Taylor acknowledged from past experience that when assessing literacy, there is certainly a transitional piece moving from French Immersion to English and that this could be having an impact on PC’s literacy, particularly with writing.
41A separate note from the resource teacher, Ms. Arthur, explained that she has been meeting with PC several times a week in a small group. Ms. Arthur indicated that PC is a lovely girl with whom she enjoys working. Ms. Arthur reported that the group is working with the Wilson Reading Program which assists students with decoding and phonemic awareness, and she also provided various details about her work with PC.
42In the midst of the trial, Mark received a progress Report Card for PC dated November 17, 2021 (the “November 2021 Report Card”). The parties agreed to submit the November 2021 Report Card into evidence. The document stated that PC has had a good start to Grade Four. She is performing at or above grade level in all subjects except for language (which includes reading, writing, oral communication and media literacy). It is noted that PC struggles with beginning tasks that involve language skills and is encouraged to ask for help when she needs it. It is also stated that PC “often shuts down when she feels overwhelmed and is working on strategies to calm down in these situations so that she is able to get the support she needs.” PC is said to be able to read descriptive writing pieces such as stories and paragraphs and is able to highlight descriptive words being used. Using voice to text she has written a number of descriptive pieces herself. Significantly, the attendance issues that had been of concern in prior years appear to have been resolved, as PC has not been absent from school on any days and has been late five times. The teacher offers her congratulations on a good start to the year and says to “keep it up!”
c. Muskoka CAS Investigation
43Mark provided evidence as to a call he had received from Virginia Edwards of the Muskoka Children’s Aid Society (the “Muskoka CAS”) in the fall of 2020 after Vanessa had moved to British Columbia. Ms. Edwards wanted to speak to PC but, for privacy reasons, couldn’t tell him why. Mark arranged for a social worker from the Toronto CAS to attend at Mark’s home. The social worker attempted to speak to PC, but PC didn’t want to speak to the social worker. In February 2021, Mark received a letter from the Muskoka CAS advising him that the Society had completed their investigation, and that they recognized that Mark was providing appropriate support and care for PC. Mark never learned what the issue was that led to the Muskoka CAS investigation.
d. Incident at Dance Studio July 2021
44Mark recounted the events that happened on the morning of Friday, July 23, 2021, at the dance studio where PC was enrolled in a summer dance program. Mark had just dropped off PC at the dance studio when he received a call saying that Vanessa was there and was attempting to leave with PC. Mark’s evidence was that Vanessa had not told him or anyone at the studio that she was planning on showing up at the studio that day.
45Mark immediately returned to the dance studio. When he arrived there, he observed Vanessa with her arm on PC trying to pull her away. Mark said that he saw Vanessa arguing with one of the dance school instructors and claiming that she had been assaulted by the instructor. Mark immediately called the police and decided to wait outside until they arrived. When the police arrived, they spoke separately with him and Vanessa, along with the owner of the dance studio. Mark stated that it became apparent to the police officers that this was an unscheduled visit by Vanessa and the officers asked Vanessa to leave, which she did. Mark then left the dance studio with PC.
46Mark was advised that Vanessa might show up at his home on Kingston Road that weekend and try to see PC again. In Mark’s view, this would be upsetting to PC in light of what had happened at the dance studio on the Friday. Mark made arrangements to stay with PC at his girlfriend’s condo that weekend. Over the course of the weekend, he received a call from a police officer, who advised him that Vanessa was attempting to locate PC. Mark said that the officer also told him that if Mark disclosed his current location to the officer, Vanessa would be able to obtain that information through a freedom of information request. Based on that advice, Mark decided not to disclose the location of his girlfriend’s condo to the officer.
47A few days after the incident at the dance studio, the parties had a case conference before Justice Shore. Justice Shore ordered that Vanessa’s visits with PC should be supervised by one of Vanessa’s parents in Dundas, Ontario. Mark’s understanding is that these visits did not occur because Vanessa’s parents were concerned over the fact that Vanessa was not vaccinated against Covid-19.
48On August 9, 2021, Vanessa sent an email to the manager of PC’s dance studio asking whether she could come to the studio that week to take PC out to lunch. Vanessa asked the manager not to inform Mark of her request because she feared that he would call the police. The manager of the studio did not reply to the email and, instead, forwarded it to Mark. On August 10, 2021, Mark sent an email to Vanessa asking whether she was back in Ontario and why she did not attend for the initial visit with PC that had been ordered by Shore J. for the weekend of August 7-8, 2021. Mark also stated that he would call the police if Vanessa deviated from the court-ordered plan for parenting time. He also said that Vanessa should get vaccinated against Covid-19 so that the visit ordered by Shore J. for September 2021 could take place as planned.
e. Involvement of Marianne Perz
49In September 2021, Mark got a call from a woman named Marianne Perz who advised him that she was a mediator and a friend of Vanessa’s. Ms. Perz offered to assist in mediating the issues between Mark and Vanessa. Mark thought that Ms. Perz sounded professional and that, if she was a friend of Vanessa’s, Ms. Perz might be able to assist them in working through their difficulties.
50Mark later realized that Vanessa had included Ms. Perz on her list of witnesses for the trial. He was surprised and called Ms. Perz to inquire about this. Ms. Perz advised him that she was not aware that Vanessa had included her on her witness list and that her giving evidence would be inconsistent with her role as a mediator. Ms. Perz advised that she had no intention of appearing as a witness at the trial.
51Mark decided to try to work with Ms. Perz, participating in an intake session and meeting with her on at least one other occasion. Mark does not know whether Vanessa had any meetings with Ms. Perz. Ultimately the mediation with Ms. Perz did not proceed.
f. Criminal Charges laid against Robert and Vanessa in June 2019
52Mark stated that in late May or early June 2019, Robert was charged with assaulting and forcibly confining Vanessa, and Vanessa was charged with assaulting Robert. Mark said that he learned this when he got a call from Robert in which Robert told him that he had been arrested and was then in jail. Mark stated that Robert told him that Vanessa, along with her mother, had conspired to have him charged with assault and that Robert advised Mark to keep Vanessa away from PC.
53Robert’s lawyer subsequently provided Mark’s lawyer with a bail document showing that Robert was charged with assaulting and unlawfully confining Vanessa on September 1, 2017, with assaulting her on March 1, 2019, and with assaulting and forcibly confining her on May 29, 2019. For his part, Mark suspected that PC’s school attendance issues might have been related in some way to her being exposed to domestic violence between Robert and Vanessa.
g. Mark removes documents from residence on Kingston Road in 2017
54Vanessa questioned Mark over whether, in the summer of 2017, Mark had taken her and PC’s ID from the Kingston Road property, where Vanessa was living at the time, without advising her. Mark stated that he was planning to take PC on a trip to Newfoundland in August 2017 and that he wanted to ensure that he had PC’s passport and health card. He and PC attended at the Kingston Road property in July 2017. When Vanessa wasn’t there, Mark used his keys to enter the house with PC and pick up the documents.
55In response to questioning, Mark acknowledged that he would not want Vanessa to enter his residence without telling him in advance and getting his permission. However, Mark stated that he regarded the Kingston Road property as belonging to him and that he did not believe he was committing a crime by entering it.
56Vanessa suggested that the fact that Mark brought PC into the house to obtain documents for the trip to Newfoundland would have caused a great deal of upset to PC. Vanessa suggested to Mark that PC had continued to be upset throughout the fall of 2019 over having entered the Kingston Road property without Vanessa’s permission, and that this had caused PC to miss so many days of school that fall.
57Mark replied that PC was not upset when he brought her with him to the house in July 2017 to get documents for their trip, nor was she upset when visiting him in the fall of 2017. He also stated that this was not the reason for PC’s school attendance problems. Rather, Mark thought it was connected to domestic violence between Vanessa and Robert at that time.
58Mark also acknowledged that he may have entered the Kingston Road property on other occasions in the fall of 2017 using his house keys. At the end of 2017, Vanessa changed the locks at the Kingston Road property and Mark was no longer able to enter the residence without Vanessa’s consent.
h. Concerns over non-payment of child support
59Vanessa questioned Mark as to why he had not paid her child support as required under the Goodman Order. In particular, in certain months in 2020 Mark had paid child or spousal support late, while from October 2020 onward he ceased paying any child support. Mark acknowledged that some of his payments in 2020 were late, and that in July 2020 he had failed to pay $628 that was owing. After making the October 2020 payment, he decided to cease paying child support because PC was living with him full-time and he was paying for all of her expenses, while Vanessa was living in British Columbia.
i. Email exchange on November 15, 2019
60Vanessa asked Robert about an email exchange they had had on November 15, 2019 regarding the time that day when Mark should pick up PC. It appears that the plan had been for Mark to pick up PC at 10 a.m. However, in an email she sent to Mark that morning, Vanessa said that PC had told her that she wanted to spend the day with Vanessa rather than with Mark and that, therefore, Mark should come to pick up PC at 3:30 p.m. Mark agreed to come at 3:30 p.m, and also made the following comments:
[C]an I request that you refrain from reporting PC’s preferences, it makes my skin crawl. In this case it is enough for you to remind me of what the court order says. It comes across as more manipulative gaslighting and the thought that you’re involving [PC] in these efforts is really upsetting to me.
61Mark explained that his statements in this email were prompted by an incident that had happened in November 2019 after they had received the OCL Report.8 The investigator had asked Mark and Vanessa not to discuss with PC any references in the OCL Report to PC’s views. However, Vanessa later contacted the OCL and said that PC had admitted to Vanessa that PC had lied to the OCL investigator about her views when the report was being prepared. Mark said that he found this manipulative and quite upsetting, and that the November 15, 2019 email from Vanessa reminded him of this incident. It was for this reason that he described Vanessa’s reporting PC’s preferences in that email as “making his skin crawl.”
IV: Vanessa’s Evidence
a. Overview
62Vanessa is 40 years old. She was born in Hamilton, Ontario, and her parents live in nearby Dundas, Ontario. Since September 2020, Vanessa has resided in Oceanside, British Columbia with Robert and their two daughters, PAR (age three) and PAI (age nine months). Vanessa has declined to provide her current home address as she is fearful that Mark may attend there and harass or stalk her.
63Vanessa stated that she has been a full-time mother and homemaker since the birth of PC in 2012. She further stated that she was PC’s primary caregiver from the time PC was born until September 2020, when she moved with Robert to British Columbia. She also stated that Mark’s work commitments involved a great deal of travel, and that this limited his involvement in PC’s care and upbringing.
64Vanessa does not work outside the home and thus her income is limited. In 2020, she received spousal support payments of $2,800 per month from Mark, as well as $1,300 per month in child tax benefits or rebates. Until September of 2020, she was also receiving $1,256 per month in child support from Mark, prior to her move to British Columbia.
65Vanessa stated that in March 2021, Robert commenced employment as a chef at a restaurant in Oceanside, earning $3,000 per month. The restaurant is now closed for the winter and will reopen in the spring. It is unclear whether Robert is receiving CERB or some other form of income at this time.
b. Decision to move to Collingwood in March 2020
66Vanessa described the circumstances around her decision to move with Robert to Collingwood in March 2020.
67Vanessa stated that she knew she had to move out of the Kingston Road property by April 1, 2020, in accordance with the Goodman Order. Prior to the Covid-19 pandemic, Vanessa and Robert had been planning to rent a house in Toronto for $3,500 per month. In addition to the child and spousal support payments ordered by Goodman J., Robert had recently been offered a job with a green energy company in Toronto and, in this way, she and Robert would be able to cover the rent payments for the house in Toronto.
68However, once the Covid-19 pandemic occurred, Robert’s job was put on hold and Vanessa was concerned what would happen if Mark did not make his child and spousal support payments as required under the Goodman Order. Therefore, she and Robert decided to move to a house in Collingwood that Robert had rented there in June 2018. Vanessa believed that moving to Collingwood made a lot of sense because there were at that time no Covid-19 cases in Collingwood and PC would be able to attend school online.
69Vanessa stated that she had emails from Mark in which he agreed that she and Robert could move with PC to Collingwood. She agreed to locate these emails and provide them to the court.
70These emails were later introduced by Vanessa. They dealt with an arrangement whereby Vanessa and Robert would move to Collingwood with PC over the summer of 2019, during the school vacation. The emails did not relate to Vanessa’s decision to move to Collingwood in March 2020.
c. Evidence regarding domestic violence
71Over the course of the trial, Vanessa presented evidence describing Mark’s violent behaviour toward her over the course of their period living together as well as after their separation in October 2016.
72Vanessa referred to an incident that had occurred in the spring of 2015 whereby Mark had grabbed her by the arms and thrown her out the back door of their house. Vanessa stated that she reported this incident to the Toronto police in June 2018. It is unclear what investigations were undertaken by the Toronto police, but no charges were laid in connection with this incident.
73In the spring and summer of 2017, Mark participated in a “Choosing to Change” program offered by Catholic Family Services (“CFS”) of Toronto. Vanessa introduced a document summarizing Mark’s participation in the program (the “CFS Report”). The CFS Report included a summary of an assessment interview that was conducted by a CFS counsellor. In this assessment interview, Mark had stated that he had been verbally abusive to his partner including: insulting or swearing at her; criticizing her clothes or appearance; criticizing her care of their daughter; sulking or refusing to talk about an issue; accusing her of having an affair; or being insensitive to her sexual needs and desires.
74Mark was asked why he had engaged in this verbal abuse. Mark said that communication was a significant problem in his relationship with his partner. Mark stated that he had lost patience and acted out verbally when upset. Mark said that he was consciously trying hard to be respectful to his partner and said that he does not intentionally want to offend her. Mark said that he would like to improve communication within their relationship. He wanted to become more aware of the times in which he may be possibly triggering his partner so that he may adjust how he speaks with her. Mark said that he loves his daughter as well as his partner.
75The comments by the CFS counsellor stated that Mark was seen as an appropriate candidate for the Choosing to Change program. Mark had taken some responsibility for his abuse and the counsellor believed that the program may help elevate Mark’s awareness, promote self-reflection and perhaps help him to do some “perspective taking” to better understand the effects of his behaviour on his partner. Mark seemed to the counsellor to be motivated to do some personal change work.
76Mark subsequently attended two sessions of the Choosing to Change program. However due to the travel demands of his job, he was not able to continue with the program.
77Mark and Vanessa also attended an interview together at CFS in June 2017 to explore the possibility of couples counselling. The summary of this interview reported that it was apparent that there was a significant divergence between Mark and Vanessa as to the presenting problem in their relationship. The couple was unable to reach a common ground around a goal to work on for the purpose for attending couple counselling. On that basis, CFS concluded that couple counselling was not appropriate at that time.
78Vanessa stated that in the summer of 2017, Mark broke into the house on Kingston Road where she was living with PC and stole a number of documents. These documents included identification documents for herself as well as PC, along with financial documents relating to her student loans. Although Vanessa changed the locks on the house at the end of 2017, she believes that Mark was subsequently stalking her by coming around to the house on Kingston Road surreptitiously and then running away when either she or Robert noticed him.
79Vanessa also stated repeatedly that Mark and his lawyer had been abusive to her in their emails over the past number of years. Vanessa said that these emails were full of lies and that Mark’s lawyer was unethical, untrustworthy and had acted in bad faith. Vanessa pointed to a series of emails she had received since September 2020, in which either Mark or his counsel refused Vanessa’s requests to send PC to British Columbia for a visit. The emails from Mark and/or his counsel included statements such as: Vanessa had voluntarily gone to B.C. for a holiday which had been extended indefinitely without any explanation; Mark would not allow PC to travel to B.C. without a proper explanation of Vanessa’s long-term plan as to where she would reside; Mark was not withholding PC from Vanessa since, once Vanessa returned to Ontario, the week-about schedule that had previously been in place could resume; in Mark’s view it was not in PC’s best interest to travel back and forth between Ontario and B.C.
80Vanessa introduced a number of reports dealing with family violence. These included a 2018 report prepared by Luke’s Place for the Department of Justice Canada, entitled “What You Don’t Know Can Hurt You: The importance of family violence screening tools for family law practitioners” (the “Luke’s Place Report”). The authors define family violence as “any form of abuse, mistreatment or neglect that a child or adult experiences from a family member”. Domestic and family violence occurs when someone tries to control their partner in ways that can intimidate or oppress them.
81The Luke’s Place Report includes a power and control wheel, which provides a visual description of the various tactics of abuse. These include: using intimidation; using emotional abuse; using isolation; minimizing, denying and blaming; using children; using male privilege; using economic abuse; and using coercion and threats. The Luke’s Place Report notes that actual or pending separation is the second highest risk factor for lethality, following closely behind the primary risk factor, which is a past history of domestic abuse. Sixty-seven percent of the cases reviewed in a 2016 report prepared by Ontario’s Domestic Violence Death Review Committee involved a pending or recent separation. Post-separation abuse involves much more than risk of lethal harm, as most abusers seek ways to reassert their power and control after their partner leaves them. Many family violence survivors experience ongoing trauma, which can have a significant impact on their ability to engage effectively with their family law case. The Luke’s Place Report recommends the adoption of a universal family violence screening tool for family law practitioners.
82Vanessa also introduced a 2021 report from the House of Commons Standing Committee on Justice and Human Rights entitled “The Shadow Pandemic: Stopping Coercive and Controlling Behaviour in Intimate Relationships” (“The Shadow Pandemic”). The Shadow Pandemic involved a study on controlling or coercive conduct in intimate relationships, pointing out that domestic violence and coercive and controlling behaviour have been exacerbated by the Covid-19 pandemic. This has constituted another shadow pandemic playing out as lockdowns have isolated women with their abusive partners.
83Manifestations of coercive and controlling behaviour may include physical, sexual and emotional abuse, financial control, implicit or explicit threats to the partner or ex-partner or against their children. Coercive and controlling behaviour does not relate to a single incident, but a pattern of behaviour that takes place repeatedly and continuously. Abusive behaviours are intended to cause fear and gain power and control over a woman’s thoughts, beliefs and actions. The committee proposes a number of amendments to the Criminal Code to address gaps in the law in relation to coercive and controlling behaviour.
d. Criminal Charges laid against Robert and Vanessa in May 2019
84Vanessa acknowledged that in late May 2019, she was charged with assaulting Robert and he was charged with assaulting and forcibly confining her. However, she could not explain why either of them had been charged. She stated that when she was arrested by the police, they told her she was being charged with assault, but they did not explain to her why. Vanessa believes that the charge against her resulted from lies that her mother had told the police about her and Robert. Vanessa also stated that a paramedic had been involved in some way and had provided some evidence to the police that had resulted in her being charged with assaulting Robert. Vanessa did not know what the paramedic had said to the police. In response to a question from Mark, Vanessa denied having bitten Robert. Vanessa also said that PC had not witnessed any domestic violence between her and Robert because there not been any such violence.
85With respect to the charges that Robert had assaulted or unlawfully confined her, Vanessa testified that her mother was always saying horrible things about Robert. Although the things her mother said were not true, her mother had convinced her that Robert was abusing her. Vanessa believes that her mother spoke to the police and this resulted in the charges being laid against Robert. Vanessa thought that the charge of forcible confinement had something to do with Robert not wanting Vanessa to leave the house, or Robert holding onto her phone because he didn’t want her to answer it. However, Vanessa said that she had voluntarily agreed to these things and was not forced by Robert to do these things.
86As a result of these two sets of charges, Vanessa gave an undertaking that she would not communicate with Robert, and he gave an undertaking that he would not communicate with her. However, Vanessa stated that the charge of assault against her was withdrawn very soon after it had been laid, and she was permitted to communicate with Robert (although he could still not communicate with her.) Because she and Robert had had a child together in September 2018, arrangements were made for Robert to have parenting time with their daughter.
87In November 2019, Vanessa met with Robert’s sister, who explained to Vanessa everything that had happened. Robert’s sister said that Robert had not caused the police to charge Vanessa with assaulting him. Rather, the sister explained, Vanessa had been charged with assault as a result of the involvement of a paramedic. Robert’s sister also told Vanessa that Robert loved her and didn’t say anything bad about her. Robert’s sister also said that Robert had been taking a parenting course. Vanessa thought that Robert was doing everything he needed to do.
88After speaking with Robert’s sister, Vanessa reflected on what had actually happened in June 2019. Vanessa realized she was experiencing narcissistic abuse from Mark, from her own mother, as well as from a social worker from the OCL who was preparing a report. Vanessa thought that her mother had taken advantage of this situation to convince Vanessa to misperceive normal things that Robert might say.
89Vanessa reached out to the detective from Toronto police and told the detective that she didn’t want to participate in any criminal proceedings against Robert. As a result, there was a meeting between the police and Crown to consider whether there was a reasonable prospect of conviction in relation to the charges against Robert, and the charges were withdrawn in February 2020.
e. Evidence regarding PC’s education and issues at school
90Vanessa thought that PC’s grade in reading declined at the end of Grade One because she and Robert had separated in June 2019, following the laying of criminal charges and the no-contact orders. Vanessa stated by this time Robert had become a father figure to PC. When PC was separated from Robert, her grade in reading declined dramatically, resulting in a poor grade on her June 2019 report card.
91Vanessa testified that she was called to a meeting in June 2019 at PC’s school by PC’s Grade One teacher. The teacher as well as the Vice-Principal of the school attended the meeting. Vanessa reported that the Vice-Principal behaved immaturely and inappropriately. The Vice Principal was laughing during the meeting and seemed to want to punish PC by putting her in a class for less capable students, when in fact PC should have been put in a gifted class. Vanessa attributed the Vice-Principal’s inappropriate behaviour to the fact that he had been a student of her father’s in a drama class at McMaster University some years prior. Vanessa said that after the Vice-Principal had graduated from McMaster, he found that he could not make a career in the dramatic arts, so we went into teaching and later became a Vice-Principal. Vanessa thought that the Vice-Principal did not understand the needs of children, as evidenced by the fact that Vanessa heard office staff at the school regularly making jokes about him. At around the time that Vanessa met with the Grade One teacher and the Vice-Principal, the Grade One teacher told Vanessa that she was leaving the school. The teacher did not say why she was leaving, but Vanessa believed it was because of the Vice-Principal.
92Vanessa testified that PC had no attendance problems in the first few months of Grade Two, which commenced in September 2019. However, in November 2019, Vanessa began to regularly receive calls from PC at noontime in which PC said she wasn’t feeling well and asked to be picked up and brought home. These calls were frequent, as many as four times a week. Vanessa would come to the school and generally take PC home for the rest of the day. Once they left the school, PC no longer seemed to feel ill.
93Over the course of her testimony, Vanessa offered various explanations for these attendance problems. Initially, she stated that the difficulty was that PC’s visits with Mark were too lengthy, causing PC to be upset and sick. Vanessa had written to Mark at the time asking for shorter and more frequent visits as a way of dealing with PC’s attendance issues, but he had refused to change the parenting arrangements set out in the Ferguson Order from June 2018.
94Subsequently, Vanessa testified that the reason for PC’s attendance problems was that PC’s teacher was ignoring the Grade Two students in the class in preference to the Grade One students. Vanessa testified that this teacher was making up stories and lying about PC. The teacher could not take criticism and, in Vanessa’s view, had a narcissistic personality disorder. Vanessa introduced texts she had received from parents of other students in the class who had experienced problems with this teacher. The teacher had lashed out at Vanessa in February 2020 when she called the Toronto CAS to report her concerns over PC’s attendance.
95At a later point in the trial, Vanessa stated that the reason why PC was missing so much school in the fall of 2019 was that she and Robert were separated at that time because of the domestic violence charges that had been laid against Robert. Vanessa said that PC was missing Robert, which caused her to become “clingy” and reluctant to go to school. These attendance problems were resolved when the “no contact order” against Robert was lifted and he moved back into the Kingston Road property. It was for this reason that on April 1, 2020, Vanessa reported to Erin Beal of the Toronto CAS that PC’s attendance issues had been resolved.
96Vanessa testified that around Christmas of 2020, she began noticing during Zoom calls with PC that her daughter was having trouble speaking, remembering words and pronouncing words. Vanessa believes that these problems are related to the fact that during Grade Three, PC did not submit any of her assignments online.
97Based on the October 26, 2021 email from Bronwyn Taylor (PC’s Grade Four teacher), Vanessa believes that PC’s literacy problems have worsened, and that PC is no longer able to read and write. Vanessa does not accept Ms. Taylor’s explanation that PC’s literacy problems relate to her transition from French Immersion to the English stream. Vanessa believes that Ms. Taylor is not explaining clearly what is going on with PC because she wants to avoid accountability and protect her professional position. In Vanessa’s view, PC’s academic difficulties result from the fact that she has not seen her mother for over a year.
98Vanessa was alarmed by the statement in the November 2021 Report Card to the effect that PC was struggling with beginning tasks that involve language skills and that she “often shuts down when she feels overwhelmed”. Vanessa was so concerned over this statement that during the course of the trial she called the Toronto CAS, as well PC’s pediatrician, Dr. Neena Patel, to report her concerns. It is not clear what response or advice she may have received. Nor is it clear whether she has spoken to Ms. Taylor, the Grade Four teacher, who had invited Vanessa to an online meeting to discuss the November 21, 2021 Report Card.
f. Muskoka CAS Investigation in 2020
99Vanessa was asked whether she had been contacted by Virginia Edwards of the Muskoka CAS in the summer of 2020. Vanessa indicated that she had. When asked why the Muskoka CAS had reached out to her, Vanessa initially testified that Ms. Edwards would not tell her why she was calling. Vanessa believed that Ms. Edwards must have been calling because of a report that Vanessa had made to the Collingwood OPP in May or June 2020 about the incident in 2015 when Mark had thrown her out of the Kingston Road property. Vanessa stated that she thought that the OPP must have contacted the Muskoka CAS as part of their investigation into this 2015 incident, and that they wanted to speak to PC about it.
100Subsequently, Vanessa testified that she was advised by Virginia Edwards that the Muskoka CAS had received two reports of concern in relation to PC. One of these reports had come from the Collingwood OPP, as a result of a call the OPP had received from Vanessa’s father and stepmother, while the second report was made by a counselling agency in Collingwood where Vanessa had taken PC for some counselling.
101Vanessa testified that she had spoken with Ms. Edwards at length about the matter, and also exchanged emails and texts with her. Vanessa was directed by the court to produce all of her emails and texts with Virginia Edwards dealing with these issues. Vanessa agreed to locate these emails and texts and produce them.
102Vanessa subsequently produced emails and texts between her and Ms. Edwards, in which Ms. Edwards was discussing closing the Muskoka CAS file into PC. However, upon reading these texts and emails, it was immediately obvious that there were other texts and emails that had not been produced. Vanessa was again directed to provide all of the text messages and emails with Ms. Edwards.
103Vanessa subsequently provided additional electronic correspondence with Ms. Edwards, covering the period May to October 2020. These emails and texts show that although the Muskoka CAS intended to close the file in August 2020, they subsequently received another report of a concern in relation to PC. Virginia Edwards contacted Vanessa on September 8, 2020 and wanted to follow up by meeting with PC.
104Vanessa did not believe that it was possible that the Muskoka CAS had received another call about PC after the decision was made to close the file in August. Vanessa thought the concerns of the Muskoka CAS couldn’t have been very serious since Virginia Edwards had agreed that Vanessa and Robert could go on vacation to B.C. Vanessa also testified that sometime in September 2020, Ms. Edwards had spoken with Robert about the matter, and that it appeared to Vanessa that Ms. Edwards had forgotten important details about their family.
105When Virginia reached out to her again in late October, Vanessa thought this was because the Muskoka CAS didn’t have a lot of work to do. Vanessa thought that because Ms. Edwards might have lost her job if she didn’t have enough files open, she had decided to keep the file involving PC open. Vanessa didn’t trust or believe Ms. Edwards. Vanessa thought that Ms. Edwards wasn’t making any sense, that she could barely string any sentences together, and that Ms. Edwards was super-stressed out by the pandemic. Vanessa thought it wasn’t worth proceeding any further with the Muskoka CAS. She advised Ms. Edwards that she and PC were not living in Collingwood, but she did not disclose that PC was living with Mark in Toronto.
g. Incident at PC’s Dance Studio in July 2021
106Vanessa testified that she had enrolled PC in online summer school through the TDSB. However, P.C. had been attending a summer camp at a dance studio in Toronto and wasn’t participating in the TDSB summer school. The final week of the summer school was the last week of July 2021. At around that time, Vanessa received a tax refund from CRA. She decided to fly to Toronto and pick up PC from the dance camp, so that Vanessa could arrange to have her participate in the final week of summer school.
107Vanessa took the red-eye flight from British Columbia to Toronto overnight on July 22-23 and arrived in Toronto on the morning of Friday, July 23, 2021. A security camera at the dance studio shows that Vanessa arrived at the studio at approximately 9:13 a.m. that morning, about four minutes after Mark had dropped off PC at the school. Vanessa was wearing a hoodie pulled up over her head, dark sunglasses and a mask, and was holding helium balloons in one hand. In response to a question from Mark, Vanessa denied having pulled the hoodie up in order to avoid being recognized by Mark. Rather, she stated that she pulled the hoodie up because there was a lot of dust when she was crossing a nearby intersection.
108When Vanessa came into the studio, she hugged PC, and talked with one of the staff members about the schedule for the day. Vanessa told the staff person that she did not really have a plan for PC for the day and wanted to know when the breaks were and what time lunch was.
109As Vanessa and PC were about to leave the studio, one of the teachers stopped them and said there was something the teacher wanted to show them inside the classroom. When Vanessa and PC came back inside, the teacher did not have anything to show them. Instead the teacher started asking Vanessa questions in front of the other students. Then Mark showed up at the door and said that Vanessa was not allowed to be there and that he was calling police. Mark then went outside.
110Vanessa said that the staff at the dance school, including the owner of the studio, backed PC into a corner and were saying horrible things to both PC and Vanessa. PC became very upset and was screaming and crying. Vanessa told PC that she had brought her balloons and presents and that if PC wanted to see her mother and her sisters she could leave with Vanessa. However, the dance teacher wouldn’t let Vanessa leave with PC.
111Vanessa said as the standoff continued, other dance studio staff, along with the owner of the dance studio, arrived on scene. Vanessa said that the studio owner was grabbing PC and holding onto her, and laughing and taunting PC. The owner was saying horrible things such as that PC did not have to go with her mother, that the dance studio owner knows PC, that the owner would protect PC.
112This confrontation went on between 10 or 20 minutes, with PC crying and the other children in the studio also becoming upset. Eventually Vanessa called 911 and was told or decided that she should also wait outside for the police to arrive. After she was outside, Vanessa says she attempted to come back into the studio, but that Mark kicked the door shut, and as the door was closing it hit and scraped Vanessa’s arm.
113Once the police officers arrived, they spoke separately to Mark and Vanessa. Vanessa told the officer that she had not done anything wrong and that she had been assaulted by Mark. The officer told her that he was not going to charge Mark with an assault since in these kinds of domestic incidents they try not to lay charges unless it is absolutely clear. Vanessa thought that made sense because arresting Mark would have upset the other children. Vanessa said that she had promised Robert that if something happened and Mark called the police, she would keep things calm, not engage, and get out of the situation. That is what she told the officers and she decided to leave.
114Vanessa was asked how she planned to provide online school for PC during the following week. Vanessa said she hadn’t decided exactly what she was going to do, but her main plan was to take PC to her father’s house in Dundas, Ontario. She thought her father could perhaps mediate between her and Mark and help them resolve their issues. Another possibility was that Vanessa would fly back to British Columbia with PC for the week and have PC do online school from there. Vanessa thought that she was permitted under the Nakonechny Order to take PC to British Columbia for a week as long as she had PC back in Toronto by the end of the week, so that Mark could have his parenting time. A third possibility was that she would take PC to Collingwood with her, since the lease on the house that Robert had rented there continued until the end of August 2021.
115Vanessa said she was willing to do whatever PC wanted for the week, whether that involved staying with her father in Dundas, going to British Columbia, or staying at the rented house in Collingwood.
116After she had spoken with the police officers and left the dance school on Friday, July 23, Vanessa booked a return flight to British Columbia for later that day. However, that flight was cancelled, and Vanessa decided to stay in Toronto for the weekend. She had some vouchers for a hotel and stayed there on Friday and Saturday night.
117On Sunday, July 25, 2021, Vanessa called the police and said she wanted to enforce a parenting order. When the officers arrived at an agreed location, she showed them the Nakonechny Order, and explained to the officers that she wanted to have PC with her for the week so that PC could participate in the final week of online summer school. The officers spent a lot of time in their scout car reviewing the court order and they also spoke to Mark. Eventually they told Vanessa that they could not assist her and advised her to take up the matter with the court.
118The following day, Monday, July 26, 2021, Vanessa took a flight back to British Columbia. She participated in the July 28, 2021 case conference with Shore J. from her residence in Oceanside.
119Vanessa said that the reason the visits ordered by Shore J. did not take place was because of a July 30, 2021 email Mark had sent to her, which was copied to Vanessa’s mother (Mark’s July 30, 2021 email was sent in response to an earlier email sent by Vanessa, but that earlier email was not provided by either Vanessa or Mark.) In his July 30, 2021 email, Mark said that Vanessa was willfully misinterpreting the court order of Shore J. and that there was no directive that PC will live in Ontario and B.C. Rather, PC is to reside in with him in Toronto until the November 2021 trial. Mark also explained that the order made by Shore J. was intended to safely allow Vanessa to spend time with PC in Toronto, with the supervision of Vanessa’s family members.
h. Vanessa’s plans for PC in Oceanside, British Columbia
120Vanessa described her plans for PC in the event that PC were to reside primarily with her, Robert and their two children in Oceanside, British Columbia.
121Vanessa testified that her preference is for PC, along with her sisters (when they attain school age), to attend a private school close to where she and Robert now live in Oceanside. Vanessa did not disclose the name or address of the school for fear that if she did so, Mark might show up at the school unannounced. Therefore, she was not able to provide any documentation from the school itself regarding its curriculum, programs, tuition, etc. However, she reported on a conversation she had with the director of the school in early November 2021 and provided a copy of her notes from that conversation.
122Vanessa indicated that PC would be in a classroom with Grades Three, Four and Five students. There would be a maximum of 15 students in the class. Vanessa understands that this would be a good time for PC to transfer to the school because each spring they do a musical production, which PC would love because she has taken dance camps and has the ability to act. The school does not start working on the production until January and so PC will not have missed anything in terms of the planning for the spring play.
123The school has developed a unique career education program intended to assist students to understand finances and develop life skills. The school also has a kitchen in each classroom, as well as chickens. Each morning at 9 a.m. there is a “whole school walk” where students from all grades walk together. This provides them with an opportunity for social interaction. Every Friday, school ends early so that the students can participate in community programs or events.
124Tuition at the school is $900 per month. Vanessa said that she and Robert have been saving money in order to fund the tuition for PC and her sisters.
125If PC isn’t able to attend the private school, there are two public schools in Oceanside. One of them offers a French Immersion program. If PC wants to resume schooling in French Immersion, then Vanessa would support it. Vanessa also has purchased certain schoolbooks which she plans on using to assist PC in her schoolwork.
126Vanessa described numerous programs and services available in Oceanside, including dance, horseback riding, and a kids movement group. There is also a family night every Wednesday between 4:30 and 7 p.m. at a nearby community centre where a meal is served and there is entertainment such as arts, crafts, games and music. There are various programs offered through the Vancouver Island Regional Library in which Vanessa plans to enrol PC. They live near a golf course where Robert plays regularly, and he plans on teaching PC how to play golf.
127Robert’s mother and sister live in Oceanside, and Robert’s father and stepmother live in Surrey, British Columbia. Vanessa also has an aunt who lives on Vancouver Island. PC will benefit from having contact with these family members.
i. Financial contribution to purchase of 189 Kingston Road in 2014
128Vanessa stated that although 189 Kingston Road was purchased in Mark’s name in 2014, she contributed $7,000 towards the purchase of the property from a tax refund she had received. Mark contributed the remainder of the down payment and has made all the mortgage payments.
129In her Answer, Vanessa claimed a constructive trust in the Kingston Road property. She discussed this claim with her legal counsel prior to the settlement conference before Goodman J. on January 30, 2020. Her counsel advised her that, based on a review of documents he had received from Mark’s lawyer, her constructive trust claim seemed weaker than he had earlier believed.
130At the settlement conference on January 30, 2020, Vanessa agreed to give up her claim to the Kingston Road property in the Final Minutes of Settlement, in return for the terms dealing with child and spousal support. However, Vanessa felt pressured to make this concession because Mark had been stalking her for four years. Plus, Mark failed to honour the terms of the Final Settlement Agreement because he made some of the support payments late and in October 2020, he ceased paying child support altogether.
V: Other Witnesses
a. Dr. Neena Patel
131Vanessa called Dr. Neena Patel, a pediatrician who has been treating PC since she was three weeks of age.
132Dr. Patel testified that PC was diagnosed with Atrial Ectopic Tachycardia as a newborn and was treated with medication as well as regular assessments. Her most recent visit to a cardiology clinic was in April 2018. Her follow-up was scheduled for two years later but because of the Covid-19 pandemic, the clinic was shut down and she has not been seen again.
133Dr. Patel’s opinion is that for a child such as PC who has a cardiac condition, it would be important that she is followed by her specialist accordingly and that she remains well throughout the pandemic. All caregivers involved should be aware of her condition and she should get her cardiac tests as recommended so that she is able to participate fully in all activities for children her age.
134Dr. Patel was asked by Mark whether, because of the heart problem PC had experienced as a newborn, PC should not receive a Covid-19 vaccine in the event that one is approved for children her age. Dr. Patel said that she would recommend that PC receive a Covid-19 vaccine even if she had not experienced a heart issue as a newborn. Dr. Patel also agreed with the opinion expressed in a January 2021 letter from a nurse at Sick kids Hospital in which it is stated that PC is at no greater risk than her peers of either contracting or managing Covid related symptoms due to her past cardiac medical history. Dr. Patel further agrees with the nurse from SickKids that there are no concerns about PC attending school in-person.
135Dr. Patel would recommend that PC should be able to have access to both her parents whenever she would like to. When PC is with one parent, she should have privacy to speak to the other parent without being monitored. Dr. Patel is also concerned about the effects on PC of the extended absence from her mother and sisters. In Dr. Patel’s opinion, it is important for PC to develop a relationship with her siblings.
136Dr. Patel is not aware of any issues with respect to PC’s development or learning.
b. Robert Pattee
137Vanessa called Robert Pattee, her current partner, to give evidence.
138Robert says that Vanessa is the love of his life. Vanessa is creative, expressive, nurturing, and is the kindest person Robert has ever known.
139Robert considers PC to be his stepdaughter. In his opinion stepparents are a little underappreciated. He met PC in August 2017 on the day of a solar eclipse. PC had a lot of questions and reminded him of his younger sister.
140Robert says that PC is very independent and smart. She likes costumes and dance and will have a full theatrical performance going on in her room. PC is a bit of a picky eater, but she will eat the food that is put on her plate.
141Since he began his relationship with Vanessa in 2017, Robert has been involved in communicating with Mark. Initially, he and Mark were able to communicate productively. For example, in the fall of 2017, Robert and Vanessa wanted to travel to British Columbia to visit his family over the Christmas holidays. Robert was pleased when he was able to obtain Mark’s approval for the trip.
142However, Robert noticed that when they returned from the trip to British Columbia in early 2018, there was a complete change in Mark’s attitude. Although Mark had previously proposed mediation as a way of resolving the parenting issues, in early 2018, Mark said he could not afford to pay for the service. He also wanted Vanessa to move out of the Kingston Road property on short notice. Robert was very troubled about that because, from what he had learned from Vanessa, the Kingston Road property was clearly Vanessa’s house. He didn’t want Vanessa to be booted out of her own house by Mark.
143Robert also said that in the fall of 2017, he and Vanessa noticed some documents that had gone missing, including PCs passport. On one occasion, when they came home, the front door was open. Robert felt that maybe Mark was being a bit more possessive than he should be.
144In May 2018, Mark said that he needed to have Vanessa move out of the Kingston Road property as soon as possible. Mark asked Robert whether he could come over to the house so he could have an appraiser value the property for purposes of obtaining a $25,000 loan, which Mark would then provide to Vanessa to enable her to move out. Robert agreed and they arranged for Mark to come over to the house at 9 a.m. on a particular day. However, at 8:25 a.m. on that morning, Robert noticed Mark walking in an alley near the house. When Robert saw him, Mark covered his face. Robert did not know why Mark would be in the alley at that time. At 9 a.m., Robert let Mark and the appraiser into the house. Robert mentioned to Mark that he and Vanessa were looking at renting a house approximately an hour’s drive outside of Toronto and asked whether that was okay. Mark said it was, as long as it did not affect his parenting time with PC. Robert and Vanessa spent the summer of 2018 in Collingwood and it was one of their best summers.
145Robert said that PC had a good report card at the end of Grade One, and he found it to be very encouraging. Robert was also encouraged by PC’s dedication to the French Immersion program. He wasn’t there for the first few months of the Grade Two year because he and Vanessa were working on their relationship between May and November 2019 and living in two separate homes.
146Robert says he was particularly concerned in summer 2020, when Mark made negative comments about Vanessa during a pickup/drop-off in PC’s earshot. This was exposing PC to the parental conflict, which was not in PC’s best interest.
147Robert said that their original plan when they moved to B.C. in September 2020 was to just stay there for a month. By October, the Covid-19 case numbers were increasing, and they decided to stay until Christmas 2020. Then in November, they decided to stay until March 2021, when Vanessa was to give birth to their second child. Robert called Mark in November 2020 to let Mark know that they would be in B.C. for a while longer than they originally planned. He didn’t want to tell Mark directly that Vanessa was pregnant with their second child, but he mentioned that there was an important upcoming life event. In the November 2020 call, Robert asked Mark to send PC to B.C. for a visit. Robert was shocked that Mark refused. Robert said that Mark wasn’t concerned about any impact such a trip would have on PC’s health. Rather, Mark was concerned that if PC was sent to B.C., that might affect his parenting time with her. Mark also wanted to know when they were coming back to Ontario.
148Robert is absolutely certain that PC would be better served by living primarily in B.C. with him and Vanessa, taking French Immersion with her sisters in private school. Robert will make sure PC is physically healthy as he is a chef with a background in nutrition, and he will also ensure she gets lots of physical activity.
149Robert was asked by Mark why the Muskoka CAS had wanted to speak to PC in September 2020. Robert said he didn’t know, and he didn’t believe that the Muskoka CAS wanted to speak to PC. Robert said he recalled a telephone discussion that he had at that time with Virginia Edwards of Muskoka CAS, where she said she was following up on something from a while before. Robert said he assured Virginia Edwards that if there were any issues or concerns about matters in their household, he would be the first to inform her, but that he and Vanessa were in a really good place. The last thing Robert wanted as to have someone come over to the house in the middle of a pandemic and start asking questions about something that had happened years before. Robert said that Ms. Edwards understood that, and it was case closed as far as he knew. If Muskoka CAS wanted to follow up further, they never told him that, and so he assumed it wasn’t very important.
150Mark asked Robert whether he was aware that Vanessa planned to show up at PC’s dance studio in July 2021 without letting PC or the dance studio know. Robert said he is absolutely certain that the dance studio was aware that Vanessa was coming, and he wouldn’t have taken Vanessa to the airport in B.C. had this not been the case. Robert is sure that when Vanessa arrived at the studio, PC was ecstatic to see her Mom. If Vanessa wanted to leave with PC from the studio, she could have done so and hopped in a cab or an Uber and gone to the airport. Vanessa didn’t do that, she came back to the dance studio and then Mark called the police, which was another example of him blocking Vanessa’s access to PC. Robert said that Vanessa would never have taken PC back to B.C. that weekend. In fact, Vanessa had purchased a ticket for PC to travel to B.C. for six weeks later. Vanessa just wanted to go with PC to the pool for the day, hang out, stay away from large crowds and catch up.
151Robert said that Vanessa didn’t tell Mark she was coming to the dance studio because she was concerned that Mark would block her from seeing PC, as he had for the previous year. Robert’s view is that it was great that Vanessa came to the studio to check up on PC, and Mark shouldn’t have tried to block that by calling the police.
152Robert said that PC’s education has been in shambles over the last year since she has been in Mark’s care, as PC did not complete any of her online assignments in Grade Three. Robert said that if Mark had made sure that PC’s assignments were handed in on time, PC would now be in French Immersion in Grade Four.
153Robert was asked about an email he sent to Mark in December 2017, when Robert and Vanessa were organizing their trip to B.C. to see Robert’s family over the Christmas holiday. In that email, Robert said that they didn’t need PC’s passport for the trip, since it was within Canada, and that he and Vanessa would arrange to pick it up from Mark when they returned in January. Robert also said if Mark wanted to show the Kingston Road property over the holidays, he would arrange with some neighbours to let him in, or else leave the keys in the mailbox for Mark to use, provided that Mark puts the keys back in the mailbox when he was done.
154Robert said he was aware that Mark had previously come over to the house unannounced, which he found to be invasive. Vanessa had asked Mark not to do that, which Robert thought was warranted on her part. Robert said that at that time he was concerned that Mark might have been offering to return the passport because he wanted to come to the house on Kingston Road to do something shady. He didn’t want to take that risk.
155Robert remembered making a call to Mark from jail in June 2019. The purpose of his call was to reinforce to Mark how important it was for Vanessa and PC to move out of the Kingston Road property. Robert said he was really upset at Vanessa at the time because some trumped-up charges had been laid against him, based on Vanessa’s mother having exaggerated some things. Robert thought maybe Vanessa had him wrapped around her finger in some way, he was so mad at her. These charges were later withdrawn, and the police apologized to him for having laid the charges. Robert’s father got involved to neutralize the tension by kind of mediating things between Robert and Vanessa. He and Vanessa have had a very stable relationship since then.
156Robert also said that his lawyer at the time had communicated with Mark’s lawyer about Robert possibly testifying at Mark and Vanessa’s family law trial, in order to illuminate what was going on in the household. Eventually Robert decided that he didn’t feel comfortable doing that.
157Robert said that Vanessa didn’t bite him in June 2019, but he was in a scrum with the kids, who scratched him. Robert called police and the police took it the wrong way. Robert thought the police would come over and help them to work things out, he didn’t think any charges would be laid. He completely regrets calling the police because he and Vanessa would have worked it out. PC was asleep the whole time and didn’t know anything serious was going on. Robert went to the police station the next day and told them that Vanessa hadn’t bitten him.
158Robert doesn’t believe he told Mark on the phone call in June 2019 that Vanessa had bitten him, he thinks that what he said was that this is what Vanessa had been charged with. Robert denied having told Mark on that call that Vanessa was crazy, and that Mark should get custody of PC. Robert said that he may have told Mark that Vanessa was acting irrationally and that she needed to get out of the Kingston Road property.
c. Marianne Perz
159During trial, Mark approached Marianne Perz and asked her to facilitate a Zoom call between Vanessa and PC. When Ms. Perz attempted to initiate the call, PC became visibly upset, turned down the volume of her speaker so that she could not hear Ms. Perz, and curled herself into a rocking fetal position. Given PC’s obvious distress, Ms. Perz decided not to proceed with the Zoom call.
160Ms. Perz was so concerned by PC’s extreme distress that she applied to intervene as a friend of the court to make submissions as to the appropriate disposition of the case. She filed an affidavit describing her work with Mark, Vanessa and PC, and setting out what she believed she could contribute to the trial.
161Vanessa opposed Ms. Perz’s intervention, while Mark did not take a position on the issue.
162Ms. Perz’s application to intervene was not accepted. Ms. Perz sought to intervene on the final day of an 11-day trial, which she had not attended. I ruled that, although well-intentioned, it would be inappropriate and unfair for her to make submissions on the disposition of the case without having heard any of the evidence, and with no advance notice to either party. In addition, her intervention was opposed by Vanessa. When I advised Ms. Perz that she would not be permitted to intervene, she expressed relief at this decision.
VI: Relevant Law
163Because the parties were never married, parenting orders in this case fall to be decided on the basis of the CLRA.The CLRA was recently amended to mirror amendments to the Divorce Act9 dealing with the criteria applicable to the making of parenting orders including, in particular, in cases involving the proposed relocation of a child.10 Although the amendments to the CLRA only came into force on March 1, 2021, they apply to ongoing proceedings even if commenced prior to that date.11
164Amended s. 24(1) of the CLRA provides that in making a parenting order with respect to a child, the court shall “only take into account the best interests of the child in accordance with this section.” Section 24(2), under the heading “Primary consideration”, states that in determining the best interest of the child, the court shall consider all factors related to the circumstances of the child, and in so doing shall give “primary consideration to the child’s physical, emotional and psychological safety, security and well-being.” What this suggests is that, in weighing the various factors relevant to a child’s best interests, the court shall prioritize the child’s safety, security and well-being.12
165Section 24(3) sets out a non-exhaustive list of factors relevant to the circumstances of the child (and thus the child’s best interests), 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 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 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 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.
166The CLRA defines “family violence” broadly, and conduct need not constitute a criminal offence in order to fall within the scope of the definition. Family violence includes:
a. physical abuse, including forced confinement but excluding the use of reasonable force to protect oneself or another person;
b. sexual abuse;
c. threats to kill or cause bodily harm to any person;
d. harassment, including stalking;
e. the failure to provide the necessaries of life;
f. psychological abuse;
g. financial abuse;
h. threats to kill or harm an animal or damage property; and
i. the killing or harming of an animal or the damage of property.
167In considering the impact of any family violence under s. 24(3)(j), s. 24(4) directs the court to take into account the following;
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 factors.
168The CLRA further provides that 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 that conduct is relevant to the exercise of the person’s decision-making responsibility, parenting time or contact with respect to the child.13 In addition, 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.14
169The recent amendments to the CLRA also include provisions dealing specifically with factors that must be taken into account in determining whether to authorize the “relocation” of a child.
170A “relocation” is defined as including “a change in the residence of a child… that is likely to have a significant impact on the child’s relationship with another person who has decision-making responsibility or parenting time with respect to the child.” A person who has decision-making responsibility or parenting time with respect to a child and who intends a relocation shall, at least 60 days in advance, provide notice in writing setting out the expected date of the relocation, the address of the new residence, and a proposal as to how decision-making responsibility, parenting time or contact could be exercised in the event that the relocation is approved.15
171In determining whether to authorize the relocation of a child, the court shall take into account the best interests of the child in accordance with s. 24, as well as:
a. the reasons for the relocation (s.39.4(3)(a));
b. the impact of the relocation on the child (s.39.4(3)(b));
c. the amount of time spent with the child by each person who has parenting time with the child, and the level of involvement in the child’s life of each such person (s.39.4(3)(c));
d. whether the person who intends to relocate the child has complied with any applicable notice requirement under section 39.3 (s.39.4(3)(d));
e. the existence of an order or agreement that specifies the geographic area in which the child is to reside (s.39.4(3)(e));
f. the reasonableness of the proposal the person who intends to relocate the child to vary the exercise of decision-making responsibility, parenting time or contact, taking into consideration, among other things, the location of the new residence and the travel expenses (s.39.4(3)(f)); and
g. whether each person who has decision-making responsibility or parenting time with respect to the child has complied with their obligations under any applicable order or agreement, and the likelihood of future compliance (s.39.4(3)(g)).
172However, in determining whether to authorize a relocation of a child, the court shall not consider whether, if the child’s relocation were to be prohibited, the person who intends to relocate the child would relocate without the child or not relocate.16
173The amended CLRA also specifies certain circumstances in which a particular party may bear the burden of proof in relation to the proposed relocation, as follows:
a. If the parties to the proceeding substantially comply with an order or agreement that provides the child spends 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 (s. 39.4(5));
b. If the parties to the proceeding substantially comply with an order or agreement that provides the child spend the vast majority of 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 (s. 39.4(6));
c. 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 (s. 39.4(7)); and
d. If the order for parenting time which is said to give rise to a burden of proof under either s. 39.4(5) or (6) is an interim order, the court may determine that no such burden of proof should apply (s. 39.4(8)).
174It is evident that there are a significant number of factors relevant to the determination of the best interests of a child, particularly in cases involving the relocation of the child. However, in making this determination, the court does not approach these various factors as a checklist to be tabulated, with the highest score winning. Rather, what is required is a holistic analysis which requires an overall assessment of what is in the best interests of the child, having regard to the primary consideration of the child’s safety, security and well-being.17
VII: Analysis: Is it in PC’s best interest for her to relocate from Toronto to Oceanside, British Columbia?
a. The proposed change in PC’s primary residence from Toronto to Oceanside, British Columbia is a “Relocation” as defined in the CLRA
175Although obvious, for completeness I find that the proposed change in PC’s residence from Toronto to Oceanside, British Columbia would constitute a “relocation” as that term is defined in the CLRA. This is because such a change in residence would have a significant impact on PC’s relationship with Mark, who (along with Vanessa) is a person who has parenting time with, and decision-making responsibility for, PC. As such, the issue of PC’s proposed change of residence constitutes a “relocation” and engages the relevant provisions of the CLRA.
b. I find that both parties share equally the burden of proving whether the proposed relocation is, or is not, in PC’s best interests
176As noted above, the CLRA contains provisions which identify certain cases in which a particular party bears the burden of proof in considering whether to authorize a relocation. In my view, however, the provisions allocating the burden of proof to a particular party do not apply in the circumstances of this case.
177The first such provision is s. 39.4(6), which provides that the party opposing the relocation has the burden of proving that the relocation would not be in the best interests of the child in the following circumstances: (i) the parties to the proceeding substantially comply with an order or agreement; (ii) that order or agreement provides that a child spend “the vast majority of time” in the care of one party; and (iii) the party with whom the child spends the vast majority of time intends to relocate the child.
178This provision does not define the threshold above which a child could be said to be spending the “vast majority of time” with one parent. However, given that s. 9 of the Federal Child Support Guidelines18 describes a 60/40 split in parenting time as one of “shared custody”, in my view a child would need to be spending significantly more than 60% of their time with one parent in order to cross the “vast majority of time” threshold in s. 39.4(6) of the CLRA.
179Furthermore, the relatively few cases interpreting this provision have held that a parent has crossed the “vast majority” of time threshold only when they have a child in their care for more than 80% of the time. For example, in KDH v. BTH19, Lema J. held that where an order provided that the mother had the children in her care for 12 out of every 14 nights, or about 85% of the time, “the order indeed provided that the children spend the ‘vast majority of their time’ with her [the mother].” Similarly, Professor Rollie Thompson, a respected authority on these issues, has opined that “a range of 75 to 87 per cent is a reasonable representation of “vast majority”, but I would personally peg it at 80 per cent”, noting that this is consistent with the opinions he obtained through a canvass of family law professionals.20
180In my view, interpreting the “vast majority of time” threshold in s. 39.4(6) in this manner gives meaningful effect to the burden of proof that it contemplates, without giving undue effect to the burden and thereby skewing the “best interests” assessment in a particular direction.
181The June 2018 Ferguson Order specified that PC would reside with Vanessa on 9 out of every 14 nights, or approximately 64% of the time. Given my comments above, I find that this falls significantly short of the “vast majority of time” threshold in s. 39.4(6). (This allocation of parenting time could most aptly be described as falling within what Professor Bala has referred to as the “mid-range” between “vast majority” and “equal time”.21) In any event, the Ferguson Order was superseded by the Nakonechny Order in April 2020, which provided for equal time for both parties, and neither the Ferguson Order nor the Nakonechny Order was followed by the parties after September 2020.
182What of the fact that for the last 16 months, PC has resided exclusively with Mark in Toronto? It is clear during this period of time, PC has been spending the “vast majority” of time - indeed, all of her time – with Mark. But these circumstances still do not engage s. 39.4(6) because Mark is not the parent who is proposing the relocation.
183The other possibility to consider is whether s. 39.4(5) applies. This provision states that the party who intends to relocate the child has the burden of proving that the relocation would be in the child’s best interests if: (i) the parties to the proceeding substantially comply with an order or agreement; and (ii) the order or agreement provides that a child spend substantially equal time in the care of each party.
184In this case, the Nakonechny Order of April 2020 does indeed provide that PC is to spend equal time with both parties. However, the Nakonechny Order was only followed for approximately 5 months, from April until September 2020. PC has been residing exclusively with Mark since September 2020. Despite this,, there is no order in place mandating such an arrangement, nor has Vanessa agreed that it is appropriate for PC to be residing exclusively with Mark. In my view, therefore, s. 39.4(5) does not apply to the circumstances of this case.
185In any event, even if the present circumstances should be regarded as falling within the terms of s. 39.4(5) on account of the Nakonechny Order, I note that this order is an interim one only. In such a case, s. 39.4(8) gives the court discretion to determine that it would not be appropriate for one party only to bear the burden of proof. In this particular case, although Mark has been an involved father, there is no dispute that Vanessa was PC’s primary caregiver from the time she was born until September 2020.
186In these circumstances, I do not believe that it would be in PC’s best interest to require Vanessa to alone bear the burden of proving that the relocation would be in PC’s best interest. Rather, both parties should share equally the burden of proving whether the relocation would be, or would not be, in PC’s best interest. This sharing of the burden of proof is most consistent with the scheme of the CLRA as a whole and in with the relocation provisions in particular. These provisions direct the court to make an independent determination of whether a proposed relocation would or would not be in a child’s best interest and limit the circumstances in which one party alone should bear the burden of proof on the issue.
c. Best Interest of the Child Factors: CLRA, s.24
i. PC’s needs, given her age and stage of development, such as her need for stability
187I have not had the benefit of an independent assessment of PC’s circumstances and the parties have quite different views as to her current needs, strengths, and challenges. Nevertheless, based on the evidence adduced by both parties, I am able to make a number of findings with respect to PC’s current and future needs.
188PC is obviously a bright and talented girl, who has great potential. She has excelled in the arts, particularly in dance. Yet despite these strengths, there can be no question that she has suffered significantly as a result of the breakdown of Vanessa and Mark’s relationship over the past five years. Not only has PC’s life been disrupted, she has been exposed to the ongoing and intense conflict between her parents, with predictable negative results.
189Almost immediately after her parents separated in October 2016, PC began to have significant attendance problems at school, in both the JK and SK school years. PC’s attendance problems worsened in Grade One in 2018-19, to the point where both Mark and Vanessa were asked to meet with the teacher at the end of that year (i.e. in June 2019) to discuss her performance. PC’s June 2019 Report card indicated that PC was performing below grade level in French reading, writing and speaking, as well as Math.
190Rather than improve the next year, PC’s school attendance became even more worrisome in Grade Two, to the point where in March of 2020, the school reported the matter to the CAS . Vanessa claimed that the report to the CAS was a “mistake of a struggling teacher” who was “full of fear and unable to cope with her responsibilities”. But at around this same time, Goodman J. had also concluded that PC’s school attendance problems were so alarming that she would call the CAS if nothing was done. Plainly, the teacher’s decision to call the CAS was prompted by her genuine concern for PC’s welfare and was by no means an overreaction.
191The onset of the Covid-19 pandemic and the closure of Toronto schools to in-person learning clearly did no favour to PC. There is increasing evidence that there are long-term educational and social costs associated with prolonged virtual schooling for elementary and secondary school students.22 These costs include disengagement, declines in academic achievement, greater social isolation, and mental health challenges.23 Even prior to the shutdown of in-person learning in March 2020, PC had already been experiencing significant challenges with French speaking, reading and writing. These challenges were exacerbated by the fact that PC attended school virtually for the next 16 months. Mark reported that throughout the Grade Three year, it was difficult to engage PC with the French portions of the curriculum, and it appears that she had difficulty in completing and submitting her assignments in a timely fashion.
192Fortunately, PC returned to in-person learning for Grade Four in September 2021. Yet at the same time, she was required to deal with yet more change, attending a new school and transitioning from French Immersion to the English stream. As the October 2021 email from her teacher indicated, PC continues to experience challenges in her literacy, which is entirely predictable and understandable given the numerous disruptions she has experienced over the past number of years.
193A further concern is PC’s exposure to the ongoing conflict between her parents. While Vanessa and Mark each seem to blame the other for this having occurred, I find that neither party has been blameless in this regard. The larger point is simply that continued exposure to this prolonged and unresolved parental conflict poses a significant risk to PC’s well-being and future development.
194PC is still young, has great potential and no evident learning difficulties. But there can be no doubt that she will require a great deal of support, stability and continuity in the months and years ahead if she is to successfully overcome the many challenges and fulfill her manifest potential. She will also require her parents to attempt to set aside their differences and attempt to work together for PC’s benefit. I find that these are particularly important considerations in determining what parenting arrangements would be in her best interest now and into the future.
ii. The nature and strength of PC’s relationship with each parent, the child’s siblings and grandparents and any other person who plays an important role in the child’s life
195Both Vanessa and Mark love PC deeply and want the very best for her. I further find that, despite the challenges described above, PC loves both her parents and has a strong bond with both of them.
196It is clear that Vanessa was PC’s primary caregiver from the time she was born until early 2020. Vanessa did not work outside the home following PC’s birth, while Mark’s employment required him to travel frequently. Vanessa was the person who was primarily responsible for PC’s care and upbringing throughout the parties’ cohabitation, and this continued following their separation in October 2016.
197There have been significant changes in these arrangements over the past 22 months. First, Vanessa and Robert moved to Collingwood in March 2020, and the parties transitioned to a week-about shared parenting schedule for PC in accordance with the Nakonechny Order of April 2020. Then, in September 2020, Vanessa and Robert moved to British Columbia and PC began residing exclusively with Mark. Fortunately for PC, Mark moved to a management position in January 2020 which, combined with the Covid-19 pandemic, has largely eliminated his need to travel. This has meant that he has been able to serve as the primary caregiver for PC the past 16 months, thereby strengthening his bonds with her.
198Based on this evidence, I find that it is in PC’s best interest to maintain and strengthen her existing strong bonds with both her parents. This will certainly be challenging given the fact that Vanessa and Mark now reside 4,500 km away from each other. Nevertheless, this is an important consideration to keep in mind in designing parenting arrangements that best serve PC’s needs.
199I also find that PC has important relationships with a number of other family members. This includes her maternal grandparents (i.e. Vanessa’s parents) who live in the Dundas area. Although Vanessa testified that PC was not close to her maternal grandparents, I accept Mark’s evidence that PC has continued to spend significant amounts of time with her grandparents and that these relationships are important to PC.
200I also find that PC has developed a significant and meaningful bond with Robert, who assumed the role of stepfather in late 2017 or 2018. Robert spoke genuinely of his love for PC, and of the importance he attributes to the role of stepfather. PC also resided with Robert for a substantial period of time prior to Vanessa and Robert’s move to B.C. I accept Robert’s evidence regarding his relationship with PC and find that maintaining and strengthening PC’s bond with him to be in PC’s best interests.
201Although PC’s sisters PAR and PAI are much younger than her, Vanessa testified that PC loves both her sisters and is strongly bonded with PAR in particular. I accept Vanessa’s evidence in this regard, and I also accept Dr. Patel’s evidence that it is in PC’s best interests, and important to her welfare, to maintain her relationships with her sisters.
iii. Each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent
202There has clearly been a great deal of conflict between Vanessa and Mark and great difficulty in finding common ground with respect to PC. These difficulties and challenges have increased since Vanessa’s move to British Columbia in September 2020. Over the course of the trial, Vanessa frequently complained that Mark had been blocking her access with PC by refusing to send her for a trip to British Columbia. Vanessa is understandably distressed by the fact that she has not spent time in person with her daughter for well over a year.
203As I will explain below, I find that Mark’s refusal to send PC to B.C. for a visit over the past year was prompted by genuine concerns he had for PC’s welfare, as opposed to a mere desire on his part to deny Vanessa’s time with PC. Nevertheless, given the conflict between the parties, I specifically asked each of them in their closing statements to indicate their willingness to support PC’s relationship with the other parent.
204Both Vanessa and Mark expressed some hesitation in responding to my inquiry. Vanessa argued that Mark was not capable of genuinely caring for PC and that he should be required to complete a parenting course before he could spend time with PC. On the other hand, Mark proposed that Vanessa’s parenting time with PC should be supervised given his concerns over Vanessa’s unannounced visit to the dance studio in July 2021.
205I have earlier found that it is in PC’s best interests to have a strong and positive relationship with both her parents. Despite the reservations expressed by both parties with respect to the capabilities of the other, I am prepared to assume that they will both comply with a clear direction from the court that they support the development and maintenance of PC’s relationship with the other parent, and I have proceeded on that basis.
iv. The history of care of the child
206I have earlier described the significant disruptions that have occurred in PC’s life over the past 5 years, and her resulting need for stability and continuity going forward, and I will not repeat that discussion here. The issue of family violence is also relevant in terms of the history of PC’s care, but that important matter will be discussed separately below.
207One other matter of relevance in relation to this criteria is the attempt by the Muskoka CAS in September and August 2020 to investigate a concern that had been reported to the Society in relation to PC.
208The evidence discloses that Virginia Edwards of the Muskoka CAS believed that the concern that had been reported was sufficiently significant to require her to interview PC, and she attempted on a number of occasions to arrange an interview. Rather than take these concerns seriously, Vanessa thought that whatever Ms. Edwards was calling about could not have been serious. Moreover, Vanessa questioned Ms. Edwards’s motives in continuing her attempts to meet with PC, suggesting that Ms. Edwards was simply keeping the file open because she did not have enough to do and might have been in danger of losing her job. In the texts that Vanessa exchanged with Ms. Edwards in October 2020, Vanessa was uncooperative and evasive, failing to disclose that she was then living in British Columbia, or that PC was residing with Mark in Toronto.
209A CAS in Ontario generally only commences an investigation into a child’s circumstances where there are concerns raised about whether the child is in need of protection. This includes (amongst other things) if the child has suffered, or is at risk of suffering, physical or emotional harm.24 A CAS does not keep files open because the social workers do not have enough work to do or are trying to protect their jobs. I am therefore troubled by Vanessa’s dismissive response to the repeated inquiries by Ms. Edwards.
210Equally troubling is the fact that Vanessa’s evidence on this issue at trial was misleading and lacked candour. Initially, Vanessa testified that she believed that Ms. Edwards had been calling because of a report that Vanessa had made to the Collingwood OPP about a 2015 incident involving Mark. However, later in Vanessa’s evidence she disclosed that she had spoken and texted extensively with Ms. Edwards. Based on her communications with Ms. Edwards, Vanessa acknowledged that she was aware that the Muskoka CAS’s concerns arose from reports the Society had received in the summer of 2020, and therefore did not relate to the 2015 incident involving Mark. Then, when Vanessa was instructed by the court to produce all her texts and emails with Ms. Edwards, she produced only a few texts from August 2020 in which Ms. Edwards was discussing closing the Muskoka CAS file. But Vanessa failed to disclose her texts with Ms. Edwards in September and October 2020, in which Ms. Edwards was attempting unsuccessfully to arrange an interview with PC. Vanessa only produced those later texts when specifically instructed by the court, a second time, to do so.
211I have already emphasized the fact that the CLRA provides that the court, in determining the best interests of the child, shall give primary consideration to the child’s safety, security and well-being. The abortive investigation by the Muskoka CAS in the summer and fall of 2020, when PC was in Vanessa’s care, suggests the possibility that there may have been a risk to PC’s physical or emotional well-being at that time. But because the matter was never properly investigated, the court has no way of knowing the extent of the risk at that time, and whether it might arise again sometime in the future if PC were returned to Vanessa’s care on a full-time basis.
212In contrast, in its February 2021 letter to Mark, the Muskoka CAS recognized that Mark provides appropriate support/care for PC. The Society encouraged him to continue to engage with community supports that his family finds beneficial.
v. PC’s views and preferences, giving due weight to her age and maturity, unless they cannot be ascertained
213The OCL investigation that was completed in the fall of 2019 did include independent information as to PC’s views and preferences at that time. However, for reasons explained earlier, the OCL Report was not admitted into evidence.
214Over the course of the trial, both Mark and Vanessa testified as to what PC had told them about her views and preferences. As might be expected, they had contradictory accounts on the matter. Despite the fact that they attempted to cross-examine each other on this and other issues, I find that I am unable to properly assess and determine PC’s views and preferences on the issues in dispute in this litigation. I therefore have not factored this criteria into my assessment of PC’s best interest.
vi. PC’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage
215There was no evidence relevant to this criteria and, therefore, it has not been taken into account in my analysis.
vii. Plans for the child’s care
1. Mark’s plans
216In September 2021, Mark enrolled PC for Grade Four in the English program at Norway Public School. Although the TDSB provided an option for virtual learning for the current academic year, Mark opted to have PC attend school in person.
217Mark’s decisions in this regard appear to be sound. As far back as Grade One, PC was struggling with French Immersion, as her French reading, writing and speaking were significantly below grade level. Mark’s decision to transition her to the English program, although it may entail some short-term challenges (as described by PC’s Grade Four teacher, Ms. Taylor), was clearly child-focused and in her best interest.
218It is also evident that, as is the case with many students, PC struggled with online learning following the closure of schools as a result of the Covid-19 pandemic. Dr. Patel’s evidence was that there was no medical or health reason why PC should not attend school in-person. Mark’s position is that, assuming schools remain open for in-person learning, PC should continue to attend in-person rather than virtually, which I find to be consistent with her best interest.
219Mark has been diligent so far this academic year in ensuring that PC attends school, and the attendance problems that had consistently plagued PC for a number of years preceding the Covid-19 pandemic have been resolved. Mark has also arranged for an occupational therapist to work with PC on a regular basis, with a particular focus on her literacy skills.
220I find that the reports from PC’s Grade Four teachers to be generally positive. They confirm that, although PC continues to have challenges in relation to her literacy skills, she is making significant progress and there is reason for optimism that she will continue to do so in the future.
221I so find despite a sentence in the November 2021 Report Card stating that PC “often shuts down when she feels overwhelmed”. The full context in which this statement appears is as follows:
[PC] has had a good start to grade 4. [PC] is able to manage and take responsibility for her own behaviour. She follows classroom rules, routines and instructions, [PC] struggles with beginning tasks that involve language skills and is encouraged to ask for help when she needs it. She often shuts down when she feels overwhelmed and is working on strategies to calm down in these situations so that she is able to get the support she needs. She maintains fairly neat and organized workbooks and she keeps a tidy organized work area. [PC] uses time effectively by starting tasks promptly and staying focused during independent work time. She contributes ideas during whole class discussions and during small group discussions. She is able to name the zones of regulation and uses a variety of strategies when not in the green zone. Congratulations on a good start to year! Keep it up!
222While the reference to PC “shutting down” certainly identifies a concern, this is immediately qualified by the statement that PC is working on strategies to calm down in these situations so that she is able to get the support she needs. Moreover, the remainder of the paragraph is entirely positive. An earlier email from the Grade Four teacher, Ms. Taylor, had explained that it is entirely normal for a student transitioning from French Immersion to the English stream to experience challenges and difficulties. Ms. Taylor indicates that she is working with PC on these issues and believes that she has a strategy and the necessary supports to address them. Thus, rather than a cause for major concern, I regard the November 2021 Report Card as generally positive.
223Mark is also ensuring that PC is continuing with her involvement in her other interests and activities, such as with dance. Not only does PC attend dance class twice a week during the academic year, she participated in a four-week dance camp this past summer which she clearly enjoyed. A July 21, 2021 email from the manager of the dance studio (immediately prior to the incident on July 23, 2021), reported that PC “was doing great” and that she “really seems to be enjoying herself, she has been singing and dancing and seems to be getting along well with the other girls.”
224Finally, Mark has made efforts to ensure that PC maintains relationships with her maternal grandparents. This past summer, PC spent two weeks with her maternal grandmother in Dundas, Ontario. Mark has also arranged for video calls between PC and both her grandparents.
225Overall, Mark’s plans for PC appear to be well thought-out and child focused.
2. Vanessa’s plans
226As noted earlier, Vanessa’s preference is for PC, along with her sisters (when they attain school age), to attend a private school close to where she and Robert now live in Oceanside. Although Vanessa did not disclose the name or address of the school or provide any documentation from the school itself, I am prepared to accept Vanessa’s evidence regarding the school, based on a conversation Vanessa had with the school’s director. I am further prepared to assume that the school offers a strong academic program. Classes are limited to 15 students, which permits the teaching staff to devote attention to the needs of the students.
227Vanessa also indicated that if, for financial or other reasons, PC is not able to attend the private school, she would enroll PC in one of two public schools in the area. One of these schools offers French Immersion, while the other school offers a program taught in English with French as a subject matter of instruction. Vanessa did not offer any information about either of these public schools. She did indicate that if PC wanted to continue with French Immersion, she would support this decision. In his evidence, Robert indicated that he thought PC and her sisters should be enrolled in French Immersion together in Oceanside.
228I have no doubt that Vanessa genuinely hopes to enrol PC at the private school in Oceanside, and that the school’s curriculum and programming appears to be student focused. But it is difficult to see how this option is financially feasible for Vanessa and Robert. Vanessa reported that the annual tuition at the school is approximately $10,000. Vanessa does not work outside the home, and the spousal support she has been receiving from Mark is scheduled to terminate in September 2022. Robert’s income is approximately $30,000 annually, and he has accumulated modest savings of about $11,500 in a TFSA. Of course, in addition to PC, Robert and Vanessa have two other young children who must be financially supported on the family’s income. Moreover, both Vanessa and Robert emphasized the importance of PC attending school with her sisters PAR and PAI. PAR will begin school either in the fall of 2022 (when she turns four) or the fall of 2023. Even if Robert and Vanessa were somehow able to afford to initially send PC to private school, this option would clearly be unaffordable once PAR begins school in the not-too-distant future.
229This suggests that it is very possible that PC will end up (either now or sometime over the next 18 months) attending one of the two public schools in Oceanside. Unfortunately, I have no information about either of those schools and whether they are able to provide the supports needed to support PC’s learning needs.
230I am also concerned over the possibility that, if PC ends up attending public school, both Vanessa and Robert have spoken positively about enrolling her in French Immersion. The evidence is quite clear that PC did not succeed in French Immersion and should continue in the English stream. I find that it would be contrary to her interests to attempt to transition her back to French Immersion, and I am concerned that Vanessa and Robert do not appear to appreciate PC’s needs in this regard.
231Vanessa testified that she intends to supplement whatever schooling PC receives by working with her at home on her schoolwork, and she plans on obtaining texts or workbooks for this purpose. Vanessa even raised the possibility that she might at some point home-school PC. The fact that Vanessa is willing to support PC in this way is commendable. However, as discussed above, PC continues to experience significant academic challenges, particularly in terms of literacy. Given her significant academic needs, I do not believe that working at home with either of her parents, no matter how dedicated or well-intentioned the parent may be, can serve as an appropriate or adequate substitute for the academic support from trained professionals that she will require for some time.
232I accept Vanessa’s evidence regarding the other community supports that are available in Oceanside, including dance, horseback riding, art programs and golf. It is also evident that Oceanside offers greater opportunities to interact with nature than are available in a major urban centre such as Toronto. These are some of the positives associated with PC residing in Oceanside with Vanessa, Robert and their two daughters.
viii. 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
233In my view, both Mark and Vanessa are capable of and willing to care for PC and meet her needs.
234As noted above, Vanessa was PC’s primary caregiver from her birth until September 2020 and is clearly devoted to her daughter. Vanessa does not work outside the home and is committed to PC’s welfare. Robert also indicated that he had been very involved with PC’s care, prior to the move to British Columbia in September 2020. I find that Vanessa is certainly capable of caring for PC.
235Although Mark was not as involved in PC’s upbringing prior to March 2020, he has been very involved since then. From March until September 2020, PC resided with Mark every second week, and he does not appear to have had any difficulty in properly caring for her during this period of time. Since September 2020, PC has been in Mark’s care on a full-time basis. Although there were certainly challenges associated with PC’s virtual schooling in the 2020 – 2021 academic year, similar challenges were experienced by many children in Ontario. Since September 2021, when PC resumed in-person learning, Mark has ensured that PC attends school regularly. He has also arranged for appropriate academic supports to address her learning challenges. Since January 2020, Mark’s requirement to travel for his job has been significantly reduced and he now works primarily from home. Accordingly, I find that, like Vanessa, Mark is capable of and willing to care for PC and to meet her needs.
ix. 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
236In the initial 12-18 months following their separation, Mark and Vanessa appeared capable of making joint decisions that were in PC’s best interest. However, since that time, and particularly following Vanessa’s move to British Columbia in September 2020, their relationship has deteriorated to the point where they no longer appear capable of making significant decisions on matters affecting PC together. In the face of these disagreements, Vanessa has, on a number of occasions, simply decided to act unilaterally, thereby exacerbating conflict and prompting court intervention.
237For example, in September 2018, the parties could not agree on whether PC should attend school in Toronto or in Collingwood. Vanessa enrolled PC at a school in Collingwood without informing Mark. Mark was forced to bring an urgent motion which resulted in an order that PC return to school in Toronto.
238In March 2020, at the commencement of the Covid-19 pandemic, Vanessa decided to move to Collingwood with PC without consulting Mark. Mark was opposed and brought an urgent motion seeking PC’s return to Toronto. This resulted in the Nakonechny Order mandating that PC’s primary residence would remain in Toronto and the parties would commence a week-about parenting schedule.
239In September 2020, the parties were again at odds over PC’s schooling; Mark thought PC should attend school in person in Toronto, while Vanessa wanted PC to attend a private school in person in Collingwood. Although Vanessa decided to enrol PC with the TDSB, she opted for virtual rather than in-person learning, without Mark’s knowledge or consent.
240Since Vanessa’s move to British Columbia in September 2020, the parties have been unable to agree on arrangements that would permit Vanessa to spend time in person with PC. This disagreement prompted Vanessa to attempt to remove PC from the dance studio in July 2021, without notice to Mark and without advising him as to where she was taking PC. This resulted in police intervention and the subsequent order by Shore J. requiring that Vanessa’s visits with PC occur in Ontario and that they be supervised. Despite that order, in August 2021, Vanessa once against attempted to remove PC from the dance school without Mark’s knowledge or consent and contrary to the express terms of the Shore Order.
241As described earlier, Vanessa takes the position that Mark has been unreasonably refusing to allow PC to visit her in British Columbia. Vanessa believes that Mark has been refusing to send PC to British Columbia since September 2020 simply because he wishes to block access her access to PC, rather than because he had any genuine concerns over PC’s welfare.
242In fact, however, I find that the concerns that Mark has been raising over the past 16 months about a possible trip by PC to British Columbia have been both genuine and legitimate. For example, Mark questioned the fact that Vanessa originally went to British Columbia for a three-week holiday, but then decided to remain there indefinitely without any explanation. Mark asked Vanessa to inform him as to her long-term plans and whether she intends to return to Ontario at some point in the future. In the event that Vanessa did decide to return to Ontario, Mark offered to resume the week-about schedule provided for in the Nakonechny Order. Mark also raised concerns over the advisability of sending PC to British Columbia, who was then just 9 years old and would have been travelling as an unaccompanied minor, in the midst of the Covid-19 pandemic. Rather than respond to these reasonable requests for information or otherwise address Mark’s concerns. Vanessa simply repeated her requests to have PC sent to British Columbia.
243In his evidence at trial, Mark explained that he was not prepared to send PC to British Columbia without an appropriate response on these matters, particularly given the fact that Vanessa had breached a number of court orders and had made unilateral decisions regarding PC’s residence and schooling in the past. I find that this was a reasonable position to take, reflecting a genuine concern on his part over PC’s welfare, rather than for any improper motive.
x. Family Violence
244A central focus of Vanessa’s evidence at trial related to her allegations that Mark has been violent toward her, both during their time living together as well as following their separation. Vanessa’s evidence was that while they were living together, Mark was both physically and verbally abusive. This included a 2015 incident in which Vanessa stated that Mark grabbed her by the arms and threw her out the back door of their house. Following their separation, Vanessa alleged that Mark had been stalking her and threatening her. Vanessa was particularly troubled over the fact that in the fall of 2017, Mark had used his house key to enter the Kingston Road property in order to obtain documents, such as PC’s passport, while Vanessa was not home.
245Vanessa testified that she has been traumatized by this violence and now lives in constant fear of Mark showing up at her home in British Columbia. For this reason, Vanessa has been unwilling to disclose her current address, or the name and address of the school in Oceanside where she plans to enrol PC.
246Mark has acknowledged that he was verbally abusive to Vanessa while they were living together. This included insulting or swearing at Vanessa, criticizing her clothes or appearance, criticizing Vanessa’s care of PC, and sulking or refusing to talk about an issue. However, Mark denies that he was physically abusive to Vanessa. He also denies that he has been stalking or threatening her since their separation in October 2016. While he admits having used a house key to enter the Kingston Road property on occasion in the fall of 2017 when Vanessa was not home, he says that he did so in order to retrieve documents or for other legitimate reasons, rather than to threaten Vanessa.
247I find that Mark was verbally abusive to Vanessa while they were living together. I also accept Vanessa’s evidence that in 2015, Mark was physically violent toward her when he grabbed her by the arms and threw her outside into the backyard of the Kingston Road property.
248However, I find that this violent behaviour did not continue after the parties’ separation. By the summer or fall of 2017, Vanessa had commenced a new long-term relationship with Robert. After this point, Robert appears to have taken a lead role in communicating with Mark on matters involving PC, thereby minimizing any face-to-face contact between Mark and Vanessa. There is no evidence of any ongoing verbal or physical abuse between Mark and Vanessa after this point.
249Nor do I find that Mark has been stalking Vanessa since their separation. I agree with Vanessa that it was inappropriate for Mark to enter the Kingston Road property in the fall of 2017 when Vanessa was not home and without informing her. But I also accept Mark’s evidence that he entered the house in order to retrieve items that he believed he needed, such as to obtain PC’s passport for a planned trip, rather to threaten her. Moreover, the contemporaneous communication between the parties does not reflect any concerns on the part of Vanessa or Mark about Vanessa’s safety. For example, in December 2017, Mark and Robert were discussing (via email) the fact that Mark was in possession of PC’s passport, which he wanted to return to Vanessa prior to a planned trip by Vanessa and Robert to B.C. Robert advised Mark that they did not require PC’s passport for the trip and that he should simply drop it at the Kingston Road property while they were away. By this time, Vanessa had changed the locks on the Kingston Road property such that Mark could no longer gain access to the house on his own. Robert offered to leave the house keys in the mailbox for Mark to use while Robert and Vanessa were away. What this email exchange discloses is that neither Robert nor Vanessa were particularly concerned over the possibility of Mark entering the Kingston Road property, and it certainly contradicts any suggestion that they believed Mark was improperly stalking or harassing Vanessa.
250Vanessa also claims that emails she has received from Mark and/or his legal counsel have been abusive and harassing. I have reviewed these email exchanges carefully. It is evident that Mark and/or his counsel have frequently questioned or criticized Vanessa’s actions and behaviour in relation to PC, often in strong and direct terms. But by the same token, Vanessa herself has frequently criticized Mark’s actions and behaviour in relation to PC in an equally strong and direct manner. I find nothing in these email exchanges that is out of the ordinary in the context of contested family law litigation, and certainly nothing that would rise to the level of harassment, intimidation or stalking.
251I therefore find that the history of family violence in this case will not meaningfully impact Mark’s ability to care for and meet the needs of PC now and into the future. His ability to do so effectively is confirmed by the fact that he has provided for PC’s needs on a full-time basis since September 2020 without incident or difficulty.
xi. Any civil or criminal proceeding that is relevant to the safety, security and well-being of the child
252As described earlier, in June 2019, criminal charges were laid against both Vanessa and Robert as a result of a call that Robert made to the police. Although the single charge of assault against Vanessa was withdrawn shortly after it was laid, the charges against Robert were, on their face, much more serious, involving multiple counts of assault and forcible confinement dating back to 2017. It appears that the charges against Robert did not proceed when Vanessa informed the police in the fall of 2017 that she would not voluntarily testify at Robert’s trial.
253Both Vanessa and Robert testified that PC had never been exposed to any family violence occurring in their home. Vanessa said that this was the case because there had never been any family violence to which PC could have been exposed. Robert’s slightly more nuanced evidence was to the effect that he and Vanessa had worked through issues in their relationship and that their relationship was now very stable.
254What is concerning is not so much the charges themselves, but the lack of transparency and candour on the part of both Vanessa and Robert as to the circumstances surrounding this matter.
255Vanessa testified that she had no idea why she had been charged with assaulting Robert in June 2019. Robert, on the other hand, conceded that he may have told Mark in a June 2019 telephone call from jail that Vanessa had bitten him, and this was the basis for the charge against her.
256The point is not whether Vanessa did or did not bite Robert, or whether the charge of assault against her had any merit. My concern, rather, is simply that Vanessa’s evidence to the effect that she had no idea why she was charged is simply not credible.
257Vanessa was similarly evasive and lacking in candour when asked to explain the basis for the charges against Robert. Vanessa stated repeatedly that responsibility for the charges rested with her mother who had convinced her that Robert had abused her. Vanessa also stated that it was her mother who had spoken to the police and caused the police to lay charges against Robert. Yet Vanessa herself must also have spoken to the police about Robert, since the police could not have laid charges against Robert without direct evidence from Vanessa. Vanessa herself confirmed that this was the case when she later stated that the Crown decided not to proceed with the charges against Robert when Vanessa informed them that she would not voluntarily testify against him.
258Again, the most significant concern is not simply the charges themselves, but the failure of both Vanessa and Robert to testify transparently and candidly regarding the matter. It is only natural, therefore, to question the credibility of their evidence to the effect that there has not been any family violence in their relationship, or that PC has not been exposed to any such violence.
d. Relocation factors, CLRA s. 39.4
i. The reasons for the relocation
259It is unclear when or why Vanessa and Robert have decided to permanently relocate to British Columbia.
260The move to British Columbia was originally described as a three-week vacation to spend time with Robert’s family. Rather than return to Ontario as planned in October 2020, Vanessa and Robert decided to extend their stay, apparently due to the fact that Robert’s sister was planning on visiting there in December 2020.
261By early November 2020, Vanessa and Robert had decided to further extend their stay in British Columbia until at least March 2021, when they were expecting the birth of their second child. They were concerned over the fact that case numbers for Covid-19 had risen significantly and that, given Vanessa’s pregnancy, they thought it safer to remain in British Columbia until the baby was born.
262Vanessa and Robert’s second daughter was in fact born in March 2021 and, by the late spring/early summer of 2021, the Covid case counts had declined significantly. Although Vanessa and Robert remained in British Columbia with no expected return date, it is not clear whether by this point they had decided to stay there permanently. In a case conference brief filed by Vanessa in the middle of May 2021, Vanessa listed her home address as Collingwood rather than Oceanside, British Columbia, and Robert’s lease on the Collingwood house continued until the end of August 2021.
263What is clear is that by the time of the case conference before Shore J. on July 28, 2021, Vanessa and Robert had decided to permanently relocate to British Columbia, as indicated in Shore J.’s Endorsement of that date. However, in their evidence at trial, neither Vanessa nor Robert provided any explanation as to why or when they had made this decision, other than they preferred to live there due to factors such as the climate, the natural setting, and proximity to Robert’s family.
264It goes without saying that individuals in Canada are generally free to decide where they prefer to live without the necessity of providing an explanation. But one parent’s decision to relocate a child, where the relocation is likely to significantly impact the child’s relationship with the other parent, is a different matter. As the Department of Justice explains in its Technical Guide to the recent amendments to the Divorce Act, in this context, the reasons for a relocation become legally relevant, since they may relate directly the best interests of the child. For example, a relocation may enable a parent to earn a significantly higher salary, improving the financial circumstances of the child.25 Thus, in Bourke v Davis,26 the relocating mother explained that she had carefully considered the pros and cons of the proposed relocation from London, Ontario to Washington State, USA, in a child-focused manner. The mother indicated that she made the difficult decision to relocate because, from an employment or financial point of view, it was not feasible for the family to remain in Ontario. Broad J. found these considerations relevant to his decision to authorize the relocation of the parties’ two sons.
265No such evidence was provided in this case. When they moved from Collingwood in September 2020, it was to go on vacation rather than for employment or financial reasons. Vanessa and Robert continued to lease the house in Collingwood for another year and presumably could have decided to return there at any time. Although Robert obtained employment at a restaurant in Oceanside in March 2021, by the time of the trial, the restaurant in Oceanside had closed for the winter and there was no indication that he was unable to find similar employment in Ontario.
266I am left without an explanation as to how, when or why Vanessa and Robert decided to permanently relocate to British Columbia. As such, I am unable to find that their decision to do so was based on or reflected a consideration of PC’s best interests.
ii. The impact of the relocation on PC
267In my earlier discussion of PC’s needs, I pointed out the significant number of changes and disruptions that she has experienced over the past five years. These changes have negatively impacted her well-being, as reflected in her struggles academically. Although she is now benefiting from significant supports designed to assist her in overcoming these challenges, she has a strong need for stability and continuity if she is to realize her potential in the years ahead.
268In this context, I find that relocating her to British Columbia at this time would exacerbate her challenges and significantly negatively impact her life chances. Such a move would require her to adjust to a totally new environment, both socially and academically. I am also concerned about the uncertainty in Vanessa’s plans for PC’s schooling in Oceanside. Vanessa’s preference is for PC to enrol at a nearby private school. But as explained earlier, it is unclear how this plan is financially feasible. It is entirely possible that it will be necessary to enrol PC at one of the two public schools in Oceanside. I have no information about either of these schools, in particular, whether they have the academic supports that PC needs and is currently receiving in Toronto. A further complication is that one of the two public schools in Oceanside offers a program in French Immersion, and both Vanessa and Robert spoke favourably of this option for PC. Yet given PC’s previous experience with French Immersion, it would clearly be contrary to her best interest for her to be re-enrolled in a French Immersion program.
269In short, I find that the proposed relocation would have a significant negative impact on PC in the short-term, and that such impact could affect her longer-term development.
iii. The involvement and the amount of time spent with PC by Mark and Vanessa
270As the DOJ Technical Guide explains, this factor requires the court to consider the level of disruption that the relocation would cause to a child’s relationship with her parents. For example, where there are arrangements that provide that a child is to spend a significant amount of time with each parent, a relocation could be quite disruptive. In contrast, if one parent is clearly primarily responsible for the child and proposes to move with her, the court must consider the impact on the child should the child not be permitted to move with that parent.27
271In this case, the most recent parenting order is the July 2021 order of Shore J. which provides that PC is to have her primary residence in Toronto with Mark. This continued the arrangement that had been put in place in September 2020, when Vanessa moved to British Columbia. The previous court order was the April 2020 order of Nakonechny J. which provided that Mark and Vanessa were each to spend equal time with PC. Prior to April 2020, PC was residing with Vanessa for the majority of time but was also spending a significant amount of time with Mark.
272I have earlier found that PC has a strong relationship with both her parents, as evidenced by the fact that over the past number of years she has spent a significant amount of time with both of them. It is evident, therefore, that whether or not PC relocates to British Columbia or remains in Toronto, there will be a significant disruption to her relationship with one of her parents.
iv. Whether the person who intends to relocate the child has complied with any applicable notice requirement under s. 39.3
273The person who intends to relocate a child is required to provide advance notice setting out, amongst other things, the address of their new residence.28 This statutory requirement reflects the legislature’s judgement that is important for both parents to know where their child is living, particularly when the residence is located a significant distance from the home of one of them.
274Vanessa has refused to provide her address in Oceanside, because she fears that if she did so, Mark would show up unannounced at her residence and threaten her or attempt to interfere with her parenting time with PC.
275I recognize that I have the discretion to waive this requirement if I find it appropriate to do so, including if there is a risk of family violence.29 However, I find that it would not be appropriate to waive the requirement in this case, for a number of reasons.
276First, I find that it is highly unlikely that Mark would show up unannounced in Oceanside, British Columbia in the face of a court order to the contrary. Over the past five years, Mark has consistently complied with parenting orders and has never withheld PC, or attempted to remove PC from Vanessa’s care, contrary to a court order. Moreover, for the reasons discussed earlier, I have found that Mark has not been violent towards Vanessa in the five years since the parties separated.
277Second, if I were to order PC’s relocation to Oceanside, there is good reason to require Vanessa to disclose her address. On a number of occasions, Vanessa has attempted to relocate PC contrary to court orders and/or without Mark’s consent, and he has been forced to bring an urgent motion seeking her return. Given this history, it would be contrary to PC’s best interest to authorize her to reside with Vanessa at an unknown address outside of Ontario, which would make enforcement of any court order significantly more difficult.
278I conclude, therefore, that Vanessa has failed to comply with the relevant notice requirements under the CLRA and should be required to do so prior to spending parenting time in B.C. with PC.
v. The existence of an order specifying the geographic area in which PC is to reside
279There are four separate orders of four different judges of this court which specify that PC’s habitual residence is to be in Toronto: the Ferguson Order of June 2018; the Paisley Order of September 2018; the Nakonechny Order of April 2020; and the Shore Order of July 2021. Although a number of these orders were made on consent, they nevertheless reflect a consistent determination that it is in PC’s best interests to continue to reside in Toronto.
vi. The reasonableness of the proposal to vary parenting time and decision-making responsibility
280This factor requires the court to assess whether the proposed changes in parenting time and decision-making responsibility associated with the relocation are practical.
281At trial, Vanessa proposed that Mark have parenting time as follows: during the summer holidays up to a maximum of four weeks; a maximum of 10 days during March break; and a maximum of six days during Christmas break. I see this as a practical proposal, since it would provide meaningful time for PC to spend with Mark, while avoiding overly frequent or unduly costly travel by PC.
vii. Compliance with obligations
282This factor requires the court to consider whether the parties have complied with their family law obligations and are likely to comply with such obligations in the future.
283I earlier noted that there have been four separate court orders mandating that PC’s habitual residence is to be in Toronto. Significantly, Vanessa has breached all four of these orders. In particular, Vanessa breached the Ferguson Order of June 2018 when she attempted to relocate PC to Collingwood in September 2018; she breached both the Ferguson Order and the Paisley Order when she attempted a second time to relocate PC to Collingwood in April 2020; she breached the Nakonechny Order of April 2020 when she attempted to remove PC from the dance studio in July 2021 without Mark’s knowledge or consent; and she breached the Shore Order of July 2021 when in August 2021 she attempted on a second occasion to remove PC from the dance studio without Mark’s knowledge or consent and without the supervision that had been ordered by Shore J.
284I am particularly troubled by the July 2021 incident at the dance studio.
285Vanessa testified that her plan was to remove PC from the dance studio so that PC could participate in online summer school over the next week. However, Vanessa said that she had not decided where she would spend the week with PC. Vanessa’s evidence was that she had three possible locations in mind: her father’s residence in Dundas, Ontario; the rented house in Collingwood, Ontario; or her current residence in Oceanside, British Columbia. Vanessa testified that she planned on contacting Mark after she left the dance studio with PC and only then would she decide where to take PC for the week.
286I do not find this evidence to be credible, for a variety of reasons.
287First, Vanessa’s evidence that she did not know where she intended to take PC after she left the dance studio is extremely difficult to believe. There is clear evidence that Vanessa had otherwise carefully planned her trip to the dance studio. She had taken a redeye flight from British Columbia to Toronto overnight; she arrived at the dance studio just minutes after Mark had dropped PC off for the day; when she arrived, she was wearing a hoodie, sunglasses and a surgical mask, which made her difficult to recognize; she arrived unannounced and without any advance warning to Mark or the staff at the studio; at the same time, she had taken the trouble to purchase balloons for PC and the other children, which suggested that she was aware that her unexpected arrival might arouse suspicions on the part of the studio staff. Given her extensive planning of these various aspects of her trip, Vanessa’s claim that she didn’t also have a plan as to where she was going to take PC for the week is highly improbable, to say that least.
288Second, it is equally improbable that Vanessa planned to spend the following week with PC at either her father’s home in Dundas, Ontario or at the rented property in Collingwood. If Vanessa had been planning on spending the week at her father’s home in Dundas, Ontario, she would have made arrangements to that effect. Vanessa said that she had in fact discussed the matter with her father, and she agreed to provide the court with any texts or emails with her father evidencing such arrangements. However, no such texts or other evidence of any prior communication with her father was provided.
289Even more telling is the fact that Vanessa was not vaccinated against Covid -9, and her father had certain health conditions which made him at greater risk for the virus. As a result, in early August 2021, her father and stepmother would not agree to have Vanessa and PC spend the day with them (as contemplated by the Shore Order.) It stands to reason, therefore, that even if they had been asked, Vanessa’s father and stepmother would not have agreed to allow Vanessa and PC spend an entire week there in late July.
290As for the idea of taking PC to the rented house in Collingwood for the week so she could do online school from there, neither Vanessa not Robert had been to that property for close to a year. Vanessa did not have an automobile to get to Collingwood, and PC had not prepared any personal items or supplies that she would have needed to comfortably spend the week there, including for her online school. Moreover, Vanessa had left two young children in Oceanside with Robert, including a four-month-old infant whom she was breastfeeding. In his evidence, Robert indicated that Vanessa was just going to spend the day with PC, as opposed to remaining in Ontario for an entire week. It strains credulity to imagine that Vanessa would have remained in Ontario for a week with PC, leaving an infant and a three-year-old with Robert without clearly advising him in advance.
291Also relevant is the fact that if Vanessa had remained in Ontario with PC for a week (either in Dundas or Collingwood), Mark would immediately have contacted the police or brought urgent legal proceedings. This would almost certainly have resulted in an immediate order to return PC to Mark’s care. Vanessa was well aware of this scenario, as reflected by her decision not to advise Mark in advance of her intention to remove PC from the dance studio.
292By a process of elimination, only the third option – returning to Oceanside, British Columbia with PC for at least a week – seems feasible, practical or likely. Vanessa acknowledged that returning to B.C. with PC was a possibility, but she maintained that in this event she would have certainly returned PC to Toronto after one week, as required by the Nakonechny Order. But Vanessa had already breached the Nakonechny Order by arriving at the dance studio unannounced and attempting to remove PC without Mark’s consent. It is thus unclear why she would have been overly concerned about PC spending more than a week in B.C., particularly given her belief that Mark had been improperly withholding PC from her for close to a year. I also observe that Mark did not know Vanessa’s address in British Columbia, which would have complicated legal proceedings to have her returned to Mark in Toronto.
293Quite apart from whether Vanessa intended to take PC back to British Columbia or to remain with her in Ontario at some other location, her decision to arrive at the dance studio unannounced was improper and contrary to PC’s best interests. Vanessa testified that she was aware that her visit to the dance studio might well provoke a confrontation, either with the dance studio staff or with Mark. She said that in the event that such a confrontation did occur, she had promised Robert that she would leave immediately. Such a confrontation did in fact materialize, causing tremendous distress and upset not only to PC, but to the other children as well as the staff at the studio. The fact that Vanessa decided to proceed with her visit notwithstanding this obvious risk of harm to PC raises concerns as to whether she is appropriately child-focused in her decision-making.
294What is also troubling is that Vanessa seems to have no insight into the fact that her decision to attempt to remove PC from the dance studio was inappropriate and contrary to PC’s best interests. Rather than accept any responsibility herself for what occurred, Vanessa blamed Mark for this confrontation and resulting distress to PC, arguing that he ought not to have called the police. Yet it was through police involvement that the confrontation was eventually defused and calm restored. Unfortunately, once the situation escalated as a result of Vanessa’s attempt to remove PC, I see no other alternative that would have achieved this necessary outcome, for the benefit of PC as well as the other children. Vanessa’s inability to accept any responsibility for what occurred at the dance studio raises further questions as to whether she is able to make decisions based on PC’s best interests.
e. Conclusion: It is in PC’s best interest to remain in Toronto rather than relocate to Oceanside, British Columbia
295Considering the factors identified above, both individually and in their totality, I find that it is in PC’s best interest to continue to reside with Mark in Toronto rather than relocate to Oceanside, British Columbia to reside with Vanessa. There are a variety of considerations which lead me to this conclusion.
296First, I place particular emphasis on the fact that PC has experienced a variety of significant disruptions in her life over the past five years. This includes the breakdown of her parents’ relationship and the resulting ongoing conflict between them; her significant attendance problems beginning in kindergarten and worsening in Grade Two, which caused her to fall behind her grade level academically; her difficulties with French Immersion, resulting in a change to the English stream in September 2021; and the fact that she was deprived of the opportunity for in-person learning for a period of 16 months due to Covid. She is now in a stable learning environment and is receiving the support she needs to address her academic and other challenges. In my view, the last thing she needs at this time would be a further significant disruption that would be the inevitable result of a move to Oceanside.
297In this context, a second, related concern is the uncertainty surrounding Vanessa’s plans for PC in Oceanside. In recent cases where courts have approved a child’s relocation, the parent proposing the move has presented carefully researched, practical plans carefully tailored to meet the child’s needs.30 No such evidence was presented in this case. Vanessa proposes to send PC to an unidentified private school in Oceanside. The only information I have about this school is based on Vanessa’s account of a telephone conversation she had the school director just prior to the commencement of trial. Further, as discussed earlier, given the significant tuition charged by the school and Vanessa and Robert’s limited income, it is very possible that PC will not be able to attend the private school and instead will be enrolled at one of two public schools in Oceanside. I know nothing about either of these two public schools other than that one of them offers a program in French Immersion.
298A third consideration weighing against PC’s relocation is the absence of any explanation as to why Vanessa and Robert decided to permanently relocate to Oceanside. Where courts have approved a relocation, the parent proposing the relocation has demonstrated that they carefully took into account the child’s best interest in coming to that decision.31 In this case, Vanessa and Robert initially travelled to British Columbia for a three-week vacation. The vacation was extended repeatedly and, eventually, Vanessa and Robert decided to remain in British Columbia permanently. But I do not know when or why they came to this decision. While they are of course free to decide for themselves where they wish to live, at issue here is whether the court should authorize PC’s relocation. The absence of an explanation as to how they came to the decision to permanently reside in British Columbia precludes me from making a finding that they did so based on an appropriate consideration of PC’s best interests.
299A fourth consideration weighing against the proposed relocation is Vanessa’s failure to comply with the four court orders previously issued dealing with PCs habitual residence. My concerns in this regard have been described in some detail above and I will not repeat that analysis here. Vanessa’s failure to comply with court orders in the past raises questions as to whether she would comply with the terms of any relocation order that I might make.
300A fifth relevant consideration arises from the abortive Muskoka CAS investigation into PCs circumstances in 2020. Rather than cooperate with Virginia Edwards of the Muskoka CAS, Vanessa decided that there was no legitimate reason for the Society’s inquiry, refused to facilitate an interview with PC, and simply requested that the file be closed. Then, in her trial evidence, Vanessa failed to produce the emails and texts between herself and Ms. Edwards disclosing these discussions, despite being specifically requested to do so. The result is that the court has no knowledge of the concerns that gave rise to the Muskoka CAS investigation. Moreover, Vanessa’s attempt at trial to shield her interactions with Ms. Edwards from scrutiny naturally gives rise to an inference that the Muskoka CAS concerns were potentially quite significant.
301A further, related concern is Vanessa’s lack of candour regarding the criminal charges that were laid against her and Robert in June 2019. Vanessa claimed to not be aware of the reasons why she was charged with assaulting Robert, and she was vague and evasive in responding to questions as to why Robert was charged with assaulting and forcibly confining her. As discussed above, her evidence on these issues was not credible. This lack of transparency, far from addressing concerns about potential domestic violence in her and Robert’s relationship, only serves to heighten them.
302I have carefully considered the evidence Vanessa has provided with respect to Mark’s having engaged in family violence. I have found that, although Mark was verbally abusive and physically abusive on one occasion while he and Vanessa were living together, that abuse has not continued after they separated five years ago. I have also found that the family violence that occurred when the parties were living together will not affect Mark’s ability to care appropriately for PC now and in the future. Also relevant is the fact that Mark has complied with the numerous parenting orders that have been issued over the past five years with respect to parenting time with PC.
303Of course, there are significant downsides for PC flowing from a decision not to authorize her relocation to British Columbia. Given the significant distance between Toronto and Oceanside, PC’s in-person parenting time with Vanessa will be significantly curtailed. Even with generous electronic communication between Vanessa and PC, there can be no avoiding the reality that it will be much more challenging for PC to maintain her close relationship with her mother in the years ahead. PC will also have a much more limited opportunity to further develop her relationship with Robert as well as with her two sisters, PAR and PAI.
304I acknowledge, in other words, that there are pros and cons to either of the alternative paths proposed by the parties. The court’s difficult task is to consider what will be gained and what will be lost by PC in either scenario, and make a determination as to what will best serve her interests.
305Having carefully considered the best interest factors in relation to the evidence presented in this difficult relocation case, I find that PC’s needs are more likely to be best served by her remaining in Toronto with Mark. I therefore order that she continue to reside primarily with Mark in Toronto and refuse to authorize PC’s relocation to British Columbia.
VIII: In light of the fact that PC will continue to reside primarily with Mark in Toronto, what order for parenting time with Vanessa is in PC’s best interests?
306Section 24(6) of the CLRA provides that, when 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 child’s best interest.
307Applying that principle in this case, I note that not only is Oceanside, British Columbia approximately 4,500 kilometres away from Toronto, it is not possible to fly directly between these two locations. As such, it will take PC the better part of the day to make the entire trip from one parent’s residence to the other. Also relevant is the fact that PC is just 10 years old. These considerations suggest that PC’s travel between Toronto and Oceanside will need to be carefully scheduled in a child-focused manner, so that it does not prove unduly tiring or disruptive to PC’s regular schedule, including her attendance at school.
308At trial, Vanessa proposed that, in the event PC were to reside primarily with her in Oceanside, PC should spend four weeks over the summer holidays with Mark, as well as approximately a week during March break as well as over the winter (Christmas) break. This would have permitted Mark to have significant parenting time with PC without disrupting PC’s schooling or other activities. Vanessa also proposed regular and liberal electronic communication between herself and PC when PC was in Mark’s care.
309Over the course of the trial, various alternative possibilities were discussed which would have involved much more frequent travel for PC. One idea, for example, was to have PC travel back and forth between her parent’s residences on every long weekend during the school year. In my view, however, this amount of travel would not be in PC’s best interest. It would mean that over the course of numerous weekends throughout the year, PC would spend the better part of two days travelling. This would be an extremely grueling schedule for an adult, let alone a 10-year old girl. Nor would it be in PC’s interest to attempt to separate the travel days by extending the weekends to four days, since that would generally involve PC missing at least a day of school. Given her significant attendance problems in the past and the negative impact this has had on her academic performance, it is a priority that she attends school regularly.
310I therefore find that it would be in PC’s best interest to allocate in-person parenting time in accordance with the arrangements that Vanessa herself had proposed in the event that PC were primarily residing with her. Subject to the conditions outlined below, this means that PC shall have in-person parenting time with Vanessa for four consecutive weeks in the summer, during March break from the first Saturday until the following Sunday, and a maximum of eight days during the Christmas break. The parties shall attempt to select the weeks for the summer in-person visit so as not to conflict with PC’s other anticipated summer activities. In the event that the parties are unable to agree on the four-week period for the summer, in even-numbered years Mark shall select the weeks and in odd-numbered years Vanessa shall select the weeks.
311This allocation of in-person parenting time is subject to the following:
a. Vanessa must disclose her current address to Mark in advance of any travel to British Columbia. In the event that Vanessa intends to spend an overnight with PC at any location other than her current residence during her parenting time, she must provide a detailed itinerary to Mark at least two weeks in advance, including the addresses where she intends to stay and the telephone numbers where they can be reached;
b. given that Vanessa’s move to British Columbia has necessitated these arrangements, Vanessa must fund the cost of PC’s travel to and from British Columbia, either by herself purchasing a return ticket for PC, or by reimbursing Mark in advance of PC’s departure from Toronto for a return ticket which he has purchased for PC;
c. the first such trip to British Columbia by PC will occur during March break 2022. Given that this will be the first occasion on which PC will make this journey, she should be accompanied by Mark, who will arrange with Vanessa and/or Robert to drop off and pick up PC at an agreed time and location on Vancouver Island. On future trips, Mark may choose to accompany PC at his discretion, based on his determination as to what would be in PC’s best interest at that time. Vanessa and/or Robert will cooperate with Mark in ensuring that PC’s travel arrangements, including the pickup and drop off times and locations, are structured in a child-focused manner. Mark will be responsible for funding his own travel costs when accompanying PC.
312In addition to this in-person parenting time, Mark should ensure that PC has liberal telephone, video call and email contact with Vanessa throughout the times of the year when PC is residing with him. In particular, when PC is residing with him, Mark shall ensure that PC initiates a video call to Vanessa at least three times a week in accordance with a schedule agreed in advance. Vanessa may have additional telephone or video calls with PC at such other times as she and PC agree. Conversely, during the times when PC is residing with Vanessa, she shall ensure that PC initiates a video call to Mark at least three times a week in accordance with a schedule agreed in advance.
IX: Decision-making Responsibility
313In determining what allocation of decision-making responsibility would be in a child’s best interests, it is important to consider whether the parents are able to communicate and cooperate in making decisions that affect the child. In particular, it would obviously not be in a child’s best interest to require parents who are unable to cooperate with each other to attempt to make decisions jointly on significant matters affecting the child. This would be a recipe for frustration, conflict and undue delay in making necessary decisions for the child’s welfare.32
314These are the unfortunate circumstances of this case. Following their separation, Mark and Vanessa were initially able to make decisions together on matters affecting PC. But as I have set out in some detail above, over the last few years and particularly since Vanessa’s move to British Columbia in September 2020, the degree of conflict and erosion of trust between them has severely undermined their ability to work together in PC’s best interest.
315I note that both Mark and Vanessa seem to share this view since they each seek final decision-making authority with respect to all major decisions relating to PC’s well-being. Neither of them proposes a joint decision-making regime.
316I therefore find that it would not be in PC’s best interest to provide that Mark and Vanessa have joint responsibility for making significant decisions that affect PC’s well-being. While they should certainly consult with each other before making major decisions, it is in PC’s best interest that in cases where they disagree, one parent has final decision-making responsibility.
317In considering who should have such final decision-making authority in this case, I note that courts often award final decision-making authority to the parent with primary care and control.33 That parent will ordinarily have the greater responsibility for the child’s upbringing and it is he or she who must implement – and live with – decisions that are made. As Steel J. A. of the Manitoba Court of Appeal noted in Sawatzky v. Sherris,34 “single parenting is a difficult enough job at the best of times. Depriving the parent who has day-to-day care of the child… of the final decision-making power can only increase those difficulties.”
318This suggests that in cases where they disagree on major decisions regarding PC, Mark should have the responsibility for making the final decision.
319I am reinforced in this conclusion by concerns I have over the manner in which Vanessa has made decisions regarding PC in the past. As described above, in cases where she and Mark have disagreed on a major decision regarding PC, Vanessa has often acted unilaterally without informing Mark.
320I am also troubled by the manner in which Vanessa has interacted with other professionals who have been involved with PC in the past. Vanessa has often come into conflict with these professionals, including the Vice Principal of PC’s school in Grade One, PC’s Grade Two teacher, PC’s current Grade Four teacher, the social worker from the OCL assigned to prepare an assessment of PC’s needs, Virginia Edwards of the Muskoka CAS, and the manager of PC’s dance studio. On each of these occasions, Vanessa blamed the relevant professional for the conflict, alleging that the individual in question was simply attempting to protect their own position or was suffering from a serious personality disorder. Vanessa seemed unwilling or unable to consider whether she might have any responsibility for these conflicts. These concerns reinforce my conclusion that it would be in PC’s best interest for Mark to have final decision-making authority in making major decisions affecting PC’s welfare.
321I therefore make the following findings and determinations with respect to decision-making:
a. All non-urgent communication between the parties shall occur through Our Family Wizard;
b. The parent with whom PC is residing shall make daily decisions affecting PC’s welfare without the necessity of contacting the other parent;
c. In a health emergency, the parent with care of the child at that time shall make treatment decisions on the advice of medical personnel. If a parent makes an emergency health decision, the parent who has made the decision must immediately inform the other parent;
d. Mark will provide to Vanessa in writing the names, addresses and telephone numbers of all third-party professionals involved with PC, including all educational professionals and healthcare professionals. If required by the relevant professional, Mark shall provide written permission to permit them to release information directly to Vanessa.
e. Mark and Vanessa shall consult with one another and attempt to agree on major decisions regarding PC’s health, medical treatment, education, cultural and religious upbringing, and extracurricular activities;
f. If, after reasonable consultation, Mark and Vanessa cannot agree on a major decision affecting PC, Mark shall have final decision-making authority.
g. Mark’s decisions regarding PC’s welfare are final and may be implemented by him immediately without any review by or approval of a court, tribunal or other third-party.
h. Since this issue was specifically raised at trial, for certainty but without limiting the generality of the foregoing, Mark’s final decision-making authority shall extend to the decision on whether to vaccinate PC against Covid-19. In this regard, I accept Dr. Patel’s evidence that there is no medical reason why PC should not be vaccinated against Covid-19 and, further, that Dr. Patel would recommend such vaccination for PC once vaccines are available for this age group. I also find that this particular issue has already been discussed extensively between the parties. I take judicial notice of the fact that Covid numbers in Toronto and Ontario are at record levels and it is in PC’s best interest that a decision one way or the other be made on this issue. Mark is therefore given leave to decide immediately whether or not to vaccinate PC against Covid-19. In addition, Vanessa shall refrain from discussing the issue of Covid-19 vaccination with PC in any manner, including expressing views to PC on whether children should or should not be vaccinated.
X: Should there be any changes to the Goodman Order of January 30, 2020 dealing with financial matters, including in respect of child or spousal support, or property claims relating to 189 Kingston Rd in Toronto?
322Although they have experienced continuing conflict on parenting issues, on January 30, 2020, Mark and Vanessa agreed to final Minutes of Settlement dealing with the financial issues in the litigation. Both parties were represented by counsel at this time, who attended the January 30, 2020 case conference where the Minutes of Settlement were negotiated, agreed to, and signed.
323The Minutes of Settlement provided that the parties agreed to resolve the financial issues, “being child support, spousal support and property… on a final basis on the following terms”:
i. commencing February 1, 2020, Mark will pay Vanessa full table child support for PC in the amount of $1256 per month, based on his income of $145,779 “in accordance with the Child Support Guidelines and notwithstanding the shared parenting schedule”;
ii. contingent upon Mark paying $2800 per month to Vanessa up to and including September 1, 2022, Mark and Vanessa are financially independent of each other and “release his or her rights to spousal support from the other, now and forever”;
iii. the parties intend this agreement to be “forever final and nonvariable”;
iv. for greater certainty, the parties acknowledged a number of circumstances, including that they had negotiated the agreement “in an unimpeachable fashion and that the terms of the agreement fully represent their intentions and expectations”; that they had independent legal advice and all the disclosure they required to understand the nature and consequences of the agreement and to come to the conclusion that the terms of the agreement, including the release of all spousal support rights, reflect “an equitable sharing of the economic consequences of their relationship and its breakdown”; and that the terms of the agreement “substantially comply with the overall objectives of the Family Law Act.
324The Minutes of Settlement formed the basis for a final order issued on consent by Goodman J. on January 30, 2020. The Goodman Order incorporated the above-noted terms of the Minutes of Settlement dealing with child and spousal support. The Goodman Order also provided that Mark’s obligation to pay spousal support in the amount of $2,800 per month was fixed and nonvariable, subject only to a change in Mark’s employment causing a material reduction in his income for reasons beyond his control. Subject to such variation, spousal support was to terminate forever on September 2, 2022. The Goodman Order also provided that Mark would pay Vanessa a lump-sum amount of $6,000 by February 7, 2020 to enable Vanessa to vacate the Kingston Road property by April 1, 2020.
325In her evidence, Vanessa stated that she had contributed $7,000 towards the purchase of the Kingston Road property in 2014 and was therefore claiming a constructive trust in the property. She acknowledged that she had given up her claim for a constructive trust in the Minutes of Settlement.35 However, she testified that she felt pressured to give up this claim in return for the provisions in the Minutes of Settlement dealing with child and spousal support. Vanessa therefore renewed her claim for interest in the Kingston Road property.
326Section 56(4)(c) of the Family Law Act36 provides that a court may set aside a domestic contract or a provision in it in accordance with the general law of contract, which includes duress. However, a party seeking to establish duress must show that they were subject to improper or illegitimate pressure by the other party to sign the agreement, and that they had no realistic alternative other than to submit to that pressure.37
327There is no evidence of any such illegitimate pressure in this case. Vanessa was represented by competent counsel throughout the negotiations of the Minutes. Her counsel had reviewed the disclosure provided by Mark in advance of the case conference where the parties negotiated the Minutes and he had concluded (and so advised her) that her constructive trust claim was weaker than he had earlier believed. It was therefore not unreasonable for Vanessa to give up that claim in return for provisions dealing with child and spousal support which Vanessa found attractive. I would also point out that Mark had sought an adjournment of the case conference, but that Vanessa had insisted that no such adjournment be granted, and the Case Conference should proceed as scheduled. This reinforces the conclusion that neither Mark nor his counsel was improperly pressuring Vanessa to sign the Minutes. The fact that Vanessa agreed to give up her claim for a constructive trust in return for other provisions dealing with child or spousal support merely shows that the Minutes reflected a genuine compromise of the parties’ claims, as opposed to the product of illegitimate pressure or intimidation. Finally, and most importantly, the Minutes were negotiated with the assistance of an experienced Superior Court Judge who was familiar with the parties and the issues in the case. Goodman J. clearly regarded the Minutes as a reasonable settlement of the financial issues in the case, since those Minutes formed the basis of her Final Order dealing with financial issues. I therefore see no legal basis for setting aside the Minutes of Settlement or the associated Goodman Order, in whole or in part.
328Although the Goodman Order remains in effect, it contemplated that PC would reside with Vanessa for nine out of every 14 days, and with Mark for the remaining five out of every 14 days. On this basis, Mark agreed to pay table child support to Vanessa in accordance with his income. However, as of September 2020, PC has been residing on a full-time basis with Mark and, in light of my determination on the relocation issue, will continue to do so in the future. Thus, since Vanessa is no longer incurring expenses associated with PC’s support, she is no longer entitled to receive child support payments from Mark. (It was for this reason that Shore J. stayed the child support payable by Mark to Vanessa effective October 1, 2020 and ordered that any child support arrears be adjusted accordingly.) In fact, since PC is now residing primarily with Mark, Vanessa has a prima facie responsibility to pay child support to Mark in accordance with her income.
329Vanessa argued that, notwithstanding the fact that PC has been primarily residing with Mark since September 2020, he continued to have an obligation to pay table child support on the basis that the Goodman Order provided that he would pay child support “notwithstanding the shared parenting schedule”. The difficulty with this argument is that since September 2020, there is no longer a shared parenting schedule but, rather, one in which PC resides primarily with Mark. If Mark were required to continue to pay table child support to Vanessa in circumstances where she is not actually incurring expenses for the benefit of PC, such payments would in fact constitute a disguised form of spousal support, rather than support for a child.
330I therefore find that effective October 1, 2020, Mark’s obligation to pay child support to Vanessa for the benefit of PC terminated and, as of that date, Vanessa has a prima facie obligation to pay child support to Mark for the benefit of PC.
331That said, I accept Vanessa’s evidence that she has not worked outside the home since 2012 and, given the fact that she is now caring for two young children from her relationship with Robert, cannot be expected to earn significant income in the future. I am also mindful of the fact that I have earlier determined that Vanessa shall be responsible for the costs associated with PC’s travel between Toronto and Oceanside. Given her modest income, these expenses will be a significant cost for her to bear. I therefore order that for so long as Vanessa incurs expenses associated with PC’s travel back and forth between Ontario and British Columbia, those expenses will satisfy her obligation to pay child support to Mark for PC’s benefit.
332It remains to calculate the arrears of table and child support payable by Mark pursuant to the Goodman Order. Mark provided a detailed breakdown of the amounts payable and paid pursuant to the Goodman Order (see Exhibit 11, attached as Schedule 1 to these Reasons), and Vanessa did not take issue in any significant way with his calculations. I therefore accept the calculations of the arrears as set out on Exhibit 11 and find that, as of November 1, 2021, the child and spousal support owing by Mark are as follows:
a. Mark overpaid child support by $628
b. Mark underpaid spousal support by $9,149.92;
c. Setting off the overpayment of child support against the underpayment of spousal support, as of November 1, 2021 Mark’s net arrears of child and spousal support were $8,521.92.
333Mark should receive credit for any payments made since November 1, 2021.
XI: Disposition
334Final Order to go as follows:
a. PC shall continue to have her primary residence in Toronto, Ontario, with Mark.
b. Vanessa’s application to relocate PC to Oceanside, British Columbia is dismissed.
c. Subject to the conditions set out in paragraphs (e) (i) & (ii) below, Vanessa shall have in-person parenting time with PC as follows:
i. For four consecutive weeks during PC’s summer vacation period. The parties shall attempt to select these weeks so as not to conflict with PC’s other anticipated summer activities. In the event that the parties are unable to agree on the applicable four-week period in a particular year, in even numbered years Mark will select the weeks and in odd-numbered years Vanessa will select the weeks;
ii. During March break, from the first Saturday until the following Sunday; and
iii. A maximum of eight days during the Christmas break.
d. PC will otherwise reside with Mark.
e. The in-person parenting time as set out in paragraph (c) above is subject to the following conditions, and shall only take place provided that both of these conditions are satisfied in advance of any travel by PC to British Columbia:
i. Vanessa must disclose her current address to Mark in advance of any travel to British Columbia. In the event that Vanessa intends to spend an overnight with PC at any location other than her current residence during her parenting time, she must provide a detailed itinerary to Mark at least two weeks in advance, including the addresses where she intends to stay and the telephone numbers where they can be reached;
ii. Given that Vanessa’s move to British Columbia has necessitated these arrangements, Vanessa must fund the cost of PC’s travel to and from British Columbia, either by herself purchasing a return ticket for PC, or by reimbursing Mark in advance of PC’s departure from Toronto for a return ticket which he has purchased for PC.
f. Subject to paragraphs (e) (i) & (ii) above, the first trip by PC to British Columbia by PC will occur during March break 2022. Given that this will be the first occasion on which PC will make this journey, she should be accompanied by Mark, who will arrange with Vanessa and/or Robert to drop off and pick up PC at an agreed time and location on Vancouver Island. On future trips, Mark may choose to accompany PC at his discretion, based on his determination as to what would be in PC’s best interest at that time. Vanessa and/or Robert will cooperate with Mark in ensuring that PC’s travel arrangements, including the pickup and drop off times and locations, are structured in a child-focused manner. Mark will be responsible for funding his own travel costs when accompanying PC.
g. All non-urgent communication between the parties shall occur through Our Family Wizard;
h. The parent with whom PC is residing shall make daily decisions affecting PC’s welfare without the necessity of contacting the other parent;
i. In a health emergency, the parent with care of PC at that time shall make treatment decisions on the advice of medical personnel. If a parent makes an emergency health decision, the parent who has made the decision must immediately inform the other parent;
j. Mark will provide to Vanessa in writing the names, addresses and telephone numbers of all third-party professionals involved with PC, including all educational professionals and healthcare professionals. If required by the relevant professional, Mark shall provide written permission to permit them to release information directly to Vanessa.
k. Mark and Vanessa shall consult with one another and attempt to agree on major decisions regarding PC’s health, medical treatment, education, cultural and religious upbringing, and extracurricular activities;
l. If Mark and Vanessa cannot agree on a major decision affecting PC, Mark shall have final decision-making authority.
m. Mark may implement any such final decision regarding PC’s welfare immediately without any review by, or approval of, a court, tribunal or other third-party.
n. Since this issue was specifically raised at trial, for certainty but without limiting the generality of the foregoing, Mark’s final decision-making authority shall extend to the decision on whether to vaccinate PC against Covid-19. In this regard, I accept Dr. Patel’s evidence that there is no medical reason why PC should not be vaccinated against Covid-19 and, further, that Dr. Patel would recommend such vaccination for PC once vaccines become available for PC’s age group. I also find that this issue has already been discussed extensively between the parties. I take judicial notice of the fact that Covid numbers in Toronto and Ontario are at record levels and it is in PC’s best interest that a decision one way or the other be made on this issue. Mark is therefore given leave to decide immediately whether or not to vaccinate PC against Covid-19. In addition, Vanessa shall refrain from discussing the issue of Covid-19 vaccination with PC in any manner, including expressing views to PC on whether children should or should not be vaccinated.
o. Mark’s obligation to pay child support to Vanessa pursuant to the Goodman Order ceased as of October 1, 2020.
p. Since PC now resides primarily with Mark, Vanessa has an obligation to pay child support in accordance with the Federal Child Support Guidelines. However, for so long as Vanessa funds PC’s travel costs to and from British Columbia, that funding will satisfy her child support obligations.
q. The Goodman Order is otherwise confirmed and remains in effect in accordance with its terms, including in respect of the settlement of all property claims and the termination of Mark’s obligation to pay spousal support to Vanessa as of September 1, 2022.
r. Mark’s arrears of child and spousal support shall be calculated in accordance with Schedule 1 attached and, as of November 1, 2021, are fixed in the amount of $8,521.92. Mark shall be given credit for any payments made subsequent to that date. A Support Deduction Order shall issue, and FRO shall adjust the arrears owing accordingly.
335No costs are payable by either party.
P. J. Monahan J.
Released: January 19, 2022
SCHEDULE 1
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
MARK CREDLAND
Applicant
– and –
VANESSA CYMBALISTY
Respondent
REASONS FOR JUDGMENT
P.J. Monahan J.
Released: January 19, 2022
Footnotes
- See Reeves v. Brand, 2018 ONCA 263, 8 R.F.L. (8th) 1, at para. 17 (per Laskin J.A.).
- The OCL duly prepared a report (the “OCL Report”) which was shared with the parties orally in August 2019 and subsequently in writing. Mark sought to introduce the OCL Report at trial, but Vanessa objected on the basis that the primary author of the report was not available to be cross-examined. After hearing submissions on the issue, I ruled that the OCL Report could not be introduced in the absence of an opportunity to cross-examine the author. Accordingly, the report was not admitted into evidence and I have not reviewed or relied upon it in preparing these reasons.
- See e.g. D.R.T. v. K.A.D., 2018 ONSC 1975, [2018] O.J. No. 1635, at para. 47.
- See Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27, at para.. 48 [Gordon v. Goertz].
- R.S.O. 1990, c. C.12 (“CLRA” or the “Act”).
- See e.g., Zorab v. Zourob, 2021 ONSC 6552, where Tobin J. first determined the issue of relocation and only then heard submissions on the issue of decision-making responsibility.
- For example, as a general rule, final decision-making authority will generally rest with the party with whom the child primarily resides: see Bourke v. Davis, 2020 ONSC 7667, [2020] O.J. No. 5524, at para. 101 aff’d 2021 ONCA 97, 154 O.R. (3d) 431. Thus, the determination of the primary residence of the child must logically precede an order for decision-making responsibility.
- See note 2, above.
- R.S.C., 1985, c. 3 (2nd Supp.).
- See the Moving Ontario Family Law Forward Act, 2020, S.O. 2020, c. 25, sch. 1.
- O'Brien v. Chuluunbaatar, 2021 ONCA 555, at para. 42.
- See the Department of Justice commentary to s. 16(2) of the Divorce Act, a provision that is largely identical to amended section 24 (2) of the CLRA.
- CLRA, s. 24(5).
- I note that, unlike the comparable provision in s. 16(6) of the Divorce Act, which appears under the heading “Maximum Contact”, the heading in the amended s. 24(6) of the CLRA merely reads “Allocation of parenting time”, without any reference to “maximum contact.”
- CLRA, s. 39.3.
- CLRA, s. 39.4(4).
- Phillips v. Phillips, 2021 ONSC 2480, at para. 47.
- SOR/97-175.
- 2021 ABQB 548, at paras. 25-27; see also N.S. v. A.N.S., 2021 ONSC 5283, at paras 460-461; Al Kowatli v. Berrwin, 2021 ONSC 4999, at paras. 7, 26; Siddiqi v. Khan, 2021 ONSC 5326, at paras. 7, 8, and 25; and Zorab v. Zourob, above, at paras. 93-95.
- D.A. Rollie Thompson, “Legislating About Relocating: Bill C-78, N.S. and B.C.” (2019), 38:2 C.F.L.Q. 219, at p. 242.
- See Nicholas Bala, "Reforming the Parenting Provisions of the Divorce Act: A Commentary on Bill C – 78" (National Family Law Program, July 10, 2018), at p. 12.
- See El Haddad v. Shakur, 2020 ONSC 5541, at para. 14; Nolet v. Nolet, 2020 ONSC 5285, at para. 25; Zinati v. Spence, 2020 ONSC 5231, at para. 27; and Shaw v. Gauthier, 2021 ONSC 5790, at para. 31.
- See Vaillancourt et al., Children and Schools During Covid-19 and Beyond: Engagement and Connection Through Opportunity, (Royal Society of Canada Policy Briefing, August 2021.)
- See the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1, s. 74 (2).
- See, Department of Justice, “Relocation: Best interests of child – impact of the relocation on the child”, (March 1, 2021), online: The Divorce Act Changes Explained < www.justice.gc.ca/eng/fl-df/cfl-mdf/dace-clde/div109.html>. . [the “DOJ Technical Guide”].
- 2020 ONSC 7667, [2020] O.J. No. 5224, at paras. 45, 115, aff’d 2021 ONCA 97, 154 O.R. (3d) 431.
- See DOJ Technical Guide, "Best interests of child – Amount of time spent with the child".
- See CLRA, s. 39.3(2)(b).
- CLRA, s. 39.3(4).
- See, for example, Bourke v. Davis, above; O'Brien v. Chuluunbaatar, above, at paras. 54,-55.
- In addition to Bourke v. Davis and O'Brien v. Chuluunbaatar, above, see also Zorab v. Zourob, above.
- See Zorab v. Zourob, above, at paras 181-182
- Bourke v. Davis, above, at para. 101.
- 2002 MBCA 143, 170 Man. R. (2d) 51,(Man. C.A.), at para. 5.
- I note that, although the Minutes did not make any express reference to the claim for a constructive trust, it did provide that the Minutes constituted the final settlement of all claims regarding property.
- R.S.O. 1990, c. F.3.
- Ludmer v. Ludmer, 2013 ONSC 784, [2013] O.J. No. 699, at para. 53.
