COURT FILE NO.: 131/20

DATE: 20220802

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Lorne Joseph Gugins, Applicant

Beth Ambury and Christina Rorabeck, Co-Counsel

• and -

Angie Veronica Hopkins, Respondent

Stephen Zap, Counsel

Judith Millard, Counsel for the Children

HEARD: May 16, 17, 18, and 19, and June 13 and 17, 2022, by Zoom

Minnema J.

REASONS FOR JUDGMENT

[1] This was an Application and cross-Application by the parents of Joshua age 17, William age 13, and Holly age 7, with the dispute being primarily over parenting and decision-making. Related issues are mobility, change of name, and child support.

Background Facts

[2] Both parties had very troubled and difficult upbringings, and they acknowledged having spent much of their lives struggling with the resulting issues including very serious addictions. I have to say, at the outset, how impressed I was by them. They were both for the most part frank about their tragic histories, articulate, and showed strength in recognizing weaknesses and obtaining services and supports throughout the years. As a result, they cleared many of the almost unimaginable hurdles that life has put before them.

[3] They met in Marmora, Ontario, in the early 2000s while both were attending Alcoholics Anonymous (“AA”). The applicant father was about 44 years old and had been clean for a few years at that point, the respondent mother was about 28 years old and just getting sober. The mother worked at the local grocery store. For reasons that were not entirely clear, the father was on the Ontario Disability Support Program (“ODSP”) and remains on it today. He was also doing some work as a drywaller. The mother’s AA sponsor eventually connected the father with the mother so that he could provide her with rides to the meetings, as the mother did not and still does not have her licence. In early 2004, they started meeting together outside of AA. The father was in another relationship wherein he had one child, Carly, who was about two or three years old at the time. He had been married before (and was still legally married) to his first partner (not Carly’s mother) and had also had a child with her, Joseph, who he was not involved with. The mother was single and in the process of extracting herself from an abusive relationship.

[4] The parties began seeing each other but did not live together. The mother became pregnant. Joshua was born in early 2005. The mother took maternity leave. The father would care for Joshua on Monday evenings in the mother’s home as she had another commitment, and would also stop in from time to time, sometimes staying overnight, but they were not cohabiting. When Joshua was conceived, the mother had been sober for several months. Strong kudos to both of them as neither has had a relapse since that time.

[5] Notwithstanding their sobriety (except for marijuana use by the father that he gave up relatively recently) and the fact that they were not living together, the mother describes their relationship as “toxic”, and they both indicated many arguments and much swearing. The mother gave an account of one incident where they were physically violent with each other in Marmora and a neighbor called the police resulting in the Children’s Aid Society (“CAS”) eventually making contact. The CAS closed its file after investigation as the parents were not living together.

[6] While the mother was off on maternity leave, the grocery store she worked at changed owners and when she was to return to work, she was not guaranteed full-time hours. She decided to move to Belleville, Ontario, and obtained full-time employment at a call-center at the beginning of 2006, and the parties began living together. The father, being on ODSP, took care of Joshua while the mother worked, and they had his second child Carly every other weekend. However, the mother indicated that the relationship was still toxic with much domestic conflict in Joshua’s presence.

[7] At some point, apparently in 2007, the mother decided to leave the relationship and move to the Welland, Ontario area, where she was originally from. She told the father, and he even drove her and Joshua there. She stayed with her mother for a time, then got her own apartment. The father followed her, and eventually they reconciled. However, they separated many more times. There were some good periods and bad periods, the latter at times necessitating police involvement and court proceedings. With the mother working and the father being on ODSP, there is no dispute that he was a very involved parent. The only parenting issue, a big one, was the domestic conflict between the parents in front of the Joshua, and then eventually also in front of William and Holly, which they both acknowledged and took some responsibility for.

[8] The family history was complicated and difficult to follow at times, but the mother indicated that just before William’s birth in 2008 she was punched in the stomach by the father, which the father strenuously denies. There was no police or CAS involvement. The parties separated around that time and went to court. The father had his parenting time supervised by the mother in the community. However, after about three or four months they reconciled. The mother said that, as a result of that experience, they became better parents, with therapy, counselling, and the father taking an anger management course. But she said their relationship remained an issue, which she attributed to the fact that neither had healthy examples of adult interaction growing up, although her view was that for the most part it related to the father’s abusive and controlling behaviours. They changed residences a number of times, always in the general Niagara Region, and the mother would work at different jobs and the father would be home, although he went out often and spent a lot of time attending AA.

[9] Some of the conflict between the parties was alleged by the mother to be physically violent, and in 2013 she indicated to the father that she was again leaving with the children, being Joshua and William at that point. Right afterwards, the father suffered a major heart attack resulting in a quadruple bypass operation. The mother took significant time off work while the father was compromised, taking care of the family and nursing him back to health. Since then, there have been no more allegations of physical conflict between the parties, although the mother reported that eventually the pattern of emotional and verbal abuse resumed.

[10] Holly was born in early 2015. The mother went back to work after 4 months.

[11] A particularly stressful time for the mother was after her father died in 2016. She had re-established a relationship with him and attended to his care while he was ill. She was also having stresses at work, and the family was experiencing financial stress. She ended up in what was described in her Pre-Sentence Report (“PSR”) as doing something “completely out of character”, namely she stole from her employer resulting in her being fired in 2016 and charged with theft. Except for this blip, the evidence was that she has always been a strong and reliable employee in her various jobs, leaving when it suited her and the family, but with no trouble returning or finding work.

[12] While the criminal charges were pending, the mother found other work in Welland. However, soon afterwards the parties chose to leave Welland and move to Kingston. The idea seemed to be a fresh start for the family. The mother had a sister there and the parties had received reports that the area had good services for their needs. They moved in September 2016. The mother’s criminal charges subsequently resolved with full restitution paid (about $1,000) and an absolute discharge.

[13] When they arrived in Kingston the family moved in with the mother’s sister, but quickly discovered that the environment was not safe for them or the children, with considerable drug activity. They quickly and wisely moved into what was described as a very good emergency shelter for families, and then found their own accommodations. Things were going well for the family at that time. The following was noted in the mother’s PSR, which is essentially a concise summary of the above narrative:

The couple mutually reported that they share a stable and rewarding relationship and are happy in their current residence in Kingston. [The mother] reported that although they have had their “ups and downs”, she is very proud that she has provided an environment void of substance abuse for her children. The couple acknowledged that their relationship has been unstable in the past and that they have separated on a few occasions. …

[14] The mother eventually began working at a donut store taking the early morning shift (4:30 am to 1 pm). According to her, the idyllic setting that both parties painted for the author of the PSR did not hold. She reported that the father and Joshua began getting into physical confrontations; the father admitted to grabbing and holding him, but in self-defense. One incident occurred prior to Christmas 2019, and Joshua at age 13 almost 14 was already taller and considerably heavier than his father at the time. The mother blamed the father and Joshua both, the former because he was the adult, the latter for not respecting his father. She also said that both Joshua and the father were verbally and emotionally abusive to William, and that Joshua and William would at times have sibling conflict.

[15] The mother sought counsel from a women’s shelter and decided to again separate by moving back to Welland. She left on January 30, 2020, which is the date of the final separation, on the pretense of going there to celebrate Joshua and Holly’s birthdays with her family. She told the father that she would return in five days. Her sister picked up her and the three children. The plan was to go to a shelter, which she did, but she only stayed two days as it was not a good place. She and the children then went to live with her sister who already had six people in her home, bringing the total up to ten.

[16] The mother says that the shelter gave her bad advice, indicating that she could start court proceedings in Welland. However, when she told the father she had left for good, he was very emotional and even tried to harm himself. However, he also did not seem to take the separation seriously, at least at first. Afterall, they had separated and reconciled many times before (the count was often said in evidence to be around ten). He said he thought it would be temporary. The father drove up and had about five visits with the children that the mother supervised, although the boys, Joshua in particular, did not always attend. The father also had regular telephone contact with the children. The father eventually spoke to a lawyer and then started a court proceeding in Kingston several months later, which the mother contends was motivated for financial reasons.

[17] The litigation history thereafter is part of the court record, and the parenting history post-separation has been mostly admitted in the Request to Admit and in the evidence heard. By way of a very brief summary, the father brought his Application as well as an urgent motion in April 2020, and the parties consented to a Temporary Order in May 2020 for week about parenting with the exchanges in Toronto. In early August at the Case Conference the parties consented to the mother reimbursing the father $35 each way when he did the full drive rather than meet in Toronto - the mother, as noted, does not have her driver’s licence. A further Temporary Order was made in August, following a contested motion, that the children would reside primarily in Kingston with the father when school began and have parenting time with the mother every other weekend. When the mother refused to return the children in September 2020, the father brought motions to compel her, and orders were needed to be made to that effect. The two youngest were eventually returned (the police had to become involved) but Joshua given his age (15 at the time) did not. Joshua was having serious mental health issues around the time related to the prospect of being forced to return and attempted to self-harm. He ultimately remained with the mother, with the father’s acquiescence. Despite the two youngest children going back to Kingston, the mother herself decided to stay in Welland. William and Holly have therefore lived primarily with the father since September 2020, with the exception of periods of school closures related to COVID-19 and in the summers when the parties agreed to a week about parenting schedule. As noted, Joshua initially lived primarily with the mother for about a year in Welland, but eventually in the Fall of 2021 he began splitting time between the two homes and then, about four months ago, he began living full-time with the father.

[18] The father, quite candidly, indicated that when he brought his court proceeding, he was not anticipating or even seeking to have the children in his primary care. He said it was not his plan to take the children away from the mother, just to bring the family back to Kingston so that he would be able to see them without her controlling it. He expressed surprise that when the two younger children were returned the mother decided to remain in Welland.

[19] The mother has made payments for transportation and has at times even increased the amount beyond the $35 each way. She is convinced she has made all that were required, the father is not sure. She has some receipts and transfers, but there is no good accounting of payments, or payments missed, by either party in evidence. The mother says that she has taken time off work to focus on this trial but expects to be able to return once she is ready.

Issues/Positions for the Hearing

1. Decision-Making

[20] The father’s pleading asked for sole decision-making with shared decision-making in the alternative. In this trial he reversed that, and sought shared or joint decision-making, but that if the court found that to be inappropriate, then he sought to be granted sole decision-making. The mother in her pleadings sought sole decision-making. Her Opening Statement did not address the issue directly, focusing primarily on where the children would live, although she did say through her counsel that the father’s conduct makes the ability to co-parent the children “very difficult and daunting”. However, in her closing submissions she indicated that she would not oppose joint decision-making assuming the children were placed with her in Welland, and it follows that she is not opposed to it if the children were not placed with her. Both parties sought provisions that neither speaks negatively of the other when the children can hear. Decision-making is therefore not an issue over which there is a significant dispute, and this was reflected in the limited evidence and submissions addressing it.

2. Parenting Time

[21] The father in his pleadings was somewhat vague regarding parenting time. He asked that the parenting schedule accord with the children’s best interest and be “not less than” alternate weekends and one mid-week visit for the mother. At trial he essentially asked that the current status quo continue, with the two younger children remaining with him in Kingston and spending alternate weekends with the mother in Welland along with shared holiday time. The mother’s position in her pleadings and at trial was essentially the reverse of that, namely the two younger children reside full-time with her in Welland and the father having alternate weekends. This is the main issue to be resolved. There seems to be agreement that Joshua, given his age, can decide where he will live, which at this point appears to be Kingston, and the father asks that reality be reflected in the court order. The OCL’s position was that the children’s wishes be respected, which is a bit nuanced with respect to William as will be addressed further below.

[22] As an incident of parenting time and perhaps child support, the father would like the transportation to be shared equally. The mother in her pleadings sought for exchanges to take place in Toronto, but that has not worked out. This is another significant issue that needs to be resolved.

[23] Both parties seem to agree that if one moved closer to the other – ie. if it was physically and practically do-able – shared parenting would be appropriate. This seems to accord generally with the children’s wishes.

3. Child Support

[24] The father is also seeking child support, adjusted retroactively to the date of separation. He noted that the mother had not disclosed her income before trial, only during, and calculations were therefore only first provided during the trial. He makes an imputation argument. He also maintained that transportation costs had been underpaid.

[25] Of course, the mother’s position is that the children should live with her in Welland, and upon that occurring the father should be the one paying child support. She maintains that she always made the transportation payments, even at times in excess of the ordered amount. She said little about retroactive child support.

4. Name Change

[26] The father also sought a name change for each of the children in his pleadings to “Gugins-Hopkins” (they are now “Hopkins” only). The mother did not address it or argue it, so there appears to be no opposition, and it may even be on consent. The father clarified at trial that he is seeking the change now for Holly, and that the change for the boys, given their ages, would require their consent. Order to go as requested as set out in the draft order by the father submitted with his closing submissions.

5. Police Enforcement

[27] The father initially sought a police enforcement clause for obvious reasons. However, as the parties have ‘settled down’ so to speak (their phrasing) since the separation and are communicating well with no further breach of court orders, this request has been withdrawn on consent without prejudice.

6. Summary of Issues

[28] Given the above, the only issues for the court to decide are the parenting schedule, and in particular where and with whom the children will reside, and child support.

Parenting and Related Issues – Law and Analysis

Law

[29] As the parties were not married, this case is governed by the Children’s Law Reform Act, R.S.O. 1990, Chapter C.12 as amended. All references to legislation relating to parenting time and decision-making are to that Act unless otherwise indicated.

[30] I am to apply the test found in section 24(1) which indicates 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 section 24. Subsection 24(2) directs the court in determining best interests to consider all factors related to the circumstances of the child. It goes on to provide a list of included factors in subsection 24(3), and in subsection 24(2) directs the court when considering those to give primary consideration to the child's physical, emotional and psychological safety, security and well-being. The remaining subsections in section 24 clarify how family violence is to be approached, how past conduct is to be considered, and that in allocating parenting time the child should have as much time with each parent as is consistent with his or her best interests (this latter “parenting time factor” was the previously misnamed “maximum contact principle” under the Divorce Act: see Barendregt v. Grebliunas, 2022 SCC 22 at para. 135).

[31] This is a relocation case in the first instance. Section 39.4(3) of the Act applies (see Barendregt at paras. 106, 107, 108, and 112), and the court shall also take into account the additional seven factors listed there. The court is directed not to take into account whether, if the relocation were denied, the person who intends to relocate would do so without the child or would not relocate (section 39.4(4)). Barendregt is instructive on how family violence is to be considered in the context of a relocation request (starting at para. 142), the importance of the history of caregiving and burden of proof (starting at para. 117), and the “parenting time factor” noted above (starting at para. 131).

[32] As to the burden of proof sections (s. 39.4(5), (6) and (7)), as there is no final order, award, or agreement in this case, both parties have the burden of proving whether a relocation is in the children’s best interests.

Analysis – Parenting Time

[33] In going through the factors from subsection 24(3), the headings below are loose short forms for the more detailed text of the actual subsections. I have taken some of them out of order.

[34] Both parties addressed the history of care in some detail. I find on the evidence before me that the children were cared for by both parents when the family was intact, primarily by the father while the mother was working, and otherwise by her, particularly when she was off work or worked the early morning shift at the donut store. While it may not have been consistently even all the time, in my view the evidence establishes that both parents took a roughly equal role as caregivers for the children. The mother had the children primarily for a few months after the parties separated up until the shared summer and school schedules, but since September 2020 the two youngest have been in the father’s primary care. Joshua was initially in the mother’s primary care until about August 2021 when he began to start sharing time equally, and he has been living with the father since the beginning of April 2022; the suggestion from both parents is that, in the mother’s words, he “is there for good now”.

[35] The family lived in the Niagara area for about nine years and then moved to Kingston in September 2016, so five almost 6 years ago. William and Holly have been living in Kingston for that whole period, except for the summer months and when they were doing online schooling when the schedule was week about. Given her age, for Holly this is essentially her whole life. Joshua lived in Kingston for over three years, then with his mother in Welland for about a year, then began sharing time between homes and eventually moved back to Kingston as just noted.

Children's Needs

[36] I am to look at the children’s needs given their age and stage of development, and stability is a need noted in the subsection 24(3)(a).

[37] Joshua seems to have a need for autonomy. He was described as a mature 17-year-old, and he has chosen to live in Kingston with his father and siblings. He wanted to find a job and has now found one, which I understand to be part-time. Education is always a need, and he appears to be doing well with his online studies which still originate from his school in Welland.

[38] William is a boy who likes to spend time on his own and likes to play video games. He has been described as a “quiet young man”. He appears to be doing well in school. He seems to need his space, and both parents recognize this and give it to him. All agree he has artistic talent. The mother has described him being accepted in a school in Welland with an artistic focus around March of 2020. She claims that the school has made an exception for him (he may otherwise be too old) and is holding his place. The father in aware of the school, knows the child is interested, but points out there is no evidence confirming that William is enrolled, and that he can attend. Even if William were permitted to go to the school that has a focus he likes, which is unknown, changing schools can come with its own challenges.

[39] Other than the need, acknowledged by both parents, for the children generally to be devoid of exposure to parental conflict (which the parents have consistently failed to meet when they were together), there was little true insight in the evidence about Holly’s other needs (I will get to her wishes below). I note that the Parenting Plan Guide (“PPG” or “Guide”) published by the Association of Family and Conciliation Courts – Ontario (AFCC-O), provides a good up-to-date summary of the social science research on school aged children generally and indicates:

Six to nine-year old children engage with more people outside of the family and experiences that help to develop a sense of competence, such as participation in school, sports, art, music and peer relationships.

[40] Holly has indicated that she likes her current friends and school. The need to be free of exposure to parental conflict seems to have been accomplished for the most part by the separation, and as noted the parties have agreed on an order that precludes them from disparaging the other in the presence of the children.

[41] Of course, it is important for all the children to have a relationship with both parents, one that is again free from conflict that will adversely impact them. As I have found that the parents have been relatively equally involved in William and Holly’s care, roughly equal care would be optimal in this case. However, after this summer, if the parents still live where they do, a choice between the one or the other for primary residence is unavoidable.

Children's Relationships

[42] The children all have good relationships with and love their parents. With the exception of the period that Joshua was estranged from the father right after the separation, this has been so throughout their lives.

[43] The mother focussed on the fact that the children have family in Welland, namely the maternal grandmother, two maternal aunts, some cousins, as well as a friend of hers. The evidence did not establish that the mother’s friend was close to the children. The father says that the mother’s family was distant while they were together, which the mother in some respects acknowledges. She blames the father for isolating her although there is no convincing evidence to support that. The picture the mother paints of the father being controlling near the end of the relationship is disputed by him, and inconsistent with the majority of their time together. The evidence establishes that the mother is strong willed, and it does not support the level of control by the father that she claims. There is evidence that the mother’s family has not warmed to the father, and indeed its members appear to have played a part in initially driving a wedge between Joshua and his father. This, and some more recent conflict with an extended family member, contributed to Joshua’s most recent decision to relocate back to Kingston. For the last two or so years, William and Holly only see the mother’s side of the family during her parenting time.

[44] The father focussed on the William and Holly’s current friends in Kingston, given that they have lived there for the better part of six years. William does have a close friend there and none in Welland. As noted, Holly has friends in Kingston and they are important to her, more important currently it appears than her extended family in Welland.

[45] The children’s relationships with each other seem to be good, although the evidence is somewhat limited. Joshua and William used to have conflict. However, Joshua indicates that he gets along reasonably well with William now, and while they still fight it is not physical. William on balance finds it nice to have Joshua around again. One issue identified by the OCL is whether Holly’s residence should be tied to William’s, or vice versa, or not at all. The strength of the sibling ties relative to their views and preferences on where to live is unknown.

[46] I would note that the father made mention, almost in passing, of both Joshua and William having girlfriends in Kingston, and the mother also mentioned Joshua having a girlfriend. There is no indication whether these were significant relationships for either one. Girlfriends were not mentioned by either side or the OCL in closing submissions.

[47] Neither party has a new partner to consider.

Willingness to Support the Children’s Relationship with the Other Parent

[48] The father describes the events of the Fall of 2020 as a time when the mother limited his contact with the children. The mother attributes that in part to bad advice, although it is hard to lay the blame for all her decisions there. Regardless, since then, it is evident to me that neither parent seeks to limit the other’s time with the children, and indeed they both encourage the other’s relationships. The father in particular facilitates the mother’s relationship in a big way by doing all the driving. He has been doing, as the mother’s own counsel described it, the “heavy lifting”. When it is possible, such as in the summer months, the time is shared equally, and that was seen by the parents as obvious rather than pressured, imposed, or forced. They both have clearly indicated that the only restriction to equal parenting time has to do with the parents living in different communities and children’s need for stability in one, be it Kingston or Welland. The mother indicated that “somehow, some way, they [the children] need both of us in their lives”.

Children's Views and Preferences

[49] Joshua has voted with his feet so to speak, with the parents’ blessing. He wants to be in Kingston now and no one is opposing that.

[50] William’s wishes are more nuanced. He would like to share equal time with his parents but if that cannot happen his second choice would be to live primarily with his mother in Welland, and his third choice would be to remain in Kingston where his friends and school are. He does not appear to feel really strongly about one choice over the other, or to be adamant about wanting to live with his mother in Welland, and indeed he was described as having some misgivings, and being somewhat ambivalent about his wishes. It was not explored whether or how living with his mother without his siblings would impact his wishes. In other words, the distance between his second and third choices was not well defined. As noted already, William is not too active in either household and is an easy child who likes to be left alone. The father commented that at age 13 he would go along with whatever William wanted, and he wants what is best for him.

[51] Holly wishes to remain primarily in Kingston during the school year. She would like to keep things as they are now, living primarily with her father and spending significant time with her mother.

Children's Cultural, Linguistic, Religious and Spiritual Upbringing and Heritage

[52] This is not applicable, with nothing having been raised by counsel.

Ability of Parents

[53] Often the name of the game in family law litigation, especially trials, is to challenge the other party’s ability to parent, thereby making your own plan appear relatively stronger. While lamentable, this case was no different. However, setting aside the serious issue of domestic conflict and the exposure of the children to it, I do not see anything that convinces me that either parent does not have the ability and willingness to care for and meet the needs of the children. They have always shared parenting when the family was intact. They have no worries about the other when shared parenting happens, such as when school is virtual or during the summer school break. They are like minded when it comes the parenting of Joshua and William. Holly appears to be a well adjusted 7-year-old, and she is thriving in the father’s care. I have no doubt that she would also thrive in the care of her mother. While the mother following the separation reported to the CAS concerns about the father’s ability to care for the children, following its investigation it had not concerns and the mother conceded in her evidence that the children’s basic needs are being met at their father’s. Both parents indicate that they want to provide a good life for their children and just want them to be happy. It is not so much a matter of capability in this case as availability.

Plans of Care

[54] The plans of care are tied to the parties’ positions as set out above.

[55] The father’s plan is simple, namely continue the existing arrangement. His argument, a strong one, is that both William and Holly are thriving where they are, with their current schools and friends, despite their mother moving away. The only change he would like is that the mother provide some more responsibility for the transportation. He says the trip one way to Welland is about 5 hours with the necessary rest stops for him and the children, and he has been doing all of the driving. This means that for the mother’s parenting time as it currently stands, namely every other weekend, he drives 10 hours on the Friday (William and Holly miss school every other Friday which thus far has had not negatively impacted their academic progress) and 10 hours on the Sunday, although on occasion he will not return to Kingston in between and stay over somewhere closer. His proposal is that he does one drive, and the mother comes to Kingston for her every second weekend parenting time (ie. roughly once a month).

[56] The mother’s plan is also quite simple, being essentially a reverse of the existing arrangement, with the children primarily with her and the father having the children every other weekend. However, her plan has some practical difficulties given that, as she has chosen to move away from Kingston and does not drive, she expects the father to continue to be responsible for all the transportation. This would mean that in her plan his weekend parenting time would be, if the children were to continue to take the Fridays off of school, essentially one full day in Kingston in between almost two full days driving. While driving with your children in a car is without a doubt quality parenting time, there is a limit on what you can do, and just one day in Kingston every other weekend is very restrictive.

Ability to Cooperate with Other Parent

[57] The parties exhibited a good co-parenting relationship prior to the separation, with no real evidence of disagreements on things like school, education, activities, etc., the one blot being their own toxic relationship and the children’s exposure to it. Despite the mother indicating a level of domestic conflict and a history of family violence (see below) and intimidation making joint decision-making unfeasible, they are able to communicate now that they are separated.

Family Violence

[58] As noted in Barendregt at para. 142, any family violence or abuse may affect a child’s welfare and should be considered in relocation decisions.

[59] There is a troubling history of family violence in this case. The nature of it was for the most part between the father and mother, and it was not all one sided. Some physical incidents are admitted, but explained, and the bulk of the conflict was arguing and swearing, most of it admittedly in the presence of the children. The parents have said some very unkind things to each other over the years. They tried couples counselling, but it had no appreciable long-term effect. At times it was hard to locate the timing of the incidents within the individual narratives of their family chronologies, and there were disagreements between the accounts. If the police were called by a bystander, as happened on occasion, the parties would minimize the physical aspects of the conflict and no charges were laid. While the domestic conflict continued throughout the relationship interspersed between some ‘honeymoon periods’ following the many separations and reconciliations, the physical incidents were for the most part historical for as noted they seemed to stop either way after the father’s heart attack in 2013.

[60] The mother indicates that there was much name calling by the father to the two boys, some of which he admits to, most of which he denies. There was also some physical discipline by the father, particularly with respect to Joshua. The father admits ‘tapping’ him with a wooden spoon when he was about 3½ years old (twelve or so years ago), but other than that the physical conflict was along the lines of grappling when Joshua was much older (and as big or bigger than the father) and challenging his authority. The father claims that he was stopping the child from hurting him. Since Joshua has returned to live with his father, the father has learned to walk away when he and Joshua have disagreements, and there has been no conflict or physical discipline noted by Joshua’s account “in some time”. Again, Joshua has been seeing the father regularly since about August of 2021.

[61] The mother correctly characterized the parents’ relationship simply as “toxic”, which appears to be the case from the very start, and both parents recognized the impact on the children. She said she blamed both of them for it, and again noted that neither had healthy examples growing up. To the mother’s credit she has affected a cessation by engineering the final separation. This has eliminated further conflict and is laudable as it benefits the children. Both plans before the court will continue that. As the mother explained, she did not leave because she didn’t love the father, but because someone needed to leave, and she felt Welland was a safe place until he could get his “stuff” together. However, in all aspects she agrees clearly and unequivocally that despite the history of conflict that it would be best for the children if the parents could live closer together and share the parenting equally.

Other Relevant Proceedings

[62] This is not applicable, with nothing having been raised by counsel.

Non-Listed Factors

[63] Transportation is a concern raised by the parties, the father in particular. I have already addressed it in part under Plans of Care above. Again, the mother does not have a driver’s licence and, although she acknowledges that she should get one, she is now 46 years old and there is no evidence of a plan. Right now, for her alternate weekend parenting time, the father drives both ways, when he returns to Kingston on that same weekend that means he drives between Kingston and Welland four times. While that is barely doable while the mother is exercising parenting time in Welland, if he were the one exercising alternate weekend parenting time himself in Kingston as the mother proposes, there would be little time left over for parenting time with the children outside of travel, as I have already pointed out.

[64] What also needs to be noted is that the distance limits the feasibility of splitting the children. If Holly were to remain in Kingston per her wish, and if William were in the primary care of his mother per his less clear preference, under either plan during the school year those two children may only see each other during at the every other weekend parenting time exchanges which, given that the father and whatever child is with him would be returning back to Kingston with 5 hours of travel ahead of them, may not be very long.

Additional Best Interest Factors Related to Relocation from Section 39.4(3)

[65] In going through the factors from subsection 39.4(3), once again the headings below are loose short forms for the more detailed text of the actual subsections.

Reasons for the Relocation

[66] The mother indicates that the reasons for the location was to get away from the father and his abuse. She said she chose Welland as they had lived there before, and she has family there. However, this seemed to be more a matter of familiarity with the area, as she first went to live at a Women’s Shelter. It turned out to be inadequate when there was a shelter in Kingston that the family had been at before that the mother had only positive things to say about. She wound up living at her sisters for a time with the children out of necessity, but that swelled the number of people in that home to ten. The mother said that it would be optimal for both parents to move somewhere neutral (but closer to Welland) such as St. Catharines, and Toronto, making the draw of Welland even less clear. I would just add that the mother is a hard worker and seems to be good at finding employment anywhere; employment was not, nor was it stated to be, the reason for the move.

Impact of the Relocation on the Children

[67] There can be little doubt that uprooting the children has its risks. As noted, stability is emphasized as a factor in s. 24(3)(a). Holly does not want to relocate. William has some adversity to being uprooted generally, given that when the idea was bantered about of the parties both moving to a third location that he was unfamiliar with, it was his least favourite option. The mother candidly admitted that the children have what they need with their father now.

Time Spent and Level of Involvement of the Parties with the Child

[68] This has been addressed above.

Compliance by the Mother with the Notice Requirements

[69] As this is a relocation case in the first instance, and given how the issue arose, the notice requirements do not apply.

Geographic Restrictions

[70] There are no geographic restrictions set out in a final order or agreement.

Reasonableness of the Mother’s Proposal

[71] The subsection under consideration, 39.4(3)(f), specifically directs the court to take into consideration the new residence and travel expenses in assessing the reasonableness of the mother’s proposal. As this has been addressed in part above, I will only add the following.

[72] The father’s evidence was that the costs of the travel for the mother’s parenting time under the temporary order that he is doing now was straining him financially, and that he was getting regular assistance from his church in the form of gas cards.

[73] The mother’s home now is more than adequate, but as the father notes she has not been paying child support. In addition, the mother has been getting financial assistance from a friend Mr. Horan.

[74] The mother fails to address travel expenses and what a reasonable parenting time plan would be for the children with their father should her proposal carry the day. This has been discussed in some detail above. The father indicates that all the driving falling on him for the mother’s parenting time has been a chore.

[75] As noted by the father, the mother’s decision to relocate on her own to Welland has already made equal parenting impossible and has strained the very modest resources of this family in dealing with the transportation issue.

Past Compliance with Orders

[76] There was some issue with compliance when the children were ordered back to Kingston in the Fall of 2020. But this is no longer a concern. Indeed, the father has withdrawn his request for a police enforcement clause in recognition of that, and the parties do seem to be getting along when arranging their parenting time within the framework of the temporary order. The mother did not follow the court order for a midway exchange in Toronto, and despite two years of trial and error, transportation continues to be a central issue in this case.

Conclusions

[77] I appreciate that domestic conflict, although not all one-sided, played a role in the separation and the mother’s decision to move. But these parents played an equal role as caregivers for these children when the family was intact, and that is noted and even conceded by the mother. Holly is flourishing with her father in Kingston, likes the way things are now, and does not want them to change. William is also thriving in Kingston and changing his residence when he has some ambivalence as to where he will live has its own risks and would have the undesirable effect of separating the children. The mother’s plan with respect to the father’s parenting time if the children were placed in her care is extremely limiting given the travel distance, there being no indication from her as to how she could shorten that. If just William was placed in her care, acceding to his somewhat ambivalent wish, and if Holly remained in Kingston with her father acceding to her stronger wish, contact between those two children during the school year would be severely limited.

[78] Had the parties separated and the mother remained in Kingston, there is no doubt that they would have shared equal parenting. Equal shared parenting is the plan when travel and distance does not rule it out, such as during the school summer break, and should one party move closer to the other in the future there is an understanding that it would resume. It is hard given that, and in light of the analysis above, for one parent to suggest that they are a markedly better parent than the other, or that the children would fare better in their care.

[79] None of the relevant best interest criteria reviewed above has priority over another. In full consideration of all the factors above in their totality, including but not limited to the ones mentioned again under this heading, I would deny the mother’s request to have the children placed with her and grant the father’s request that their primary residence be with him.

[80] Should the situation on the ground change, such that one parent moves close to where the other resides where that it is feasible, a shared parenting schedule during the school year would be appropriate, reflecting the wishes of both parties and all the children.

[81] On the troubling aspect of transportation, the father’s evidence is that the existing arrangement where he does all the driving for the mother’s parenting time cannot continue. While his request that the mother spend one of her every other weekend in Kingston might be overreaching, making her responsible for her parenting time once per month is in my view a reasonable compromise. Again, the mother’s alternate plan was void of suggestions other than the father and children moving closer to her or both parents and the children move to a neutral place, which was not child focussed or practical.[^1]

[82] Having denied the mother’s request that the children be with her in Welland, the details of the father’s requested relief appear to be balanced and the corollary provisions largely unopposed. Order to go regarding parenting time as requested by him in his draft order as reflected in paragraph 1 (for joint decision-making), 3 (regarding Joshua but adding in that his primary residence shall be with the father subject to his wishes), 4 (for William and Holly’s primary residence with the father), 5 (for the mother’s school year parenting time to be two weekends per month but varied such that on the first weekend of the month the mother shall make her own transportation arrangements including the option, but not requirement, to have it in Kingston if she chooses), 6 and 7 (for the holiday schedule), 8 and 9 (for adjustments and additional parenting time), 10 (for transportation but varied in (a) to reflect the changes to 5 noted above), 11 (for virtual/telephone parenting time), 12 (on consent, for a provision prohibiting disparaging comments to the children by one parent about the other), 13 (for the father to hold the children’s important documents), and 14 (withdrawing the father’s claim for a police enforcement clause). I shall make the amendments to the father’s draft order as indicated and sign it upon release of this decision.

Child Support Issue – Law, Evidence, and Analysis

[83] As the parties were not married, child support is governed by Part III of the Family Law Act (“FLA”). The obligation for child support arises in section 31, and there were no raised issues about entitlement. Per section 33(7) the purposes of a child support order are to recognize that each parent has an obligation to provide support for the children, and to apportion that obligation according to the Child Support Guidelines (“CSG” or “Guidelines”). Per section 33(11) the court making an order for the support of a child shall do so in accordance with the Guidelines.

[84] Repeating some of the above, the father is seeking child support adjustments since the date of separation. He is seeking to impute income to the mother when she was not working and, where he might have an obligation, to have his support based on his actual income from ODSP seeking that even that amount be waived because of the mother’s initial unilateral removal of the children and the travel expenses he incurred for her parenting time. The mother’s position is not really a legal one; she does not appear to oppose ongoing support but notes she is not working now and argues that retroactive support, in particular, even at a low imputed amount will be very difficult for her to pay and be a disadvantage in funding her transportation costs.

[85] Some of the financial evidence was clear. The father’s yearly income from ODSP is $18,928.50 for both 2020 and 2021 as well as ongoing. He has been on it since the parties met and, while he says he is looking for paid employment and has worked on the side over the years doing drywall, there is no indication that he will be going off it anytime soon. His benefits, per his Income Tax Return, are not taxable. In 2020 he also received $12,000 in COVID-19 related benefits, which was taxable.

[86] The mother as noted did not provide her income information (her Financial Statement and her Income Tax Returns) until well after the trial started, and after most of the evidence was already in. She was questioned on her income prior to that.

[87] As noted, the mother has no difficulty finding employment. She has had about a dozen employers since the parties met. She can quickly move on (quit employment, find new employment) if she feels like it, as she has done so many times, often to benefit the family for example when she left her job to care for the father and children when the father had his heart problems. Most jobs were at minimum wage. Her last job since separation was at Value Village in Welland. She indicated that when she started there she was earning minimum wage and she believed she was about to get a raise when she quit. She said she has had to work around the father’s schedule for her parenting time, although it was not clear why. She said she decided to be off work until the parenting schedule was figured out by the trial, again it was not clear why. It is not clear when she quit/took a leave, but it is clear that it was voluntary. She said that she was “on EI – got it for 52 weeks”, and that she earned $900 every two weeks from it in 2021, and that her income in 2020 at Value Village was “under $30,000”. However, when her Financial Statement and Notice of Assessments (2020 and 2021 only) were received very late in this process, which she acknowledges was not acceptable, what they showed was that her Line 15000 income for 2020 was $8,267 and for 2021 it was $24,205. Obviously, this does not correspond in any way to the oral evidence about her earnings and cannot be reconciled with it.

[88] As to other evidence about financial circumstances:

(a) As touched on above, both parents get extra financial help. The father gets money from his church whenever he asks for it, particularly to help with gas for parenting time. This is on top of the mother’s contribution, which the church may not be aware of.

(b) The mother has an 83-year-old friend Mr. Horan who will give her money when she is in need, which she shows as a debt on her late filed Financial Statement. In his evidence Mr. Horan indicated that he would continue to give her money, and he did not seem too concerned about or expect repayment, indicating that he will get it back “in this life or the next”.

(c) The mother has paid for some transportation per the court order and indicates that she pays more than the indicated amount. She says initially it was in cash, then she got some receipts, and now does it by transfer (depositing it into the father’s account). She says she has all the receipts, although they are not in evidence. The father denies he has been paid for all that was required, but he too did not have much in the way of a record for tracking payments made and payments allegedly missed.

(d) While the children were with the mother soon after separation and the father was receiving the Canada Child Benefit, he would voluntarily pay some to the mother, although the figure was not established. The mother says she also would give the father money when he needed it.

(e) The mother indicated that she has a three bedroom geared to income accommodation in Welland that is described as quite nice, nicer it appears than what the father currently has in Kingston.

(f) The mother said she did spend some money on the children, sending them “Google Play cards”, giving cash to Joshua, an iPhone to William, and bought both boys a laptop.

[89] The caselaw is clear that section 19(1)(a) triggers a three-question analysis: is the spouse intentionally under-employed or unemployed; if so, is the intentional under-employment or unemployment required by virtue of the needs of any child or by the spouse’s reasonable educational or health needs; if not, what income is appropriately imputed?

[90] Regarding the first question, choosing to earn less than one is capable of earning is intentional under-employment (Drygala v. Pauli, 2002 ONCA 41868 at paragraph 28). The onus is on the spouse claiming imputation to establish an evidentiary foundation for intentional unemployment or under-employment (Berta v. Berta, 2015 ONCA 918 at paragraph 63). Once established, the burden shifts to the purported unemployed or under-employed spouse to establish that the decision was justified in a compelling way (Riel v. Holland (2003), 2003 ONCA 3433, 67 O.R. (3d) 417 (Ont. C.A.) at paragraph 23) and was reasonable, thoughtful, and highly practical (Pey v. Pey, [2016] O.J. No. 1994 (S.C.J.) at paragraphs 88 to 91).

[91] In my view there can be little doubt that imputation to the mother is required. She has chosen not to work, and the evidence establishes that she would have no difficulty finding a minimum wage job if she wanted to. She has not had the children in her full-time care since May of 2020. She has no noted health needs that would preclude employment and she is not re-educating. I would impute income to the mother based on a minimum wage as the father has proposed, but for a 35-hour week not a 40-hour a week as he also proposed. There is little to no evidence of how many hours per week she worked in her previous jobs, or that established the average work week for her would be his proposed number.

[92] The mother’s income for 2020 is therefore imputed at $24,752 (I appreciate that minimum wage changed marginally in October that year, but I am using the prior wage of $14 per hour), $25,935 for 2021 (again I appreciate that minimum wage changed marginally in October that year, but I am using the prior wage of $14.25 per hour), and $27,300 for 2022 using the current minimum wage of $15 per hour.

[93] I could go through the law related to retroactive child support (S. (D.B.) v. G. (S.R.); L.J.W. v. T.A.R.; Henry v. Henry; Hiemstra v. Hiemstra, 2006 SCC 37, Michel v. Graydon, 2020 SCC 24, Colucci v. Colucci, 2021 SCC 24) but there is little point. The parties separated on January 30, 2020. The father’s Application (ie. formal notice) is dated April 8, 2020, essentially two or three months later, and was served shortly thereafter. There is little dispute therefore that retroactive calculations would be to the date of separation which, as it turns out, is actually to the mother’s advantage.

[94] The father provided a Child Support Arrears Schedule which the court found very helpful as a template for the support calculations. I have printed it and edited in writing to reflect my calculations and support findings. I have marked it as Schedule “A” to this decision. Also attached as Schedules 1 to 11 are the calculations using the DivorceMate software showing the support obligations based on the changing incomes and parenting schedules since separation. I do acknowledge that the father has argued, as already noted, that his child support for the first several months of 2020 should be waived because of the mother’s unilateral action in removing the children, and that the remaining amount of his obligation should also be waived in recognition of his transportation costs. However, given the marginal circumstances of the parties and the mother’s financial situation, I am not prepared to deviate from the CSG tables. Having said that, I do appreciate that the financial burden of their living situation has fallen heavily on the father.

[95] In view of the above, I find that the mother owes set-off child support arrears of $3,698 as of the date of this decision, which she shall pay off at the rate of $75 per month. Her ongoing support obligation as of September 1, 2022 shall be $566 per month based on the table amount for three children with her annual income imputed at $27,300. The parties shall share section 7 expenses proportional to their incomes and as otherwise set out in paragraph 16 of the draft order.

Decision

[96] Orders to go as set out above. These are reflected in the draft order provided by the father, revised by me accordingly (the numbering has therefore changed) and signed today.

[97] Both parties have sought costs. They are requested to negotiate and resolve that issue, failing which I will accept written submissions as follows:

From the father served and filed within ten days from the release date of this decision of no more than three pages, double spaced, in addition to any relevant offers and draft bills of costs.

From the mother served and filed within fifteen days after she is served with the father’s submissions of no more than four pages, double spaced, in addition to any relevant offers and draft bills of costs.

If required, a reply from the father of no more than one-page double spaced served and filed within five days after he is served with the mother’s submissions.

If no submissions are received within the contemplated timeframe, the parties shall be deemed to have settled the issue of costs between themselves, and, again, I encourage them to do so.

[98] I would ask the parties to keep in mind the factor of ‘ability to pay’ in deciding whether to pursue costs and/or in making their submissions in this case.

Mr. Justice Timothy Minnema

Released: August 2, 2022

[^1]: In fairness to the mother, she conveyed other thoughts in her evidence, but I am directed not to take them into account per section 39.4(4).