Court File and Parties
COURT FILE NO.: 4370/19 DATE: 2023-01-09 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: MEAGAN MALINOWSKI Applicant – and – MICHAEL MALINOWSKI Respondent
Counsel: Regina Senjule, for the Applicant Anthony Orazietti, for the Respondent
HEARD: October 24, 25, 26, 27, 28, November 3, 4, 2022
Varpio J.
REASONS FOR DECISION
OVERVIEW
[ 1 ] The parties to this application, Ms. Meagan McGregor (the “Mother”) and Mr. Michael Malinowski (the “Father”), met on Valentine’s Day of 2015. The Father was from Sault Ste. Marie, Ontario and had been living in Brampton prior to returning to Sault Ste. Marie in early 2015. The Mother was living with her parents in the Barrie area and was working in aesthetics. She was a cancer survivor and was getting back on her feet financially after declaring bankruptcy as a result of this difficult time in her life.
[ 2 ] The relationship progressed quickly and the Mother moved to Sault Ste. Marie in the spring of 2015. The couple resided with the Father’s parents, in their basement. The Mother and Father moved into their own house in June 2016 and were married in October of that year. They had a son (the “Son”) who was born on March 29, 2017.
[ 3 ] The relationship was rocky as the parties struggled with a newborn and with their financial position. Ultimately, the parties separated on August 20, 2018.
[ 4 ] In 2019, the Mother filed a Notice of Application seeking, inter alia, to relocate the Son to the Barrie area so as to be closer to her support network. The Father opposes this application. The parties have resolved all matters in this litigation save and except for matters dealing with decision-making, parenting time, the Son’s mobility and child support.
[ 5 ] For the reasons that follow, the Mother’s application to relocate the Son is hereby dismissed. The parties did not make submissions regarding decision-making, parenting time or child support given that the mobility issue needed to be decided in advance of making such submissions. If the parties are unable to resolve these outstanding matters, they may schedule further submissions before me forthwith.
EVIDENCE
The Evidence Called by the Mother
Ms. Donna Kessler
[ 6 ] Ms. Kessler testified that she operates a private childcare facility from her home, and has done so for 16 years. She has a daughter Miah who knows the parties and the Son.
[ 7 ] Ms. Kessler looked after the Son in 2018 and 2019. The Mother did most of the drop offs. When the Father picked up the Son from childcare, the Son would get upset. Occasionally, when the Father dropped off the Son, the Son would have diaper rash or a soiled diaper. This did not happen when the Mother dropped off the Son. The Mother would engage in conversation with Ms. Kessler regarding the Son, whereas the Father did not. Ms. Kessler and the Mother became friends.
[ 8 ] The Father ultimately did not pay fees to Ms. Kessler, and on days when he had parenting time, he took the Son to stay with the paternal grandparents.
[ 9 ] Ms. Kessler testified that the Son experienced some regression and worse behaviour on those days where he stayed with his Father. The Son would not want to go home with his Father upon occasion.
[ 10 ] Ms. Kessler closed her childcare facility due to COVID-19.
[ 11 ] Ms. Kessler’s daughter Miah has gone on trips with the Mother and Son.
[ 12 ] In cross-examination, Ms. Kessler conceded that she was unaware of whether the Father had any overnight access in 2019. She also conceded that she has not made any observations of the interaction between the Father and the Son since 2019.
Ms. Tracie Ramsey
[ 13 ] Ms. Ramsey gave evidence that was only relevant to the Father’s mental health issues from a decade ago. Ms. Ramsey is not a doctor and cannot provide an opinion regarding the Father’s diagnosis or prognosis.
Ms. Miah Duplessis
[ 14 ] Ms. Duplessis testified that she is 18 years old and that Ms. Kessler is her mother. Ms. Duplessis is close with the Mother and the Son.
[ 15 ] Ms. Duplessis testified that the Mother was an attentive parent and that the Mother’s parents were very engaged with the Son.
[ 16 ] Ms. Duplessis testified that there were times in 2018-19 when the Son attended Ms. Kessler’s daycare that the Son would not want to go home with the Father.
[ 17 ] In 2018-19, during a time when the Son was being aggressive with other children, that the Son told Ms. Duplessis that “daddy hit me”.
[ 18 ] Ms. Duplessis also testified about an incident where the Son attended the daycare with bruises and scrapes. He advised Ms. Duplessis that he had been on his Father’s motorcycle.
[ 19 ] In cross-examination, Ms. Duplessis agreed that she had no independent confirmation of anything that the Son had disclosed.
Mr. Matthew Standinksy
[ 20 ] Mr. Standinsky testified that he has been in a relationship with the Mother since June 2021.
[ 21 ] He testified that the Mother is a good parent and is attentive to the needs of her Son.
[ 22 ] Mr. Standinsky also testified that when the Son returns from the Father’s house, he appears sleep deprived. Mr. Standinsky also testified about an incident where the Father put the Son’s first ever picture featuring the words “I Love You” into the trunk of his car rather than acknowledging the Son’s efforts in that regard.
[ 23 ] In cross-examination, Mr. Standinsky confirmed that he had never seen the Father interact with the Son at bedtime or in other similar situations.
Ms. Amanda Graham
[ 24 ] Ms. Graham is the Mother’s sister. Prior to meeting the Father, Ms. Graham testified that the Mother was close with her family. Ms. Graham testified about an issue that arose at the parties’ wedding whereby the Father imposed his will upon the Mother during an argument with Ms. Graham, and Ms. Graham believes that the Father thus caused the Mother to become separated from her family.
[ 25 ] Despite this allegedly forced separation, Ms. Graham testified that both she and the Mother are stubborn and opinionated women, and that this trait has caused their relationship to have its ups and downs.
[ 26 ] Ms. Graham testified that she has observed the Father interact with the Son. Ms. Graham believes that the Father is not sufficiently affectionate with his Son.
[ 27 ] Ms. Graham indicated that the Mother has few supports in Sault Ste. Marie.
[ 28 ] In cross-examination, Ms. Graham agreed that the Mother lives with the maternal grandparents in Sault Ste. Marie and that the maternal grandparents are supportive of her sister.
[ 29 ] Ms. Graham confirmed in cross-examination that both she and her sister are strong-willed.
Mr. Donald Gillespie
[ 30 ] Mr. Gillespie testified that he is the Mother’s stepfather. He is a real estate broker who worked in Barrie. He has moved to Sault Ste. Marie. He testified that the Mother has a large and close family in the Barrie area. He testified that the Mother is a good parent.
[ 31 ] Mr. Gillespie testified that, during the marriage, he observed the Father become enraged with the Mother. Mr. Gillespie questioned whether the Father would engage in abusive control of the Mother as a result. The Mother changed during the marriage as she appeared directionless and without drive, as opposed to her previously motivated personality. Mr. Gillespie also observed emotional distance as between the Father and the Son.
[ 32 ] Post-separation, Mr. Gillespie testified that he has seen the Mother return to her typical self, with drive and energy. Mr. Gillespie and his wife moved to Sault Ste. Marie in 2016 for a brief period of time, but were forced to move back to Barrie as Mr. Gillespie’s wife (the Mother’s mother) could not find employment as a nurse despite many years of experience. Mr. Gillespie attributes this inability to work to an “outsider” status attributed to non-lifelong residents of Sault Ste. Marie by those who were born and raised here.
[ 33 ] The maternal grandparents moved back to Sault Ste. Marie in 2021 in order to help the Mother. The Mother and Son stay with the maternal grandparents. Mr. Gillespie testified that the Father continued to have emotional distance with the Son post-separation and that he has witnessed same. Mr. Gillespie testified that he is close with the Son. Mr. Gillespie described their relationship.
[ 34 ] Mr. Gillespie testified that, since moving to Sault Ste. Marie his home has been broken into, as has his garage and the Mother’s van. Mr. Gillespie gave considerable evidence in-chief regarding what he perceived to be the ills associated with living in Sault Ste. Marie (the lack of young people, the lack of doctors, the closed community, drugs, violence, etc.) as opposed to Barrie’s relative affluence, safety and comfort.
Ms. Deborah McGregor-Gillespie
[ 35 ] Ms. McGregor-Gillespie is the Mother’s mother. Ms. McGregor-Gillespie testified that the Mother is a good parent.
[ 36 ] During the course of the Mother and Father’s marriage, the Father’s parents consistently told the maternal grandmother that the Father’s parents loved the Mother.
[ 37 ] Ms. McGregor-Gillespie testified that the Father was not attentive to the Son during the marriage. She recalled an incident when the Father screamed at the Mother when the Son was crying.
[ 38 ] With regard to matters that arose post-separation, Ms. McGregor-Gillespie testified that the Father was controlling with his credit card. The Father would not let the Mother fix her vehicle, even though the Father is a mechanic and presumably had the parts and could do the labour himself.
[ 39 ] During the COVID pandemic, the Father controlled the Mother by not letting the maternal grandparents see the Son.
[ 40 ] Ms. McGregor-Gillespie also testified that the Son would often not want to go with the Father after “pick ups”.
[ 41 ] The maternal grandmother testified that she called the police on September 23, 2020 because the Son had fallen off the Father’s motorcycle. Given the child’s age, this was entirely inappropriate conduct.
[ 42 ] Ms. McGregor-Gillespie moved back to Sault Ste. Marie in 2021 to support her daughter. She resides with her husband at 49 Grandview Avenue, Sault Ste. Marie. She intends on returning to Simcoe. She does not want to retire in Sault Ste. Marie. The Mother cannot gain full-time employment in Sault Ste. Marie.
[ 43 ] Ms. McGregor-Gillespie testified in cross-examination that her daughter is a cancer survivor despite having been misdiagnosed initially.
Ms. Ginger Latoski
[ 44 ] Ms. Latoski testified that she is a friend of the Mother’s and that she met the Mother while both worked at LifeLabs in Sault Ste. Marie. Ms. Latoski testified that the Mother is an excellent parent.
[ 45 ] Ms. Latoski recalled an incident from 2019 when the Mother called Ms. Latoski to come over to the matrimonial home to discuss marital issues. Ms. Latoski noticed cameras in the house. Ms. Latoski was uncomfortable, and the Mother turned the cameras off. Shortly thereafter, the Father and paternal grandfather entered the house, took electronic equipment and departed. The Wi-Fi ceased to work.
[ 46 ] Ms. Latoski was uncomfortable in the situation but remained at the house nonetheless.
The Mother
Examination-in-Chief
[ 47 ] The Mother testified that she is originally from the Barrie area and moved to Sault Ste. Marie to be with the Father. She currently works as a laboratory technician at the Parry Sound Hospital and resides in the Parry Sound area. She has been in that location for just over one year. The Mother previously attended CTS Canadian Career College (“CTS”) as well as a college of aesthetics. The Mother is a qualified aesthetician.
[ 48 ] The Mother is a cancer survivor. She was ill for a year post-surgery, recuperating from the effects of a missed diagnosis. In that interim period, she was forced to declare bankruptcy.
[ 49 ] She met the Father in February of 2015. She moved to Sault Ste. Marie in May of 2015 to be with him. The Mother testified that her family was supportive of the move, although they did not want her to leave the Barrie area. Sault Ste. Marie was not the kind of community that she grew up in in that the Mother is not an outdoors person.
[ 50 ] Initially, the Mother lived with the Father’s family. The Father’s parents were warm and caring. Since separation, however, the Father’s parents have effectively terminated their relationship with the Mother.
[ 51 ] She moved to Sault Ste. Marie with fulltime employment at Identities Spa. She was earned $1300 every two weeks plus tips. She could not have male clients because servicing male clients would cause fights with the Father.
[ 52 ] The Mother and Father moved out of the Father’s parents’ residence on June 10, 2016 – the Father’s 30th birthday. The home is located at 79 Dacey Road, Sault Ste. Marie.
[ 53 ] The Mother gave testimony about a fight that occurred during the marriage whereby the couple attended a sex club in Toronto. She also testified that the Father would often scream at her such that she feared the Father.
[ 54 ] The Mother addressed an episode that occurred in August 2017 in New Liskeard when the Mother was drinking and the father was taking care of the infant Son. The pair had an argument and the Mother became very aggressive. The Father attempted to sleep in the car with the infant Son and, ultimately, the Mother was verbally abusive towards the Father. The Mother accepted responsibility for this incident, although she denied being physically violent.
[ 55 ] The Father was involved with pornography throughout the marriage, which caused the Mother to feel degraded.
[ 56 ] The Father consistently belittled the Mother by saying that she did not earn enough money and that she did not have a meaningful career.
[ 57 ] The Son was born on March 29, 2017. When he was born, the Mother made it her priority to be the best mother she could be. The Son had gas issues, like many children do, but was otherwise a healthy child. The mother took the full year-long maternity leave. For the first year of his life, the Mother was the primary caregiver. The Mother testified that when the Son was an infant, the Father did not assist particularly with caregiving but would rather lie on the couch, work on a car or watch pornography.
[ 58 ] The Mother recalled an incident when the Father became irate and broke down a door when the Mother and Son were in another area of the house. The Mother was terrified during that situation.
[ 59 ] The parties separated on July 20, 2018. From August 2108 to May 2019, the parties shared a 2-2-3 parenting schedule but the Son slept at the Mother’s home every night. The Mother felt that the Father’s mental health was such that he required supervised parenting time. The schedule was very hard because the Mother was in school for 3 hours per day [1].
[ 60 ] The police became involved when the Mother’s family were worried that the Son fell off the Father’s motorcycle. The Son came home with “road rash” and had “night terrors” about a motorcycle.
[ 61 ] The Mother addressed a recent situation whereby the Mother placed a tracking device in the Son’s backpack. The Mother testified that she did not place the device in the backpack so as to spy upon the Father when the Father had parenting time. Rather, the Mother intended the backpack to be used only when the Son was in her care. The tracking device was used simply to ensure that the Son was not kidnapped.
[ 62 ] There has been considerable difficulty over the last year in determining where the Son would go to school. The Father wanted the Son to attend Holy Cross because that is where the Father attended while St. Basil’s school is more centrally located and easier to access for the Mother.
[ 63 ] The Son’s doctor is in Barrie because there is a doctor shortage in Sault Ste. Marie. The family arranges doctor’s appointments around potential travel times. The Son has a dentist and optometrist in Sault Ste. Marie.
[ 64 ] The Mother and Father discussed the Father’s mental health extensively during the relationship. The Father had a suicide attempt several years ago and at the start of the marriage, there were few “bad days”. These “bad days” increased in number as the marriage progressed. The Father’s actions caused the Mother to question everything such that, by the end of the marriage, she wondered if she was going crazy as she was consistently accused of cheating by the Father.
[ 65 ] The Mother has commenced working with a therapist to address concerns about how best to parent her child. She speaks with the counsellor about her anger, as well as financial and other abuse she allegedly sustained at the hands of the Father.
[ 66 ] If her parents return to Barrie and/or Parry Sound, the Mother will be forced to live in Goulais River, or some other less expensive part of Sault Ste. Marie. The Mother would also have to get her manager in Parry Sound to develop a work schedule to accommodate pick-ups and drop-offs.
[ 67 ] The Mother ultimately left the aesthetics industry after attending school to become qualified as a laboratory technician. She worked in aesthetics from 2016 to 2020.
[ 68 ] From September 2020 to September 2021 she took a course and became a certified laboratory technician. She nearly lost her OSAP funding because the Father wrote a letter stating that the pair shared custody of the Son in a fifty-fifty arrangement. She was required to contact a lawyer to resolve the problem.
[ 69 ] She testified that she graduated from CTS in September of 2021, although she technically graduated this past summer [2]. She did a placement at the Sault Area Hospital (“SAH”) for 6 weeks. She has been applying to SAH since 2019 for full-time work. She volunteered at the hospital when she first moved to Sault Ste. Marie for about 6 months. In total, the Mother testified that she has sent 21 applications to SAH and has received only one response. She interviewed for a position, but was not successful, even though the Mother believes that she was the most qualified applicant. The Mother is the only person in her class with many years of experience. All her classmates have received interviews for other posts at SAH, but the Mother has not. The Mother stated that she was informed by management that SAH has “heard too much” about the Mother. The Mother believes that working at the SAH is no longer an option because SAH will not hire her. Accordingly, the Mother testified that she began to look for work in retail and in areas outside Sault Ste. Marie, such as Wawa, but that a 2-hour commute was not a realistic option.
[ 70 ] Accordingly, she returned to her hometown area and applied for four jobs. She was the successful candidate in all four competitions. She accepted a position at the Parry Sound Hospital where she is a medical laboratory technician. She earns approximately $33 to $38 per hour. She works 50 to 54 hours every second week. The week the Mother does not work, she spends in Sault Ste. Marie with her Son. The hospital has informed her that she can work full-time as soon as she would like to start such employment. Were she to work full-time at the Parry Sound Hospital, she would earn approximately $68,000 per annum plus benefits and a pension, not including any potential raises. Given the 4.5-hour drive from Parry Sound to Sault Ste. Marie, the current arrangement is difficult considering the strains that travel has upon the Mother.
[ 71 ] If the Son is permitted to relocate, the Mother proposes that the Father can receive parenting time during the majority of the summer months (6 weeks), most of the March Break (9 of 14 days), Christmas (with the Mother getting the first and last two days of each Christmas Break) and long weekends. There would also be monthly parenting time. If the Son wants to visit the Father, the Mother will accommodate same.
[ 72 ] The Mother testified that moving the Son out of Sault Ste. Marie is in his best interests in that the Mother has a large family in the Parry Sound/Barrie area. The Son has a doctor in Barrie. The Son is in proximity to Toronto and cultural opportunities. The Mother testified that she needs to be near her supports in order for her to meet the Son’s needs most effectively.
Cross-Examination
[ 73 ] Prior to meeting the Father, the Mother was residing with her parents because she was recovering from cancer.
[ 74 ] The couple purchased the matrimonial home in June 2016 and the home had a room where the Mother could see clients. The Father forbade the Mother from seeing male clients. Security cameras were put up in the home.
[ 75 ] The Mother was taken to text messages regarding the New Liskeard incident and the Mother accepted that she was intoxicated during the incident and that her temper was bad on that occasion. She indicated that she got counselling for her temperament issues, amongst other things.
[ 76 ] After the August 2018 separation, she remained in the matrimonial home until approximately July 15, 2019. Initially, the Mother felt that the Father’s volatility was such that any parenting time the Father had ought to be supervised, hence the parenting time schedule.
[ 77 ] With respect to her lack of supports in Sault Ste. Marie, the Mother testified that she had a relationship with Mr. Stadinski for approximately 13 months, but that relationship is now over. Her parents reside in Sault Ste. Marie but they intend on returning to the Barrie area.
[ 78 ] The Mother testified that she travelled to Miami during the marriage to have breast augmentation surgery. The Mother testified that she did not want breasts the size that she now has, but that she went along with the surgery to placate the Father.
[ 79 ] With respect to the tracking device, the Mother testified that she made a simple mistake in that the backpack was not supposed to go to the Father’s house.
[ 80 ] With respect to the Son, the Mother testified that he has no special needs and that his doctor in Barrie can and will do virtual appointments.
[ 81 ] Currently, the Mother resides in a room of a house when she is in Parry Sound. She rents that room, although the other rooms on the floor are vacant. This effectively gives the Mother an entire floor, although it is possible that the other room on said floor will be rented out at some point.
[ 82 ] If the Son were to move to Parry Sound, the plan is to purchase a home in which the two of them can reside, potentially with the maternal grandparents. The details of this plan are not set.
Evidence Called by the Father
Ms. Carrie Wilton
[ 83 ] Ms. Wilton testified that she is employed by the Office of the Children’s Lawyer (“OCL”) as a clinician. Ms. Wilton testified that she prepared a report and, within same, she opined that both parties presented as fit parents.
[ 84 ] Ms. Wilton testified that the ideal scenario would be for both parents to establish lives in Sault Ste. Marie and for the Mother to secure a good job in this community.
[ 85 ] Ms. Wilton testified that none of the abuse described by either parent was ever corroborated or verified.
[ 86 ] In cross-examination, Ms. Wilton advised that she was aware of the Father’s mental health episodes in 2013 and 2017, the latter consisting of the Father having issues at work and attending at the hospital to ensure that matters did not spin out of control. The materials reviewed by Ms. Wilton also provided that the Father was diagnosed with an adjustment disorder in 2013.
Mr. Bernard Malinowski
[ 87 ] Mr. Malinowski testified that he is the Father’s father. He looks after the Son when the Father drops him off prior to school and after school. There are no problems with caring for the Son.
[ 88 ] Mr. Malinowski recalled an event in the summer of 2017 in Englehart, Ontario (which is near New Liskeard) whereby the Mother was very aggressive with the Father when the latter held the Son.
[ 89 ] Mr. Malinowski also testified that he and the Father went to the matrimonial home on one occasion to get some of the Father’s belongings. The Mother was there with her friend and she was belligerent, not permitting the Father to leave via the main stairs. The Father was shaking when he left.
[ 90 ] Between August 2018 and May 2019, the Father’s parents rarely saw the Son. They asked to see the Son regularly, but they were typically denied.
[ 91 ] In cross-examination, Mr. Malinowski indicated that he recalled going into the matrimonial home one day to retrieve cameras and equipment. He did not recall if the Wi-Fi was disconnected on that date.
[ 92 ] Since separation, Mr. Malinowski has not spoken with the Mother.
Ms. Gabriella Malinowski
[ 93 ] Ms. Malinowski is the Father’s mother. She described the Englehart/New Liskeard incident, as well as the fact that the Father moved back in with his parents’ post-separation.
[ 94 ] When the Son was young, the Father’s parents did not see much of the Son because of the Mother’s refusal to permit same.
[ 95 ] In cross-examination, Ms. Malinowski testified that she has not spoken with the Mother because she does not want to cause any issues.
Ms. Terri Miller
[ 96 ] Ms. Miller testified that she is the Father’s friend and that they work together.
[ 97 ] Ms. Miller testified that the Father is a very attentive parent who communicates well with the Son and takes excellent care of him.
Ms. Miranda Hogan
[ 98 ] Ms. Hogan testified that she is the Father’s former long-term partner. She testified that the Father is an excellent parent and that he is attentive to the Son’s wants and needs.
[ 99 ] Ms. Hogan testified that Ms. Hogan and the Father reconnected while the Father and Mother were married and that the Mother also appeared to be a very attentive parent.
[ 100 ] Ms. Hogan also testified about certain sexual proclivities that the Mother and Father shared.
Mr. Anthony Parr
[ 101 ] Mr. Parr testified that he knows the parties and that he considers the Father to be a friend. Mr. Parr has children approximately the same age as the Son. Mr. Parr considers the Father to be a good parent in that he is responsible, attentive and communicative.
Ms. Valerie Malinowski
[ 102 ] Ms. Malinowski testified that she is the Father’s sister-in-law and that she has observed the Father to be an excellent parent at family outings.
[ 103 ] In cross-examination, Ms. Malinowski testified that she recalled the New Liskeard incident vaguely as she had been drinking, but that the Mother apologized profusely after the incident.
Ms. Katy Cundari
[ 104 ] Ms. Cundari testified that she is the Father’s friend and that she has observed the Father interact extensively with the Son. She testified that the Father is a highly-involved parent and that he is attentive to the Son’s needs.
[ 105 ] Ms. Cundari testified that she has witnessed the Mother interact with the Son over FaceTime and that the Mother will cut the Son off rather than allow the Son to use his words and to express himself fully.
Ms. Meghan Billingsley
[ 106 ] Ms. Billingsley is a friend of the Father’s and she testified that the Father is a good parent and is attentive to the Son’s needs.
Ms. Melissa Malinowski
[ 107 ] Ms. Malinowski testified that she is the Father’s sister-in-law and has known the Father for approximately 15 years. She has observed the Father to be an exemplary parent who plans big birthday parties and is attentive to the needs of the Son.
Ms. Elizabeth Malinowski
[ 108 ] Ms. Malinowski is the Father’s aunt. She lives in Brampton, Ontario. She recalled an incident when the Father came to visit her in 2021 with the Son. The Father was very attentive to the Son’s needs at that time.
The Father
Examination-in-Chief
[ 109 ] The Father met the Mother on Valentine’s Day in 2015. He went to meet her for the first time in Southern Ontario on February 21, 2015. Prior to that point, he had been living in Brampton, Ontario for nine months before returning to Sault Ste. Marie. He currently works at a local car dealership in the service department.
[ 110 ] The Father testified that the Mother came to visit the Father in the spring of 2015, and that she “fell in love with the city”. She decided to relocate. They lived in his parents’ basement and they purchased their own home in July of 2016.
[ 111 ] The Son was born on March 29, 2017. The Mother took the entire year-long maternity leave but the Father testified that he attempted to be an attentive parent from the start, trying to assist the Mother with her breastfeeding issues to the extent possible, waking up with the child and other similar activities. Rather than working together, the Father testified that the mother took control of the parenting and that the Father engaged in those parenting activities that the mother permitted. The Father testified that he tried to help the best he could.
[ 112 ] The Father testified that there were issues with Ms. Kessler’s daycare involving such things such as tax receipts and the like.
[ 113 ] The Father described the trip to Englehart where the Mother had been drinking and became very aggressive with the Father. The Father recorded the incident on his phone. The Father’s recording was filed with the court. It corroborated the fact that the Mother was both intoxicated and very aggressive.
[ 114 ] The parties separated on July 20, 2018. The parties shared a 2/2/3 parenting schedule but the Father did not have overnights with his Son other than at Christmas. Overnights began happening in August 2018, but not on a regular schedule. This lack of parenting time changed in May of 2019 [3].
[ 115 ] While the Mother was in the matrimonial home, the Father paid the mortgage and the utilities. He paid child support from the outset.
[ 116 ] The Son has seen his doctor two or three times since the start of the COVID pandemic.
[ 117 ] The Father denied enrolling the Son in Holy Cross unilaterally. Rather, he testified that he tried to work with the Mother on this front but that she was hesitant in having the Son register for school at all.
[ 118 ] The Father described a variety of playdates and birthday parties that he has organized for the Son after the parties separated. The birthday parties in particular appeared to be extensive undertakings involving setting up the Father’s house to replicate themes.
[ 119 ] The Father also described his parenting whereby he spends considerable time with the Son. The Father disciplines the Son by giving him timeouts.
[ 120 ] The Father also described the extra-curricular activities in which the child is enrolled.
[ 121 ] The Father testified that he found a tracking device in the Son’s backpack. This caused the Father’s anxiety levels to heighten considerably.
[ 122 ] The Father testified about a 2013 incident involving his mental health. It was a hard time in his life in that a prior relationship had ended. He did not want to kill himself, but he passed out drinking with sleeping pills on the floor. The doctor with whom he met gave the Father all the tools he needed to cope with life and the Father testified that he will never go down that road again as his Son needs him.
[ 123 ] The Father testified about the 2017 mental health incident whereby he dealt with a stressful situation at work. The Father took a stress leave from work and the underlying work issue was addressed by management. There was no risk of self-harm during this incident.
[ 124 ] The Father sees a counsellor regularly, although the Father testified that he does not struggle with mental health issues. He speaks with this counsellor about issues flowing from the divorce. The Father discussed his proclivity towards pornography with the counsellor who advised the Father that it is not an addiction, per se.
[ 125 ] If the Mother’s application is denied, the Father will continue to reside in the former matrimonial home. A normal day would see the Father take the Son to the paternal grandparents’ house before school. The bus picks up, and drops off, the Son at that location. The Father picks the Son up from his parents’ after school.
[ 126 ] The Father testified that, if the Son were to relocate to Parry Sound, it would be devastating to the Father and to the Son.
[ 127 ] The Father denied ever allowing the Son to ride on a motorcycle.
[ 128 ] The Father also denied ever hitting the Son.
[ 129 ] The Father described the incident where he and his father went to the matrimonial home and the Wi-Fi stopped working. He went to the house to take the security cameras but he inadvertently took the Wi-Fi router. The Father testified that the Mother was standing at the top of the stairs and would not let him leave via the main exit.
[ 130 ] The Father acknowledged that he occasionally refused to take the Son, but that such refusals were only occasional.
[ 131 ] The Father denied controlling the Mother financially by cutting off utilities or any other such problem.
[ 132 ] With respect to Ms. Graham’s evidence about the Father’s alleged control over the Mother during the argument at the wedding, the Father testified that he was only standing up for his wife relative to Ms. Graham’s overbearing tendencies.
[ 133 ] The Father denied that he impeded the Mother’s ability to see her family. The Father testified that he, in fact, encouraged same. Further, the Father denied that the Mother ceased having male clients due to his jealousy. Rather, the Father testified that it was a mutual decision due to the Mother’s previous negative experience with a male client. The Father also testified that he did not “spy” on the Mother using cameras in that both parties had access to the security cameras in the house.
[ 134 ] With regard to the OSAP letter, the Father testified that he was asked to respond to a letter that had vague details. Accordingly, the Father indicated in his response that the parties shared 50/50 parenting time.
[ 135 ] The Father testified that, during the marriage, both parties agreed that the Mother would get breast augmentation surgery in Miami.
[ 136 ] The Father reviewed text messages he sent to the Mother during the separation and he acknowledged that he used harsh, even abusive, language towards the Mother. The Father testified that he regrets said language. The Father also acknowledged an incident during the marriage where the Mother and Father got into a verbal argument, and the Father got angry and broke a door handle. The Father testified that he has apologized for the incident.
Cross-Examination
[ 137 ] The Father stated that his Son fell off his bed and got road rash, rather than by being on a motorcycle.
[ 138 ] The Father agreed that he had a picture of his Son on his Tinder profile, which is a dating website. The Father disagreed that this was an inappropriate use of the Son’s image.
[ 139 ] The Father was taken to a portion of the OCL Report that indicated: The father said that he did not simply cut off the utilities. He had been paying the mortgage and all of the bills and she was refusing to leave the home. He had sent a letter telling her that as of a certain date, he was no longer paying the utilities for the home because she was not willing to compromise. The father has always paid the mother child support, prior to even going to court.
[ 140 ] The Father equivocated in his testimony about this apparent inconsistency with his examination in-chief regarding the utilities but then stated that at no point were the utilities cut off.
[ 141 ] The Father also equivocated as to whether he was able to repair the Mother’s van. He testified that he was out of town when the heat went off in the van and that he did not know why the Mother could not get the vehicle fixed. Of note, this event occurred at a time when the parties’ finances were strained.
Re-Examination
[ 142 ] The Father testified that he deleted his Son’s photo from the Tinder account so as to avoid conflict with the Mother.
POSITION OF THE PARTIES
[ 143 ] The Mother submits that relocating the Son to Parry Sound will be in his best interests. Were the Son to move to Parry Sound, the Mother would be close to her support network which would help her be a better parent. The lack of travel to Sault Ste. Marie would also enable her to better perform her parenting duties. The Mother could accept the full-time position at the Parry Sound Hospital which would also inure to the Son’s benefit in that the two would be financially secure. The Son would also be able to be close to his maternal family which would benefit the Son as well. These benefits of relocation would thus outweigh any costs associated therewith because, in part, the Mother would be generous with the Father’s parenting time.
[ 144 ] The Father submits that Son’s life in Sault Ste. Marie is sufficiently positive such that it is not in the Son’s best interests to relocate to Parry Sound. The Son would lose the bonds of affection that exist as between the Son and the Father, as well as those that exist as between the Son and the paternal grandparents. The Son has a good life in Sault Ste. Marie whereby he sees both parents regularly and he has a stable environment from which to blossom.
ANALYSIS
Best Interests of the Child Generally
[ 145 ] Section 24 of the Children’s Law Reform Act describes the primacy of the “best interests of the child”:
Best interests of the child
24 (1) In making a parenting order or contact order with respect to a child, the court shall only take into account the best interests of the child in accordance with this section. 2020, c. 25, Sched. 1, s. 6.
[ 146 ] In determining the best interests of the child, section 24(2) of the Children’s Law Reform Act describes those areas that must take paramountcy:
Primary consideration
(2) In determining the best interests of a child, the court shall consider all factors related to the circumstances of the child, and, in doing so, shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being. 2020, c. 25, Sched. 1, s. 6.
[ 147 ] Sections 24(3) of the CLRA describes specific factors the court ought to consider when determining the “circumstances of the child” as prescribed in section 24(2) of the CLRA:
Factors
(3) Factors related to the circumstances of a child include,
(a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;
(b) the nature and strength of the child’s relationship with each parent, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;
(c) each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent;
(d) the history of care of the child;
(e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;
(f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;
(g) any plans for the child’s care;
(h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;
(i) the ability and willingness of each person in respect of whom the order would apply to communicate and co-operate, in particular with one another, on matters affecting the child;
(j) any family violence and its impact on, among other things,
(i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and
(ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to co-operate on issues affecting the child; and
(k) any civil or criminal proceeding, order, condition or measure that is relevant to the safety, security and well-being of the child. 2020, c. 25, Sched. 1, s. 6.
[ 148 ] Section 24(4) of the CLRA describes the analysis to be undertaken when examining factors related to family violence and its impact upon the best interests of the child:
Factors relating to family violence
(4) In considering the impact of any family violence under clause (3) (j), the court shall take into account,
(a) the nature, seriousness and frequency of the family violence and when it occurred;
(b) whether there is a pattern of coercive and controlling behaviour in relation to a family member;
(c) whether the family violence is directed toward the child or whether the child is directly or indirectly exposed to the family violence;
(d) the physical, emotional and psychological harm or risk of harm to the child;
(e) any compromise to the safety of the child or other family member;
(f) whether the family violence causes the child or other family member to fear for their own safety or for that of another person;
(g) any steps taken by the person engaging in the family violence to prevent further family violence from occurring and improve the person’s ability to care for and meet the needs of the child; and
(h) any other relevant factor. 2020, c. 25, Sched. 1, s. 6.
[ 149 ] Section 39.4 of the Children’s Law Reform Act deals with relocation of children and the test to be applied when determining whether said relocation is in the child’s best interests. Section 39.4(3) outlines the test to be applied in such a hearing:
Best interests of the child
(3) In determining whether to authorize the relocation of a child, the court shall take into account the best interests of the child in accordance with section 24, as well as,
(a) the reasons for the relocation;
(b) the impact of the relocation on the child;
(c) the amount of time spent with the child by each person who has parenting time or 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;
(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;
(e) the existence of an order, family arbitration award or agreement that specifies the geographic area in which the child is to reside;
(f) the reasonableness of the proposal of the person who intends to relocate the child to vary the exercise of decision-making responsibility, parenting time or contact, taking into consideration, among other things, the location of the new residence and the travel expenses; and
(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. 2020, c. 25, Sched. 1, s. 15.
[ 150 ] Section 39.4(4) of the Children’s Law Reform Act describes that factor which shall not be considered in determining whether to permit the child’s relocation:
Factor not to be considered
(4) In determining whether to authorize a relocation of the child, the court shall not consider whether, if the child’s relocation were to be prohibited, the person who intends to relocate the child would relocate without the child or not relocate. 2020, c. 25, Sched. 1, s. 15.
[ 151 ] While the legislative tests for relocating a child were changed in the fairly recent past, it has long been held by the courts that, when dealing with the best interests of the child in relocation cases, the specific circumstances of a particular matter must be determined on a “case-by-case” basis: Gordon v. Goertz, [1996] S.C.J. No. 52.
Burden of Proof
[ 152 ] Sections 39.4(5) to 39.4(7) discuss the burden of proof that is placed upon the parties in relevant circumstances:
Burden of proof
(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. 2020, c. 25, Sched. 1, s. 15.
(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. 2020, c. 25, Sched. 1, s. 15.
(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. 2020, c. 25, Sched. 1, s. 15.
[ 153 ] Given the fact that the Son appears to be on a “week about” parenting schedule, s. 39.4(5) applies and the Mother has the burden of proving that relocation is in the Son’s best interests. I note, however, that the burden of proof makes no difference in this case because the outcome would have been the same irrespective of the burden.
Application to The Facts of This Case
Pornography and Tinder
[ 154 ] The Mother submitted through counsel that the Father’s use of pornography and the Son’s picture on the Father’s Tinder page are issues that I ought to consider when determining the Son’s best interests.
[ 155 ] The Father’s use of pornography causes me some concern but does not materially affect my analysis. The use of pornography can undoubtedly affect children if they accidently come across websites or other manifestations of this interest. There is no evidence to suggest that the Son ever uses the Father’s electronic equipment. This risk, therefore, is mitigated greatly. The Father also testified that he has spoken with a medical practitioner in this regard and that his usage of pornography is not an addiction. The Mother does not appear to have shared her concern with the OCL which causes me to question whether she believes that it is a material concern. Absent evidence that the Father’s use of pornography could be seen or accessed by the Son, or that the Father’s use thereof could otherwise impact the Son, the Father’s use of pornography does not appear to materially affect his parenting and, as such, this concern is to be given little weight. I caution the Father, however, to consider ceasing his use of pornography so as to negate the risk entirely.
[ 156 ] I have a somewhat different view of the Father’s Tinder account where he put his Son’s picture on display. It is clear that the parties’ personal, dating and sex lives exist outside what would have been considered the norm by 1950’s “acceptable for television” standards. Nonetheless, their private lives play no role in my decision regarding the best interests of their child unless their private decisions affect the child (either directly or indirectly). The Tinder decision does, to my mind, have that potential. Tinder seems to be used by adults to meet other adults for presumably romantic relationships and the like. Putting the child’s photo on Tinder is an invitation to others to involve the child in the Father’s romantic life which, depending upon the number and nature of the partners the Father chooses to have and their involvement with the Son, could create emotional instability for the child. With that stated, however, I have no evidence that the Father has introduced the child to any new partners and the father testified that the Son’s photo is no longer associated with his Tinder account. As a result, this concern is to be given little weight.
The Father’s Mental Health
[ 157 ] The Mother called a number of witnesses who commented upon the Father’s mental health issues from over a decade ago. One can readily imagine that this kind of evidence might be relevant to the Father’s ability to parent his Son, assuming that the problems continue to exist, or are in remission but are capable of being triggered.
[ 158 ] With respect to the Father’s mental health issues, I am satisfied that he has same under control. While he appears to have had a suicide attempt years ago (he denies same but his denial is belied by the facts and other evidence), I have no reason to believe that his mental health is such that he is liable to harm himself or his Son either physically, emotionally or psychologically. The Father testified that he sees a counsellor regularly. The Father’s witnesses all testified that his mental health is good. I note that the Father and the Mother are involved in a high-tension, highly acrimonious break-up. Despite same, the Father’s mental health has not suffered during the process. The Father testified that he has a number of supports in Sault Ste. Marie and that these supports, in combination with his continued attention to his mental health, have made him able to take care of his Son safely and effectively. The OCL clinician found the Father to be a fit parent. Therefore, I find that the Father’s mental health is not a material factor to my decision since the Father has taken effective steps to ensure that his mental health remains robust.
Abuse and Control
[ 159 ] The Mother called evidence about attending sex clubs, cosmetic surgery and other sexual activities that occurred during the course of the marriage. The evidence presumably was relevant to the Father’s alleged control of the Mother. The Mother testified, however, that she willingly agreed to the medical procedures and that she wanted to attend the sex clubs, although she did so begrudgingly towards the end of the marriage. As such, the Mother’s conscious and voluntary decisions negate any inference that the surgery or the attendance at the sex clubs in and of themselves is tantamount to de facto control by the Father.
[ 160 ] With that being stated, however, both parties called a significant amount of evidence regarding marital misconduct by the other. Both parties attempted to indicate that the other was controlling and abusive. Accordingly, the parties attempted to show that the allegedly aggrieving party’s conduct negatively impacts the “best interests of the child” analysis. [4]
[ 161 ] With respect to the Mother’s evidence of the Father’s controlling behavior, the Mother testified that the Father would attempt to control her by not letting her see certain clients, monitor her via camera, control her finances and such. The Mother’s sister corroborated the Mother’s testimony about a fight whereby the Father exerted his control over the Mother and her sister. The Mother also produced a number of texts from the Father that clearly demonstrate that the Father engaged in controlling conduct. He used inappropriate and derogatory terms and other inflammatory language. The Father tried to minimize the impact of these communications in his testimony by indicating that he was wrong and that he wishes that he had not behaved as he did. While I accept that the Father is remorseful, the text messages are clear that the Father engaged in controlling behaviour post-separation. This is especially the case when I consider that the Father had cameras installed inside the matrimonial home during the marriage. The Father’s attempt to explanations minimize the intrusiveness of his conduct. I have little regard for those explanations. I also note that the Father broke a door handle in frustration with the Mother which speaks to the Father’s anger and animus. As such, I find that the Father engaged in controlling behavior towards the Mother both during and shortly after the marriage.
[ 162 ] The Mother also engaged in controlling and abusive behavior towards the Father. The Father testified that the Mother would be aggressive towards him and order him around when it came to parenting. This evidence is corroborated by the Mother’s sister who testified, amongst other things, that the Mother was a strong person who was unafraid to voice opinions. The Father’s parents also testified that they witnessed the Mother engage in inappropriate behaviour towards the Father. Most importantly, the Father produced a video he took of the Mother who, when she was inebriated at the Father’s family gathering in New Liskeard, engaged in violent, abusive and controlling behavior. I note that, while the Father is much larger than the Mother, she was nonetheless extremely aggressive in the video and that the Father’s voice in the video seemed to suggest legitimate fear. This accumulation of evidence makes clear to me that the Mother also engaged in abusive and controlling conduct towards the Father. Put another way, the relationship was toxic and both parties undoubtedly behaved in ways that they now regret.
[ 163 ] As regards this toxicity’s impact upon this case, I note the following. First, the abuse all appears to have occurred during the relationship or shortly thereafter. The parties seem to be putting their best foot forward in co-parenting their Son at this juncture, despite the continued negative animus as between them. Further, the OCL Report indicates that both parties are fit parents and that the OCL clinician has no concerns with respect to either party’s ability to parent the children.
[ 164 ] Given the foregoing, the allegations of family violence are not material to my analysis since I am satisfied that the abuse in question was directed at the other parent and not the child, and that the abuse terminated some time ago when the child was quite young. The impact upon the Son would have been minimal. Therefore, the abusive conduct is not a relevant consideration to relocation since it does not impact the “best interests of the child”.
Fitness of the Parties
[ 165 ] The parties appeared to be good people who, for the most part, attempted to answer questions honestly. Neither party appeared to be dishonest. Equally, both parties impressed me as individuals who genuinely had the best interests of the Son in mind. Both parties called witnesses who supported that position.
[ 166 ] Both parties also had disparaging things to say about the other. Both parties suggested that the other was not as good a parent as that parent was attempting to portray. Both parties pointed to specific and general instances where the other parent failed in some regard. Both parties attempted to minimize their own failings, while underscoring the failings of the other. The Mother, in particular, suggested that the Father was not a fit parent.
[ 167 ] Although it appears to me that both parties were somewhat less than forthright about actual events, none of this “putting one’s best foot forward” is particularly salient in this case in that neither party’s evidence caused me to believe that either parent was ineffective. For example, I accept that the Father does not keep the Son up late or hit the Son, and I accept that it is unlikely that the Son was riding a motorcycle (although the Father’s explanation for the Son’s injuries is curious). The Father’s evidence was persuasive in this regard, especially since it was corroborated by numerous witnesses and the OCL who all indicated that the Father was an acceptable parent. The Father devotes time, energy and resources to ensuring that his Son is cared for, is loved, has stability and receives positive stimulation. The Mother does likewise and, on top of that, works a demanding schedule in a city far away to ensure that the Son has the financial means to have a good life. In this instance, I am not particularly troubled by the evidence of potential parental miscues by either parent since both parents presented well before the court and the OCL corroborated that both parents were fit for the task at hand. Good parents can make errors and, although I do not know if either parent committed any of the errors attributed to them, I am satisfied that a minimal number of parental mistakes (assuming that said mistakes do not cause meaningful trauma) does not constitute general bad parenting. I therefore accept the evidence of each party, their supporting witnesses and the OCL, and hereby find that both parents are fit parents.
A Comparison of the Plans
[ 168 ] Relocation cases cause a jurist to examine competing plans that are rooted within a child’s community. Implicit in this analysis is an examination of the respective communities. I heard general evidence from the Mother’s witnesses about the lifestyles and challenges associated with living in Sault Ste. Marie. The Mother called this evidence to suggest that living in Barrie or Parry Sound is generally preferable to living in Sault Ste. Marie.
[ 169 ] The Mother called evidence about the general state of Sault Ste. Marie including the prevalence of drugs, and other forms of social blight. I accept the Mother’s evidence to a limited degree. I think it is almost trite to suggest that all cities have good areas, and bad areas, and that certain cities have better general economic outlooks than others. I previously found that Sault Ste. Marie is in the midst of an opioid epidemic: R. v. Elie, 2019 ONSC 2248. I also take judicial notice, as per R. v. Find, 2001 SCC 32, that Barrie is now effectively a suburb of Toronto whereby many people work in downtown Toronto, but reside in Barrie. Barrie has considerably more economic activity as a result. Further, I am also willing to take judicial notice that Parry Sound is two or three hours north of Barrie and is “cottage country” for the Toronto area. Parry Sound therefore has a number of summer homes and possesses meaningful economic activity, at least in the summer. I do not have any evidence before me that is capable of admission beyond these very general points.
[ 170 ] Mr. Gillespie’s evidence regarding his experience in Sault Ste. Marie is limited to his personal experience. I note that Mr. Gillespie did not testify that his residence at 49 Grandview Avenue is in a “run-down” part of Sault Ste. Marie. Nor is this address in a well-known area of the city that permits me to take judicial notice of problems located therein. Accordingly, Mr. Gillespie’s evidence regarding Sault Ste. Marie is limited in its impact. Put another way, it appears that the Son is in a stable environment when he is at Mr. Gillespie’s residence and that the unfortunate events described by Mr. Gillespie (the break-ins) are simply that: unfortunate events.
[ 171 ] Much like her evidence regarding the Father’s mental health, the Mother’s evidence regarding Sault Ste. Marie and Parry Sound does not go far enough so as to affect the decision being made in this case. I have no evidence to suggest that the Father resides in an inherently dangerous part of Sault Ste. Marie, nor do I have any evidence that the Mother or the maternal grandparents reside in an unpleasant area of the city. Further, I have no evidence to suggest that the areas where the Mother may move in Parry Sound are inherently advantageous. The evidence from the Mother regarding Sault Ste. Marie and Parry Sound is, therefore, not particularly probative of the issues to be decided.
[ 172 ] With respect to her plan of care, the Mother’s plan appears to be reasonable. She testified, and I accept, that she has full-time employment lined up at the Parry Sound Hospital. The Father submits that there is no confirmatory evidence in this regard. While I accept the Father’s submission, I have no basis to find that the Mother is being less than reliable or forthright in her testimony. Accordingly, I am satisfied that she has a full-time, permanent position available at the Parry Sound Hospital that will pay her approximately $65,000 or $70,000 per annum.
[ 173 ] I also accept that the position will largely be “steady shift work” as was described in the Mother’s testimony. She will have a fairly stable work schedule that will enable her to see her Son consistently and in hours that will generally permit maximum parenting time.
[ 174 ] When the Mother is not able to be with her Son, I am satisfied that her parents will fill the gaps and watch the boy. They testified that they do not wish to remain in Sault Ste. Marie, and I accept that if the Mother is permitted to move the child to the Parry Sound area, they will purchase a house in proximity to the Mother’s work. This will ensure that the Mother can work within a reasonable commute and that the child can attend school in a suitable area.
[ 175 ] The Father, through counsel, submitted that there are considerable portions of the Mother’s plan that are not yet confirmed. Specifically, the Mother currently rents a room in a house that could yet become more of a “boarding house” situation if the other bedroom were rented out. Also, the Mother’s parents have not secured a residence in the Parry Sound / Barrie area such that there are no guarantees that the Mother and the child will have reasonable commutes. The Mother and Son could therefore live in the boarding house for a period of time. While I accept these submissions, I am also mindful of the fact that the Mother’s parents purchased a home in Sault Ste. Marie in order to assist her with parenting duties. This was no small undertaking on their part and speaks to the undoubted commitment shown by the Mother’s parents. Accordingly, when the Mother and her parents testified that they would do that which was necessary to ensure a good life for the Son in Parry Sound and/or Barrie, I have no hesitation in finding that they are likely to be able to achieve such a goal.
[ 176 ] With that being stated, however, the Father’s submission regarding the uncertainty in the Mother’s plan does bear some weight upon the analysis. Given that the Mother will be working in Parry Sound, and given that the maternal grandparents are from the Barrie area, it is clear that the Mother or the Son may have to commute some reasonable distance every day to get to school or work. I accept that the Son will be closer to his doctor, although it would appear that he may not be in the same community as his doctor (Parry Sound versus Barrie). I also accept that the Son would be better able to access some cultural activities that occur in the Toronto area, although I place limited weight upon this phenomenon given the amount of money the Mother would earn while working full-time in Parry Sound, the realities associated with travelling with a five-year-old and the not inconsiderable distance between Parry Sound and Toronto.
[ 177 ] The Mother did not provide any evidence regarding the Son’s potential school in Parry Sound, his potential extra-curricular activities or other such things. One would normally expect to have this kind of evidence before the court. Nonetheless, and given my previous findings about the Mother’s attentiveness and the parental support she receives, I am confident that the child will be enrolled in a good school and in acceptable extra-curricular activities and will see his maternal family regularly.
[ 178 ] In all, I find that were the child to move to Parry Sound, he would have a good life filled with positive stimuli although it would appear that some aspects of the Mother’s as yet uncertain plan could prove somewhat difficult.
[ 179 ] That finding, however, does not end the inquiry.
[ 180 ] Rather, I must determine whether relocating the Son to Parry Sound would be in his best interests.
[ 181 ] I am not so satisfied.
[ 182 ] It is clear that the child currently enjoys a good life in Sault Ste. Marie. When the Son is living with the Father, the Father is attentive and ensures that the child receives strong paternal connection. I am satisfied that the Father and Son play together, love one another and engage in positive social interactions with each other. Further, I am also satisfied that the plan of care that the Father has developed with his parents ensures that his Son maintains strong connections with the paternal grandparents. This also contributes to the Son’s emotional stability and provides for a rich life.
[ 183 ] The Son has the benefit of seeing his Mother on a week-about basis. This regular parenting time ensures that the bonds as between the Mother and Son remain strong. The same can be said for the Son’s emotional bonds with the maternal grandparents who, until now, have seen the Son on a regular basis. Assuming the maternal grandparents move away to be closer to their Barrie family and assuming the Son remains in Sault Ste. Marie, the Son’s bond with the maternal grandparents will diminish however the Son will still have strong ties to his Mother.
[ 184 ] The Son also has ties to the local community in that he has friends, a network of people (largely through the Father), and involvement in activities. The Son is only five years old so his interest in and attachment to the community, his friends, his school and activities are limited, but there is no evidence to suggest that the Son’s experiences in this regard are anything other than positive. Ergo, some limited weight must be attributed to this phenomenon.
[ 185 ] While I have some concern that the Son’s doctor is located many hours away, much of this concern is alleviated by the doctor’s willingness to conduct video appointments.
[ 186 ] Therefore, I find that the Son’s life in Sault Ste. Marie is fulfilling and positive.
[ 187 ] The Mother’s need to move to be closer to her supports is a relevant consideration. She described Sault Ste. Marie as a community where newcomers have difficulty fitting in. She indicated that she cannot find employment at SAH and that she has not been able to find suitable work in her field. I accept that testimony. I also accept that, were the Mother to move to Parry Sound, she would be closer to her family, friends and supports that would make her a better mother. This phenomenon would ultimately inure to the benefit of her Son. Put another way, the Son’s relocation will increase the Mother’s happiness and stability which will undoubtedly benefit her son.
[ 188 ] Counterbalancing this benefit, however, is the fact that the Son would not see his Father on a steady basis were he to be relocated. The Mother submitted, and I accept, that were the Son to relocate, she is willing to be generous with parenting time for the Father. While that may be the case, there is no doubt that not seeing a parent for an extended time erodes the bonds of affection that children feel for their parents. Moving the Son to Parry Sound would undoubtedly cause a separation as between the Son and the Father and I have no doubt that such a phenomenon would be to the child’s considerable detriment.
[ 189 ] Equally, the Son would not be able to see his paternal grandparents with any regularity, which would also be a meaningful detriment to the Son. It is clear that the Son and the paternal grandparents have real bonds of affection and that relocating the Son to Parry Sound would effectively sever those emotional ties.
[ 190 ] The emotional damage of relocation is a powerful factor to be considered and it must be afforded tremendous weight.
[ 191 ] Accordingly, relocating the Son is not in his best interests because the child currently sees both his parents on a “week about” basis, although I accept that the status quo is a challenge for the Mother given her employment in Parry Sound. The challenge will undoubtedly heighten if the maternal grandparents move to Barrie, thereby causing the Mother to have to either find suitable employment in Sault Ste. Marie (which may prove to be impossible) or to continue to work on a week-on, week-off basis in Parry Sound. Nonetheless, the status quo affords the Son maximum parental love, affection and relative stability without incurring the loss of affection that would be associated with only seeing his Father periodically. I feel for the Mother who is required to perform yeoman’s service with minimal support in order to ensure that she earns enough money to care for her Son. Nonetheless, and despite same, I am satisfied that remaining in Sault Ste. Marie is in her Son’s best interests because it gives the Son maximum exposure to both parents and provides emotional and financial stability for the youngster. Given the fact that the Son would likely enjoy similar lifestyles and similar stability in Parry Sound and Sault Ste. Marie, there appears to be no benefit that could adequately compensates for the Son’s lack of paternal contact that would occur should he move to Parry Sound. Relocation is not, therefore, in the child’s best interests, irrespective of the burden of proof.
[ 192 ] The application is dismissed.
COSTS
[ 193 ] If the parties cannot resolve the outstanding issues (i.e., decision-making, parenting time and child support), they are to schedule a time before me for further submissions forthwith. The parties may submit costs submissions to me once the outstanding issues are decided.
Varpio J. Released: January 9, 2023
Footnotes
[1] Although it was not explicitly canvassed in the evidence, it appears that the Mother initially stayed in the matrimonial home but that the Father now resides in same.
[2] This distinction was not clarified in evidence.
[3] Although it was not explicitly stated, I infer from the entirety of the evidence that “week about” parenting commenced at this time.
[4] In fairness, the Father’s counsel submitted that he only called this evidence because he was forced to respond to the Mother’s evidence in this regard.