COURT FILE NO.: FS-20-18690

DATE: 20230329

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

KATHLEEN SHIPTON

Plaintiff

– and –

AAMIR SALEEM SHIPTON

Defendant

Michael Tweyman and Farzana Jiwani, for the Plaintiff

David Tobin and Christina Hinds, for the Defendant

HEARD: February 21, 22, 23, 24, and March 1, 2023

AKAZAKI, J.

Table of Contents

INTRODUCTION.. 1

FAMILY FACTS. 2

KATHLEEN’S RELOCATION PLAN VERSUS AAMIR’S CASE FOR THE DAUGHTER STAYING IN TORONTO.. 13

LAW AND ANALYSIS. 19

BEST INTERESTS OF THE CHILD – LEGISLATED FACTORS. 25

Reasons for the Relocation versus Contact with Father 30

Cultural, Religious and Spiritual Upbringing and Heritage: the “Impact of the Relocation”. 33

Support Obligations. 37

FINANCIAL DATA AND SUPPORT. 39

CUSTODY AND DECISION-MAKING.. 41

PARENTING SCHEDULE.. 42

CONCLUSION.. 43

INTRODUCTION

[1] The future of a beloved, bright and cheeky three-year-old girl lies in this court’s hands. She is, by all accounts, a remarkably well-adjusted child of divorce. The child currently lives in Toronto. Her mother, Kathleen Shipton, has made plans to raise her daughter in Ennis, a small town in County Clare, West Ireland. Ennis is within commuting distance of Limerick, where she has been offered employment, and Ballinruan, the hamlet where Kathleen’s parents and brother still operate a farm.

[2] Kathleen Shipton’s career has been held back since moving to Toronto with her husband from Cambridge, England. Aamir Shipton, an English software developer of Indian Muslim descent, had accepted a transatlantic corporate transfer with more income and prospects. Kathleen’s Irish optometry degree was insufficient for professional registration in Canada. Aamir’s new job was to allow him to support them and their future children, and Kathleen planned to upgrade her optometry qualifications to Canadian standards.

[3] Upon arrival at Toronto, Aamir Shipton was injured in a car crash. He spent years off work with depression. The couple survived on his disability benefits. Kathleen put her plans on hold and helped the family finances by taking on short-term locum work back in England. Within a few years peppered by arguments, calls to the police, a separation and a reconciliation, they had their daughter. Before baby’s first birthday, Kathleen gave up on Aamir, who in her eyes had become a malingerer and the cause of her career woes. She decided to restart her life in Ireland without him. After Kathleen left him and sued for divorce, it did not take Aamir long to find another life mate and become more rooted in Canada. He is now engaged to be married to another professional woman.

[4] At trial, Kathleen’s case pitted her career against rupture of the father’s bond with the child. The legal theory is that the personal and economic well-being of a principal caregiver can be associated with the best interests of the child. In the case of a professional parent, usually the mother, forcing her to stay in one place at the expense of her career also risks exposing the child to the modelling of patriarchal norms. The idea that professional women alone must sacrifice their careers if they want to raise children perpetuates itself because that is what their mothers and grandmothers had to do. The problem with allowing the move to break this cycle is the risk of materializing a stereotype of the father whose interest in the family wanes after his loss of participation and influence. Purely from the child’s perspective, removing him from the everyday flow of domestic life by making him a vacation dad immediately alters the relationship from an essential to a facultative one.

[5] Kathleen’s escape plan requires the court to consider whether the move to rural Ireland meets the needs of a daughter with years of childhood ahead of her. Kathleen, in seeking refuge to the place of her own childhood, will remove her daughter from the mecca of the world’s immigrants in search of better lives and opportunities for their children. This fact also undercuts her own argument for career advancement, if what stands in her way is an upgrade to her degree. The evidence showed that Kathleen could now be a month away from being a Doctor of Optometry in Ontario, had she started an effort to qualify in 2021. Kathleen’s rationale for leaving Canada therefore did not withstand basic factual scrutiny. Her conduct since leaving Aamir revealed that it was not the reason for relocation. Rather, it was a pretext for removing herself and the child from Aamir’s influence.

[6] When viewed through the core logic of Kathleen’s case, the real issue in this case is not very different from many cases before this court in which women have made personal sacrifices in order to support the marriage and the family. In order to mitigate the delayed fulfilment of the mother’s career and to reverse the impact of traditional “best-interests” analysis on the economic plight of women, the court must craft a support remedy that compensates her and liberates her from dependency. It is to that remedy that the factual and legal analysis below will ultimately lead.

FAMILY FACTS

[7] Kathleen Molony grew up as one of seven siblings in Ballinruan, Co. Clare, Republic of Ireland. Three of the brothers still live there, as do their elderly parents. The fourth brother lives in England. Kathleen and her sister Niamh were both very academic. Niamh went to medical school in Galway and now practices medicine in Australia. Kathleen went to optometry school for four years in a Dublin university and graduated first in her class. She left Ireland altogether in 2011 to practice optometry in Cambridge, England. In Cambridge, she went on an organized pub crawl. There she met Aamir Shipton.

[8] Almost from the beginning, they planned a life together. They started living together in November 2013. Aamir, an English software developer of Indian heritage, had dreamt of living in Canada. He had aunts, uncles and cousins who lived in Brampton and whom he had previously visited when he was growing up. Kathleen was open to the idea of moving to Toronto. They became engaged. Kathleen asked Aamir to convert to Catholicism. He did not want to do that. The religion did not align with his values. After “much discussion,” he agreed to take the lessons and converted in order to allow them to be married in a Catholic church. In August 2014, they were married in a church in Malta.

[9] According to Kathleen, Aamir became difficult to live with and became very controlling, after they were married. She said she considered leaving him while they were still in Cambridge. She was held back from doing so because of “the stigma of a divorce within the Roman Catholic Community.”

[10] Aamir’s plan to emigrate to Canada would soon be realized when his employer, IBM, offered a transfer to its Toronto offices with a doubling of his salary. In February 2016, the couple moved to Toronto and applied for permanent residency. Kathleen Shipton knew before moving here that she could not practice as an optometrist in Canada. As in many professions, Canadian optometric regulators require second-entry professional degrees after an initial period of undergraduate university study. She gave up her job in England because Aamir’s income could support her while she could devote herself to further education and to the children they planned to have.

[11] According to Kathleen, the move to Canada was supposed to be temporary. Aamir contends it was always to be permanent. I pause the chronology to focus on Kathleen’s assertion, because it appears to have been shoehorned into the narrative as an ex post justification for her relocation application. Her affidavit, particularly at paragraphs 26-27, navigated the inherent incongruity between the temporary nature of the move and her being “focused on having a family” in Toronto. Living solely on Aamir’s increased income “gave the family options – including the fact that I could take the time to do any education without worrying about her [sic] income.”

[12] His employment here was permanent. He was not a foreign consular official or a roving executive of a multinational oil company. If hers had been an honestly held belief, it would have reflected a very naïve notion of the practicalities of parenthood in Toronto. In a place where parents sign their children up for schools, baby-and-parent activities and other community services literally from birth, there can be no credibility in the idea that they would essentially be camping out while Kathleen warmed to the place.

[13] If I am wrong in my assessment of her credibility, the propensity for self-doubt that caused her to wander in and out of Aamir’s life does not permit her to accuse Aamir of having reneged on an agreement to return to England. Even if there was such an agreement, she did not leave Aamir because he refused to leave Canada. He only found out about her plan to move back to Ireland with the child after being served with the divorce application.

[14] Right after their landing in Canada in 2016, their fortunes took a turn for the worse. They were in the course of that quintessential rite of passage of couples setting up an apartment in Toronto: a drive out to Ikea in search of flat-pack furniture. The car ahead stopped suddenly. Aamir collided into it. A lorry ploughed into the back of the Shiptons’ car. Aamir broke his left hand and spine. The apartment still had to be furnished. She bought and built the furniture by herself. She had to look after him. Aamir’s orthopaedic treatment and recovery were successful. However, as this court often sees in car crash cases, Aamir fell into a traumatic depression. Aamir got off to a slow start in his new job. His employer put him on the company “performance improvement plan,” an HR euphemism for a worried employer.

[15] Kathleen took the first step toward requalification by having her optometry credentials assessed in accordance with the Canadian regulators. She stated she could not take the next step until 2017, when she received her permanent resident status from the Canadian government. (The evidence she filed contradicted this, because the degree upgrade program allowed foreign participants. The real reason for waiting until she received permanent residency would have been the cost of tuition for non-residents.) She started returning to England to perform locum work, for which she was paid $500 per day for blocks of two or three weeks at a time.

[16] Kathleen recalled that she lost the charming man she fell in love with, that Aamir became moody and controlling, and that he developed extreme opinions. In May 2016, their neighbours heard them arguing and called the police. In September of the same year, Aamir went out for dinner with a woman, and she noticed he was missing his wedding ring. They had words. There was angry dispute about the laundry. According to her, he ended up sitting on her, pinning her down and placing his hand over her mouth. She was frightened and called the building concierge to call the police. (The physical transition between these two moments was never explained.) Aamir went downstairs to greet the police, who arrested him. She left and flew to Ireland. She wrote a letter apologizing to him and left a long series of unanswered WhatsApp messages expressing her hope to get back with him. Aamir did not deny this and the other calls to the police but denied having ever laid a finger on Kathleen.

[17] In December 2016, the couple met up in England and they decided to try again in Toronto. According to Kathleen, Aamir was manipulating her (“gaslighting” her) to regret having involved the police and to regain control over her. (The fact that her long apologies and hiss silence preceded this gaslighting appears to have been another problem in the story prepared for the trial.) In her absence, Aamir had become a vegan and wanted her to do the same. In April 2017, Aamir was diagnosed with severe anxiety and depression and was placed on disability leave. In August, he decided to adopt a vegan diet and lifestyle. She contended that he coerced her to become vegan and lectured others about the benefits of veganism. He stated that he did extol its benefits but never applied any pressure on her to join him.

[18] In November 2017, they went to a 1920’s-themed party with friends from the British Isles. Aamir asked their friend, Jennifer Cotton, to help Kathleen to the bathroom because she had been crying. In the bathroom, Kathleen told Jennifer Cotton that Aamir was controlling and abusive. Soon Kathleen was surrounded by other women from the party. In the aftermath of the party, Aamir removed himself from the group after hearing what Kathleen had said in the bathroom. Kathleen continued to stay in touch with Jennifer.

[19] In 2018, she became pregnant with their child. She looked into midwifery and Aamir agreed to have their baby at the Toronto Birth Centre. The two midwives discussed the Shipmans and were worried that Aamir was controlling Kathleen. It was odd to them that Aamir attended all the antenatal sessions and was the one asking all the questions. They were both labelled as “decliners,” meaning that they refused or reluctantly proceeded with the medical procedures that they recommended. The midwives charted their concerns about the decision the couple had made, but not their concerns about the father. They explained that they feared repercussions for the mother if the father were to see their notes. They stated that they did not have an opportunity to discuss the procedures declined by the parents alone with Kathleen.

[20] Kathleen’s affidavit and oral evidence rounded out this part of the story by recounting how Aamir continued to control every aspect of her life and care of the baby, and how on occasion he was resistant to have the baby properly clothed for the winter. There were more calls to the police. In May 2020, she called the police because Aamir would not stop arguing with her. In August 2020, she left with the child and took refuge at Ms. Cotton’s apartment. Ms. Cotton called the police because Kathleen wanted to know her rights in the situation.

[21] In addition to evidence from the midwives, Kathleen filed affidavits and called as witnesses her sister, her mother, and Ms. Cotton. The sister and mother testified about Aamir being a controlling influence, although much of what they knew came from what Kathleen had told them and from their retrospective impressions. The sister planned to return to Ireland and would be available to support her sister. The mother described her community in Ireland as an idyllic and wholesome place where she and her husband would pass on their Catholic faith and values to the child if she came to live near them. Ms. Cotton described Kathleen’s complaints about Aamir’s controlling behaviour and a tense post-separation meeting in a park.

[22] While there were no material differences in the above chronology of events in the marriage, the evidence tendered by Aamir painted a strikingly different picture of his conduct. He took the religious classes and converted to Catholicism, because Kathleen had insisted. They had planned to emigrate to Canada permanently. Kathleen had quit her job, and he had accepted the transfer. He rented out the flat in Cambridge to tenants. He denied ever having assaulted Kathleen. He described the events as Kathleen acting out her frustrations. He denied having controlled her personal decisions and decisions about the course of the pregnancy. He never imposed his vegan lifestyle on her.

[23] Neither party’s counsel successfully impeached the other’s witnesses during cross-examination, but it readily emerged that the corroborating witnesses saw what they wanted to see and discounted what did not fit their interpretation of what was going on in the marriage. Even the ostensibly “independent” evidence of the midwives, who had been taken aback by Aamir’s questioning of their recommendations, seemed buttressed in their opinion of the marital dynamic by the fact that the father had been doing most of the talking and they disapproved of the decisions he was imparting.

[24] Counsel for Kathleen suggested to Aamir that he was ready with “an explanation for everything.” I suppose the same accusation could have been levelled at her, and that she simply had the advantage of submitting her evidence first. What struck me, while combing through their respective evidence, was how little Aamir and his witnesses had to say that was critical of Kathleen. His demeanor in the witness box was stoic and reluctant, and yet full of sadness (except when he talked about his daughter, when his eyes lit up). To some extent, I discounted the negative tone in Kathleen’s affidavit because one can make allowances for evidence written by lawyers. In the witness box, Kathleen was articulate, almost to the point of reveling in her criticism of Aamir as perpetrator of coercive control. I found her evidence and that of her supporting witnesses to be strained attempts to stigmatize him with that label.

[25] Coercive control is not a legal principle, although it has informed law reform aimed at preventing domestic violence. In social science and psychology, the phrase describes a type of methodical bullying in family and other intimate relationships from which victims are psychologically conditioned against escape. In the modern context, it entered the everyday vernacular in the United Kingdom with the 2014 enactment of Clare’s Law, which was not a law but a government scheme to disclose to women that their partners were previously known to police for domestic abuse. The idea behind this program was to break down the most tragic feature of “battered wife syndrome,” viz. the emotional dependence of the victim that compels her to remain attached to the perpetrator and refuse to contact police or to help the police inform other potential victims.

[26] It is not, however, a new idea. Gaslight, the 1944 movie that described a husband manipulating his wife’s mind with calculated lies, practical tricks, and seemingly “reasonable” requests, is the source of the word “gaslighting,” of which Kathleen Shipton, in her affidavit, self-diagnosed herself as a victim. Balzac described a father’s use of economic control to confine a daughter in post-revolutionary France in Eugénie Grandet (1834). The abused wife in Mauriac’s Thérèse Desqueyroux (1927) closely resembled the modern concept of coercive control as a judicial defence to the victim’s murder of the perpetrator, as considered in R. v. Craig, 2011 ONCA 142, at paras 25-31. The legal defence to a murder charge, as described by the Court of Appeal in Craig, is a form of diminished legal responsibility. Because of years of psychological control, the victim’s only escape is to do away with the perpetrator. Here, Kathleen’s characterization of Aamir’s conduct as coercive control or gaslighting is a conclusory label to which some facts of the marriage have been loosely organized to justify her relocation of the child to a place where Aamir will not have convenient access.

[27] The allegation is material to her relocation case that Aamir is not fit to make important decisions about the care of their daughter. In the background, it may also be advanced as a justification for putting space between the former spouses after divorce. Kathleen pointed to the decisions not to consent to various medical safeguards during the course of the daughter’s antenatal and perinatal care. This position is helpful to her family law case only if she can establish that Aamir removed her autonomy as a parent to speak up and voice her disagreement with Aamir at the appointments with the midwives. Otherwise, those would have been joint decisions. Indeed, her counsel cross-examined Aamir and made submissions to the effect that Aamir’s objections to the relocation amounted to continued control over Kathleen. The allegation is also relevant to the argument under cl. 16(3)(j) of the Act, that domestic violence can be relevant to the analysis of the child’s best interests.

[28] There was no expert evidence on the subject, neither on Aamir’s conduct as perpetrator nor on the effect of it on Kathleen as victim. The only mental illness put in evidence, albeit in a superficial manner, was the depression that resulted in Aamir’s dependence on disability insurance for income. There was no evidence of a brain injury or any reason to suspect violent behaviour as sequelae of the accident. There was no clinical evidence that Kathleen Shipton was emotionally or psychologically damaged by Aamir’s alleged conduct, so as to feel trapped in the marriage. The only evidence of anything that trapped her was her lack of qualifications to practice optometry in Canada. Had she been qualified here, she would have been working and fulfilled. Perhaps she would have responded more sympathetically to her husband’s illness.

[29] In a WhatsApp message from her to Aamir’s father of April 17, 2021, Kathleen went on a tirade that included a threat to alienate the child from Aamir:

Yes I do care about getting back to a country where I can work. I won’t apologize for that. Do you really think I would have come to Canada if I had known he was going to be on “sick” leave for 4 years earning what he earned in England while I can’t work. You know that doesn’t make any sense and my course to requalify here takes 3 years and costs tens of thousands. I know you’re obviously biased and probably want to laugh as I have to clean toilets to survive etc. I don’t think [their granddaughter] will see it the same when she’s of age to understand.

[30] At trial, Kathleen said she was not proud of these comments. The above message followed earlier messages dating back to late November 2020. She also expressed regret about an email that she had sent to cause a disturbance within the Shipton extended family.

[31] The above message revealed Kathleen’s real source of frustration. She channelled the inadequacy of her professional degree in Canada into blaming Aamir and his family. I read the inverted commas around “sick” to mean that she blamed him for malingering. Similarly in another message, she asked, rhetorically, “Who has been off work ‘depressed’ for 3.5 years, who does that?” In the multiple messages during this period, she did call Aamir a “liar, bully, cheat” and “difficult and weird.”

[32] The portrayal of Aamir as an abuser and controller, including limits on her handling of money, was also contradicted by the fact that she frequently returned alone to England for weeks at a time to work. She also maintained her own bank account there with her own resources. There was no evidence at trial that Aamir ever objected to these locum trips or to her maintenance of funds separate from the joint family finances.

[33] The hearsay from Kathleen’s friend or the subjective and undocumented concerns of the midwives did not corroborate Kathleen’s case that Aamir exercised coercive control over her. The fact that others, even health care professionals, shared an informal and subjective opinion that Kathleen was a victim of coercion does not elevate her description of herself as a victim beyond a conclusory opinion. Corroboration is not a technical legal doctrine but an ordinary reason for believing in a statement of fact because someone other than the witness witnessed it or because the fact fits with other facts: Vetrovec v. The Queen, 1982 20 (SCC), [1982] 1 S.C.R. 811 at 830. The court must be careful to distinguish between corroboration and oath-helping. Witnesses’ agreement with a party’s subjective conclusion is not corroboration. I did not find the circle of self-appointed jurors pointing their fingers at Aamir to have been helpful in getting to the truth of Kathleen’s allegations against Aamir. Their opinion that he may have been an abuser was not evidence that he was one or that he ever did anything to abuse her.

[34] The 2017 party incident in which Kathleen broke down in tears and told a bathroom gathering of the couple’s female friends about Aamir’s abusive behaviour was advanced as evidence of Aamir’s abusive conduct. The hearsay evidence was inadmissible for the purpose of proving the allegation against Aamir. It was, however, admissible for the proof of showing that Kathleen Shipton found an opportunity to tell a group of people who were originally Aamir’s friends that their friend was a wife-abuser. It was common ground that these were friends that Aamir had met through his work. Kathleen stated in her affidavit that Aamir controlled her social circle, but her own evidence demonstrated that it was she who alienated Aamir’s from his social circle.

[35] There was no evidence from either party of any immediate repercussions from the 2017 incident, as one would expect from a psychological abuser in response to an act of defiance to the abuser’s control. In Kathleen’s affidavit, she stated that Aamir withdrew from the group and accused him of stopping her from interacting with them. It was hard to discern whether the element of bathos in this part of her evidence was a byproduct of legal editing or of an expectation that court would imagine what happened after the couple got together afterwards. Did Aamir berate Kathleen for having shared details of their marriage to the women at the party? Did he punish her by blanking her, as in the 2016 aftermath of her having had the police arrest him? What did Aamir do to re-exert his psychological grip on her, after his wife found an outlet among the female friends in the group? Nothing, it seemed. This vignette of an apparently key moment in the marriage left the court dangling as to its significance.

[36] Kathleen’s case took pains to characterize Aamir as a controlling and negative influence on Kathleen as a parent. Kathleen wanted to attend the East York Midwives’ Clinic instead of a hospital-based obstetrician. They researched the idea. Aamir agreed. The couple were followed principally by Sarah Davies, with support from her team. Ontario introduced midwifery with the passage of the Midwifery Act, 1991, S.O. 1991, c. 31. This followed a decade of lobbying by women’s groups to establish an autonomous female-empowering professional setting for birthing as an alternative to the then male-dominated hospital-based obstetrics profession. I find that Aamir’s agreement and enthusiasm for such a service, including a dedicated and involved female midwife, wholly incongruous with the behaviour of a misogynist and a gaslighting abuser.

[37] I also found the midwives’ evidence that Aamir’s attendance at all the antenatal appointments was a “red flag” to be troubling. It seems to run counter to the progressive idea that fathers should be as involved as possible in the pregnancy and birth. Gone are the days when fathers waited at the pub for news of their child’s birth. Aamir was off work during this period, with anxiety and depression. If he had missed appointments and stayed home to play video games and watch television, there would have been a different kind of criticism of his conduct. The midwives’ evidence that they were unable to have a word with Kathleen alone about declined procedures was, in fact, indicative of selective memory and confirmation bias. The records that Kathleen entered into evidence showed that, on April 26, 2019, it was Kathleen who initiated a call to midwife Sarah Davies to decline the genetic screening.

[38] There was not a single clinical note or other record of their concerns regarding the father during the antenatal visits. After the birth, however, an email exchange between December 28, 2019, and January 19, 2020, recorded a conversation between them about Aamir and provided Kathleen with articles about excessive control by partners in relationships. From this, I could conclude that Ms. Davies had judged Aamir to have been a perpetrator of such control and that she had imparted that opinion on Kathleen. According to Kathleen, Ms. Davies had offered to help her devise “a safety plan for me to leave Aamir.” These cases inevitably entail a circular logic. The interval between awareness of the abuse and the flight from it can be attributable to paralysis from ongoing abuse or fear of it. It can also be evidence that, around Christmas 2019, Kathleen simply planned to return to Ireland with her child and waited for a moment of her choosing to bring the plan into effect.

[39] Between January and September 2020, Kathleen appears to have become aware of the need for a “safety plan.” During this period, they were “having a lot of verbal arguments.” During “another one of our disputes,” Kathleen deposed, she called the police in these circumstances:

The police were again involved in another one of our disputes in May 2020, because I called the police for help. Aamir would not stop harassing me and yelling at me the entire day, into the evening. [My daughter] slept in bed with me and when I wanted to get into bed, so she could sleep, he would still not stop fighting with me. By the time the police arrived, he had finally started to calm down, so I minimized the issue when they arrived to avoid him being arrested.

[40] In her mind, the police could have arrested Aamir, but she prevented that from happening. Nothing she described was illegal as such. Her opinion that police services can be summoned to stop a spouse from arguing offends the hard-fought gains of women’s groups in Canada to reverse the historical reluctance of law enforcement to get involved in “domestics” despite clear evidence of actual abuse.

[41] On August 29, 2020, there was another call to the police, not even for an argument (Aamir was not present) but for legal advice about her “options … in relation to leaving the home with her daughter.” Whatever one makes of Kathleen’s use of police services as a kind of marital counselling agency, neither Aamir’s presence nor his influence seemed to inhibit her from calling them. In her affidavit and oral testimony, she stated that the police were called on at least five occasions. Despite her husband being abusive and possessing a fiery temper, the only evidence of any reprisal for having called the police was that they later “discussed the incident” (in 2016) and that Aamir made her feel “very regretful.” This, she has learned was his “gaslighting” her. Given the number of times the police were called, the paucity of grounds for threatening Aamir’s freedom, and the stoicism of his response, I do not find her claim to have been a victim of spousal abuse to be credible.

[42] After Kathleen left Aamir, she withheld Aamir’s access to their baby. On September 3 and 4, 2020, she told Aamir that she would not allow him to see her until she had a court order in place. Immediately upon the commencement of her divorce application, Kathleen Shipton brought an urgent motion and obtained an order restricting Aamir Shipton’s access to supervised visits of no more than two hours a day. According to the order of September 25, 2020, Kathleen claimed that Aamir required supervision because he only ever had occasional parenting duties and used inappropriate techniques to manage the baby’s distress like slamming his fists on the table to scare her. Justice Boucher’s endorsement stated that she was unable to decide between two divergent accounts of Aamir’s parenting ability. She ordered temporary supervised access because a “trained or qualified person’s observations” would possibly have more evidentiary weight than the parties.

[43] On October 17, 2020, Aamir asked to see the baby on her first birthday. Kathleen declined: “So sorry I don’t think it will work out seeing you.” During the time when Aamir saw his daughter subject to supervision, the texts between the parents clearly showed Aamir begging for every moment of time with his daughter, and Kathleen using the legal process to keep them apart.

[44] The affidavits from the social workers and their notes recorded their observation of Aamir’s parenting skills over forty-five supervised visits until into February 2021. Kathleen’s stratagem backfired, because all the notes commented on his parenting skills in glowing terms. In February, Kathleen conceded in the litigation that Aamir did not require supervision. She did this despite her belief that “many people in my position would have tried to maintain the supervised arrangement in place.” I find that statements like this indicative of Kathleen living in an echo chamber and more than half hoping that Aamir would not prove to be a capable father.

[45] She therefore agreed to unsupervised parenting time, albeit for only two and a half hours at a time. In May of 2021, but Kathleen agreed to increase the time. She consented to an order dated May 20, 2021, for gradual unsupervised access of up to 8 hours at a time. She manipulated the court’s process, especially regarding judges’ willingness to err on the side of caution in accepting at face value allegations of family violence, to alienate the father from the daughter’s life and to gain a procedural advantage in her plan to relocate the child to Ireland. She knew that the social workers had no concerns. However, for months on end, she continued to limit Aamir to short visits and the indignity of being observed while looking after his daughter.

[46] Every visit with Aamir brought joy and a feeling of security to the daughter. Kathleen knew this, and yet she continued to deprive her daughter of Aamir’s paternal role. I do not know whether she acted out of malice. Nevertheless, the tactical use of the court’s process demonstrated a basic deficit of understanding of the role of parents in infant development. The court did not hear much about Kathleen’s parenting abilities because the focus was so much on Aamir’s. However, the decisions that she has made in the course of the litigation, as well as the plans for the move, give reasons for concern that the child needs a parent in her life in addition to Kathleen.

[47] Kathleen deposed in her trial affidavit that she always encouraged her daughter’s relationship with her father and that Aamir was the one who was difficult about parenting time. She believes that “any co-parenting with Aamir would be an invitation to chaos and conflict where nothing would be able to get done.” She cited an inconsequential dispute between them about nap time as “yet another example of how Aamir always needs to be right and why there is no prospect of cooperation between us.” She further interpreted a text in which he offered to buy chemical-free nappies because the child’s health was important as a “manipulative message” implying that she did not care about their daughter’s health.

[48] In a section of her affidavit entitled “Aamir Takes No Steps to Address Issues That Affect Parenting,” she criticized him for failing to take anger management or parenting courses, acknowledge the mistakes he made in his relationship with Kathleen, and be more honest with his disability therapist. In making these complaints, she stated that Aamir had not “made any efforts to deal with any of the issues raised by Boucher J. in her endorsement of September 24, 2020.” These were not “raised by” the judge. They were Kathleen’s allegations noted by the judge in the same way that I have set out, seriatim, Kathleen’s allegations against Aamir. The only difference is that a judge in an urgent motion with untested affidavits under the Family Law Rules can only proceed on the basis that the abuse complainant’s allegations might be true, and a trial judge has the benefit of cross-examination and the time to sift through the complainant’s evidence.

[49] I appreciate that a divorce litigant’s evidence will need to include some impressionistic content, especially a description of fear and other effects as a victim of abuse. Objectively, I could not find Kathleen’s allegations credible because it relied too much on her interpretation and analysis. Instead of experiencing paralysis or diminished volition, she frequently found outlets, either by leaving Aamir or turning people or public agencies against him. The didactic elements of her evidence also tended to trip over themselves. A case in point was her conclusion that there was no prospect of cooperation between her and Aamir, based on a disagreement over the baby’s nap time. I found this to have been an immature comment that was incongruous with her law suit for relocation, since the Ireland plan depended so much on the parties’ ability cooperate with each other. In her affidavit, she found uncompelling reasons for dooming future cooperation to failure. In her parenting plan for Ireland, she extolled the ease with which Aamir could make arrangements to see his daughter. As I will discuss below, the professional and economic rationale for the move to a place near her parents’ home in Ireland made no real sense. After eliminating that reason for the move, what remained of Kathleen’s real motive was to remove Aamir from their daughter’s life.

[50] Contrary to her professed magnanimity toward Aamir’s paternal role, Kathleen betrayed a desire to prepare her daughter for the move to Ireland by cleansing traces of Aamir from her identity. On May 3, 2021, Kathleen added to a text to Aamir about a doctor’s appointment that she intended to have her daughter’s surname changed to Moloney. Aamir did not take the bait and simply responded with his desire to attend the doctor’s appointment. Kathleen replied: “Due to Covid rules … (some people abide by them) only one person attends with her. Sorry. … Also will I have your cooperation on the name or do I have to bring you to court? It’s pretty reasonable.”

[51] On July 4, 2021, in another text exchange between them about the benefits of vitamin D, Kathleen argued with Aamir that their daughter was “75 percent Caucasian. Her skin is fair.” I this comment – inaccurate in terms of the percentage – evokes all manner of disturbing historical and current social problems, not the least of which is the emotional vulnerability of girls and women from South Asian and mixed communities to equate beauty with the fairness of their skin. Considering Margaret Moloney’s plan to “help” raise the child as an Irish Catholic, as well as Niamh Moloney’s antipathy toward Aamir, there was more than a hint that the family would assimilate Kathleen’s daughter by reducing Aamir Shipton’s presence in her identity. Even if I am wrong in my conclusion, it was clear that Kathleen’s mind harbored a delusion that the daughter was more white than Asian and that this was part of rationalizing her decision to relocate her child to Ennis.

[52] Throughout the litigation, Aamir has taken Kathleen’s verbal and strategic blows without ever striking back. During the trial, said nothing negative about Kathleen beyond expressing his hurt in hearing the things she had said. Kathleen downplayed Aamir’s appearances by characterizing him as being “on his best behaviour.” Her criticism of him for not fitting into her description is similar to her position at trial that Aamir’s objection to the relocation application amounted to continued controlling behaviour. I did not perceive Aamir’s level-headedness to have been an act.

[53] Despite the prospect of losing his daughter, Aamir has emerged from his depression. He now has a new job. His original employer offered to reinstate him. He made a clean break and accepted an offer from another company. His employer is progressively minded and his managers supportive of his desire to play a large role in his daughter’s life. When his income increased, he contacted Kathleen’s lawyer to increase the support payments, but he did not hear back. Kathleen, however, stated incorrectly in her affidavit that “Aamir would not increase spousal support amount commensurate with his income.” (It was hinted during the trial that Kathleen’s lawyer may have missed the email from Aamir.)

[54] Aamir is now engaged to remarry. Aamir’s met his fiancée on an online dating platform in October 2020, shortly after Kathleen started the law suit. His fiancée is a strong, accomplished, good-humored and professional woman, employed as a project manager. She is not a vegan. Since the beginning, she knew about Aamir’s depression and about Kathleen’s allegations of spousal abuse. Aamir spends time with her family. She described Aamir as a gentle and kind person without a hint of misogyny. She said that the child considers her a second mother figure, but also stated that she fully appreciated the primacy of Kathleen’s role as her real mother.

[55] Kathleen, however, found ways to turn Aamir’s changed fortunes against him in the court case. In the section in her affidavit, “December 2021 – Aamir Hides the Fact that He has a Girlfriend,” she implied that the fiancée posed a risk to the daughter and hiding the fact that he had a girlfriend was a mark against him. The “hiding” allegation was contradicted by her text of May 8, 2021, belittling the girlfriend (now fiancée) as “tinder girl.” In the next section, “Aamir Gets a New Job in 2022,” she described her grave concern about Aamir wanting equal parenting time once he started working again in April 2022, in apparent contradiction to his limited time when he was off work.

[56] The above findings regarding Kathleen’s attempt to portray Aamir as a less-than-fit father, including the tactical use of the court to restrict his relationship with their daughter, undermine a major thrust of her case for relocation. Insofar as the mudslinging constituted a failed attempt to bias the court against him, I will not be swayed in the other direction to sympathize with him for having been the object of it. The relative merits of the relocation and the child’s current residence in Toronto have to be weighed against each other on their own merits. That is not to say that the way the parties have handled the separation and law suit have no part to play in the assessment. How they have behaved in and around the court process must be considered as a precursor of their expected behaviour after whatever decision this court renders. See the Act, cl. 16.92(1)(g).

KATHLEEN’S RELOCATION PLAN VERSUS AAMIR’S CASE FOR THE DAUGHTER STAYING IN TORONTO

[57] The parties have submitted competing plans for the future of their daughter. As expected, the details have been prepared with the assistance of lawyers and touch on various parts of the factors to be considered under the Act. The fundamental contest is defined by the two top considerations under s. 16(3) and subsection 16.92(1), viz. (a) the reasons for the relocation and (b) the impact of it on the child. My assessment of the evidence focuses on these two important factors, although the entirety of both lists are intended to require the court to engage in a holistic assessment of interdependent factors.

[58] Kathleen entered into evidence two maps of Ireland “pinpointing location of Ballinruan.” This appears to have been a slip, because the parenting plan stated that she intended to relocate herself and her daughter to Ennis. She was born in Ballinruan, where her parents and some siblings still live. There was no evidence of any optometry jobs there, and I assume Kathleen chose Ennis instead of Ballinruan because it is the closest built-up area. Kathleen entered into evidence a job search showing two positions in Ennis, one earning “up to” €70,000 and another “up to” €35,000. The job offer she received from an optician in Limerick was for €65,000. She states, in passing and in general terms, that the cost of living in County Clare is considerably less than in Toronto. There was no detailed comparison to show that the cost of anything but rent or property ownership would be cheaper. While I might be able to take judicial notice of the value of a Euro (€) being the rough equivalent of a U.S. Dollar, or about $1.40 Canadian, I cannot take Kathleen’s lay evidence of what the actual economic impact of the move would be. There was no real basis for an immediate comparison between the job in Limerick, with appurtenant automobile commuting, extra day care, and European cost of living, and the situation of an optometrist in Toronto.

[59] There was no evidence tendered at the trial whether Kathleen could have considered relocating to England, since the United Kingdom is no longer part of the European Union. Her locum trips all took place prior to Brexit. More importantly, she did not submit any evidence of her expected earnings after requalifying as an optometrist in Canada. The credentials she submitted to show she would likely have no problem obtaining employment in Ireland, such as her graduation at the top of her class, also serve to establish that she is unlikely to encounter any difficulty academically in passing the transitional courses here. Aamir Shipton’s case on spousal support is that “Kathleen is intentionally underemployed” and that she did not undertake the two-year upgrading course “because she thinks it would undermine her desire to move to Ireland.” Kathleen admitted as much when she said in her affidavit, in the support section, that “I did not think it made sense to try to start a new career while asking to move to Ireland.”

[60] Intentional underemployment (here, unemployment) is a concept usually reserved under the principles related to the right to receive support: Lavie v. Lavie, 2018 ONCA 10, at para. 24. As will be considered in the comparison with the O'Brien v. Chuluunbaatar decision, active and prolonged failed attempts to secure employment worthy of the relocating parent’s professional status is also relevant to relocation. The intentional deferral of securing the means for advancing one’s career prospects counts against the relocating party. Moreover, where a reason for holding back a career is related to economic and other sacrifices made in the course of the marriage, the court’s search for the appropriate remedy shifts away from relocation and back to support.

[61] The typical facts in the reported cases in which the reason for the relocation is economic entail a marked improvement in employment or other economic conditions. The basis for comparison in Kathleen’s case is between unemployment in Toronto and employment in Ireland. Kathleen introduced evidence from a professional recruiter, who expressed her confidence that Kathleen would not have trouble finding full-time work as an optometrist in Ireland. Kathleen produced a letter from an optician’s clinic in Limerick offering employment. Limerick is a city located forty minutes’ drive from Ennis, albeit in the opposite direction from Ballinruan. (That commute is not that different from the outskirts of Toronto to Waterloo.)

[62] On the Canadian side of the equation, Kathleen has introduced the cost of tuition and materials for two years’ study at the University of Waterloo, plus the bridging course, as a barrier to employment. The fact that the advanced standing program for international practitioners exists, however, is evidence that there is sufficient economic incentive for foreign-trained and practicing optometrists to come to Canada even though they are put to two years of extra university study. As a corollary, the fact that Toronto is well served by optometry clinics virtually in every city block must mean that it is worth the while of domestic qualifiers to undergo seven years of post-secondary education, similar to the course of study of other “doctors.” Both Kathleen and her potential employer Anne Meany are registered as optometrists, with Bachelor of Science in Optometry degrees. In comparison, the evidence from the regulator’s website confirmed that the Waterloo degree is a Doctor of Optometry & Vision Science. There was no evidence that Kathleen would encounter difficulties completing the bridge to receiving status in Canada as a Doctor of Optometry. Her top standing in the university in Dublin as well as her glowing prospects of being able to practice anywhere in Ireland prove, on a balance of probability, that she would likely encounter no impediment in passing all the requirements for a Canadian degree.

[63] The evidence that the Canadian registration process for an optometrist who has practiced for years in Europe and the United Kingdom poses a barrier to Kathleen’s professional career does not stand up to scrutiny. Many professionals from Europe have encountered when coming to North America because their four-year courses do not stand up to the seven years required to complete a second-entry degree. In her case, Kathleen’s practical experience gives her advanced standing to obtain her Canadian title of Doctor after a combined total of six years of university study instead of seven. As a permanent resident of Canada, she also qualifies for a rate of tuition that, according to the chart she filed, is one-third of the cost had she applied without that status. Thus, the optometric profession does not erect a barrier to Kathleen but an expedited path to entry. It is also much less costly than the tuition payable by an Irish optometrist without residency in Canada.

[64] Kathleen testified that she had her credentials assessed in 2016, in accordance with the first step of the process. She did not produce the results of the assessment. She did not call anyone from the College of Optometrists of Ontario or its national federation to verify her interpretations of the process or for her eligibility for financial assistance to complete the program. The evidence from the current websites of the optometry regulator and the University of Waterloo provided no true insight into Kathleen’s claim that, by the time she obtained permanent residency in 2017, the requalification process “had become more expensive and much longer.” She did not elaborate how shorter that pre-2017 process was, and there was no means to verify this hearsay evidence to meet the threshold reliability test as stated in R. v. Bradshaw, 2017 SCC 35, [2017] 1 S.C.R. 865, at paras. 26-28.

[65] Kathleen filed in evidence a printed version of the regulator’s public website that described the credential assessment as having changed in 2021. The web version of the same page revealed more information, including a recognition of three years of clinical optometry practice in lieu of the three-years of undergraduate studies that Canadian candidates would have to undergo. After taking an evaluation examination for international optometrists, the next step is to take a short bridging program in April of each year, to allow the candidate to enrol with advanced standing in the third of four years of the Canadian Doctor of Optometry & Vision Science program.

[66] There was no evidence that Kathleen had ever spoken with anyone at the professional college in Toronto to determine what she was missing and what additional steps she had to take. She also did not introduce any evidence of the financial assistance available to a permanent resident whose principal source of income is spousal support. Evidently, it would not have helped her law suit if the process involved less time and money. The only generic information was that the University of Waterloo offered a four-month bridging course that would place her with advance standing in the third year of their four-year Doctor of Optometry program. The weekly schedule of the bridging course entails two days of in-person instruction and three days of online learning. The page from the Waterloo site cited by Aamir shows that if she started in April 2021, she would be ready to graduate in April 2023.

[67] There was some conflicting evidence at trial regarding clinical placements for the final year. Kathleen testified that she would likely have to work in a clinic in the United States. Exhibit 2, Tab 114, in fact stated that the clinical term would be “outside of Waterloo, typically in the USA, Canada, or even Sweden” and that “many of these placements are in the USA.” Had she actually enquired with about the program instead of relying selectively from the website, she or a representative of the school could have given evidence of the location of clinics where she could have taken this clinical term.

[68] The one-sided evidence of the modest professional opportunities for Kathleen in County Clare therefore provides no real basis of comparison for her reason for relocation from Toronto. Given Aamir’s evidence that his work is mostly from home and is flexible, he may not be able to provide the childcare support of a day care but his parenting time in Toronto or the Greater Toronto Area (GTA) would be equivalent if not more than the support offered by Kathleen’s parents at their farmhouse. Based on the evidence as presented at trial, I am unable to conclude that Kathleen’s economic rationale for the relocation to rural Ireland makes sense.

[69] I might even be able to draw the inference that a career in optometry in Toronto would be more lucrative for her than in Limerick or Ennis, but I am unable to make a concrete finding of how much more lucrative the career in Toronto would be. I can only apply the basic economics of scale to conclude that a population of people needing eyeglasses and contact lenses in Ennis provides fewer career opportunities and lower professional income compared to the analogous pool of patients in Toronto, a city ten times larger or in the GTA, a region comparable to all of Ireland. I also cannot ignore what is happening in the world as a result of post-pandemic inflation and the Russo-Ukraine War, to the extent that the cost of living in Europe has skyrocketed compared to North America. Ireland is a small country whose fortunes have historically been buffeted by economic rough seas.

[70] While it is true that Aamir could have submitted vocational or labour-market evidence from Toronto, a rationale for relocation necessarily entails a basis for comparison. He did not present evidence that optometry is more lucrative in Toronto, and she has not shown the reverse. As I will explain in the legal analysis regarding burden of proof, both parties have the burden in this case. However, if a basis for comparison has not been provided, I cannot conclude that there is an actual economic incentive for Kathleen Shipton to move to Ireland. The Waterloo evidence would, in fact, tip the scales in favour of a finding that a Canadian Doctor of Optometry career is more lucrative and more professionally rewarding than one as an optometrist in and around Ennis, Ireland.

[71] This does not mean that Kathleen is not without a legal remedy arising from her failure to upgrade her professional qualifications. It just means that the ability to start today as an optometrist in Ireland for a salary commensurate with a rural location does not provide an economic advantage over becoming a Doctor of Optometry & Vision Science in Toronto. In fact, the loss of this opportunity by returning to Ireland would likely result in a substantial net loss for Kathleen and her child over time. I therefore find that Kathleen’s vocational relocation plan does not succeed in demonstrating that she will be professionally and economically better off if she moved from Toronto. I need not find that a career in optometry in Toronto would make her better off, although logic and common sense would appear to support that conclusion.

[72] I now turn to the impact on the daughter of the proposed relocation. In large part, I will focus on the site of the proposed relocation. Toronto, the city where the child currently resides, is too large and too diverse to describe in any detail. Its significance to the Shiptons is that Aamir and Kathleen came here to start a family and to enjoy its amenities. That in itself was evidence that Toronto is a place where people make sacrifices to come, in the interests of their children. I will describe it only in terms of important points of comparison with Ennis, Ireland.

[73] In addition to basic descriptions of Ennis and its surrounding communities, Kathleen Shipton filed information about the schools in Ennis that her daughter would attend. Margaret Moloney stated that the child would “benefit” from participation in the Irish educational system. In the absence of evidence from educators, the only conclusion I can draw is that the schools are regulated by relevant authorities and would be shut down if they did not meet standards. The Republic of Ireland is a member of the European Union. One can accept, as a matter of peripheral judicial notice, that Ireland meets minimum standards for education, health care and other developmental indices. I do not believe Margaret Moloney has either the qualifications or the impartiality to say that the child “will benefit” from an Irish education in the sense that she would receive a better quality of education in Ireland than in Toronto. There was no basis for comparison between the Irish and Ontario curricula.

[74] The Republic of Ireland has a population comparable to the GTA. It is important to note that the general basis for comparison is not between Canada and Ireland, but between Toronto and Ennis. When Kathleen qualified in optometry in Dublin, she did not return to County Clare. While Ennis could be a wonderful place to raise young children, instill time-honoured values and religious observance, the court must consider the proposed relocation site in terms of the best interests of a particular child whom the court would be committing to a particular locale until she reaches adulthood.

[75] Kathleen’s evidence of the parenting plan in Ennis was silent on the cultural and religious aspects of the child’s upbringing to date. This is not too surprising, given that a three year-old would be too young to be confirmed in the Catholic church. There was no evidence of her baptism or whether Kathleen had had a discussion with Aamir about it. The evidence from Kathleen about the impact of her Catholic upbringing was negative, as I will describe below. Margaret Moloney’s affidavit consisted of repeated emphasis on the importance of raising their granddaughter as a Roman Catholic:

“Michael [her husband] and I are Catholics and faith and tradition are values that we would pass on to [the child] if she was living in Ireland.”

“In our community, Sunday is a day when families would get together after church.”

“There are many churches in Ireland and many of these parishes will have quizzes, music, tennis, and card games.

“If Kathleen is able to move to Ireland, [her granddaughter] will have access to great schools, Irish culture, the Catholic faith, and most importantly a support system that will assist her in the daily struggles of raising a child.”

[76] As admitted by Kathleen in her cross-examination, her daughter is not likely to grow up with many people like her in County Clare. In her affidavit, she spoke of the stigma that she, as a divorcée, she would have to live with “within the Roman Catholic Community.” The only tangible evidence tendered to the court was that her religion impacted negatively on her life by forcing her to stay in a marriage of which she had harboured second thoughts. Apart from this, she did not address her desire to raise her daughter as a Catholic. It was Margaret Moloney who emphasized how much she expected the church would figure in her granddaughter’s life. Margaret Moloney presented a life in her corner of Ireland, including her influence in supporting the child’s upbringing, that stands in stark contrast with the child’s present and future lives in Toronto.

[77] From his corner, Aamir spoke only about his interest in imparting his pre-Catholic values and heritage. Although to some extent it may have been implicit in his objection to the move, he did not raise any alarm about how much church would figure into his daughter’s life in rural Ireland. There were various references in the evidence from him and his supporting witnesses about the importance of keeping his daughter in tune with her Indian heritage and culture, and learning the basics of Urdu, the language of the Muslim Indian and Pakistani community.

[78] Kathleen’s relocation plan, according to her, allowed for Aamir and his family to continue to expose the daughter to this side of her identity. The plan entails visits by Aamir, a week here or a week there, during holidays. This, in Kathleen’s opinion, should be enough to keep the father a fixture in her daughter’s life. I find that this is a facile treatment of a deeper need. In the brief time I was able to observe the parties, it was obvious to me that the child, as a family member, needs both parents to receive the modelling and mental cues that children require to have a healthy upbringing. This includes the ability of each divorced parent to moderate the influences of the other.

[79] Kathleen, her sister and her mother had nothing but negative comments about Aamir Shipton. Despite promises to facilitate the daughter’s contact with him, their evidence painted the picture of a sanitary cordon around the daughter to ensure she would be brought up as Kathleen’s daughter and not Aamir’s. The court’s authority does not reach Kathleen’s family members and cannot prevent them from alienating the daughter from their father. (In contrast, none of Aamir’s supporting witnesses appeared to harbour any ill will toward Kathleen.) I can foresee the family and community life Kathleen presented as potentially stifling the child at various levels. The values of obedience, faith and social conformity may have their place, but the question the court must ask is whether these social constraints will help the child develop a sense of belonging or keep her from exploring her identity.

[80] Stepping back and viewing the totality of her evidence, Kathleen exhibited contempt for Aamir and a pattern of using her custody of the child to control the legal process. The manner in which Kathleen shut Aamir out of their daughter’s life, citing flimsy or arbitrary excuses why he could not take part, as well as her avowal of “chaos and conflict” dooming future cooperation, Kathleen’s relocation plan does not inspire confidence that Aamir would have a meaningful place in the daughter’s life if the daughter were relocated to Ennis.

[81] Instead of including planning for identity-related problems for the child’s integration into the small-town in the West of Ireland, Kathleen’s case either ignores the problems or bundles them up for Aamir to contend with. I took from Margaret Moloney’s evidence, Kathleen’s consciousness of religious guilt associated with her failed marriage, as well as the cultivation of an illusion that the daughter is 25% more Caucasian than non-Caucasian, that the religious and homogenous community proposed for the child’s upbringing is ill-equipped to support a biracial female from different faith backgrounds. There is a lot of childhood left for the daughter before she is of an age to leave County Clare, as her mother had done. The very fact that the child, as a Torontonian, can pursue so many paths and experiment safely with so many aspects of her potential identity, make it difficult to see how she would benefit from the relocation.

[82] Finally, I observe that the plan’s for the child’s education stop at junior public school. I am left to consider or take judicial notice of the likelihood of Ennis having secondary schools. There was no evidence of post-secondary opportunities are available, apart from the evidence that Kathleen went to university in Dublin and her sister in Galway. I am required to consider the fact that both parents are university graduates, with the Aamir having graduated with a Master of Science. I conclude from this that the child is likely destined for higher education and will have to leave Ennis to attend university. That is obviously not a problem in Toronto. Therefore, as a factual assessment, it is hard to accept that a relocation to Ennis would be in the child’s best interests.

LAW AND ANALYSIS

[83] The federal Divorce Act governs this case and provides the legal framework for weighing the significance of all of the objective and subjective facts of the case. The definition of “relocation” in subsection 2(1) of the Act provides:

relocation means a change in the place of residence of a child of the marriage or a person who has parenting time or decision-making responsibility — or who has a pending application for a parenting order — that is likely to have a significant impact on the child’s relationship with

(a) a person who has parenting time, decision-making responsibility or an application for a parenting order in respect of that child pending; or

(b) a person who has contact with the child under a contact order.

[84] There is no dispute that Kathleen Shipton’s proposed change of residence of the child to Ennis, Ireland, qualifies as a “relocation.” The starting point for relocation cases in modern Canadian divorce law is Gordon v. Goertz, 1996 191 (SCC), [1996] 2 S.C.R. 27. Subject to the construction of 2019 amendments which both codified most aspects of Gordon and departed from some of it, it remains the touchstone for guidance on the best interests of the child in these cases.

[85] Before considering the best-interests analysis, it must be observed that Gordon was a variation case. There had been an original custody and access trial resulting in a typical arrangement, with the non-custodial father being granted access to the child in Saskatoon. A year later, the father brought a suit to block the mother’s relocation to Australia. The court therefore first had to consider whether a material change in circumstances under s. 17 of the Act existed to allow the mother’s desire to relocate even to be considered.

[86] In its post-2019 revisitation of the Gordon principles, the Supreme Court in Barendregt v. Grebliunas, 2022 SCC 22, at paras. 14 and 112, distinguished this aspect of Gordon be implicitly holding that the material change in circumstances required to vary a prior court order did not apply to interim orders. In obiter, the court’s analysis in paragraphs 112-122 preserved the role of the material change provision but negated it as a formality by holding that relocation will in itself satisfy the first-stage variation framework under Gordon. In so doing, the court referred to subsection 17(5.2). Following this reasoning in Barendregt, I should apply the word “relocation” in that subsection to this case as encompassing the intended relocation.

[87] However, I remain troubled by the lack of harmony between that reading and the wording of subsection 17(5.3), which deems a court-prohibited relocation as not being a change in circumstances. While I need not decide the point for reasons that follow, subsections 17(5.2) and (5.3) appear to be more applicable to the situation where the “relocation” has already taken place. Thus, under subsection 17(5.2), where a custodial parent has relocated the child, and the existing order does not prohibit the move, either parent can apply for an order approving the move or requiring the child’s return. Under subsection 17(5.3), there is no presumption of material change and no variation order is required because the objecting parent can simply enforce the existing prohibition order.

[88] The court in Barendregt did not consider that in enacting s. 16.93, Parliament had created a regime of burdens for intended relocation cases without a requirement to show a change in circumstances. Instead, it dropped s. 16.93 into a discussion of deference to the custodial parent, in paragraphs 122 and 149. While it is true that s. 16.93 does concern the issue of respecting the main custodial parent’s opinion of the best interests of the child, a detailed study of s. 16.93 reveals that it supports a specific framework in ss. 16.9 to 16.96, inclusive, to accommodate the orderly resolution of disputes where a parent intends to relocate with the child. All of these provisions refer to intended relocations, as seen in the following true first step in the analysis, the burden of proof. Therefore, s. 16.93 (as modified by s. 16.94) provides a complete code for intended relocations, and s. 17 does not apply to this case.

Burden of Proof

[89] Section 16.93 of the Act sets out three burdens of proof contained in the 2019 amendments introduced in Bill C-78. The court must first decide which one applies:

Burden of proof — person who intends to relocate child

16.93 (1) If the parties to the proceeding substantially comply with an order, arbitral award, or agreement that provides that a child of the marriage 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.

Burden of proof — person who objects to relocation

(2) If the parties to the proceeding substantially comply with an order, arbitral award or agreement that provides that a child of the marriage spends the vast majority of their 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.

Burden of proof — other cases

(3) 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.

Power of court — interim order

16.94 A court may decide not to apply subsections 16.93(1) and (2) if the order referred to in those subsections is an interim order.

[90] Kathleen’s position is that the child is with her the vast majority of the time. She contends that Aamir has the burden of opposing the relocation under subsection (2). Aamir accepts that the time with his daughter is not substantially equal to Kathleen’s but does not accept his wife’s majority to be “vast.” He submits there is a mutual burden of proof, per subsection (3).

[91] At the time of trial, the daughter spent time with Aamir Tuesday and Wednesday evenings (5 p.m. to 8 p.m.), Fridays (10 a.m. to 6 p.m.), and alternating weekend dates over 24 hours (10 a.m. to 10:00 a.m.). This agreement of December 2022 reflected a progression that actually started with an urgent court order at the outset of the suit limiting Aamir’s access to 2 hours per day of supervised visits. These visits were facilitated by Brayden Supervision Services Inc. This amounted to 38 hours or 22.6% of the hours in a week, or 77.4% for Kathleen.

[92] The amendments in Bill C-78 were accompanied by legislative commentaries. These commentaries do not have the force of law. The risk of referring to institutional glosses at the outset of the analysis and to use them as a judicial crutch is that they can become quasi-legislation. That is not how the Canadian system of government works, and the use of such notes for interpretation is not permitted: Interpretation Act, R.S.C., 1985, c. I-21, s. 14. Parliament’s intentions must be interpreted and applied by starting with the words that actually received royal assent. The words of an Act are to be read in their entire context and in their grammatical and ordinary sense. They are to be construed harmoniously with the scheme and object of the Act, as expressing the intention of Parliament: Teal Cedar Products Ltd. v. British Columbia, 2017 SCC 32, [2017] 1 S.C.R. 688, at para 111; Rizzo & Rizzo Shoes Ltd. (Re), 1998 837 (SCC), [1998] 1 S.C.R. 27, at para 21.

[93] Before delving into s. 16.94, it is vital to consider that the onus remedies in litigation come after ss. 16.9 and 16.91, proving an out-of-court facility for permitting relocation through the issuance and service of notices. These provisions allow relocating parents a default process for testing the potential objector’s resolve to contest the move.

[94] Kathleen relies on Prof. Rollie Thompson’s legislative commentary on the words “vast majority” to mean “a range of 75 to 85%”: R. Thompson, “Legislating About Relocating: Bill C-78, N.S. and B.C.,” 2019 Docs 3939 at p. 20, 38 CFLQ 219. This analysis takes a surveyor’s compass to fix a point based on the words “substantially equal” in subsection (1), the words “in any other case” in subsection (3), a simple majority (incorrectly described as “50%” and not “more than 50%”) and the 40% rule in s. 9 of the Federal Child Support Guidelines, SOR/97-175 which triggers a shared or comparative approach to child support, as opposed to the sole-payor requirement for any parent with 39% or lower parenting time.

[95] The problem with Prof. Thompson’s approach is that it is akin to defining a type of apple by comparing it first with another apple and then with a type of orange. The 40% rule, in particular, is contained in a regulation informed by public policy and economics. It is a hard number that has generated its own subset of contentious counting methods: see Froom v. Froom, 2005 336211 RFL (6th) 254, 194 O.A.C. 227, 137 A.C.W.S. (3d) 358 (ON CA), Fitzgerald v. Fitzgerald, 2022 ONSC 2445, at para 26. Moreover, using a regulation to interpret an Act of Parliament upends the ordinary interpretive priority. Regulations are ancillary to statutes and do not exist at the time of royal assent.

[96] If one were to remove the extraneous 40% rule from the mix, it is easier to see the meaning of the onus provisions by reference to the ordinary rules of legislative drafting and construction.

[97] The entire provision starts with subsection (1)’s “substantially equal time.” The object and effect of this provision makes the parent seeking the relocation a presumed disruptor of the child’s well-being.

[98] The “vast majority” rule in subsection (2) reverses the onus stated in subsection (1). This amounted to a very limited legislative reversal of the Supreme Court’s ruling that there was no presumption in favour of the custodial parent’s decision to relocate: Gordon, at paras. 46-48. The Gordon case actually looms large in the intent of the provision, since the case represented the state of the law immediately prior to the enactment. The reversal of the onus in itself implies the significance of the wording beyond moving the dial away from the middle. The word “vast” is in itself hard to define, because it connotes the idea of expansion and spread. Its ordinary meaning is defined by its role as so much rhetorical flourish. It gives a sense of an object’s breadth and immensity to the exclusion of other things. The Romans created a vast empire. People refer to a “vast majority” to persuade an interlocutor that the quantity relative to something else reaches toward “almost all.” Indeed, it is the exceptionality of the objector’s parenting time displaced by the parenting time of the majority parent that governs the meaning of s. 16.93(2) by giving legal force to the circumstances of the parenting.

[99] A “vast majority” is therefore legally the opposite of “substantially equal” because “vast majority already implies the other party has “hardly any” time. By placing the burden of proof on the objector in s. 16.93(2), Parliament intended to treat the relocator as the natural and presumed arbiter of the child’s destiny. For the relocator to be vested with such authority, the legislative intent had to be to presume the objector’s parenting time to be less important to the child than the interests of the relocator in insisting on the move.

[100] Subsection (3), of course, provides for an equal burden of proof. The burden is equal when the time allocation is no longer “substantially equal” and shifts further to a burden on the objector when the majority is “vast.” Parliament has carved out a middle category where the proportion of time bears no presumption at all. This subsection is easily ignored in a preoccupation with “legal” descriptions of a substantial equality and a vast majority. However, its inclusion as one of three onus provisions signifies a legislative intent to codify two presumptive situations discouraging relocators and objectors from contesting obvious cases and leaving an open-ended middle ground of cases where the court must evenly weigh a host of tangible and intangible factors.

[101] Previous judicial attempts to interpret the onus provisions in Bill C-78 also concluded that subsection 16.93(3) represents the previously existing default scenario, and that the onus provisions simply discourage unmeritorious requests for relocation and objections to relocation: J.Y.L. v T.L.L., 2021 ABQB 680, at paras. 15-20, esp. para. 16; Cote v. Parsons, 2021 ONSC 3719, at para. 51; Malanowich v Toth, 2021 SKQB 249, at paras. 21-48. Once one sees the verbal architecture, it is impossible to unsee it. The court can now refer to the legislative notes, if only for comfort in the accuracy of the interpretation (underline added):

The 2019 changes to the Divorce Act set out a framework for changes of residence and relocation that includes three broad components:

1. Notice of a proposed change of residence or relocation

2. Additional best interests criteria for relocation cases

3. Burdens of proof that will apply in certain relocation cases

Key to the application of these provisions is the concept of "relocation" which is defined as a move-either by a child or a person with parenting time or decision-making responsibility-that could have a significant impact on the child's relationship with a person with parenting time or decision-making responsibility, a person applying for such responsibilities, or a person who has contact with the child under a contact order.

Consistent with the current law, the ultimate test for whether a relocation should occur remains the best interests of the child. However, to assist parents, lawyers and judges in undertaking a best interests analysis, the 2019 amendments add specific burdens of proof.

The burdens are not based on a precise percentage of time. Percentages could lead to bargaining over a specific percentage of parenting time, rather than focusing on what is in the best interests of the child when making parenting arrangements.

Source: Legislative Background: An Act to amend the Divorce Act, the Family Orders and Agreements Enforcement Assistance Act and the Garnishment, Attachment and Pension Diversion Act and to make consequential amendments to another Act (Bill C-78 in the 42nd Parliament)

[102] The legislative background note is helpful, not only because it advised that burdens apply in certain cases, but also because it confirms that the word “vast” in describing a majority of parenting time cannot be subject to a mathematical formula, in the form of a comparative exercise between various percentages used elsewhere. Instead, the note confirms my reading of the statute that the lack of onus as stated by the Gordon court should not be tampered with unless the objector is only a peripheral figure in the child’s life. The effect of subsection (2) is essentially to protect a custodial parent from being controlled by a relatively uninvolved ex-spouse by discouraging objections made in bad faith. (Kathleen attempted and failed to cast Aamir’s opposition to the move as a means of controlling Kathleen instead of a means to stay in his daughter’s life.) Parliament has essentially stated that, in certain cases, objectors must think twice before standing in the way. When read together with s. 16.91, the intent of Parliament is clear that subsection 16.93(2) was intended to discourage objections from those who were not expected to file objections under s. 16.91.

[103] Aamir also relies on s. 16.94 of the Act, and his counsel submits that the experience over the course of two years of litigation is not an accurate measure of the bond between him and the daughter. Section 16.94 relieves the inertia preventing the expansion of minority parenting time from order to order, even as interim measures. Motions and change applications can be expensive. Statutory and institutional restraints requiring evidence of changes in circumstances prevent the expansion of the parenting time from expanding organically: the Act, s. 17(5) and Gordon, at para. 9. It is not surprising, in this case, that the supervision order progressed to the current arrangements. Such a progression is to be encouraged and warrants recognition: Malanowich, at para. 46.

[104] By allowing the court to disregard interim parenting orders, often starting out in a limited way to allow the court to test the non-custodial parent, s. 16.94 allows the court to disregard the onus provisions altogether and revert to the common law under Gordon. The impediment to that argument is that the state of affairs as of trial was defined by a consent agreement that had not been converted into a court order. Although the absence of interim agreements in the wording of s. 16.94 appears to be a flaw, the court cannot disregard it. Therefore, s. 16.94 has no formal application to this case.

[105] I am also mindful of Aamir’s position, in his evidence and in his lawyer’s submissions, that Kathleen has taken a tactical approach to parenting time. The reports from the Brayden supervision staff made it clear from early on that the supervision order was wholly unnecessary. I accept Aamir’s evidence that he was the one pursuing more parenting time and that Kathleen was holding back. I do not accept the premise, led by Kathleen’s counsel during Aamir’s cross-examination, that his opposition to the relocation was another form of coercive control.

[106] I am again cautious of reading too much into the tactical aspects of Kathleen’s litigation strategy. A principal thrust of family law reform since the mid-20th century has been the empowerment of women in family relationships, after hundreds of years of patriarchy. The court should not read into a woman’s reliance on the court process an abuse of the empowerment that helps to right the scales back to a point of equity. Nevertheless, Kathleen should not benefit from the draconian order she obtained at the outset in order to skew the percentages toward her idea of “vast majority.”

[107] Applying the above analysis to this case, subsection (1) does not apply because even Aamir concedes the parenting time is not roughly equal. I have no meaningful discretion to relieve against that statutory requirement. Kathleen does not bear an onus greater than Aamir’s. Subsection (2) does not apply, because I fail to see how the daughter’s time with Kathleen, even at 77.4%, can amount to time that renders Aamir’s parenting time so insignificant that he bears the burden of proving his objection. Moreover, the 77.4% was won after threats of motions and other negotiations. Aamir clearly wanted more time than 77.4%, throughout. He was not the reluctant or absent father. Thus, the case falls into the third category, described in subsection (3). The parties each bear the burden of their respective positions in the case. The cases for the child’s future in Ennis or in Toronto must be considered on their own merits, without a generic legal presumption tipping the scales.

BEST INTERESTS OF THE CHILD – LEGISLATED FACTORS

[108] In any relocation case, the Act requires the court to consider only the best interests of the child, in accordance with ss. 16 and 16.92. Subsection 16(3) refers to “all factors related to the circumstances of the child” in introducing eleven factors, and subsection 16.92(1) adds seven more to the list, specific to relocation cases. Following this wording, trial courts have employed various approaches at triage, by ignoring irrelevant factors and weighing the more important factors from the more peripheral ones.

[109] That said, the Supreme Court’s decision in Gordon provides a principled framework for deciding cases consistently without fettering the wide judicial discretion to consider the unique circumstances of each child. The factors listed in the statute do not relieve the court of the general duty stated in the introductory phrases of the sections to consider the “best interests of the child” holistically. Inevitably, a survey of the case law reveals that these factors overlap and coalesce around one or two, or at most a handful, of principal aspects of the child’s life, stage of development, identity, and prospects.

[110] Barendregt is an important coda to the post-Gordon caselaw after the 2019 amendments to the Act. In Barendregt recognized that the amendments largely codified the Gordon framework while departing from it where the collective judicial experience has called for different approaches. Barendregt represented a widening of the child-centred approach to encompass the interests of the principal custodial parent, usually the mother, as being more linked to that of the child. At para. 135, the Supreme Court noted the statutory recasting of the “maximum contact principle” in Gordon to more neutral terms, under subsection 16(6). This change expanded the opening for a proposed relocating parent to counter the objecting parent’s entitlement to “maximum contact” if the objector’s real parenting time has not created a strong bond between the objector and the child. The fact that Aamir has a strong bond with the child means that Kathleen must be able to counter it with a compelling case for relocation.

[111] Kathleen Shipton very much linked her ability to practice optometry to the right of the child to be raised by a professionally fulfilled and self-supporting mother. The way that issue has been framed is obviously a major factor that the court must consider, in competing with Aamir’s entitlement to “as much time … as is consistent with the best interests of the child” under subsection 16(6).

[112] The following are the factors listed in s. 16(3), followed by comments regarding their relevance:

(a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;

The daughter is 40 months old and would not be eligible for junior kindergarten in Ontario until the 2024 school year: Education Act, R.S.O. 1990, c. E.2, ss. 21, 33 and 34. School is therefore not a factor in the parenting arrangements for at least another 18 months. Kathleen argues that this favours the relocation, because the child can more readily settle into a new school or pre-school. Aamir has indirectly addressed the child’s stage in development by recounting his interactions, such play and discipline. I will address this factor more closely in the discussion of the impact of separation from one of the parents, if she were to be relocated.

(b) the nature and strength of the child’s relationship with each spouse, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;

The daughter has a close relationship with both parents. She has some connection with the grandparents, none of whom live in Canada. She has developed a reasonably strong relationship with Aamir’s fiancée and extended family in the Brampton area. This factor also blends into the cultural, religious and racial aspects of the child. There is no evidentiary basis to support the Irish grandparents’ imposition of their Catholic faith on the child or their belief that the child will indeed benefit from it.

(c) each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse;

I am not persuaded that Kathleen and her family will go out of her way to promote the daughter’s relationship with Aamir after the move to Ireland. The history tends to prove the opposite.

(d) the history of care of the child;

The daughter may have been put to some risk during the perinatal stage. Kathleen has pinned all these risks on Aamir. I am not persuaded that this is a relevant factor going forward. Both parties have exhibited the need to grow up, in terms of relying on their inexpert ideas about pediatric medicine. Kathleen contends that Aamir has relented on his views about vaccines, in order to moderate his image for court. If that is true, one of the functions of the judicial process is to moderate people’s behaviour.

(e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;

There was no formal Voice of the Child assessment, given her age. By all accounts, she is close to the father. According to Aamir, his daughter has expressed some reluctance to go back to her mother at the end of visits. I did not view this evidence as a criticism of Kathleen. Kathleen did not introduce any evidence of any views or preferences. I do not view this to have been sufficiently elaborated in the evidence to be a factor in the analysis.

(f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;

The daughter is a mixed-race person of diverse cultural and religious backgrounds, residing in the most multicultural and tolerant city in the world. The mother intends to relocate her to an ethnically homogenous community where her maternal grandmother has stated her intention to impart her Catholic faith.

(g) any plans for the child’s care;

Kathleen provided an extensive plan for relocation. Aamir presented a similarly detailed plan for keeping the daughter here. The only difference is that Kathleen provided marketing material for the schools in Ennis. I believe this topic is subsumed into factor (f) above.

(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 have no concern about the parties’ willingness to comply with the final order and to meet the needs of their daughter.

(i) the ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child;

The communications entered into evidence regarding the parents’ co-ordination of Aamir’s parental visits show the post-separation relationship to have been tetchy at best. I do have concerns that, despite the elaborate plan to help arrange Aamir’s transatlantic visits, Kathleen’s contempt for Aamir will cause her to see him as an inconvenience for her. Kathleen’s family members did not have a good word to say about Aamir. I am concerned of their influence on 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 cooperate on issues affecting the child;

As stated in my examination of the evidence, Kathleen Shipton has not proven that there was any family violence. The only violence, in terms of verbal assaults, appear to have come from her and directed at Aamir and his family.

(k) any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child.

Kathleen apparently called the police or caused them to be called five times, although the last one did not involve Aamir. Historically, police services have been guilty of not taking “domestics” seriously. For this reason, police officers are trained to treat any call-out seriously and often they arrest the other spouse, usually the husband. I cannot treat these call-out records as evidence of any criminal proceeding that have any bearing on this case.

[113] The following are the factors listed in subsection 16.92(1), followed by comments regarding their relevance:

(a) the reasons for the relocation;

As stated in my examination of the facts of Kathleen Shipton’s grounds for relocation on professional grounds, I am not persuaded that her ability to practice optometry cannot be overcome by additional retraining. Thereafter, her professional career in Ennis or Limerick would be limited compared to one in Toronto.

(b) the impact of the relocation on the child;

I have serious concerns that the purpose of the relocation to rural Ireland is to shut the father out. I am also concerned that Kathleen has chosen that location even though it is not as well suited for raising the child as Toronto.

(c) the amount of time spent with the child by each person who has parenting time or a pending application for a parenting order and the level of involvement in the child’s life of each of those persons;

This is essentially a duplication of the factors to be considered in applying the burdens of proof. I find that Aamir Shipton’s time with his daughter to be an important and determinative factor.

(d) whether the person who intends to relocate the child complied with any applicable notice requirement under section 16.9, provincial family law legislation, an order, arbitral award, or agreement;

Kathleen Shipton did not comply with the notice requirement under s. 16.9. Her affidavit contains excuses for not having provided notice. Had she given the notice, perhaps the more logical remedy of having Aamir help her upgrade her optometry degree could have emerged in a less litigious circumstance.

(e) the existence of an order, arbitral award, or agreement that specifies the geographic area in which the child is to reside;

This factor is not relevant. There are only interim orders as discussed earlier in the application of the burdens of proof. There would be no point in making “without prejudice” and “temporary” orders if they were to fetter the trial judge’s discretion.

(f) the reasonableness of the proposal of the person who intends to relocate the child to vary the exercise of parenting time, decision-making responsibility or contact, taking into consideration, among other things, the location of the new place of residence and the travel expenses;

Kathleen has offered to help with the travel expenses, premised on Aamir visiting from the United Kingdom. On the whole, as I have said, Kathleen’s conduct and her pessimism about future cooperation make this a factor going against her plan.

(g) whether each person who has parenting time or decision-making responsibility or a pending application for a parenting order has complied with their obligations under family law legislation, an order, arbitral award, or agreement, and the likelihood of future compliance.

The parties appear to have complied with the various interim agreements and court orders.

[114] The Act then qualified the above factors in ss. 16 and 16.92 with three important provisos. They are not factors per se, but rather restrictions on the interpretation and application of the factors:

a. Subsection 16(5) prohibits a court from considering any person’s past conduct, unless the conduct is relevant to the exercise of parenting time, decision-making responsibility or contact with the child under a contact order.

b. Subsection 16(6) modified the former “maximum contact” principle with one that accords the child “as much time with each spouse as is consistent with the best interests of the child.”

c. Subsection 16.92(2) codified the “double bind” principle which prohibits the court from putting a relocating parent in the position of having to state whether that parent would relocate without the child. (That inquiry would make the parent appear less committed to move, if the answer were no, and less committed to the child, if the answer were yes.) The Supreme Court in Barendregt, at para. 140, extended the prohibition to the question whether the responding parent would move (i.e., Aamir to Ireland), although this appeared to be against the will of Parliament.

[115] It is evident that many of the factors are not relevant. Other points may be neutral in the sense that they do not in themselves tip the scales in favour of one party over the other, but they do form parts of the overall exercise of discretion. The main issues were framed by the parties and can be grouped into two main topics, and it is important to give weight to each of them:

a. the reasons for the relocation, pursuant to subsection 16.92(1), clause (a), as weighed against the need for stability and facilitation of contact with the parent left behind, pursuant to subsection 16(3), clauses (a), (b) (c), (h), (i), and (j), as well as “the location of the new place” and other factors under clauses 16.92(1)(c), (f) and (g); and

b. the cultural, linguistic, religious and spiritual upbringing and heritage of the child, pursuant to clauses 16 (3), clause (f), all which gravitate to the “impact of the relocation on the child” on her emotional well-being, sense of personal identity and future development and prospects, pursuant to clause (b) of s. 16.92(1).

Reasons for the Relocation versus Contact with Father

[116] In Gordon, the Supreme Court had warned against considering the reasons for the move because it shifted the focus from the child’s best interests to those of the parent seeking the move. Post-Gordon, courts found this to be too restrictive, because it was hard to isolate the parent’s reasons, usually related to pursuit of better economic conditions and personal fulfilment, from the child’s best interests. In Barendregt, at paras. 129-130, the Supreme Court stated that the court should avoid casting judgment on the reasons for wanting to move. However, “the moving parent’s reasons for relocating must not deflect from the focus of relocation applications — they must be considered only to the extent they are relevant to the best interests of the child.” At para. 171, the court aligned the interests of the parent and the child by stating that “Relocation that provides a parent with more education, employment opportunities, and economic stability can contribute to a child’s wellbeing.”

[117] Kathleen justified her plan for relocation to a town near her place of birth on two bases: her qualification to practice optometry and the availability of family to help her raise the child as a single mother.

[118] As I stated earlier, Kathleen’s bachelor’s degree can be upgraded with credit for her professional experience, such that she can attain the title of Doctor in the Canadian profession with one year less university tuition than a domestic candidate. Compare this abridged path to qualification to the 41-year-old Italian-trained lawyer in Trisolino v. De Marzi, [2012] O.J. No. 3343, at paras. 15-16, who came to Toronto in the belief that “some requalification would likely be required but … some credit might also be given for her years of experience as a lawyer in Italy.” The rationale provided by Ms. Trisolino for choosing to return to Italy was that the Law Society did not provide her with any advanced standing in the path to become an Ontario lawyer.

[119] The Canadian degree-upgrading process for foreign optometrists therefore provides a gentle onramp for accession to a profession that entails more medical responsibility and prestige than the profession to which Kathleen currently belongs in Europe. The idea that Kathleen as an optometrist in Ennis or Limerick would be better off and more economically secure than being a Doctor of Optometry in Toronto after two years of upgrading, is untenable. Toronto clearly offers Kathleen more education, employment opportunities, and economic stability than Ennis. Trisolino would likely have been decided against the mother, had the Law Society offered her the path to professional registration available to Kathleen Shipton.

[120] Even though the facts contradict Kathleen’s rationale for the move, the best interests of the child are not like a civil cause of action in which a missing element can dismiss a plaintiff’s suit. Kathleen’s case also relies heavily on a pull-push theory that the child will benefit from life close to the family farm and away from Aamir. Through Margaret Moloney, Kathleen described the family, community and religion in which the child would grow up. Similarly, in addition to their judgment of Aamir based on his views such as medicine and veganism, they channel Kathleen’s allegations of spousal abuse and her withholding of access into a subtext that the child would benefit from the move away from her father.

[121] The reasons for relocation are to be weighed against the anchors to the current location, in the form of the need for stability and the bond with each spouse. Subsection 16(3), clauses (a), (b), (c), (h), (i), and (j) as well as subsection 16(6) have generally favoured the status quo. These provisions give effect to the child’s need for contact with both parents and the need to consider remedies that facilitate co-operation, including family violence. Clauses (c) and (i) and (j) of the Act are interconnected, in that they link the feasibility and the bona fides of the proposed relocation plan to interaction of the parents, including the impact of any family violence in the shared role of meeting the child’s needs. If Kathleen Shipton were permitted to relocate the child to Ennis, Ireland, how sincere and motivated are her promises to facilitate Aamir’s role in their daughter’s life? I do not find her plan has adequately considered the deepness of her daughter’s need for Aamir’s support, not only to help Kathleen but also to counter the influences of the relatively confined society into which she would be introduced.

[122] In Gordon, the court had accorded “mandatory, but not absolute,” status the now-repealed “maximum contact” principle of shared parenting in subsections 16(10) and 17(9). By shifting the language to a somewhat more neutral “principle that a child should have as much time with each spouse as is consistent with the best interests of the child,” the Barendregt court held, at para. 135, that the maximum contact principle remains significant, but only if it is consistent with the child’s best interests. It is clear from this that Barendregt did not throw out the public policy and social science that supported the Gordon approach in stressing the importance of having two parents on the scene. I take this guidance to mean that by loosening the “mandatory, but not absolute” maximum contact principle, Parliament and the Supreme Court recognized that forcing a child to spend time with an unsuitably estranged parent could be detrimental to a child’s interests and development. Aamir Shipton is not such a parent. To deprive the daughter of his presence and influence could cause her harm and result in a serious injustice.

[123] While I appreciate that many relocation plans approved by the courts entail visits for short periods during school holidays, that type of arrangement is better suited to older children who have already had the experience of having both parents around all the time. Modern Canadian family law protects childhood, even if it means parental sacrifice. Historically, children were put to work to support parents in lower economic strata or were raised by domestic servants or boarding schools in wealthier classes. Law and society did not recognize childhood as a distinct stage of life and considered children as future adults or as mouths to feed. The Canadian history of Residential Schools came out of an idea that removing children from their parents was the best way to assimilate the indigenous population. It was only after the mass family dislocations of the Second World War that governments started to reflect on the effect of parental alienation on children as the disruption of human development itself:

In the second half of the twentieth century there was a move away from the idea that the best thing for some children was that they should be taken out of parental custody and placed in the care of the state or some approved voluntary organization – and perhaps sent off to a new life in Canada or Australia. In nearly all circumstances, it came to be thought, it was in the best interests of the child to stay with its birth family. The studies of behaviour of evacuated children and the parallel concern that ‘maternal deprivation’ was so harmful to children cause a major rethink.

Hugh Cunningham, The Invention of Childhood (London: BBC Worldwide Ltd., 2006), at p. 233

[124] The ordinary mental trade-offs that the law plays with to balance the rights of parties in other social disputes are ill-suited to family disputes that profoundly affect the future of children. A court cannot compensate a child in early development for deprivation of time with the left-behind parent with vacations or FaceTime sessions. The three-year-old child’s mind is at an important developmental threshold because of the growing awareness of control over her social environment. By the age of four, she will start learning the difference between introspection and empathy, how to lie to people to get her way, social perspective, and how to manipulate people including her parents. The failure of parochial approaches to raising children stems from the lack of a theory of a child’s mind. Based on Kathleen’s conduct and way of interpreting events, the court cannot but conclude that Aamir would serve as an important foil and that he needs to be in the child’s life more regularly than can be accommodated in Kathleen’s relocation plan.

[125] The evidence of Kathleen’s grandmother of the expectation to conform to Irish Catholic values adds a layer of complexity still, not because faith or religion is inherently detrimental but because, growing up, the child will have no effective means of resisting the assimilation of part of her identity that does not belong to that small and strict world.

[126] No psychological assessment of the child was presented in evidence, to interpret the video evidence or the information about the child exchanged between the parties in their text messages. The court can only draw from this evidence the conclusion that the daughter is a happy, well-adjusted girl with a strong reliance on both parents for emotional support and development of identity. The affidavits and voluminous notes from the supervisors at Braydon are not useful for this purpose because the child was too young, except to vouch for Aamir’s parenting skills in making the daughter feel loved.

Cultural, Religious and Spiritual Upbringing and Heritage: the “Impact of the Relocation”

[127] Clauses 16 (3), clause (f) requires the court to consider the cultural, linguistic, religious and spiritual upbringing and heritage of the child. It should be interpreted and applied in conjunction with clause (b) of s. 16.92(1) which requires consideration of the “impact of the relocation on the child.” This basket of factors connected with the child’s identity and growth as a person looms large in the analysis, if for no reason other than the starkness of the contrast between Kathleen’s relocation plan and Aamir’s hope for a life for his daughter in Toronto. Moreover, if the court can consider the impact of the frustrated career and economic potential of the mother on the child, a more central consideration must be the impact of the relocation on the actual future education and career of the child.

[128] Kathleen’s submission that a three-year-old child in her daughter’s situation is not strongly rooted in Toronto and that this is time to settle her elsewhere is a forceful one. It is also draws on the logic of the denial of childhood that inspired the government policies of child relocation of the past identified by Cunningham. The belief that a young child is so much raw material, like putty that can be squeezed into a new container until she has a more developed identity, is offensive to the modern idea that early childhood represents a stage in a person’s life as meaningful as adolescence, adulthood, middle age and old age. The fact that children often prove resilient does not mean they should be subject to potential harm.

[129] The connection between the stages of life and the best-interests analysis has flown under the judicial radar. The longer the period into the child’s future, the more indeterminate the branches and leaves on the decision tree. The trial procedure which inundates the court with conflicting data about the child’s past and present biases the analysis toward setting up a nest on that tree that is within reach. Most family law decisions, such as parental time and the amount of child support, are subject to periodic review. Not so with relocation. It is permanent.

[130] The duty of the court to imagine what the tree looks like a decade or two hence is therefore as important as securing a safe place for the nest in the immediate term. Words to this effect were, in fact, the main inspiration for the Gordon court in its best-interests analysis. At paragraph 20 of Gordon, Justice McLachlin for the majority anchored the entire superstructure of the best-interests framework on the following paragraph in Justice Abella’s majority opinion in MacGyver v. Richards, 1995 8886 (ON CA), 1995 CarswellOnt 90, [1995] W.D.F.L. 895, [1995] O.J. No. 770, 11 R.F.L. (4th) 432, 123 D.L.R. (4th) 562, 22 O.R. (3d) 481, 54 A.C.W.S. (3d) 96, 84 O.A.C. 349, at Carswell para 27:

27 Clearly, there is an inherent indeterminacy and elasticity to the “best interests” test which makes it more useful as legal aspiration than as legal analysis. It can be no more than an informed opinion made at a moment in the life of a child about what seems likely to prove to be in that child's best interests. Deciding what is in a child's best interests means deciding what, objectively, appears most likely in the circumstances to be conducive to the kind of environment in which a particular child has the best opportunity for receiving the needed care and attention. Because there are stages to childhood, what is in a child's best interests may vary from child to child, from year to year, and possibly from month to month. This unavoidable fluidity makes it important to attempt to minimize the prospects for stress and instability. [italics added]

[131] The recognition of the stages of childhood implies the best interests of the child include a duty to “minimize the prospects of stress and instability” for a long time, arguably until the court can hand the child off at adulthood, the point of legal responsibility, or even beyond, if the child is a dependent attending college or university. The litigation process is far too often stuck in an analysis of the past. The judicial duty, however, “requires identifying the plan for an uncertain future which is most likely to further a child’s interests”: Noel Semple, “The Eye Of The Beholder: Professional Opinions about the Best Interests of a Child,” Family Court Review, Vol. 49, Issue 4 (October 2011), pp. 760-7775, at 770. The court’s duty in a relocation application is not simply to bring a resolution to the case – its usual object in civil disputes – but to imagine how the new life would support the child as a pre-teen, as a teenager, and as a young adult. A “child of the marriage,” defined in s. 2 of the Act, often extends into the twenties, if the child pursues higher learning or develops illness or disability.

[132] Canadian courts have been fairly silent on the issue of comparing one location over another in international relocation cases. The elephant in the room in cases involving Toronto is its desirability as a place to live, not only because of its multiculturalism but also because of opportunities for any child growing up here. Multiculturalism has often been a basis for comparison, and courts have logically blended it into the “impact” analysis. The B.C. Supreme Court, sitting in Victoria, accepted that the benefits to a child of Chinese ethnicity to a life in Toronto, at least demographically as reflected in census data, far outweighed those available in Victoria and even in Vancouver: T.K. v. R.J.H.A., 2013 BCSC 2112, at paras. 78-80. Similarly, the homogeneity of Victoria, B.C., made multicultural Brooklyn, N.Y., a clearly better option for a family’s biracial children in Joseph v Washington, 2021 BCSC 2014 at paras. 148-91 (cited with approval, albeit on a different point, in Barendregt, at para. 140). In Hussein v. Dirie, 2018 ONCJ 781 | 21 R.F.L. (8th) 458 | 2018 CarswellOnt 18728 | 302 A.C.W.S. (3d) 346, at para. 177, the Ontario Court of Justice refused to accept the objecting father’s contention that Ottawa was not a multicultural city. These cases deal with shades of gray. If multiculturalism were the deciding factor, Toronto would always tip the scales.

[133] Beyond the superficial recognition that a biracial and bicultural person would feel more at home and suffer less discrimination in Toronto than anywhere else in the world, this aspect of the best-interests analysis is probably counterbalanced by the fact that the daughter, as a Canadian citizen, could always choose to come back here when she reaches the age of majority. Based on the simple comparisons of the communities’ ability to retain people, the answer is that there is a high likelihood that she will return to Canada. Canada’s population grows by hundreds of thousands every year. The extent to which the court can take judicial notice of such facts depends on their role as peripheral or central pieces of the reasoning. The modern approach to judicial notice has rejected the old absolutist doctrine and now requires judges to consider the proximity of the facts to dispositive issues: R. v. Spence, 2005 SCC 71, [2005] 3 S.C.R. 458, [2005] S.C.J. No. 74, 135 C.R.R. (2d) 318, 202 C.C.C. (3d) 1, 206 O.A.C. 150, 259 D.L.R. (4th) 474, 33 C.R. (6th) 1, 342 N.R. 126, 67 W.C.B. (2d) 504, at paras. 60-61.

[134] Multicultural Toronto is not just a demographic fact but a creature of law. It is a very different place than in the 1980’s, for example. This is attributable in no small part to the enactment of s. 27 of the Canadian Charter of Rights and Freedoms. The infrastructure of public life has been molded by the requirement that our basic laws are to be interpreted “in a manner consistent with the preservation and enhancement of the multicultural heritage of Canadians.” The wide acceptance of multiculturalism that allowed it to become part of Canada’s basic law is a reflection of the fact that people from around the world, including the Irish, have voted with their feet to find a better life for their children here. Even those with means and options, such as during the handover of Hong Kong to Chinese rule, elected to buy footholds in Toronto.

[135] One of the most well-known child relocation cases that had this idea of Toronto squaring off against a less-known place was O'Brien v. Chuluunbaatar, 2021 ONCA 555, 333 A.C.W.S. (3d) 814, 461 D.L.R. (4th) 113, dealing with the mother’s relocation of a child from Toronto to her native Mongolia. The Court of Appeal restored the trial decision of the Ontario Court of Justice by holding that the appellate judge, Justice Diamond of this court, had no basis to disturb the discretionary ruling when there was no reason to overturn the trial judge’s factual findings and the trial judge correctly articulated the relevant legal principles. The second appeal was decided on the issue of the standard of review: idem, para. 6. Because of this reasoning, the Court of Appeal would likely have upheld Justice Diamond’s assessment of the facts, if he had been the trial judge. Although not be dispositive of the appeal, the Court of Appeal declined to comment on questions the intermediate court raised about the merits of a move from Toronto to a remote and unfamiliar location:

75. The trial judge held that "the fact that the Court or the father might not know much about Mongolia, or might see it as foreign, unknown and remote should not determine or even influence the outcome of the mother's request to relocate there." I disagree as the Court should have received at least some foundational evidence about Mongolia in order to ensure that the move was in Caitlyn's best interest, and not just beneficial to the respondent.

O'Brien v. Chuluunbaatar, 2020 ONSC 6394, 325 A.C.W.S. (3d) 153, at para. 75

[136] In O’Brien, the mother’s geographical evidence went unchallenged, that Ulaanbaatar was “a big cosmopolitan city” comparable to Toronto: idem, at para. 58. In other words, the mother’s evidence mitigated the impact of the move by drawing similarities between the cities. Had the mother planned to take the child to a town of 25,000 souls in semi-rural Mongolia, the clearer opposition between the options would likely have caused the trial judge to worry a lot more about the impact of the move on the child.

[137] It should be observed that the mother in the O’Brien case the mother had spent nine years actively looking for employment commensurate with her education and professional ability. This included college courses and the Canadian Securities Course. She also took various “low-end jobs.” O’Brien, 2019 ONCJ 490, at paras. 49-53. The court accepted that she had no prospect of improving her employment situation in Toronto: idem, at para. 134. In contrast, Kathleen Shipton has done nothing to upgrade her degree and has simply provided the excuse that she did not think it made sense to try to start a new career while this case remained pending. Had the mother in O’Brien done what Kathleen did, i.e., to do nothing and wait for the court to give her permission to relocate the child, it would be hard to imagine either the Ontario Court of Justice or this court granting the permission.

[138] After sifting through the facts of the case through the applicable factors listed in the Act and their treatment in the case law, the answer emerges in plain sight that the Kathleen Shipton’s career has not been frustrated by a barrier to the practice of her profession but rather by the fact that the profession is different in Canada and requires a facilitated upgrade from an undergraduate Bachelor of Science in Optometry to a second-entry Doctor of Optometry & Vision Science. She does not need to “requalify,” as Ms. Trisolino had to do. This is not a justification for relocating the child. It is, rather, the basis for determining whether the law of support should compensate her. The evidence at trial clearly established that she could have pursued the upgrade courses, if Aamir had not been disabled in the car accident and the family finances suffered a decline in his income. This case is not an appropriate case for relocation. It is a support case. Accordingly, that part of Kathleen Shipton’s application seeking an order permitting the child to be relocated to Ennis, Ireland, is dismissed.

Support Obligations

[139] A leading case on the foundations of spousal support opens with the law’s answer to these specific circumstances: “It is now well-settled law that spouses must compensate each other for foregone careers and missed opportunities during the marriage upon the breakdown of their union”: Bracklow v. Bracklow, 1999 715 (SCC), [1999] 1 S.C.R. 420, at para. 1.

[140] Family law scholars and jurists have long recognized twin effect of marital breakdown: constraint on a woman’s ability to retrain and become self-sufficient, and the deprivation to children because of the inadequacy of historical spousal support: see Carol Rogerson, “Judicial Interpretation of the Spousal Support Provisions of the Divorce Act, 1985,” 12 Advoc. Q. 377, at 434. It has recently been observed that the primacy of the child’s best interests, as stated in Gordon, exacerbated the effect on women’s autonomy and economic mobility by reducing relocation approvals from 60% to 50%: Christine Parsons, “Kids v. Parents: Best Interests in B.C.’s Reformed Relocation Law,” (2021) 30 Dal. J. Leg. Stud. 33, at 45-46. The onus provisions in the 2019 Divorce Act amendments, Parsons wrote, at least resolved some of the uncertainties of Gordon in the federal divorce context: idem, at 44.

[141] It would be simplistic to correct the effect of denial of relocation requests on women’s socioeconomic status by granting the permission more frequently. Indeed, this would not help Kathleen Shipton because she has not really made the professional and economic case for the move, and because she would likely be better off pursuing the opportunity to succeed in Toronto. The principle of self-sufficiency through support, however, better serves this interest. Four decades ago, one of the important goals of the women’s movement was to imprint on our society the idea that women and men should be afforded equal opportunity and advancement on the basis that the care of children is a joint responsibility: Rosalie Abella, Report of the Commission on Equality in Employment, Royal Commission on Equality in Employment (1984), at p. 29.

[142] In this case, the rationale for the relocation vanishes when properly characterized as Kathleen’s loss of opportunity to upgrade her degree while married to Aamir. Although the compensatory approach appears to sound in tort law, the Supreme Court in Bracklow disagreed with the lower courts’ analogy to tort and held that the marriage, and not the end of it, that creates the support obligation. It is a pure ex ante causal relationship that compensates based, not on fault, but rather on circumstance, including the intentional decisions made by the parties.

[143] It may seem simplistic to attribute Kathleen’s delay in pursuing the qualification upgrade in 2017 because the family could no longer afford it after Aamir’s accident and sick leave. If I were to accept her evidence that the stay in Toronto was to have been temporary, this could undermine her entitlement to compensation for the deferral of the courses to a time after the marital breakup. I believe it fairer to consider her evidence to mean that in 2016-2017 she was vacillating between staying with Aamir and leaving him. The plan for Toronto may have developed a degree of contingency, at least in her mind. Nevertheless, what haunts this case is the car crash. Had it not occurred and if the Aamir had not sunk into a depression, they would have had the means to send Kathleen to Waterloo and she would have been a Doctor of Optometry before the child was born. It was also possible for the Shiptons to time their family planning so that their first child could be born after Kathleen received her upgraded qualification. This general trajectory seems to be a more credible and probable ex ante reconstruction of events than the one in her affidavit.

[144] Before Bracklow, the majority opinion of Justice L’Heureux-Dubé in Moge v. Moge, 1992 25 (SCC), [1992] 3 SCR 813 at 842, expanded on the compensatory element of the support obligation by recognizing the distinction between “modern” and “traditional” marriages in terms of the gendered role of the mother. In Moge, the Supreme Court considered it harsh to apply the doctrine of self-sufficiency when the marriage itself made it unrealistic for the traditional mother to fend for herself after the breakdown of the marriage. In the case of Kathleen Shipton, she had already acquired most of the personal capital to be a Doctor of Optometry in Canada before she married Aamir. She was delayed in achieving the remainder of the qualification by the circumstances of the marriage. Hers was therefore a “modern” marriage and all the evidence pointed to the likelihood that she would be a successful optometrist in Toronto if it were not for the path that the couple’s lives followed in 2016-2020. The legal principle of compensating Kathleen in order to help her become economically self-sufficient and fulfilled professionally is now part of the Canadian family law bedrock.

[145] Once the entitlement is clear, the court has a wide discretion to craft a remedy. Support orders, including lump sum awards, providing the recipient spouse to retrain or complete interrupted education are only limited by the judicial imagination and the pleadings: Malerba v Malerba, 2004 34791, at para. 11; Sharpe v Sharpe, 1997 12236, at para. 47; Jaques v. Marlin, 1995 7338 (ON SC); Lalli v. Lalli, [2002] O.J. No. 1957, at para. 73 (under s. 33(8) of the Family Law Act, R.S.O. 1990, c. F.3, analogous to s. s. 15.2(6) of the Divorce Act.).

[146] In granting a support remedy that allows Kathleen to pursue and enhance her professional career by pursuing the Canadian degree, I am not entitled to presume that Kathleen will not relocate to Ireland without the child. Based on the wording of subsection 16.92(2) of the Act, I am not stopped from “considering” the mother’s freedom of mobility as a fact of her own choosing, if I were to disallow spousal support or any part of it if she did relocate without the child.

[147] First, getting to the root of the reason for relocation and weighing it against the impact of relocation on the child is a necessary consideration, under clauses 16.92(1)(a) and (b).

[148] Second, despite the fact that Kathleen will likely be better off becoming a Canadian optometrist, it is not a judicial reward but the carrot she would have followed if she had pursued the degree upgrade she and Aamir had contemplated as part of the move to Canada.

[149] Third, the support remedy presupposes that Kathleen has not made out the stated professional and economic advantage in the relocation. If she were to move back to Ireland without the child despite the absence of any such advantage, the decision would be entirely irrational.

[150] Fourth and finally, there could be no justification for either child or spousal support as I intend to order, if Kathleen returns to Ireland without the child. (Child support would be payable by her, in such circumstances.)

[151] Thus, as absurd as it may seem to have to say it, any order for support in favour of Kathleen will terminate if she leaves Canada despite my order that the child shall remain domiciled here. The entire premise of such a move would be that Kathleen would be self-sufficient. Most probably, her earning potential over time would be far greater in Toronto than in Ennis. However, her choice to move despite the opportunity in Toronto would sever the legal right to support for the difference in income.

FINANCIAL DATA AND SUPPORT

[152] Counsel advised me that the property division and equalization issues in the case had been settled.

[153] Due to the time limits of the trial and the contingent nature of the case as hinging on the relocation issue, I advised counsel that they could either settle the financial terms of support out of court or make additional submissions. Subject to settlement or correction, the following is my analysis of the support arrangements that should ensue.

[154] My first task in crafting the support orders is to perform the ordinary calculations in accordance with the Federal Child Support Guidelines, S.O.R. 97-175 (CSG) and the Spousal Support Advisory Guidelines (SSAG). The latter, although not enacted as a regulation to the Act, provide ranges of support within which trial judges are expected to contain spousal support orders unless the reasons for departure are explained in the reasons for judgment: Fisher v. Fisher, 2008 ONCA 11, at paras 102-03.

[155] Kathleen’s financial statement, dated December 20, 2022, reported monthly income consisting of $1,252.00 in spousal support and $806.65 in child tax benefits. Her total monthly expenses amounted to $3,685.67. This effectively means her pre-tax income apart from funds ear-marked for the child was $0.00. A further consequence of this is that, at least in the short term, the allocation of parenting time between the parties will not affect the child support calculation under the CSG, s. 9.

[156] On April 4, 2022, Aamir Shipton unilaterally advised counsel for Kathleen that he would be returning to full-time work in two weeks, and that this would result in an increase in both his income and his spousal and child support payments. As of April 18, 2022, he began earning a salary of $100,000 or $8,333.33 per month. Together with the $12,213.00 annual rental income on the Cambridge property, this amounts to a current annual income of $112,213.00 or $9,351.08 monthly.

[157] Using the commonly employed DivorceMate software, I arrive at CSG Table monthly child support of $1,007.00. The SSAG calculation produces a range among $2,062.00, $2,332.00, and $2,616.00. If there arises a discrepancy between these figures and those calculated by counsel, I am open to hearing what correction is required.

[158] There was no evidence whether Aamir has been paying child support at the rate of $1,007.00, from the time of his increased income. If he has not been paying the increased amount, Kathleen shall receive a retroactive payment of child support, with prejudgment interest, calculated from April 2022.

[159] Given that the purpose of the spousal support order is compensatory and intended to enable Kathleen to achieve self-sufficiency by attending courses in Waterloo, the award of spousal support will start with a monthly base of $2,332.00. There can be a series of lump-sum spousal support payments, as she sought in paragraph 16 of her divorce application, in addition to the periodic spousal support she claimed in paragraph 14. Subsection 15.2(1) of the Act provides this court the authority to award both types of support. The award of one type does not preclude the other.

[160] The main expense under s. 7 of the CSG would be the cost of day care during the time when Kathleen is attending school. Aamir Shipton will be responsible for all s. 7 expenses until his spousal support obligations terminate. Thereafter, these expenses shall be borne 50-50 between the parties.

[161] According to the tuition charts filed by Kathleen, the total cost of tuition, books and materials for the program from April 2024 to April 2026 are as follows:

Bridging Program April-August

Year 3 September – April

Year 4 September-April

$28,000

$18,940

$24,570

[162] Had Kathleen pursued the upgrading program during the marriage, the cost would have been shouldered by the couple as part of the family finances, including any need to obtain a credit facility to pay it. It is therefore fitting that Aamir should be required to pay for 50% of the cost of tuition, books and materials at the time the costs are incurred. I appreciate that it will be tight for both parties. It is a fact of divorce that the economic benefits of consortium that allowed parties to “have it all” while they were married break down after the split. The resulting payment schedule here for Aamir, as well as the economic deprivation for Kathleen, are short-lived. Compared to some other support arrangements ordered by this court, their shared financial pain will be modest.

[163] Upon enrolment, Kathleen Shipton will have access to the University of Waterloo’s health plan. There will be an interval during the next twelve months when she will cease to have the status under Aamir’s employee benefits plan. During that interval, Aamir should be bearing one half of the cost to Kathleen of obtaining coverage under a comparable plan. That said, Kathleen Shipton is required to apply for financial assistance, both through the university and through any available government student loan or grant program.

[164] After April 2026, the parties’ economic connection and shared hardship can begin to be severed. Kathleen will become self-sufficient, if not then, then not long after. Aamir Shipton’s periodic spousal support payments will terminate on the earlier of (a) December 31, 2026, or (b) three months after Kathleen Shipton obtains full-time employment as an Ontario Doctor of Optometry, either as an employee or as a self-employed practitioner.

[165] The support orders will be subject to a support deduction order to be enforced by the Family Responsibility Office.

CUSTODY AND DECISION-MAKING

[166] Kathleen has framed the case for custody and decision-making based on allegations that Aamir is unfit. The principal one was her pitch to Justice Boucher, that Aamir was short-tempered and volatile with the baby. This turned out to have been counterfactual, at least as a prediction of his behaviour post-separation. She also stated that Aamir possesses dangerous views about modern medicine and accused him of modifying his opinion on issues such as child vaccination in order to make him more presentable in court.

[167] Much of the antipathy toward Aamir on the Moloney side of the court case stemmed from his adoption of a vegan diet and the belief that Aamir was forcing it on Kathleen. Until he turned 30, he was a meat-eater, bought leather, and enjoyed the fruits of animal domestication. He has no strong views about non-vegans. He wants his child to be informed about choices. The English are among the largest adopters of veganism. Its followers tend to be skeptical of a constellation of synthetic and industrial products and phenomena. Although there is nothing inherently wrong or dangerous about veganism, I do find that it was inconsiderate of Aamir to adopt it so suddenly and without much consultation at a time when there were already stress fractures in the marriage from the move to Canada, Kathleen’s need to restart her career, and his mental illness. He could have picked a better time than the one he did. He likely understands that now. There is insufficient evidence that Aamir will make decisions that will potentially harm his daughter. Separation and divorce have different effects on people, and in his case his mind appears to be in a better place. I have no doubts about his current ability to parent and to help make major decisions about the child.

[168] After basic decision-making ability, the next significant factor is communication between the parties: Kaplanis v. Kaplanis, 2005 1625 (ON CA), at paras. 11-16. In this regard, Aamir was demonstrably the more even-tempered communicator. Although she was articulate and obviously highly intelligent when testifying in court, Kathleen said things in her texts to Aamir and his family that she now wished she never sent. I appreciate that Aamir’s counsel introduced into evidence messages from her that were spiteful and ill-considered. Whatever the dynamic truly was before the separation, Kathleen was the difficult one after it. I do not believe this rose to the point of justifying granting Aamir sole decision-making, but it did lead one to suspect strongly that Kathleen would be prone to use a final say too readily.

[169] Despite the above comments, there was no evidence that either party disparaged the other in interactions with the daughter. I will not make any order prohibiting such conduct. This order is without prejudice to an application by either party for such an order, should the circumstances materially change.

[170] A joint custody order is therefore appropriate and in the best interests of the Shiptons’ daughter. The trial judge’s alternative dispute resolution option in Kaplanis that the Court of Appeal held to be ultra vires is now mandated by subsection 16.1(6) of the Act. In the event the parties are unable to agree on any major decision concerning their daughter, they will be required to attend a family mediator before bringing an application to this court. By default, if the parties do not wish to incur the cost of a mediator or cannot agree on one, they shall attend a session of a court-based mediation service such as 361 Mediate.

PARENTING SCHEDULE

[171] The parenting schedule was also contingent on the outcome of the relocation application. As with the financial provisions for support, my order regarding the relocation will necessarily create a reordering of the parents’ plans. In turn, any changes over time to the parenting schedule might impact on the amount of monthly child support payments.

[172] For example, during the time when Kathleen is enrolled in the bridge course, she will have two days of personal attendance per week in Waterloo. Once she is enrolled in full-time study between September 2024 and December 2025, she will likely need to relocate to Waterloo or within reasonable commuting distance. Aamir and his new spouse will also likely need to live closer to Waterloo, so that Aamir can exercise his duty to parent the child. Since the final term of Kathleen’s course will likely take her back to Toronto, the two families of the child will need to adjust their living arrangements accordingly. If the parties cannot agree, the parenting order can then be varied under s. 17 of the Act. I am hoping that the “chaos and conflict” foretold by Kathleen will prove to have been exaggerated and that the parties, with or without support from those who graciously offered it at the trial, will see in a peaceful and more prosperous 2026.

[173] The dismissal of the application for relocation does not restrict the ability of the parents to travel with the child for short periods of time, with the prior approval of the other parent. That approval should not be unreasonably withheld. The only condition is that the destination must be a signatory to the Hague Convention on International Child Abduction. Ireland is a convention signatory. Unfortunately, India is not a signatory. Aamir and his family will have to find ways to expose his daughter to her Indian heritage in Canada.

CONCLUSION

[174] I have decided the main issue between the parties. I do not believe it would be appropriate for me to impose detailed terms of a final order until the support payments and parenting schedule have been settled or determined with further input by the parties and their counsel. If they are able to settle the terms of a final order, it can be submitted to the court for my review.

[175] I have kept the child’s name and personal data out of the reasons for judgment, in order to shield it from the public domain. The child’s name and birthdate shall need to be included in the final order.

[176] If costs cannot be agreed, I will invite submissions following the resolution or determination of the substantive terms of the order, including any offers to settle that comply with rule 18.

Akazaki, J.

Released: March 29, 2023

COURT FILE NO.: FS-20-18690

DATE: 20230329

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

KATHLEEN SHIPTON

Plaintiff

– and –

AAMIR SALEEM SHIPTON

Defendant

REASONS FOR JUDGMENT

Akazaki, J.

Released: March 29, 2023