Court File and Parties

COURT FILE NO.: FC-16-2017-1 DATE: 2023/06/23 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Kathleen Thora Cornelisse, Applicant AND Shawn Thomas Cornelisse, Respondent

BEFORE: Justice Engelking

COUNSEL: Adrienne Curren and Beverley Johnston, co-counsel for the Applicant Respondent, Self-Represented

HEARD: June 6 and 7, 2023

Reasons for Decision

1In June of 2021, Ms. Cornelisse, brought Motion to Change the Final Orders of Justice Sheard dated September 22, 2017, Justice MacLeod dated November 2, 2018, and Justice Phillips dated January 25, 2019. Mr. Cornelisse has responded to that motion. She is requesting an order permitting her to relocate the children of the marriage, I.C. and O.C., from Ontario to Hohenfels, Germany.

2On March 24, 2023, the matter was before Justice Audet and she made the following order:

Following lengthy discussions with the parties, I make the following order:

1- There shall be a focussed hearing on the sole issue of the mother’s request to relocate to Germany with the children for a period of three years (or for the duration of the mother’s new partner’s posting there).

2- The focussed hearing shall be scheduled for one full day on May 25, May 26 or during the first week of June (to be scheduled via Trial coordination).

3- The father and his partner are permitted to participate in this focussed hearing virtually. The mother and her counsel are free to appear in person or virtually. They shall confirm their preferred way of appearance in their confirmation form so that the Court is made aware of the choice.

4- The focused hearing will be proceeding based on affidavit evidence (in chief), with a right to cross-examine viva voce. The mother’s evidence will be limited to her own affidavit as well as one from her new partner, and the father’s evidence will be limited to his own affidavit as well as one from his new partner.

5- The affidavits shall be served and filed in accordance with the following timeline:

a. The mother by 4 p.m., on April 14;

b. The father by 4 p.m., on April 28;

c. Any reply affidavit from the mother herself, if necessary, shall be served and filed by May 5;

d. Factums are required from both parties, and shall be served and filed by May 19.

6- On consent of both parties, but subject to any objections that the Family and Children’s Services of Frontenac, Lennox and Addington might raise (who has not been served with any motion to disclose), it shall release to both parties as soon as possible and no later than May 5, 2023, all records it has in its possession in relation to the mother, the children and her new partner.

7- On consent of the parties, they will retain the services of a professional (lawyer or clinician) to complete a Voice of the Child’s Report for the children. Counsel for the mother will reach out to various potential professionals (copying the father), and based on availability the father will decide wich one he wishes to retain. The costs related to the VoC shall be shared equally by the parties.

8- The Voice of the Child’s Report may be filed with the Court at any time before the focussed hearing.

9- Relevant excerpts of child protection records, duly vetted to remove inadmissible hearsay evidence, can be filed by either party at any time before the focussed hearing as business records attached to a very brief affidavit from one of the parent [sic] (or both if they wish to file different excerpts from those records).

10- The balance of the issues in dispute between the parties can proceed to another SC to be scheduled before myself once a decision has been made by the motion’s judge, or after an agreement has been reached by the parties.

11- I will make myself available to the parties for any procedural issues that may arise in relation to their preparation for this focused hearing, including on an urgent basis (but on notice to the other party). The parties’ request for a brief appearance shall be sent to the Trial Coordinator.

3The focussed hearing was scheduled by the parties for June 6, 2023. However, on that date an issue with respect to the admissibility of four audio recordings was raised, and the hearing took place over two days, June 6 and June 7, 2023.

4Ms. Cornelisse relied on the following materials:

a. Her own affidavit sworn on April 14, 2023;

b. An affidavit of her partner, Lance Leonard, sworn on April 14, 2023;

c. Her affidavit in reply sworn on May 5, 2023; and,

d. Her affidavit sworn on June 1, 2023, attaching records of Family and Children’s Services of Frontenac, Lennox and Addington.

5Mr. Cornelisse relied on the following materials:

a. His own affidavit sworn on April 28, 2023;

b. An affidavit of his partner, Trina Earle, sworn on April 28, 2023; and,

c. His affidavit sworn on May 30, 2023, attaching records of Family and Children’s Services of Frontenac, Lennox and Addington.

6An affidavit of Ms. Victoria Hasbani, sworn on May 15, 2023, attaching a Voice of the Child Report was also filed with the court.

7As indicated, Mr. Cornelisse also sought to rely on four audio recordings of conversations he had with the parties’ eldest child, I.C. Those recordings were:

• 1 of 4: an audio recording entitled: “Re: [I.] being hit” – 10:05 minutes;
• 2 of 4: an audio entitled “[I] - Lance redacted” – 11:03 minutes;
• 3 of 4: an audio entitled “Not allowed to talk on Roblox” – 26:52 minutes;
• 4 of 4: an audio recording of I.C. on Trina’s birthday – 26:34 minutes.

8For oral reasons given on the afternoon of June 6, 2023, I declined to admit the recordings.

Background Facts

9The parties began to cohabit in 2004 and were married on August 11, 2007.

10In September of 2008, Mr. Cornelisse went to Regina, Saskatchewan for police training and Ms. Cornelisse moved to Ottawa to work and live with her parents.

11In 2009, Mr. Cornelisse was posted to Nova Scotia, and in 2013 the parties moved from Cape Breton to Coldbrook, N.S. Two children were born of the marriage, I.C., born in September 2010 and O.C., born in September 2012.

12During the marriage, Ms. Cornelisse was the primary caregiver to the children as a stay-at-home mother, and Mr. Cornelisse worked a combination of 8 or 12-hour day and night shifts.

13The parties separated on December 16, 2015, when I.C. was five and O.C. was three. Ms. Cornelisse moved back to Ottawa with the children, and once again lived in the home of her parents until she was later able to secure her own home. Mr, Cornelisse remained in the matrimonial home in Coldbrook, N. S.

14Ms. Cornelisse brought an application in June of 2016, which application was resolved by a series of consent final orders as follows:

• Final Order of Justice Sheard dated September 22, 2017;
• Final Order of Justice MacLeod dated November 2, 2018; and,
• Final Order of Justice Phillips dated January 25, 2019

15Paragraph 1 of Justice Sheard’s order of September 22, 2017, provided for the children to live primarily with Ms. Cornelisse. Mr. Cornelisse was granted parenting time with the children every second year for Easter and Thanksgiving, three consecutive weeks in the summer, a weekend every second year to celebrate the children’s birthdays, and long weekends and Father’s Day as requested. He was also granted the ability to remove the children from school on three additional days during the academic year to have parenting time with them.

16Paragraph 1 of Justice MacLeod’s order of November 2, 2018, expanded Mr. Cornelisse’s parenting time to include every March Break and the children’s Christmas break from school every second year.

17Justice Phillips’ order of January 25, 2019, included some provisions about Mr. Cornelisse’s communication with the children, specifically that he would be entitled to Facetime with them no less than three times per week.

18Ms. Cornelisse and the children lived with her parents in Ottawa from December of 2015 to March of 2018, at which time they moved into a home in Kanata purchased by Ms. Cornelisse.

19In May of 2019, Ms. Cornelisse met her current husband, Lance Leonard. Mr. Leonard is a Lieutenant Colonel in the United States military who was stationed in Kingston, Ontario. Mr. Leonard and Ms. Cornelisse became engaged in September of 2020. To start out the new school year in Kingston, Ms. Cornelisse and the children moved to Kingston at the end of August of 2020. They took up residence with Mr. Leonard and his daughter, K. The children began attending Our Lady of Lourdes Catholic School.

20Mr. Cornelisse has also re-partnered and has resided with Trina Earle, to whom he is currently engaged, since 2016. Ms. Earle’s daughter, A. also lives with them half time as she is subject to a shared parenting arrangement with her father.

21Ms. Cornelisse and Mr. Leonard married in April of 2021. Mr. Leonard, who is subject to being posted every three to four years, has extended his posting in Kingston as long as possible. In her Motion to Change originally filed in June of 2021, Ms. Cornelisse requested an order permitting her to move outside of Canada with the children, although she did not at the time know where Mr. Leonard would be posted. In November of 2022, Mr. Leonard was made aware of his posting to Hohenfels, Germany. On November 23, 2022, Ms. Cornelisse served Mr. Cornelisse with her Notice of Relocation pursuant to the Divorce Act, R.S.C. 1985, c.3 (2nd Supp).

22On December 22, 2022, Mr. Cornelisse served Ms. Cornelisse with his Notice of Objection of Relocation.

23Since separation, I.C. and O.C. have seen Mr. Cornelisse four to five weeks per year. He has only ever exercised his parenting with the girls on March Break, in the summer and at Christmas on alternating years. Mr. Cornelisse has never exercised parenting time on alternating Easter or Thanksgiving weekends, on the girls’ birthdays or long weekends, nor has he ever opted to remove them from school for three additional days per year to spend time with them, notwithstanding that the order of Justice Sheard permits same.

Positions of the Parties

Ms. Cornelisse

24Ms. Cornelisse’s proposal for Mr. Cornelisse’s parenting time from Germany is that it will remain the same as he has exercised for the past seven and a half years – the week of March Break every year, three weeks in the summer, and the whole of the children’s holidays from school every second Christmas. Ms. Cornelisse also proposes that she will pay for the flights of the children to travel to Canada for Mr. Cornelisse’s parenting time.

25Ms. Cornelisse anticipates that the children will have the opportunity to visit with their paternal relatives during their summer vacations with their father. Ms. Cornelisse’s evidence is that when she and Mr. Cornelisse were married, the pattern was that the girls only spoke to their paternal grandfather and his spouse, Tom and Dency Cornelisse, on special occasions and saw them approximately one time per year.

26The exchange of the children has always been in Ottawa and continued to be so even after Ms. Cornelisse and the children moved to Kingston. Ms. Cornelisse proposes that it continue to be in Ottawa, Given the ages of the children, and O.C. being anxious to travel without her, Ms. Cornelisse’s proposal is that she would travel with the children to Ottawa, stay with her mother and visit with her sisters and their families while the children are with Mr. Cornelisse. Ms. Cornelisse would then fly back to Germany with the children. In this way, the children would also have the opportunity to see their maternal relatives while in Canada.

27Ms. Cornelisse indicates that the children are able and do communicate with Mr. Cornelisse by FaceTime, email or chat applications. She submits that they can continue to do so from Germany, though she recognizes that some accommodation will need to be made for the five-hour time difference between Germany and Nova Scotia. Ms. Cornelisse does not anticipate that the children would have any less contact with Mr. Cornelisse than they currently experience. They can continue to FaceTime or talk on the phone at convenient times, and text or email anytime.

Mr. Cornelisse

28Mr. Cornelisse opposes the request of Ms. Cornelisse to relocate the children to Germany. Although he acknowledges that she is proposing that he have the same parenting time on a go forward basis as he has exercised in the past, Mr. Cornelisse is of the view that it will not, in fact, be the same when one considers the travel time and the recovery from travel time due to the time difference between the two countries. He fears that the children will be affected by jet lag from travel such that the time that they spend with him will be qualitatively affected.

29Mr. Cornelisse additionally submits that his FaceTime or telephone contact with the children will be negatively affected by the time difference, and that despite Ms. Cornelisse’s assumptions, he will not be available during his working hours to take calls from the children. Indeed, a major underpinning to Mr. Cornelisse’s objection overall is his perspective that his communication with the girls is, or has been, consistently inferred with by Ms. Cornelisse. It is his view that the children should be able to contact him at any reasonable time by any means. He submits that Ms. Cornelisse’s control over the children’s electronics is intended to disrupt their ability to communicate with him, and it is his position that relocating the children to Germany will only make the situation worse.

30Although contact with the children’s paternal family should rightly be his responsibility, Mr. Cornelisse also submits that relocating the children to Germany will disrupt the relationships they have with his father and his spouse, as well as his siblings, nieces and nephews. It has, in fact, been Ms. Cornelisse who has supported these relationships for the children post-separation.

31Finally, Mr. Cornelisse opposes the proposed relocation of the children because it is his position that they, and in particular I.C., do not want to go. Mr. Cornelisse queries whether the children will be “safe”, both because of the situation in Europe and because of a recent incident involving Mr. Leonard and I.C.

32Mr. Cornelisse also objects to Ms. Cornelisse’s proposal that the exchange location remain in Ottawa if the children are permitted to move. This makes little sense to him when their ultimate destination is Nova Scotia. In his view, it needlessly adds a travel requirement for him and additional travel for the girls.

Voice of the Child Report

33Pursuant to Justice Audet’s endorsement of March 24, 2023, Victoria Hasbani completed a Voice of the Child Report dated May 15, 2023. Ms. Hasbani spoke with both parents by telephone and met privately with I.C. and O.C. at her office on April 17 and May 3, 2023. She also reviewed an email to Ms. Cornelisse from the Family and Children’s Services of Frontenac, Lennox and Addington Child Protection Worker (“FCSFLA”), Verbena Rama dated April 17, 2023, and the FCSFLA closing letter dated April 25, 2023.

34Ms. Hasbani’s information regarding the issue of relocation as it pertains to O.C. is found on pages 5 and 6 of her report, which I reproduce in its entirety:

[O.C.] explained that she was made aware of the plans to move when they sat together as a family and rated a list of places they may wish to live. They all worked on the top choices together. [O.C.]'s preference was to move to Kentucky to be close to the country music stars in Nashville. She said that Germany "seemed like the second best place". She felt "very excited about this". She looked forward to seeing the houses as they look "cool", starting at a new school and participating in the activities to help her get used to Germany. She was looking forward to this "new adventure".

We discussed some of her concerns about relocation. [O.C.] explained that she was sad that she would see her extended family as frequently. She did not worry however, about missing time with her father as she didn't think there would be any changes. She said there was a 5 hour time difference between Germany and Nova Scotia, which would still allow them to speak together. Furthermore, she would continue to see her father during the holidays as she already did.

[O.C.] felt sad that she would be leaving her friends in Kingston but she had gone through this before when she moved from Ottawa. She said that she knew that she "will make new friends and I'll stay in contact. I have a friend in Ottawa I still see. I know I will stay in touch".

[O.C.] felt that each of her parents would support her decision to relocate. If she chose to move to Nova Scotia, her mother "probably would let her but we'd have to have a conversation". While her father does not really want them to move to Germany, she felt he would probably allow it. She said that her father "tells me the bad things, but not good things" about moving to Germany. He has told her that she "probably won't be able to see him as much". She tried to explain to him that she would, but he disagreed.

[O.C.] explained that approximately 2 years ago, they thought they would be moving to the United States. She shared that her father spoke to her about moving instead to Nova Scotia. She said that everyone (Trina, Lexi and her father), kept saying that she should not go as the United States was not safe. She recalled that "he bribed me a little a bit". He had told her that she could have anything she wanted and she "fell for it". She called her mother and told her she wanted to move to Nova Scotia. Once [O.C.] got back to her mother, "I realized I didn't want to go [to Nova Scotia]. I could not live without my mom. She makes everything better". [O.C.] does not wish to live apart from her mother now.

[O.C.] was aware that her sister wanted to move to Nova Scotia with their father. She said this "makes me really sad because I can't live without her". At this point, [O.C.] became quite quiet and teary-eyed. She had not really spoken to her sister about this, nor knew her reasons, but said "I just don't want her to move". She said that she planned to FaceTime her sister every day to keep in touch.

[O.C.] was 100% sure of her decision to move to Germany. Her main worries were around meeting new friends (about 10%) and keeping in touch (1%) with family and friends.

35Ms. Hasbani’s information regarding the issue of relocation as it pertains to I.C. is found on pages 8 to 10 of her report, which I also reproduce in its entirety:

[I.C.] explained that relocation was introduced when the family sat together and chose their top options. She remembered that shewasinitially fine with Germany but then shestarted to explore the area. [I.C.] explained that shedecided on her own to write an essay about Germany, "because I was bored out of my mind". She found out that Germany was close to Ukraine or Russia, so she got worried. Her mother and Lance explained that they would evacuate if there was danger. Through her essay, she also learned about "a weird food museum and sausages".

In discussion with her mother and Lance, she learned of a "buddy program" when they relocate as well as other programs, activities and hang out space for children. While she believed these were the positive points, she said "I don't care, I don't care about anything [about Germany]" as she did not wish to move there.

[I.C.] explained that she wants to move to Nova Scotia and live with her father. She said, "I prefer to live with my dad" and it is "just that I feel more comfortable with my dad" and more "relaxed with my dad". She recalled that she did not always feel this way as "I didn't get along with him 100 percent... I get along with him better, I feel more comfortable and safer and more calmer". She felt the change was partly because she wouldn't talk to him on the phone before, "it is much better now,just as I got older". [I.C.] did not feel this had anything to do with the altercation between she and Lance. She re-iterated; "I feel it would be easier with my dad, I like being with him a lot more". Her father has told her that it is up to her and not to "worry about what others feel, worry about you".

[I.C.] was aware that her mother probably still wished her to move to Germany. She felt that her mother "would definitely miss me". [I.C.] knew that she herself would adapt to the change, and eventually her mother would too.

[I.C.] explained that relocating to Nova Scotia or Germany would be difficult either way, especially because she did not like change and having to start over. She described herself challenge for her is "social anxiety" and problems making new friends. Because she already knew Nova Scotia, and already had a friend "Lilly", it would be easier for her to adapt. She noted that she had never been to Germany, did not know what it looked like, nor where she would be living, nor knew anything about the school. She thought it may have been helpful had she visited Germany.

[I.C.] described some positives in moving to either location. For Germany, they were listed as being a new environment and being close to her sister. The positives in moving to Nova Scotia included being in a familiar environment and already having a friend there. She also said that she trusted her father. She explained that she has difficulty trusting people which stemmed from her experience of being bullied in school. She was of the opinion that the best decision for her was to live with her father.

[I.C.]'s worries in moving to Nova Scotia or Germany included having to make new friends, the distance from her family and being in a new place. [I.C.] expressed the hardest part is "definitely being away from her sister". When asked if she was willing to live apart from her, [I.C.] said "I know I would see her again in the summer"; the same times she saw her father. This allowed her to feel more comfortable with her decision.

[I.C.] was 99% sure of her wish to move to Nova Scotia. The 7% doubt is being far from her sister.

36In her summary at the end of her report, Ms. Hasbani describes O.C. as having presented as “clear and consistent throughout both interviews. She was flexible and critical in her thinking.” She also indicated that it was her belief that “[O.C.]’s views and preferences are independent and strong.”

37Ms. Hasbani described I.C. as presenting as “clear and consistent throughout both interviews.” However, she went on to state that I.C. was “somewhat rigid in her thinking but also able to identify some costs and benefits to relocate to either place.” She did not include a statement as to whether it was her belief that I.C.’s views and preferences were independent and strong.

Analysis

38Section 16.93(2) of the Divorce Act provides:

If the parties to the proceeding substantially comply with an order, arbitral award, or agreement that provides that a child of the marriage spends the vast majority of their time in the care of the party who intends to relocate the child, the party opposing the relocation has the burden of proving that the relocation would not be in the best interests of the child.

39Thus, the burden of demonstrating that the relocation of I.C. and O.C. to Germany would not be in their best interests rests with Mr. Cornelisse. As indicated above, he relies on essentially four arguments:

(1) He would not qualitatively have the same amount of time with the girls as he currently has, and he would not readily have the potential to have more time with girls if they live in Germany;

(2) His communication with the girls would be lessened by a move to Germany;

(3) The girls time and/or relationship with their paternal relatives would be negatively impacted by a move to Germany; and,

(4) I.C. does not want to move to Germany, and she may not feel safe in the home of Ms. Cornelisse and/or in Europe.

40I do not accept the first argument of Mr. Cornelisse. First, Ms. Cornelisse is proposing that he continue to have exactly the same parenting time with the girls that he has always had, or that he has always exercised. The time difference between Germany and Ottawa (where she proposes the exchange to continue to be) is six hours. While it is true that the children may feel the effects of the change, they may not, or they may for only the first day or two. The impact of travel or the time change are not such that they would affect the entirety of Mr. Cornelisse’s time with the girls, or even a significant portion of it. The parenting time that Mr. Cornelisse exercises has historically entailed travel, albeit not a time change. The periods of time, moreover, for which he exercises it are extended, with the shortest being the week of March Break. Justice MacLeod’s Final Order of November 2, 2018, provides that he is to have the children on alternating Christmases “from the day after school ends for the Christmas break after 11:00 a.m. to the Saturday before school starts prior to 3:00p.m.”, which would typically be a period of nearly two full weeks. He has also historically had three full consecutive weeks in the summer. Visits of these lengths would not, in my view, be unduly hampered by travel and/or jet lag. Additionally, there may be other remedies available, such as Ms. Cornelisse using the three days available during an academic year as per paragraph 5 of Justice Sheard’s Final Order of September 22, 2017, for travel. Adding an additional week to Mr. Cornelisse’s summer parenting time with the children or changing the exchange location may also be remedies the parties might contemplate to compensate for any diminishment in the quality of their time with him because of travel/jet lag.

41Second, with respect to Mr. Cornelisse’s argument that a move to Germany removes his option to exercise alternating Easter or Thanksgiving weekends, or a birthday or long weekend with the girls, this would be much stronger and have more weight if he had, in fact, ever done so. After seven and a half years, this argument of Mr. Cornelisse becomes nothing more than theoretical. Mr. Cornelisse submitted that he has never exercised additional parenting time with the children for financial reasons, though he provided no evidence in support of this submission in his materials. The fact remains that notwithstanding that Mr. Cornelisse could have spent much more time with I.C. and O.C. pursuant to the Final Order of Justice Sheard, for whatever reason, he has never done so. He cannot, in my view, rely upon the possibility of now or in future doing so as a reason to preclude the move.

42With respect to Mr. Cornelisse’s second argument, that his communication with the girls will be hampered by a move to Germany, I find that too is weak. Mr. Cornelisse has very open communication with I.C. and O.C. He currently connects with them by FaceTime, telephone calls, text messages, emails and chat apps. He submits that his communication with the girls is interfered in by Ms. Cornelisse in that she controls the children’s electronics and their access to their cell phone. Ms. Cornelisse does not dispute that she “puts the phone away”, usually after 8:00 p.m. or that she controls I.C.’s time on social media. In fact, she states that she does so in furtherance of the recommendations of I.C.’s counsellor. It is clear from the materials that there exists a bit of a power struggle between I.C. and Ms. Cornelisse over her use of electronics/time on social media. I.C. is 12 and clearly resents Ms Cornelisse’s level of parental oversight in these matters. Mr. Cornelisse appears to support I.C. in this power struggle as opposed to support Ms. Cornelisse in setting boundaries with her. Mr. Cornelisse, moreover, takes the view that all of Ms. Cornelisse’s efforts at monitoring I.C.’s use of her cell phone, Ipad, and chat applications are directed at limiting her contact with him. Ironically, he does so while communicating with I.C., something he appears to do very freely, albeit not as freely as he would like. Indeed, I.C. reported to Ms. Hasbani that she speaks to her father “a few times per week up to every day” (page 8 of the Hasbani report). Certainly, Mr. Cornelisse’s contact with the girls far exceeds that contemplated in the Final Order of Justice Phillips of January 25, 2019. I see no reason that an accommodation that permits Mr. Cornelisse to have at least his three court order FaceTime communications, and more, cannot be found, notwithstanding there being a time difference between Nova Scotia and Germany.

43With respect to his third argument, while Mr. Cornelisse submits that the children’s relationships with their paternal family members would be impacted by a move by them to Germany, he has presented no evidence as to how they would be impacted. Indeed, in his affidavit sworn on April 28, 2023, Mr. Cornelisse makes only a broad statement at paragraph 53 to this effect. He does not provide any evidence about whom the children currently see, how frequently they see them or where they see them. In fact, Mr. Cornelisse seems to state that they do not see their paternal grandmother, Lori Cornelisse, at all, even though she also resides in Kingston. Mr. Cornelisse blames Ms. Cornelisse for this situation, without providing any specifics, and abdicates any responsibility he may have for ensuring that his children have a relationship with his mother. In her affidavit sworn on April 14, 2023, on the other hand, Ms. Cornelisse states at paragraph 40 that the girls will still visit their paternal grandfather and his wife, as well as Mr. Cornelisse’s siblings and their cousins during their summer vacations. She will also continue to ensure that the girls FaceTime their grandfather on special occasions and share pictures with him, as she has always done. In other words, little will change for I.C. and O.C. in this regard. Based on her past assumption of this responsibility, and no evidence to the contrary from Mr. Cornelisse, I have little reason to doubt that Ms. Cornelisse will not do what she says she will do.

44Most significantly, Mr. Cornelisse relies on I.C.’s stated views and preferences, and his fear for her safety as reasons to support that a move to Germany is not in the children’s best interests. I will first dispose with the argument that the children should not move to a NATO member state’s base in Germany as it is unsafe due to the Special Military Operation of Russia in Ukraine. Mr. Cornelisse has attempted to rely on certain internet posts and/or security type briefings in support of this argument, as if the court should be expected to take judicial notice of the situation and conclude that it is dangerous to move to Germany. While the situation in Eastern Ukraine (or perhaps all of Ukraine) may indeed be dangerous, I cannot assume, let alone conclude, that a move to anywhere in Europe, on or off a military base, is equally so. I concur with counsel for Ms. Cornelisse when she submits that it is highly unlikely that the United States Military would be promoting a family move, if such a move would place family members at risk. This is not a reason to deny the move.

45The second reason that Mr. Cornelisse submits that I.C. may be or feel unsafe is due to an incident which occurred in February of this year when Mr. Leonard physically disciplined I.C. by hitting the side of her bottom with the back of his hand after she had kicked him. I.C. reported this incident to Mr. Cornelisse, who then reported it to Ms. Cornelisse in I.C.’s presence. The matter was also reported by Mr. Cornelisse to the Children and Family Services of Frontenac, Lennox and Addington, which conducted an investigation. As indicated in the reporting letter of Child Protection Worker, Verbena Ramah, dated April 25, 2023, FCSFLA’s conclusion was:

We have verified that Mr. Leonard spanked [I.C.] on the bum with open hand in response to her kicking him hard. No excessive force reported. This falls below our intervention line. I would recommend that Mr. Leonard not use physical discipline with the girls and seek to use positive parenting strategies when parenting the children.

46Mr. Cornelisse characterizes this incident as abuse and insists that I.C. feels unsafe in the presence of Mr. Leonard. Mr. Leonard recognizes that he ought not to have hit I.C. but feels that the incident has been blown out of proportion by Mr. Cornelisse. Ms. Cornelisse indicates that during the FCSFLA investigation, she and Mr. Leonard agreed that he would not be in a caregiving role alone with I.C., but that she has been cared for and/or engaged with Mr. Leonard as usual since FCSFLA’s file was closed and there have been no further issues. Both Ms. Cornelisse and Mr. Leonard have committed to no future use of physical discipline.

47In speaking with Ms. Hasbani, I.C. reported the following in relation to Mr. Leonard:

[I.C.] discussed her relationship with Lance in that they used to get along, but haven’t “since the incident”. Now, she said, “I’m not that comfortable with Lance, we won’t do hugs, we won’t be alone”, She recalled it was easier living together before. She remembered that they had a “pretty good relationship’ and she felt comfortable with Lance. The “incident” was “very surprising”. She said after, that “they talked to me about it, but I zoned out because I didn’t care at that point”. She added that “normally I will give people a second chance, [but] not always. I don’t feel like it [with Lance]”.

48Again, as with the issue of Ms. Cornelisse’s control of I.C.’s use of electronics, Mr. Cornelisse appears to buy into I.C.’s perspective, perhaps to be supportive, but with the consequent effect of (constantly) reinforcing her feeling of being “unsafe”. Ironically, the reason that I.C. kicked Mr. Leonard in the first place is because he went into her room to get her off her electronics.

49Ms. Cornelisse’s perspective is that since she proposed the move to Germany, Mr. Cornelisse has been actively coaching I.C., putting her in the middle of their conflict and encouraging her to disobey her and Mr. Leonard and the boundaries they attempt to set. In their closing letter to Ms. Cornelisse, FCSFLA found that that there was a “verification of the risk that the child is likely to be emotionally harmed resulting from child’s exposure to ongoing post separation caregiver conflict”, and further that “[I.C.] is aware of the ongoing conflict regarding communication time and method as well as the pending move to Germany and that you and Mr. Cornelisse have been in conflict with each other.” This finding, particularly that I.C. is aware of the conflict regarding communication time and method, tends to support the proposition that Mr. Cornelisse is speaking to her about both.

50Section 16(2) of the Divorce Act provides that the primary consideration for the court when determining what is in a child’s best interests is the child’s “physical, emotional and psychological safety, security and well-being.” Section 16(3) sets out an inexhaustive list of best interests factors the court should consider when determining a child’s best interests, one of which, (e), is “the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained.” Other factors include (a) the child’s needs, including for stability, (b) the nature of the child’s relationship with each parent, sibling, grandparent and any other person of import to the child, (c) each parents’ willingness to support the child’s relationship with the other, (d) the child’s history of care, (f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, (g) plans for the child’s care, (h) the parents’ abilities to care for and meet the needs of the child, (i) the ability and willingness of each parent to communicate with the other, and (j) the impact of any family violence on the child.

51Section 16.92 (1) of the Divorce Act sets out factors to be considered, in addition to those is Section 16, when deciding whether a relocation of a child shall be authorized. These include (a) the reasons for the relocation, (b) the impact of the relocation on the child, (c) the amount of parenting time spent with the child, (d) compliance with notice provisions by the relocating parent, (e) the existence of an order as to where the child is to reside, and (f) reasonableness of the proposal by the parent who intends to relocate.

52Ms. Cornelisse has always been the children’s primary caregiver, and the children are doing well in her care. Their report cards reveal no issues at school, and both are well supported at school and at home. Ms. Cornelisse arranged for I.C. to immediately see a medical doctor after I.C. informed her after returning from Nova Scotia at Christmas about having suicidal thoughts (something about which Mr. Cornelisse did not inform her). Ms. Cornelisse also arranged for I.C. to see a counsellor, ensures I.C. attends, and follows the recommendations of her therapist, including those relating to restrictions on screen time and social media. Both parents have recognized an improvement in I.C.’s mental health since she started on medication for depression. Ms. Cornelisse has a proven record of being able to meet the needs of I.C. and O.C. She has also demonstrated that she is capable of ensuring the children are physically and psychologically safe, secure and well-cared for.

53Mr. Cornelisse is also capable of caring for the girls; he has certainly been so in the times that they have been in his care. He has, however, self-admittedly not been responsible for managing their day-to-day needs, helping with homework, taking them to doctor, therapist or dentist appointments, school or extra-curricular activities. Rather, it is Ms. Cornelisse who has been responsible for meeting all their needs, which she has demonstrated she is more than capable of doing.

54These parents both clearly deeply love and are devoted to their children. I.C. and O.C. have very good relationships with each of them. As indicated above, I.C. has of late been engaged in a power struggle with her mother over some of the boundaries which Ms. Cornelisse has set. This is not unusual for a child of her age or in this age of electronic devices and social media. While I appreciate that I.C.’s stated view and preference is to live in Nova Scotia with her father, some of her desire may relate to her unhappiness over some of the restrictions being enforced in Ms. Cornelisse’s home. She may not, in fact, appreciate that if she were to move to Nova Scotia, it would be incumbent upon her father and Ms. Earle to impose similar restrictions on her activities, especially if they are being recommended by her therapist.

55I.C. also has a close relationship with O.C., although one that is “off and on”, as she described to Ms. Hasbani (page 8 of the Hasbani report). As is indicated above, I.C. described to Ms. Hasbani that the hardest part [of moving to Nova Scotia] is “definitely being away from her sister”, though she expressed that she would be willing to live apart from O.C. (page 9 of the Hasbani report). O.C., on the other hand, expressed that the idea of her sister moving to Nova Scotia makes her “really sad because I can’t live without her” (page 6 of the Hasbani Report). Although I.C. expressed that seeing O.C. in the summer made her feel more comfortable with her decision, again, I am not convinced that I.C. appreciates the impact that would be felt by both her and O.C. if they were to no longer live together fulltime. I also have a concern as to just how independent I.C.’s views and preferences are. As I noted above, while Ms. Hasbani indicated that O.C.’s views and preferences were independent and strong, she made no such statement in relation to I.C.

56With respect to other family members, Ms. Cornelisse has a plan which would continue to ensure that important relationships for the children are maintained.

57As has already been stated, the children’s “history of care” has been with Ms. Cornelisse. She has attended to all their needs, originally as a stay-at-home parent during the marriage, on her own post-separation, and with Mr. Leonard for the past two and a half years. Notwithstanding some of Mr. Cornelisse’s impressions, she has, moreover, steadfastly supported the children’s relationship with him. Indeed, she has consented to far more court ordered parenting time than he has ever exercised. She has maintained relationships of the girls with paternal family members, and she has also facilitated more communication with Mr. Cornelisse than was contemplated in the final court orders.

58Mr. Cornelisse also expressed a concern with the children’s religious upbringing. Mr. Cornelisse is a member of the Catholic faith; Ms. Cornelisse is not. Pursuant to paragraph 2 of the Final Order of Justice Sheard dated September 22, 2017, the parties have “joint custody regarding the issues of education, and religious upbringing”. The parties agreed that the children would be raised in the Catholic faith and would attend Catholic School. Ms. Cornelisse has abided by this understanding. She enrolled the children in the Catholic school board in Ottawa after the parties separated in 2016 and did so again in Kingston after the family moved to join Mr. Leonard in 2020. She has also facilitated the children’s Catholic sacraments, though not to the liking of Mr. Cornelisse, timing-wise. I am unaware from the materials filed as to whether Mr. Cornelisse has attended church with the children in Nova Scotia during his parenting time with them. He did indicate at paragraph 58 of his affidavit that he “has supported the children’s religious upbringing and have incorporated daily prayer and faith based teachings”.

59Mr. Cornelisse’s concern is that the children will be attending school on the military base in Germany, and there is no Catholic school available. While this is a concern, Ms. Cornelisse has already contacted the Catholic Church in Hohenfels, Germany, and been added to their email distribution list, with links to activities that are available to the family and children. Again, given that Ms. Cornelisse has been responsible for the children’s Catholic upbringing to date, notwithstanding that she is not Catholic, I have no reason to doubt that she will not ensure that the children are involved in what is available in the Catholic community, either on or off the base, in Germany. Mr. Cornelisse may, of course, also continue to incorporate prayer and faith based teachings in his communications with the girls.

60Ms. Cornelise has presented an extremely thorough, well-researched and thought-out plan which attends to the children’s educational, medical, religious, and social needs. The reason for her location is because her husband, Mr. Leonard, is being posted to Hohenfels, Germany as a member of the United States military. He can no longer extend his stay in Kingston, Ontario, and he must be posted. Ms. Cornelise’s proposed plan provides for Mr. Cornelisse to continue to have the same amount of parenting time with the children as he has exercised since separation, at her entire expense. She is also prepared for him to have as much contact with the children from Germany as can feasibly be arranged. Her plan includes continued contact by email and text message, as well as at least one video or telephone call a day, so long as a mutually agreeable time can be arranged for same. I find her plan to be reasonable.

Conclusion

61As I have indicated, I.C.’s views and preferences is but one factor of the many the court must consider. On the totality of the evidence and taking into consideration all the factors contained in Sections 16(2) and 16.92(1) of the Divorce Act, I find that Mr. Cornelisse has not met his burden of proving that the relocation would not be in the best interests of the children. For the reasons outlined above, I grant the following order:

1. The Applicant shall be permitted to relocate to Germany with the children of the marriage, namely I.C., born September 12, 2010, and O.C., born September 11, 2012, as of August 5, 2023.
2. The Applicant shall pay for the flights between Germany and Ottawa for the Respondent’s parenting time during Summer, March Break and Christmas on alternating years.
3. The Respondent may have additional parenting time in Germany as agreed upon by the parties. Should he travel to Germany to see the children, the exchanges shall occur at the Munich Airport, in Munich, Germany or at the train station in Parsberg, Germany, at a time to be agreed upon by the parties.
4. On consent of the parties, the parties shall retain the services of Victoria Hasbani to communicate the court’s decision to the children by Ms. Hasbani, with the expense of same to be shared equally by the parties.

Costs

62Ms. Cornelisse is the successful party on this focused hearing; as such she may be entitled to an order for costs. If the parties are unable to reach an agreement about costs for the hearing by July 14, 2023, they may provide written submissions at 10-day intervals from that date of no more than three double-spaced, 12-point font pages, along with Bills of Costs and Offers to Settle, and I will make a decision.

The Honourable Justice Tracy Engelking