COURT FILE NO.: FS-21-79-0000 DATE: 2023 11 20

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Lisa Johanna Tass G. Pop-Lazic, for the Applicant Applicant

- and -

Andrew Carl Ronald Jackson S. Seaton, for the Respondent Respondent

HEARD October 6, 10-13 and 25, 2023

REASONS FOR JUDGMENT

C. Chang J.

[1] The applicant brings this application for an order pursuant to s. 16.91 of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) authorizing her proposed relocation with the children of the marriage from Oakville to Sarnia and, if her proposed relocation is authorized, an order varying the final order of Coats J. dated April 6, 2018 (the “Final Order”) respecting the parenting time schedule. She also seeks orders requiring the respondent to pay “retroactive” and ongoing child support, including s. 7 expenses, and requiring the respondent to obtain life insurance as security for his child support obligations.

[2] The respondent seeks an order “denying the Applicant’s motion to relocate” or, if the proposed relocation is authorized, an order varying the Final Order respecting parenting time. He also seeks orders, irrespective of whether the proposed relocation is authorized, varying the Final Order respecting, among other things, parenting time.

[3] The Final Order, made on consent and prior to the 2021 amendments to the Divorce Act, provides, among other things, that:

a. the applicant shall have sole custody of the children and their primary residence shall be that of the applicant;

b. the respondent shall have regular access as follows:

i. alternate weekends from 5:00 p.m. on Friday to 6:45 p.m. on Sunday, and

ii. every Wednesday from 4:15 p.m. to 6:45 p.m.;

c. the applicant shall consult with the respondent on all matters relating to the children’s health, medical treatments, education (including any proposed change of school) and religion; and

d. no extra-curricular activities are to be arranged for the children without the consent of both parties, which consent is not to be unreasonably withheld.

FACTS

[4] The facts relevant to the determination of this matter are, for the most part, undisputed and can be summarized as follows:

a. the parties were married on July 24, 2011 and separated on March 9, 2015;

b. there are two children of the marriage: T., who is currently eleven years-old, and R., who is currently ten years-old, both of whom have special needs:

i. T. has been diagnosed with, among other things, Autism Spectrum Disorder, Attention-Deficit/Hyperactivity Disorder and Chronic Vocal Tic Disorder, and

ii. R. has been diagnosed with Attention-Deficit/Hyperactivity Disorder;

c. the applicant took maternity leave following the births of T. and R., was their primary caregiver during that time and was primarily responsible for communicating with the children’s medical care providers during the marriage;

d. the respondent began to suffer from depression and anxiety in 2014, which caused him to often feel fatigued and interfered with his ability to parent T. and R.;

e. the respondent’s mental health did not stabilize until sometime in 2018 and he has managed his illness since;

f. T. and R. were thirty-eight months old and seventeen months old, respectively, when the parties separated and have resided primarily with the applicant since then, including in Oakville since 2018;

g. the respondent has a close and loving bond with both T. and R.;

h. the respondent has a child from a previous marriage, R.J., who is currently 28 years-old;

i. R.J. lived with the parties and the children at times during the marriage;

j. the respondent and R.J. have lived together for various periods of time in Brampton and Oakville since the parties separated and consistently in Oakville since October 2020;

k. the parties consented to the Final Order;

l. during the COVID-19 lockdown in 2020, the respondent missed overnight parenting time with the children and the parties have been unable to agree on a schedule to make up that missed parenting time;

m. at the time that the Final Order was made, the respondent was unemployed and reliant on Ontario Works payments and loans from family to cover his expenses;

n. the respondent maintained part-time and then full-time employment between May 2018 and March 2023;

o. since March 2023, the respondent has been unemployed and has been reliant on employment insurance payments and loans from family to cover his expenses;

p. the respondent is in arrears of child support in the amount of $4,701.11 as of September 29, 2023;

q. the applicant’s employment terms allow her to work remotely from anywhere that she has internet access;

r. the applicant decided to relocate with the children in April of 2021 and purchased 1097 Salisbury Street, Sarnia, Ontario (the “Sarnia House”) on April 24, 2021;

s. the applicant served the respondent with her notice of relocation dated April 20, 2021 and the respondent served the applicant with his notice of objection dated May 20, 2021;

t. the April 20, 2021 notice of relocation was the first time that the respondent became aware of the applicant’s intention to move with the children to Sarnia;

u. the applicant has taken T. and R. to the Sarnia House since she purchased it, including for extended periods during the summers of 2022 and 2023;

v. the distance between Oakville and Sarnia is approximately 250 kilometres;

w. the schools in Sarnia where the applicant intends to enrol T. and R. if the court authorizes her proposed relocation are part of the same school board, have comparable resources and have the same autism consultant as the Oakville schools where the children are currently enrolled and attend;

x. the Office of the Children’s Lawyer (the “OCL”) conducted a clinical investigation pursuant to s. 112 of the Courts of Justice Act, R.S.O. 1990, c. C.43 and provided a report to the court dated April 10, 2023 (the “OCL Report”); and

y. the applicant delivered a dispute to the OCL Report, to which the OCL provided a response.

[5] In the OCL Report, Tracy Majewski, the OCL clinician, reports that T. and R. “indicated that they love their home in Sarnia”, as well as the town itself, and have enjoyed their time there; however, they “are torn” about the proposed move, as neither wishes to lose parenting time with the respondent. It is very important to T. that the current parenting time schedule not change, whereas R. wants increased time with the respondent. Based on her involvement with this family, Ms. Majewski recommends against the proposed relocation to Sarnia.

[6] The parties tendered a joint book of documents (for some reason entitled “Joint Exhibit Book”) containing 1,403 pages, 76 tabs and more than 100 separate documents. At the outset of trial, counsel requested that the entire joint book of documents be marked as an exhibit, but the vast majority of its contents were not reviewed a single time during the entire trial. [1]

[7] During the trial, the court received evidence from the parties, R.J., Beverley Tass (the applicant’s mother), Susan Akerfeldt (a previous neighbour of the applicant), Carolyn Banka (the respondent’s sister) and Alina Inozemtseva (a previous co-worker of the respondent).

[8] Beverley Tass’s and Susan Akerfeldt’s evidence was proffered by way of their respective affidavits and cross-examination on those affidavits. In her affidavit, Mrs. Tass deposed to matters related to family history and two specific incidents involving her and the respondent after the parties’ separation. In her affidavit, Ms. Akerfeldt deposed to matters related to her previous experience as the applicant’s neighbour for four years and three specific incidents involving the parties.

[9] Carolyn Banka’s and Alina Inozemtseva’s evidence was proffered by way of their respective affidavits and cross-examination on those affidavits. In her affidavit, Ms. Banka deposed to matters related to family history and her interactions with the respondent and R.J. (including the various times that they lived with her and her family) after the parties’ separation. In her affidavit, Ms. Inozemtseva deposed to matters related to a specific incident involving a telephone discussion between the parties.

[10] R.J. gave testimonial evidence about family history and, in particular, her relationships with T., R. and the applicant.

ISSUES

[11] The issues to be determined in this application are as follows:

a. Should the applicant’s proposed relocation with T. and R. from Oakville to Sarnia be authorized?

b. If the applicant’s proposed relocation with the children is authorized, should the Final Order by varied and, if so, how?

c. Should the respondent be ordered to pay “retroactive” and ongoing child support, including s. 7 expenses, and to obtain life insurance as security?

d. Should the Final Order be varied as requested by the respondent?

ANALYSIS

Should the applicant’s proposed relocation with T. and R. from Oakville to Sarnia be authorized?

Parties’ Positions

[12] The applicant admits that her proposed move to Sarnia is a relocation under s. 16.9 of the Divorce Act and not a change of residence under s. 16.8.

[13] She submits that her proposed relocation is in the best interests of T. and R. and should therefore be authorized.

[14] She also argues that, pursuant to s. 16.93(2) of the Divorce Act, the respondent bears the burden of proving that the proposed relocation is not in the best interests of the children, that he has failed to discharge that burden and that her proposed relocation should therefore be authorized.

[15] The respondent submits that the applicant’s proposed relocation is not in the best interest of T. or R. and should therefore not be authorized.

[16] He also argues that, pursuant to s. 16.93(3) of the Divorce Act, both parties have the burden of proving whether the proposed relocation is in the best interests of the children. Although he acknowledges that the Final Order provides for T. and R. to spend the vast majority of time in the care of the applicant and that they actually do so, the respondent submits that the applicant has not substantially complied with the Final Order such that it is s. 16.93(3) and not s. 16.93.(2) of the Divorce Act that applies. Specifically, he complains that the applicant breached the Final Order by preventing his parenting time on so-called “P.A. days” and school holidays, failing to inform and include him in decisions related to the children’s medical, dental and optometric circumstances or care and causing parenting conflict in the children’s presence.

[17] The respondent also argues that the best interests of T. and R. militate against authorizing the proposed relocation.

Law

[18] Section 2(1) of the Divorce Act defines “relocation” as,

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

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

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

[19] Section 16.9(1) of the Divorce Act provides that a person with parenting time or decision-making responsibility respecting a child of the marriage who intends to effect a relocation must provide at least 60 days’ prior notice of that intention, in the prescribed form, to anyone else who has parenting time, decision-making responsibility or contact under a contact order.

[20] Pursuant to s. 16.91(1), a person who intends to relocate a child and has given the requisite notice is permitted to do so if: a) the court authorizes the relocation; or b) the recipient of the s. 16.9 notice does not object in the prescribed manner within 30 days of receipt of that notice and there is no order prohibiting the relocation.

[21] In determining whether or not a relocation should be authorized, “[t]he crucial question is whether relocation is in the best interests of the child, having regard to the child’s physical, emotional and psychological safety, security and well-being”, which is a highly fact-specific and discretionary inquiry ( see: Barendregt v Grebliunas, 2022 SCC 22, at para. 152). The court must consider the best interests of the particular child in the particular circumstances of the case ( see: Barendregt, at para. 123).

[22] In determining the best interests of the child in relocation cases, the court must consider all factors related to the child’s circumstances, including, without limitation:

a. the child’s views and preferences;

b. the history of caregiving;

c. any incidents of family violence;

d. the reasons for the relocation;

e. the impact of the relocation on the child;

f. the amount of parenting time spent with the child and the level of the parties’ involvement in the child’s life;

g. the existence of a court order, arbitral award or agreement that specifies the geographic area in which the child is to reside;

h. the reasonableness of the relocating party’s proposal to vary parenting time, decision making responsibility, taking into consideration, among other things, the location of the new place of residence and the applicable travel expenses; and

i. whether the parties have complied with their respective obligations under statute, a court order, arbitral award or agreement and the likelihood of future compliance,

( see: Barendregt, at paras. 153-154).

[23] The court is not to consider how the outcome of the relocation application would affect the parties’ relocation plans – e.g., whether the relocating party would relocate without the child or not relocate at all ( see: Barendregt, at paras. 140 and 154).

[24] A relocation is more likely to be approved “where the clear primary caregiver for a child seeks to relocate and more likely to be denied if there is a shared parenting arrangement” ( see: Barendregt, at para. 121).

[25] The applicable burdens of proof on a relocation application are as follows:

a. if the parties substantially comply with a court order, arbitral award or agreement that provides that the child spend substantially equal time in the care of each party, the party intending to relocate the child has the burden of proving that the relocation would be in the child’s best interests (see: Divorce Act, s. 16.93(1));

b. if the parties substantially comply with a court order, arbitral award or agreement that provides that the child spend the vast majority of their time in the care of the party intending to relocate the child, the party opposing the relocation has the burden of proving that the relocation would not be in the child’s best interests (see: Divorce Act, s. 16.93(2)); and

c. in all other cases, the parties share the burden of proving whether the relocation is in the child’s best interests (see: Divorce Act, s. 16.93(3)).

[26] The law of statutory interpretation is well settled. The words of a statute “are to be read in their entire context and in their grammatical and ordinary sense, harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament” ( see: Wong v Liu, 2023 ONCA 272, at para. 19). The appropriate interpretation is one “that best fulfills the objects of the legislation and that avoids any inconsistency between its different provisions and avoids absurd consequences” ( see: Wong, at para. 19).

Decision

[27] I find that the applicant’s request for authorization of her proposed relocation with T. and R. to Sarnia must be denied. In my view, the proposed relocation would not be in the children’s best interests.

Applicable Burden of Proof

[28] I find that, pursuant to s. 16.93(2) of the Divorce Act, the respondent bears the burden of proving that the proposed relocation would not be in the children’s best interests. I do not accept his argument that the applicant is not entitled to rely on the s. 16.93(2) of the Divorce Act because of her alleged breaches of the Final Order.

[29] In my view, read in its entire context and in its grammatical and ordinary sense, harmoniously with the scheme of the Divorce Act, s. 16.93 does not, as the respondent suggests, provide for an “if you comply, then you can rely” regime for the applicable burdens of proof. Rather, it provides for differing burdens of proof based on the amount of time that a child should (pursuant to court order, arbitral award or agreement) and actually does spend in the care of each parent. The requirement of substantial compliance in s. 16.93 is expressly and, in my view, intentionally directed at both parents in a relocation application.

[30] In addition, a review of the applicable Hansard in both the House of Commons and the Senate respecting the subject amendments to the Divorce Act reveals the intent of the “three-way split” in s. 16.93. It was to confirm the general rule that the burden of proof rests with the parent seeking to relocate, except in those cases where the child spends the vast majority of time in the care of that parent. However, it remains abundantly clear that the best interests of the child remain the exclusive determining factor for consideration in relocation cases. Indeed, the intention underlying the addition of the burdens of proof in s.16.93 was “to assist parents, lawyers and judges in undertaking a best interests analysis” ( see: Shipton v Shipton, 2023 ONSC 1342, at para. 101) and not, in my view, to infuse a benefit-for-compliance regime into that analysis.

[31] I certainly do not suggest that a party’s (non-)compliance with a court order, arbitral award or agreement respecting parenting time is not relevant to the issue of relocation. Section 16.92(1) of the Divorce Act expressly mandates that the court consider a party’s compliance with her or his legal obligations in determining the best interests of the child when deciding whether to authorize a relocation. However, as outlined above, the relevant inquiry into the applicable burdens of proof under s. 16.93 relates to how much time the child is supposed to spend and actually does spend with each parent.

[32] This interpretation is, in my view, consistent with how s. 16.93 of the Divorce Act and equivalent provincial legislation in Ontario have been interpreted by the courts (e.g., Nurmi v Nurmi, 2023 ABCA 123, at para. 8; Rioux v McCutcheon, 2022 ONCJ 246, at para. 94; Mohamoud v Farah, 2023 ONCJ 103, at paras. 99 and 101).

[33] It is agreed fact that not only does the Final Order provide that T. and R. spend the vast majority of their time in the care of the applicant, but they actually do so. Even were I to accept the respondent’s argument that the applicant has breached the Final Order by reducing his parenting time, that non-compliance would, in no way, alter these facts. Similar to KDH v BTH, 2021 ABQB 548, at paras. 31-35, even if the respondent had received all of the parenting time that he alleges was denied, the children would still have spent the vast majority of their time in the applicant’s care.

[34] The burden of proof is on the respondent.

[35] That said, s. 16.93 of the Divorce Act is not to be determinative of a relocation application unless the evidence is insufficient to permit the court to determine whether it is in the child’s best interests to relocate ( see: Nurmi, at para. 9). In the case-at-bar, the evidence is sufficient to permit me to determine whether it would be in the children’s best interests to relocate to Sarnia.

Best Interests of T. and R.

[36] I find that the applicant’s proposed relocation with T. and R. to Sarnia would not be in the children’s best interests.

[37] As set out in the OCL report, both T. and R. love the Sarnia House and the Town of Sarnia itself. They have both spent a significant amount of time there since the applicant purchased the Sarnia House and, based on the applicant’s research, there appear to be suitable schools and health care for them there. However, the OCL has recommended against the proposed relocation due to the risk it would pose to the respondent’s relationships with the children, given how the applicant views the value of those relationships and the respondent’s role in the children’s lives.

[38] Although the applicant has delivered a dispute to the OCL Report and challenged its findings in her closing arguments, I find no sufficient grounds to disregard the OCL Report or to limit its evidentiary weight (see: Maharaj v Wilfred-Jacob, 2016 ONSC 7925, at para. 67; Springstead v Springstead, 2022 ONSC 1906, at para. 31). Indeed, the applicant cross-examined Ms. Majewski and failed to shake her from her factual findings or recommendations or to disclose any material basis on which to disregard them.

[39] Furthermore, based on the evidence adduced at trial, I share the OCL’s concerns respecting the proposed relocation and, in my view, the following from p. 24 of the OCL Report is emblematic of those concerns,

It has become evident to this writer that Ms. Tass is unable to see how her actions towards Mr. Jackson have been restrictive, punitive and intrusive in his relationship with [T.] and [R.]. Ms. Tass does not seem to recognise that her actions are responsible for many of the stressors in her co-parenting relationship with Mr. Jackson and therefore causing stressors for the children. Further Ms. Tass appears to blame Mr. Jackson for not being able to move and is subsequently holding this against Mr. Jackson.

[40] Indeed, the applicant’s testimony at trial was clearly imbued with continuing disappointment and resentment due to her perception that the respondent was absent from the children’s lives during the marriage and that she therefore had to take on most – if not all – of the parenting tasks. Despite the agreed fact that the respondent’s mental illness significantly affected his ability to fully parent the children prior to the parties’ separation, the evidence shows that the applicant blames him for his perceived absence during the children’s early years. She has developed and maintains a deep and unmitigated view that the respondent is an inconsequential parent, an unimportant factor in the lives of T. and R. and an inconvenience in her immediate, short-term and long-term plans for them.

[41] This concerning view by the applicant of the respondent’s relationships with T. and R. and his role in their lives is no more evident than in the manner by which the applicant has approached decision-making involving the children’s medical treatment and records, schooling and extracurricular activities. One very striking example of this is when the applicant unilaterally, and without notice to or consultation with the respondent, decided to cease all medication recommended by the psychiatrist, Dr. Handelmann, to treat T.’s ADHD and switch instead to non-medicinal treatment. The respondent only came to know of this treatment change after asking T. why he was no longer taking any medication for his ADHD.

[42] On the limited number of occasions when the applicant has consulted with the respondent as required by the Final Order, those consultations have been, at best, perfunctory, if not purely performative.

[43] The manner in which the applicant addressed the issue of relocation is also indicative of her diminished view of the role that the respondent plays in the children’s lives and the importance of those relationships.

[44] The applicant’s evidence at trial was that she thoroughly investigated Sarnia – respecting, among other things, geography, town amenities, town events, schooling, extra-curricular activities and the availability of health care – before deciding in April 2021 to move there.

[45] Despite the applicant’s evidence that she did not include or involve the children in making the decision to move, I find that she did. She involved both T. and R. in the relocation planning and decision-making process by, among other things, taking them to Sarnia (including for months at a time), implementing travel protocols (in-transit games, coping strategies, etc.) to mediate the adverse impacts of the lengthy drive time and monitoring how they (particularly T.) tolerated the travel. The applicant also unilaterally enrolled the children in, among other things, swimming, soccer, ballet and martial arts in Sarnia.

[46] Despite all of this, the applicant made the decision to move without any consultation whatsoever with the respondent. He was left completely in the dark until served with the notice of relocation.

[47] In addition, the applicant adduced no evidence that, anywhere in her extensive and careful deliberations on the issue of moving to Sarnia, she considered how her decision to move the children more than 250 kms away from their current home might affect their relationships with the respondent. The applicant also admitted that, before making the decision to move to Sarnia, she didn’t consider – let alone investigate – any other possible locations that were similar (for her purposes) to Sarnia but closer to Oakville.

[48] It is both well settled law and common sense that geographic distance “reduces flexibility, disrupts established patterns, and inevitably impacts the relationship between a parent and a child” ( see: Barendregt, at para. 8). Given the applicant’s disregard of the respondent’s relationships with the children and his role in their lives, all of these inevitable adverse impacts on the parent-child relationship are amplified in the case-at-bar. The risk to T.’s and R.’s relationships with the respondent should the proposed relocation be authorized is incalculable and, in my view, undeniable.

[49] The applicant takes a similarly dim view of the children’s relationships with their half sister, R.J., and her role in their lives. It is undisputed that both T. and R. have close relationships with R.J. and that they each share common interests with her. Both children also share with R.J. similar challenges associated with their mental health conditions and she is a resource for them in trying to manage those challenges, including recognizing circumstances and/or factors that trigger them. There is no evidence that the applicant consulted with R.J. in any way respecting the move to Sarnia or that she took into any consideration how the move would impact the children’s relationships with their half sister.

[50] In addition, consistent with the dismissive approach taken by the applicant toward the relocation issue, she has abjectly failed to proffer – in either her evidence or her submissions – a specific or particularized plan for variations of parenting time and/or decision-making should her proposed relocation be authorized. Her only proffered plan is to effectively maintain, in their entirety, the current arrangements in accordance with the Final Order.

[51] Specifically respecting parenting time, she proposes that the children’s alternate weekends with the respondent continue and that the weekly Wednesday afternoon time “be replaced with additional time during the summer and school holidays” and videoconferencing. However, the applicant has failed to provide a clear and particularized proposal that sets out how the lost time would be replaced. She also says that “there should be no less time [with the respondent] than there is now”. However, the applicant has failed to provide a clear and particularized proposal that sets out how this could be achieved.

[52] The applicant also provided no specific proposal respecting, among other things, how the exchanges would work, the times of the exchanges, the locations of the exchanges (other than for “a mutually agreeable midpoint”), how unforeseen issues in travel would be addressed, how the parenting time lost as a result of the respondent’s travel time would be accounted for and how the applicable increased cost to the respondent would be addressed. Indeed, the only thing that the applicant was clear and straight about was that any variation of the parenting time schedule should not result in either T. or R. spending more than three consecutive days with the respondent.

[53] Turning specifically to the Barendregt factors, I find the following to apply in the case-at-bar and address each in turn:

a. the children’s views and preferences;

b. the history of caregiving;

c. any incidents of family violence;

d. the reasons for the relocation;

e. the impact of the relocation on the children;

f. the amount of parenting time spent with the child and the level of the parties’ involvement in the child’s life;

g. the reasonableness of the relocating party’s proposal to vary parenting time and/or decision-making responsibility, taking into consideration, among other things, the location of the new place of residence and the applicable travel expenses; and

h. whether the parties have complied with their respective obligations under statute, a court order, arbitral award or agreement and the likelihood of future compliance.

[54] I am mindful that the Barendregt factors are not intended to be a checklist that results in a mathematical determination of whether the proposed relocation is in the children’s best interests. Instead, they constitute a non-exhaustive list of factors for the court to consider in exercising its discretion to determine whether the proposed relocation would be in the children’s best interests.

Children’s Views and Preferences

[55] In the circumstances, I find the children’s views and preferences to, on balance, be a neutral factor respecting the proposed relocation.

[56] I accept the OCL’s findings that T. and R. are “torn” between wanting to move to Sarnia and not wanting to lose any time with the respondent. T. is strongly averse to any changes in the parenting time schedule, whilst R. wants to spend more time with the respondent, but they both acknowledge the dichotomy between those desires and the reality of a move to Sarnia.

[57] I also note the OCL’s finding that it is “difficult for the children to truly recognize their own thoughts and feelings” due to the level of parental conflict, which results in the children being “overwhelmed by their perceptions of what each parent thought about the other”. This concern was initially articulated by the children’s counsellor at Reach Out Centre for Kids and shared by the OCL.

[58] In my view, the weight of this factor rests at the mid-point between Oakville and Sarnia.

[59] In the circumstances, I find the history of caregiving factor to weigh in favour of authorizing the proposed relocation.

[60] It is undisputed that the applicant has been the children’s primary caregiver since their births and that they have had primary residence with her since the parties separated. It is also undisputed that the respondent has a close and loving bond with both children but has had a relatively limited role in their care after they were born.

[61] In my view, given the deference shown to parents who are the clear primary caregivers of children ( see: Barendregt, at para. 119), this factor might have weighed heavily in favour of the applicant’s proposed relocation. However, in my view, that deference is materially reduced by the applicant’s very diminished view of the respondent and his relationships with the children. The applicant’s presumptively deeper insight into the best interests of T. and R. is distorted by her negative feelings toward the respondent and the minimal value that she sees in his relationships with the children.

Incidents of Family Violence

[62] Given the applicant’s allegations of family violence, I have considered this Barendregt factor, but, based on the evidence, I give it no weight in my decision respecting the proposed relocation.

[63] Although the applicant alleges that the respondent has committed acts of family violence against her and the children, there is no evidence to support those allegations other than the applicant’s unconvincing and uncorroborated testimony and references in a report by Dr. Handelmann to trauma allegedly suffered by the children. The references in Dr. Handelmann’s report were based solely on information provided by the applicant in the respondent’s absence and without any of his input. Furthermore, neither T. nor R. has reported any incidents of family violence to the OCL or to any other professionals involved with this family.

[64] In addition, I note that the OCL found the applicant’s allegations of abuse by the respondent to be part of a “false narrative that [the applicant] has created about the children being traumatized by the abusive behaviour of their father”.

Reasons for Relocation

[65] In the circumstances, I find the reasons for relocation factor to weigh against authorizing the proposed relocation.

[66] I accept the applicant’s evidence that the Sarnia House would provide the children with a larger home in closer proximity to the applicant’s parents than the applicant’s current home in Oakville. The benefits of having a larger home, larger bedrooms for the children, a separate workspace for the applicant, large front and back-yards and the greater stability of an owned property instead of a rented one are all obvious and would, in my view, be in the children’s best interests.

[67] However, the closer proximity to the applicant’s parents carries little weight. Based on the evidence, that source of support has been fulsome (including the children’s participation with their maternal grandparents in various events and festivals in Sarnia) whilst living in Oakville. Indeed, the evidence indicates that extended family support on the applicant’s side is not tied to Sarnia.

[68] Furthermore, the applicant’s reasons for the proposed relocation do not include any improved financial circumstances for the applicant. It is undisputed that the applicant works completely remotely and can do so from any location that has internet access. There is also no evidence that, compared to Oakville, Sarnia provides any additional work benefits or financial opportunities for the applicant or that the cost of living is lower there.

[69] In addition, the applicant admitted in cross-examination that, before she bought the Sarnia House, she did not investigate any other similar locations that were equidistant to her extended family but closer to Oakville. In my view, this calls into question the applicant’s good faith in her stated reasons for the proposed relocation.

Impact of Relocation on the Children

[70] In the circumstances, I find the impact of relocation on the children factor to weigh heavily against authorizing the proposed relocation.

[71] It is an agreed fact that both T. and R. have a close and loving bond with the respondent and it is undisputed that neither one wants any reduction in the amount of time spent with him. Indeed, in R.’s case, she wants more time with her father. It is also undisputed that R.J. has also had very close relationships with both children. I accept both the respondent’s and R.J.’s evidence that those relationships remain very close.

[72] As outlined above, based on the applicant’s view of the respondent’s and R.J.’s relationships with the children and their roles in the children’s lives, compounded by the two-and-a-half-hour to three-and-a-half-hour distance, the proposed relocation poses a significant risk to the children’s relationships with their father and their half sister.

[73] In addition, it is undisputed that T. does not adapt well to change and has difficulty with long drives and unplanned and/or unforeseen conditions (e.g., delays, traffic or adverse weather conditions). Therefore, the proposed relocation would acutely impact T. even more than it would impact R., who, the evidence indicates, would also not do well under those conditions. I do not accept the applicant’s evidence that, during the last two years, there were no significant traffic or weather events during her drives with the children between Oakville and Sarnia and that the children were able to tolerate them without a single adverse episode.

[74] Furthermore, the applicant admits that the proposed relocation would disrupt the children’s social lives, but claims that all of those friendships would be maintained, as, currently, most of their playdates are online or virtual. I do not accept the applicant’s attempt to minimize the admitted disruption, as neither the evidence nor common sense supports those claims. The children’s current friendships would be at risk were they to move to Sarnia.

Amount of Parenting Time and Level of Involvement in the Children’s Lives

[75] In the circumstances, I find the amount of parenting time spent with the children and the level of the parties’ involvement in the child’s life factor to weigh against authorizing the proposed relocation.

[76] The applicant’s role as primary caregiver, the children’s primary residence with the applicant since the parties’ separation, the respondent’s close and loving bond with the children and the applicable parenting time schedule are all agreed facts. Both parents figure prominently in the lives of both T. and R., aim to spend as much quality time with them as possible and make the most of their time together.

[77] In addition, I find that, despite the very high level of conflict between them, both parties do their best to deal with the daily challenges faced by their children with special needs. The respondent, in particular, faces those parenting challenges contemporaneously with additional challenges associated with his own mental health condition, his financial circumstances and the consequences of how the applicant views his role in the children’s lives.

[78] In my view, the proposed relocation not only poses a significant risk to the respondent’s relationships with the children, but also to the amount of quality time that they will be able to spend with either parent and their ability to make the most of that time.

Reasonableness of Proposal to Vary Parenting Time or Decision-Making

[79] In the circumstances, I find the reasonableness of the proposal to vary parenting time and/or decision-making factor to weigh heavily against authorizing the proposed relocation.

[80] As outlined above, the applicant has made no specific proposal respecting parenting time or decision-making other than effectively maintaining the current arrangements. Therefore, it is not that the applicant’s proposal to vary parenting time and/or decision-making is unreasonable; it is that she has failed to make a proposal that can be assessed for reasonableness.

[81] In my view, this approach to the proposed relocation is completely consistent with the diminished view that the applicant has about the importance of the respondent’s role in the children’s lives.

Parties’ Compliance with Legal Obligations

[82] In the circumstances, I find the parties’ compliance with their legal obligations factor to weigh heavily against authorizing the proposed relocation.

[83] It is an agreed fact that, as of September 29, 2023, the respondent was in arrears of child support totaling $4,701.11. His inconsistent employment status since the date of separation and his unemployment since March 2023 are also agreed facts. It is undisputed that child support is being enforced through the Family Responsibility Office and that the respondent pays what he can, whenever he can.

[84] It is also undisputed that the parties have substantially complied with the Final Order respecting the children’s parenting time with the respondent, with the exception of a period during the COVID-19 pandemic when that parenting time was first suspended and then altered by reductions in frequency and duration, as well as by nature (i.e., virtual and physically distanced).

[85] I accept the respondent’s evidence that it was the applicant who dictated how his parenting time would be affected (i.e., suspended and then, upon resumption, altered) by the pandemic and that it was she who decided whether and how the lost time would be made up. I also accept the respondent’s evidence that, contrary to the Final Order, the applicant has denied his parenting time on “P.D. days” and school holidays on the alternate weekends when the T. and R. were in his care. In these ways, the applicant has breached the Final Order.

[86] I do not accept the applicant’s argument that the issue respecting “P.D. days” and school holidays is not of her non-compliance, but of a difference of interpretation of the Final Order. The Final Order is clear on its face respecting “P.D. days” and school holidays and it is undisputed that T. and R. did not spend, as they should have, the applicable additional days with the respondent.

[87] Furthermore, the applicant’s decision to move to Sarnia with the children, which she made without any consultation with the respondent, also constitutes a breach of the Final Order. Based on the evidence, the applicant made the decision to move before she served her notice of relocation on April 20, 2023, but neither consulted nor notified the respondent beforehand. In my view, the move to Sarnia is a matter respecting which the Final Order required the applicant to consult with the respondent. She did not.

[88] The applicant’s conduct respecting her legal obligations reflects the diminished view that she has of the respondent’s relationships with the children and magnifies my significant concerns about it.

Summary & Conclusion re: Relocation

[89] As stated by the Court of Appeal for Ontario in Reeves v Brand, 2018 ONCA 263, at para. 17,

[r]elocation or mobility cases, where one parent wants to take a child and move some distance away from the other parent, are among the most difficult cases in family law. If the custodial parent is permitted to move with the child, inevitably the relationship between the non-custodial parent and the child will be affected and may suffer. Typically the court must balance the custodial parent’s legitimate interest in relocating with the non-custodial parent’s legitimate interest in maintaining a relationship with the child. But in every case, the ultimate question is what is in the best interests of the child. [emphasis added]

[90] In the case-at-bar, I accept that the proposed move to Sarnia brings with it potential benefits, including for T. and R.; however, the significant risk to two of the children’s closest relationships is far too high a cost for them to pay. In my view, the potential benefits that await T. and R. in Sarnia would cost them their current relationships with their father and their half-sister. Such a trade cannot possibly be in the children’s best interests.

[91] I am certainly mindful of the effect that the respondent’s mental health condition during the marriage likely had on the applicant. I accept the applicant’s evidence that the children’s early years were very challenging – particularly for her – due to the consequences of the respondent’s mental health condition during that time. She was undoubtedly called upon to take on much more than what may reasonably be perceived as her “fair share” of the parenting tasks. Such circumstances commonly result in, to one degree or another, a sense of unfairness, which, in turn, may result in feelings of disappointment and/or resentment. That is understandable.

[92] However, based on the evidence in the case-at-bar, those feelings have completely imbued and continue to imbue the applicant’s views about the respondent, as well as the value of his relationships with T. and R. and the role that he plays in their lives. Those views appear to have extended to R.J., her relationships with the children and her role in their lives.

[93] Accordingly, for the reasons outlined above, I find that it would not be in the children’s best interests to relocate to Sarnia. Simply and summarily put, the risk to their relationships with their father and their half-sister is far too great.

[94] I therefore find that the respondent has discharged the applicable burden of proof under s. 16.93(2) and that the applicant’s request for authorization of her proposed relocation to Sarnia must be denied.

If the applicant’s proposed relocation with the children is authorized, should the Final Order by varied and, if so, how?

[95] Given my finding above that the proposed relocation should not be authorized, I need not address the issue of how, if at all, the Final Order should be varied accordingly and I decline to do so.

Should the respondent be ordered to pay “retroactive” and ongoing child support, including s. 7 expenses, and to obtain life insurance as security?

[96] Although the applicant claims this relief in her application, she dedicated none of her submissions to these claims and adduced no evidence to support them. In addition, among other things, the Final Order provides for the payment of child support (which is being enforced through the FRO) and a support deduction order, and the respondent has been paying, when he is able, support commensurate with his income with current arrears totaling $4,701.11.

[97] I am therefore not prepared to grant these claims.

Should the Final Order be varied as requested by the respondent?

Parties’ Positions

[98] In his answer, the respondent seeks a variation of the Final Order to, among other things, increase his regular, holiday and summer parenting time. He submits that he “meets all of [the] criteria” to establish a material change in circumstances, as, when the Final Order was made, he was “not working, not living in stable housing, and his mental health had not stabilized”. He also argues that, at the time of the Final Order, the children had not been diagnosed with their respective mental health conditions and “the court could not have anticipated the extent of the conflict between the parties and the extent to which the terms of decision-making and parenting time would not be followed”.

[99] The applicant submits that there has been no material change in circumstances and that the respondent’s claim to an order varying the Final Order should be dismissed. She argues that “the evidence does not establish that the [respondent’s] circumstances have changed significantly since the [Final Order]”. The applicant further submits that, whilst there has been the change in the children’s mental health diagnoses since the Final Order was made, that change is not one that “would have resulted in a fundamentally different parenting schedule had it been known at the time”.

Law

[100] Sections 17(1) (b), (3) and (5) of the Divorce Act provide as follows,

17 (1) A court of competent jurisdiction may make an order varying, rescinding or suspending, retroactively or prospectively,

(b) a parenting order or any provision of one, on application by

(i) either or both former spouses, or

(ii) a person, other than a former spouse, who is a parent of the child, stands in the place of a parent or intends to stand in the place of a parent; or

(3) The court may include in a variation order any provision that under this Act could have been included in the order in respect of which the variation order is sought, and the court has the same powers and obligations that it would have when making that order.

(5) Before the court makes a variation order in respect of a parenting order or contact order, the court shall satisfy itself that there has been a change in the circumstances of the child since the making of the order or the last variation order made in respect of the order, or of an order made under subsection 16.5(9).

[101] The applicable test for determining whether there has been a material change in circumstances is well settled and has three components:

a. there has been a change in the condition, means, needs or circumstances of the child and/or of the ability of the parents to meet those needs;

b. the change must materially affect the child; and

c. the change was either not foreseen or could not have been reasonably contemplated by the judge who made the final order,

( see: Licata v Shure, 2022 ONCA 270, at para. 21).

[102] The change must be one that “if known at the time, would likely have resulted in different terms” (see: L.M.P. v L.S., 2011 SCC 64, at para. 44).

[103] If the party seeking variation of the final order is unable to demonstrate a material change in circumstances, the court’s inquiry into the matter “can go no further” and the application for variation must be dismissed ( see: Litman v Sherman, 2008 ONCA 485, at para 26).

[104] The order sought to be varied is “presumed to be the right order in the child’s best interests” ( see: Docherty v Beckett (1989), 21 R.F.L. (3d) 92, at p. 96).

Decision

[105] I find that the respondent has failed to discharge his burden of proving that there has been a material change in circumstances and his request to vary the Final Order must therefore be denied.

[106] In my view, there is no evidence that there has been a change in the condition, means, needs or circumstances of T. or R. and/or the parties’ ability to meet their needs that materially affects the children and that was not foreseen or could not have reasonably been contemplated by the parties when the Final Order was made. In particular, I do not accept the respondent’s argument that the alleged changes in his employment status, his living arrangements, his mental health condition or the mental health conditions of T. or R., if known at the time of the Final Order, would have resulted in a different order being made.

[107] The respondent’s current employment status is as it was when the Final Order was made: unemployed. Although his evidence at trial was that he anticipated receiving an offer for full-time employment “any day now”, he proffered no evidence beyond his uncorroborated testimony.

[108] The respondent’s living and housing arrangements also remain as they were when the Final Order was made: unstable. His own evidence is that, if R.J. moves out, he will be unable to afford his current rental accommodations.

[109] Respecting the respondent’s and the children’s mental health conditions, whilst I am gratified to hear that they are all being well managed, there is no medical evidence (or, really, any evidence) of how, if at all, those conditions have changed since the time that the Final Order was made. Although the children were diagnosed with their specific respective conditions in 2022 and 2023, there is no evidence of what symptoms either one had in 2018 (when the Final Order was made) versus when they were diagnosed. There is therefore, in my view, no evidence that any differences in the respondent’s or the children’s mental health conditions, if known at the time that the Final Order was made, would have resulted in a different order being made.

[110] I also do not accept the inference from the respondent’s arguments that, when negotiating the terms of the Final Order, the parties expected that the respondent’s employment status, housing/living arrangements or mental health condition would forever remain the same; i.e., that they would never improve or stabilize. Such an inference is not supported by any evidence whatsoever and, in my view, such an expectation is unlikely.

[111] As for the level of parenting conflict, there is no evidence that it has changed – materially or otherwise – since the Final Order was made; it remains as high as it has previously been. It is settled law that the continuation of parental conflict does not amount to a material change in circumstances (see: Koetsier v St-Denis, 2018 ONCA 477, at para. 10). I recognize that continuing parental conflict that results in a deleterious effect on the children “not reasonably and actually foreseen at the time of the Final Order”, may constitute a material change in circumstances (see: G.T.G.D. v M.D., 2016 ONSC 4463, at paras. 181). However, there is no evidence of such a circumstance in the case-at-bar.

[112] I therefore find that there has been no material change in circumstances and the respondent’s request to vary the Final Order must be denied.

COSTS

[113] I urge the parties to agree on costs and, upon such agreement, they are to advise me accordingly through the Milton Administration Office by no later than the applicable deadline specified in my order below. Should they be unable to agree, the parties are to deliver their respective written submissions in accordance with my order below.

DISPOSITION

[114] I therefore make the following orders:

a. the applicant’s application is dismissed;

b. the respondent’s claims are dismissed;

c. if the parties are able to agree on costs, they are to advise me through the Milton Administration Office by no later than 4:00 p.m. on December 6, 2023; and

d. if the parties are unable to agreed on costs, they are to exchange written submissions (limited to two double-spaced pages each plus bills of costs and relevant offers to settle) and submit them to me through the Milton Administration Office as follows:

i. the applicant by no later than December 15, 2023;

ii. the respondent by no later than December 29, 2023; and

iii. there shall be no reply.

C. Chang J. Released: November 20, 2023

COURT FILE NO.: FS-21-79-0000 DATE: 2023 11 20 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: Lisa Johanna Tass Applicant - and - Andrew Carl Ronald Jackson Respondent REASONS FOR JUDGMENT C. Chang J. Released: November 20, 2023

[1] This is an improper and disproportional use of a joint book of documents. Despite my admonishment of counsel before the trial commenced, when I instructed them on the proper preparation and use of a joint book of documents, they appear to have chosen a different path. Counsel must do better.