COURT FILE NO.: FC-21-160

DATE: 2023/07/05

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Douglas Tabbert, Applicant

AND

Robin Walker, Respondent

BEFORE: Justice A. Doyle

COUNSEL: Peter M. Sammon, Counsel for the Applicant

Peter Hearty, Counsel for the Respondent

Lori Gutoskie, Counsel for the Office of the Children’s Lawyer

HEARD: May 15, 16, 17, 18 and 23, 2023 and written submissions received by June 26, 2023 in Pembroke, Ontario

Trial Decision

[1] The issue for the court’s determination is whether the respondent mother should be permitted to relocate the children, L.W. (10 years old) and M.W. (8 years old) from Chalk River, Ontario to Kingston, Ontario.

[2] The parties have agreed that they will have joint decision-making responsibility and undertake consultation with each other but if they are unable to reach an agreement after having a meaningful discussion, the parent who has the primary residence of the children will make the final decision and inform the other parent.

[3] Both parties agree that meaningful discussion requires a written exchange through email or text, in which each party respectfully explains why they would like a decision a certain way.

[4] The retroactive and ongoing child support issues have also been resolved.

[5] For the reasons that follow, the court declines to authorize the mother to relocate the children to Kingston, Ontario. The children’s primary residence will be with the applicant father in Chalk River.

Background

[6] The father retired in November 2019 from the Canadian Armed Forces (the “Forces”) and now works on contract dealing with artillery training. He receives a military pension and employment income and earns approximately $120,000 per annum.

[7] The mother is a warrant officer with the Forces and her annual income is approximately $85,000.

[8] The parents met in 2008 in Brockville where the mother was residing and the father lived in Chalk River. They frequently communicated and vacationed together. She co-owned a home in Brockville with another individual and when she was posted to Kingston she would commute to work.

[9] Both children were planned. L.W. was born when the mother was in Brockville and the father resided in Chalk River and working in Petawawa (which is in close proximity). The mother took one year of maternity leave and visited the father a couple of times in Chalk River.

[10] Upon her return to work, the mother arranged day care in the school-based learning center in the Kingston military resource center.

[11] On September 2, 2014, the mother moved in with the father at his current home at 32 Cook Street in Chalk River. This is the home that the two children reside in at this time. The mother was transferred to Petawawa for employment.

[12] L.W. was placed in a daycare facility named Little Trooper and the mother facilitated payments.

[13] M.W. was born in May 2015 and the mother took another year of maternity leave. The parties separated on August 2, 2015 and the mother purchased a home in Chalk River a few minutes’ walk from the father’s residence.

[14] In the summer of 2018, the father was transferred from Petawawa to Borden and from that time to the summer of 2019, the children remained in the full-time care of the mother. He would visit on weekends.

[15] When the mother was deployed to Kuwait from June 2020 to February 2021, the children were in the full-time care of the father.

[16] Upon the mother’s return to Canada, the mother asked the father to sign a parenting agreement that would allow her to accept a posting to Washington and move with the children. The father refused.

[17] The children had a 50/50 parenting schedule with their parents.

[18] In May 2021, after speaking to a lawyer, the mother told the father that she did not agree to a 50/50 shared parenting schedule.

[19] In the spring of 2022, the mother provided the father with the statutory relocation notice under the Children’s Law Reform Act, R.S.O. 1990, c.C.12, (the “CLRA”), as she was posted to Kingston by the Forces.

[20] She was told that she was to move in August 2022. The mother enrolled the children in a Kingston school for September 2022.

[21] A motion to allow her to relocate was denied by the court in August 2022 and the parties were ordered to continue the 2/2/5/5 parenting schedule.

[22] In the fall of 2022, the mother obtained permission to work remotely when she had the children and would stay in her Chalk River home during her parenting time with the children.

[23] She worked from home when she had the children and she would return to Kingston when the children were with their father.

[24] She was under the impression the final decision regarding relocation would occur in the fall of 2022. Her employer did not extend her ability to work remotely and she moved to Kingston in November 2022.

[25] Her furniture was moved on November 21, 2022 and the closing date on the sale of her Chalk River home was December 1, 2022.

[26] Since her move to Kingston, the mother has had the children every second weekend and time over Christmas and March break. The parties meet to exchange the children in Arnprior which is over 2 hours from Kingston and just over 1 hour from Chalk River. The mother had suggested Arnprior for the exchange because she thought the children would be living with her and she wanted to reduce the driving time for the father.

Mother’s Position

[27] The mother submits that as the main caregiver of the children for most of their lives, she had provided the majority of the care for the children, bought them their personal items and paid for their activities. She was in charge of all their medical/dental needs and did the lion’s share of drop off and pick up from the daycare provider from 2016 to 2019.

[28] The school they are attending in Chalk River is a very small school that has few amenities and parents in Chalk River typically arrange for their children to change schools in Grade 4. There are no extracurricular activities and she is concerned with the quality of education at that school.

[29] In addition, Chalk River is a small town and has very little to offer the children.

[30] The children will adjust to the change if they move to Kingston as they will make new friends and do well in the new schools that offer more for the children.

[31] Her proposed plan involves the children living with her in Kingston and seeing their father every second weekend and half of the holidays.

[32] The children participated in choosing the house in Kingston and the colour for their rooms and their decoration.

[33] She had no choice but to accept the posting otherwise she would have to leave the Forces. She is not permitted to work remotely.

[34] She has always allowed the children to visit with their father and believes that they have a good relationship with him. In contrast, the father has limited her time, allows only one call per week, did not permit videoconferencing with the children on Skype and has constantly changed the schedule to limit her time.

[35] In addition, he has hit L.W. in the past and she herself has been the victim of domestic violence on a number of occasions. The father has anger issues and has been very controlling and coercive. He has demonstrated a pattern of psychological abuse and this impacts his parenting.

[36] The mother submits that the court’s decision will be determined by which parent is to be believed.

Father’s Position

[37] The father would prefer to maintain the parenting schedule of equal parenting time of 2/2/5/5 rotation. He objects to the mother’s proposal to relocate the children to Kingston as this would interfere with his time with the children. He is a very involved parent who is meeting the children’s needs.

[38] He believes that a move of the children to Kingston would not be in their best interests as they have lived all their lives in Chalk River. The children have established important ties in the community and have consistency in their school, close friendships, and familial relationships.

[39] He is prepared to consult with the mother on major issues. He also wishes the children to be vaccinated and the mother has resisted this.

Issue: Should the children be relocated to Kingston from Chalk River to live with the respondent mother?

Analysis

Onus of Proof

[40] Firstly, the parties share the burden of proving whether the relocation is in the children’s best interests. There is no order, arbitration award or agreement that would engage s. 39.4(5) of the CLRA such that either parent would have the burden of proof.

[41] Section 39.4(5) of the CLRA reads as follows:

(5) If the parties to the proceeding substantially comply with an order, family arbitration award or agreement that provides that a child spend substantially equal time in the care of each party, the party who intends to relocate the child has the burden of proving that the relocation would be in the best interests of the child. 2020, c. 25, Sched. 1, s. 15.

(6) If the parties to the proceeding substantially comply with an order, family arbitration award or agreement that provides that a child spend the vast majority of time in the care of the party who intends to relocate the child, the party opposing the relocation has the burden of proving that the relocation would not be in the best interests of the child. 2020, c. 25, Sched. 1, s. 15.

(7) In any other case, the parties to the proceeding have the burden of proving whether the relocation is in the best interests of the child. 2020, c. 25, Sched. 1, s. 15.

(8) If an order referred to in subsection (5) or (6) is an interim order, the court may determine that the subsection does not apply. 2020, c. 25, Sched. 1, s. 15.

[42] Justice Fraser’s Order of August 2022 was made in the context of a motion to relocate on an interim basis and her order just confirmed that the parents were to continue the 2/2/5/5 parenting schedule. It was simply an interim order pending the final outcome of the matter. It did not create a new status quo as the parties had been following a shared parenting schedule since the mother’s return from Kuwait (despite her protests).

[43] Therefore, in accordance with s. 39.4(4) both parties have the burden to prove whether the relocation is in the best interests of the children.

Legal Framework

[44] In determining whether there should be a move with the children, the court is guided by the relevant factors in sections 24 and 39.4 of the CLRA. These provisions are a codification of the jurisprudence.

[45] The following legal principles in the leading case of Gordon v. Goertz, 1996 CanLII 191 (SCC), are relevant even though this matter is under the CLRA:

a. no legal presumption in favour of de facto custodial parent;

b. focus is on the best interests of the child and not the wishes of the parent;

c. the court should consider the existing parenting arrangement;

d. the desirability of maximizing contact with both parents;

e. the views of the child;

f. custodial parent’s wishes to move are only considered if they are relevant to their ability to meet the needs of the children; (however, this has been modified by the CLRA); and

g. disruption to the child by change in school, community and family they have come to know.

[46] The Nova Scotia Supreme Court in N.D.L. v. M.S.L., 2010 NSSC 68, 289 N.S.R. (2d) 8, listed additional factors to consider when applying the framework in Gordon v. Goertz:

a. the number of years the parents cohabited with each other and with the child;

b. the quality and the quantity of parenting time;

c. the age, maturity, and special needs of the child;

d. the advantages of a move to the moving parent in respect to that parent’s ability to better meet the child’s needs;

e. the time it will take the child to travel between residences and the cost of that travel;

f. feasibility of a parallel move by the parent who is objecting to the move;

g. feasibility of a move by the moving parent’s new partner;

h. the willingness of the moving parent to ensure access will occur between the child and the other parent;

i. the nature and content of any agreements between the parents about relocations;

j. the likelihood of a move by the parent who objects to the relocation;

k. the financial resources of each of the family units;

l. the expected permanence of the new custodial environment;

m. the continuation of the child’s cultural and religious heritage; and

n. the ability of the moving parent to foster the child’s relationship with the other parent over long distances.

[47] In Barendregt v. Grebliunas 2022 SCC 22, the Supreme Court described the framework governing relocation cases. At para. 94, it stated:

These submissions all bring into focus how case law across the country has refined and supplemented the Gordon framework for over 25 years. Indeed, the Gordon framework is flexible by design; it is not an unyielding set of rules. And with decades of Gordon jurisprudence as a guide, the federal government and many provinces have now enacted statutory relocation regimes that largely reflect the judicial experience evinced in the case law. As I will explain, this jurisprudential and legislative lineage provides a clear framework for all family arrangements going forward. The trial judge’s assessment of the best interests of the child is consistent with this refined framework. It was free from material error and entitled to deference on appeal.

Discussion

[48] Section 24 (1) and (2) of the CLRA reads:

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

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

[49] The court will now consider the factors set out in s. 24 (3).

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

[50] L.W. is 10 years old, very intelligent, polite and has an interest in his friends, nature and sports. M.W. is 8 years old and is intelligent and described as a social butterfly. She too enjoys the outdoors and various sports.

[51] Both children are doing well in school, are attending regularly, work well in the classroom, and are well behaved.

[52] L.W.’s grade 4 teacher testified of how well he was performing at school. He was doing well in all subjects, completes his homework, has good behavior in class and asks for help when necessary. He is involved in the cross-country team and would be involved in an upcoming competition.

[53] M.W.’s grade 2 teacher testified that M.W. is doing well in school but was previously lagging in reading. She has shown good progress this year and is projected to be at her grade level by the end of this school year.

[54] Both teachers indicated that the children were not late and did not miss many school days. They arrive at school ready to participate fully in class.

[55] The school is a small school with approximately 100 student and provides education to grade 8 but some students leave after grade 7 so they can commence grade 8 at the local high school.

[56] The court notes that the mother’s involvement with the children’s school and teachers has not been extensive. However, she did attend a parent-teacher interview in November 2022. She has been involved in the children’s activities in Chalk River and arranged for a birthday party for M.W. in May 2023 in Chalk River when many of her friends attended.

[57] Given that the father is in the same town, he is very involved with the school and has frequent communications with the teachers.

[58] They have no special needs.

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

[59] Both parents have a very strong attachment to the children. The children love both parents equally and find it difficult to discuss the issue of “choosing between” their parents when asked during their meetings with the OCL clinician.

[60] Both sets of grandparents and various aunts and uncles are involved.

[61] There is some dispute as to how extensive these family members are involved and how often they see the children. I find that the children have benefited from the involvement of the paternal grandparents, Aunt Joan and maternal grandmother. They have also had some involvement with other respective aunts and uncles.

[62] The court finds that the children are attached to the extended family members of both parent and benefit from their involvement.

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

[63] There was no agreement or court ordered parenting schedule until August 2022 when Justice Fraser ordered that the parties continue with the 2/2/5/5 parenting schedule.

[64] The court notes that the fall 2022 schedule imposed by the father did not include any weekend time for the mother when the mother was travelling between Chalk River to Kingston (about 4 hours).

[65] Both parents recognize the role of the other parent.

[66] The father’s application requested equal time and his position at trial is to have an equal parenting time. He understands the mother’s role with the children and seeks to maintain the mother’s relationship with the children.

[67] The mother supports the development and maintenance of the father’s relationship with the children.

[68] Before the litigation commenced, there was a joint effort to ensure that the children spent liberal time with both parents. The mother demonstrated a ‘free flow’ and flexible approach to the children seeing their father when they wished.

[69] However, litigation commenced two years ago and this caused a wedge between the parties as the contentious issue of the children’s relocation loomed over their heads, which resulted in both parents attempting to gain ground with regards to time with their children. It is the court’s view that the father’s behaviour in attempting to assert his right to equal parenting time added to the conflict.

[70] I will have more to say about this below under (i).

(d) the history of care of the children;

[71] The court finds that in the early years the mother played the lead role in arranging daycare, setting up medical appointments, pick up and drop off at the daycare and registering them for activities including play dates, library attendances, and special events (like Halloween and Thanksgiving).

[72] When she bought her own home in Chalk River, the father helped her with the renovations although the mother minimized his involvement.

[73] Since she had the only vehicle that could transport the children, she did the majority of the driving for the children and if the father was asked to do so, he had to take her vehicle and he would leave his truck for her use.

[74] The father was posted to Borden, Ontario (about 5 hours from Chalk River), for one year and returned in May 2019. He would drive home on weekends but she was responsible for the day to day care of the children.

[75] Since their separation in 2015 (the father says it is in 2017), they have not had a parenting agreement or court order setting out the parenting responsibility. There is some dispute as to how long they were in a “common law” status. The determination of whether they separated in 2015 or 2017 has marginal relevance. For the purposes of this court’s decision, what is relevant is their involvement with the children. As described in more detail below, the father struggles to remember dates and time periods when outlining past events. Therefore, I accept the mother’s evidence regarding the date of separation.

[76] The court notes that the parents determined the school, medical and dental issues without court intervention.

[77] The father cared for the children on a full-time basis when the mother was deployed to Kuwait.

[78] The issues have been conflictual in the past two years for the following reasons.

[79] Upon return from Kuwait, the father wished equal shared parenting time and the mother expressed a desire to accept a posting to Washington, bringing the children with her. This strained the relationship between the parties.

[80] The conflict and communications issues have arisen recently since the issue of relocation has been raised, leading both parents to argue over the parenting time with the children.

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

[81] The Office of the Children’s Lawyer (the “OCL”) clinician Raquel Beauvais-Godard’s affidavit sworn May 8, 2023, was filed and she was cross-examined.

[82] On October 31, 2022, Ms. Beauvais-Godard was assigned to assist the OCL Lorelie Gutoskie to interview the children regarding their views and preferences.

[83] Each of the parents was interviewed.

[84] There was an observation visit at the mother’s home in Kingston on January 4, 2023 and at the father’s home in Chalk River on February 3, 2023.

[85] Collateral sources were contacted included the OPP, St. Anthony School, Family wellness centre, Dr. Amer's office and Family and Children’s Services-Renfrew.

[86] A disclosure meeting was held on February 14, 2023 which provided a venue for her to disclose her findings and allow the parties to discuss options.

[87] The children were described as focused in their interviews and that they were both bright and articulate.

[88] Both parents described their children as smart, happy and polite.

[89] The OCL submitted that there was no evidence of any negative impact on the children with their father being the primary parent in the last 6 months.

[90] L.W. was described as smart, thoughtful and forthright.

[91] L.W. was interviewed at the school and at each of his parents’ home. He does not like the travel to Kingston, and does not want to choose as he loves both parents. He prefers to remain in Chalk River, likes his father’s family and does not know Kingston that much. Although he does not want to choose, he wishes to remain in the same school, current home and neighborhood, and wishes to see his mother on weekends and holidays.

[92] M.W. was also interviewed at the school and at each of her parent’s homes. She would like her parents to decide whether she is to go. She loves both of them and wants them to live closer to each other so she could live with each of them half time.

[93] She wants to spend more time with her mother and says Kingston is too far. She would be willing to miss school and do online schooling so she could spend more time with her mother. She would like to share equally the summers and holidays with the parents. She wished her mother lived close. She liked her school, friends and that they were near her home. She likes spending time with her father’s family including grandparents and aunt Joan. She wanted to leave things the way they are in Chalk River.

[94] The clinician also saw the children on May 10, 2023 at the school. It was a short meeting as the children were keen on attending a school event. Both children reiterated that they loved their parents. L.W. vocalized a preference to stay in the Chalk River area while M.W. said she did not want to choose but did not want to leave her school, friends and family members.

[95] The Chalk River school and community lends itself to an environment where the children are familiar to the teachers and the students in the school and where parents know each other.

[96] M.W. is described as a “social butterfly” and the small community of Chalk River allows her to flourish. L.W. has his own set of friends who he is close to and is reluctant to leave.

[97] The court notes the following comment in the Voice of the Child report:

Based on the interviews with L. (sic), it is apparent that he is more aligned with his father, and any loss of this relationships weighs heavily on him. It is also worth noting that while it is not unusual for a child to algin (sic) with one parent, it becomes a concern when the extent of the alignment, could potentially create a wedge between the other parent and the child. This is something both parents must be mindful of and actively address (through their own behaviour and tolerance of any disparagement of the other parent) for now and for the future.

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

[98] There was no evidence led on this issue and does not need to weigh into my determination.

(g) any plans for the child’s care;

[99] The mother’s plan is to relocate the children to Kingston:

• They will be living in a community called Greenwood Park area;
• There are both Catholic and Public school in the area;
• There is a high school down the street;
• It is a close-knit community with a little library, dentist, doctor with 5-minute walk;
• There are parks within walking distance; and
• It is a few minutes’ walk to children’s activities and since Kington is a larger town, the children would not have to travel out of town for their activities as they would be if they lived in Chalk River.

[100] The father’s plan is as follows:

• The children would remain in Chalk River and they would live with him;
• They would visit their mother every second weekend and half of the holidays;
• He is prepared to give her extra time on P.A. days and Family Day weekend so she could spend time with the children;
• The mother could call the children and also they now have an app through which she can have video-chats with the children;
• He admits that he could improve his attitude and behavior with the mother to reduce the conflict; and
• He is prepared to attend family counselling with the mother to assist in better communication.

(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;

[101] Both parties are equally capable of meeting the children’s needs.

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

[102] Both parents have stated that they are willing to support a relationship with the other parent. However, as discussed below, during this past two years of litigation, the father frequently changed the schedule to the detriment of the mother, and he limited her contact via video-chat when he had care of the children.

[103] The mother invites the court to consider the father’s behavior in limiting the mother’s parenting time including:

• Asking the children to come with him when the children were in the mother’s back yard when the mother’s family was visiting;
• Giving the mother little time on weekends during the fall of 2022; however, the court notes that Justice Fraser’s August 2022 order required that the parties continue the 2/2/5/5 split even though the week on/week off would have been more convenient for the mother when she was residing in Kingston;
• Refused to give her extra time after the Christmas 2022 concert; and
• Refused to allow the mother to attend M.W.’s medical appointment in April 2023.

[104] The court finds that the father could have shown more flexibility with the mother’s time especially when she was living in Kingston after November 2022 and her time was limited with the children. The father has not demonstrated a willingness to be open with the mother’s parenting time during the past 2 years with the ongoing litigation and focused on maximizing his time with the children.

[105] However, the father is adamant that he wishes to share equally his time with the mother and it is his position that his first preference is that he would like the children to have both parents in Chalk River. This is a very important consideration in that he is open to the mother having as much time with the children as he has. His final position demonstrates that despite his lack of cooperative spirit in parenting time during the litigation, his primary position is that the parents equally share the time with the children.

Hockey

[106] The issues around hockey centre around the father not taking them to practices and games, the mother not properly dressing them in hockey socks and limiting the children’s contact with the other parent in the arena.

[107] The mother was concerned that the father did not bring the children to the hockey games and practices, and as a result they missed a lot of ice time. The father states that the children would cry not wanting to go, L.W. did not like practices, only games, but he also did not like long drives to other communities. He refused to force the children to go to hockey which is a sport that he loved.

[108] The father complained that the mother was not strapping up the children’s socks correctly with Velcro and the socks would fall down during their time on the ice. Again, this subject created conflict between the parties. For example, on October 22, 2021 he accused her of lying as she did not dress them properly with their socks.

[109] The mother also says that at hockey practices and games, the father would tell the children to sit beside him and not to talk to their mother.

[110] On November 1, 2021, he was upset with the mother because she was not aware that the practice was cancelled as it usually is for Halloween.

(j) any family violence and its impact on, among other things; (i) the ability and willingness of any person who engaged in family violence to care for and meet the needs of the child, and (ii) the appropriateness of making an order that would require person in respect of whom the order would apply to cooperate on issues affecting the child.

Introduction

[111] There have been allegations of domestic violence that have been recorded since the commencement of the litigation.

[112] There were two complaints to the police that arose out of the dispute over parenting time.

[113] Although there were no police action as a result of alleged abuse by the father, it does not mean that domestic violence did not occur.

[114] I have considered the factors set out in the CLRA including s. 24 (4) as to whether the above behavior impacts on the ability of the parents, i.e. the father to parent the children.

[115] Some of the conflict was in the presence of the children. This has been remarked by the OCL clinician and the conflict has upset the children.

[116] Fortunately, the children are well grounded and loved, and they have not needed any counselling or remedial help to deal with their parental conflict. There is no evidence that they have suffered any physical, emotional or psychological harm as a result of the recent parental conflict.

[117] The mother indicates that there were other incidents before 2021 but gave no specifics, dates or details.

[118] The communications between the parties centred around punctuality issues, hockey, and the parenting schedule.

[119] The email and text correspondence between the parties was filed and certainly the communication by the father to the mother was, at times, aggressive, verbally abusive and lacked respect. He admitted to the language used including: “deadbeat mom”, “no career without me”, “only in the Forces because of me”, “you would still be living with a bisexual native without me and in Brockville place”. He was constantly critical of her if she was a little late for the exchange of the children.

[120] Verbal language that belittles, mocks, and humiliates an individual is verbal abuse and constitutes domestic violence.

[121] The father admitted being obsessed with timely attendance due to his military training and experience with the Forces for 35 years. Punctuality and timing are very important part of military life and lack of adherence to time requirements can be costly in human life. He admits that he was critical of the mother for her tardiness and, on one occasion, when they were meeting at MacDonald’s for the exchange of the children scheduled for 6:00 p.m., he texted her at 6:01 p.m. commenting on her being late. The children happened to be in MacDonald’s with the mother and she indicated that she could not see his van.

[122] The father admitted that he did not exhibit respectful behavior with the mother. He had been under a great deal of stress since the commencement of the litigation and the possible outcomes are weighing on him. He expressed a desire to do better and learn to better communicate with the mother for the sake of the children. He realizes the has to be more flexible in his view of time constraints. He would be willing to participate in family counselling to learn better communication with the mother.

[123] Both parties engaged in conflict in their exchanges in the presence of the children. The mother was frustrated with the father’s insistence to follow the 2/2/5/5 parenting schedule after she told him that she had spoken to a lawyer who had told her that she did not need to agree to a shared parenting living arrangement.

[124] She was upset that the father was asserting control over the schedule. This led to ongoing tension and numerous disputes regarding time with the children. The tension regarding the schedule led to mutual mistrust regarding the other and whether they manipulated the situation to obtain more time.

[125] She was present when M.W. had her lab ultrasound but the father tried to exclude her from the room (but the court notes that there was some evidence that only one parent was permitted).

[126] She invited the father to two birthday parties but he did not attend. He made her feel like a horrible parent in front of the children.

[127] The court finds that there was increasing tension and conflict between the parents regarding their disagreement about parenting time. The court finds that the father’s obsession with punctuality and at times, a lack of flexibility in his approach escalated the conflict.

[128] In addition, his language in communications, especially texts, was disrespectful, demeaning and resulted in tension and resentment.

Credibility

[129] Before discussing the allegations of family violence, the court will make some comments on the credibility of the parties. The court’s findings on credibility issues will be considered when determining what is in the children’s best interests but they are not determinative of the final issue.

[130] Regarding credibility, the court is guided by in A.E. v. A. B., 2021 ONSC 7302, where Justice Jarvis stated:

[87] In Christakos v. De Caires[32], Nicholson J. adopted as helpful MacDonald J.’s following outline in Re Novak Estate[33]:

[36] There are many tools for assessing credibility:

a) The ability to consider inconsistencies and weaknesses in the witness’s evidence, which includes internal inconsistencies, prior inconsistent statements, inconsistencies between the witness’ testimony and the testimony of other witnesses.

b) The ability to review independent evidence that confirms or contradicts the witness’ testimony.

c) The ability to assess whether the witness’ testimony is plausible or, as stated by the British Columbia Court of Appeal in Faryna v. Chorny, 1951 CanLII 252 (BC CA), 1951 CarswellBC 133, it is “in harmony with the preponderance of probabilities which a practical [and] informed person would readily recognize as reasonable in that place and in those conditions”, but in doing so I am required not to rely on false or frail assumptions about human behaviour.

d) It is possible to rely upon the demeanour of the witness, including their sincerity and use of language, but it should be done with caution (R. v. Mah, 2002 NSCA 99 [at paras.] 70-75).

e) Special consideration must be given to the testimony of witnesses who are parties to proceedings; it is important to consider the motive that witnesses may have to fabricate evidence. R. v. J.H. 2005 CanLII 253 (ON CA), [2005] O.J. No. 39 (OCA) [at paras.] 51-56).

[37] There is no principle of law that requires a trier of fact to believe or disbelieve a witness’s testimony in its entirety. On the contrary, a trier may believe none, part or all of a witness’s evidence, and may attach different weight to different parts of a witness’s evidence (See R. v. D.R. [1966] 2 S.C.R. 291 at [para.] 93 and R. v. J.H. supra). [Emphasis in original.]

[131] In determining credibility, as noted earlier, the father’s recollection of events, timing of events, and details of events was at times vague and inconsistent. As will be detailed further below, he was not able to corroborate events that he indicates were confirmed in electronic communication by submitting the documentary evidence.

[132] In addition, his testimony during the period of time that the mother was in Kuwait when the maternal grandmother was visiting was inconsistent. He minimized her relationship with the children earlier in his testimony but then gave more detailed information about the contact between the maternal grandmother and the children. Also, on cross-examination he did admit that the maternal aunt visited on occasions other than with the maternal grandmother.

[133] It is also disconcerting that the father made disparaging remarks regarding the mother's family, including allegations that one of her parents had dementia and is on ODSP without any supporting evidence.

[134] In contrast, he exaggerated his sister Aunt Joan’s contact with the children, saying that it was very frequent but she herself admitted that she had not seen them since Christmas 2022.

[135] He also exaggerated the amount of hockey that the children had to play by saying it was 6 nights per week plus tournaments.

[136] The father has issues with dates, for example he insisted that he had started dating the mother when she would have been in high school. He later corrected this date.

[137] I will now turn to the specific incidents.

March 8, 2021 - Incident

[138] On March 8, 2021, the parties agreed that L.W. would sleep at the father’s residence. When the mother went to his home to pick him up to bring him to school, the mother alleges that the father yelled at her.

[139] She said he was very angry with her about her lack of compliance with Covid restrictions. The mother states that L.W. was trying to go under his arm to leave. The father picked up his boot and started swinging it at her.

[140] M.W. was on her right side and she pushed her away from the door. He lost the boot and continued to yell at her. He tried to jab her with a closed fist but did not make contact. He yelled at her in a loud tone. She left with M.W. and still does not understand why he was irate. She did not call the police as he did not hit her and she believed the police would not act as they had refused to do so in the past.

[141] There is some dispute as to the location of the father, whether he was on the front step or behind the door. He says that the mother was trying to enter the home and he was holding the front door so she could not come in. He had been putting on his shoe and did admit to swinging it at her but denies a jab.

[142] I accept the mother’s version of that incident as she mother provided more details of the events of that day. However, there are concerns that she would have called the police after the father took the children from her backyard but not after this incident when he allegedly attempted to assault her.

[143] Also, it is unclear and difficult to comprehend from the father’s evidence how he could be holding the door yet swinging a shoe at the mother at the same time. In addition, it is unclear when he flung the boot how he was able to raise his hand towards the mother while trying to close the door.

[144] The court accepts that the father showed a lack of emotional self-control in the presence of the children. His use of the boot as a possible weapon and becoming very angry over what the mother says Covid restrictions, is not in the best interests of the children. He showed bad judgment as a parent.

May 19, 2021 - Incident

[145] On May 19, 2021, the children were playing on the trampoline in the mother’s backyard. They were not attending school as they had online learning during Covid restrictions.

[146] The father arrived telling the children to go to the car and that he was taking them. The children went to the car without shoes or socks and Shadow, the mother’s dog, followed them to the car. He drove away and the kids put on their seatbelts after he drove off. The mother called OPP Pembroke and was told that without a custody order there was not much they could do.

[147] There are inconsistencies in the father’s evidence as to whether he went to the front door or not, as he stated in his affidavit.

[148] It is clear from an earlier exchange of emails that the father was intending to pick up the children even though the mother did not agree. This was another example of the parties’ disagreement about parenting time during the litigation. The father asserted control over the situation but this certainly led to the children being placed in a position where they were quickly taken out of the mother’s control without even their shoes and socks. This must have left them confused.

June 5, 2021 - Incident

[149] On this occasion, both parents believed they were to have the children.

[150] On June 5, 2021, the mother was to pick up the children at the father’s home and he refused to let the maternal grandmother have the children that day.

[151] The father says that the mother told the maternal grandmother to “shut the f--- up”. The maternal grandmother testified that her daughter did not say this and her daughter has never talked to her like that.

[152] Given the father’s tendency to embellish his evidence and exaggerate when necessary, I accept the maternal grandmother’s evidence on this issue. Her evidence was given in a straightforward manner and her evidence was not shaken during cross-examination.

[153] Later, the father called the mother and told her that she would not have them until Monday and called her derogatory names (including calling her a c---). The children were present in the car when he was yelling at her. The next day she got the children and the children were worried as they had heard the conversation.

[154] Again, this is another incident of a power struggle for parenting time and yet another example of the father’s lack of emotional self-control. His resorting to name calling in the presence of the children is not in the children’s best interests.

June 17, 2021 - Incident

[155] On June 17, 2021, the mother woke up to see that L.W. was not at home at a time when she had care of both children.

[156] Her version is that she went to the father’s home and asked if L.W. was with him and he denied it. He started getting angry and told her to go find him.

[157] She eventually left with M.W. and said she was shaken up, but in the past she had no success with the police so she did not call them.

[158] The father should have advised the mother that the child was at his home. He admitted that he was surprised when L.W. woke him up and it would have been prudent for him to let the mother know that he was with him. Even more importantly, he should not have lied to the mother when she came to the door asking if he had seen L.W. and he said no. The mother was in a state of panic not knowing where her son was.

[159] The father’s behavior when L.W. left the mother’s residence without her knowledge was not acceptable. The mother was very worried of her son's whereabouts and he lied to her. He also did not admit this in his affidavit filed for the motion heard in August 2022.

[160] This shows bad judgement. To tell the mother to go find her child when he is in his home shows a lack of concern and empathy for the mother's state of mind. As a parent, the father should have been sensitive to her predicament.

[161] In his affidavit filed in court for the motion, he omitted to say that he lied to the mother. This diminishes his credibility with the court.

[162] The father's inconsistent statement and admission that he misrepresented the truth in his earlier sworn statement relied on to by the court on the motion again detract from his credibility and reliability on this incident and taints his testimony of the descriptions of the other incidents.

June 2, 2021 - Incident

[163] On this occasion, the father was riding on his bike because he took a quick route home. The mother alleges he did not need to ride by her home and that he was staring at her and she felt intimidated.

[164] The court finds that the father does have a longing to see his children and takes every opportunity to see them. In fact, when the children were brought to school when they were in the mother’s care, they had to walk by his house and he would be in his home ready to wave at them, when they passed by. On this day, the court finds that this was not an attempt by the father to harass the mother or annoy her. He drove by, waved at the children, and went on his way. There was no conflict in the presence of the children. However, given the father’s prior aggressive behavior exhibited towards the mother, the court accepts that the father’s presence in her neighbourhood when he had no reason to be there could be disconcerting to the mother.

Christmas 2021- Incident

[165] There was another disagreement about the parenting schedule. The father arrived at the mother’s residence and the children came running to him. The maternal grandfather was in the front of the house. The children did not have time to say goodbye to their grandfather as the father immediately left with the children.

May 14, 2023 - Incident

[166] The last incident occurred on May 14, 2023 (a few days before the commencement of the trial). The father was upset that the mother was a few minutes late for the exchange. The mother was actually sitting in the restaurant with the children and did not see the father pull up to the restaurant. The father became upset with her and accused the mother that she was “always late why can’t you do something simple.” Later M.W. told the father that she did not want him to do that again.

[167] This is an example of the father’s inability to control his temper, remain focused and not make a scene in the presence of the children. This shows bad judgment as a parent.

Conclusion

[168] In considering the impact of any family violence under clause (3) (j), the court has taken into account the factors relating to family violence set out in s. 24(4) of the CLRA:

(a) the nature, seriousness and frequency of the family violence as described above;

(b) that in the recent past two years since the commencement of the litigation and conflict of the parenting schedule and relocation issue, the father did demonstrate a pattern of coercive and controlling behaviour in relation to a family member;

(c) the conflict in the presence of the children was emotionally harmful and in fact, on the last occasion on May 14, 2023, the child M.W. told her father not to do that again, referring to the father being upset when he thought the mother was a few minutes late for the exchange when she was in the restaurant waiting.;

(d) the physical, emotional and psychological harm or risk of harm to the children has not been shown;

The court has no evidence of the harm to the children as a result of the above family violence. There are no signs of physical, emotional or psychological harm. Rather, the children are well adjusted social children and are doing well in school.

(e) any compromise to the safety of the child or other family member; certainly, when the children were exposed to the parents arguing the children were in an emotionally vulnerable state;

Again, there is no evidence here.

(f) there was no other violence towards other members of the family;

(g) any steps taken by the person engaging in the family violence to prevent further family violence from occurring and improve the person’s ability to care for and meet the needs of the child;

No steps have been taken by the father although he now verbalizes his intent to improve his communication with the mother. This testimony came a few days after he lambasted the mother when he thought she was a few minutes late for the exchange of the children.

[169] The court is very concerned with the father’s verbal aggression towards the mother in the past two years since the commencement of the litigation. It is demeaning and belittling of the other parent and when done in the presence of the children, is emotionally damaging to them.

[170] I must consider whether the father will foster a relationship with the mother and the children.

[171] I find that the father accepts that the mother is an important person in the children’s lives. In fact, his original application issued in 2021 requested equal time sharing with the children. This demonstrates his commitment and belief that the children should have equal time with both parents. This belief was manifested in the last two years by him insisting on his time with the children and vigorously guarding his time which on occasions meant that he was inflexible and interfered with the children’s time with, for example, their maternal grandmother who was in town.

[172] Therefore, the father’s attitude and behavior are not excusable but certainly explicable as to his lack of cooperation in adjusting the schedule to allow the mother time with the children. The court does not condone his arbitrary dictating of the parenting schedule such that the mother had few weekends available to her in the fall of 2022 before she moved to Kingston.

[173] The father’s demeaning, disrespectful behaviour did affect the mother as she was made to feel insecure and vulnerable in the relationship at times, but it certainly did not prevent her from continuing to assert her rights for more parenting time with the children and confront him if necessary if he was not being cooperative. For example, coming back to this home a second time looking for L.W. even when he said he was not with him.

[174] During these two years of litigation, the parents, although good parents who love their children, were unable to set aside their disagreements and protect their children from the conflict.

[175] The mother says that there were other examples before the litigation commenced but failed to provide details or dates that would allow the court to make findings.

[176] There was also conflict between the parents as the father did not take the children to their activities that the mother had registered them in during his time with the children. For example, they did not attend hockey games or tournaments if they fell on the father’s time with the children.

[177] She did not record anything before the application was commenced but indicates that the reason she separated was that he was hitting L.W. She believed his home was not a friendly environment for children. This was the first time in these proceedings that she alleged that the father hit L.W. and it is implausible that she would leave the children with the father during her deployment to Kuwait if she was concerned about physical abuse by the father on the children.

[178] I have also recognized that the father appeared remorseful in his conduct and is willing to engage in family counselling to assist in better communication with the mother. However, the court also notes that this suggestion comes only days after the May 14, 2023 incident where the mother was apparently a few minutes late.

[179] I have noted my observations of the conflict was in the presence of the children. This has been remarked by OCL clinician and that it upset them.

[180] Fortunately, the children are well grounded and loved and they have not needed any counseling or remedial help to deal with their parental conflict. There is no evidence that they have suffered any physical, emotional, or psychological harm as a result of the recent parental conflict.

[181] The parents, although good parents who love their children, are unable, at times during this litigation, to set aside their disagreements with the other parent and protect their children from the conflict. Before this litigation, they had a very fluid and cooperative arrangement regarding the children.

[182] There was a great deal of tension regarding the parenting schedule as there was no signed parenting agreement or court order until August 2022. Unfortunately, this led to conflict as disagreement where the mother alleges the father dictated the schedule and constantly made changes to it. The father denies he dictated the schedule. I accept the mother’s evidence on this point as it is unlikely she would agree to a schedule where she has so few weekends during the fall of 2022 when she was travelling back and forth from Kingston to Chalk River. Nevertheless, Justice Fraser’s August 2022 order required the parties to continue a 2/2/5/5 split parenting schedule.

[183] Therefore, I conclude that the father’s past conduct does not impact on his ability to parent the children when they are in his care. But it does affect how he relates to the mother during exchanges.

[184] Once litigation is over, certainly the stress level and the tension between the parties regarding the parenting schedule will no longer be present. However, the father’s habit of treating the mother disrespectfully is a serious personality fault especially when it is done in the presence of the children.

[185] This is a factor when the court is considering the children’s best interests.

[186] As set out in 39.4 (3) of the CLRA, the court shall consider the factors set out therein:

(a) The reasons for the relocation

[187] As discussed above, the court accepts that the mother had no choice but to agree to the posting to Kingston otherwise she would not be able to remain in her career with the Forces. Her alternative was to leave her employment and attempt to obtain contracts as a reservist in the Chalk River area which would mean a downward spiral in her career and significantly less income and lack of stability in her employment.

[188] It is a lateral move rather than an improvement or promotion of the mother’s career and her proposed move does not enhance the children’s lives economically. It is required as part of her employment and is necessary. There is no suggestion that the mother will have more support in Kingston or that the children’s lives would be enhanced.

[189] The court accepts the evidence of Master Corporal Christa Ethier, Senior career manager for human resources occupation with the Forces who is in charge of management of warrant officers and master warrant officers as to where they are placed throughout the country.

[190] As discussed by Ms. Ethier, the Forces expect its members to diversify their skills and take other postings to widen their skills and knowledge so that they not only advance their career but also become more available to meet the needs of the Forces.

[191] The mother had turned down other deployment opportunities in the past. It is noteworthy to note that in the father’s 35-year career with the forces he had approximately 10 different postings and other deployments overseas.

[192] Kingston was a high readiness unit so screening was necessary before there was a release of posting message (i.e. a command to report to the new posting).

[193] If released she would not have received an annuity. In addition, if she were to decline this posting from the Forces she would take a reduction of $25,000 per year in income or be discharged from the Forces without an immediate annuity. This would have a financial impact on the children.

[194] She was tagged red for Washington due to family issues. However, Ms. Ethier did indicate that since the mother was interested in the Washington posting, her file was flagged for postings.

[195] The Forces have guidelines regarding deployment and postings. Ms. Ethier indicated the following:

• It is unusual for the mother to have remained in one place, i.e. in Petawawa over 7 years as usually only people in entry level positions remain in one place this long;
• As a warrant officer, she is expected to “tick the boxes” which means that the military desires individuals to gain experience in different fields that lead to promotions and an enhancement of the usefulness of their members;
• Upon her return from Kuwait, she had made a request to be posted to Washington and had discussed with the father that she be allowed to take the children with her;
• Due to the family situation, the mother did not obtain a “green screening” which meant that she was not approved for the posting;
• It was on her record that she was ready for other postings and the military notified her that she would be posted to Kingston;
• Screening before a posting includes medical, dental, psychological and social work testing;
• She was screened green;
• However, she managed to delay the posting memo to authorize her to move to Kingston due to the family situation. The mother was under the impression that the litigation and whether she was permitted to move would occur in the fall of 2022;
• No further extensions of the posting memo were permitted and she moved to Kingston in November 2022 and purchased a home there;
• The posting in Kingston is a lateral move but will promote her career as it “checks a box”; She is not earning more money. If she did not accept the posting, she would have to withdraw from the military; and,
• If she withdrew from the military she could re-apply as a reservist and experience a significant reduction of income and face the uncertainties of going from contract to contract with no guarantee that the work would be in the Chalk River area.

(b) The impact of the relocation on the children

[196] If the children relocate to Kingston, they will be well cared for by the mother and she has already taken steps to ensure that the children’s needs will be met. She has looked into schools, medical/dental personnel, activities, neighbourhood and social network.

[197] The mother has purchased a home and the children have been involved in the choice of home and decorating their bedrooms.

[198] If they leave Chalk River, they will leave the home they have known for most of their lives, including their school, friends and extended family from the father’s side.

[199] However, there was evidence from the teacher that approximately 10% of the school population experience changes in school and that this could mean changes in the children’s friends.

[200] Their time with their father will be greatly reduced. This would not be in their best interests given their attachment to their father and his integral involvement in all aspects of their lives.

(c) The amount of time spent with the child by each person who has parenting time or is an applicant for a parenting order with respect to the child, and the level of involvement in the child’s life of each of those persons

[201] This was discussed extensively above.

(d) Whether the person who intends to relocate the child has complied with any applicable notice requirement under section 39.3 and any applicable Act, regulation, order, family arbitration award and agreement

[202] The mother complied with the notice requirement under s. 39.3 of the CLRA.

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

[203] There was no previous order, award or agreement other than Justice Fraser’s order in the context of this litigation that specified the child’s geographic area.

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

[204] The mother’s plan to relocate is not unusual for members of the Forces. In fact, Ms. Ethier spoke of how unusual it was for her to be in the Petawawa area for almost 8 years. The Forces expect its members to be mobile and uproot their homes on a regular basis. It is expected by their members that they will comply with their postings.

[205] Therefore, in that perspective it is not unreasonable that she requests the children move to another location. However, in the circumstances of this case, this means uprooting the children from the home that they have always known.

(g) Whether each person who has decision-making responsibility or parenting time or is an applicant for a parenting order with respect to the child has complied with their obligations under any applicable Act, regulation, order, family arbitration award or agreement, and the likelihood of future compliance. 2020, c. 25, Sched. 1, s. 15.

[206] This is not relevant here as there was no previous parenting order.

[207] In accordance with 39.4 (4) of the CLRA, since the court has declined to permit the children’s relocation, the court will not consider as a factor whether the mother would relocate without the children or not relocate herself.

Conclusion

[208] In conclusion, the court has determined that it is not in their best interests of the children to relocate to Kingston. What follows below, is a summary of my findings.

[209] The court has considered the effect on the children’s time with each parent if they move to Kingston which is 4 hours away and requires travel expenditures for both parents. Fortunately, it is a drivable distance which would allow regular weekend contact.

[210] In determining the issue of relocation, the court must weigh the competing considerations and the maximum contact principle set out in s. 24(6) of the CLRA. The mother has provided a detailed plan in her testimony regarding the father having half of all holidays, every family day and every march break. She would also encourage the children to have video chats and will continue to be supportive of the father’s relationship with the children.

[211] The court finds that the mother has always been supportive of the children’s relationship with their father.

[212] The mother addressed her plan for Kingston, two possible schools, activities available in the schools, L.W. obtaining more academic challenges, enrollment in activities that they wish to be in, role of her family and ability to continue with her work and “check the box” to allow her to be eligible for promotion.

[213] The children have lived in Chalk River almost all their lives and are familiar with the neighbourhood. L.W. has been living in Chalk River since he was 20 months old and M.W. has lived there all her life.

[214] They are both enrolled in baseball and swimming and enjoy outdoor activities such as camping and fishing. They are very popular and have plenty of friends and many playdates and sleepovers.

[215] Their father is no longer in the Forces and hence there is no risk of being deployed or posted. He retired in November 2019 and now works with the Commissionaires assisting the training of military and police personnel in artillery.

[216] The children are settled in the community and have their medical professionals (recently regarding M.W.’s stomach issues), their dentist, their friends, their school and their social life, and their activities.

[217] The children are currently in a routine and bike or walk to school. The father is available as he works remotely and is able to have flexibility in his schedule to meet the needs of the children.

[218] The children had regular consistent and meaningful contact with the father during the period between May 2016 and June 2020. They lived with him for 8 months during the mother’s deployment and upon her return, the children spend almost equal time with both parents until the mother moved to Kingston in November 2022.

[219] I find that both parents played a significant and meaningful role in the upbringing of the children.

[220] Both parents are good parents who love their children and have an attachment with both of them.

[221] The mother was the primary caregiver before she left for Kuwait in June 2020 but the children had a fluid schedule with the father as he lived around the block from their residence. Early on in the children’s lives, the mother had an open and flexible approach to their time with their father. The court commends both parents’ attitude and approach that permitted the children to spend time with the father with no rigidity. The children did not always go to the father’s home together and at times, only L.W. would sleepover. The children were with the mother during the weekdays and slept many weekends with their father.

[222] The father’s role changed when the mother was posted to Kuwait as he became the primary parent for the children. The fact that the mother entrusted the children with the father and her home ( he would do yard work and keep an eye on the place) demonstrates that she trusted him to take care of them. Therefore, her allegation that she now raises for the first time that he hit L.W. on the head while they resided together when he was a toddler and was one of the reasons she left lacks credibility. The father denied that he hit the child and would never hit his children.

[223] I am satisfied that no weight or credence should be given to this allegation. The father was the only caregiver of the children for the 8 months when the mother was on her posting. As a good mother, the court finds that if she was concerned that the father would physically discipline the children or physically harm the children, she would not have left the children with him.

[224] Upon her return, things changed. The children had entered into a new routine and the father wanted the children half the time. Initially, the mother agreed but changed her mind after speaking to a lawyer. This led to conflict and power struggles as each parent jockeyed for more time with the children. For example, the father would not give up a day when the children were scheduled to be with him even though the maternal grandmother was in town and would have liked to see the children.

[225] On the other hand, the parents did cooperate at times and schedules were changed to allow the other parent unscheduled time.

[226] The mother tried to delay the posting to Kingston but the post was sent, and she was transferred in November.

[227] Since then, she has seen the children every second weekend when they meet in Arnprior and half of the Christmas holidays and March break.

[228] The father has developed a routine with the children and unquestionably they are well settled in Chalk River, in their school, with their friends, routines, their weekends and summers filled with camping, fishing and hiking in the area and in Algonquin Park.

[229] The father spoke of their routines, walking or biking to school, the playdates and sleepovers and his closeness to their neighbours who play a role in the children’s lives as there are other school age children in the neighborhood.

[230] He is worried, due to L.W.’s shyness, about him making new friends if he has to move. M.W. is a social butterfly who makes friends easily.

[231] The teachers spoke glowingly about the children. M.W.’s was lagging in reading and this has been addressed by the father’s remedial homework involving more reading time for her and she has improved.

[232] The children enjoy their time camping with father and friends, and are building their childhood memories by spending time outdoors.

[233] The mother spoke of the Kingston schools having more opportunities for the children as there are bigger schools and there are more extracurricular activities. As Kingston is a bigger city, it has more to offer the children compared to Chalk River which a very small community with few amenities. She indicates that the children viewed her home in January 2023 and she had just been there 2 months. They have not had time to develop a lot of friends or learn about Kingston.

[234] The court must weigh the relocation to Kingston against the advantages of them remaining in Chalk River. Ideally, the children would benefit from continuing to spend equal time with both parents as they have enjoyed for approximately 2 years. They are strongly bonded to both parents and benefit from spending as much time as they can with both parents. Unfortunately, the distance between Chalk River and Kingston (almost 4 hours) will not permit an equal parenting schedule.

[235] For the above reasons, the court declines to authorize the mother to relocate with the children to Kingston and in summary:

• The children are flourishing in their current environment.
• The children have been in Chalk River almost all of their lives and are well settled in their school, neighbourhood and community.
• The father is able to provide the care and guidance and has proven able to meet the children’s needs; medically, regarding M.W.’s stomach needs (the mother participated in the medical appointments); academically, with M.W.’s reading issues; stimulating them, spending time doing homework and learning new things; socially arranging playdates and sleepovers; providing a sense of community participating in community events, extracurricular activities, swimming and baseball.
• The children are young but L.W. who is 10 years old, and very bright, has views and preferences that should be given some weight. He has been consistent that he likes where he is living and is hesitant about moving to Kingston where he does not have friends. M.W. is 8 and her wishes are given less weight although she too has some hesitancy about moving to Kingston. Clearly she misses her mother and would like to spend more time with her.
• Ms. Ethier indicates that the mother may be posted again in 3 or so years as that is part and parcel of military life, and she is unsure where that could be – it could be in Kingston or elsewhere. This means another possible disruption for the children if they moved to Kingston now.
• The parents have been cooperating on the parenting schedule and although the children would remain in Chalk River, the parenting plan can be structured to ensure that the mother has the maximum contact with the children that is in the children’s best interests.
• The father’s plan for the children will allow them to continue to flourish in their current environment. This is in their best interests.
• The court is satisfied that once a court ordered schedule is in place the parties will be less likely to have conflict or try to jockey for more time.
• A move to Kingston would significantly reduce the time the children spend with their father as they are school-age children and a shared parenting arrangement is not possible if they live in two cities 4 hours away by vehicle.
• The father is retired and his work schedule is flexible allowing him to be available for the children before and after school, in the evenings and in the event that they need to be picked up at school or need to attend medical/dental appointments. This is not a strong factor as the mother was capable to caring for the children when she was in Chalk River and working full time.

What should be the parenting schedule for the parents?

[236] The parties have agreed that the new exchange place shall be in the city of Almonte, Ontario.

[237] They have largely agreed on the parenting schedule but there are some areas of dispute.

[238] In considering the parenting schedule I have considered the factors set out in the CLRA more fully discussed above.

[239] The mother shall have reasonable and generous parenting time, including, at a minimum the following:

• Every second weekend from Friday at 5:00 p.m. until Sunday at 5:00 p.m.
• If the Friday immediately before the mother’s weekend is a school P.A. day, then her parenting time will begin on Thursday at 5:00 p.m. This is consistent with the father’s position set out in his evidence at trial.
• If the Monday immediately following the mother’s weekend is a day off school, then the mother’s weekend will be extended until 5:00 p.m. on Monday.

[240] The remainder of the parenting time below replaces the regular schedule and there will be no make-up time for any lost parenting time as a result of the holiday schedule:

• For Christmas school break, it shall be divided as follows: in odd-numbered years, the mother shall have parenting time from 5:00 p.m. on the last day of school classes and end 10 days later at 5:00 p.m. For even numbered years, the schedule will be that the father will have the children for the first half of the school break and the mother will have the children the second half of the school break. The court wishes to ensure that each parent has Christmas day on alternate years and that the mother on alternate years has a little more time with the children. This is in the children’s best interests as the holiday time is the only opportunity for the mother to spend extended time with the children.
• For school March break, the mother will have the children for the weekdays of March break along with her normal mother’s weekend. This will allow the father to enjoy his regular weekend access before or just after the children spend the extended time with their mother.
• For Easter, in even numbered years, the mother shall have parenting time from 5:00 p.m. on Thursday immediately prior to the Easter weekend until 5:00 p.m. on Monday of the Easter weekend and in odd numbered years, the father will have the children for the Easter weekend.
• For Thanksgiving, in odd numbered years the mother shall have Thanksgiving weekend from 5:00 p.m. on the last day of school immediately before the Thanksgiving weekend until 5:00 p.m. on the Monday of the Thanksgiving weekend. In even numbered years, the father will have the children on Thanksgiving weekend.
• For Halloween, in odd-numbered years, the mother shall have the option to have the children for Halloween from 5:00 p.m. to 9:00 p.m. on October 31. In even numbered years, the father will have the children for Halloween.
• For the school summer holiday break, by May 1 of each odd numbered year, the mother will inform the father in writing of her preferred 5 weeks of parenting (out of the 9 summer holiday weeks). The father will have the remaining 4 weeks. In odd numbered years prior to May 1, the father will inform the mother in writing which 5 weeks of summer holidays he will have for his parenting time. The mother will have the remaining 4 weeks.

[241] The children shall have reasonable unfettered video call time and phone calls with the mother as they wish. In addition, for every period of time that the mother is not with the children, she can request an additional 3 video calls which will be scheduled by the father within 24 hours of the request.

Other matters

[242] In the event that the mother does not move to Kingston, then the parents will have a shared parenting plan on a week about schedule.

[243] In the event that the mother moves to Kingston but returns to the Chalk River area in the next three years then there will be a review of the parenting schedule.

Vaccination for Covid-19

[244] The other main issue that has arisen is that the parties could not agree on whether the children should be vaccinated. This was not raised in the pleadings or during the numerous conferences.

[245] Little evidence was led with respect to any medical expertise or other health evidence for the court to determine whether this is in the children’s best interests. It was not fully explored other than the mother did not believe in it until a vaccine for children was developed and the children’s doctor was prepared to administer it. The father is concerned for his elderly parents being exposed to his unvaccinated children.

[246] On the record before it, the court will not determine this issue.

[247] In the unlikely event of a disagreement, then given my decision below not to allow the relocation, the father will make the final decision. However, when it is a medical decision, the parties will be obliged to obtain a second medical opinion if they cannot agree. The parties are encouraged to follow medical advice on medical issues regarding the children especially as it relates to immunizations and vaccines.

Child Support

[248] Commencing July 1, 2023, the mother will pay the father $1,298 per month as child support based on her 2022 income.

[249] All non-taxable benefits that the father receives through Veterans Affairs Canada will be grossed up and included in his income for the purposes of child support.

[250] All special and extra-ordinary expenses shall be shared between the parties proportionate to their respective income. The mother’s annual income is $85,995.00 and the father’s annual income is $120,763.00. On this basis, the mother will pay 41.6% of all special and extra-ordinary expenses and the father will pay 58.4% of those expenses.

[251] The written consent of the other parent shall be required prior to requesting the sharing of the special and extra-ordinary expenses. Such consent shall not be unreasonably withheld.

[252] Prior to July 1st of each year the parties will exchange all information contained in s. 21 of the Child Support Guidelines, O.Reg. 391/97. Table support shall be adjusted based on this income information as of July 1st of each year.

Costs

[253] The court encourages the parties to resolve the issue of costs. In considering costs, the parties should not only consider the success of the father but also other considerations set out in rule 24 of Family Law Rules, O.Reg. 114/99, including unreasonable behavior.

[254] If the parties cannot resolve the issue of costs, the father shall provide his two-page costs submission along with any offers to settle and bill of costs by July 28, 2023. The mother will provide her two-page costs submission along with any offers to settle and bill of costs by August 11, 2023. The OCL may file their two-page costs submissions by August 21, 2023. The father will have a right to file a one-page reply by August 28, 2023.

Justice A. Doyle

Date: July 5, 2023

COURT FILE NO.: FC-21-160

DATE: 2023/07/05

ONTARIO

SUPERIOR COURT OF JUSTICE

RE: Douglas Tabbert, Applicant

AND

Robin Walker, Respondent

BEFORE: Justice A. Doyle

COUNSEL: Peter M. Sammon, Counsel for the Applicant

Peter Hearty, Counsel for the Respondent

Lori Gutoskie, Counsel for the Office of the Children’s Lawyer

TRIAL DECISION

Justice A. Doyle

Released: July 5, 2023