Court File and Parties
COURT FILE NO.: FS-20-20968 DATE: 2023-05-08 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Jaime LaBonte, Applicant – and – Katie Godin, Respondent
Counsel: Self-Represented, for the Applicant Zane R. Handysides, for the Respondent
HEARD: December 5, 6, 7, 8, 2022 via Zoom
TRANQUILLI J.
Introduction
[1] This difficult case concerns the future of a cherished 11-year-old child who lives in Windsor, Ontario. Should her mother be allowed to move with the child to Grapevine, Texas; some 1,900 km distant from her father in Windsor?
[2] K.L. was born in February 2012 in Windsor, Ontario. Her parents, the applicant Mr. LaBonte, and the respondent Ms. Godin, lived together for approximately 11 years in Windsor. They never married. They separated in or about March 2020.
[3] Her parents shared an interest in online, multiplayer role-playing games such as “World of Warcraft”. Ms. Godin met a new partner in the online gaming community in December 2019. Her new partner, Mr. Reep, lives in Grapevine, Texas. Their online connection began as a friendship over their gaming interest. After Ms. Godin separated from Mr. LaBonte, it grew into an intimate online relationship where they spoke everyday. Ms. Godin eventually traveled to Grapevine, Texas to meet Mr. Reep in person in July 2020. They immediately married. The respondent now has an infant daughter with Mr. Reep. She wishes to establish their family in Texas, including her daughter that she shares with the applicant.
[4] Ms. Godin therefore seeks leave of this court to relocate with K.L. from Windsor to Texas. Ms. Godin continues to live in Windsor with both children pending disposition of this application. Her spouse continues to live and work in Texas.
[5] The mother submits she has a comprehensive plan of care for the child’s life in Texas that addresses her child’s educational and developmental needs. She argues it is in K.L.’s best interests to live with her mother, new sister, and stepfather. Mother proposes that the child have daily video or telephone contact with her father and extended parenting time over the school holidays as well as at other times when the father may wish to travel to Texas to see K.L. The mother proposes the father does not pay child support as an offset to travel expenses. She and her new partner are willing to provide all financial support for K.L.’s needs, much as they have done for the last two years.
[6] The mother also seeks sole decision-making responsibility for the child. She contends she has historically been the child’s primary caregiver and took responsibility for important decisions, such as in the child’s education. She submits the respondent is unable to cooperate with her to effectively co-parent their daughter.
[7] The applicant father, Mr. LaBonte, opposes K.L.’s relocation to Texas under her mother’s primary care and decision-making. He wants their daughter to remain in Windsor under his primary care and sole decision-making. However, if Ms. Godin remains in Windsor, he proposes equal parenting time and shared decision-making. He also seeks spousal support from the respondent.
[8] The applicant asserts he was the primary caregiver of the child. He claims the respondent has demonstrated her unfitness as a parent with her decision to travel to Texas during the pandemic and to marry a man the first time she met him in person. He accuses the respondent of lying about their daughter’s academic difficulties to cover up her failings as a parent. He submits the respondent cannot be relied upon to be truthful about their daughter’s well-being.
[9] He is concerned the proposed relocation would remove him from his daughter’s life. He believes the respondent and her new partner already interfere in his parenting time. He maintains it is in the child’s best interests to remain in Windsor where he can foster her important relationships, including with both her maternal and paternal extended families.
[10] There is no question that K.L. is deeply loved by both parents. The outcome of this trial will have a profound impact on the family dynamic and weighs heavily upon the conscience of this court.
[11] In the end, the crucial question in the difficult task of untangling these acrimonious family issues, is whether this court is persuaded on a balance of probabilities that relocation to Texas is in the best interests of K.L. having regard to her physical, emotional, and psychological safety, security and well-being: Barendregt v. Grebliunas, 2022 SCC 22, at para. 152.
Overview of Evidence
[12] The trial proceeded over four days by Zoom. The court received testimony from the applicant, respondent, the respondent’s new partner in Texas and the Children’s Lawyer regarding the child’s views and preferences. Voluminous text messages, emails and reports were all admitted on consent.
[13] The parties disagree on much of their history and their daughter’s circumstances. I need not resolve all the factual disputes that arose during trial. I provide the following overview for context before delving into the issues that must be addressed on this application.
[14] The applicant father is 37 years old. The respondent mother is 37 years old. They met in or about 2007 and began living together in 2008. They previously shared an interest in multiplayer online role-playing video games, such as World of Warcraft; a pastime that they have now shared with their daughter.
[15] The applicant was an apprentice tattoo artist when he and the respondent first met. The applicant resigned from that position in 2007 or 2008, and did not work again until 2011, when he began employment at Tim Horton’s. He reports that he is an artist and had worked on a few projects in the interim, although he has no reported income for those years.
[16] The respondent was first enlisted in the military but was medically discharged due to a back injury, for which she now receives a pension. She then worked at a local hospital, but went on an early medical leave during her pregnancy with K.L.
[17] During their cohabitation, the parties lived in one rental unit in a house owned by the respondent’s parents. Her parents lived in a different unit at the same premises. The respondent testified that she had a difficult relationship with her immediate family, as she had grown up witnessing domestic violence and alcoholism.
[18] Each party takes a different view on which parent was K.L.’s primary caregiver before separation.
[19] The applicant claims he took a one-year parental leave from Tim Horton’s to care for K.L. after her birth. The respondent disputes the justification for the parental leave. She claims the applicant never consulted her and his unilateral decision significantly reduced their family income at a critical time. There was no reason for the applicant to take a leave, particularly as she was able to care for their daughter. She claims he spent most of his time that year playing video games and not in parenting their infant daughter. His decision forced them to live on her credit during this year as the applicant had no credit history. They therefore went into debt and ruined her credit history. The applicant’s decision also forced her to take work as a babysitter, instead of being able to care for their own daughter. She also made photography props to bring additional income into the family. She now runs a photography business.
[20] The parties kept their finances separate throughout their relationship. They split the rent and utilities. Each party was responsible for their own groceries. After K.L.’s birth, the respondent also paid for the child’s needs from her income, although the applicant would occasionally purchase toys and some supplies for the child. The applicant would go so far as to place the physical divider between their purchases on the cashier conveyer belt. He eventually returned to Tim Horton’s but moved from full-time to part-time employment for the next approximate five years until separation. He testified he went to part-time because he had burned out from working on a large art project. He returned to full-time employment at Tim Horton’s after separation. Since October 2022, he has been working as a full-time apprentice mould-maker.
[21] The applicant claims he home-schooled K.L. for her first year of school. The respondent disputes this assertion. She testified she kept K.L. behind a year in starting kindergarten due to concerns about their daughter’s speech development and readiness for the classroom environment. She allowed that the applicant would do activities with their child during this time, but testified they were far short of a structured home-schooling program. She maintained the applicant was more interested in playing video games and behaves with their daughter more as a playmate than a parent. He had no driver’s licence, and she was responsible for taking him to and from work along with maintaining the childcare responsibilities. The applicant now has his licence and a vehicle; he testified he was previously unsuccessful in obtaining his licence because the respondent was a “terrible teacher”.
[22] A few months before separation, the respondent raised a concern with the applicant about the paternal grandmother’s partner and a sexually inappropriate photograph of K.L. he had posted on social media. The respondent was unhappy the applicant failed to immediately intervene to address the concern with his mother. The respondent involved the police for advice and ended up confronting the applicant’s mother and the mother’s partner herself, requiring that the partner never be permitted to be alone with K.L. These non-association terms are now part of interim orders concerning contact of the child with her paternal grandmother. The respondent acknowledged the applicant did become involved and acknowledge the concern; however, in her view, it was too little, too late. The incident ultimately led to the respondent’s decision to end their relationship.
[23] Shortly thereafter, in December 2019, the respondent met her future spouse, Matthew Reep, while playing World of Warcraft. Mr. Reep lives in Grapevine, Texas. He has been employed with UPS for over 20 years.
[24] The respondent and Mr. Reep testified their friendship began over their enjoyment of the game but then grew to sharing other interests and things going on in their lives. The respondent eventually decided to separate from the applicant. She claims she asked him to move out of her parents’ rental unit on March 15, 2020. Although the applicant does not accept this as the date of separation, there is no dispute he moved out on April 14, 2020.
[25] The parties entered into an interim interim parenting agreement in May 2020 with the assistance of counsel. The mother had interim primary residency of the child and the father was to pay child support. The father had parenting time every other weekend from 10:00 am until 7:00 pm each day, every Wednesday from noon until 7:00 pm and reasonable telephone access. The parties shared rights to access information about the child’s health, education and welfare and were to confer with each other on all plans and arrangements relating to parenting time. The applicant testified he did not want to agree to this these terms and always wanted a better parenting arrangement.
[26] Following separation, the respondent continued to speak with Mr. Reep every day, through gaming, texting or video. She traveled to Texas to meet in person for the first time in July 2020. She left the child in the care of friends in Windsor. While in Texas, she married Mr. Reep. The applicant objected that the respondent did not tell him where she was going and did not explain her decision not to leave their child in his care. Instead, she chose to leave the child with an individual whom the applicant claims had issues with child welfare services, and later with friends who failed to follow proper quarantine practices.
[27] The father commenced this Application in July 2020, after learning from a relative of the respondent that she was in Texas and had just married. He challenged the respondent’s parenting capacity and sought custody. By later amended application, he sought spousal support and an order that the child’s residence not be moved from Essex County.
[28] In her Answer, the respondent sought custody of K.L., child support and permission to relocate with K.L. to Texas, on terms that she facilitates regular contact between the child and her father. The respondent denies that the applicant is entitled to spousal support.
[29] The respondent then moved to a new apartment in another area of Windsor, with the child. The applicant was concerned the respondent intentionally did this to isolate him from their child, as he did not have his driver’s licence and would need to bus or cab for child exchanges. The respondent testified that she moved because the situation with her family, who also lived in different units on the premises, had become toxic. Her family involved themselves in the separation and attacked her mental fitness as a result of her recent marriage. The child had also recently witnessed at least one violent episode between her maternal grandfather, who was allegedly intoxicated at the time, and an older cousin where the grandfather physically assaulted his grandson.
[30] The parties’ conflict extends to major decisions regarding their child’s academic well-being. K.L. was originally registered in a French immersion public school in Windsor in her primary grade years. With the provincial lockdown in 2020, the child moved to online schooling. The parties disagree on whether K.L. was academically struggling in her primary grades. The respondent maintains their daughter fell behind in French and English language skills as well as writing and numeracy due to a learning disability. The applicant maintains the teachers observed that K.L. was keeping up. To the extent there was any problem with their daughter’s academic performance, he maintains it was because the respondent failed to ensure their daughter did her homework.
[31] The child transferred to an English public-school program in September 2020. In the meantime, the respondent and her new spouse, Mr. Reep, paid for the child to be privately tutored through Sylvan. The applicant disagreed that their child had academic struggles and refused to contribute to the tutoring expenses or to accommodate her tutoring appointments on his parenting time.
[32] In August 2020, Sylvan assessed the child’s academic performance and advised that although she had just completed grade three, her grade equivalent was grade 1.4 to 1.5. Sylvan recommended a psychoeducational assessment. The applicant refused his consent for the assessment. He claimed Sylvan exaggerated the results for their own gain. The respondent obtained a referral from her family physician to a child psychiatrist, who diagnosed adjustment disorder with anxiety, but ruled out attention deficit hyperactivity disorder and/or learning disorders.
[33] However, the applicant father refused to provide his consent for the psychoeducational assessment. He claimed the psychiatrist’s diagnoses were based on the mother’s lies about their daughter’s academic performance. He relied on the child’s early report cards in support of this position. He claimed that if their daughter had any problems in French Immersion, it was due to her mother’s neglect, as she was the bilingual parent and the mother failed to ensure the homework was regularly done.
[34] A psychologist recommended the child be assessed in September 2021, one year after she had been pulled out of the French Immersion program. In the spring 2021, the respondent sought to have the educational assessment scheduled for that fall. However, the applicant continued to refuse his consent, arguing either the assessment was unnecessary or that the psychologist had stipulated it should not happen for one year and that the mother was trying to conduct it too early, against the expert’s advice. The applicant maintained at trial that the respondent wanted the assessment to prove an unfounded diagnosis to cover up her parental neglect from failing to support the child in her homework.
[35] Ultimately, the respondent brought a motion in the fall 2021 for the psychoeducational assessment. On consent, this was ordered in December 2021. The original psychologist no longer wished to be involved and the assessment was undertaken by a different psychologist, Dr. Clark.
[36] This psychoeducational assessment identified a specific learning disorder with impairment in Mathematics and a provisional diagnosis of Attention-Deficit/Hyperactivity Disorder. The assessor reported that the provisional nature of the ADHD diagnosis arose from the lack of consistency in how the teachers and parents viewed her symptoms. The applicant father refuses to accept the diagnosis. He maintains it is based upon the mother’s skewed and false reports to the assessor about their daughter and that the specialist unreasonably rejected his concerns.
[37] The parties have also struggled to agree on other major academic decisions, such as regarding their daughter’s home school.
[38] The Office of the Children’s Lawyer advised the court on K.L.’s views and preferences as it relates to the proposed relocation. Clinical Investigator Camisha Sibblis testified she interviewed the child on five occasions, in both parents’ homes and as recently as the week before trial. At all times, the child was clear and consistent in expressing her preference to move to Texas with her mother to live with her mother, Mr. Reep, and her baby half-sister. She knows she will not see her father as much but is satisfied she would have regular video or telephone contact as well as extended visits over holidays.
[39] The parties have been in conflict over various interim procedural issues regarding the child’s ability to travel to Texas with her mother on visits, the need for a psychoeducational assessment and how communication regarding the child is to be conducted. In particular, three motions, which ended with consent orders, were required to secure permission for the child to travel to Texas as the father would not otherwise provide voluntary consent. A motion was also necessary to require the parties to communicate through Our Family Wizard.
[40] At trial, this court was again asked to consider an interim order permitting the mother to travel to Texas with the child over the quickly pending December 2022 seasonal holiday. The respondent mother proposed she travel to Texas with K.L. between December 23, 2022 and January 1, 2023, with the applicant having parenting time with the child for the full holiday week after her return to Windsor. In the 2021/2022 Christmas schedule, the travel terms provided that the applicant had parenting time with the child over the first week, including Christmas Eve/Christmas Day/Boxing Day and the respondent traveled with the child in the second week of the holiday.
[41] The applicant opposed the respondent’s request. He did not want to miss time with the child during the three important Christmas dates. He submitted it was unfair to keep her away from him and her extended family during that period. The court observed that family celebrations and holidays always entail some negotiation and accommodation, irrespective of whether the family unit is intact. In the circumstances, I found the child’s best interests required flexibility on the part of both parents and that Christmas parenting time should be allocated as proposed by the respondent, with permission for her to travel with the child to Texas. In my view, this was an equitable arrangement, when one assessed the pattern of Christmas parenting time since separation. This proposal allowed the child to share the holidays with each parent in turn.
Issues
[42] The parties are unmarried. The relocation and the terms of a parenting order are therefore governed by the Children’s Law Reform Act, R.S.O. 1990, c. C.12, as amended. Effective March 2021, the CLRA now provides a comprehensive framework that governs relocation matters. Although this application started before the amendments came into force, this new statutory regime governs the disposition of this proceeding: O’Brien v. Chuluunbaatar, 2021 ONCA 555, at para. 42.
[43] Pursuant to s. 39.4(3) of the Act, in determining whether to authorize relocation of the child, the court shall consider the best interests of the child in accordance with s. 24 of the Act, as well as seven other enumerated factors.
[44] Against that statutory framework, the court must determine the following questions in this matter:
- Is it in the best interests of K.L. to relocate from Windsor, Ontario to Grapevine, Texas with the respondent?
- Considering the finding on relocation, what order as to K.L.’s parenting time is in K.L.’s best interests?
- Considering the finding on relocation, what order as to decision-making responsibility is in K.L.’s best interests?
[45] I first address some preliminary matters before turning to these issues.
Sequence of Issues
[46] As there is no final order regarding the parenting arrangement, the respondent need not establish a material change in circumstances in her relocation request. A question arose at trial as to the sequence in which the court should address the terms of a parenting order where relocation is in issue. Relying on Gordon v. Goertz, [1996] 2 S.C.R. 27, at paras. 17 and 49, the respondent submitted the court should first determine which of the parties is the primary caregiver of the child.
[47] In my view, this approach is inconsistent with the significant legislative amendments that now transcend the common law relocation framework established in Gordon. The Supreme Court of Canada considered the new statutory regime and commented that without a pre-existing judicial determination, a parent’s desire to relocate is simply one part of the factual matrix in the assessment of what parenting arrangement is in the best interests of the child: Barendregt, at para. 112. The CLRA directs a holistic analysis of the child’s best interests. It would be problematic to first consider which parent is or has been the primary caregiver to the child, particularly when that issue is included as a factor to consider in the relocation analysis at s. 39.4(3)(c). In determining what parenting orders are in K.L.’s best interests, the logically prior issue is where she should primarily reside: Zorab v. Zourob, 2021 ONSC 6552 and Credland v. Cymbalisty, 2022 ONSC 433, at para. 23.
Burden of Proof
[48] The CLRA framework specifically defines the circumstances in which one of the parents bears the burden of proof on relocation issues: s. 39.4 (5), (6), (7), (8). K.L. spends the “vast majority” of time in the care of the respondent such that her father would arguably bear the burden of proof in demonstrating that relocation is not in his daughter’s best interest: 39.4(6). However, the current parenting schedule and residency terms are pursuant to an interim order. The child’s primary residency and the parenting arrangement are a central issue in this matter, for which there is no prior final order. Pursuant to s. 39.4(8), I accordingly find that s. 39.4(6) does not apply to require the applicant to bear the burden of proving that relocation is not in the best interests of his daughter. Pursuant to s. 39.4(7), I find that both parties have the burden of proving whether the relocation is in the best interests of K.L.
Spousal Support
[49] The applicant claimed that he was entitled to spousal support because the respondent moved with their child to a new apartment two hours away from him. This meant he had to incur additional expenses for parenting time through bus or taxi fares. Until the past year, he has not held a driver’s licence. He also included alleged damage to personal property when some of his belongings were ostensibly damaged by the respondent or left to ruin when she removed them from the residence after their separation in April 2020.
[50] I conclude there is no basis on which to embark upon a spousal support analysis. It is plain and obvious the applicant cannot establish either entitlement or need on this record for the following reasons.
[51] The claim for support based upon damaged personal property when the applicant moved out of the apartment cannot succeed on either a needs-based or compensatory basis. The applicant did not file an updated financial statement in support of his spousal support claim. Since separation in 2020, he testified he moved from part-time employment at Tim Hortons to an apprenticeship in mould-making, where his income has increased. He was earning $17.00 per hour but that he expected a modest increase along with benefits in the coming months. He aspires to become a mechanical engineer. Moreover, there was little evidence during the trial that demonstrated the parties lived together as a family, economic unit or in a joint venture before separation. The applicant did not dispute the that throughout their relationship, the parties split the rent and utilities equally from their own incomes and were also responsible for their own groceries. In my view, the evidence demonstrates the parties were no more than roommates throughout their 11-year relationship. The claim for spousal support is therefore dismissed.
Analysis
Credibility Assessments
[52] I make the following assessments of the lay witnesses in this proceeding.
[53] To the extent that the father’s evidence conflicts with that of the mother, the court prefers the mother’s evidence. I do not find that the father was deliberately untruthful in his evidence. However, many of his concerns and positions are unsupported by the evidence and bring the reliability of his testimony into question. He demonstrated open animosity towards the respondent and pursued a singular narrative that the mother has repeatedly “lied” to him, to physicians and teachers regarding their daughter. The applicant appears to be sincere in this belief. However, I find there is no reasonable basis on which to conclude the mother has either misrepresented or lied about their daughter’s academic and behavioural struggles to either put herself in a positive light or to gain a litigation advantage.
[54] In particular, there is no rational basis on which to conclude that mother lied about her daughter’s academic issues in order to get a diagnosis that would cover up her parental neglect as argued by the applicant. The father also claims the conclusions of Dr. Clark in the psychoeducational assessment were “skewed” by the mother’s “lies”. To the contrary, I find Dr. Clark’s report shows a thorough assessment was undertaken, involving a review of academic records, interviews of K.L.’s parents, teacher and tutor and the administration of a battery of assessments. The specialist was clearly alive to the conflicting views of the parents, as he explained that his “provisional” diagnosis of ADHD at this time was based on the lack of consistency in how the parents, teacher, and tutor viewed the child’s inattentive and hyperactive/impulsive symptoms.
[55] The father similarly argued the mother lied to him about why she went to see the child psychiatrist, Dr. Tak, and that she also lied to Dr. Tak about their child’s academic history. Any error in the physician’s report as to the year of the parents’ separation is inconsequential. The father insisted the child’s report cards show there were no concerns and demonstrate that the mother lied to Dr. Tak about their child’s academic performance. I do not agree. It is true the primary grade report cards do not express a concern about a possible learning disability and that she was generally graded favourably on her learning skills and work habits. However, she was not particularly strong in any of the academic subjects themselves.
[56] I found the mother was balanced, responsive and fair in her testimony. She acknowledged their child has a close bond with and enjoys her time with her father. She recognized the father’s contributions to raising their daughter, although she would not accept that he was either a primary support or equal partner. She remained calm and respectful throughout an occasionally argumentative and confrontational cross examination by the applicant. Her concerns about their daughter’s academic performance were borne out by the assessment. She was not shown to have either misrepresented or exaggerated her concerns in that regard.
[57] Similarly, the mother’s spouse, Matthew Reep, also presented as responsive and fair in his testimony. He made no personal attack on the applicant. While he clearly has a self-interest to support his spouse’s position, he readily acknowledged the significance of the proposed relocation. He did not minimize the significance of the proposal on the child’s relationship with her father.
1. Is it in the best interests of K.L. to relocate from Windsor, Ontario to Grapevine, Texas with the respondent?
[58] In accordance with s. 39.4(3) of the CLRA, I begin with a consideration of the factors relevant to the best interests of the child under s. 24 of the CLRA, followed by the enumerated relocation factors. The best interest considerations are not exhaustive and do not comprise a checklist to be tabulated with the highest score winning. The Act requires the court to take a holistic assessment of the child, her needs, and the people in her life: Phillips v. Phillips, 2021 ONSC 2480, at para. 47.
Best Interest Factors
The child’s needs, given the child’s age and stage of development, such as the child’s need for stability
[59] K.L. is 11-years old. There is a chronic dispute between her parents as to whether she has a learning disability, including a diagnosis of ADHD, and experiences emotional dysregulation. Because of the father’s concerns, I have carefully and repeatedly reviewed the psychoeducational assessment report completed by Dr. Clark in 2022. The specialist clearly identified some weaknesses in the child’s learning stage and style and made recommendations to support her ongoing education. The specialist was clear that the diagnosis of ADHD was provisional because of the divide in opinion between the parents and then the different reports of the child’s performance at school versus in tutoring. This report was delayed due to the father’s opposition to the conduct of the assessment.
[60] The court also heard evidence that the child has been overwhelmed in class and has experienced outbursts. Counseling was recommended. The mother has refrained from attempting to arrange for counseling, again, because of the father’s opposition.
[61] I find that it is counter to the child’s interests for this chronic dissension on her academic and emotional needs to continue. There is a need for stability in her educational planning and emotional supports. I find that the child has benefitted from interventions such as the educational assessment and tutoring as she has caught up in the development of her literacy skills and strategies have been identified to support her learning style.
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
[62] There is no doubt K.L. enjoys a strong bond with each parent. When she is in the care of one parent, she has regular virtual or telephone contact with the other.
[63] The father emphasized that the child enjoys a bond with her maternal and paternal grandparents and cousins. He submits the respondent unreasonably chose to cut off contact with her extended family and to deprive K.L. of those relationships. Relocation to Texas will only allow the mother to further isolate the child from her extended family. He is the only parent who is willing to foster those ongoing contacts. The mother testified as to her reasons for moving away from direct contact with her extended family, including alcoholism, domestic violence, and their interference in the separation. She will only support continued contact between the child and paternal grandmother if the grandmother’s boyfriend is not present.
[64] There was no independent evidence as to the importance of these extended family contacts to the child. None of the extended family testified. The court is troubled that the applicant may have cultivated ongoing contact with the maternal extended family, in full knowledge of the respondent’s issues with her family, as a strategy in this proceeding. He did not deny that he knew his former partner had a difficult relationship with her family.
[65] The child now has a younger half-sister through her mother’s new relationship. The evidence indicated K.L. enjoys her relationship with her stepfather, Mr. Reep. They are in regular contact remotely. He brought some of the child’s learning issues to the respondent’s attention and funded the psychoeducational assessment and tutoring.
[66] The Office of the Children’s Lawyer confirmed the child enjoys her relationships with her parents, her stepfather, and her half-sister. These individuals are all important to her. There was no mention of the extended maternal or paternal families in any of the child’s meetings with the Children’s Lawyer when the child was asked about the proposed move.
Each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent
[67] I find the mother is willing to support the development and maintenance of K.L.’s relationship with her father and that she has done so since separation. She has been willing to accommodate the parenting schedule since the interim interim parenting agreement was put into place. She has continued to foster contact during her visits to Texas with the child. Her plan continues to allow for that contact.
[68] The father suggested that the respondent and her spouse have interfered with his parenting time with the child when he has visited in Texas. Examples were his perception that Ms. Godin and/or her spouse unilaterally sought to move or limit the child’s remote parenting time with her father, or that Mr. Reep unreasonably intruded on the parenting time. I accept Mr. Reep’s and the respondent’s evidence that they proposed adjusting the parenting time given the one-hour time difference while the child was in Texas. Their rationale was that they were usually at dinner during the scheduled call, where the child was quite distracted. The proposed adjustment would give K.L the opportunity to speak with her father with privacy. The mother acknowledged that on one FaceTime from Texas, the child kept leaving the call to speak with her stepfather. The respondent testified that they redirected her attention back to the call and have taken efforts to minimize the possibility that this will happen again, including that the child has her FaceTime contact with her father in the privacy of her bedroom.
[69] The father also protested that Mr. Reep had unreasonably involved himself in the father’s virtual parenting time. It emerged that this concern arose from one occasion when the child wanted to play an online game with both her father and stepfather during her virtual parenting time with her father. The father acknowledged they were all playing the game at his daughter’s request; he was upset that he felt compelled to play his least favourite role in the game.
[70] The father claimed that the mother also interfered with his parenting time even when they were all in Windsor. His particular example was her request that they move the daily half-hour video parenting time 15 minutes earlier so that K.L. could settle and get to bed by 8:30 pm. The mother testified she wanted to adjust the schedule so their daughter could settle for sleep in a timely way.
[71] The Father protested there was no problem with their schedule; he was suspicious of the mother’s reasons for requesting the change.
[72] I find the father resisted the mother’s request to modify the parenting time through non-response or equivocal responses until such time that the mother decided to move parenting time to earlier in the evening. She did not do so unilaterally. It was a reasonable request based on the child’s interests in being rested for school. She did not cut off contact with the father altogether.
[73] Although the father clearly resents the mother and her new partner, he appears to respect the importance of parenting time for K.L. with her mother while she is in his care. However, I observe that he has been inflexible on the schedule upon which the mother is allowed to contact their daughter during his parenting time. The mother proposed varying the schedule so their daughter could get to bed earlier. The father refused. I accept the mother’s evidence that she accordingly reduced her FaceTime contact from 30 minutes to 15 minutes in the hope their child can get to bed at a reasonable hour.
[74] I also consider the father’s decision to involve the mother’s extended family in this dispute. He could be under no misunderstanding as to the mother’s difficult relationship with her parents, siblings, and extended family. They cohabited for about 11 years, with the mother’s parents living nearby. There was no direct evidence from the mother’s extended family as to the child’s relationship with them. The Children’s Lawyer also had no information that the child was worried about losing contact with her extended relations if she were to relocate to Texas.
The history of care of the child
[75] Each parent claims they were K.L.’s historical primary caregiver. There is no doubt that she enjoys the love and support of both parents. The question is how caregiving was managed.
[76] I understand the father’s evidence that he took parental leave at his daughter’s birth and then worked part time to assist in raising their child. The mother challenges this position.
[77] On balance, I cannot accept the father’s representation as to why he took the parental leave at the time of K.L.’s birth. The couple were in financially straitened conditions as the mother was already off on government funded maternal leave due to her medical condition. When asked to explain why he later went to part-time work after resuming his position at Tim Horton’s, he testified it was due to burn out from working on a large art project. He failed to mention a need to care for their daughter. The financial arrangements also speak volumes as to who was the primary caregiver. The mother paid for the child’s expenses in the main, in addition to carrying her own expenses. The father’s evidence that he homeschooled the child in her first year of education is short on detail and there was certainly no evidence that he followed a structured curriculum.
[78] The father’s texts to the respondent show his super-focus on checking with the respondent that the child’s homework is done. The court is concerned these communications were made for the purposes of this litigation. In any event, it cannot be disputed that the mother has led the way in addressing any needs their child may have for academic support, through pursuing tutoring, assessment and the design of an Individualized Educational Plan (IEP); all in the face of the father’s sustained opposition.
[79] Also telling was the father’s response when challenged on his non-response and delay in providing input on the designation of their daughter’s home school. He first claimed that he had followed up to speak with the principal as part of his own investigation. However, the record contradicted this representation, showing the principal had not received a response from him in the 20 days that passed since she asked the parents to decide. The applicant then appeared to justify his non-response by explaining that since the child was in her mother’s care the majority of the time, the schooling choice was up to the mother.
[80] In all of the circumstances, I find that the mother has taken on the primary caregiving role of their child since birth.
The child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained
[81] The father submits that K.L. does not have a realistic understanding of what it would mean if she moved to Texas. Her trips to Texas with her mother since 2020 have been more like vacations, with the focus on fun and entertainment.
[82] The Children’s Lawyer has identified the 11-year-old child’s views and preferences, with the additional professional support of a clinical social worker. The child spoke with the lawyer and/or the social worker on five occasions before trial. The child has been clear and consistent in views and preferences as it relates to the relocation plan. Despite the child’s learning difficulties, I find she appears to demonstrate an age-appropriate and practical understanding of the significance of the relocation plan, its impact on her, and her relationship with her father. I agree with the Children’s Lawyer that the child’s views and preferences should be given weight given her age and the clear and consistent manner in which she has expressed her wishes.
[83] The child has confidently advised that she wants to move to Texas to live with her mother, stepfather, and half-sister. She understands she would only see her father in person on holidays. She is content with daily virtual contact with her father and extended periods of time with him over holidays. She felt comfortable in telling her mother if she missed her father and planned that she would talk to him longer or more frequently if that was the case.
The child’s cultural, linguistic, religious and spiritual upbringing and heritage including Indigenous upbringing and heritage
[84] This factor does not appear to be a significant issue on the evidence. The mother is bilingual in French and English. The father has a French-language cultural background but is not bilingual and was not interested in making that culture part of their child’s life. The mother started the child in French Immersion to support that linguistic and cultural heritage; however, the mother transferred her to an English language program after identifying the child’s learning difficulties. A relocation to Texas, if permitted, would not undermine the child’s linguistic needs.
Any plans for the child’s care
[85] The mother and stepfather testified as to their plan for the child’s care if permitted to relocate to Texas. The stepfather has worked at UPS for over 20 years. His current position is a supervisor. His income is approximately $100,000 USD with stock options. He has a pension and substantial personal savings, which he plans to put toward the purchase of a family home in Grapevine for the respondent and the children.
[86] The stepfather has been living with his parents; his father suffers from dementia and requires support. However, the stepfather and the respondent have identified a nearby neighbourhood where the child could attend a STEM school, which would support the child’s current interest in robotics. The respondent and her spouse also plan to continue the child’s private tutoring, as they can easily transfer her support from Sylvan in Windsor to another Sylvan location in Grapevine. They plan to accommodate daily contact for the child with her father for as long as the child wishes. Given the distance, they propose extended in person parenting time for the child with her father for four-weeks during the academic summer break, the child’s academic spring break, the second week of Christmas break each year and at other times as they can agree upon. The mother and stepfather testified that the child’s travel from Texas to Windsor could be efficiently managed through a direct flight from the Dallas Fort Worth Airport, located 10 minutes away from Grapevine, to Detroit, a short distance from Windsor. The child can travel with a paid escort arranged through the airline. The respondent and stepfather are also open to the father travelling to Texas to see his daughter. To offset the travel expenses, the mother proposes that the court forego requiring the applicant to pay child support. The respondent would also welcome the applicant traveling to Texas for parenting time.
[87] The mother and stepfather testified as to her plans to work if she moves to Texas with K.L. Mr. Reep testified he earned enough to support the respondent, K.L. and both children. He also encourages the mother to pursue her own photography career or other interests if she relocates to Texas. He emphasized she will not need to work to maintain their lifestyle or to fund K.L.’s extracurricular activities and needs.
[88] The father’s plan does not have as much detail. He would continue to live in his apartment in Windsor, which has a furnished separate bedroom for his daughter. She would continue to attend her current school. He did not speak of any plans to continue her tutoring or any other of her educational and social supports as a result of her identified needs and provisional ADHD diagnosis. He also did not explain how he could be the sole caregiver of the child given his full-time employment and hours of work.
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
[89] There is no doubt both parents are motivated to care for their child. The question is whether they can objectively identify and reasonably meet those needs in a child-focused manner.
[90] I refer to my earlier assessment of the parental conflict over the child’s ADHD provisional diagnosis and her academic needs. I find on the evidence that the mother is better able to meet their child’s needs, such as with her efforts to address their daughter’s learning difficulties and her proposals to adjust parenting time so K.L. could settle and go to bed at a reasonable hour. In the face of that position, she chose to reduce her own virtual parenting time in the hope their daughter could get restorative rest. She and her new partner have funded the child’s additional needs to date and are prepared to do so going forward.
[91] I find the father has not been as successful in remaining child-focused on their daughter’s needs. The court has no doubt about his love for his daughter and his intention to act for her well-being. However, the court’s overall impression is that he has great difficulty in setting aside any differences with her mother in a way that will let him make child-focused decisions.
[92] The father has been inflexible in his positions regarding the assessment of his daughter’s intellectual needs and the arrangements for tutoring. He has refused to contribute to tutoring expenses or to accommodate tutoring on his time. He testified he had “other things” to do with their daughter on his time. Decision-making on major issues have been hindered by his repeated non-response to the mother’s texts and his apparent priority on doing his own research of the mother’s updates through double-checking the mother’s information directly with third parties to ensure she has not lied to him.
[93] I understand the father’s resistance to his daughter receiving an IEP, based upon his concern that the child could be stigmatized throughout the rest of her life. However, in my view, he needs to find a way in which to balance those concerns with the considered and objective information he has received from her teachers and assessor(s) regarding recommendations that will best enhance the child’s opportunities for academic success, independence and well-being.
[94] Another concerning incident arises from the child’s toy “Bunny” incident in October 2021, where she had realized on the cab ride with her father back to her mother’s home that she had left a beloved stuffed toy behind. The father did not turn around, nor did he offer to bring it to the child later that evening. The mother testified that their child had an emotional “meltdown” that evening and would not settle for bed. The father did not immediately respond to her texts. He later told her he was “busy”, although he had to acknowledge he was not at work. He claimed the respondent’s description of their child being “inconsolable” about not having her stuffed animal was a strong word. He claimed it was the mother’s failure in being unable to comfort their daughter; he was confident he would have been able to do so. He testified he planned to bring the toy to the mother’s home after he was done work the following day. However, he acknowledged he never communicated that plan to the mother. It is troubling that he would not recognize that his daughter would be upset about being separated from a comfort toy and that he defended his conduct and non-response by criticizing the mother’s parenting style.
[95] In summary, the father has seemed unable to set aside the parental conflict and constructively make decisions in the child’s best interests.
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
[96] The court finds the mother made a consistent effort to communicate and cooperate with the father in matters affecting their child. I rely on my previous findings and comments and will not unnecessarily repeat the evidence. In summary, I am satisfied the mother and her new partner demonstrate the willingness to communicate and cooperate with the father regarding matters involving the child. In contrast, the father has been unable to effectively communicate with the mother regarding child matters. He does not respond to her texts or emails about decisions regarding their daughter’s school and academic issues or health issues. He testified that he either did not think the mother’s texts about their daughter required a response or that he needed to do his own independent research through contacting the third parties before making his decision, based upon his concern that the mother “lies”. However, he never acknowledged her communications or followed up to offer his input. He simply offered no response or input to decisions about their child’s education.
[97] There is a consent order for the parties to communicate by Our Family Wizard. However, there was no evidence the father has made any sustained or consistent effort to constructively engage with the mother about their child’s daily activities, well-being or needs. Almost all text messages or emails reviewed in court were one-sided communications from the mother and demonstrated that he did not respond to the mother’s updates on their child’s well-being or offer any timely input on requests to decide on educational or medical issues.
[98] More troubling is the father’s conduct in having his daughter communicate her needs to her mother while in the presence of her father during parenting exchanges. The mother testified as to the father’s habit at drop-off to tell the child to tell her mother about what homework she had. The father seemed to have no concern about instructing his daughter to communicate with her mother about parenting issues. He testified that he did not see how this was bad parenting. This conduct in front of a child, and in using the child as part of passive aggressive and disrespectful treatment of the other parent, is neither mature nor child-focused behaviour. The court is concerned it can develop into behaviour that is harmful to the child.
[99] The court makes particular note of the father’s explanation that: “I communicate with Ms. Godin as little as possible.” Our Family Wizard is intended to support separated parents for that very reason. Yet the father did not use it and instead employed his daughter in communications with her mother.
Any family violence and its impact
[100] The respondent testified to ongoing emotional and financial abuse by the applicant. She claimed he complained about her weight gain with pregnancy and repulsed intimacy, complaining about her body odour or breath. He had not wanted a child as he believed women then trapped men in a relationship where they gained weight and became unattractive.
[101] The applicant acknowledges their relationship was troubled but denies the respondent’s allegations. He acknowledged they had relationship difficulties but testified he was surprised by the separation and did not see it coming. While the applicant acknowledges the financial arrangement, he disputes that he emotionally abused the respondent.
[102] The court is troubled by the allegations but does not find that the applicant’s alleged conduct rises to a level of “family violence” as defined in the CLRA. Assuming the respondent’s allegations to be true, the court can understand the father’s conduct was demeaning, humiliating, and disempowering. However, the court heard no evidence that there was either conduct or a pattern of conduct that amounted to coercive and controlling behaviour or that it caused the respondent to fear for her safety.
[103] However, the acrimonious relationship and the father’s lack of respect for the mother remains as a factor the court shall weigh with the other factors in respect of the relocation and decision-making issues in this proceeding.
Relocation Factors – s. 39.4(3)
[104] I now turn to consideration of the enumerated relocation factors under s. 39.4(3):
The reasons for the relocation
[105] The mother seeks to relocate to Texas as she met and married a new partner who has lived there all his life. Mr. Reep is in an established 20+ year career with UPS, now supervising a fleet of drivers. They share a child. Ms. Godin would reside with her spouse as a family to raise their child and her daughter.
The impact of the relocation on the child
[106] There would be an undoubted impact upon the child with relocation from Windsor to Texas. She would leave her birthplace, her father and settle in another country. She would be some distance from her family. This is overcome with a direct flight and brief commute to the airports; however, this is admittedly at some expense. She would lose regular contact with school friends and her extended family.
[107] I accept the father’s concern that his daughter’s view of the relocation may be coloured by the “vacation” tone of her visits to date.
[108] However, the Children’s Lawyer’s evidence satisfies the court the child has been practical and reflective on the implications of the proposed move. The child has been to Texas several times in the social environment of her mother, her stepfather, and her half-sister. Her position on the proposed move has been consistent throughout several interviews. She demonstrates full appreciation of what this move would mean for her contact with her father. She is content to rely on virtual contact and extended parenting time with her father over holidays. While virtual communication does not replace direct contact, the child is clearly savvy in the use of computer technology, consistent with her parents’ interests. Virtual communication and recreation are already a mainstay in this family arrangement.
The amount of time spent with the child by each person who has parenting time or is an applicant for a parenting order with respect to the child, and the level of involvement in the child’s life of each of those persons
[109] By the interim interim order, the child spends the majority of her time in her mother’s care. The court recognizes the father’s protest that he has always wanted more time. However, the order has established the pattern of parenting time for the past approximate three years. He did not seek to vary the parenting time, which was ordered on consent.
[110] Her mother is involved in scheduling extracurricular activities such as tutoring and has had to arrange for tutoring to occur during her parenting time. The father has chosen not to involve himself financially or personally in these enrichment activities for their daughter. He questions and dismisses the importance of these efforts, despite the clear advice of a balanced psychoeducational assessment. He insisted that tutoring occur on mother’s time as he and the child have unparticularized “other things” to do during his parenting time.
Whether the person who intends to relocate the child has complied with any applicable notice requirement
[111] The application preceded the notice requirements under the amended CLRA. In any event, there is no doubt that the applicant is on notice of the relocation request. The issue is expressly engaged in the pleadings and has long been the focus of the trial.
The existence of an order, family arbitration award or agreement that specifies the geographic area in which the child is to reside
[112] On the respondent’s consent, there is an interim order requiring the child to reside in Essex County pending further order of this court. No findings were made in respect of this order pending this decision.
The reasonableness of the proposal of the person who intends to relocate the child to vary the exercise of decision-making responsibility, parenting time or contact, taking into consideration, among other things, the location of the new residence and the travel expenses
[113] The court recognizes that the circumstances and timing of the respondent’s new relationship and her reasons for relocation may seem unusual to some. This would have been a surprise and alarming to the applicant father.
[114] The court is satisfied the respondent and her new partner are in a stable relationship and gave much thought to the implications of their decision. The court accepts that the sustained virtual contact does not necessarily diminish the quality and strength of an intimate bond. They established a deep bond through several months of what became daily contact before she travelled to Texas in July 2020 when they married. The respondent and her new partner demonstrated a commitment to their bond and a shared responsibility to the child affected by the proposed relocation.
[115] However, the focus of the reasonableness inquiry is on the relocation plan and the consequent provisions for decision-making and parenting time.
[116] The current interim orders make no provision for decision-making. The experience of the last three years demonstrates the parties have difficulty in decision-making. If the child were permitted to relocate, it would be rational for decision-making to also reside with the mother, particularly considering the father’s disinclination to communicate with her. To that extent, relocation would have little impact. He does not communicate with her in Windsor either.
[117] Relocation would disrupt the father’s current parenting time schedule in a profound way. However, he would have daily virtual contact and extended parenting time over the school holidays. Travel expenses for the child are mitigated by the respondent foregoing monthly child support at $292.00. This has not been adjusted, although the father’s income has increased, and he has not filed an updated financial statement.
Whether each person who has decision-making responsibility or parenting time or is an applicant for a parenting order with respect to the child has complied with their obligations under any applicable Act, regulation, order, family arbitration award or agreement, and the likelihood of future compliance
[118] This was not an identified factor during the trial. It appears the parties have largely complied with their interim interim parenting agreement and subsequent interim parenting orders. However, the court notes the parenting agreement provided the parties would “confer with each other on all plans and arrangements relating to access to the child.” By consent order, the parties were also to communicate by Our Family Wizard. I find that to date, the father has been unable to confer with the applicant or to meaningfully communicate with the mother, as had been contemplated by the agreement and order.
Assessment
[119] On a holistic balancing of all these factors, the court concludes it is in the child’s best interests to permit the respondent to relocate to Grapevine, Texas with the child in the mother’s primary care. The mother is the primary caregiver for the child and has been addressing her educational and developmental needs. Her father is devoted to his daughter but is resistant to any suggestion of a need for academic or behavioural support. He offers neither emotional nor financial support for those enrichment efforts.
[120] The mother’s relocation plan provides her with emotional, financial, and material stability, through the establishment of a home for her, her partner and her two children. Her new partner can support her and her two children. She and her husband will continue to fund additional tutoring in Texas. The mother has the choice to be a full-time caregiver or to pursue her photography vocation or other interests in Texas. Her new partner also paid off her outstanding debts incurred while trying to support herself, the applicant, and their child.
[121] She has the support of her new spouse’s parents. Although her father-in-law suffers from dementia, her mother-in-law has traveled to Windsor on occasion in the last two years to assist in caring for the children. The child will continue to have stable and secure support in Texas.
[122] This is a stark comparison to the respondent’s life before she met her new spouse. Previously, the parties essentially lived as roommates before separation, with the respondent financially struggling to raise their child, having little emotional or financial support from the applicant or from her family. This relocation plan marks an improvement in the mother’s physical, emotional, and financial circumstances. This can only benefit the child and therefore be in the child’s best interests: O’Brien, at para. 37.
Conclusion
[123] The court has considered and balanced these factors just reviewed. In considering what will be gained and lost by the child, the court finds the mother’s plan to relocate to Texas is in the best interests of K.L. having regard to her physical, emotional, and psychological safety, security and well-being.
[124] The applicant is currently required to pay $192.00 per month for child support, although this was based on his previous part-time income. He is now earning more in a trade, although his income remains unknown given his lack of an updated financial statement. In the meantime, the stepfather is prepared to continue to support K.L. as part of the family. I accept it is reasonable to suspend the father’s child support obligations in order to offset the expenses of either the child’s travel to Windsor or the father’s travel to Texas.
2. Considering the finding on relocation, what order as to K.L.’s parenting time is in K.L.’s best interests?
[125] The court has found the relocation plan for the child to move to Texas with her mother is in the child’s best interests. As part of that assessment, I reviewed the impact upon parenting time and the proposed parenting time schedule. The “parenting time factor” advises that the court shall give effect to the principle that a child should have as much time with each parent as is consistent with the best interests of the child: Barendregt, para. 135; CLRA, s. 24(6).
[126] For the reasons explained in support of allowing the mother’s relocation plan, the court finds the consequent parenting time provisions are in the best interests of K.L. The child is comfortable with virtual communication and will have daily contact with her father by this method as long as she wishes. While she will not have regular weekly in person contact with her father, she will enjoy extended in person parenting time over the school holidays. Digital technology can mitigate but not replace parental contact; however, I am satisfied it can help to overcome the distance. I am also satisfied and expect the parties will make reasonable efforts to respond to and accommodate additional parenting time with her father in accordance with her wishes.
3. Considering the finding on relocation, what order as to decision-making responsibility is in K.L.’s best interests?
[127] The CLRA generally provides that a child’s parents are equally entitled to decision-making responsibility with respect to the child: CLRA, s. 20(1). The court finds that it is in K.L.’s best interests for her mother to have sole decision-making in respect of major decisions concerning the child. This conclusion has less to do with the fact of the child’s eventual geographic location in Texas and more to do with the father’s passive aggressive attitude that hinders any productive communication with the mother regarding important decisions about their daughter’s well-being.
[128] The father has had ample opportunity to demonstrate his ability work with the mother to co-parent their child in the child’s best interests. Unfortunately, the record overwhelmingly illustrates they cannot do so. For reasons previously outlined, the court is satisfied the mother can make child-focused decisions. The father has not persuaded the court that he can make child-focused decisions in his daughter’s best interests on his own. His refusal to acknowledge that there are any issues with his daughter’s academic performance or to cooperate in providing her additional supports is perplexing.
[129] The father seems unable to make any decision or at least a timely decision and is not able to co-parent with the mother in the best interests of their daughter. By his own admission, he communicates with the mother as little as possible and does not see the problem with using the child to communicate information to her mother in his presence.
[130] He testified he will not speak with the mother in order to co-parent because he believes she “lies” about him. He insists on doing his own research and inquiries to confirm the mother’s information. Even then, he does not engage with the other parent and provide input in a productive or timely way. This is impractical and is counter to the child’s best interests. The delayed psychoeducational assessment is but one example. The record of text messages also outlines an almost one-sided report of information from the mother regarding their child, to which the father does not respond. The following is just a sample from the record of the parties’ “communications”:
a. In September 2020, mother texted father to share her concerns about their daughter possibly showing signs of dyslexia due to her writing. Father did not respond. He testified he dealt with it “in my own way”.
b. In September 2020, the mother wrote to the father to share her observation about their daughter’s toileting habits and to request they each ensure she properly cleaned herself after using the washroom. She asked the father whether he had noticed a smell while she was in his care given their daughter’s state of hygiene on return. Father did not respond. He testified that from his perspective it was rarely a problem while the child was in his care and that if their child was not wiping properly at mother’s house then it was her mother’s problem.
c. In December 2020, mother texted father about purchasing facewash so he would have it on hand to address what she perceived to be acne. Father did not respond to the text. He testified he had researched the issue and spoke with friends and did not think it was appropriate.
d. In January 2021, the mother sent texts regarding her observation that their child had ear wax build up and the family physician’s advice to administer olive oil in her ears pending a referral to a specialist. Father did not respond to her texts. He testified he did not put olive oil in his daughter’s ears and did not respond to the mother but decided to get information from the physician. The court has no appreciation as to what the father’s understanding was after that reported discussion.
e. Also in January 2021, the mother observed the child had come home in wet underwear. She asked the father to remind their daughter to use the toilet so that she could avoid infection and hygiene issues. Father acknowledged he likely did not respond. He suggested it was inaccurate that the child had wet her underwear.
f. In February 2021, the mother wrote to the father to advise they both needed to decide the child’s home school. The father did not respond. He testified he followed up with the principal to verify the mother’s report and made his own investigation. However, 20 days later the principal was still waiting for a joint decision from the parents. The principal elected to make a unilateral decision to designate the child’s home school. This prompted the mother to complain to the Ontario College of Teachers as she anticipated the father would allege she made the placement decision without his input.
g. In spring 2022, mother texted father to propose a summer tutoring schedule for their daughter that would involve some tutoring hours on his parenting time. The father did not respond. The mother opted to simply manage the tutoring on her schedule. Father testified that he had other things to do with his daughter on “my time.”
Summary
[131] For the foregoing reasons, the court concludes it is in the child’s best interests to relocate with her mother to Grapevine, Texas, with sole decision-making to the respondent mother, a right of update and access to information by the father and parenting time as scheduled.
[132] This decision is undoubtedly disappointing to K.L.’s father as it will reduce his parenting time. There is no “winner” in this case. The question is how to best fashion a parenting plan in the circumstances of the parties’ lives that addresses the best interests of the child. The court recognizes that virtual parenting time is not a replacement; however, it does serve to enhance the quality of remote parenting time. The parties and their child are clearly accustomed to making the online environment part of their regular lives.
[133] The father will have extended in-person periods of time with his daughter throughout the year. I see no reason why the Christmas schedule should always be set for the father’s parenting time to consistently occur in the second week as proposed by the mother’s draft order. It is also important to ensure that father’s rights to access information about his daughter are stipulated in this order and that he is able to make necessary decisions while K.L. is in his care.
Conclusion
[134] For these reasons, an order shall issue as follows:
Pursuant to the Children’s Law Reform Act: a. The respondent shall have sole decision-making for the child, K.B.L. born February 5, 2012. b. The respondent shall be permitted to relocate with the child, K.B.L. to Grapevine, Texas, U.S.A. c. The applicant shall exercise his parenting time with the child, K.B.L. as follows: d. The applicant shall have daily telephone calls and/or video calls with the child once a day for as long as the child wishes. The daily contact shall occur at their child’s convenience, at a time between finishing her dinner and getting ready for bed. e. The applicant shall have such additional telephone calls and/or video calls with the child in accordance with the child’s views and preferences and as can be reasonably accommodated by the respondent. f. The applicant shall have extended in person parenting time as follows: i. Four consecutive weeks of parenting time during the child’s academic summer break. The applicant shall provide his intended dates for this summer parenting time to the respondent by no later than March 1 of each year, with the exception that the applicant shall provide the dates for his four weeks of parenting time for the summer 2023 by June 1, 2023; ii. Their child’s academic spring break; iii. One week of the two-week Christmas break each year, to be alternated on a rotating basis; and iv. Such further and other times that can be mutually agreed upon between the parties and as is informed by the views and preferences of the child. g. The applicant is permitted to arrange for in person parenting time with the child to occur in Grapevine, Texas, with a minimum of one week notice to the respondent. h. The applicant shall be responsible for all travel costs for both he and the child and any and all expenses associated with his travel to Grapevine, Texas for the purposes of parenting time, including travel, meals and accommodation. i. In a health emergency, the parent with care of the child at that time will make the treatment decision, on the advice of medical personnel. If a parent makes an emergency health decision, the parent who has made the decision must immediately contact the other parent. j. In the event of a parent’s medical emergency, the other parent will assume the major decision-making responsibilities of the child until the situation becomes resolved. k. The parties shall share information with each other on a regular basis about their child's welfare, including their education and schoolwork, medical needs, health and dental care, counselling, extra-curricular activities and other important issues. l. The parties may both ask for and be given information directly from the child's teachers, other school officials, health care providers (including both doctors and dentists), and any other person or institution involved with the child. Each parent will sign all necessary consents for the other parent to receive such information.
Pursuant to the Family Law Act: a. The applicant’s claim for spousal support is dismissed; b. The applicant’s obligation to pay child support is suspended while his child resides in Grapevine, Texas.
[135] The parties are encouraged to resolve the matter of costs. If they are unable to do so and if the respondent seeks costs, she shall submit cost submissions by June 5, 2023. The father shall submit his cost submissions by June 19, 2023. Written submissions for both parties are limited to three (3) pages, double-spaced and 12-point font, excluding any bills of costs or offers to settle. There shall be no reply submissions without leave.
[136] If cost submissions are not received in accordance with the aforementioned timeline, costs are deemed to have been settled.
Justice K. Tranquilli Released: May 8, 2023
