COURT FILE NO.: FC1208/17-01
DATE: 20220207
ONTARIO
SUPERIOR COURT OF JUSTICE
FAMILY COURT
BETWEEN:
Jasmine Lepine-Maynard
Julie Amourgis for the Applicant
Applicant
- and -
Mark Van den Boomen-Majstorovic
Self-Represented
Respondent
HEARD: January 26, 27, 2022
SAH J.
OVERVIEW
[1] The nine-year-old boy at the center of this case has Autism Spectrum Disorder. He was diagnosed at age four.
[2] He has two parents who love him unconditionally and who want what is best for him. On one issue, his parents disagree as to what that might be.
[3] The Applicant (the “mother”) believes that what is best for him requires a move to Moncton, New Brunswick because of the French language programs available for autistic children and job prospects available to her. The Respondent (the “father”) does not consent to change the child’s residence from London, Ontario to Moncton, New Brunswick.
Background and Litigation History
[4] For reasons that were unclear to the parties and the court, the original court file, FC1208/17, and the court file assigned to the Motion to Change, FC1208/17-01, were both scheduled for a two-day trial.
[5] From my review of the file, and as confirmed by the parties, the original court file FC1208/17 was concluded when Henderson J. made his final order on March 19, 2019 (the “Henderson J. Order”).
[6] Only the Motion to Change commenced by the mother, FC 1208/17-01, proceeded to trial.
[7] After a trial held in 2019, Henderson J. ordered that the parties have joint custody of the child.
[8] Decision-making is addressed in paragraphs 2 and 3 of the Henderson J. Order, which state:
The parties shall consult with each other on matters relating to the wellbeing of the child, including health, education, religion and extracurricular activities and the Respondent [father] shall have a right to obtain all educational, medical and religious records of the child, as well as the right to discuss the welfare of the child with the child’s doctors, teachers, ministers or others who are involved with the child.
Should the parties disagree on matters relating to the wellbeing of the child, including health, education and religion, the Applicant [mother] shall make the final decision.
[9] Paragraph 6 of the Henderson J. Order provides that the mother shall not move the child’s residence from the City of London without the father’s consent or a court order.
[10] The Henderson J. Order sets out the father’s parenting time as follows:
(a) Commencing March 22, 2019, alternate weekends from Friday at 5:00 p.m. to Sunday at 5:00 p.m., or Monday at 5:00 p.m. if it is a holiday;
(b) Each Wednesday from 5:00 p.m. overnight, returning the child to school (or caregiver by 9:00 a.m. during school vacation);
(c) Telephone access as may be arranged between the parties; and
(d) Such other times as the parties may agree.
[11] The Henderson J. Order required the father to pay support for the child in the monthly amount of $400 based on an annual income of $43,500, and s. 7 expenses were ordered to be shared by the parties in proportion to income.
[12] The mother commenced her Motion to Change seeking an order permitting her to move to Moncton, New Brunswick six months after the Henderson J. Order was made in November 2019.
[13] The mother is 30 years old. In 2019, she graduated from Western University with a degree in Psychology and French Studies. She is currently on social assistance and is looking for employment.
[14] The mother was born in Windsor, Ontario and moved to France as a young girl. She remained there until she was approximately 14 years old, when she moved back to Windsor. Once back in Windsor, she lived with friends.
[15] The mother’s father died when she was younger. She has some extended family in Trinidad and Tobago. The extent of their relationship is the exchange of holiday cards.
[16] The mother testified that she does not know where her mother lives. She has no contact with her.
[17] The mother’s only family in Canada is her grandmother, who resides in Quebec. The mother receives some financial support from her grandmother.
[18] The father is 30 years old and works as a Coordinator of Client Satisfaction at Assistance Services Group. He works full-time.
[19] The father’s two brothers and his mother live close by.
[20] The mother and the father both reside in London, Ontario. They never married. They are both bilingual, speaking French and English.
[21] The child speaks both languages well and converses solely with his mother in French.
[22] The child is severely autistic. His disruptive behaviour interferes with his day to day functioning. The parents believe that therapeutic treatment services provided in French may minimize confusion for the child. Therapeutic efforts to date have focused on expanding his verbal communication, interacting with others to improve social and interpersonal skills, and minimizing his behavioural challenges.
Legal Principles and Analysis
[23] The mother requests an order permitting her to relocate the child under s. 39.4 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (“CLRA”).
Material Change in Circumstance
[24] Section 29(1) CLRA sets out that an existing parenting order cannot be changed until there is a finding that there has been a material change in circumstance that affects or is likely to affect the best interests of the child.
[25] Gordon v. Goertz, 1996 191 (SCC), [1996] 2 S.C.R. 27, sets out a two-step process to be applied on a Motion to Change the parenting order. The moving party must first establish a material change in circumstance. If the moving party has successfully done so, the court must embark on a fresh inquiry into what order would be in the child’s best interest.
[26] Section 29(2) CLRA states that, for the purpose of s. 29(1) CLRA, the relocation of a child in accordance with s. 39.4 CLRA constitutes a material change in circumstances unless the relocation has been prohibited by a court, in which case the relocation does not, in itself, constitute a material change in circumstance.
[27] The Henderson J. Order provides that the mother shall not move the child’s residence from the City of London without the father’s consent or a court order.
[28] Therefore, the mother’s request to move with the child to Moncton does not, in an of itself, constitute a material change in circumstance.
[29] I rely on the following undisputed factors in support of a finding that the mother has established that there has been a material change in circumstance since the making of the Henderson J. Order.
[30] Since the Henderson J. Order was made:
• The mother graduated from Western University and attempted to secure employment but was unable to do so.
• The mother was required to be with the child each weekday for two hours during therapy, plus time spent travelling from school to the hospital and then home.
• While the child was enrolled in school, the mother was often required to attend the school when they were unable to handle the child’s outbursts and behaviour.
• Prior to the COVID-19 pandemic, the school only had one educational assistant available to assist all students requiring special needs.
• The mother often received a call from the school asking her to provide guidance on how to handle the child.
• On one occasion, the child refused to attend gym class. The mother had to attend the school and explain to the teacher how to speak to the child and deal with his disorder.
• Prior to March 2020, the mother collected the child from the school around noon, using public transportation. She would take the child to the hospital, where he received therapy for approximately two hours.
• The mother was required to stay at the hospital during the child’s therapy session as the therapist required her intervention on occasion. Sometimes, the sessions had to end early due to the child’s behaviour.
• The mother attempted to secure employment in the evenings; however, the child had severe behavioural issues and she was not able to find a babysitter or a nurse who agreed to care for him.
• This was not for lack of trying. If the mother was able to secure the services of a nurse to assist for the care of the child in the evening, they would typically only last a day. On occasion, babysitters or nurses would often call her, requesting that she return home due to their inability to cope with the child’s behaviour.
• In the summer of 2019, the mother relied on social assistance and began relying on the assistance of a food bank.
• This was unsatisfactory to her. She wanted to obtain employment and to no longer rely on assistance. She enrolled in an online human resources course, which would allow her to attend the hospital for the child’s therapy and obtain further education. She was unable to keep up with her studies and she dropped out.
• She then returned to rely on social assistance, and she remains on social assistance to this day.
[31] I find that the mother’s inability to secure gainful employment following her graduation from university constitutes a material change in circumstance which was not reasonably contemplated at the time the Henderson J. Order was made.
[32] Further, a material change in circumstance stems from a change in funding relating to autistic therapy.
[33] In July 2019, the Ontario government announced a change to the funding formula and availability of therapy for autistic children. Instead of funding therapy directly to the therapist, the government announced that it would provide parents with $5,000 per year and they could choose the therapist.
[34] The mother testified that the child’s therapy at the hospital, for two hours a day five days per week, costs approximately $6,900 every three months or $28,000 per year.
[35] Due to the mother’s unemployment and current inability to secure employment and given her required need to care for the child, she is not in a position to earn a sufficient amount to fund the child’s therapy.
[36] Although the father is employed, he is not earning a sufficient amount to be able to contribute to the funding needs for the child’s therapy.
[37] Subsequent to the announcement regarding the change in funding, the government suspended the implementation of the new funding formula and extended the original program.
[38] The future of funding for autistic children is currently unknown. The mother testified that, at any time, the government funding may change such that the current therapy services available to the child will no longer be available because of her inability to afford to pay for the cost of such therapy.
[39] The father does not dispute any of the evidence above.
[40] I find that the current unknown status of the funding for autistic therapeutic services, as described by the mother, constitutes a material change in circumstance not reasonably contemplated at the time the Henderson J. Order was made.
[41] Further, the parties agree that the mother’s request to relocate with the child to Moncton, New Brunswick constitutes a request to relocate under the CLRA.
Burden of Proof
[42] Section 39.4(5), (6) and (7) CLRA sets out which party has a burden of proof when it comes to relocation.
[43] When determining whether relocation would be in the child’s best interest, the determination of burden depends on the apportionment of parenting time.
[44] The applicable sections of the legislation are set out below:
39.4(5) If the parties to the proceeding substantially comply with an order, family arbitration award or agreement that provides that a child spend substantially equal time in the care of each party, the party who intends to relocate the child has the burden of proving that the relocation would be in the best interests of the child.
(6) If the parties to the proceeding substantially comply with an order, family arbitration award or agreement that provides that a 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.
(7) 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.
[45] In this case, there is no dispute that the child spends the vast majority of time in the care of the mother and she is the party who intends to relocate the child.
[46] Accordingly, the burden of proof rests with the father as he is opposing the relocation. Specifically, the father has the burden of proving that the relocation would not be in the best interests of the child.
Best Interest Analysis
[47] The court is only required to consider the best interest of the child when making the parenting order: see s. 24(1) CLRA.
[48] The court is required to consider all factors relating to the circumstances of the child and, in doing so, must give primary consideration to the child’s physical, emotional and psychological safety, security and well-being: see s. 24(2) CLRA.
[49] Additional factors to consider are set out in s. 24(3) CLRA. The factors to be considered apply not only to the issue of relocation but also to decision-making.
[50] Specific to relocation, s. 39.4(3) CLRA, requires the court, in addition to the factors set out in s. 24, to take into consideration seven factors.
Application of s. 39.4(3)
(a) the reasons for the relocation
[51] The mother testified that she is seeking to relocate to Moncton, New Brunswick for two reasons. First, because of the funding, care, and treatment for autistic children offered through the Province of New Brunswick, particularly as compared to the Province of Ontario. Treatment and services for autistic children are available in French.
[52] Second, the mother submits that she has multiple job prospects available to her in Moncton which she could pursue as she will not be required to attend therapy daily, as is the case in Ontario.
[53] The mother submits that the Ministry of Community and Social Services is responsible for funding treatment for autistic children in Ontario. Whereas, in New Brunswick, the Ministry of Education is responsible for funding care and treatment for autistic children.
[54] In Ontario, therapy is organized as modules. The mother is required to ask the therapist for therapy to address issues she identifies. When the module is complete, the mother and child wait until the therapist decides what is required next meet his needs. As a result, therapy does not flow continuously.
[55] As described above, the mother is required to transport the child from school to take him to the hospital for treatment. She is required to stay at the hospital throughout the treatment.
[56] In New Brunswick, individual schools assess the needs of a child. The school obtains the support and therapist needed to treat the child. Payments are made to the therapist by the Ministry of Education. Treatment is ongoing throughout the school year and parents are not required to contribute financially.
[57] In New Brunswick, parents are not required to attend therapy daily as the therapy is provided by the teaching staff at school. The teaching staff help make decisions with respect to ongoing therapy. Parents are only required to attend a monthly progress report.
[58] As a result, it is not necessary for the mother to be present thereby allowing her to search for employment.
[59] The mother testified that she would like the child to be in a French speaking environment, with suitable autistic therapeutic services available, with considerable frequency and in person.
[60] The parties agree that one on one therapy in French would be most beneficial for the child.
[61] The mother has looked for therapy services in various other provinces, including French speaking provinces. Quebec as an option; however, she found there to be long waiting lists for autistic therapeutic services. Further, she confirmed that therapeutic funding for autistic children was funded through the Ministry of Health in Quebec and not the Ministry of Education.
[62] The mother also found potentially suitable options available in Alberta; however, it is not a French speaking province.
[63] The father does not dispute that New Brunswick offers the best program for the child. He testified that the mother thoroughly researched and investigated options available for the child throughout the entire country. He testified that the mother made an excel spreadsheet setting out the results of her investigation and New Brunswick offered the best program.
[64] The father described the mother to be “1000% dedicated” to the child. He testified that her dedication comes out in the extent of her resourcefulness. He described her to go to great lengths to reach out to government organizations and find resources to best determine where the child could receive the best care.
[65] Following the lockdown in March of 2020 resulting from the Covid19 pandemic, the child’s therapy was no longer in person and was reduced significantly in terms of hours.
[66] The child’s two-hour therapy sessions from Monday to Friday were reduced to two sessions per week, for one hour, and one group therapy session, for one hour, all of which was online.
[67] The mother testified that following the lockdown the child regressed. She testified that the child does not have the attention span to concentrate on a device for longer than 15 minutes. The mother states that there has been a decline in the quality of therapy claiming that the lack of one on one contact, and the requirements to engage with the child on the screen, has proven ineffective.
[68] When the child returned to school in September 2020, the mother testified that things improved but the child had significantly regressed from his time online. She testified that the child had trouble connecting with others and that he was getting bullied.
[69] The mother testified that in New Brunswick, autistic children, and all other special needs children, attend school in person, regardless of the lockdown situation.
[70] The mother has also contacted a school in Moncton, New Brunswick and has had discussions with the Director of Autism. Currently, there is no wait list to be enrolled in the school. School hours run from 8:15am until 2:20pm and the before and after school program runs from 7:30am to 5:30pm.
[71] If the child were to be in school, and receive autistic therapeutic services in school, the mother testified that she will be able to become employed and that such employment is readily available to her.
[72] The fact that the mother is bilingual is an asset to her in seeking employment.
[73] The mother testified that she wishes to work with Correctional Service Canada describing her dream job to be a Parole Officer.
[74] The mother testified that she created an account of the government website and attempted to apply for many jobs in and outside of this field.
[75] The mother’s resume was tendered as evidence during the trial.
[76] Several letters and documents were tendered as evidence in support of the mother’s attempts to be employed within the Criminal Justice System. There were several stages of clearance required including reliability clearance, fingerprints, completion of CPR and First Aid, a written evaluation, a writing exercise, and an interview.
[77] The mother successfully completed all required qualifications and is currently in a pool of potential candidates.
[78] The record reveals the mother applied for various positions including: Program Officer, Correctional Officer, Cook Helper/Food Distribution Helper, Administrative Assistant, Veteran Service Agent, Program Service Officer, and a Program Support Clerk.
[79] According to the mother, she would have a better chance of getting hired in Moncton if she lived there.
[80] The mother testified that could earn between $68,000 to $91,000 per year as a Parole Officer and $66,000-$94,0000 as a Correctional Officer. The Administrative Assistant positions applied for by the mother would result in an annual income ranging in the range of $48,000 to $51,000 per year.
[81] The father did not call any evidence or making submissions with respect to the mother’s job prospects in Moncton, New Brunswick.
[82] The father did admit that it would be better for the child if there were more money in the family. He testified that the mother’s ability to earn income would be beneficial for the child.
[83] Further, the father admitted that it is in the child’s best interest to have continued therapy at a high level. The father testified that the Province of Ontario’s announcement for a change in the funding formula in the autistic programs has resulted in uncertainty as to what future therapy for the child may entail.
(b) the impact of the relocation on the child
[84] The parties agree that the uncertainty of the funding formula for the autistic program in Ontario results in uncertainty about what future therapy the child may entail if he continues to reside in Ontario.
[85] While the father admits that the Province of New Brunswick offers the best therapeutic services available for the child, he maintains the child’s relationship with him, and his family will be compromised if the court permits the move.
[86] The father has two younger brothers. James is 2 years younger than the father and Andrew is 12 years younger than the father.
[87] Although they currently reside in London, they did not always.
[88] James attended the University of Waterloo and currently works as an Actuary. While at the University of Waterloo he was required to travel around and reside in various places due to his placement requirements for his program. He is married to a Texan and moved to London approximately a year ago.
[89] Andrew is 12 years younger than the father. He has been permanently residing in London for approximately 23 months. Andrew is an Early Childhood Educator and, according to the father is closely bonded with the child.
[90] The father describes his brothers and the child to be “gamers”. They all share a love of video games.
[91] The father testified that the child sees Andrew and James once or twice per month. If the child was permitted to move, the father notes that the child would only see his family every other month, if the mother’s proposed schedule was approved.
[92] The father’s family typically gathers on Sunday when they have an early dinner at the paternal grandmother’s home after which the paternal grandmother proceeds to drive the child back to the mother.
[93] Prior to the pandemic, the father would pick the child up using public transportation and taxis. He did not consider this safe when the pandemic started, and his mother started to assist with transportation. The paternal grandmother is the family member that sees the child most often because of her assisting the father with his parenting time pick ups and drop offs.
[94] The father testified that it is important for the child to have a sense of family and to understand the love his family offers. The father’s concerns are rooted in his fear that the child struggles with confidence and that he needs to know how loved he is and how widely accepted he is by his extended family.
[95] A reduction in time from once to twice per month to once every other month, in the father’s view, could impact the child in a negative way.
[96] Further, the father testified that the child has many friends who are located close in proximity to his mother’s home. The father testified that friendships are not easy for him to form and that there may be a negative affect from a potential move on the child as his friends are important to him, and those friendships would be lost.
[97] The father was only able to list one potential friend on cross-examination. He did not dispute the mother’s evidence that the child had difficulty making connections with others in his school following the return to in person learning. Further, the father did not dispute or present any evidence to the contrary regarding the child being bullied at school.
[98] The short term impact of the relocation on the child will be significant.
[99] Both parents describe the child as inflexible, stubborn, and bothered by change and routine and expectations.
[100] The father is concerned that the child may becomes withdrawn stating that he does not communicate his emotions, likes to be in his own space, and does not like when others approach him.
[101] The mother testified that although there would be a change in the child’s routine, he will benefit from the therapy that he will receive in New Brunswick and that he will learn to accept the situation.
[102] I am satisfied that the mother can adequately prepare the child for the move, as she has done on at least two occasions in recent times.
[103] In or around November 2020, the mother she travelled with the child by train to Montreal to visit her grandmother. The mother prepared the child ahead of time, so he knew what to expect by showing him photographs and pictures of where they where going. The trip required the child to take the train with a transfer in Toronto. According to the mother, because he was mentally prepared, he did great during the trip and while at her grandmother’s.
[104] More recently, in August 2021, the mother took the child on a trip to Toronto. This required taking the train and subway. The mother wished to expose the child to different situations. She prepared him for the trip by showing him pictures of where they were going and what they would be doing. The mother described that while approaching the ferry to Toronto Island, the child became troubled by seeing the size of the crowd. She testified that he started to act up, but she dealt with the situation by speaking with those in charge to find a safe place for the child to adjust.
[105] As set out in this decision, the long term impact of the relocation on the child will, on balance, likely have a positive impact on the child.
(c) the amount of time spent with the child by each person who has parenting time or is an applicant for a parenting order with respect to the child, and the level of involvement in the child’s life of each of those persons
[106] There is no dispute that the child spends most of his time with his mother.
[107] Following the making of the Henderson J. Order, the father commenced his alternate weekend parenting time but did not commence the midweek visit.
[108] According to the mother, the father did not exercise his midweek parenting time because it was not in line with his work schedule.
[109] She claims that the father did not start exercising the midweek visit until she commenced her Motion to Change, in or around January 2020.
[110] The father agrees there was a delay in the commencement of the midweek visit, however, testified that it was not due to his work schedule.
[111] The father states that following the making of the Henderson J. Order the mother indicated to him that she required time to process the situation. He claims that he was respectful of her requests. He states that he was complying with the mother’s request for more time and this is why there was a delay in the commencement of his midweek parenting visit.
[112] Regardless of the reason, the midweek visit did not commence for approximately eight to ten months after the Henderson J. Order was made.
[113] It is undisputed that the father’s midweek access continues to this day.
[114] The mother testified that the father has not participated in any of the therapy sessions and that she has been required to make all decisions regarding the child’s care.
[115] The father claims to have attended a minority of the therapy sessions but does not dispute that it is the mother who took the child to the therapy sessions in the hospital five days a week.
[116] It is clear from the evidence before me that the mother is responsible for organizing, attending to, and carrying out, all education and therapeutic needs.
(d) whether the person who intends to relocate the child has complied with any applicable notice requirement under section 39.3 and any applicable Act, regulation, order, family arbitration award and agreement
[117] The Motion to Change commenced in November 2019.
[118] The notice requirements set out in s. 39.3 CLRA did not come into force until March 2021. The notice provisions do not apply to the mother’s request to relocate to Moncton, New Brunswick. I am of the view that the mother advised the father of her plans in a timely fashion.
(e) the existence of an order, family arbitration award or agreement that specifies the geographic area in which the child is to reside
[119] The Henderson J. Order is restrictive. It clearly states that the mother shall not move the child’s residence from the City of London.
[120] However, the order does not prohibit the mother from seeking the father’s consent or applying to the court for an order to move the child’s residence from the City of London.
(f) the reasonableness of the proposal of the person who intends to relocate the child to vary the exercise of decision-making responsibility, parenting time or contact, taking into consideration, among other things, the location of the new residence and the travel expenses
[121] If permitted to move to Moncton, the mother testified that she would set up daily phone calls or Facetime calls with the father.
[122] She proposes in person parenting time once a month. She would be willing to assist in transporting the child back to London for the purpose of a visit on one month, suggesting that the father could fly to Moncton in the other month.
[123] The mother is also in support of the father having parenting time for two weeks, either consecutive or non-consecutive, during the summer holidays.
[124] The mother tendered evidence with respect to the proposed costs of the father’s parenting time in Moncton. She tendered as an exhibit a printout setting out the cost of flights from London to Moncton is approximately $424.36. She also tendered evidence about the cost of a bachelor basement apartment found on Airbnb at a cost of $45 per night.
[125] On cross-examination the mother admitted that she had not researched the cost of a car rental, taxi fares to and from the airport or the cost of any other expenses associated with the father exercising in person parenting time, over and above the accommodation and flight.
[126] The mother is prepared to forego child support in the month that the father visits the child in Moncton. According to her, the $400 per month in child support she receives is approximately the cost of the flight.
[127] She also offered to assist with transportation while in Moncton and offered for the father to stay at her home, if required for the purpose of his parenting time visit.
[128] The father believes that the basement bachelor apartment proposed by the mother is a low-grade accommodation. He admits that he did investigate he cost of the hotels in Moncton but did not tender evidence of what those costs maybe.
[129] While the father would be willing to rearrange his finances to see the child in Moncton, he gave testified that he is not able to do so. He did not tender evidence regarding his current finances or income.
[130] The father has two weeks of vacation offered through his employer. To date, he has used two days to attend this trial. He therefore has ten remaining days of vacation left in the 2022 calendar year.
[131] Although the mother’s proposal reduces the father’s alternate weekend parenting time by half, she has offered to transport the child back to London at her cost, to maintain father/child contact. This, in my view is very reasonable.
[132] Further, I find that the mother is reasonable in her willingness to sacrifice her monthly child support to allow the father to use those funds to travel to Moncton.
[133] The father did not enjoy any summer parenting time nor has her ever exercised parenting time during March Break.
[134] The mother’s proposal of two weeks of summer parenting time represents an increase to the parenting time set out in the Henderson J. Order.
[135] The mother did not provide any evidence as to who would be responsible for the child’s transportation costs for the summer parenting time.
[136] Regarding decision-making, the mother seeks that there be no change to the current decision-making regime, if relocation is not permitted. The mother submits that decision-making is currently joint, and it seems to be working.
[137] If relocation is not permitted, the father requests that the joint decision-making regime set out in the Henderson J. Order continue.
[138] If relocation is permitted, the father submits that he wishes for decision-making to remain as stated in the Henderson J. Order.
[139] If relocation is permitted, the mother requests decision-making to be her responsibility. She submitted that she would consult with the father but wishes for the final decision to be hers.
[140] A review of the Henderson J. Order provides for joint custody, consultation on all matters pertaining to the wellbeing of the child, including health, education, religion, and extra curricular activities. However, the order also provides that if the parties disagree on matters relating to the wellbeing of the child, including health, education, and religion, the mother shall make the final decision.
[141] Contrary to what the parties may believe, decision-making on matters relating to matters of the wellbeing of the child including health, education, and religion requires consultation, but the mother has final decision-making.
[142] Based on the submissions of the parties and the evidence heard, I find no reason to disrupt the decision-making regime as set out in the Henderson J. Order, regardless of the outcome on the request to relocate.
(g) whether each person who has decision-making responsibility or parenting time or is an applicant for a parenting order with respect to the child has complied with their obligations under any applicable Act, regulation, order, family arbitration award or agreement, and the likelihood of future compliance
[143] As outlined above the father has not complied with his midweek parenting time as set out in the Henderson J. Order. While the parties differ to the reason for his failure to comply, there is no dispute that the father’s midweek parenting time access didn’t commence until shortly after he received notice of the mother’s Motion to Change.
[144] While the father has paid table child support as set out in the Henderson J. Order, there is some dispute as to whether he has contributed to the child’s section 7 expenses in proportion to income.
[145] At trial, the cost of the child’s karate was raised.
[146] The mother testified that the child was enrolled in karate at a cost of $133 plus tax per month. She said the father knows about this cost and indicated to her that it was not within his budge to contribute or to help.
[147] The father testified that he was under the impression that the karate class was subsidized. He did not provide any further evidence on the basis for his belief.
[148] No evidence was tendered as to the mother’s request for contribution towards the cost of karate.
[149] It is undisputed that the father has failed to comply with the portion of the Henderson J. Order requiring him to provide updated income disclosure within 30 days of the anniversary of the Henderson J. Order in accordance with s. 24.1 of the Child Support Guidelines.
[150] The mother does not have any information as to what the father’s current income is.
[151] The father does not dispute that he has not provided his 2019- or 2020-Income Tax Returns to the mother.
Application of s. 24
(a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability
[152] The child is severely autistic. He was diagnosed at the age of four and has had therapy since then.
[153] The nature and extent of his therapy has varied, most recently because of the COVID-19 pandemic and the transition of in person therapy to online therapy.
[154] The Thames Valley Children’s Centre prepared a report outlining treatment recommendations. The report sets out key clinical findings as it relates to the child, particularly as it relates to disruptive behaviours interfering with his day-to-day functioning, skills and abilities, language development, and school attendance.
[155] The report sets out concerns, which included the child spitting, hitting, head banging, and not cooperating with daily requests consistently. The report cites that, as the child grows, the impacts of these kinds of behaviours are likely to become increasingly concerning and they may result in his removal from situations, social interactions, and/or recreational activities.
[156] The report cites that longstanding behaviours can become more severe with age and time and that, although it is expected that he will become intellectually functioning and stable as he matures, it is important to support his behaviours in learning as soon as possible.
[157] Of significance, the report cites that the child’s self-regulating needs and interfering behaviours are likely to prevent him from fully participating in the school program and from accessing the appropriate curriculum for his development level. The child’s adult support needs in school are an important consideration.
[158] The report listed two intervention options. The parties collectively decided to proceed with an option that focused on intensive behaviour reduction support and teaching new skills. It was agreed that direct intervention with the child for multiple hours per week at the Thames Valley Children’s Centre was required.
[159] In my view, this child requires stability and routine, and consistent treatment. In 2018, both parents agreed that the child would benefit from direct intervention with multiple hours of therapy.
[160] Regrettably, their intentions may not be carried out in Ontario given the potential changes to the funding formula as they relate to autistic children.
(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 play an important role in the child’s life
[161] The evidence supports that the child has a positive relationship with both parents, rooted in love and respect.
[162] Both parents have accepted the child’s diagnosis.
[163] I find the nature and strength of the child’s relationship with the mother to be stronger than with the father.
[164] From at least the time the Henderson J. Order was made, the mother has been the child’s primary caregiver.
[165] The father had parenting time every other weekend and, eight to ten months following the Henderson J. Order, started his midweek parenting time.
[166] The amount of time the child is in the mother’s care is only one factor considered when determining that the strength of her relationship is stronger than the father’s.
[167] On the evidence before me, the mother has spent considerable time and energy investigating treatment options and has consistently attended therapy and treatment with the child. As a result, she is the one that knows the child the best and is well suited to determine his needs.
[168] I recognize that the father may have attended a minority of or some family meetings and/or therapy sessions. However, there is no dispute as between the parties, or based on the evidence provided, that the mother is the parent who liaises between school and therapist, who transports the child to therapy, who seeks assistance from outside sources, who follows up with the therapists and, overall, who is primarily responsible for ensuring that the child has the benefit of as many services as possible.
[169] No evidence was tendered of a longstanding bond between the child and his paternal grandmother.
[170] According to the mother, the paternal grandmother refused to babysit or help with transporting the child until the COVID-19 pandemic.
[171] According to the father, the paternal grandmother is the family member who spends the most amount of time with the child.
[172] As set out above, the father testified that his family participates in a Sunday dinner at his mother’s place and that she is also responsible for transporting the child at the end of his parenting time visit. However, details in support of a longstanding bond of any duration or strength was not tendered.
[173] Similarly, details of any longstanding bond between the child and his uncles was not tendered.
[174] One uncle moved to London a year ago and the other, approximately two years ago.
[175] The evidence supports that the child, his father and uncles enjoy playing video games and no doubt they are bonded by this beloved pastime.
[176] There is insufficient evidence to support that the bond with the uncles is of sufficient strength to outweigh the nature and strength of the child’s relationship with his mother.
[177] The father testified that, on occasions, the child is disappointed when he is told that he is to return to his mother’s home. This does not change my finding that the mother has a stronger bond than the father.
[178] I do not undermine the necessity and importance of the child having an ongoing relationship with his uncles and paternal grandmother. However, according to the father, time spent is limited to once or twice a month only.
(c) each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent
[179] The mother is willing to support the child’s continued relationship with his father.
[180] Her willingness stems from the fact that she is prepared to absorb the cost and is prepared to travel with the child back to London once a month to facilitate the continued relationship.
[181] There was no evidence tendered at trial to suggest that the mother has in any way undermined the father’s relationship.
[182] Similarly, the father has clearly accepted the mother’s role in the child’s life and described her with the utmost respect and gratitude.
[183] Both parents have a willingness to support the development and maintenance of the child’s relationship with the other parent.
(d) the history of care of the child
[184] As noted above, the mother has been the child’s primary caregiver. This is not in dispute.
(e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained
[185] The child’s views and preferences were not provided by way of evidence.
(f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage
[186] Both parents are bilingual. The child is also bilingual. He converses with the mother solely in French.
[187] The father does not dispute the benefit of French language in the child’s life, nor does he dispute that therapeutic services offered in the French language would be beneficial for the child.
(g) any plans for the child’s care
[188] The father’s plan is that child remains in London, Ontario, attend the same school, maintain a relationship with his extended family, and to continue with the therapeutic services currently offered, acknowledging that they may change at any time.
[189] The father did not dispute that the child’s ongoing therapeutic services may become unaffordable.
[190] The father did not present a plan regarding his continued role in the child’s care and therapy. There is an expectation that this significant issue rest with the mother.
[191] The mother’s plan will require the child to move to Moncton, New Brunswick, start a new school, make new friends, and familiarize himself in a new environment.
[192] While the evidence supports that the child is inflexible and rigid, the mother’s past history of attending to his needs supports my finding that, if permitted to move to Moncton, the mother will use techniques previously employed to assist the child with the transition.
(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
[193] The mother’s proven history of caring for the child’s needs leads me to a finding that she is able and willing to care for and meet the child’s needs, however difficult it may be for her.
[194] In the father’s words, she is “1000% dedicated” to the child.
[195] The mother has provided the child with stability and support, likely since his diagnosis, and more recently given the changes to the therapy programming funding changes and because of the pandemic.
[196] Based on the evidence before me, I find that she has demonstrated an understanding of the child’s needs and that she is in the best position to investigate and determine how those needs can best be met.
[197] The father has provided care for the child and there was no evidence to suggest that there was any issue during his alternate weekend parenting time or midweek parenting time.
[198] The father has the support of his brothers and his mother.
[199] The father admitted that he only attended a minority of meetings and there was no evidence to suggest that he attended a single therapy session when they were taking place at the hospital, Monday to Friday.
(i) the ability and willingness of each person in respect of whom the order would apply to communicate and co-operate, in particular with one another, on matters affecting the child
[200] Both parents appear to have a mutual respect. This was evident when each parent testified about the other.
[201] They appear to communicate well on matters affecting the child, with the mother taking the lead, using her resourcefulness to investigate treatment options and making the father aware of all progress.
[202] I find that each party has the ability and willingness to communicate and cooperate with the other on matters affecting the child.
(j) any family violence
[203] No evidence was tendered to suggest that this factor is applicable.
(k) any civil or criminal proceeding, order, condition or measure that is relevant to the safety, security and well-being of the child
[204] No evidence was tendered to suggest that this factor is applicable.
Decision
Relocation
[205] I have considered the best interest factors set out in ss. 24 and 39.4(3) CLRA. While it has long been established that the best interest considerations as set out in the CLRA is not an exhaustive list, the considerations provide significant guidance in this case.
[206] While considering factors set out in the legislation, the court is required to take a holistic look at the child, their needs, and the people around them: see Phillips v. Phillips, 2021 ONSC 2480, at para. 47.
[207] At para. 17, in Reeves v. Brand, 2018 ONCA 263, Laskin J.A. wrote:
17 Relocation or mobility cases, where one parent wants to take a child and move some distance away from the other parent, are among the most difficult cases in family law. If the custodial parent is permitted to move with the child, inevitably the relationship between the non-custodial parent and the child will be affected and may suffer. Typically, the court must balance the custodial parent's legitimate interest in relocating with the non-custodial parent's legitimate interest in maintaining a relationship with the child. But in every case, the ultimate question is what is in the best interests of the child.
[208] With the recent amendments to the CLRA, a more detailed procedural and substantive structure has been established to govern relocation cases. Even with these amendments, the challenges recognized in Reeves remain. See Zorab v. Zourob, 2021 ONSC 6552, at para. 4.
[209] Based on the evidence before me, I find the mother's motive to relocate to be genuinely rooted in her love for the child. She is not moving for an improper purpose or to frustrate the father's parenting time.
[210] The mother’s rationale to relocate is child centered. Her proposed move has the potential of creating a brighter future for the child both in the short and long term.
[211] The French instruction therapeutic services offered to him at the school will also allow the mother to obtain gainful employment.
[212] The mother’s plan for the move has been thought out and considerable efforts and research was undertaken, including contacting a school in New Brunswick, having discussions with the Director of Autism. In addition, job opportunities were actively sought and pursued.
[213] The mother has demonstrated valid and compelling child-focused reasons to move and, as a primary caregiver, her views and preferences are given serious consideration.
[214] I find that the child relocating to Moncton, New Brunswick to be in his best interest.
[215] The father has failed to meet the burden of proof and has not demonstrated why the move to Moncton, New Brunswick would not be in his son’s best interest.
[216] Permitting the relocation will better meet the child’s physical, emotional and psychological safety, security and wellbeing.
[217] Further, I accept the mother’s plan to secure employment in Moncton, New Brunswick and accept that her ability to work fulltime will be facilitated by the child’s attendance in school, where therapy services will be provided without the necessity of a parent being present.
[218] The improved ability to satisfy a child’s needs, including financial viability, is a valid and compelling parenting-based reason for the move of a primary caregiver: see Porter v. Bryan, 2017 ONCA 677, 6 R.F.L. (8th) 41, at para. 17.
[219] Further, I have considered that moving at a young age will usually have less affect on the child’s life: see Reeves.
[220] Courts have also recognized that in permitting a parent to move away with a child, that modern day technology has made it easier to overcome the distance problem relating to parenting time and maximizes contact with the other parent: see Hussein v. Dirie, 2018 ONCJ 781; and Ryall v. Ryall, 2009 ONCJ 687.
[221] The implications of permitting the child to relocate on the father is not overlooked.
[222] However, a disruption or a reduction in his parenting time is not sufficient to prevent a move, particularly when weighed against the potential gains to the child once enrolled in a French speaking school with autistic therapeutic services available to him daily.
[223] The mother has requested an order that she be permitted to move by March break.
[224] Having regard for the evidence provided, including the parents’ admission that the child is inflexible, rigid and has difficulty adapting, it cannot be found to be in the child’s best interest to relocate that quickly.
[225] As the mother has done in the past, time will be required to prepare the child for the move and familiarize himself with what to expect by looking at photographs.
[226] Although no evidence was tendered as to the father’s current income, the father should be provided with some time to rearrange his finances, to the extent that he is able, to account for the increased costs of parenting time.
[227] Relocating in the summer, in my view, has several benefits.
[228] First, it allows the mother time to secure accommodations and register the child for the start of school in September 2022. Once accommodations have been secured and the school has confirmed registration, the mother will be in a position to show pictures to the child and prepare him to move.
[229] An additional benefit will be to the father, whose parenting time will be impacted by my decision.
[230] The father will have the benefit of at least four extra months of ongoing parenting time with the child and a consecutive week of parenting time in the month of July.
[231] The mother shall relocate to Moncton, New Brunswick, with the child no earlier than July 9, 2022.
[232] My decision to delay the child’s relocation will allow the child and the father to have in person parenting time as long as practical prior to the commencement of the next school year. At the same time, it provides time for the child to adjust and the mother to secure employment prior to the commencement of school in September 2022.
Decision-Making
[233] For reasons set out above, I see no reason to amend the decision-making regime set out in the Henderson J. Order.
Cost of Parenting Time
[234] If the court authorizes the relocation of a child, it may provide for the apportionment of costs relating to the exercise of parenting time by a person who is not relocating between that person and the person who is relocating the child: see s. 39.4(9) CLRA.
[235] The mother has offered to waive the Respondent’s payment of $400 in child support in the month that he travels to Moncton, New Brunswick for the purpose of exercising parenting time.
[236] This is a fair and reasonable approach to the apportionment of costs relating to the exercise of parenting time by the father.
[237] The cost of travelling to Moncton will exceed the $400 in support that the father would be saving, however, it provides for some financial relief.
[238] The father cannot simply allege he is not able to arrange his finances to accommodate the cost of travel. He did not tender any evidence as to what his income or expenses are.
[239] The father testified that he lives paycheck to paycheck, and he does not have access to any additional funds. This evidence is hard to accept without proof. The father’s failure to provide his income tax returns, as previously court ordered, was not helpful on this issue.
[240] The delayed relocation should provide the father with sufficient time to review his financial affairs to determine if there is any room for cost saving in order to assist with his travel to and from Moncton.
Order
[241] For the reasons outlined above, pursuant to the Children’s Law Reform Act, an order shall issue as follows:
The applicant, Jasmine Lepine-Maynard, is authorized to relocate the residence of the child, Théo Gerard Majstorovic, born December 16, 2012, to Moncton, New Brunswick, no earlier than July 9, 2022, where he will continue to primarily reside with the applicant.
The applicant shall ensure that the respondent, Mark Van den Boomen-Majstorovic, has one week of parenting time with the child, to take place prior to the child’s relocation.
Paragraphs 6 and 7 of the order of Henderson J. dated March 19, 2019 shall be vacated and replaced with the following:
“6. The applicant, Jasmine Lepine-Maynard, shall not change the residence of the child, Théo Gerard Majstorovic, born December 16, 2012, from Moncton, New Brunswick, to any other location without the written consent of the respondent, Mark Van den Boomen-Majstorovic, or an order of the court of competent jurisdiction, obtained in advance of the move.
- Once the child relocates, the respondent shall have parenting time with the child, Théo Gerard Majstorovic, born December 16, 2012, as follows:
(a) daily Facetime or video calls, commencing at a time chosen by the mother, to occur after the child’s dinner and before the child’s bedtime;
(b) monthly in person parenting time to occur the last weekend of each month, alternating between London, Ontario, where it shall be the mother’s responsibility to have the child transported at her cost and, in Moncton, New Brunswick, where it shall be the father’s responsibility to travel and maintain himself and the child for the weekend at his cost;
(c) during the child’s summer vacation from school, beginning in 2023, for up to two weeks, consecutively or non-consecutively. The father shall provide dates for such parenting time to the applicant on or before May 1 in each year;
(d) transportation costs for the child to and from summer holiday access shall be shared between the parties; and
(e) at any other time(s) as the parties may otherwise agree upon.”
Paragraphs 2, 3, 4, and 5 of the Henderson J. March 19, 2019 order shall continue in full force and effect.
In the month that the father’s in person parenting time is to occur in Moncton, New Brunswick, the father’s monthly child support payment, currently at $400 per month, shall not be paid to the Applicant.
Costs
[242] The parties are encouraged to settle the issue of costs.
[243] If they are unable to so, and if the mother seeks costs, she shall submit written cost submissions by February 28, 2022 of no more than three pages, not including a Bill of Costs and Offer to Settle.
[244] The father shall file responding written cost submissions by March 7, 2022 of no more than three pages, not including a Bill of Costs and Offer to Settle.
[245] Reply cost submissions, if any, shall be filed no later than March 11, 2022 and shall be no longer than one page.
[246] Cost submissions should comply with r. 24(12.1) and (12.2) CLRA.
[247] Submissions shall be double spaced, using 12-point font.
[248] If cost submissions are not received pursuant to the timeline set out above, the issue of costs shall be deemed to be settled.
“Justice Kiran Sah”
Justice Kiran Sah
Released: February 7, 2022
COURT FILE NO.: FC1208/17 and 1208/01
DATE: 20220207
ONTARIO
SUPERIOR COURT OF JUSTICE
FAMILY COURT
BETWEEN:
Jasmine Lepine-Maynard
Applicant
- and -
Mark Van den Boomen-Majstorovic
Respondent
REASONS FOR JUDGMENT
SAH J.
Released: February 7, 2022