COURT FILE NO.: FD 76/19

DATE: May 11, 2023

ONTARIO

SUPERIOR COURT OF JUSTICE

FAMILY COURT

BETWEEN:

J. S. A.

Hamoody Hassan, for the Applicant

Applicant

• and -

J. R. A.

Anthony H. Little K.C., for the Respondent

Respondent

HEARD: November 22, 23, 24, 25, 28, 30, December 1, 2, 8, 2022

MITROW J.

INTRODUCTION

[1] The only issue in this trial is the parenting order relating to the parties’ child, L (sometimes referred to as “the child”), who was born in February 2016. At the time of trial L was age six and attending grade one.

[2] The parties were married on May 11, 2012 and the parties separated in November 2018.

[3] The application in this proceeding was issued January 23, 2019 and included a claim for divorce. The claim for divorce had been severed from other claims in this proceeding and on February 9, 2021, a divorce order was granted. Accordingly, this trial proceeds pursuant to the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.).

[4] In these reasons, the applicant father is referred to as “the father” and the respondent mother is referred to as “the mother.” Both maternal and paternal grandparents have had ongoing involvement with L and all four grandparents testified at trial. I refer to each of the father’s parents as “the paternal grandfather” and “the paternal grandmother” or collectively as “the paternal grandparents” or “the father’s parents.” I refer to each of the mother’s parents as “the maternal grandmother” or “the maternal grandfather” and collectively as the “maternal grandparents” or “the mother’s parents.”[^1]

[5] As discussed in more detail later, this case is somewhat unusual because the parties have been following a longstanding interim order that provides for parenting time to be week-about notwithstanding that since separation the mother has been residing in Innisfil and the father has been residing in London. Prior to separation, the parties were residing in London. The child was born in London.

[6] The order for the week-about arrangement was made prior to L starting school but was continued while L attended junior kindergarten, senior kindergarten and grade one. At the time of trial, each parent had registered L to attend grade one in that parent’s catchment area, and as a result, L was physically attending school in two different school boards, with L attending each school on alternating weeks depending on which parent L was with.

[7] There is no dispute between the parties that the week-about arrangement is no longer tenable and does not meet L’s best interests. However, the parties differ substantially as to the parenting order that meets L’s best interests.

[8] The mother submits that L should alternate living with each parent on an annual basis. L would then attend school in the area where the parent he is living with resides. The annual change in L’s residence would occur in September of each year to coincide with the school year.

[9] The father submits that L should reside primarily with him in London and that L should have a regular schedule of parenting time with the mother.

[10] For reasons that follow, the final order stipulates that L shall reside primarily with the father, that the mother shall have parenting time as set out in the order, and that both parties shall have joint decision-making responsibility.

THE PARTIES’ SEPARATION AND BRIEF LITIGATION HISTORY

i) The parties’ separation

[11] The evidence supports a finding, which I make, that in early November 2018, the father expressed his desire to separate. While the decision to separate was not mutual, it was also apparent that the mother was not interested in pursuing mediation as had been suggested by the father.

[12] At the time of separation, the main income for the family was the father’s full-time employment. The mother had been a full-time caregiver for the child since his birth but had recently pursued some self-employment cleaning houses.

[13] It is apparent from the evidence that the father wielded control over the separation process. He dictated to the mother that he would terminate the lease where the parties were living effective the end of December 2018. The father’s plan was that he and the child would move into his parents’ residence in London.

[14] Over the years, the paternal grandparents had been very generous, permitting the mother and father to live in their residence on two separate occasions. This was facilitated by creating accommodation in the basement of their home. The grandparents also had paid for some renovations to facilitate this accommodation. At one point, the parties and L had resided in the paternal grandparents’ home for a period of approximately 14 months according to the paternal grandmother.

[15] The parties agreed initially that the mother would take the child to her parents’ residence in Innisfil for several days. However, when the mother returned with the child and her parents, it became clear, at least to the father, that the mother was planning to move to Innisfil on a permanent basis and take the child with her.

[16] This led to a confrontation at the father’s place of employment. The father was at work at the time and there was no dispute that when the mother, together with her parents and the child, arrived at the father’s place of employment, that the father saw a packed vehicle and he removed the child from the vehicle.

[17] During this incident, the paternal grandfather arrived. Eventually, police were called and attended. However, the police advised the parties that they could not intervene as there was no court order.

[18] The father then returned the child to the mother, following which the mother, her parents and the child departed for Innisfil. It was the mother’s evidence that she told the father she was going to her mother’s residence to decide what the next step should be, but the father disagrees with that evidence.

[19] This “showdown” between the parties was unfortunate and unnecessary. It was attributable in large measure to the father’s conduct resulting in the mother having no place to live in London. While the father had arranged accommodation for himself and L at his parent’s residence, it is apparent that the father failed to give any consideration to the mother’s circumstances, and in particular where she was going to live, at least for the short-term. This impacted L directly.

[20] It was open to the father not to terminate the lease so quickly. He could have continued paying the rent for a transitional period of time to allow the mother an opportunity to arrange for accommodation in London. This would ensure that L would have a place to stay in London during his parenting time with his mother. There was no evidence that the father was paying rent to his parents. Rather, the father’s financial statement sworn October 12, 2021 – while living with his parents – disclosed no rent payments and included only a modest $300 per month for room, board and household expenses. The father’s conduct in terminating the lease in the precipitous matter in which he did, was unjustified, self-centered and, most importantly, was not in L’s best interests.

[21] While it is understandable that in the short-term, and out of necessity, the mother would be staying at her parents’ residence, this did not justify the mother’s conduct in changing L’s principal place of residence from London to Innisfil over the father’s objections.

[22] It was clear, and patently so, that the mother had decided to move with the child to Innisfil. The incident at the father’s place of employment where police were called had occurred in or about the latter part of November 2018. Within a very short time, the mother had retained a lawyer in Barrie who then forwarded a letter[^2] dated December 3, 2018 to the father.

[23] The purpose of this letter was to facilitate the father’s “access” to the child and a specific proposal was set out in the letter.

[24] The jurisprudence is replete with cases where the courts have criticized parents for resorting to self-help or unilateral action in parenting cases: see for example, Bloom v. Bloom, 2017 ONSC 1568 (Ont. S.C.J.), at paras. 36-38.

[25] I find that the mother engaged in self-help. This conduct was neither reasonable nor in the child’s best interests.

ii) Litigation history

[26] The mother did not initiate a proceeding to seek the court’s approval to have the child reside with her in Innisfil.

[27] Instead, as indicated earlier, the father commenced an application in London. He also brought an urgent motion for various relief including an order that the child’s primary residence shall be with the father. The mother brought a motion to transfer this proceeding to Barrie. On March 6, 2019, Leitch J. dismissed that motion with costs to the father. In her reasons, Leitch J. found that the father had not consented to child’s relocation to Innisfil, and that the evidence established that the child’s ordinary place residence was within the jurisdiction of the Family Court in London.

[28] The father’s motion was adjourned at various times with parenting orders being made pending the adjournments. On August 19, 2019, the parties consented to an interim order made by Munroe J. That order included: (1) that both parties shall share interim joint custody of the child; and (2) that the week-about parenting schedule in place shall continue with the child to be in the care of his parents on alternating weeks from Friday to Friday, pending trial or written agreement of the parties. That order also placed this case on the trial list for June 2020.

[29] The above trial date made sense as L was not starting school until the fall of 2020. However, due to Covid, the trial was delayed and did not proceed until over three years later, with much of the delay being attributable to Covid-related backlogs in the court.

[30] A further motion was brought by the father as a result of a serious incident. On July 31, 2020, the mother had driven L to the usual mid-point exchange location in Guelph for the father to pick up L for his week. On this occasion the mother’s ability to operate a motor vehicle was impaired by the consumption of alcohol. The mother was charged with two Criminal Code offences, impaired driving and “blowing over” (ss. 320.14(1)(a) and (b)), and one count under the Liquor License Act, R.S.O. 1990, c. L.19, of driving a motor vehicle with an open container of liquor. The mother eventually pleaded guilty to impaired driving. This incident is described in more detail below.

[31] In his motion the father sought reduced parenting time for the mother, but Korpan J. instead ordered on October 14, 2020 that the mother shall not consume alcohol within 24 hours prior to and during her parenting time. The week-about parenting time was not changed. The evidence before Korpan J. was that the mother’s charges were still pending before the court. The condition in relation to alcohol consumption continued and was in force at the time of trial.

THE PARTIES AND THE CHILD

i) The father

[32] The father’s employment history included various jobs leading to his current position, where he is warehouse manager with an annual income of $55,400. Due to his parents’ missionary work, the father lived in Chile for a number of years. He completed his schooling in Chile. The father speaks Spanish and describes himself as bilingual.

[33] During the marriage, the father had been attending Western University while working full-time. However, the father testified that he put this “on hold” at the time of separation, after being close to completing his first year.

[34] The father continued to live at his parents’ residence with L since separation. However, the father entered into a new relationship. The father and his current partner (“the father’s spouse”) were married just prior to trial. The father’s spouse testified at trial. The evidence establishes that the father and his spouse acted in a careful and child-focused manner in introducing L to the father’s spouse while their relationship was ongoing.

[35] At the time of trial, the father was living with L at his parents’ residence during his week with L. The father’s spouse would visit regularly at the paternal grandparents’ residence but otherwise she stayed in her apartment during that week.

[36] The father and his spouse both testified that their intention is to purchase a home together in London.

[37] The father has one adult sibling, a sister, who continues to live with the paternal grandparents because of her special needs. It was the father’s testimony that he has always assisted in being available to care for his sister and the father intends to continue to be available to assist in his sister’s care.

[38] The paternal grandparents both before and after separation have had substantial involvement with L, including the time when L was living at their residence. The father starts work early in the morning and the paternal grandparents would assist in getting L to school when he entered grade one. They also assisted in supervising L’s online schooling during junior and senior kindergarten.

ii) The mother

[39] It was the mother’s evidence that the parties met while working for the same employer in London and that they were married after a dating relationship.

[40] In her testimony, the mother did indicate that she does continue to have an ongoing relationship with her biological father.

[41] As noted earlier, the mother initially was a full-time caregiver for L. It was her evidence that when the father began to attend university, she became self-employed as a cleaner. She estimated that she was engaged in that employment for approximately six to eight months.

[42] After moving to Innisfil with her parents, the mother’s commenced a new relationship. The mother testified that she and L moved in with her partner (“the mother’s partner”) in September 2019. The mother and her partner cohabited for a period of approximately three years in a home owned by her partner. This home was in close proximity to her parents’ residence and was located in the catchment area for the public school that L was attending in Innisfil.

[43] The mother testified during cross-examination that she met her partner in or about January 2019, and that after dating for a period of time, that L was included in some of the activities involving the mother and her partner, although L had not stayed overnight at the residence of the mother’s partner until cohabitation started.

[44] Quite soon prior to trial, the mother and her partner separated. Consequently, the mother and L returned to the residence of the mother’s parents. The mother testified that she and her partner had taken different “life paths”. The mother’s partner had been scheduled to testify for the mother at trial, but he was not called as a witness. It was the father’s position that the mother’s partner was not called because his testimony would not have assisted the mother. The father requests that an adverse inference should be drawn against the mother for her failure to call her partner as a witness. That issue is addressed later in these reasons.

[45] The father alleges that the mother had deliberately failed to disclose for a period of approximately one year that she and L were living at her partner’s residence. I find that the evidence supports the father’s allegation.

[46] When the mother commenced cohabitation with her partner in September 2019, she was under an obligation to file a fresh form 35.1 affidavit to reflect this new information: see r. 35.1(7).[^3] The mother failed to do so. Consequently, the father was unaware of this important information.

[47] Two weeks after being charged with the drinking and driving offences referred to earlier, the mother forwarded a text message dated August 14, 2020, to the father. This text was intended for the maternal grandmother but was sent by the mother in error to the father. The contents of this text message demonstrate an intention to deceive the father as to the mother’s true address. The mother’s evidence during cross-examination denying the true intent of this text message was unconvincing.

[48] The motion referred to earlier that came before Korpan J. following the mother’s charges, was heard on September 16, 2020. In her endorsement[^4], Korpan J. in paragraph six makes a finding that “the mother did not advise the father of the child’s move when she recently began residing with her boyfriend” even though the mother was obliged to do so.

[49] The mother did file an updated form 35.1 affidavit, sworn September 24, 2020, disclosing that she was residing with her partner. However, in paragraph 9 of that affidavit, which requires a listing of all caregivers that a child has lived with, the mother failed to disclose that the child had been living with her and her partner since September 2019[^5]. The mother also failed to file a fresh form 35.1 affidavit when she moved back to her parents’ residence just prior to trial. The mother was cross-examined on these matters, and she had no credible explanation for her failure to provide the required information.

[50] The mother has not worked outside the home since moving to Innisfil. The mother testified that she has a double curvature of the spine, a condition that she described as “double scoliosis”. The mother testified that her family physician is referring her to a spine specialist, but the referral had not yet been made. The mother claimed that treatment potentially could include surgery.

[51] The gist of the mother’s evidence is that she is unable to work as a result of her back condition. There was no credible explanation from the mother explaining how she was able to work before the date of separation. The mother provided no medical report to corroborate any of her testimony regarding her medical condition.

[52] The mother was in receipt of Ontario Works after moving to Innisfil. It was her evidence that she had applied for benefits under the Ontario Disability Support Program Act, 1997 (“ODSP benefits”) and that she was denied ODSP benefits three times prior to being approved. The mother did file a statement from ODSP confirming that she was awarded ODSP benefits retroactive to February 2019, and that she received a cheque for $15,488 in October 2021 for retroactive payments.

[53] The mother’s plan is to remain at her parent’s residence, to care for L during the alternate weeks that L is with the mother, and to follow through with any medical treatment for her back. The mother has no plans to work outside the home.

iii) The child L

[54] The evidence from the parties and all four grandparents corroborates that L has been well cared for in both homes since separation, that he has been doing well in school and, in particular, that during grade one he has made good progress while physically attending both schools.

[55] There was consensus between the parents, with corroboration from all the grandparents, that L’s education needs have been met by both school boards.

[56] L has made friends, including at school, in both locations. The evidence established, and I find, that L is a happy and well-adjusted child who enjoys his time with both parents. L has a strong interest in hockey as noted by the parents and the grandparents.

[57] Both parents described L’s physical accommodation including his room and the child-focused activities that each parent engages in with L. I find that both parents are committed, and loving parents and that L has had the benefit of each parent’s devotion to his nurturance and meeting his needs.

[58] As noted earlier, L has a good relationship with the father’s spouse. L’s life has been enriched from his relationship with all his grandparents.

[59] Both parents in their evidence were able to be complimentary to the other. During cross-examination, the mother agreed with the suggestion that there was good parenting in the father’s home and that the father has an outstanding support network in London. During his evidence-in-chief, the father testified that L loved being with his mother in her home; and during cross-examination the father agreed with the suggestion that L was thriving with both parents.

[60] While there was some dispute between the parents regarding which school L would be registered in for both junior and senior kindergarten, the end result was that L was registered by the mother for both junior and senior kindergarten at the public school where the mother resides. The evidence suggested, and I find, that the father’s approach to school registration for junior and senior kindergarten was more conciliatory, and that the mother rebuffed somewhat the father’s approach and acted in a more unilateral fashion to ensure that L was registered with the school in Innisfil.

[61] Overall, however, this lack of cooperation by the mother did not result in any material consequences for L. For both junior and senior kindergarten, L’s class attendance was predominantly virtual. When L was able to attend in person, he did so while with the mother, and while with the father, he attended school virtually.

[62] There was a disagreement between the parents as to whether L should attend French immersion. The father was supportive of French immersion based on his own experience in learning two languages, whereas the mother was not in agreement. The mother’s concern about French immersion related to L having an issue with his speech. The father did acknowledge that the mother’s concern about not enrolling L in French immersion was related to L’s speech issues. The mother first noticed that L was having some issue with his speech while living in London and the mother enrolled L at the Thames Valley Children’s Centre. While the father was involved to some extent, the evidence indicates that the mother predominantly took L to his appointments.

[63] While L was in junior kindergarten, the mother enrolled L in a speech therapy program offered at L’s school in Innisfil. L made good progress. He continued his speech therapy during senior kindergarten. At the time of trial, L was not attending for speech therapy, although the mother indicated that that option was still available.

[64] The parties were able to cooperate throughout the years to ensure parenting-time exchanges occurred weekly as arranged by the parties at the mid-point in Guelph. The parties agree, as did the grandparents, that L did not like having to do all the travel.

[65] Overall, the parenting time between exchanges occurred without incident although on occasion there was some acrimony, for example, when the mother complained that the father was late. The father blamed his tardiness on traffic.

[66] Although there were some unpleasantries between the two sets of grandparents during the process of the parents’ separation, there was a memorable occasion described by the paternal grandmother during her testimony. It was her evidence, that early on, all four grandparents were present at an exchange in Guelph which took place at a Tim Horton’s. The maternal grandmother suggested that the grandparents should read a book to L so that he could see all four grandparents together. This in fact happened, L’s face “lit up” and he loved the experience. The lesson from this? The child will benefit when the important adults in the child’s life can demonstrate to the child that they are able to cooperate and treat each other respectfully for the sake of the child.

THE MOTHER’S CRIMINAL CHARGES

[67] I accept the father’s evidence as to his observations of the mother at the exchange on July 31, 2020. While the child was in the car, the mother drove over a curb. The father could smell alcohol on the mother’s breath. He saw an open beverage can in the vehicle but could not say what its contents were. After the child had left the mother’s car, the mother stated that her steering column was locked. The father went to the car and noted that the vehicle was not turned on. After the vehicle was started, the steering column was unlocked. The father observed the mother almost hit two cars while backing up. The father took a picture of the license plate and called the Guelph police. An officer arrived after approximately 10 minutes.

[68] The Crown brief synopsis[^6] indicated that an Ontario Provincial Police, (“OPP”), officer was dispatched “to a high-risk traffic complaint.” The mother’s driving had been observed by another driver who had contacted the OPP. On arrival, the police officer observed the mother leaning against the door of a coffee shop. The officer could smell a very strong odour of alcohol. When the officer asked the mother what she was doing, the mother was incoherent and mumbled something before leaning against the side of her vehicle. The mother was arrested and did provide a suitable breath sample. The actual reading is redacted, but the reading is described as being “well over” the legal limit. While at the scene, the police officer observed an open can of “Black Fly” vodka drink.

[69] As noted above earlier, the mother pleaded guilty to impaired driving. She was convicted of that offence on November 20, 2020. The two other charges were withdrawn on that date. The sentence imposed was a $2,000 fine, a 15-month probation order and a 12-month driving prohibition. The fine was paid by the maternal grandfather.

[70] One of the conditions in the probation order required the mother to attend and actively participate in all assessments, counselling and rehabilitation programs as directed by the probation officer in relation to alcohol abuse. The evidence at trial regarding the mother’s criminal conduct was emotional for both parents: for the father, as to the risks that the child was exposed to and what might have happened; and for the mother, an acknowledgment as to the seriousness of her conduct and the risk to the child.

[71] The mother described attending Alcoholics Anonymous, (“AA”), on a regular basis. She tries to attend at least once per week and also attends AA online.

[72] The mother attended the “Back on Track” program. She testified that she had to attend once or twice per week. The mother also had the “interlock” device installed on her vehicle which enabled the mother to drive after eight months. The mother added during her evidence-in-chief that she has her “one-year medallion” for being sober. During cross-examination, the mother acknowledged that she had not attended any programs prior to the probation order. I accept the evidence of the maternal grandfather, that he drove the mother twice weekly to her AA meetings, that there is no alcohol in their home as the maternal grandparents do not drink, and that the maternal grandfather has not observed the mother drinking since she was charged. It is noted, however, that for most of the time after the mother was charged, she continued to reside with her partner. There is no independent corroboration regarding the mother’s alcohol use during this period of time.

[73] While the mother has taken positive steps to address her alcohol issue, for which she is commended, the evidence indicates that the recent criminal conviction was not an isolated occurrence regarding the mother’s alcohol use. The mother was convicted previously of impaired driving in 2007. Also, her partner had been convicted of impaired driving in 2013 and he too participated in the “Back on Track” program. The evidence as to the mother’s progress in dealing with her alcohol issue was not corroborated by any healthcare professional. There was no report, or other evidence, corroborating the mother’s progress in the “Back on Track” program.

[74] The paternal grandmother testified that the mother had participated in a type of ceremony at their home where the mother pledged not to drink anymore and poured out the contents of two bottles of alcohol as a symbolic gesture. During cross-examination, the mother did not dispute this evidence. The mother agreed that she had made a promise of sobriety and that she did not keep her promise.

[75] It is evident that significant driving is required for L to facilitate the parenting-time exchanges.

[76] The facts underpinning the mother’s recent impaired driving conviction in 2020 are most disturbing. It is a significant aggravating factor that the mother drove the distance that she did while impaired and with the child in the car.

[77] The sanctions necessary to protect the child in relation to the mother’s alcohol issues are canvassed later in these reasons.

FAMILY VIOLENCE

[78] Section 2(1) of the Divorce Act contains a definition of family violence:

family violence means any conduct, whether or not the conduct constitutes a criminal offence, by a family member towards another family member, that is violent or threatening or that constitutes a pattern of coercive and controlling behaviour or that causes that other family member to fear for their own safety or for that of another person — and in the case of a child, the direct or indirect exposure to such conduct — and includes:

(a) physical abuse, including forced confinement but excluding the use of reasonable force to protect themselves or another person;

(b) sexual abuse;

(c) threats to kill or cause bodily harm to any person;

(d) harassment, including stalking;

(e) the failure to provide the necessaries of life;

(f) psychological abuse;

(g) financial abuse;

(h) threats to kill or harm an animal or damage property; and

(i) the killing or harming of an animal or the damaging of property.

[79] There was evidence from both parties and the paternal grandparents about an occurrence at their home when the father became angry, acted aggressively and caused damage to a baby gate and to a bed that was in the lower-level bedroom. The father’s anger stemmed from being confronted by the paternal grandfather regarding certain complaints that had been made by the mother regarding the father, including finances and the father’s preoccupation with online gaming.

[80] There was general consensus between the witnesses that the father acted aggressively. The father agreed during cross-examination that he became extremely upset. The maternal grandmother described the father’s movements in the bedroom as chaotic.

[81] Where there is any conflict in the evidence, I prefer and accept the mother’s evidence. The paternal grandfather seemed somewhat apologetic for raising issues with the father in the manner that he did. The paternal grandmother was more critical of the conduct of the paternal grandfather, rather than the father, because in her view the paternal grandfather allegedly had reached some conclusions without giving the father an opportunity to provide his side of the story.

[82] The focus should be the father’s anger, aggression, and the property damage he caused. I reject the father’s somewhat sanitized description of his behaviour, trying to deflect blame on the paternal grandfather. The father was less than credible when he inferred that the property damage was incidental or unintentional, testifying that he “sort of tripped” over the baby gate, and that his “pants” got caught on the bedrail as he was trying to “step over” the bed.

[83] I accept the mother’s evidence that L was present during this incident, and that when the baby gate was broken, that the mother had been upstairs with L and that she carried L downstairs. The mother described the father as acting in a fit of rage.

[84] The mother did not agree that the father was “cornered” by the paternal grandfather unexpectedly about various issues. For example, it was the mother’s evidence that the father’s preoccupation with online gaming was an ongoing issue that had been discussed previously.

[85] After the events had unfolded, the paternal grandmother testified that the father drove off. The mother, however, added more context. I accept the mother’s evidence that the father drove off erratically in his car, that he spun out with the tires squealing and that his driving was aggressive. The mother described that he almost did “a doughnut” with his vehicle.

[86] In another occurrence the maternal grandmother testified about an incident that she witnessed which had occurred at the parents’ home shortly after the child was born. The maternal grandmother described that the father kicked and hit the family dog with his fists because the dog had chewed some footwear.

[87] The maternal grandmother described the father’s behaviour as unleashed anger. It was her testimony that she was concerned because she had never seen that type of behaviour from the father before. During cross-examination, the maternal grandmother agreed that she had not observed any injuries to the dog. When asked during cross-examination whether she stepped in when the father was hitting the dog, the maternal grandmother was most emphatic that she had not because she had never seen the father behave in such a manner. I accept the maternal grandmother’s evidence as to her observations on that occasion. The father did not testify about this specific occurrence.

[88] Another significant event occurred between the parties at their home shortly after the child was born.

[89] The father testified that the mother had planned that day to visit one of her friends. The father asked her whether she was taking L with her and whether the father needed to wake him up because he was still sleeping. According to the father, the mother got “very enraged” with that request and started yelling. I would note the father’s narrative thus far seems suspect. The somewhat benign question that the father asked the mother, when considered objectively, could hardly be expected to cause the mother to become “very enraged”.

[90] The father continued with his testimony, stating that he told the mother he would take care of the child and that the mother could just go. The mother continued to yell, she threw some of the child’s blankets and toys at the father and slapped him on the shoulder and the back. Later the father said that the mother slapped him in the arm and punched him in the arm and back. The father carried L in his arm and was also holding a coffee. He was close to the top of the stairs and testified that he was hit by the mother, lost his balance and slid down the stairs with the coffee in one hand and L in his other arm.

[91] The father then went to the living room and put L in a “bouncy cradle.” The father testified that the mother came down the stairs, that he grabbed her by the arm, took her to the door and put her outside “because I couldn’t let that situation continue.” It is significant that the father gave no evidence as to the mother’s behaviour or demeaner when she came downstairs. Rather, he claimed that he did not want to lose “any control that [he] had left.”

[92] The father said that L was between four to nine months old. The father then added that L could have been four months old. The father described the weather as “a nice day outside.” The father testified that he locked the door and did not let the mother in “for about 10 minutes.” When the mother came back in, it was the father’s evidence that they talked briefly, that the rest of the day was fine and that they both stayed home.

[93] It was the mother’s evidence that this incident took place about one month after L was born, that she had just gone through “C-section” surgery. The mother had been invited by a friend to go out for an hour or so. It was the mother’s evidence that she had been caring for L since birth and had not been out.

[94] When she told the father about going out, it was her evidence that he became upset, that he did not want to be left alone with L, and that he did not think it was a good idea for the mother to go out.

[95] The father then refused to allow the mother to take L. The mother admitted to grabbing the father from the back trying to get L. The father had been with L at the change table. The arguing between the parties then escalated. The mother testified that the father then took the mother by her housecoat and held her against the wall in a choking position. The father let the mother go after she threatened to call the police. The mother testified that the father proceeded to go downstairs but that he ended up slipping down the stairs with L in one arm and the coffee in his hand.

[96] It was unclear from the mother’s evidence what caused the father to slip down the stairs but there was no evidence from the mother that she had hit the father. The mother testified that at that point she was scared because the father was angry and that she was not sure how he might react while he was holding L in his arm.

[97] After sliding down the stairs and spilling his coffee the father was angry, he grabbed the mother aggressively, not gently, by her housecoat and “threw” her outside of the front door. The mother was clear that this occurred in the middle of winter. She described the weather as “freezing.” She was in her pajamas and housecoat.

[98] The mother attempted to gain entry into the house from a sliding door, but the father locked that door to prevent her from entering. The mother then told the father that she was going to the neighbour to call the police if he did not let her in. Soon after he opened the front door to allow her inside. The mother’s evidence was that she did not say anything further or discuss that incident with the father because she was afraid of his reaction.

[99] In relation to this last incident, I prefer the mother’s evidence. Her narrative was clear and convincing. She knew exactly when the incident occurred unlike the father who thought L was somewhere between four to nine months of age. I find that the father’s own evidence supports a conclusion that he forced the mother outside as a means of diffusing his own arising anger.

[100] I accept the mother’s evidence as to the weather and L’s age when the incident occurred. While the mother admitted to grabbing the father from the back, I find that the father’s physical aggression against the mother was far more serious, including forcing her outside. I do not believe the father’s evidence that he slipped down the stairs because the mother hit him.

[101] The foregoing incidents demonstrate, at the least, that the father has an issue with anger management. I accept the mother’s evidence that during the marriage the father did not address his anger issues.

[102] The extent to which family violence impacts on the parenting order is discussed later in these reasons.

RELEVANT LEGISLATION/JURISPRUDENCE

i) Relocation

[103] Section 2(1) of the Divorce Act defines relocation:

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

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

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

[104] The facts of this case characterize it as a relocation case. There is some dispute between the parties as to what the relocation is. The father points to the mother’s attempt at the time of separation to change the child’s residence to Innisfil, as discussed earlier.

[105] The mother submits that the issue of relocation is governed by the interim order. She argues that because the father is trying to change the equal parenting time outlined in the order, that the father has the burden of proving that the relocation is in the child’s best interests: s. 16.93(1). The issue of burden of proof regarding the relocation is deal with later in these reasons.

[106] The Divorce Act amendments came into force on March 1, 2021 and were not in effect when this case was commenced. At that time, the analysis for relocation cases was jurisprudence-based, with significant reliance on Gordon v. Goertz 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27, and in particular paragraph 49, where the law in relation to relocation is summarized. While Gordon involved a variation application with an existing final order for custody in favour of the mother, the present case requires the court to make a final order at first instance.

[107] The Divorce Act amendments include a number of specific provisions regarding relocation. An issue in the present case is whether the amendments apply because the present case was commenced prior to the amendments.

[108] In Barendregt v. Grebliunas, 2022 SCC 22 (S.C.C.), relied on by the father, the court was dealing with an appeal in a mobility case. The Divorce Act amendments had come into force after the courts below had decided the case. The discussion by the Supreme Court of Canada as to the application of the Gordon analysis and the amendments includes the following:

a) For over 25 years, Gordon has been the governing authority for mobility applications. A two-stage inquiry is required: 1) the party seeking the change must demonstrate material change in the child’s circumstances; and 2) the court must determine what order reflects the child’s best interests (para. 105);

b) Although Gordon was a variation case, courts have applied the Gordon framework with necessary modifications when dealing with a parenting arrangement in the first instance;

c) Further, even though Gordon was decided under the Divorce Act, the courts have applied the framework in cases governed by provincial legislation (para. 106); and,

d) The court noted the transition provision in para. 35.3 of the amended Divorce Act which provides that a proceeding not finally dealt with when the amended Divorce Act comes into force shall be dealt with and disposed of in the accordance with the amended Divorce Act. Although submissions had not been received as to the application of s. 35.3, the court concluded that the outcome in that case would be the same regardless of whether the case was decided under the amended Divorce Act, or under the refined Gordon framework. The court stated that the new relocation provisions in the Divorce Act largely mirror developments in common law since Gordon. Other than the foregoing, the discussion of the transitional provisions was left “for another day” (paras. 109, 110).

[109] In O’Brien v. Chuluunbaatar, 2021 ONCA 555 (Ont. C.A.), the court was dealing with a case pursuant to the Children’s Law Reform Act, R.S.O. 1990, c. C.12, (“CLRA”) that was not finally disposed of when the amendments to the CLRA and the Divorce Act came into force. The court noted that the transition provision in the Divorce Act makes it clear that the amendments apply to an ongoing proceeding commenced before the amendments came into force. For cases commenced pursuant to the CLRA, the court stated that, although the CLRA does not contain an explicit transition provision similar to the Divorce Act, the CLRA amendments must apply to any ongoing proceeding as “common sense” dictated that the parallel amendments to the Divorce Act and the CLRA governing parenting orders should operate in the same fashion: paras. 5 and 39 - 42.

[110] I find that the Divorce Act amendments apply to the present case.

ii) Best interests

[111] The court is required to take into consideration only the child’s best interests when making a parenting order or a contact order: s. 16(1). When considering the factors in s. 16(3), the court shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being: s. 16(2).

[112] Section 16(3) sets out the factors to be considered by the court in determining the best interests of the child:

Factors to be considered

(3) In determining the best interests of the child, the court shall consider all factors related to the circumstances of the child, including

(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 spouse, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;

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

(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 cooperate, in particular with one another, on matters affecting the child;

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

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

(ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate 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.

[113] In relation to a relocation case, s. 16.92(1) contains additional factors to consider in determining what is in the child’s best interests:

Best interests of child — additional factors to be considered

16.92 (1) In deciding whether to authorize a relocation of a child of the marriage, the court shall, in order to determine what is in the best interests of the child, take into consideration, in addition to the factors referred to in section 16,

(a) the reasons for the relocation;

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

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

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

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

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

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

DISCUSSION

[114] In relations to the factors in s. 16(3), I consider factors (a) and (b). L’s needs require a stable parenting relationship with both parents. It is important for L to have a predictable routine where he can attend school, make friends, pursue extracurricular activities and where he can do so without interruption.

[115] L is fortunate to have a strong and secure relationship with each parent. L benefits also from the important role in his life of both sets of grandparents. As noted earlier, however, the paternal grandparents have been a more constant presence in L’s life. In contrast, L never resided with his maternal grandparents prior to separation, and after separation, the mother and L lived with the mother’s partner for a period of approximately three years. There was no evidence of any ongoing relationship between L and the mother’s partner, whereas L continues to enjoy a good relationship with the father’s spouse.

[116] In relation to factor (c), I find that each parent has demonstrated a willingness to support the development and maintenance of the child’s relationship with the other parent, subject however, to the mother’s failure to do so when she moved to Innisfil with L when the parties separated.

[117] The effort of each parent in promoting a relationship with the other was patently evident over the many years that they continued to implement the week-about arrangement, and they did so despite the distance between their respective homes. Also important is each parent’s testimony speaking positively about the other’s parenting.

[118] Regarding factor (d) – the history of care of the child – this would include a consideration of the status quo. As noted earlier, L’s primary caregiver following his birth was the mother, as she was at home. That situation continued until the mother started her self-employment.

[119] After separation, except for a brief period after the mother moved to Innisfil with L and before both parents were able to retain counsel, L’s parents have cared for him on an equal basis. There was little or no evidence from the mother as to her partner’s role in caring for L during the time that she resided with him.

[120] There can be no dispute that the parents created a new status quo on an interim basis when they consented to the week-about order. At the time of the order, neither parent could have foreseen how long that order was going to continue.

[121] Regarding factors (f) and (g), those factors are not significant considerations. There were no material differences in each parent’s approach to the considerations listed in factor (f). Although the father points to his ability to speak Spanish, there was no cultural or heritage-based connection on the father’s side to the Spanish culture. There was no evidence whether the father speaks Spanish with L or whether L was learning to speak Spanish.

[122] As to L’s wishes and preferences, there was little evidence on the point, with the exception that L does not like the ongoing travel between his parents’ homes.

[123] Regarding factor (g) – any plans for the child’s care – this is a significant consideration in the present case. The mother’s plan, I find, is problematic. It focuses on the concept of equal parenting time to the exclusion of other issues affecting L’s best interests.

[124] Section 16(6) provides as follows:

Parenting time consistent with best interests of child

(6) In allocating parenting time, the court shall give effect to the principle that a child should have as much time with each spouse as is consistent with the best interests of the child. [emphasis added].

[125] The mother’s proposal would result in a court-ordered uprooting of the child each year. I find that L’s best interests are not served by such a proposal. In the context of the distance that separates the parents, L’s needs require that he should have a principal place of residence where he will attend one school and where he can pursue any extracurricular activities, for example, hockey, with one organization. I find that the mother’s proposal will be disruptive, and it will undermine L’s stability. L will be a child who will have to “pull up his roots” and move every year.

[126] While this case is about L and his best interests, it is notable that the mother provides no jurisprudence where a court has made an order similar to what the mother is suggesting. I do not accept the mother’s premise that her plan promotes L’s best interests because L will have the benefit of two homes, two schools, and two sets of classroom peers and community friends. This analysis ignores the disruption that L will face each year when he has to move.

[127] The present case is not a case where the parents live in the same city or within close proximity to each other, and where an order for equal parenting time can be made to meet a child’s best interests with minimal disruption to the child. In Sodhi v. Sodhi, 2002 CarswellOnt 1050 (Ont. C.A.), the mother, who had interim custody of the parties’ two children, unilaterally and without notice to the father, moved with both children from Ottawa to Stoney Creek. The father brought a motion seeking the return of both children to Ottawa, but that relief was denied. At trial, the trial judge awarded custody of both children to the mother with generous access to the father and paternal grandparents, provided that the mother moved back to Ottawa with the children, failing which, the trial judge awarded custody to the father with similar generous access to the mother.

[128] On appeal, the custody order in favour of the mother was upheld, but the condition requiring the mother to return with the children to Ottawa was overturned. The reasons for overturning the condition included that the trial judge failed to consider the impact of uprooting the children from their present lives in Stoney Creek; by the conclusion of the trial, the children had been residing in Stoney Creek for a year and the evidence indicated that they were well settled in a caring and nurturing environment, both at home and at school: para. 19.

[129] It is instructive that in Sodhi, the children had settled into their homes for one year at the time of trial.

[130] In the case at bar, this court is being asked, in effect, to award primary care to one parent, and then graft onto that order a condition that a year later primary care will revert to the other parent, with the process to repeat annually. The mother’s plan raises a viable risk that L will be settled into his home, his school and his daily routine which will then be disrupted. That is not in L’s best interests.

[131] Further, an order that meets L’s best interests must be based on the evidence and known circumstances present at the time of trial. If L is placed with one parent, then a condition requiring L to change primary residence a year later, cannot take into account what L’s circumstances will be a year later, and whether a year later, it will be in L’s best interests to move.

[132] The father’s plan, in contrast, provides L with stability and avoids subjecting L annually to the disruption of having to move and change his school.

[133] In relation to the foregoing discussion regarding each party’s plan, I have considered also the additional best interests factors contained in s. 16.92(1) that apply when there is a relocation. The considerations set out in factors (a), (b), (c), (d) and (e) have been discussed. In relation to factor (d), the compliance with the existing order by both parties has been dealt with. In so far as factor (d) requires compliance with the notice provisions in s. 16.9, that section was not in force when the mother moved at the time of separation. The considerations in factors (f) and (g) also have been largely dealt with.

[134] I return to s. 16(3) and I consider factors (h) and (i). Generally, each party has demonstrated a willingness to care for the child; however, as to each party’s ability to do so, there are issues when considering the mother’s history regarding alcohol and the father’s domestic violence. Regarding factor (i), the parties have demonstrated an ability to communicate and cooperate by implementing the week-about regime specified in the interim order.

[135] I consider factor (j) which deals with family violence. The evidence supports the mother’s concerns that the father has unresolved anger issues that he has failed to address. The father has damaged property, his anger constitutes psychological abuse and he was physically abusive to the mother. The father’s action in unilaterally terminating the lease and leaving the mother with her limited financial resources with no place to live constitutes financial controlling behaviour and amounts to financial abuse.

[136] In relation to family violence, the court is required to take into account the factors in s. 16(4) when considering the impact of family violence. In applying s. 16(4), I find: (1) the mother’s family violence centers around one occurrence; (2) the father’s family violence conduct was more frequent and more serious; (3) the child was present during the incident at the paternal grandparents’ residence and also during the incident between the parents shortly after the child was born; (4) the father’s anger has made the mother fearful; (5) the father has not taken any steps or sought any counselling for his anger issues and (6) the physical confrontation between the parties was limited to one occurrence.

[137] The Supreme Court of Canada has stated that findings of family violence are a critical consideration in the best interests analysis, and that courts must consider family violence and its impact on the ability and willingness of any person who engaged in family violence to care for and meet the needs of the child: Barendregt v. Grebliunas, supra, at para. 146.

[138] In relation to factor (k), the mother’s alcohol issue and her related criminal record present a potential risk to the child’s safety.

DECISION

[139] I conclude that it is in L’s best interests: (1) for the parties to have joint decision-making responsibility for L without the right for either party to make the decision in the event of a dispute; and (2) for L to reside primarily with the father with parenting time to the mother as set out in the order below.

i) Decision-making responsibility

[140] Each party, in his or her respective draft order, has provided for consultation regarding decision-making responsibility, but each party sought an order for final decision-making responsibility if the parties could not agree.

[141] It is not in L’s best interests to vest the father with authority to make final decisions where there is a disagreement. In considering s. 16(3)(j)(ii), the father’s history of family violence, including anger issues, would place the mother at a disadvantage if the father had the authority to make final decisions. In this context, the mother would be in a vulnerable position having to engage with the father in relation to parenting decisions, knowing that he is able to override her suggestions. There is a risk that the mother may refrain from pressing her viewpoint, knowing that the father has the final say and fearing a potential angry response.

[142] The father displayed little if any insight into his conduct and its effect on the mother. During the incident when he broke furniture at his parents’ residence, the father sought to shift responsibility to the paternal grandfather because he confronted the father about various issues that made him angry.

[143] There is evidence that L benefits when the parties have equal participation in decisions regarding L. I take into account that the current order made in August 2019 provides for interim joint custody with no provision allowing a party to make a final decision in the event of a dispute. It is significant that the parties were able to cooperate sufficiently to meet L’s best interests through a pandemic and almost three years of school.

[144] Also, I do not view that it is in L’s best interests to give the mother final decision-making responsibility in the event of a dispute. L will be residing primarily with the father, and the father needs to have equal participation in the decision-making process.

[145] The order below deals with some aspects of decision-making responsibility to reflect that L is primarily in the father’s care. L’s school shall be governed by the father’s place of residence, and L’s regular healthcare providers, for example, his physician and dentist, should be in the same municipality where the father resides. I address the issue of French immersion, although it is unclear from the evidence whether L still can be enrolled in French immersion given that he is close to completing grade one and has not yet been in a French immersion program. The mother’s refusal earlier to agree to French immersion was not arbitrary, but was based on her concerns regarding L’s speech issues for which the mother arranged appropriate and child-focused intervention. It is in L’s best interests that any decision regarding French immersion be made jointly by the parties. Further, L has been attending school in the public school system and any change in that regard also must be made jointly by both parents.

ii) Parenting time

[146] L shall reside primarily with the father. Regarding L’s change in residence annually, it is rejected as not being in L’s best interests for the reasons already discussed.

[147] In placing L primarily with his father, I have considered also that: (1) the father has had a more stable residence history than the mother subsequent to separation; (2) both before and after separation, L has had more involvement and has spent more time with the paternal grandparents as compared to the maternal grandparents; and (3) while the mother has made progress in dealing with her alcohol issue, she has a history of two convictions for impaired driving, she has pledged in the past to stop using alcohol but did not do so, and she provided no independent corroboration from a healthcare practitioner or from the program that she attended as to her progress in dealing with her alcohol issue. This lack of corroboration is relevant considering that when it suited her purposes, that the mother was neither honest nor forthcoming when she failed to disclose for a year that she was living with her partner rather than her parents.

[148] In making an order in L’s best interests, the court is not bound by the plans provided by each party. Accordingly, after rejecting the mother’s proposal for equal parenting time, I did consider whether it was in L’s best interests to reside primarily with the mother. For reasons already discussed including the father’s more stable residence history, the extent of L’s relationship with his paternal grandparents and the mother’s alcohol issue, I concluded that L’s best interests still require placement with the father. In addition, L has a stronger connection to London as opposed to Innisfil.

[149] It was evident from the mother’s testimony that she recognizes that she cannot consume alcohol. She referred to her one-year medallion for being sober. The mother’s draft order did include a provision not to consume alcohol 24 hours prior to and during parenting time. However, I find that L’s best interests require the order to go further than that. If the mother consumes alcohol during her non-parenting time, then that is a slippery slope which potentially can put L at more risk when the mother has parenting time. The order below includes a provision that the mother should not consume alcohol at any time, and if she does, then she has to provide written notice to the father regarding the details.

[150] Given the risks associated with the mother’s impaired driving convictions, it is necessary to further protect the child by including a ban on nonprescription drugs 24 hours prior to and during parenting time. In her draft order, the mother proposed a ban on alcohol and nonprescription drugs 24 hours prior to and during her parenting time; however, she proposed that the ban should be mutual, which the father opposed in his draft order. I find there is no basis for provisions relating to alcohol and drug use to be mutual.

[151] The parties are not opposed to a provision obliging both parties to report to the other all details should either party be charged with a criminal offence or serious driving offence under a highway traffic act. Accordingly, the order below provides for mutual reporting provisions in that regard.

[152] During the summer months, L shall always be with the mother for the first two weeks following school and the balance of the summer shall be shared equally.

[153] The draft proposed orders filed by both parties contain detailed provisions regarding the parenting order. The parties agree on many of those provisions. Where appropriate and in L’s best interests, the order below incorporates various parenting provisions proposed by the parties.

iii) Final order – other provisions

[154] There were a number of other claims made in the pleadings. Both parties proposed in their draft orders that all other claims be dismissed. That has been included in the order below.

[155] In relation to child support, it is the position of the father that he is not seeking child support from the mother as she continues to be in receipt of ODSP. The order below includes a provision that the father’s claim for child support is dismissed on a without prejudice basis to claim child support should the mother obtain employment.

EVIDENTIARY ISSUES AT TRIAL

i) Relocation – burden of proof

[156] Sections 16.93(1) and (2) create a burden of proof in relocation cases if the parties to the proceeding “substantially comply with an order, arbitral award, or agreement”.

[157] In the present case, there is no arbitral award or agreement but there is the interim order for week-about parenting time. The mother relies on s. 16.93(1), which is engaged when an order provides for “substantially equal” parenting time:

Burden of proof — person who intends to relocate child

16.93 (1) If the parties to the proceeding substantially comply with an order, arbitral award, or agreement that provides that a child of the marriage spend substantially equal time in the care of each party, the party who intends to relocate the child has the burden of proving that the relocation would be in the best interests of the child.

[158] The mother submits that s. 16.93(1) casts on the father the burden of proving that the relocation would be in the child’s best interests. The mother argues that the father would be causing the “relocation” because the father seeks to disrupt the equal parenting time by having the child live primarily with him.

[159] The mother’s reliance on the interim order is one aspect of the relocation issue. The other aspect relates to the time of separation when the mother sought to relocate the child from London to Innisfil. That situation would not be captured by ss. 16.93(1) or (2) because there was no existing order, arbitral award or agreement at the time.

[160] I find that this is an appropriate case to apply s. 16.94, which provides that a court may decide not to apply ss. 16.93(1) and (2) if the order referred to in those sections is an interim order. Hence, I decline to impose a burden of proof on the father. Alternatively, even if the father had the burden of proof, I find that he has met that burden.

ii) Adverse inference

[161] The father relies on Bronson v. Hewitt, 2010 BCSC 169 (B.C.S.C.), and submits that an adverse inference should be drawn against the mother for failure to call her partner as a witness. I disagree.

[162] In Bronson, citing R. v. Jolivet, 2000 SCC 29 (S.C.C.), it is discussed that a party affected by the inference may explain it away by showing circumstances which otherwise account for a party’s failure to call a witness, and that there should be no limitation on the right to provide an explanation, subject to the trial judge being satisfied that the explanation furnishes a plausible reason for not calling a witness: para. 325.

[163] Although it had been the mother’s intention to call her partner as a witness, I find that the mother’s failure to do so was reasonable in the circumstances. She had just separated from her partner and he was not part of the mother’s plan of care as proposed by the mother at trial.

[164] Alternatively, even if it was appropriate to draw an adverse inference, it would not have affected the order made below.

FINAL ORDER

[165] I make the following final order:

DECISION-MAKING RESPONSIBILITY AND PRIMARY CARE

1. The father and the mother shall have joint decision-making responsibility for the child.

2. The child’s primary place of residence shall be with the father.

3. The following provisions shall apply regarding the child’s school and regular healthcare providers:

(a) The child shall continue to attend an English-speaking program in a public school, and the location of the child’s public school shall be determined by the father’s residence;

(b) Any change in the child’s school to a school that is not a public school, or any change to a non-English speaking school program including but not limited to a French immersion program shall be made only on the consent of both parties; and

(c) The child’s routine medical and dental care shall be provided by healthcare professionals in the municipality where the father resides. The said healthcare professionals, including any changes. shall be chosen by the father but only after consultation with the mother.

4. Each party, during his or her parenting time with the child, shall have exclusive authority to make day-to-day decisions affecting the child.

5. Any dispute between the parties relating to decisions affecting the child, including but not limited to major decisions including education and healthcare, shall be dealt with in the following manner:

(a) Each party shall state his or her position concisely and in writing;

(b) Within 30 days or longer if the parties agree, the parties shall employ all reasonable efforts through mutual discourse or other dialogue, including through counsel, to resolve the dispute;

(c) In relation to subparagraph (b), if there is no resolution, the parties shall give serious consideration to engaging in mediation, or any other dispute resolution process to resolve the dispute;

(d) In relation to subparagraphs (b) and (c), each party shall act reasonably and in good faith and shall demonstrate a genuine desire to achieve resolution; and

(e) Except in an emergency, and except as may be permitted by the court, neither party shall commence a court proceeding unless that party has complied with subparagraphs (a) to (d) inclusive.

6. If there is a healthcare emergency, collision, accident, serious incident, or any travel delays involving the child, whether the child is injured or not, the party having care of the child at that time shall notify the other party as soon as practicable via cellular device of the details after ensuring that any emergency is dealt with, and any urgent or necessary care or attention is provided for the child.

7. If while in the care of either party the child becomes ill or suffers an accident which requires medical attention, the other party shall be notified as soon as reasonably possible.

PARENTING TIME

8. The mother shall have a regular schedule of parenting time with the child during the school year as follows:

(a) Alternate weekends from 6:00 p.m. Friday to 5:00 p.m. Sunday;

(b) Unless the parties agree otherwise, the weekend parenting time shall commence on the second Friday after the date of this order;

(c) If the child is not attending school on the Friday or Monday of the mother’s weekend because of a professional development day or statutory holiday, the parenting time shall commence at 6:00 p.m. on Thursday (when there is no school on Friday), and the parenting time is extended to 5:00 p.m. on Monday (when there is no school on Monday).

9. Unless the parties mutually agree on each occasion to a different schedule in writing, the following parenting-time schedule shall apply and shall supersede the mother’s regular parenting time schedule in the event of a conflict:

Summer

(a) During the school summer break, when the last school day is on a Friday, then the child always shall be with the mother for the first two weeks, the following week the child shall be with the father, and thereafter the child shall spend alternating weeks with each party except that the child always shall be with the father commencing 6:00 p.m. Friday of the Labour Day weekend. All exchanges shall occur at 6:00 p.m. on Friday. If school ends on a weekday other than a Friday, then the child shall be with the mother from 6:00 p.m. on the day that school ends, until 6:00 p.m. on the third Friday after school ends, and thereafter the summer parenting-time schedule as set out above shall apply.

March Break

(b) The child shall spend the entire March break from the time school ends on Friday until school starts with each party on an annual alternating basis. The child shall be with the mother in even-numbered years and with the father in odd-numbered years. When the child is with the mother, her parenting time shall start at 6:00 p.m. on the Friday that school ends until 5:00 p.m. on the last Sunday of the March break.

Easter

(c) The child shall be in the care of the mother every Easter weekend from Thursday at 6:00 p.m. until Easter Sunday at 5:00 p.m.

Mother’s Day

(d) The child shall be in the care of the mother each Mother’s Day weekend regardless of the regular parenting schedule.

Father’s Day

(e) The child shall be in the care of the father each Father’s Day weekend regardless of the regular parenting schedule.

Thanksgiving

(f) In odd-numbered years, the child shall be in the care of the mother during the Thanksgiving weekend from Friday at 6:00 p.m. until Monday at 5:00 p.m. In even-numbered years, the child shall remain with the father during the Thanksgiving weekend from after school Friday until the child returns to school on Tuesday.

Winter School Break

(g) The child shall be in the care of the mother each winter school break in odd-numbered years for the first half of the school break commencing the last school day at 6:00 p.m., and the child shall be in the care of the father the remaining half of the winter school break. The schedule shall be reversed in even-numbered years for the winter school break. If the exchange falls on Christmas Day, then the parties may agree for the exchange to occur on Christmas Eve or Boxing Day or another day. If the parties are unable to agree, then in odd-numbered years the mother shall choose whether the exchange occurs on Christmas Eve or Boxing Day, and in even-numbered years the father shall choose whether the exchange occurs on Christmas Eve or Boxing Day. Unless the parties agree otherwise, the exchange in the middle of the winter school break shall occur at 3:00 p.m.

CONSUMPTION OF ALCOHOL OR NONPRESCRIPTION DRUGS

10. As a condition of exercising parenting time with the child, the mother:

(a) shall not consume alcohol at any time;

(b) shall not consume or use non-prescription drugs 24 hours prior to and during her parenting time; and

(c) shall not permit the child to be in the company of any person who consumes alcohol or uses non-prescription drugs.

11. If the mother breaches paragraph 10, then within 24 hours the mother shall advise the father of the breach in writing, including all relevant details and circumstances relating to the breach.

12. If a party is charged in any jurisdiction with a criminal offence or a serious driving offence under a highway traffic act or similar act, then that party shall within 24 hours notify the other party in writing of the nature of the offence, the details of the arrest and any other persons involved, any injuries, and the child’s whereabouts at the time that the offence allegedly occurred, as well as ongoing details in writing with accompanying documents as permitted by law, with details of any charges before a court, including pleas, sentences, dispositions or alternative measures. Should a parent or person having care of the child be taken into custody or any form of detention while the child is in his or her care, the child forthwith shall be placed in the care of the other parent until the person or other parent is released from custody and able to meet the child’s needs.

13. If there is a breach of paragraphs 10, 11, or 12, that breach shall constitute a material change in circumstances and the non-offending party is at liberty to bring a motion to change, and at the same time may request the court for an emergency motion date prior to a case conference for such interim order as may be appropriate and in the child’s best interests, including an order suspending or restricting the offending party’s parenting time with the child.

EXCHANGES AND OTHER TERMS FOR PARENTING TIME

14. For the mother’s regular weekend parenting-time schedule during the school year, all exchanges shall occur at 6:00 p.m. on Friday (or Thursday at 6:00 p.m. if there is no school) and 5:00 p.m. Sunday (or 5:00 p.m. Monday if there is no school). During the summertime, for the alternating weeks, the exchanges shall take place at 6:00 p.m. Friday. All exchanges shall take place at the Tim Horton’s located at 138 Woodlawn Road West (off Highway 6) in Guelph, unless the parties agree otherwise. The parties shall make all efforts to attend on-time as scheduled and shall advise the other party via text of any traffic difficulties.

15. For the purpose of pick-up and drop-off of the child, the parties shall ensure that the transitions between the households are positive and stress-free for the child and both parties shall treat each other politely and respectfully during transitions.

16. Either party may designate a responsible approved third party to pick up or drop off the child for the parenting-time exchanges. The third party must be approved by the other party in advance, such approval not to be unreasonably withheld. Either party may designate a grandparent to pick up or drop off the child without the consent of the other party. Where a party has arranged for another person to pick up or drop off the child, then that party shall advise the other party in writing at least 24 hours prior to the exchange time.

17. Both parties at all times shall act reasonably in making any necessary changes to the parenting-time schedule to accommodate special occasions, extracurricular activities, excursions or other opportunities that become available to the child or each party. If there is a change in the parenting schedule as a result of this paragraph, then equivalent make-up time shall be arranged by the party who requests the change.

18. Neither party shall discuss with the child, or with a third party in the presence of the child, present or past legal proceedings, or issues between the parties in any such legal proceedings, except for the issue of safety in relation to alcohol or drugs.

19. Each party shall allow the child to contact the other party, and the other party to contact the child, whenever they wish, and through whatever mode of communication they wish. Both parties shall foster communication and the parties shall not interfere with the child’s ability to communicate with the other party.

20. Each party having care of the child shall provide the child an opportunity to communicate with the other party each night prior to bedtime.

SHARING INFORMATION

21. The parties shall share information with each other about the welfare of the child including his education, medical needs, health and dental care, extracurricular activities and other important matters including changes in the circumstances of each party in relation to living arrangements, spouses, partners or roommates.

22. The mother and the father may make inquiries and be given information by the teachers, school officials, doctors, dentists, healthcare providers, summer camp counsellors or others involved with the child. When making this request, each party shall be respectful of the professionals from whom information is sought and each party shall ensure and direct as necessary that the other party receive a copy of any information received or delivered by a third party concerning the child. If a party’s signature is required, then it shall be provided to the other party as soon as possible and within seven days of the request.

23. The parties shall both be named as emergency contacts for the child with his school officials, doctors, dentists, counsellors and any other professionals involved with the child. The parties shall keep each other advised of the names of the school officials, doctors, dentists, counsellors or any other professionals involved with the child. Each party shall provide to the other the relevant contact information of all persons involved with the child. Each party shall also provide the other party’s contact information as “first contact” to such professionals, but each party may provide the name of the party’s spouse or partner as an “alternate contact” for each party.

24. The parties each shall advise the other of all important events, functions, or appointments for the child within seven days of the appointments being made, or within seven days of any changes. Both parties shall be entitled to participate in these events, functions, or appointments. The parties shall share information, calendars and activity schedules with each other, but if the parties are able to access such information online, they shall share with each other the online link promptly.

25. The father shall retain in his possession the child’s original birth certificate, health card, and passport. Where necessary the father shall apply for those documents and the mother shall sign any necessary documents to facilitate the application. The father shall provide the documents to the mother when needed by her and, upon written request, the mother shall be provided with a notarial copy of such documents.

26. Each party may arrange and attend their own parent-teacher or other similar meetings concerning the child’s schooling or activities.

27. The parties shall encourage and facilitate the child having a good relationship with the other party and that party’s extended family and shall not disparage or make any negative remarks about the other party or the other party’s extended family to the child or in the presence of the child. The child shall be taught in an age-appropriate manner, using the “MADD” alcohol and driving information website, never to enter a vehicle if any driver has been drinking alcohol or taking unsafe drugs beforehand.

COMMUNICATION AND EXTRACURRICULAR ACTIVITIES

28. The parties shall communicate through a parenting application, except for an emergency where communication may be by text, telephone or email. Each party shall provide current information as to their address and telephone numbers as well as email addresses and cellular numbers.

29. All communications between the parties shall be respectful and child-focused and the response, if required, shall be provided as soon as practicable and within seven days or sooner if an urgent reply is required.

30. Each party shall advise the other of details of significant events in their lives which may or could have an impact on the child or could have an impact on the terms or provisions set out in this order.

31. Either party, on prior consultation with the other party, may enroll the child in any extracurricular activities, but the other party’s parenting time shall take precedence in the event of a conflict, unless the parties agree otherwise. The parties shall act reasonably in making best efforts to accommodate the child’s extracurricular activities. If either party wishes to enroll the child in more than one extracurricular activity in any calendar year, then the other parent’s consent is required for the additional extracurricular activities, such consent not to unreasonably withheld.

TRAVEL

32. The child may travel outside of Canada for vacation purposes with either party, subject to the consent of the other party, which consent shall not be unreasonably withheld. The travelling party shall request the consent of the non-travelling party a minimum of 21 days in advance of the scheduled trip, and shall provide the details of travel, including dates of travel, location, flight details (if applicable) and address and phone number where the child can be reached at the planned destination. The non-travelling party shall provide a notarized “Travel Letter” and any required passports, photos, or visa documents to enter a country, properly signed as required authorizing the child to travel with the travelling party, a minimum of seven days in advance of the scheduled trip, at the cost of the travelling party.

33. If a party plans to travel with the child within Canada but more than 250 km away for vacation purposes, the traveling party shall advise the other party in writing of dates of travel, location, flight details (if applicable), address and phone number where the child can be reached at the planned destination, a minimum of 21 days in advance of the scheduled trip unless otherwise agreed.

34. Should a passport be required for the child, the parties shall cooperate with each other in providing the necessary information and the parties shall sign the necessary documentation, to make the application for a passport. The cost of the application shall be equally shared. The father shall keep the passport at his residence and shall make it available promptly to the mother for travel as required and the mother shall return the passport to the father afterwards.

CHILD SUPPORT

35. On the basis that the mother is currently disabled from employment, the father’s claim for child support is dismissed without prejudice to the father’s right to claim child support in the event that the mother’s employment circumstances change.

36. Each year by June 1, commencing 2023, the parties shall exchange their income tax returns and notices of assessments (and re-assessment if any) for the immediately preceding calendar year. Each party shall ensure that he or she files their income tax return annually by the filing deadline.

37. The mother shall advise the father in writing immediately if she obtains employment and she shall provide proof of her employment income.

38. The parties shall sign all necessary documents to ensure that the father receives the child tax benefits and any other government benefits for the child as a result of this order.

39. The parties shall maintain the child as a beneficiary on any available extended health, dental or vision benefits available to them through their employment or income source, and each party shall sign documentation authorizing the other to make claims directly to his or her insurer. A party who is reimbursed for an expense paid by the other shall immediately forward the reimbursed amount to the other.

OTHER

40. All other claims made by both parties in this proceeding are dismissed.

41. This order is made pursuant to the Divorce Act.

COSTS

42. If the parties are unable to settle the issue of costs, then written costs submissions may be forwarded. The father shall serve and file his submissions within three weeks of the date of this order, the mother’s responding submissions shall be served and filed within three weeks thereafter, and the father’s reply, if any, is due within two weeks thereafter. All written costs submissions shall be limited to three typed pages (two pages for reply), double spaced and minimum font-12. All authorities, where possible, shall be hyperlinked in the written submissions and the relevant portions of the authorities shall be highlighted. In addition, the parties may file any relevant offers to settle, bills of costs and time dockets. If the parties are able to settle costs, then counsel shall provide a brief letter to the trial coordinator confirming same.

“Justice Victor Mitrow”

Justice Victor Mitrow

Released: May 11, 2023

COURT FILE NO.: FD 76/19

DATE: May 11, 2023

ONTARIO

SUPERIOR COURT OF JUSTICE

FAMILY COURT

BETWEEN:

J. S. A.

Applicant

• and -

J. R. A.

Respondent

REASONS FOR JUDGMENT

MITROW J.

Released: May 11, 2023

[^1]: It is noted that the maternal grandmother is remarried and that the maternal grandfather is actually the child’s step-grandfather.

[^2]: Exhibit 8

[^3]: The current r. 35.1 was enacted pursuant to O. Reg. 42/21, which was not in force in September 2019; however, the predecessor of r. 35.1(7) that was in force at the time contained very similar provisions.

[^4]: Endorsement dated October 14, 2020, exhibit 1.

[^5]: A form 35.1 affidavit also sworn September 24, 2020 was signed by the mother’s partner and filed, and contained the same inaccurate information in paragraph 9.

[^6]: Exhibit 6