COURT FILE NO.: FC-15-1279-1

DATE: 2023/03/13

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Steven Kenward Jacques

Applicant

– and –

Jessica Ann Leblanc

Respondent

Eric Letts, for the Applicant

Steve Duplain, for the Respondent

HEARD: July 28, 29, and September 15, 2022; written closing submissions filed October 14, 21, and 26, 2022.

somji j

Overview

[1] This decision addresses the parties’ motion to change (“MTC”) on decision-making responsibility, primary residence, parenting time, and child support with respect to their eight-year-old child A.L. (“child”). The parties currently have shared decision-making responsibility and parenting time following a Final Order issued on consent on January 19, 2019. The father has now relocated to Smith Falls while the mother remains in Ottawa. A.L. continues to attend the same elementary school in Ottawa. Each parent now seeks sole decision-making responsibility and that the child live primarily with them.

[2] The issues to be decided are whether there has been a material change in circumstances, and if so, what parenting regime is in the best interests of the child.

[3] Upon review of the evidence and submissions of counsel, I find that it is in the best interests of A.L. to live primarily with the mother and for the father to have parenting time on alternative weekends and one evening every week. I also find that it is in A.L.’s best interest that the parents have shared decision making responsibility on all issues but if upon reasonable consultation, a decision cannot be reached, the mother shall make the final decision.

Background Facts and Procedural history

[4] The mother and father cohabited from August 2011 to September 23, 2013. They never married. A.L. was born in 2014.

[5] The mother has since partnered with her fiancé, Christopher Eyamie, and they raise three other children in addition to A.L. The father and his new partner, Sarah Del Villano, have one other child in addition to A.L.

[6] On January 29, 2019, the Honourable Justice Blishen issued an order on consent that granted the parties joint decision-making responsibility and equal parenting time and also addressed child support and other corollary relief (“Final Order”). Over the years, the parties maintained equal parenting time, but shifted from a 5-2-2-5 parenting schedule to a week on-week off schedule to minimize exchanges. They share holidays equally.

[7] On March 12, 2021, the mother brought a motion to amend the Final Order to reflect the existing week-on-week off parenting schedule and to adjust child support in accordance with the Final Order and the Child Support Guidelines, O. Reg. 391/97. While the parties had issues with co-parenting, the mother was content to maintain a shared parenting regime.

[8] The father responded by seeking an order for exclusive decision-making responsibility, primary residence of A.L., parenting time for the mother on alternate weekends, and travel with the child internationally without the mother’s written consent. The father sought a restraining order against the mother alleging online harassment, but has since abandoned this request.

[9] The parties attended a conference in August 2021, and a settlement conference was scheduled for February 14, 2022. In December 2021, the father purchased a home in Smith Falls, about an hour away from Ottawa, without informing the mother. The move was finalized in February 2022. Given the distance of the relocation, the mother amended her MTC on February 25, 2022, to seek sole decision-making responsibility, primary residence of the child, parenting time for the father on alternative weekends and Wednesday evenings, and for A.L. to continue attending school in Ottawa.

[10] While the facts surrounding a cross-boundary transfer application (“CB transfer”) were disputed at trial, the issue of which school A.L. will attend is now resolved on consent. Both parties agree that A.L. should continue to attend Agincourt Road Public School in Ottawa.

[11] At the settlement conference of February 14, 2022, the Local Administrative Justice for Family Law, the Honourable Justice Audet agreed to permit the MTC to proceed as a two-day focused trial outside the regular trial list on the issue of parenting alone (“trial”). Child support is to be resolved by way of mediation or binding judicial dispute resolution. The parties attended three trial management conferences with Justice Audet to narrow the issues and number of witnesses, to streamline the documents to be filed at the trial, and to establish a strict timeline for the examination of witnesses.

[12] The matter proceeded to a two-day trial before me on July 28-29, 2022, with reply evidence on September 15, 2022. The parties filed written closing submissions on October 14, 2022, (mother), October 21, 2022 (father) and October 26, 2022 (mother’s reply).

Evidence relied on at trial

[13] In addition to their pleadings, factums, and written closing submissions, the parties relied on the following affidavits at trial:

a. Redacted affidavit of Jessica Leblanc, the mother, dated March 31, 2022;

b. Form 35.1 Parenting affidavit for the mother, dated March 12, 2021;

c. Redacted affidavit of Angela Leblanc, maternal grandmother, dated March 31, 2022;

d. Affidavit of Christopher Eyamie, the mother’s spouse, dated March 31, 2022;

e. Affidavit of Marina Dubeau, mother of Christopher Eyamie, dated March 31, 2022;

f. Redacted Affidavit of Steven Jacques, the father, dated April 11, 2022;

g. Form 35.1 Parenting affidavit for the father dated May 7, 2021;

h. Affidavit of Sarah Del Villano, the father’s spouse, dated April 11, 2022;

i. Affidavit of Dr. Margaret deGroh, mother of Ms. Del Villano, dated April 10, 2022;

j. Affidavit of Linda Jacques, paternal grandmother, dated April 11, 2022;

k. Affidavit of Amy Periard, former neighbour, dated April 11, 2022; and

l. 36 Exhibits filed as part of the Trial record.

[14] All witnesses who submitted affidavits were available for cross-examination. Below, I summarize the parent’s testimony and why I find them both to be credible witnesses.

[15] I find witnesses – Christopher Eyamie, Sarah Del Villano, Dr. deGroh, and Christie Leroux – to be credible. The father’s counsel did not cross-examine Angela Leblanc or Marina Dubeau and their affidavit evidence stands unchallenged. The father’s counsel did not cross-examine Christie Leroux following her testimony in chief, and her evidence stands uncontradicted. I have relied on the affidavit of Linda Jacques even though she was neither on the father’s witness list nor made available for cross-examination. I have not summarized the evidence of each of these witnesses but have cited their evidence where relevant to the assessment of the parents’ evidence or the analysis of the issues.

[16] I did not find Amy Periard to be a credible witness and have referred to the reasons for rejecting portions of her evidence in the analysis section.

[17] The purpose of the two-day trial was to determine if the parenting regime since the Final Order should be revisited due to recent material changes in circumstances, namely the father’s relocation to Smith Falls. This was made clear during the multiple case management conferences before Justice Audet. The trial was not intended to revisit the entire parental history which would have required, in fairness, both parties to call considerably more evidence resulting in more hearing days. In reviewing the materials filed for the anticipated hearing, Justice Audet remarked:

…Instead of focussing on this child’s best interests in relation to the material changes in circumstances which took place following the 2019 Final Order, this has now become an opportunity to relitigate years of conflict and dysfunction between the parties, their new spouses, their extended family members and their friends (and former friends): Endorsement Jacques v. Jacques, Audet J June 1 and 8, 2022, at para 3.

[18] Justice Audet offered the parties to proceed to a full-blown trial rather than a two-day focused trial if this was how they wished to proceed, and they opted for a two-day trial. Upon reviewing the massive affidavit material filed, Justice Audet provided further directions for trial management including specifically ordering the parties not to file evidence pre-dating the Final Order. She ordered as follows:

10. Both parties are required to remove from their own affidavits evidence related to events which took place between them before the existing Final Order was made (other than background narrative): Endorsement Jacques v. Jacques, Audet J June 17, 2022.

[19] Despite this direction, the father and witnesses called on his behalf referred to evidence relating to events predating the Final Order. At trial, I informed the parties that I would not consider events pre-dating 2019. In this decision, I have referred to evidence pre-dating the Final Order where it is relevant to undisputed facts or narrative. Otherwise, evidence predating the Final Order has been given minimal, if any, weight.

[20] The father and witnesses called on his behalf also referenced a considerable amount of hearsay evidence in their affidavits. The mother’s counsel objected to its admissibility. Some redactions were made in court. However, given the limited court time available and the volume of hearsay references, I instructed counsel to provide written arguments on the hearsay references they were objecting to and that I would provide a ruling on its admissibility as part of my final decision. The parties agreed to this approach.

[21] In their closing submissions, both counsel have referred to the jurisprudence and principles on the admissibility of hearsay evidence which I have considered. Hearsay evidence is presumptively inadmissible. It may be admitted for various purposes, and there are multiple statutory or common law rules that govern such exceptions. However, where the hearsay evidence does not fall under any traditional or statutory exceptions and is being tendered for the truth of its contents, its admissibility is governed by the principled approach which requires the tendering party to establish that the hearsay evidence is necessary and reliable: R v. Starr, 2000 SCC 40 at paras 202-207, R v. Khelawon 2006 SCC 57 at paras 42, 60, R v. Mapara 2005 SCC 23 at para 15.

[22] In its closing submissions, the mother’s counsel identified the hearsay and other irrelevant evidence it was objecting to for each of the witnesses. I will address each of these.

[23] Counsel for the mother lists at paragraphs 21 and 22 of the mother’s closing submissions 34 categories of evidence and exhibits in the father’s affidavit that should not be admitted (“evidence objected to”). Counsel for the father did not address in its closing submissions why this evidence should be admitted.

[24] Upon review of the evidence, I agree with counsel for the mother that the evidence objected to, save for a few exceptions, is inadmissible for the following reasons. First, the bulk of the evidence relates to events predating the Final Order which was not to be filed. Second, some of the evidence refers to Christopher Eyamie’s past that not only predates the Final Order but was never put to him in cross-examination thereby violating the rule in Brown v. Dunn. Some of the evidence is not only historical and predates the Final Order, but contains hearsay evidence that was not argued to be necessary or reliable. For example, the father’s counsel filed an affidavit from a child protection worker dated February 9, 2017. There was no agreement on such a report being tendered, no evidence on why the worker could not be called (necessity) to cross-examine, and no argument on why the report meets the test for reliability.

[25] At paragraph 22 of the mother’s closing submissions, counsel refers to videos and photos taken governing a feud between a former neighbour Amy Periard and the mother and which are referenced in the in the father’s affidavit as exhibits C, D, E, and F. I have admitted and considered these exhibits, but as discussed in the analysis below, I find they are of limited weight in determining the parenting regime that is in the best interests of the child. I also find that Exhibits P, R, V, and K.K. of the father affidavits are admissible and have considered them accordingly.

[26] At para 23 of the mother’s closing submissions, counsel identifies 27 categories of evidence in Ms. Del Villano’s affidavit which they are argue are admissible for various reasons. Ms. Del Villano refused to concede in cross-examination the hearsay evidence in her own affidavit. Counsel for the father does not address in its closing submissions why this evidence is admissible.

[27] Upon review of the evidence, I find that all of the references, save for a few exceptions discussed below, are inadmissible because the evidence predates the Final Orders, is child hearsay evidence from A.L., or refers to evidence that was not put to Ms. Leblanc on cross-examination and violates the rule in Brown v. Dunn and therefore of limited weight.

[28] However, I find that paragraph 26 of Ms. Del Villano’s affidavit referring to a “binder of information” is admissible.

[29] Counsel refers at paragraph 24 of the mother’s closing submissions to evidence in Ms. Del Villano’s affidavit that refers to allegations of harassment and exhibits of online messages. I find this evidence is admissible as it is being tendered to corroborate Ms. Del Villano’s assertion that she has been harassed and not necessarily for the truth of its contents. However, as discussed below, Ms. Del Villano was not able to confirm that the mother or Mr. Eyamie are responsible for sending these messages. Ultimately, I find these exhibits are of limited weight in what parenting regime is in the best interests of A.L.

[30] Counsel also identifies at paragraph 25 of the mother’s closing submissions evidence referred to by Dr. de Groh in her affidavit that they argue is inadmissible. Counsel for the father does not specifically address these objections in its closing submissions. Upon review of the Dr. de Groh’s affidavit, I find that paragraphs 11, 13, 14, 19, 24, 25, 32, and 36 are inadmissible because they relate to evidence that predate the Final Order and refer largely to statements made by A.L. which is child hearsay evidence.

[31] The mother took great care not to refer to evidence that predates the Final Order or child hearsay evidence of A.L. Nonetheless, I found that all the witnesses including the mother referred in their affidavits to some statements A.L. made to them and often in relation to the other parent’s family. I find this is child hearsay evidence that cannot be relied on without hearing the evidence first hand or understanding the context and reasons why the child made such a statement. For this reason, I have not given weight to any references to A.L.’s statements in the witness affidavits except where it is relevant for the narrative or to understand why a parent took the steps they did.

[32] Counsel for the father argued at paragraph 17 of the father’s closing submissions that paragraphs 49, 54, 55, 63, 72, 73, 74, 79, 87, and 88 in the mother’s affidavit contain hearsay evidence. The mother’s counsel in its Reply submissions argued that the paragraphs do not include hearsay and explained why.

[33] Upon review of these paragraphs mother’s affidavit, I find the following:

a. Paragraph 49(a) is the mother’s response of the father’s allegation that A.L. is not doing well at school under the current parenting regime, does not contain hearsay, and is admissible.

b. Paragraph 49(b) is the mother reporting that school staff stated that there was no difference in A.L.’s engagement at school when in either parent’s care and Dr. Kelly’s stated to her is that he has not observed any different in A.L.’s behaviour at school from one week to the next. These are hearsay statements and inadmissible. I have not relied on them.

c. Paragraph 54 is the mother stating that the father’s allegation that she has not been forthcoming regarding household income is untrue. It does not contain hearsay.

d. Paragraph 55 is the mother’s response to the father’s allegation that she does not support the child’s activities. It contains statements made by the father re: swimming lessons and on which he was cross-examined. It is not hearsay and admissible evidence.

e. Paragraph 63 is the mother’s position on child support and refers to a court decision. It does not contain hearsay and is admissible.

f. At paragraphs 72 and 73, the mother states that she understands the father and Ms. Del Villano contacted her previous employer and made false allegations against her and also complained about her to CAS. The mother would have learned this from her employer and CAS staff. Counsel for the mother points out that neither the father nor Ms. Del Villano denied this in their responding affidavits. However, they were not cross-examined on these specific statements. For this reason, I have not relied on these statements for the truth of their contents, but for the limited purpose of understanding why the mother distrusts the father and Ms. Del Villano and the source of recent tensions between them.

g. Paragraph 74, the mother states that the father and Ms. Del Villano reported to ODSP that she and Mr. Eyamie were failing to report income resulting in temporary cessation of ODSP until they filed further documentation. The father admitted to her that it was Ms. Del Villano who made the initial contact with ODSP. It is an admission by the father and was not denied by him. It does not constitute hearsay.

h. At Paragraph 79, the mother reports the information A.L. provided to her that the father was moving to Smith Falls. While this evidence is child hearsay and not admissible for the truth of its contents, it is admissible for the limited purpose of understanding the narrative and why the mother contacted the father on January 31st to confirm if he was moving.

i. Paragraphs 87 and 88 refer to steps taken by the mother to prepare for the settlement conference upon learning of the father’s relocation and refers to orders by Justice Audet in the context of case management. It does not contain hearsay or confidential information about the parties’ discussions at the settlement conference.

Summary of Parents’ Evidence

A. Mother Jessica LeBlanc

[34] In her affidavit and testimony, Ms. LeBlanc reported that she lives peacefully and amicably with her fiancé, Mr. Eyamie, and their four children. In addition to A.L., Ms. Leblanc is the mother of three other girls: I, M, and S, ages 5, 4, and 2 respectively. She has been residing with Mr. Eyamie since 2016, and they were spouses at the time of the Final Order. She reported that they share parenting responsibilities and communicate well.

[35] The mother reported that A.L. enjoys times with her siblings, playing games, going for walks and to the park, reading books and doing crafts. A.L. has a strong bond with all her sisters. She is particularly close to M, who has been diagnosed to be on the autism spectrum. M is non-verbal and does not like to play with other children, but A.L. has learned to read her non-verbal cues and spends considerable time playing with her and teaching her new things.

[36] Ms. Leblanc works part-time as a personal support worker. She also conducts health and safety consultations for a restaurant a few hours a month. Mr. Eyamie cares for the girls during the day, but she assists in house keeping and preparing family meals. They have limited financial means. In her Amended MTC dated Feb 25, 2022, she reports her income for 2020 was $37,903 and for 2019 had been $22,950. Mr. Eyamie is on a disability pension. In the fall of 2020, they moved from social housing into a home owned by Mr. Eyamie’s parents.

[37] Ms. Leblanc reported that she benefits from extensive family support which includes her own mother, Angela Leblanc, and Mr. Eyamie’s parents, Marina and Mark Dubeau. A.L. has weekly visits with all her extended family, but has a particularly special bond with her maternal grandmother who she saw almost daily in the first two years of her life and who she continues to see regularly.

[38] Ms. Leblanc has epilepsy and does not drive. She relies on her extended family to drive A.L. to and from school, to activities, and to exchanges with the father. Her extended family is prepared to continue to support her in this regard.

[39] The Final Order required the father to pay $541 per month of child support, but the mother reports that he unilaterally ceased paying support in August of 2020 even though his income increased by almost $40,000 from $60,992 in 2020 to $96,602 in 2021. The mother believes it was the father’s unwillingness to pay increased support that prompted him to respond so aggressively and seek a complete change in the parenting time regime following her MTC. The child support arrears were $11,807 as of April 1, 2022,. Efforts made to resolve the issue through counsel failed. The mother acknowledged that she owes the father a few hundred dollars for a portion of child tax credits which she withheld from him. She is prepared to set it off against his child support arrears.

[40] The mother reported that co-parenting has been challenging since the Final Order. First, the father failed to inform her that he had moved to Smith Falls. She found out in January 2022 from her daughter. She denied in cross-examination that her daughter showed her pictures of the father’s new house in early December. Her testimony is corroborated by a text message she sent to the father on January 31, 2022, stating: “Moving? A.L. has mentioned that you have moved and that you bought a home in smith falls. Is this the case?” The father did not reply.

[41] The mother’s counsel contacted opposing counsel on January 31st asking whether the father was moving an hour away to Smith Falls and why this decision was not canvassed with the mother or brought to the court’s attention given there is a shared parenting schedule. Opposing counsel stated he would obtain instructions, but the mother did not receive confirmation of the move until just before the February 14th settlement conference. The mother only learned the father’s precise address at the settlement conference.

[42] Upon learning of the move in January, the mother also contacted staff at A.L.’s school. She spoke with a secretary named Colette who informed her that the school had no knowledge of the move. Later, on February 8, 2022, she received an email from A.L.’s teachers stating that the child was moving to a new home with her father’s family in Smith Falls and advising both parents of additional supports that would be made available for the child.

[43] The following day, February 9, 2022, the father sent an email to the school staff and copied the mother, stating that he, the teacher, and the superintendent had all agreed it was in A.L.’s best interest to stay at her school for the remainder of the year as well as the following year, and that he had submitted a CB transfer application. None of this was ever discussed with the mother nor did she know of the application. Between February 10 and 15, 2022, the mother received a call from the school secretary indicating that both parents had to fill out the CB transfer application which she did accordingly.

[44] The mother expressed concerns about the multiple impacts of the move on A.L. The child spends two hours a day in a car to get to and from school. A.L. leaves home at roughly 6:30 am and drives back in the early evening. She is in the car roughly 10 hours per week during her father’s parenting time. The mother observed A.L. to be very tired after a week in his care. The mother expressed concerns about A.L. being on the road in inclement weather and noted that on February 22 and 23, 2022, the father drove A.L. to school even though buses were cancelled due to weather. The mother takes issue with the father smoking in the car while driving with A.L.

[45] The mother also expressed concerns that A.L.’s after school activities will be disrupted by the move and that all of the child’s supports such as her family doctor, her therapist, and maternal family members are in Ottawa. Finally, as a result of the move, a family member has to now drive to Carp, on the father’s suggestion, where Ms. Del Villano drops A.L. off after her parenting time.

[46] The mother reported that in contrast to the father’s behaviour, she notified him when she and Mr. Eyamie were considering a move. On September 9, 2020, the mother sent the father a message stating that she and Mr. Eyamie were in the midst of purchasing a bigger house, that they were approved for a mortgage, that they were looking in the father’s area and near the school if possible, and that whatever they selected would be within city limits. She told the father she was advising him as a courtesy, but that once they purchased the new home, she would inform him of the residential address which she did in a message on Our Family Wizard (“OFW”) on November 21, 2020.

[47] Second, while the Final Order states that both parties shall consult each other about appointments and have the opportunity to attend same, the mother reported that the father makes unilateral decisions. For example, he changed A.L.’s family doctor without informing her and she believes this was done intentionally to obstruct her attendance at appointments. She reported that the father often organizes appointments at times when she cannot attend. In cross-examination, she denied that the father takes A.L. to all medical appointments, stating she has taken A.L. to several doctor’s visits. Her testimony was corroborated in an OFW message dated July 20, 2021, where she reports to the father that she is attending an appointment on August 19th with Dr. Kelly and that only one parent can attend. She inquires with the father if he has any concerns. There is also a message dated October 25, 2021, where the mother reports to the father that A.L. attended a doctor’s appointment to get a flu shot and is to return in December.

[48] The mother disputed the claim that she was uncooperative about A.L.’s health during COVID-19. She has never refused to give the father A.L.’s medical information but did refuse to provide him information about her other children given he is not their biological father and not entitled to such information. She is particularly cautious because the father and his spouse are friends with I’s biological father who poses a safety threat to her and her family. The mother voiced her concerns about to the father and his spouse about their friendship with I’s father, but claimed that the father had not taken steps to prevent contact between these persons and A.L.

[49] The mother explained that A.L. sees the father’s family dentist, and the father has dental insurance for her. When the father recently made a dental appointment for A.L. because of a sore tooth, the mother consented even though it was during a time she could not attend. She disputed the notion that she has refused to give the father A.L.’s Healthy Smiles Card which allows for free or assisted dental coverage because Mr. Eyamie is an ODSP recipient. The father asked her for the card after A.L.’s last dental visit on or around March 23, 2022. She acknowledged there was some delay in sending it to him, but she did send it on July 28, 2022, after she received a new card and verified that the father could use it even if his income was above the threshold.

[50] I do not agree with the father’s suggestion that the mother intentionally withheld information from him about A.L.’s access to the Healthy Smiles program. The father admitted that he reviewed the OFW messages and that he had been informed by the mother of the program in 2019 but did not receive the card at the time. However, he did not inquire about the card again until 2022. While there was a few months delay in getting him the card, the mother did provide it to him in July 2022 after making inquiries about whether he would be entitled to use it.

[51] With respect to schooling, the mother denied that she made a CB transfer application prior to the father’s relocation to Smith Falls, as suggested by him. The mother disputed the father’s allegations that A.L. was late to school or that her schoolwork was neglected while she is in her care. The mother filed attendance records to show that A.L. has not been late for school while under her care as her grandmother drives her. She explained the reasons for A.L.’s absences on certain days such as attending at a funeral. The mother reported that, on the contrary, school attendance records show A.L. has been late for school while in the father and Ms. Del Villano’s care, and especially since the move to Smith Falls.

[52] Third, the mother reported that it is difficult to communicate with the father about issues concerning A.L., that he does not engage in dialogue, and that he often fails to respond in a timely manner to her requests for decisions concerning A.L. or the parenting time schedule. For example, both parents agreed that A.L. should be in swimming classes, but when the father could not find a spot in Ottawa, he unilaterally signed her up in Carleton Place, knowing she cannot drive. He has travelled with A.L. outside the province without her knowledge and consent.

[53] Finally, the mother testified that the father has been disrespectful towards her and her family. For example, he has made baseless allegations that she and her partner are drug users, that there is conflict in her home, and that she is subject to a restraining order against her. The father also falsely accuses her of being uncooperative with respect to A.L.’s activities.

[54] The mother reported that the father is well aware she has been sober for over five years and any prior history of substance abuse was addressed in previous child protection proceedings, which are now terminated. The mother did acknowledge in cross-examination that she had a drink with her neighbour Ms. Periard in May 2021 but that this was an isolated incident. She acknowledged there were conflicts with Ms. Periard, but she tried to keep her children away from them. She is particularly conscientious of talking loudly because M. is sensitive to loud noises. The father is also aware that the mother has a prescription for medical marijuana.

[55] The mother denied her partner has a substance abuse problem. Mr. Eyamie was prescribed medical marijuana following a medical discharge from his service with the Canadian Armed Forces. He does not use while he is in a caregiving role. Her testimony is corroborated by her mother, Ms. Leblanc, who testified she has not seen Mr. Eyamie or her daughter under the influence of drugs or alcohol in the past five years. The mother reported that she is well aware that both the father and Ms. Del Villano have been recovering from substance abuse issues, but she was careful not to dredge up issues that predate the Final Order.

[56] The father’s allegation that she is bound by a restraining order is similarly false. In fact, because of her work as a Personal Support Worker, the mother is required to complete a vulnerable sector criminal records check and a restraining order would risk her employment. She shared that vulnerable sector criminal records check with the father.

[57] The mother reported that she is not opposed to A.L. participating in activities, but will not agree to the enrolling A.L. in such without her consultation. She is of limited financial means, and even if the father is prepared to pay for the activities, she has to ensure her family can take A.L. to the activity because she does not drive. Contrary to the father’s suggestion, she has also always contributed for her share of expenses for sports equipment and activities if requested of her. The only disagreement on s. 7 expenses has been in relation to $225 for a 50 minute therapy session which she refused to pay because the father had never notified her that she would be responsible for this cost. She does not pay for child care or summer camps because she does not require it, but has supported camps that the father wishes to enroll A.L. in.

[58] Finally, she reported that the father is often rude during exchanges. He will not make eye contact with her, will rifle through the child’s backpack to make sure nothing is missing, including in one instance emptying the bag on the lawn in full view of the neighbours, and will order A.L. to go retrieve any small item such as a water bottle if it is missing. The mother has recorded exchanges of A.L. and she observed him doing this. In another instance, he brought another man with him who extended his camera out and filmed the exchange while trying to intimidate Mr. Eyamie. The mother acknowledged that she had on occasion recorded A.L.’s exchanges because of complaints made by Mr. Jacques and Ms. Del Villano but stopped in 2021.

[59] In spite of these difficulties, the mother did not initially seek to vary the Final Order with respect to shared parenting when she brought her MTC in March 2021. Her only desire was to endorse on the record the transition to the week on-week off schedule and adjust child support which was outstanding. It was her hope that things would improve over time and the parents could successfully co-parent their child. Unfortunately, this turned out not to be the case. Upon the father’s relocation, the status quo changed and in particular, the impact on A.L. of travel two hours a day for school, prompted her to amend her MTC.

[60] In cross-examination, the father’s counsel suggested that the mother made unilateral decisions about the child’s schooling, and cited, for example, the fact that the mother enrolled A.L. for in-person school for the 2021/2022 year. I do not find this to be the case.

[61] As the mother explained, the parents were sent a form for the September 2020/June 2021 school year, asking if they would like their child to go in person or virtual given that the pandemic was upon us. On July 30, 2020, the mother consulted the father about his thoughts on in-person versus virtual school for A.L. His response was “I plan on having A.L. back in person this fall.” The following 2021/2022 year, the child was automatically enrolled in in-person schooling. If the father had any issues with A.L. continuing in that format, he did not take any steps to alert the mother. The mother completed the school survey, which she pointed out the father also received and could have completed or discussed with her. Her testimony is corroborated in her text message to the father dated March 5, 2021, were she informed him she had completed the school survey to confirm A.L. would return to in-person learning and she believed that they had previously agreed this was in her best interest. I fail to see how this communication constitutes a unilateral decision on the part of the mother.

[62] I also disagree with counsel’s suggestion that the mother unilaterally stopped A.L.’s extracurriculars activities. It is clear from the OFW messages that both parents had concerns about A.L.’s inactivity in 2019 and its impact on her health. The mother suggested that A.L. and her sister should go to gymnastics. By January 2020, however, A.L. no longer wanted to go. The mother explained this to the father and asked him not to register her for the next sessions because A.L. despised going. It was clear from the OFW exchange dated January 28, 2020, that this upset the father. While the communication on the part of both parents in this email exchange is antagonistic and could be improved, I do not find that the exchange demonstrates a unilateral decision by the mother. Interestingly, the OFW exchange has a subject line that states “Re: Re: Re: Re: Re: Re: Re: FRO/Chikd support” suggesting that the parties’ dispute may have had less to do with gymnastics and more to do with child support.

[63] I am also not satisfied that the mother complained to the Children’s Aid Society (“CAS”) about the father allowing A.L. to wander on the worksite without protective gear. The mother testified that A.L. informed her that she had attended her father’s construction site without any equipment. She contacted the father’s employer regarding what she perceived as a safety hazard. The mother acknowledged she discussed it with her neighbour, Ms. Periard, who may have made the complainant to CAS, but that she and Mr. Eyamie did not. There is no evidence to suggest that she and Mr. Eyamie, also cross-examined on this issue, has been untruthful.

[64] I found the mother to be a credible witness. She answered questions clearly and provided complete and candid answers in cross-examination and reply. She readily acknowledged things she had done, which perhaps she was not proud of, such as contacting the father’s employer or recording exchanges. Her evidence was largely corroborated by the testimony of her mother Ms. Leblanc, Mr. Eyamie, Ms. Dubeau, and her neighbour, Ms. Leroux, as well as the OFW messages and the documentary evidence from the school. I found the only significant inconsistency was that she denied that she and her partner had a binder that tracked harassment messages whereas Mr. Eyamie testified that such a binder existed because the police had asked him to keep track of such messages. I do not find this inconsistency undermines her credibility.

[65] The mother was also fair in her testimony and characterization about the father which I found enhanced her credibility. She did not attribute all the challenges that A.L. is facing with school, or health, as the fault of the father’s parenting. Despite her frustration with the father’s communication skills, she readily acknowledged that he loved A.L., has a good bond with her, and was able to meet her needs. Other than responding to the allegations of harassment discussed below, she refrained from entering the fray and dredging up historical parenting issues from before the Final Order. I found that the mother showed considerably more respect for the father and his family and support of A.L.’s continuing relationship with them than that which was accorded to her by the father and Ms. Del Villano.

B. Father Steven Jacques

[66] The father, Mr. Jacques Leblanc, has been partnered with Ms. Sarah Del Villano since March 2015, and they married in July 2019. Ms. Del Villano has been involved in A.L.’s life since 2017. The father and Ms. Del Villano have one child together, V.J., born in November 2021.

[67] The father received a Construction Carpentry-Advanced Housing Diploma from Algonquin College and has been a certified carpenter since January 2019. Ms. Del Villano recently graduated from a four year joint M.A./J.D. program with Carleton University and the University of Ottawa and is presently articling with a law firm.

[68] The father and Ms. Del Villano had another child H.J. born in June 2020, who tragically passed away in her sleep in June 2021. The father and Ms. Del Villano underwent bereavement counselling. The father arranged for A.L. to obtain counselling. The father testified that he moved to Smith Falls to get out of the house where his daughter had passed away. He chose Smith Falls because it was rural, safe, and had a different lifestyle. He wanted to live in a family friendly neighbourhood and close to his mother who lives in Monkland. He did not consider whether the move would have any impact on A.L.’s schooling or parenting exchanges with the mother.

[69] The father took possession of the new home on December 13, 2021, and A.L. slept there four times before the final move in February. She picked the colours of her room which they painted together. They have immediate neighbours with three children and A.L. has made friends with one of their girls. The home is near Starr Gymnastics and close to several parks, a beach and conservation area, as well as hiking trails.

[70] In cross examination, the father explained he believed the mother knew about the plans to relocate because he witnessed A.L. telling her mother on FaceTime. When asked why he would not discuss the move with the mother if he assumed she knew, he stated it was because it put his family’s safety at risk and that it was “just a matter of time” before something happened. When pressed further about whether he had been harassed at his residence, his reply was “no, not yet.”

[71] The father admitted that he informed the school of the move on December 10, 2021, and based on their advice, filled out a CB transfer application which was due February 11, 2022. On February 22, 2022, the school board informed him that the transfer request was approved provided one parent lived within the school district. The father testified he relied on professionals in A.L.’s life to guide his parenting decisions and this would include the choice of where A.L. would attend school in the following year. He admitted that he did not inform the mother or seek the court’s permission despite being in the middle of family proceedings.

[72] The father acknowledged that he and the mother have a history of drug and alcohol abuse predating A.L.’s birth. He obtained treatment in 2014 and has maintained his sobriety since. He does not use alcohol or any type of drug, including marijuana. He expressed concerns in that the mother and Mr. Eyamie continue to struggle with drugs and alcohol. He identified three instances in May 2021, where the mother drank while at work, drank until she could not recall her actions that day, and went to Ms. Periard’s house later on to drink alcohol. His information is based on text exchanges between Ms. Periard and the mother between May 21 and 23, 2021, and nothing he ever observed himself. The father alleged that the mother abused marijuana, as per text messages to/from Ms. Periard on May 19 and 20, 2021, where she indicated she would be consuming two packages of gummies given to her. The father acknowledged in cross-examination that the mother has a prescription for medical marijuana.

[73] The father admitted that he had concerns about Mr. Eyamie parenting A.L. even before the Final Order. More recently, he took issue with Mr. Eyamie instigating conflict with neighbours and video recording these conflicts for monetary purposes which he posted on a website called karenlivesmatter.ca. In contrast, Mr. Eyamie testified that save for one video, his recordings are downloaded off other internet websites. The father reported that the police attended the mother’s neighbourhood several times in 2021, in relation to disputes with neighbours instigated by the mother and Mr. Eyamie. However, the father’s belief that the mother and Mr. Eyamie are instigators comes from Ms. Periard with whom he spoke on February 14, 2022, following the TMC with Justice Audet. He tried to obtain police records, but the mother refused to consent.

[74] The father takes issues with the mother’s financial stability. He takes issue with the mother’s financial statement where she states she pays rent/mortgage of $1,025 per month, as well as for other fees such as property tax, condo fees, insurance, and repairs and maintenance. He claims she was approved for a mortgage in September 2020, that he understood she closed a house deal in October 2020, and when he questioned her further about her finances, she reported the house was a gift from Mr. Eyamie’s parents. The father sought particulars of the mother’s mortgage and home transfer documents. When they were not forthcoming, he paid to obtain an abstract of the property which showed that the home was owned by Mr. Eyamie’s parents. He argued that since the mother and Mr. Eyamie do not own the house or have a rental agreement, A.L. is less secure in this home which he alleges is filled with high conflict, drama, alcohol, and drugs. The father reported that the mother has had seven homes since 2014 while he has had only two, the present one being a five-bedroom house in Smith Falls. As discussed in the analysis below, I do not find the mother’s residential arrangements with Mr. Eyamie’s parents or the length of time it has taken for her to find residential security undermines A.L.’s stability of care.

[75] On cross-examination, the father was asked if he could cite any good qualities about the mother as a parent and he could not do so. Counsel argues that the father’s response reflects his unwillingness to assign a meaningful value to the mother’s role as a parent to A.L. However, the father did admit later in cross-examination that the mother had been cooperative for parenting exchanges and travel requests and had gone shopping to ensure A.L. had gifts for special occasions with his family. He also agreed the mother had “generally respected” the Final Order, while acknowledging that he had not, citing as examples, his failure to pay child support or provide timely replies to the mother’s communications to him.

[76] Counsel cross-examined the father on his delays in responding to the mother’s messages. For example, when asked in cross-examination why it took him 10 days to respond to the mother’s request for Easter dinner which was then abruptly denied, the father had little explanation for the delay except to say that they already had plans. Similarly, when asked in cross-examination why he unilaterally refused FaceTime calls with A.L. in July 2022, the father explained that it was “problematic” and A.L. was “exposed to adult issues”. However, the father could not articulate why or where in the OFW messages he alerted the mother to his concerns about such calls. When this was pointed out to him, the father responded, “you have to pick your battles” which I found was not a meaningful response.

[77] The father was reluctant to acknowledge the mother’s disability or her prescriptions. For example, when counsel put to him that the mother does not drive because she has epilepsy, he replied she had it “at one time”, suggesting that it might now be different. When he was asked about the mother’s marijuana use, he admitted it did not come as a surprise to him that she smoked marijuana but denied being aware that she had a prescription for medical marijuana. He later remembered that he had seen prescription for one gram a day.

[78] When asked about videotaping the exchanges, the father stated he did this for his own safety and this was the only way to defend yourself. He explained that he kept his phone in his front shirt pocket like a body cam because he had gone to some “sketchy” neighbourhoods to do the exchanges with the mother. He stated that her current neighbourhood was “not as sketchy as some of the other ones.” He admitted that in the summer of 2021, he had someone accompany him for a parenting exchange with Mr. Eyamie but claimed the person did not videotape it. Mr. Eyamie contradicted this testimony saying the man was actively recording the interaction. The father also testified that regretfully, there were other occasions when he and his spouse had felt it necessary to record his daughter A.L., but did not explain why.

[79] I found the father to be very emotionally distraught during his testimony. He appeared to be angry by his daughter’s present circumstances and seemed to attribute all the challenges his daughter is currently facing – whether with school, diet, health, or behaviour – to be the fault of the mother. However, when asked why he did not identify his stated parenting concerns about the mother prior to the MTC, his response was that he did not want to relitigate the matter and thought his concerns were obvious.

[80] Having said this, I am also mindful that the father recently experienced a serious trauma with the passing of his daughter, and that some of his frustration and anger may very well be the product of his own grief.

[81] Despite his emotional demeanor on the stand, I found the father to be a credible witness. In cross-examination he was frank about things he could not explain and readily conceded points. He agreed, for example, that he had identified Mr. Eyamie in his phone as “Jessica’s Bitch Chris” for which he apologized and that it was not his proudest moment.

[82] In sum, I find that this case does not turn on the credibility of the parents. I found that both parents, and in fact, all of the witnesses who testified to be credible save for Ms. Periard.

Analysis

Issue 1: Has there been a material change in circumstances to warrant a change in the parenting time regime?

[83] Both parties agree that there has been a material change in circumstances warranting a revisiting of the existing parenting order. Both parents argue that joint decision-making responsibility is no longer possible due to on-going conflicts and that it is in the child’s best interest to live primarily with one parent. Both parents agree, however, that whatever my decision, the child should continue to attend the same school in Ottawa, until the end of grade 8.

[84] I find there has been a material change in circumstances warranting a revision of the parenting order as per s. 29 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (“CLRA”). First, the father has relocated to Smith Falls, Ontario, which is 45 minutes to an hour outside of Ottawa. The court must consider the impact of this move on A.L. with respect to her commute to school in Ottawa, her ability to partake in extracurricular activities, both within and outside the school, her parenting time with each parent, including transfer time for exchanges, as well as A.L.’s ability to have quality time with her siblings, grandparents, and other family members during the week and on weekends. These issues have a direct bearing on what primary residence and parenting time schedule is in the child’s best interests.

[85] Second, while the parents adjusted to a week on/week off parenting time schedule and it was originally the mother’s intent to simply formalize this in an amendment to the Final Order, the father’s relocation has resulted in each parent now seeking, albeit for different reasons, to have the child’s primary residence with them with more limited parenting time for the other parent.

[86] Third, since 2019, a high level of conflict and distrust has developed between the parents as a result of various events. Communication between the parties has deteriorated to the extent that the father seeks to have no communications with the mother, except in accordance with the parenting order. These issues, as testified to by both parents, are addressed below. Consequently, this court must examine if joint decision-making responsibility is still possible.

Issue 2: What parenting order is in the best interests of the child?

[87] Upon being satisfied that there has been a material change in circumstances, the sole consideration for determining parenting orders including primary residence, decision-making responsibility, and parenting time, is the best interests of the children: s. 24(3) of the CLRA sets out the following best-interest factors:

Best interests of the child

24 (1) In making a parenting order or contact order with respect to a child, the court shall only take into account the best interests of the child in accordance with this section. 2020, c. 25, Sched. 1, s. 6.

Primary consideration

(2) In determining the best interests of a child, the court shall consider all factors related to the circumstances of the child, and, in doing so, shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being. 2020, c. 25, Sched. 1, s. 6.

Factors

(3) Factors related to the circumstances of a child include,

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

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

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

(d) the history of care of the child;

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

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

(g) any plans for the child’s care;

(h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;

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

(j) any family violence and its impact on, among other things;

(i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child;

(ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to co-operate on issues affecting the child; and

(k) any civil or criminal proceeding, order, condition or measure that is relevant to the safety, security and well-being of the child. 2020, c. 25, Sched. 1, s. 6.

[88] As stated in Phillips v. Phillips, 2021 ONSC 2480, the list of best interest factors is not a checklist to be tabulated with the highest score winning. Rather, the court must take a holistic look at the child’s needs and the people around them: at para 47.

[89] In coming to a decision, I have considered all the best-interest factors and highlight below those which I find are most relevant in this case and not necessarily in the order they are listed in the legislation.

A. 24(d) – history of care

[90] I find that since the Final Order, both parents have been involved in A.L.’s care including attending medical and dental appointments, assisting her with school, enrolling and taking her to extracurricular activities, and monitoring her behavioural and emotional issues. This is supported by the evidence of the parents, family members, as well as the OFW messages and communications filed as exhibits. While the parents have clearly had differences of opinion on many subjects, I find that both parents have been engaged in A.L.’s care.

[91] A.L. has resided in Ottawa since birth. Since the Final Order, both parents have shared parenting time with A.L. and have adjusted to a week-on, week-off schedule.

[92] In November of 2020, the mother relocated to a home owned by Mr. Eyamie’s parents. The mother complied with the legislation governing relocation and residential moves in situations of coparenting by informing the father ahead of time of her plan, notifying him of her attempts to locate an affordable place close to him and the school, and letting him know that she would provide the residential address once the move was confirmed. The mother provided the father with advance notice of her relocation and the father did not object or take action to bring the matter back before the court. As discussed below, the father did not extend this informational courtesy when he relocated to Smith Falls nor did he comply with the legislation governing relocation.

[93] In late January 2022, the mother learned from A.L. of the father’s intent to relocate to Smiths Falls. She immediately attempted to confirm it by communicating with the father and his counsel on January 31, 2022, but received no formal response until just before the February 14th settlement conference. She only learned the father’s residential address at the conference.

[94] I find that it is undeniable that this move disrupted the history of care as A.L. now lives half time in a town an hour away from Ottawa. I find the move impacted A.L.’s commute to school, her daily routine as she now attends Dr. de Groh’s place until her father picks her up, the scheduling and location of extracurriculars, and the child’s exchanges which now require a member of the mother’s family to drive a considerable distance to Carp.

[95] The father and Ms. Del Villano attempt to justify their failure to inform the mother of the move by suggesting that telling her would have given rise to a risk of harm to their family. I find there is no evidence to substantiate such a claim. If the father had been seriously concerned about some risk of harm, he could have brought an application to seek leave of the court to permit relocation and request non-disclosure of the residential address or a restraining order against the mom. He did no such thing. Furthermore, there is no evidence that the father changed the pick-ups or drop-offs in these preceding months because he feared the mother or Mr. Eyamie. Moreover, both the father and Ms. Del Villano reported that they believed the mother already knew of the move and possibly the address through A.L. If that was the case, it is unclear why they wouldn’t notify her, particularly given they were in litigation with a settlement conference scheduled for February 2022. Therefore, I find that the only reason the father failed to notify the mother or the court of his relocation was that he feared that the move would not be sanctioned by the court upon an analysis of the factors set out in Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27 and would have adversely impacted the 50-50 shared parenting schedule.

[96] I also do not accept the father’s counsel’s argument that notice was not required. First, it is contradictory for the father and Ms. Del Villano to testify that they did not inform the mother because they thought she already knew from A.L. and then turn around and argue, they did not have to inform her because the legislation did not require them to do so. Second, counsel’s argument that the move to Smith Falls was a “change in residence” rather than a “relocation” does not preclude the legislative requirement for notice. Both terms, as addressed in the CLRA, require a parent who has shared parenting to communicate in advance in writing any intended change in residence and set out the new address. A “relocation” is defined as a move that has significant impact on the child’s relationship with the other parent and requires 60 days’ notice whereas a “change in residence” is considered a move that is not significant. While a change in residence does not require 60 days notice, it requires nonetheless some “advanced” notice in writing: ss. 18(1), 39.1, and 39.3 CLRA; S.C. v. J.C., 2022 ONSC 4146 at para 10.

[97] For the detailed reasons discussed in the subsequent section, I find the move had a significant impact on A.L. and her mother and therefore, constitutes a relocation requiring 60 days notice. Even if I am incorrect in my interpretation and the move was simply a change in residence as suggested by the father’s counsel, the legislation still requires “advance” notice in writing which was not given here.

[98] The father took ownership and possession of the home on December 13, 2022. At that time, he had the new residential address and was in a position to comply with the notice requirements well before Christmas. In fact, he informed A.L.’s school on December 10, 2022. It was his intent to move into the home as he started showing the home to A.L. and she started sleeping over there. The fact that the family moved in gradually and completed the move by some unspecified date in February is of no consequence. Furthermore, if the father’s full-time move was contingent on obtaining a CB transfer and such an application was being contemplated, it was imperative that he inform the mother as this was clearly an issue that would affect A.L.’s schooling and something the mother was entitled to know and not discover from A.L.’s teachers.

[99] In addition, it was unfair of the father to place A.L. in the position of informing her mother of the move and/or withholding such an eventful event from her and her family. A.L. was taken to view the house as early as November 27, 2021 and was present on the day of closing December 13th. The father instructed her not to tell her mother of the new address. A.L. is an eight-year-old child. It is not her responsibility to inform either parent of significant decisions being made by the other parent nor is it fair to make her keep secrets from the other parent which can only engender feelings of distrust and confusion on the child’s part towards the other parent.

[100] I find that while the history of care since the Final Order was a shared parenting regime with both parents living in Ottawa and caring for A.L., that status quo was severely disrupted by the father’s unilateral relocation to Smith Falls without proper notice to the mother or the court.

B. 24(a) the child's needs, given the child's age and stage of development, such as the child's need for stability;

[101] Both parents have demonstrated that they are able to meet A.L.’s needs. Both parents have been engaged in A.L.’s education, health, and emotional development. Their testimony is supported by other family members, neighbours and communications filed.

[102] Dr. de Groh reported that the father and Ms. Del Villano are child focused parents who provide their children with all their needs and strive to provide them enriched lives. They are engaged with A.L. in her school work, provide her with opportunities to participate in activities, and are adept at helping A.L. identify and manage her emotions. She noted that after H.J.’s death, the father took immediate steps to support his family including enrollment in therapy groups.

[103] While the mother was frustrated with the father’s poor communication skills and condescending attitude towards her and her family, she did not criticize the father and Ms. Del Villano’s care of A.L. The father and Ms. Del Villano, on the other hand, were not so generous. Ms. Del Villano suggested that A.L. is poorly cared for at her mother’s place, exposed to conflict and insults about the father’s family, unhappy because she has to share a room with her sisters, and subject to excessive and unsupervised screen time. Most of Ms. Del Villano’s evidence, comes from child hearsay evidence of A.L. Ms. Del Villano has never observed what happens in the mother’s home and her evidence is contradicted by the witnesses who see and visit with the mother daily. Consequently, I put little weight in Ms. Del Villano’s characterization of the mother’s home.

[104] Angela Leblanc described her daughter as a nurturing and loving mother who puts her children first before her own needs. She described the mother’s place as a tidy, well stocked home and where the children are usually playing, watching tv, doing crafts, or out riding bikes or playing in the park. Ms. Leblanc has observed Mr. Eyamie over the years and described him as a supportive caregiver and positive role model for A.L. and the other children. Both parents spend the majority of their time at home with the children. Angela Leblanc’s testimony was corroborated by Marina Dubeau who has been driving A.L. and her sister since they were in daycare and has had ample opportunity to speak with A.L. and observe the family. She also reports that the mother and Mr. Eyamie are positive caregivers and parents to A.L.

[105] In addition, Christy Leroux testified that she lived beside the mother in Ms. Periard’s home. Her daughter and A.L. had play dates at each other’s houses. There were a large number of conflicts with Ms. Periard, but never issues with the mother, Mr. Eyamie, or the neighbours. The families would have barbecues and the children would regularly play together outside. Unlike Ms. Del Villano and the father, Ms. Leroux has been in the mother’s home many times. She described the mother’s house as well kept. She testified that both the mother and Mr. Eyamie were patient and kind with their children, that Mr. Eyamie was an “awesome” stay at home dad particularly given his two youngest children have special needs, that the mother made healthy food choices for her girls, and that she never observed any verbal or physical abuse in the mother’s home.

[106] It was clear in the father’s affidavit and testimony that he does not care for Mr. Eyamie. He reports in his affidavit that Mr. Eyamie is known to the police and was previously incarcerated as per CAS records dating from 2016. However, the father has been well aware since 2016 that Mr. Eyamie has been involved in parenting A.L. and did not identify Mr. Eyamie’s history as grounds to refuse shared parenting. Furthermore, there is no evidence that Mr. Eyamie is presently involved in any type of illegal activity and that such activity undermines his parenting ability. On the contrary, Mr. Eyamie was described as a patient and positive caregiver to all his children not only by family members, but neighbours such as Ms. Leroux.

[107] The father also takes issue with Mr. Eyamie’s website “karenlivesmatter.ca” and A.L.’s exposure to it. Mr. Eyamie acknowledged that he started the online platform in March 2022. It has not generated any income. He downloads videos of conflicts from online sites like Reddit and reposts them. Both he and the mother denied that except for perhaps one video, Mr. Eyamie does not post videos of live conflicts.

[108] I accept Mr. Eyamie’s evidence that he has not knowingly exposed A.L. to the website. However, Ms. Linda Jacques states in her affidavit that on February 20, 2022, A.L. took her computer and showed her Mr. Eyamie’s website stating that her stepdad was famous. A.L. was able to navigate the YouTube page to access the site. While I do not think the incident is determinative of the parenting regime to be ordered, it does indicate that A.L., like many children these days, are technologically savvy and additional care is required to limit their access to inappropriate website content and that terms are required on the parenting order to minimize the risk of A.L.’s exposure to such content.

[109] During the past few years A.L. has undergone significant changes in her family life, including residential moves with both parents. There have been tensions and conflicts between the parents which, based on the evidence of the witnesses, has impacted A.L. The child has been struggling with issues at school such that she needs additional supports. Furthermore, based on the OFW exchanges and the evidence of both parents, A.L. is also experiencing various health issues. Fortunately, she is receiving attentive care from her family doctor in Ottawa. Finally, and very sadly, A.L. has likely suffered tremendous grief from the loss of a sibling. All of A.L.’s family members reported concerns about the impact of these various events on A.L.’s physical and emotional development.

[110] Under these circumstances, I find that A.L. would benefit greatly not only from consistency and stability in her care, but a daily routine that minimizes any additional stress.

[111] Both parents have agreed that to ensure stability, it is in A.L.’s best interest to continue at her public school in Ottawa until Grade 8. However, the father’s move to Smith Falls requires A.L. to spend two hours a day commuting to school whereas the distance to school from her mother’s home is 16 minutes. If A.L. were to reside primarily with the father as he proposes, she would be spending 10hrs/week or 40hrs/month just commuting to and from school. This would be in addition to commuting times for extracurricular activities, exchanges for parenting time, and visits with family members.

[112] Commuting time is not the only issue. Children benefit from living in close proximity to their school community. Relocating A.L. to reside primarily in Smith Falls disrupts her ability to access her school community and school friends now and in the coming years. As A.L. grows older, she may wish to partake in after school programs, attend birthday parties or play dates with school friends, or participate in plays, recitals, or school performances that may go into the early evening. Living one hour away does not facilitate her ability to fully benefit from school programming or to fully participate in her school community.

[113] The distance also adds an additional layer of complexity for accessing extracurricular activities outside of school such as swimming and gymnastics because neither the mother nor Mr. Eyamie drive. They are unable to take her to programming in Smith Falls or to expect family members to travel such a distance. Registering A.L. for programming in Smith Falls also marginalizes the mother from being able to participate or spectate those activities with A.L.

[114] The problem is not a theoretical one and has already manifested itself since the move. For example, on July 13, 2022 the father wrote to the mother that A.L. was having a blast at summer camp and asked if she could attend again the following week. He offered to pay for the camp. The mother politely replied on the same day that it was not just about payment. While she appreciated his offer to pay for camps while A.L. was in her care, the camp was in Smith Falls and she could not get there and back twice a day. She noted that if it was in Ottawa, they could have tried to make it work. Similarly, in the summer of 2022, the mother understood that the parents had agreed to suspend swimming lessons until fall. She later learned the father had signed A.L. up for swimming in Carleton Place which is not easily accessible for her.

[115] As A.L. grows older, she may wish to participate in team sports or music programs. Even if the father is generously willing to drive A.L. to programming in Smith Falls or elsewhere during the mother’s parenting time, it suggests that A.L. will be spending even more time in the car. Furthermore, it does not address the mother’s marginalization from those activities because she is not in a position to travel to Smith Falls to watch any tournaments, games, or music recitals.

[116] For all these reasons, I find this best interest factor favours primary residence with the mother in Ottawa.

[117] In coming to this conclusion, I have considered that the father and Ms. Del Villano’s evidence that the two-hour drive is pleasant and pro-social and that they have “made it work” by having A.L. go to Ms. Del Villano’s mother’s place after school until they can pick her up after work. I understand this arrangement is an offer for the indefinite future by Dr. de Groh. However, I do not find this arrangement adequately considers the impact of a daily commute on A.L. which has already started to manifest itself in several respects. The mother reports A.L. is more fatigued after her week at her dad’s place. In addition, and not surprisingly, the school records supported by testimony indicate that A.L. has already been late for school several times since her relocation to Smith Falls.

[118] The father argues that in 2020, A.L. was taking public transit for 45 minutes each way when the mother lived in Bells Corners. While that might have been the case then, it is not the case now. Moreover, if the commuting was a concern, the father did not seek to amend the parenting regime because of it. While the past commute may have been equally problematic, this decision is focused on what is presently in A.L.’s best interests given her age and stage of development. The issue is not her past commute, but the father’s proposal for primary residence which would result in a daily two-hour commute for A.L. to and from school until grade 8.

[119] I also do not accept the father’s argument that the mother’s residential arrangement undermines A.L.’s stability. The mother testified that her present home is owned by Mr. Eyamie’s parents, but they pay an amount for rent/mortgage, property taxes, and utilities. Affordable housing is a challenge in this city. If the mother and Mr. Eyamie have an opportunity to enter into an affordable housing arrangement with Mr. Eyamie’s parents, all the better for them. I find this opportunity enhances, rather than undermines, A.L.’s stability. Furthermore, the fact that the mother has lived in different residences for various reasons, including affordability, does not undermine her parenting. The father has been fortunate to be able to earn a considerably higher income which has perhaps allowed for him to obtain residential stability more quickly.

[120] Both parents and their spouses have admitted that they are recovering from a history of substance abuse. This is corroborated by the exhibits filed by the father which includes his attendance at treatment programs and as well as a CAS report of February 9, 2017. The parents signed the Final Order on consent knowing each other’s past history. Their respective histories were not factors that they felt undermined a shared parenting regime.

[121] The father expressed concerns about the mother and Mr. Eyamie continuing to abuse alcohol and drugs. The mother testified that save for the incidents in May 2021 involving Ms. Periard, she has been committed to sobriety. Her evidence is corroborated by Angela Leblanc who testified she has not observed her daughter or Mr. Eyamie under the influence of alcohol for over five years. Ms. Angela Leblanc is well aware of her daughter’s past history and also sees her almost daily. I accept the mother may have consumed alcohol and/or marijuana in May 2021 as the few text messages from Ms. Periard in this regard speak for themselves. However, I am not prepared to find that the mother or Mr. Eyamie are engaged in substance abuse that undermines their parenting. Lapses in sobriety are not unusual for past addicts. Both parents also have prescriptions for medical marijuana. The issue is not whether there is any alcohol or marijuana consumption, but whether consumption is such that it is interfering with a person’s ability to parent a child in their best interests: Children’s Aid Society of Toronto v. T.R., 2009 ONCJ 384 at para 44.

[122] The best interest framework endorses a child-centered approach in determining parenting orders: Young v. Young, 1993 CanLII 34 (SCC), [1993] 4 SCR 3 at pp 62-63. While I appreciate there are many children who commute long distances to and from school without issue, particularly in rural areas, I do not find that it is in A.L.’s best interests to be subject to daily commuting stress to and from Smith Falls given her age, stage of development, and present personal challenges.

[123] I find this best interest factor weighs in favour of A.L. residing primarily with her mother.

[124] With respect to decision-making responsibility, a review of the OFW messages indicate that while there are trust and communication issues, both parents are involved in and able to make decisions for A.L. with respect to her schooling, medical, dental, and psychological needs.

[125] The father suggests he is a more engaged parent than the mother. I disagree. There are dozens of OFW messages where the mother is inquiring with the father about what his thoughts are on school issues including forms and homework, following up on what happened at a medical or dental appointment, identifying health and behavioural concerns, and discussing what activities A.L. should be enrolled in. This evidence is corroborated by the testimony of friends and family who have lived in close proximity to the mother. While it may be that the father has physically taken A.L. to more medical and dental visits than the mother, I do not find this undermines the mother’s ability to parent or make decisions. The mother is a fully engaged parent and just like the father, focused on making decisions that are in the best interests of A.L.

[126] Counsel for the father refers to a video of a conflict outside the mother’s home on October 30, 2021. The video showed Ms. Periard’s mother at the mother’s door yelling at her. The mother explained that the video does not accurately portray the whole event. The mother candidly testified that while she and Ms. Periard spent time together initially, issues developed with this neighbour resulting in two disputes with Ms. Periard’s mother. In both instances she called the police. More importantly, the mother confirmed that the children were not present at the time of conflict and that she tried to shield them from these conflicts.

[127] The father spoke to Ms. Periard following the February 14th conference and subsequently requested her to file an affidavit for trial. Ms. Periard attested that she lived next door to the mother between March and October 2021 in a condominium owned by her mother. She reported that the mother and Mr. Eyamie were in continuous conflicts with the neighbours, that they tried to instigate conflicts with her and Ms. Leroux after she declined to cooperate with them about issues concerning other neighbours, and that they videotaped her without her consent. Ms. Periard attested that she called the police about this harassing conduct and launched a complaint to the Condo board about them. She acknowledged that the mother and Mr. Eyamie made complaints about her, including her dog. She stated in her affidavit that the mother and Mr. Eyamie yelled at each other and their kids and because of this “toxic environment” she and her child had to move out. Ms. Periard also asserted that when A.L.’s sister died, the mother told everyone within the neighbourhood that the father killed the child and was under investigation.

[128] In cross-examination, Ms. Periard acknowledged that she moved out on October 31, 2021. It was the day following the videotape confrontation between the mother and Ms. Periard’s mother that she herself videotaped. Contrary to her affidavit, she acknowledged that she moved out because of complaints made against her to the Condo board about her marijuana use and other issues. Ms. Periard was shown a police report filed by Mr. Eyamie in September 2021 about her and a fellow named Shawn harassing neighbours. Ms. Periard denied having seen the report but agreed there had been incidents where the police were called. However, she no longer lived with Shawn and she could not speak about what he did in his free time. Ms. Periard testified that things had been good with the mother for a while but then they had a falling out. When pressed that she had not expressed concerns about events between her and the mother at the time they happened as per exhibits filed, she responded that she could not account for all the statements made in her affidavit because she was just answering questions asked of her. She acknowledged she had a falling out with her own roommate Ms. Leroux and it was when Ms. Leroux and the mother got close, that the “trouble seemed to have started.” When it was suggested that others such as Ms. Leroux would deny the mother’s house was “toxic”, she responded that Ms. Leroux assaulted her on September 3, 2021.

[129] Ms. Periard’s evidence was entirely contradicted by Christy Leroux who lived with Ms. Periard from April to September 2021. Ms. Leroux testified that there were multiple conflicts with Ms. Periard. Ms. Periard engaged in erratic and manic behaviour and you never knew the person who was going to enter the door. Ms. Leroux provided examples such as one incident where Ms. Periard was yelling at her daughter while she was having a bath and another incident when Ms. Periard came into her room in the basement and started yelling at her that she was a bad mother and her daughter was a brat. These incidents frightened Ms. Leroux’s daughter. Ms. Leroux testified that Ms. Periard also instigated conflicts with neighbours who she assumed were complaining about her marijuana use. She observed Ms. Periard to smoke nine large joints a day, often in the backyard and in the house. The stench was so extensive that her daughter once got a note from school because her book bag smelled of marijuana. The final incident was on September 4, 2021, where she and Ms. Periard had a physical altercation because she stopped Ms. Periard from entering her bedroom where her own daughter and Ms. Periard’s daughter were watching a video. She described Ms. Periard’s mood that day as escalating from 1 to 100. Ms. Leroux left the home after that incident because she felt she needed to protect her daughter.

[130] I do not find Ms. Periard credible. I put no weight on her description of the mother, Mr. Eyamie, the home environment, or the events involving the neighbours Her evidence was entirely contradicted by Ms. Leroux who confirmed, as the mother suggested, Ms. Periard’s confrontational character and the person responsible for instigating conflicts. This is supported by the fact that ultimately it was Ms. Periard who was required to leave the neighbourhood because of complaints to the Condo board and not the mother and Mr. Eyamie. Furthermore, Ms. Periard made allegations in her affidavit that were not supported by exhibits filed relating to events at the time. When challenged that her evidence might be contradicted by Ms. Leroux, she deflected any meaningful response by suggesting that Ms. Leroux assaulted her. I also find it highly improbable that the mother made such an egregious or insensitive statement about the father following the death of his child. I found Ms. Periard to be a disgruntled neighbour with personal animus against the mother and Mr. Eyamie due to their reports of her excessive consumption of marijuana around the residences. For this reason, I place little weight on her affidavit evidence or testimony.

[131] More importantly, one cannot always control who one has as a neighbour. That the mother found herself living beside Ms. Periard and having to address conflicts with her does not undermine her parenting abilities. The evidence suggests the mother handled these conflicts appropriately. Furthermore, as corroborated by Ms. Leroux, the mother and Mr. Eyamie do not have issues with their other neighbours. On the contrary, the family spends positive time socializing within the neighbourhood community at holiday gatherings such as Canada Day.

[132] Finally, the father alleges that the mother and Mr. Eyamie took a video of A.L. while in the bath and posted it on YouTube. I agree that if this did occur, it shows poor judgment on the part of the mother and Mr. Eyamie. However, the father does not provide a date for when this occurred and whether it was before the Final Order. More importantly, when CAS directed the parents to take it down, they complied. While the posting of videos of the children is always concerning, I am not satisfied that the mother continues to do this or that this singular video undermines her ability to exercise good judgment in making parenting decisions.

[133] With respect to decision-making responsibility, I find this best interest factor favours shared decision-making responsibility for A.L.

C. 24(b) the nature and strength of the child's relationship with each parent, each of the child's siblings and grandparents and any other person who plays an important role in the child's life;

[134] As testified to by both parents, A.L. has strong and positive relationships with members of both the maternal and paternal families including the respective spouses.

[135] A.L. has three younger siblings at her mother’s home who she has grown up with. She is close to all of them but particularly close to M, who has special needs. Angela Leblanc reported that on March 5, 2022, during a sleepover weekend, A.L. called her mother and sister I four times because she was missing them. Marina Dubeau also reported that A.L. is close to her sisters. She described the fun A.L. had with her sister I who is close in age to A.L. when she would pick the girls up from daycare.

[136] A.L. also has a younger sibling a little over the age of one at her father’s home. While I agree that all her sibling relationships need to be nurtured, I find that relocating A.L. to Smith Falls as her primary residence would significantly impact A.L. because of her absence for considerably longer periods from her three sisters with whom she has grown up.

[137] A.L. is very close to her grandmother Angela Leblanc. They have had a close relationship since birth and she still sees her three to four times a week. A.L. also has sleepovers at her grandmother’s place. In the summers, A.L. attends with her maternal siblings to her grandmother’s trailer at a lake where the mother also spent her summers.

[138] A.L. has also developed a close relationship with Mr. Eyamie’s parents. Ms. Dubeau has been assisting with drives for A.L. since she was in daycare. She presently takes turns taking A.L. to school with the maternal grandmother as well as the maternal great-grandmother Beverly Oderkirk. A.L. enjoys regular visits with Ms. Dubeau and her husband Mark Dubeau who she refers to as “Grandpa.” They have a pool at their house, and the children visit often in the summer.

[139] A.L. also spends time with her paternal grandparents Linda and Robert Jacques who live an hour away from Smith Falls but where A.L. often goes for long weekends and summer holidays. Ms. Jacques described the activities and family gatherings which she states A.L. enjoys with her cousins on their farm. The maternal grandparents make an effort to have a Saturday morning video chat with A.L. whenever she is at her dad’s place, but the mother has not permitted the same when A.L. is with her.

[140] A.L. has also developed a close bond to Dr. deGroh where she goes after school while waiting for her father and Ms. Del Villano to pick her up. Dr. deGroh has spent time with A.L. at least once a week for the past five years. They do schoolwork together, read books, and share meals. She hopes to take A.L. for a vacation at their family cottage in Minnesota. Dr. deGroh was a tremendous support for A.L. during the difficult time after her sister passed away.

[141] It is in A.L. best interest to maintain relationships with members of both families and to have a parenting time schedule that allows for continued contact with these family members.

[142] The mother has indicated that she would never prevent A.L. from seeing the father’s family. Her plan of care with respect to parenting time is more generous than the father’s in that she offers an additional weekday with the father which would allow A.L. to have weekly time with Dr. deGroh after school and to possibly see her younger sister. The mother indicated she is also flexible over which night of the week that would be.

[143] Other than the refusal to accommodate an Easter family dinner in both 2019 and 2022, there is no evidence to suggest the father has obstructed A.L.’s relationship with the maternal family or would attempt to do so in the future. The father states in his affidavit that he supports A.L. having time with the extended maternal. The problem, however, it that it is unclear when A.L. would access her maternal family because the father’s proposal only offers the mother parenting time on alternate weekends. I find that primary residence with the father in Smith Falls would significantly disrupt A.L.’s access to her maternal extended family who she is accustomed to seeing several times a week if not on a daily basis.

[144] On balance, if find that having primary residence in Ottawa under the mother’s proposed parenting plan better supports A.L.’s relationships with her maternal siblings as well as access to members of both her maternal and paternal families.

D. 24(c) and 24(e) - each spouse's willingness to support the development and maintenance of the child's relationship and to communicate and cooperate with one another on matters affecting the child.

[145] The mother’s commitment to supporting A.L.’s relationship with her father is evident in her willingness to provide the father an additional weekday of parenting time and additional parenting time for special occasions or when the father has time off work. Her commitment to nurturing the father’s relationship with A.L. is corroborated by Marina Dubeau who remarked in her affidavit of the mother’s supportive attitude towards A.L.’s relationship with her father and willingness to maintain the parenting schedule even after the unexpected move to Smith Falls was made without her knowledge and in the midst of court proceedings. Angela Leblanc also attested that she views her daughter as committed to raising A.L. with her best interests in mind which includes supporting her relationship with her father and his family.

[146] The mother’s commitment to A.L.’ relationship with her father is also demonstrated in her past conduct. In spite of their personal differences, she spoke of A.L.’s relationship with her father in a positive light. She has taken steps to ensure A.L. always has gifts for her father and his family on holidays, including when A.L.’s sister was born. In the OFW messages, she is seen asking the father how she might help and offering to rearrange parenting time so that Ms. Del Villano can have some rest with the arrival of new baby.

[147] The father, on the other hand, could not find one kind word to say about the mother’s parenting when asked in cross-examination. Much of his pleadings focused on dredging up historical events and personal histories of the mother and Mr. Eyamie that predate the Final Order and identifying external conflicts with neighbours that are of limited evidentiary value and have little bearing on issues concerning A.L. The father’s condescending attitude towards both the mother and Mr. Eyamie does not demonstrate a spirit of willingness to cooperate with them.

[148] Furthermore, and as already discussed, the father’s failure to notify the mother of his relocation to Smith Falls suggests he is less inclined to cooperate with her on matters concerning the child. The mother also cited other examples of the father making unilateral decisions concerning A.L. some of which he acknowledged. For example, he abruptly stopped FaceTime calls in July 2021. He signed up A.L. for summer swimming at Carleton Place without consulting the mother. He left the province with A.L. for vacation without telling her.

[149] The father has often ignored the mother’s communications. For example, he took 10 days before finally responding to the mother’s query on whether A.L. could join the family for Easter dinner. Another example arose in the spring of 2022, when the father would not respond to the mother’s email about concerns around A.L.’s behaviours. The mother had to write a second message to determine what the parents wanted to do together to address these issues.

[150] In addition, the father’s responses to the mother’s inquiries are at times disrespectful. For example, in July 2020 he questioned the mother when she was living in social housing about the state of A.L.’ bedroom door which had come off its hinges. The mother responded to assure him there was no risk to A.L.’s safety. The back and forth exchange culminated with the father stating: “Nothing horrible happens at my house, as for your house, yes horrible things happen, this is a fact, and I would not be surprised if you had a door on her room that she couldn’t get out of, the fact that I even have to ask you says allot.”

[151] Similarly, in January 2020 when the father refused to share vacation plans where A.L. would potentially be out of the country, the father responded to the mother by stating it is “none of your business” and that she should stop “stalking” them. I find these responses are illustrative of the father’s disrespect for the mother and the challenges she has faced in communicating and co-parenting with him.

[152] The father suggests that the mother is equally guilty of making unilateral decisions relating to A.L. but I do not find that supported in the evidence. For example, he argues she applied for a CB transfer and failed to inform him suggesting that there was a surreptitious application by the mother to change A.L.’s school. This was not the case.

[153] The mother testified that she did not file any application for CB transfer until the school staff called her sometime between February 10 and 15, 2022, indicating that because the father had made a CB transfer following his relocation to Smith Falls, she would have to fill out the same application to keep A.L. at the same school. She complied with the request.

[154] The mother’s evidence is corroborated by an email sent to the father from the school dated February 22, 2022. The school notified the father by email that his CB transfer application was rejected because it was the mother’s address and not his address that was to be used for the application. The email went on to say that the mother had completed the CB transfer application at the school’s request, and therefore the transfer was granted allowing A.L. to stay at her same school provided one of the parents, which in this case would be the mother, continued to live in the district of the Ottawa and Carleton District School Board. The mother’s CB transfer application was not a unilateral decision, but prompted as a result of the father’s move to Smith Falls and the school’s request that she fill out an application in order to secure A.L.’s spot at her school.

[155] The father’s counsel takes issue with the mother’s testimony that she did not follow-up regarding the CB transfer and was unaware of the decision until much later. However, upon close examination of the February 22nd email from the school to the father, it is clear that she was not copied on the email. Furthermore, if the father was upset about her application, he certainly did not alert her to this issue when he received the February 22nd email. The parents were exchanging messages on OFW on a myriad of issues such as doctors’ visits, exchange times, COVID tests, and swimming lessons, during February 2022, but are silent on this issue. The father did not identify any concern with her application at the time because, I suspect, he benefitted from it in that it was his aim to have A.L. stay in the same school.

[156] The father takes issue with the mother later considering relocating A.L. to a school closer to her residence. As the mother indicated in her affidavit dated March 31, 2022, the father’s relocation to Smith Falls resulted in A.L. now attending school in a catchment area in which neither of them lived. This caused her to reconsider whether A.L. should be attending a school closer to her own home such as Lakeview Public School. The mother was transparent with the father in this regard and set it out clearly in her affidavit. She later reconsidered that option, which she was entitled to do, and has now agreed that it is in A.L.’s best interest to stay at her school. Her conduct was entirely reasonable.

[157] The father has also failed to abide by terms of the Final Order such as paying child support since August 2020. If the father had concerns about where mother lived suggesting she has resided in “sketchy neighbourhoods”, his refusal to pay child support certainly has not helped matters. As Marina Dubeau reported, she and her husband have had to step in to provide financial support to the mother and Mr. Eyamie particularly because the father has refused to provide court-ordered child support payments.

[158] The father suggests that he has not paid child support because the mother has not been forthcoming with financial disclosure. However, the Final Order was clear that he was to pay $541/month. The parties are expected to adjust the amounts if there are changes in income upon receipt of annual income tax disclosure, but this does not mean a parent is to stop paying support altogether pending an adjustment. Furthermore, if the mother was not forthcoming with financial disclosure, the father could have brought a motion for disclosure or to amend support, but he did neither. There is also no evidence that the mother has withheld her tax information from him which is all that would have been required for a recalculation of support.

[159] The father also failed to tell the mother that he had started a corporation which is important for the mother to know in the event that he earns an income from that corporation or pays for expenses through the corporation that might be considered personal expenses which would thereby augment his income for the purposes of child support.

[160] It is clear from a review of the OFW messages that the parents have trust and communication issues. I do not find that descending into a detailed review of these OFW exchanges serves to advance the determination of what parenting regime is in the best interest of A.L. As already noted, while the parents have had differences in opinion on how to deal with issues concerning A.L. and how to communicate about them, both are engaged parents.

[161] The distrust between the parties appears to have started in 2016 when the mother and Mr. Eyamie experience harassment from the mother’s former partner Justin Coleman and his partner Katelyn Ethier. Tensions escalated because the mother and Eyamie believed the father and Ms. Del Villano were friends with these persons. The mother and Mr. Eyamie claim they received visits from people they did not know on behalf of the father and Ms. Del Villano and eventually installed a doorbell camera for security reasons which put an end to the problem. According to Mr. Eyamie, the online messaging and telephone calls worsened and even his mother Marina Dubeau started receiving messages. More recently, Mr. Eyamie was subject to online harassment through his “karenlivesmatter.ca” website and identified one message as coming from “Steven’s Apple device’ which he attributed to the father. The harassment seized when he posted a message that he might go public with regard to the situation.

[162] On the flip side, Ms. Del Villano claims that she has been harassed by the mother and her family for years. She refers to slanderous and demeaning remarks being posted about her on websites and Facebook accounts of people with different names. She attributes these remarks to the mother because the timing coincides with court dates, but she has no evidence to support that either the mother or Mr. Eyamie are responsible for these messages.

[163] The mother denies she has ever engaged in online harassment against the father or Ms. Del Villano. They have exchanged social media messages in the past regarding disagreements on litigation issues, but at no point was it of a harassing nature. The mother has also received harassing messages from the same Facebook account of Emily Graves that Ms. Del Villano received messages from. Her approach was to delete the account. More importantly, the mother did not attribute the messages or insult Ms. Del Villano. Rather, she testified that she does not know Ms. Del Villano well, but believes she is an okay parent to her daughter. Her only present concerns were that Ms. Del Villano was possibly recording A.L. for litigation purposes. The evidence suggests that the mother has been otherwise supportive of Ms. Del Villano. Ms. Del Villano has participated in amicable exchanges and has also called the mother for advice when she was having difficulty getting A.L. to go to school. I do not find that the mother or Mr. Eyamie are responsible for the messages attributed to them by Ms. Del Villano and that this demonstrates their inability to co-parent as suggested by the father and Ms. Del Villano.

[164] I find that on balance, the father has had considerably more difficulty in communicating with the mother and is less willing to cooperate on decisions involving A.L. I find this best interest factor also favours the mother.

E. Child’s views and preferences

[165] The court is not in a position to ascertain A.L.’s views and preferences. No request was made for an order to have a voice of the child report or input from the Office of the Children’s Lawyer.

F. The child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;

[166] No evidence has been put forth that either plan would adversely affect A.L.’s heritage.

G. Family violence

[167] The father and Ms. Del Villano asserted that A.L. was exposed to conflict in the mother’s home. However, other than the conflicts with the neighbour Ms. Periard, no one has identified any specific instances of family conflict or violence.

[168] Furthermore, none of the witnesses testifying in support of either party suggested the presence of domestic family violence in either home.

[169] While the father did at one time seek a restraining order from the mother, he abandoned the application. When pressed as to whether he was ever threatened, he could not identify any specific incidents. While both parents distrusted each other for a time and would surreptitiously record exchanges, I do not find this is a case where family violence is a relevant factor.

H. Plans of care

[170] The father’s proposal is for the child to have primary residence with him, commute from Smith Falls to school in Ottawa, and attend Dr. de Groh’s house after school until such time as the parents can pick her up and return home. The father proposes that the mother would have parenting time on alternate weekends. I do not find this plan is in A.L.’s best interest because, as already discussed, the impacts of the commute and A.L.’s limited parenting time with her mother, three sisters, and maternal extended family.

[171] I find the mother’s proposed plan of care minimizes the impact on A.L. of an unnecessarily long commute to and from school and is more generous with parenting time towards the father and his extended family.

Conclusion

[172] Upon consideration of all the best interest factors, I find the mother’s proposed plan for primary residence in Ottawa with parenting time for the father on one weekday and alternative weekends is presently in A.L.’s best interest. The mother’s plan will allow for A.L. to see her father and his family as well as Dr. de Groh weekly and again on alternate weekends. Given that the mother is flexible about providing the father additional parenting time, there will be an order that where the father’s weekend lands on a statutory holiday on either end (Friday or Monday), he will have parenting time with A.L. for that extra day. This does not apply to weekends at Christmas or Easter which will be shared equally by the parties.

[173] There will be an order that each parent will have parenting time with A.L. for four weeks in the summer. The parents will decide which weeks by March 1st each year. This allows both parents to plan their summer holidays and register A.L. for summer camps should they wish in a timely manner. There will be an order that during the summer weeks, the parents will facilitate virtual and in-person contact (if not out of the jurisdiction) with the other parent as is in A.L.’s best interest.

[174] Neither the mother nor Mr. Eyamie drive. The mother’s extended family is already assisting the mother’s family with drives to school, activities, groceries, and appointments. The father’s unilateral relocation to Smith Falls has resulted in an additional burden to the mother as she must now ask family members to drive a greater distance for exchanges. Moreover, I find it is unnecessary and not in A.L.’s best interest to wait around in parking lots for exchanges. For these reasons, there will be an order that the father will be responsible for transportation for all the child’s exchanges and those exchanges will occur either at school or at the mother’s home.

[175] Both parents have proposed sole decision-making responsibility. Despite the father’s challenges in communication, I am not persuaded that this factor alone favours the mother having sole decision-making responsibility. I find the father is an engaged and committed parent who wishes to remain involved in all aspects of A.L.’s life. I find that it would be in A.L.’s best interest that the parents continue to have joint decision-making responsibility. Shared decision-making responsibility ensures that the father continues to engage in A.L.’s education, health, and mental development. However, if upon reasonable consultation, the parents are unable to come to a decision, the mother will make the final decision.

[176] What constitutes “reasonable” consultation will vary on the nature and timing of the decision that has to be made. Decisions about attendance at an extracurricular activities may require less consultation between the parties than decisions around school issues or medical treatment which may require multiple communications and input from professionals before a final decision can be made. There is no magic formula, and I do not find it is helpful to set timelines for what is reasonable. Based on the evidence to date, I find the mother will communicate and engage in reasonable consultation with the father and will be able to assess if and when those reasonable efforts have been exhausted. Should the parties reach an impasse or not agree on a decision, I find it is in A.L.’s best interest that the mother make the final decision on all issues.

[177] Nothing in the parenting schedule prevents the parties from agreeing to additional parenting time for the father during pd days, special holidays, or when the father has time off work. Furthermore, the decision-making responsibility structure proposed requires that both parents continue to be engaged in matters concerning A.L. For example, both parents should continue to be engaged with A.L.’s schoolwork, communicate with teachers, participate in parent teacher conferences, take A.L. to activities, and attend for appointments involving A.L. There shall be an order that the parties share information they obtain from professionals concerning A.L.

[178] Finally, the parents will have to make decisions regarding A.L. for years to come. It is in A.L.’s best interest that the parties learn to better communicate and co-parent so as to minimize the stress and conflict in her life. For this reason, there shall be an order that the parties will attend for 20 hours of instruction/counselling on co-parenting with a counsellor they mutually agree upon and that such counselling be completed over the next 18 months. At least four hours should include the parties’ spouses so that past grievances can be addressed and the parties can move forward in co-parenting. The scheduling of the sessions and whether some sessions needs to be done with the parents or A.L. individually to ascertain her views is left to the discretion of the counsellor.

[179] The counselling sessions will be paid for by both parents provided the father is paying child support. If child support is not being paid, the father will pay for the costs of the sessions.

Order

[180] Pursuant to the Children’s Law Reform Act, there will be an order on a final basis that the Final Order dated January 29, 2019, issued by the Honourable Justice Blishen will be varied and the following conditions added:

1. Paragraph 1, 2, and 20 shall be varied to: The parties shall have shared decision making responsibility. The parties shall reasonably consult one another prior to making all important decisions about A.L.’s welfare, including, without limitation, decisions about her education, medical, dental, and psychological needs, religion, and extracurricular activities. Where upon reasonable consultation the parties cannot reach an agreement, the mother will make the final decision.

2. Each parent will sign the necessary consents to allow both parents access to information related to A.L.’s educational, medical, dental, or psychological needs.

3. Each parents will inform the other of any appointments made in relation to A.L. and make reasonable efforts to schedule such appointments to allow the other parent to attend should they wish.

4. Each parties will inform the other of the outcome of any appointments or discussions with educational, medical, dental, or psychological professionals in regards to A.L. within 24 hours of those discussions.

5. The parties shall make reasonable efforts to inform each other about issues concerning A.L. and will respond to such communications in a timely and respectful manner.

6. The parties shall make reasonable efforts to ensure A.L. does not access inappropriate online materials including but not limited to the website karenlivesmatter.ca.

7. The parties shall refrain from speaking negatively about the other parent with A.L. or in front of A.L.

8. The parties will refrain from involving A.L. in adult conflicts and shall encourage their spouses and members of their respective extended families to do the same.

9. Paragraph 33 shall be varied to: Abigail shall continue to attend Agincourt Road Public School and both parties shall sign all necessary documents to ensure Abigail remain at this school as long as possible. Once A.L. is no longer eligible to attend Agincourt Road Public School or attends Grade 8, the mother shall reasonably consult with the father about the choice of school and take into consideration the recommendations of any school professionals, the location of the school, and A.L.’s own wishes before deciding on which school would be in A.L.’s best interest.

10. Paragraph 46 shall be varied to: A.L. will reside primarily with her mother in Ottawa, Ontario.

11. The father shall have parenting time every second weekend from Friday after school to Sunday at 7:00 p.m. and every Wednesday (or another weeknight as agreed upon by the parties) from the end of school up to to 7:30 p.m.

12. The father and/or members of his family shall be responsible for picking up A.L. from school for his parenting time and dropping her off at the mother’s home at the end of all the father’s parenting time.

13. Where the father’s parenting time falls outside the regular schedule, he is responsible for all pick-ups and drop-offs which will be at the mother’s home in Ottawa.

14. Should the father’s parenting time land on a weekend which includes a statutory holiday on either side, the father will have parenting time for that holiday. This does not apply to the Christmas or Easter holidays which shall be shared equally.

15. The parties shall share all school holidays. Each parent will have four weeks of holiday time with A.L. in the summers. The parties will determine which four weeks by March 1st of every year. The four weeks need not be consecutive.

16. During the summer weeks, each parent will facilitate virtual or in-person contact (if not out of the jurisdiction) between A.L. and the other parent as is in A.L.’s best interest.

17. If requested by Linda Jacques, the mother shall facilitate one weekly call between A.L. and her paternal grandparents.

18. The parties shall attend for 20 hours of co-parenting instruction/counselling with a counsellor mutually agreed upon and to be completed within 18 months of this Order. At least four of the 20 hours shall include the parties’ spouses.

19. The parties shall share in the costs of counselling unless and if the father is not paying child support in which case he will pay for the costs of the counselling sessions.

20. All the remaining conditions of the Final Order of Justice Blishen dated January 29, 2019, that have not been superseded by the above-noted conditions shall continue to apply.

21. Pursuant to the Family Law Act, this Court orders that the Applicant father's claim for a restraining order against the Respondent mother is hereby dismissed.

22. Pursuant to the order of the Honourable Justice Audet of June 17, 2022, the outstanding issue of child support if not resolved shall be determined by way of a binding Judicial Dispute Resolution. The parties shall hereby follow the process set out in the Practice Direction with the necessary documentation to be prepared within the next 30 days.

[181] Counsel shall provide me with a draft Order consistent with this decision and which also incorporates the clauses of the Final Order that continue to apply so that there is one parenting order governing the parties. The draft Order should be sent to scj.assistants@ontario.ca and to my attention.

Costs

[182] The mother is the successful party at this trial and is entitled to a costs award notwithstanding that I have ordered share decision-making responsibility. The parties are encouraged to resolve the issue of costs keeping in mind that costs awards must be reasonable and proportional. If the parties are unable to come to an agreement, both parties may file written submissions and shall not exceed two pages, exclusive of the Bills of Costs and Offers to Settle. The mother shall file her submissions by March 31, 2023, and the father by April 14, 2023. The mother will have until April 28, 2023, to reply. Please email the submissions to scj.assistants@ontario.ca and to my attention.

Somji J.

COURT FILE NO.: FC-15-1279-1

DATE: 2023/03/13

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Steven Kenward Jacques

Applicant

-and-

Jessica Ann Leblanc

Respondent

REASONS FOR JUDGMENT

Justice N. Somji

Released: March 13, 2023