COURT FILE NO.: FC-21-00000336-0000 (Kingston)

DATE: 20240515

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

T.K.W.

Applicant

– and –

S.R.W.

Respondent

Clinton H. Culic, for the Applicant

Jennifer Howard, for the Respondent

HEARD: April 15, 16, 17 and 18, 2024, at Kingston

ROBERTSON J.

judgment

[1] This decision follows a 4-day trial, with cross-examination on affidavit evidence. A previous order initialized the names of the parties.

Issues Requiring Adjudication

[2] What decision making regime and parenting schedule is in the best interests of the child, G.L.W., born […], 2020 (the “child”)? Should contact between the child and her father be supervised? Where should the child reside? What child support arrangement flows?

[3] This order is based on my findings from properly tendered evidence, applied to the law. The parties are married. They agree that the Divorce Act, s. 16[^1], provides the statutory authority determining the parenting and contact order: the court shall take into consideration only the best interests of the child in making the order and give primary consideration to the child’s physical, emotional and psychological safety, security and well-being.

Family Overview

[4] This 3½-year-old girl is the only child of their marriage. Neither parent has re-partnered. Neither parent has other children. The parties are the child’s immediate family. The father lives in Ontario. The mother lives in Alberta. This young girl has been at the heart of litigation since she was 10 months old. She will only have one childhood.

Father’s Position

[5] The father seeks an order for joint decision-making authority. If the parents cannot agree, he asks to make the final decision. He proposes the child live primarily with him in Kingston or at his parents’ home in Athens, Ontario, about 45 minutes to one hour from Kingston. His application proposes equally shared time between the parties if they reside in the Kingston area. Since the mother lives in Calgary, he proposes equal time until the child starts school in September 2024 in Ontario. As of 2025, the child will spend the summers and other block non-school times like Christmas and March Break with the mother. He proposes up to an additional ten weeks of parenting time in Ontario if the mother is within 50 km of the child’s residence, provided she takes the child to school.

[6] Just before trial, the father’s circumstances changed. The week before trial, he completed his post-secondary computer degree. He expected a full-time job from a student placement. It fell through because of the company’s financial issues. It was bad timing indeed. He originally planned for the child to attend a “good school” in Kingston, live with him in his apartment and attend a day care where he had secured a space. He is now looking for employment, and hopes to move back out on his own with the child attending the school/day care in Kingston as originally planned.

[7] He sublet his apartment because he could not afford to live independently. He moved home with his parents. If he is still unemployed in September 2024, and unable to afford his old apartment, he proposes the child go to school near his parents’ home. His plan if he is unemployed is to personally care for the child. His father, a retired engineer, will provide back up day care. The paternal grandfather did not testify. When asked, the mother did not have any comment about the grandfather as a day care provider. The paternal grandmother will help when she can. She is a piano teacher, so is not always available. She corroborated their family support for the father’s plan and she was cross examined at trial.

[8] Tensions between the parties are high. The father proposes communication between the parties via email. His draft order includes various clauses for liberal and generous phone and video contact, sharing of school and professional information, address updates, and child support in accordance with the Ontario Child Support Guidelines, O. Reg. 391/97 (the “Ontario Guidelines”). He specifically wants an order that the mother maintain vaccinations for the child. This was a source of previous conflict.

[9] He seeks an order for police enforcement.

[10] He made no proposal for contact with him if the child resides in Calgary.

Mother’s Position

[11] The mother seeks an order for sole decision-making authority for the child after attempting to consult with the father.

[12] The mother plans to reside with the child in Calgary. Her extended family in Calgary provide personal, financial, and back up day care support. Several of her family members testified, and they all seemed genuinely concerned for the well-being of the child. The father had no complaint about them.

[13] The mother seeks supervised contact between the child and the father until the child is six years old. She expects the child would not need assistance with her toileting regime at age six. She says the father would not require supervision when out in public spaces with the child.

[14] Under the mother’s plan, the father will never have overnight parenting time with the child, regardless of age.

[15] The details of the supervised day contact were particularized in her proposed draft order. She would bring the child to Ontario in 2024 for at least one ten-day visit. During the trial, she stated she would fly to Ottawa in May 2024, rent a car, stay in a hotel and bring the child to see the father at his parents’ residence. She testified she would facilitate supervised day visits to him. She did not outline the cost or explain how she would fund this.

[16] As of 2025, the mother proposes to bring the child for a minimum of two ten-day visits in Ontario. Additionally, she will facilitate parenting time between father and child in Calgary for a maximum period of one (1) week per month, with fourteen (14) days’ notice for a maximum of eight (8) hours per day so long as it does not disrupt the child’s regular routine and activities (i.e., day care/school, church).

[17] She added that if the father visits Calgary for a period of less than seven (7) days, then he may spend all eight (8) hours each day with the child despite her regular routine and activities. As the child ages, and is in school, this provision would be reviewed. The father’s contact could also be reviewed if he relocates to Calgary.

[18] The mother is presently unemployed with great debt. She has previously worked as a hair stylist, barista, coffee sales representative, bank employee, and most recently, a data entry clerk/receptionist/office assistant for a small company. A couple of months before trial, her job ended due to the company’s financial problems. Like the father, her plans were disrupted. She quickly pivoted to a new plan and hopes to find a part-time job.

[19] The mother enrolled in an online course to become a real estate agent in Alberta to be completed in April 2024. In her cross-examination, she stated that a successful Calgary realty broker she met through her church has offered to help her launch her career. He was not named, and there is no offer of employment. She hopes to earn more than $100,000 annually. She will increase her travel with the child to Ontario commensurate with her income increases. She did not say how she will be able to maintain her high realty income if she is away in Ontario for weeks.

[20] Under her plan, the child will attend school in Calgary, starting in September of 2025. She explained that Calgary does not have a junior kindergarten program. In Ontario, the child would start school in September of 2024. The previous history of the child’s care has been at a private home day care setting with compatible religious values. This year, the child attends a Montessori program three days per week and the other two days are covered by the child’s maternal grandmother and great-aunt, respectively. These women are an integral part of the child’s life in Calgary. The mother’s plan is to change this, in any event. As of September 2024, the mother plans to continue the part-time Montessori School and to enrol the child part-time at […] Church, which is similar to a junior kindergarten program. The child will also continue to attend a church based “Awana” social/play/Bible education program. Both parents agree the child likes the program. The mother researched various programs thoughtfully. The father fully supports faith-based education. There are no complaints by the father about any of the caregivers.

[21] Accordingly, a transition to a new child care plan is already anticipated within the mother’s plan. There is no suggestion that contact with the maternal grandmother/great-grandmother and aunt should be limited. They are important. One aunt frequently commutes to Winnipeg, so her family system is already attuned to successful long distancing. No one mentioned if any of these relatives considered travelling or moving to Ontario. I have no doubt the father would facilitate the child’s relationship with them.

[22] When the mother first remained in Calgary with the child, she resided with her own grandmother for about a year. She now rents a condo owned by her parents. There are no concerns about her condo. The mother filed many photos showing her life in Calgary. Both parents and their families agree this child is adorable. I concur.

[23] The mother proposes video/phone calls between child and father a minimum four times per week, booked around the child’s appointments or activities.

[24] The mother made no proposal for her parenting time with the child if the child resides in Ontario.

[25] The mother made no proposal for extra holiday time such as Christmas, Easter or March Break outside of her generalized contacts above.

[26] The mother asks for Ontario Guideline child support. She seeks to impute $45,000 income per year to the father for the purposes of calculating child support. She acknowledged he regularly paid $400 per month.

[27] Her application claims a restraining order but she did not mention it at trial.

[28] She asks for a divorce. It is not opposed.

[29] I find both parties are enterprising, motivated and hard workers. I find both face challenges with secure employment and funding housing on the face of their financial statements.

Background and Litigation History

[30] The child is residing in Calgary in the primary care of the mother under temporary court orders. The father presently has supervised contact and frequent video contact. There have been in person contact periods in Calgary and in Kingston/Athens. The parties tried alternative dispute resolution without success. There were a number of unsuccessful Judicial conferences and some motions.

Factual Summary

[31] Having considered the evidence, I find the following facts.

[32] This is a five-year marriage. The child was 10 months old when they separated. The father is 28 years old and the mother is 30 years old.

[33] Their relationship was chronically turbulent.

[34] The parties met as youth leaders at church in November 2015. The father was then 19 years old and the mother was 21 years old. He was studying to be a pastor at a college.

[35] Almost immediately, they confided in each other that they had been victims of sexual trauma as children. The mother was a victim of sexual assault. The father was sexually abused at age eight by non-family members. About a year after his sexual abuse, the father was diagnosed with Attention-Deficit Hyperactivity Disorder (“ADHD”).

[36] He took medication for this condition from about age nine.

[37] These bad sexual experiences strongly affected each of them. The couple decided to face their traumas together.

[38] Two weeks after the parties began dating, the father told the mother that he was drawn to pornography, including a form of inappropriate graphic anime pornography, “Lolicon Hentai”. Detail of this and of their marital sexual history was provided at trial. The father testified that he last looked at child pornography in 2019, prior to the child’s birth. I find as a fact that, on the evidence, he did not look at any form of child pornography after the child’s birth in 2020. My finding is supported by the evidence of Dr. Gojer. His assessment of the father’s sexual behaviors considered risk of harm by the father and concluded he was not a risk to children. I find both parents condemn child pornography.

[39] The couple tried to work through their issues alone. The uncontradicted evidence is they were open and honest with each other. They each wanted a healthy relationship. They were both fearful about the impact of any pornography. They are both guided by a strong moral code.

[40] Their relationship deepened. They quickly got engaged and married about nine months after meeting. The mother testified the parties share a religion where it is common for couples to marry young and have children quickly after marriage. At the time, the father believed they were ordained by God to be together. I accept the mother’s evidence that she wanted a successful and Godly marriage. She told the Alberta Children’s Services assessment investigator that she had a calling to marry a pastor and become a foster parent, before even meeting the father.

[41] Shortly after the parties met, the father stopped taking his prescribed ADHD medication of ten years, cold turkey. While it is his responsibility to have made this choice to discontinue his medication, I find the mother encouraged him to stop. The mother’s evidence was:

I again, stayed with him, and tried to support him through it, because of my faith in God. I believed that my Jesus had died for this man and that God would change [him], if [he] really wanted to change.

[42] The mother worked as a hairstylist and the father worked as a landscaper. He lost that job. He seemed depressed and worried according to the mother’s evidence. He found other employment. After separation, in consultation with his doctor, he resumed taking medication. The uncontradicted evidence is that his behaviour evened out when he took his medication, both as a child and then as an adult after separation.

[43] The father confided in the mother his greatest fear: he might be drawn to become a pedophile. The mother was aware and supportive of his worry. She was his emotional anchor and biggest social support. He exhibited anxiety and compulsive thoughts. I find he told the mother he was addicted to pornography. She had no reason to doubt this.

[44] Soon after, he left the pastoral college program. As prevention, they agreed he would stop volunteering at the church. She stood by him. They reached out to their church for guidance. This was a very reasonable plan given their beliefs, resources, and circumstances.

[45] The father does not currently believe he is addicted to pornography. Neither party was aware the father had a medical condition, except for ADHD.

[46] The father has been since been diagnosed with an anxiety disorder, and with Pedophilia Specific Obsessive-Compulsive Disorder (“POCD”). The father described POCD as a type of OCD that involves having obsessions – or intrusive thoughts – that are focused on fears about being or becoming a pedophile. The father explained that as a victim of sexual abuse as a child, he developed “fears and anxieties [and] ruminating thoughts about abuse in general”. The expert evidence supports his assertion that he is not attracted to children. He has seen two psychiatrists, a psychotherapist, a psychologist, and has a pastoral counsellor. He had neurofeedback therapy in 2023. He is currently seeing a counsellor through the Royal Ottawa Hospital to help him deal with his childhood sexual trauma. He is motivated to stay healthy. He takes prescribed medications that assist him with anxiety.

[47] Upon separation, the mother reported child protection concerns to authorities. The allegations were investigated and no sexual improprieties were found.

[48] The mother is also trying to overcome her own trauma. She went to counselling and she continues to access a pastoral counsellor.

[49] Each parent has taken parenting courses since separation, and both want to be good parents. Neither want their own history of harm to impact the happy childhood of their daughter.

[50] As a young married couple, they quarrelled routinely. The mother did not approve of the ways of the father’s pastoral college friends so he let them go. The mother’s hair salon colleagues wondered if she was okay. Each had poor conflict management skills and their relationship issues spilled over into the rest of their lives.

[51] Despite their troubles, they took their vows seriously. They wanted children. Sadly, the couple were devastated by a miscarriage in February 2018. They grieved. They quit their jobs and decided to head to Europe for a year. First, they drove to Ontario to spend a few weeks with the father’s parents. They left on their European trip October 1, 2018. The mother was an experienced traveler, having lived in Sweden to attend a Bible college. The father was homesick and anxious. So, they returned to Canada in December 2018. They moved to Kingston in January 2019 for a fresh start and to be closer to the father’s parents in a small town. Their battles continued.

[52] They worked hard on their relationship and their fears. They lived in a small, “crappy” apartment. They conceived their daughter in […] 2019. They continued to have marital and personal problems. They sought out various counselling options, including their church. A pattern ensued where they would argue, then work it out. Both now claim the other was emotionally abusive and controlling. Both are stubborn. I find their relationship was persistently problematic. I accept the mother’s evidence that at times the father was a challenge to live with. He did not dispute his role in their disagreements. I find they were both unyielding in their positions and some of their arguments went on for hours. They were a bad match despite good intentions to build a solid marriage.

[53] They undertook more counselling through their church. The father discussed Lolicon Hentai material. The church obtained a legal opinion. The result was he signed a contract with the church stating that he would not work with any children in the church. The mother supported him. They were both upset at that time by the church’s concern that the father could be a risk to a child.

[54] In August 2020, the mother, then pregnant, confided to her aunt that the father was accessing pornography. The mother packed a suitcase and planned to leave him. She did not. The father returned, used a spare key and let himself in. I find he did not break the door down. The police came. The police left. The parties chose to give their marriage another chance. They had more counselling through their church and once with a local marriage counsellor. They never returned to the counsellor.

[55] Their child was born on […], 2020. Their marriage went well for a short time after that. Both parties described this as a happy time period.

[56] The mother assumed more of the baby care. I accept the mother’s evidence that the father was nervous of childcare. I find he relied upon the mother at times. She gave every indication to him that she agreed with their parenting plan at that time. He states the reason was his inexperience with babies. She states it was also due to his fears. I find they were both cautious and their daughter’s safety was always their priority. Their daughter was precious to them. I accept his evidence that he rarely bathed the child because he did not want to be naked with the child. The mother bathed naked with the child. There is nothing wrong with this. She loved being a mother. She still does, I find. The father explained that she was on maternity leave and he was working to support the family. The child was born during the pandemic in […] 2020, and jobs, especially in the service sector, were impacted. I find the father shared the parental duties in the past as he alleged, including that the mother did more of the infant child care.

[57] Their relationship became quite rocky again. They blamed each other for various issues. In June 2021, the child fell from her high chair. I find the child fell to the floor but was not injured. Both parents were nearby. This was very frightening to both parents, and I find nothing turns on this incident with respect to the parenting order I am making. I find it was an accident.

[58] The mother found the father demanding and felt trapped. She realized she wished to exit the marriage.

[59] They discussed separation. As noted in the mother’s pleadings and her evidence, the father clearly opposed changing the child’s residence to Calgary.

[60] The parties agreed she would travel with the child to Calgary to visit her parents. The father would join them shortly thereafter. They were still having problems. Return flights for both parents and the child were booked for August 11, 2021.

[61] The father was shocked when he arrived at the airport on August 4, 2021. The mother told him by phone she wanted a divorce. His father-in-law met him at the airport and escorted him to a hotel. They talked as a family group about reconciling the next day. The pattern had always been reconciliation after conflict. They remained separated.

[62] Contemporaneously, the parties exchanged many communications which I have reviewed. For example, on August 6, 2021, the mother texted the father asking him to allow her to stay in Calgary with the child “for now” and said it was not just for the child or herself but also so she could help her grandmother. She wrote that they could perhaps do counselling online. She wrote: “something will be worked out.”

[63] According to the Alberta Child Protection notes at Caselines B2626, the mother made police reports August 4th, 2021 about a video she believed depicted inappropriate sexual conduct between the father and the child. Authorities disagreed with her interpretation. The father was not aware the mother had filed reports with police and child protection authorities until disclosed in the litigation.

[64] The mother kept their child in Alberta, contrary to their agreement to return to Ontario. The father returned to Ontario August 6, 2021. He texted the mother that he could not afford to stay at the hotel any longer. She resisted access but once lawyers got involved, video calls were arranged.

[65] The mother has remained in Calgary with the child.

[66] The father has been trying to secure the return of the child to the Kingston area since that time.

[67] Both parents want to have the child live near them and near their extended families. Litigation started quickly. Some contact was sorted out. The father has remained committed in his quest for the court to return the child to the Kingston area. The mother has remained steadfast in her quest to have the child live with her in Calgary. Almost three years have gone by. Neither parent tried to stall. The proceeding delay was partly systemic given the post-pandemic backlog of cases. The matter was also delayed for the father to obtain a sexual behaviours assessment and then again, when the key medical witness suddenly died. This resulted in more delay. A second sexual behaviours assessment of the father was undertaken. The trial was rescheduled.

[68] The mother repeatedly asserts she wishes the father to have a positive and safe relationship with their child. I find many examples of her thoughtful, kind gestures. For example, she facilitated 166 video calls prior to a court order. She has facilitated some in-person contact pursuant to court orders. She offered to help the father find a place to stay for in-person contact in Calgary and with help from her family, has contributed to his travel expenses to visit the child, as agreed under a consent order. There is considerable evidence of her clear intention to support the father/child relationship on a supervised basis. Despite this, I also find she limits his relationship with the child when she disagrees with him.

[69] The father believes the mother is hindering his relationship with the child. He is of the opinion that she is manipulating the system with “dirty tricks” to gain tactical advantage. He refers to her “kidnapping” their daughter. This is incorrect. I find she did not kidnap the child. I also find as a fact that the mother overheld the child, without his consent. This overholding escalated the conflict.

[70] The mother sent the father an email dated August 14, 2021 which he interpreted as a veiled threat to take away the child unless he agreed with her. He labels this as proof of her plan to alienate the child from him. The email set out her belief that the child was at risk of sexual interference by the father. She explained at trial that the email was an emotional response, acknowledged the tone, apologized and said that she did not have legal advice when she wrote him. Having reviewed it and heard their testimony, I find it was an inappropriate warning to the father that she would disclose to the child personal adult matters as she grew up. The mother was well aware of the father’s fears, and feelings of guilt, shame and embarrassment. He was in a very vulnerable space and powerless because she was retaining the child. I find her email was a misguided tool to pressure him into agreeing she could keep the child in Calgary. I do not find it to be evidence of a master alienation plan.

[71] Both claim the other is controlling, abusive and not to be trusted. I find they both try to exert control. Both are highly opinionated.

[72] The mother’s initial court documents allege that the father was an acute risk to their child’s safety by sowing the “seeds of priming behaviour”. She gave examples of bouncing conduct on his lap which she felt was suspect. The evidence does not support a finding of any sexual abuse priming. She said he blew air in the child’s face and he sang an inappropriate song. I find he sang an immature song. I accept his evidence that a social worker told him to stop singing it and he did.

[73] The mother denies calling the father a pedophile. She has, however, accused him of sexually abusing their child. The mother believes the father is addicted to pornography, and that the child is at risk in the future of sexual abuse by the father. She claims he is controlling. Her pleadings in August 2021 state she told her parents he was addicted to child pornography. Her great-aunt testified that the mother told her, on August 4, 2021, that the father persistently used child pornography.

[74] On the evidence, I find the father was not addicted to child pornography in 2021 or ever. I also find he is not addicted to pornography. He denies telling the mother he was addicted to child pornography but admits saying he was addicted to pornography. I find, on the evidence, that his belief that he was addicted to pornography is incorrect.

[75] Contemporaneously with separation, the mother reported her concerns to child protection agencies and police in Ontario and in Alberta. Parents suspecting abuse should indeed make reports. The timing and circumstances of her reports troubled the father. The Alberta risk assessment described the mother being concerned with religious abuse and manipulation. She reported she had been pressured quickly into marriage. This part of the background she provided to them differed from the balance of her evidence and was not clarified or pursued at trial. I do not find the father subjected her to religious abuse.

[76] Upon separation, the mother submitted to authorities a historical video she had taken of the father bouncing the child on his lap and holding the baby by her hips. That video was assessed by two police departments and by two child protection authorities. She offered up a computer to the police to search for child pornography but she said it had been “fried” and not accessible.

[77] No charges were laid. I am mindful that just because a parent is not criminally charged with an offense is not in itself a determination. There is a lower standard of reasonable and probable grounds to lay charges, and a higher standard of proof of reasonable doubt for criminal trials.

[78] Appropriate authorities investigated each incident, historical and current. Two different child protection agencies in two provinces have not verified her concerns on two separate occasions. The medical records of her second reported incident note that the mother reported historical information that had already been investigated. The report of the Alberta Child Protection authorities dated September 23, 2022 concluded that after consideration of the “interviews, collateral contacts and consultations, there is no information gathered to suggest the child has been sexually abused” by the father. As well, the medical examination of the child did not support the mother’s allegation.

[79] The Alberta government safety assessment records, found at Caselines M2607, noted the child appeared to be happy and healthy, and observed that the child had a healthy attachment with the mother. Other professionals in the process described the mother as appropriate and co-operative. Suffice it to say, the mother’s concerns were taken seriously and she presented well in all of the circumstances. The note closing the file references a consult with the Team Lead, Ms. B. Hyland, who approved closing the file. The note states: “[T]here is no information suggesting [the child] is at risk at this time. Mother very in tune with [the child’s] behaviours and has taken appropriate steps to complete exams in the past when she felt it was necessary”. They gave her a long list of resources she could access.

[80] In the summer of 2022, the father had in person parenting time in Calgary. The mother advised authorities she found a short black hair in the child’s labia after a visit with the father. At trial, she stated she first texted her friends about it. While many texts were included in the evidence, I could not find a reference to these texts. There is no evidence why she texted her friends or if they were somehow relevant to an investigation (such as being police, social workers or medical workers). Then the mother took the child to the hospital. She suspected the father sexually abused the child. The child was medically examined. The grandmother entertained the child while the mother spoke with hospital personnel. I find the aspect of bringing the grandmother was child focused to minimize upset for an invasive procedure. The complaint was investigated. Abuse was not verified.

[81] The father denies ever abusing the child.

[82] The mother described worrisome behaviours exhibited by the child: sexualized conduct, such as pinching her nipples, slapping her crotch, wearing double underwear or pyjamas, bizarre licking behaviour, smearing feces and deliberately urinating on the bed on some occasions. She connects the behaviour to the father and his visits. She said the child is still not completely toilet trained. The grandmother witnessed some dirty laundry in support of the toileting allegations. The feces smearing occurred in October 2022, after the Alberta child protection authorities investigated. The mother stated she did not tell the father about it at the time.

[83] The Alberta Children’s Services (“ACS”) team records are very detailed. The records state that the mother said the child could string 3-4 word sentences together. In July 2022, the case notes described the child as one year old and non-verbal. The worker asked the child a few questions to gauge her vocabulary skills. On October 6, 2022, just a few months later, the mother sent an email to the social worker/risk assessor, Josie Gormely, titled “DaDa hurt me”. The mother wrote:

I asked her [the child] if she wanted to see her dada and she said no, Dada hurt me. She [the child] repeated it 3 or 4 times. It sits oddly with me so I wanted to let you [ACS] know”.

[84] The social worker never heard the child make the statement. This is at odds with the records of ACS regarding the child’s language skills, but it was about three months after they interviewed the child. I realize that young children are often shy around adults, so this is not determinative. Despite a massive amount of affidavit and other documentary evidence including many historical, less relevant details, the mother did not include this disclosure by the child in her testimony or court material. When she was asked about her contacting child protection authorities, she failed to mention this.

[85] Since the fall of 2022, there is no evidence of professional consultation to address the distressing behaviours the mother noted. It is unclear if all of these behaviours continue. The child spends considerable time in the public eye at church services, a Bible group, with the mother’s group of friends, private home day care, supervised contact, and now at Montessori school. None of the child care providers corroborated this behaviour. The child protection worker and hospital staff did not mention anything odd when they observed the child.

[86] The mother’s pastor testified he regularly observes the child at church in the mother’s care. He described the child as well socialized. He did not testify about any unusual behaviour. The medical records of the child’s family doctor were filed, and do not indicate behaviour concerns or a request for referral to address this. The home day care provider exchanged emails with the mother about potty training strategies on July 13, 2023, yet there was no mention of concerning behaviours.

[87] The father testified he does not have similar behavioural issues with the child as the mother has experienced. He has not seen the child in person since the summer of 2023, but he regularly sees the child by video. He said in the past, the child pinched her crotch and he redirected her not to do it.

[88] Almost all of the evidence in support of the mother’s sexual abuse allegations came through her observations and filter. Her supporting witnesses were asked by the father’s counsel to describe any personal observations of the father’s behaviour they thought were inappropriate.

[89] A great-aunt and sometime caregiver of the child testified that on one occasion, the child heard a man’s voice, was terrified, and jumped into her arms. The father was not present. The man’s voice was not the father but someone else at the door. I do not draw a negative conclusion about the father from this evidence.

[90] The great-grandmother of the child testified she had occasions to observe the father from her window during exchanges. She described him as defensive and abrupt. She noted the father’s “angry look in [his] eyes when the child was not co-operating on the phone”. She also recounted a behaviour incident. Prior to the birth of the child, at a dinner hosted in her home, the father chose to stay with the women after dinner instead of migrating to the basement with the men to watch sports. He stayed close to the mother. No one apparently spoke to him about this. The maternal great-grandmother said the father “was going to be a minister but seemed to be afraid of men”. I draw no conclusions about the care of this child by the father on her evidence. The father, a previous victim of sexual harm, unmedicated and suffering from social anxiety, did not want to go to a basement with some men. It is admitted the mother was a huge social support for him.

[91] Each party called a pastor to testify. I find both are genuine and caring and would offer pastoral and other support to the child and family. The father’s pastor, […], hosted him while he visited in Calgary. He had positive things to say about the father. He also knew the mother and he had nothing negative to say about her.

[92] The paternal grandmother was cross examined on her affidavit. She was not asked about the worrisome child behaviours, even though she was a supervisor of visits and a frequent guest at the video calls.

[93] I find there is no evidence the worrisome child behaviours as described by the mother will continue in the father’s care. If either parent has ongoing concerns, they should advise each other and make a plan to get professional help for their daughter.

Medical Evidence

[94] Throughout the couple’s marriage, they did not know the father had a medical condition except ADHD. Despite plenty of counselling, it does not seem they sought a medical opinion.

[95] In the course of these proceedings, two sexual behaviour assessments were conducted upon the father by two different psychiatrists. Their methodology, credentials and expertise were not challenged.

[96] Dr. Paul Fedoroff prepared a sexual behaviours assessment report dated January 5, 2022. He conducted phallometric testing. Unfortunately, Dr. Fedoroff died suddenly before the first scheduled trial.

[97] A second sexual behaviours assessment report dated February 15, 2024 was prepared by Dr. Julian Gojer. He is a forensic psychiatrist, the acting clinical director of the integrated forensic program at the Royal Ottawa Hospital, a psychiatry professor and he is also a lawyer. His credentials were admitted. I find Dr. Gojer to be a credible and unbiased expert witness in this case. He was asked to assess any risk the father may pose to the child.

[98] I accept Dr. Gojer’s opinion and adopt the contents of his report. He reviewed the report of Dr. Fedoroff but also conducted his own interviews to reach his own conclusions. He was cross examined upon his sexual behaviours assessment report. His opinion was not successfully challenged.

[99] Dr. Gojer concluded the father does not pose a risk of sexual harm to the child. Further, he did not have concerns about a risk of violence by the father. His review of Dr. Fedoroff's findings supported his conclusion that the father is not a risk to children. Dr. Gojer wrote that the father “comes across as an honest and sincere young man who approaches life from a moralistic perspective guided by his religious beliefs. He does not endorse harming any child and recognizes that any sexual contact with children is harmful”.

[100] Dr. Gojer noted the father has been able to correct a distorted thought process about Lolicon Hentai anime as not being images of real children. He accepted that the father had not looked at child pornography in any form since 2019.

[101] The opinion of Dr. Gojer was:

[M]y review of Dr. Federoff's [sic] findings support a conclusion that [the father] is not a risk to children. He has a strong moral compunction not to hurt or harm children and he cares for and wishes to have custody an [sic] access to his daughter, who he loves dearly. There is no credible information that he has sexually abused his daughter. There is no history of any hands-on sexual offending against children. He has no serious substance use disorder, personality disorder or major mental disorder. He has unresolved psychological distress related to childhood sexual abuse and this may have been a contributing factor to his use of pornography and later child pornography.

[102] Dr. Fedoroff’s report includes the following at p. 24:

He reports being sexually abused himself and had a strict religious upbringing in which he became convinced that masturbation is “sinful.” In addition, he had a condition termed phimosis that caused him to experience pain when he first began sexual intercourse with his wife.

In addition to these problems, he experienced what has been described as “POCD.” He provides an accurate description of the condition when he says, “I do not have pedophilia but I have a fear of having pedophilia.” Unlike pedophilia, in which an individual is sexually aroused by the idea or act of having sex with a child, people with POCD are troubled by the idea that they may have pedophilia. By analogy, some people with obsessive compulsive disorder are troubled by thoughts that they may have a contagious disease and will infect others even though there is no evidence they have an infection. Sometimes people with OCD will become “obsessed” with reading about disease and looking at pictures of people with the disease.

[103] Both Dr. Fedoroff’s and Dr. Gojer’s opinions were supported by the results of phallometric testing: the father was not sexually aroused by children.

[104] Both psychiatrists recommended the father continue therapy. The father has done so.

[105] There was no parent capacity assessment before the court. The mother was not assessed nor was this requested. To be clear, I make no adverse inference. There is no allegation she suffers from any psychiatric problems.

[106] Without a doubt, the father is distressed by the mother’s allegations he poses a sexual risk to their child and that his parenting should be restricted. Looking at the mother’s case through a trauma informed lens, I am mindful that the father must also be responsive to her personal history as a victim of sexual assault. I find she is exceptionally sensitive to issues surrounding the child’s safety and the father’s trustworthiness. I am satisfied that the mother’s concerns are legitimate to her. In the social context of her own experience with him, he is a man who had an undiagnosed and untreated mental illness while they were together. She has had minimal contact with him since separation. Post separation contact with him has been overridden by the litigation between them.

Best Interests of the Child

[107] Best interests are determined from the perspective of the child. It is hard to pinpoint every reflection, but in determining this child’s best interests, I have carefully considered the legislation, evidence, case law, particularly the cases submitted on behalf of each party and the submissions.

[108] In assessing best interests, I have specifically considered the factors listed in the Act, s. 16(2) to meet the primary consideration of the child’s physical, emotional, and psychological safety, security and well-being, including any relevant violence and abuse. None of the factors in the non-exhaustive list of factors in subsection 16(3) of the Act are any more important than any other. Rather, as is often stated in cases, the considerations are unlimited and individualized for a child’s needs. The list is only a guide or checklist for the court of a number of customary factors that the court should ordinarily consider when determining what is in the best interests of a child.

[109] Neither parent disputes the love and affection that they each have for the child. I find they both have the parenting capacity to manage day to day parenting chores. The father has been openly complimentary about some of the mother’s skills.

[110] Neither parent claims that they intend to erase the other from the child’s life. Both parents promise to support the relationship between the child and the other parent. I find that the father will support the mother’s relationship with the child without reservation. The mother has supported them in many ways during supervised or restricted parenting conditions. For example, she provided an excellent and detailed list of the child’s favorite foods so he could bring snacks/food she liked to the supervised parenting visit.

[111] I have considered the nature and strength of the child’s relationship with each parent, grandparents, and others who play an important role in the child’s life. Both parties filed numerous affidavits from family, and each from a pastor, praising their reasonableness and love for their child.

[112] To a limited extent, due to her age, I have considered the views of the child. The Office of the Children’s Lawyer declined to participate. That is not unusual for such a young child, particularly with child protection and criminal investigations underway.

[113] The notes of the ACS corroborate the mother’s evidence that the child seemed happy, healthy and attached. The child is surrounded by grandparents and extended family members who love and support her in Calgary. They also are clearly of the view the father is a risk. Some testified about their witnessed observations of the child and her interaction with the father during the video contact. It was unclear why they were observing the father’s video parenting time.

[114] I find the child knows the paternal grandmother and there is no complaint from the child about her. The mother has modest tension with her mother-in-law now and historically but has no specific complaint that concerns me. In cross examination, the mother-in-law answered questions about repairs to her home to my satisfaction. The mother raised concerns her in-laws used corporal punishment on the father during his childhood. I am satisfied that neither parent will permit or promote such outdated parenting techniques. When asked, the paternal grandmother confirmed they would not use any corporal punishment.

[115] By all accounts, the mother is devoted to their child with a strong in-person relationship. Similarly, by all accounts, the father wishes the same chance. The father has done a good job of developing a family bond given the distance and limitations of his contact. I find the nature and strength of his relationship with the child is good given the circumstances, restrictions, and distance. He described a close relationship with his child, even despite the restrictions. I find it was reasonable for the father to attend a college program over the past three years and is not a signal of disinterest. School commitments, coupled with the expense, interfered with his ability to have more frequent face to face parenting time in Calgary. His positive relationship with the child is corroborated by his mother, his pastor and the professional access supervisor. The access supervisor also noted the father responded positively when the child asked for her mother in a visit.

[116] In reaching conclusions about important relationships for the child, in the facts of this case, I would be remiss if I did not comment about the child’s relationship with God. The parents agree about core issues such as religion and education. Both share an intense Christian faith and they both wish their child to develop and enjoy a similar deep relationship with God. In fact, the mother described an occasion when that the child wanted another cat. The mother said no. The child prayed for a kitten and soon after a kitten was mewing at the door. The father looked pleased, not surprised, by this evidence and both parents seemed happy that their child was able to demonstrate her faith. [The child did get to keep the cat.]

[117] Parenting cases are fact driven, requiring an evaluation of short-term and long-term plans for the future care of a child. The Act specifically requires the court to consider the plans for the child’s care and the ability and willingness of each person to care for and meet the needs of the child. The pleadings, affidavits and s. 35.1 affidavits outlining parenting plans are valuable tools to measure a parent’s ability to identify, assess, execute and adapt a strategy to meet the needs of their child.

[118] The Family Law Rules mandate that parties making parenting claims file Form 35.1, a detailed affidavit describing the history and plan. Essentially it illustrates how the child will live. The rules require those plans to be updated before trial. The father did not do so before trial. The mother’s counsel correctly complained about this, along with his failure to file an updated financial statement. Neither parent filed a draft order as required by the Rules until requested by me through the Trial Co-ordinator.

[119] Here, the menu offered by each parent in their draft orders is limited. Both plans as presented in the S. 35.1 affidavit and in other evidence have flaws. Plainly stated, their mutual choice to require their child to commute between provinces to spend blocks of time with a parent presents a tough childhood for this young girl. Both plans are vague, and without financial reality. There is serious uncertainty for both parents in their present circumstances but this is not an interim order with a “wait and see” result. I am not satisfied that an order requiring this child to spend large periods of uninterrupted time with the other parent will be best, yet that is the plan of both parents. The best order available is only as good as the evidence they present. Comparing two plans to determine best interests implies there is a good option.

[120] Best interests must be looked at from the vantage point of the child, not the parents or their extended family. Both parents created an artificial barrier to the child’s best interests through geography. Ideally, I find her best interests are met with an arrangement where they would share time with their child on a regular and predictable schedule, commensurate to her level of child development. That is not an option for me to choose on behalf of their daughter.

[121] Neither parent has a job, a partner or other reason that prevents them from moving. Their choice to prefer a city near their own parents and extended families does not override their child’s need to develop a fluid and frequent relationship with her own two parents and to have friends in her community that she continues to see outside of school periods. They are both asking a lot from this child. Neither of their families gave any indication that their personal or financial support of their child and grandchild was conditional upon geography. While long distance parenting can work, it certainly has not worked well here.

[122] I find the mother’s reservations will negatively impact the development of the child’s relationship with the father.

[123] For example, she testified the child has a high level of fear of the father and resists the visits. She stated the child, at age three, wants to use phone filters where she blocks him from seeing her or their home. She described the child wanting to hide from the father during video contact. She agreed phone contact was not ideal for their child. She stated the child only wants to see the father, not the paternal grandmother. She said she is careful not to speak negatively about the father in front of the child and disputes the child’s resistance is coming from her. She conceded she told the child “ I know you don’t want to go to your dad’s...” She confirmed she wants the child to have a positive time with the father. She explained that she is validating the child’s feelings when she says something like that so the child learns she can tell the mother anything. She disputes that it alienates the child.

[124] Another reason stated for supervision was to have another adult around to support the father. As one example, in her cross examination, she mentioned the father’s severe mental health issues and anxiety:

I wonder how that would limit [child], she’s pretty extroverted she loves people, umm and she picks up her cues from trusted adults and if [father] in any sort of anxiety attack or having tics with his OCD, that might be confusing for her and I think it’s very valuable to have another adult present to help deflect her attention away from those behaviours so that she can, umm have a more positive experience and [father] can deal with them without also having to deal with her.

[125] No other witness mentioned any tics. That includes two psychiatrists assessing him, his counsellor, pastoral contacts, the professional access supervisor, and various family members, including her own. It was not previously raised in material that I could find. The father appeared surprised. I did not observe him exhibit any tics in the trial. If this is a symptom, it seems to be new. Even if it had been a previous issue, she did not recognize that his medical treatment controlled it.

[126] I find the mother has been narrow in her interpretation of the orders and at times she overstepped. For example, at trial, the mother testified the father had to be redirected by the access supervisor during some visits from touching the child’s bum or crotch. The implication is he was doing something inappropriate. Detailed notes of a professional access supervisor, Rodica Bajal, were tendered as evidence by the mother. This included the time frame of October 2022, around the time the mother has testified about the child’s fear of the father and worrisome behaviour. The evidence of the father, supported by the supervisor’s notes, conflicts with the evidence of the mother. I accept the evidence of the father about the positive visits. The notes confirm that when the child was in the care of the father, the child did not exhibit the worrisome behaviour the mother described. In fact, on the October 28, 2022 visit, the supervisor wrote: “Dad carried [the child] to the playroom, where he wiped [the child’s] bum in Supervisor’s full view. Supervisor looked attentively and there was no redness, swelling or any other signs of self-manipulation in [the child’s] genital area.”

[127] The notes of Ms. Bajal confirm both parents were able to interact positively around the child. The father allowed the mother to guide the child towards a positive transition. The father was patient, spoke warmly to the child and engaged and interacted with her appropriately. He asked permission before even taking any photos. On that point, the supervisor contacted the mother who said the supervisor could take the pictures and send them to the mother, who would seek advice about whether to share them with the father. Ms. Bajal noted the father responded appropriately when the child sought her mother. He also responded appropriately when the child cried for a specific stuffed animal that was not at the visit.

[128] The supervisor did instruct the father a couple of times to hold the child without touching her crotch or bum. The mother was concerned about this. The terms of engagement set out to the supervisor were to make sure she could always see the father’s hands. This was not a requirement of an order. It was never clarified who set those rules. The supervisor sent the mother about 50 pictures from a visit. During the next visit, the supervisor received a text from the mother in response to one photo that the supervisor had taken, in which the mother said the father’s hand touched the child’s crotch area. The supervisor showed the mother’s text to the father, which said:

Let's clarify some clean-cut supervision rules:

Never have [child] sitting on your lap, whether you are sitting on something or you are cross-legged. The closest to that is when she is sitting sideways on one of your legs, right above your knee. Other than that, have her sit on the chair, the floor, the couch, etc. When you draw her close to you, do not grab her by the bum. Guide her closer to you by having your hand on her back, instead.

Never touch [child] with your hand above her knees or below her waist, unless you are changing her diaper, in full view of Supervisor. [Child] can only sit on your arm when you carry or hold her, but not on your hand.

[129] The supervisor directed the father to hold the child above her waist. It was noted on another visit that he was correcting himself and holding the child as the supervisor directed him. He was co-operative and compliant.

[130] There was no suggestion made that his holding the child was for any sexual purpose. While I find the restrictive parameters of the supervised visits were invasive, it nonetheless shows the father’s commitment to co-operation. The order does not require that photos had to be approved of by the mother. I find it poor judgement of the mother to interfere during a contact period. At the very least, it distracted the supervisor from supervising the father.

[131] I have carefully considered the evidence about the impact of family violence in their relationship as required under sections 16(3)(j) and 16(4) of the Act. Both parties raised issues of physical force and excessive arguments. Any violence concerns the Court, even if objectively modest.

[132] I find a pattern where the parties argued almost daily. Sometimes they fought. I accept the mother’s lawyer’s description of the relationship as “tumultuous with some physical altercations”. I find there is no family violence pattern to render it inappropriate for them to communicate about their child.

[133] I do not find sexual violence between the parents. The evidence is that in the early part of the marriage, the mother was sexually demanding and later, according to the mother’s material, the father was sexually demanding. This background, as the mother saw it, is detailed in the mother’s material and in her notes to the ACS risk assessment. The parties provided significant detail about their sex lives, including a recount of their wedding night. I find it is enough to say they shared passion and had disagreements. I accept the father’s evidence that they argued frequently about sex. As newlyweds with very limited experience, they did not know he suffered from a physical condition called phimosis, causing him pain during intercourse. Corroborating his version is that he underwent surgery to correct it. He explained that this resulted in him being somewhat disinterested in sex. The mother, on the other hand, was highly interested in sex and they would argue. She would say it was his Christian duty as her husband to have sex with her. Later in their marriage, they argued about other sexual topics. Since separation, their sexual relationship ended, with no evidence of ongoing sexual demands by either of them.

[134] The mother raised a concern of violence during their European trip. During an argument, I find the father threw a study Bible towards the mother one night in the fall of 2018, when the mother said she wanted to sleep alone in the bathtub. This was a couple of years before the child was born. I accept his evidence that when he threw it, he told her to read it. It was dark. I find he did not intend to hurt her. I find she dodged the Bible and was not injured. The father testified it was wrong and accepted responsibility for it. On another occasion, I find he slapped her. He apologized for this also.

[135] I find the mother pinched the father’s arm hard in anger while going through a coffee drive-thru because he offered the attendant the wrong denomination of change. She admitted this and apologized. The father recounted several incidents in his material where he was on the receiving end of her anger and physical force.

[136] I have considered all events of violence they described. The mother said their marriage was not perfect and conceded some unwanted physical contact. For example, she admitted she pinched him and another time kicked him off of her. His evidence included numerous examples where the mother was the aggressor.

[137] She said he was abusive and controlling toward her, would trap her in the car while arguing, after long drives to his parents’ home, and he criticized her. She told the ACS authorities this went on for 3-4 hours, a time frame that is longer than her other descriptions. It was unclear if this happened once or often. The father remembered the driving incident. He disagreed with the mother’s version of the length of the drive. He said he did not let her out of the car when she wanted to leave because it was a dark, rural area and unsafe for her to leave the car since she was very pregnant at the time. Neither said if they needed to stop for gas or a bathroom break during the intense drive, if it was 4 hours.

[138] Their biggest dispute related to a quarrel over who took which car one day. I find the versions are not mutually exclusive and demonstrate they are both unreasonable at times and perpetrators of discord. The father described:

[W]hile I was trying to get the keys, she held [the child] between me, almost as a shield. [The mother] was not concerned with [the child’s] safety, only for getting her way. After this, she went to the bedroom, and I followed. She put our daughter on the bed, and we continued to struggle over the keys. When I finally got the keys away from her, she punched me in the face and stomach. She also pushed me and scratched me on the arm.

[139] Her version is:

[The father] sometimes became physical. On one (1) occasion, he chased me to our bed, while I was holding [the child] and our car keys. He wrestled me onto the bed, held me down with his body weight, and ripped the keys from my hand behind my back, with enough force to break my keychain. He had no regard for [the child’s] safety at that time.

[140] She admits she used force on him.

[141] I find they should have both refrained from using any force and walked away. I find them equally at fault. I find this to be a mutual altercation. Since then, I find, they have both developed an awareness of the need to reduce conflict, especially around their child. I am satisfied neither parent poses a risk of physical violence to the other or their child. Both parents have undertaken parenting courses and educated themselves about the consequences of high conflict parenting. Although they did not reach agreement, they did try to access mediation resources. I find despite their intense conflicts, they have demonstrated they are able to cooperate about major decisions.

Law

[142] The standard of proof in this trial is the ordinary civil standard of a balance of probabilities. Finding that a fact is proven on a balance of probabilities means that it is more likely than not to have occurred. It means that it is probable – i.e., the probability that some event happens is more than 50%.

[143] The burden of proof rests upon the party asserting a fact. There are no legal presumptions in parenting cases. The pleadings form the menu for the court’s consideration. Claims are a reflection of parental judgment and the child’s reality. A Judge weighs competing plans based on properly tendered evidence.

[144] The mother’s claim was framed as a relocation case under the Act. She asked to dispense with the notice provisions based on risk of family violence.

[145] Amendments to section 16.92 of the Act provide a new framework for relocation cases. A mandatory notice provision was added, a burden of proof was assigned and the best interests factors were broadened. S. 16.92(2) prohibits the Court from considering whether the relocating parent would move without the child. That prohibition only applies to the relocating parent and not the parent left behind. It was agreed that the mother did not give notice of relocation as now identified in the statutory amendments. I find none was required. The parties were not separated at the time of the Calgary trip. I draw no adverse inference by the mother’s failure to provide statutory notice. There is no final order. This is not a relocation case per se. Ultimately, the best interests of the child still govern.

[146] The evidence before me is that neither parent plans to relocate. I am mindful that moving has a significant impact on the child’s relationship with her parents. I am mindful of the double bind moving parents, or parents left behind, perceive. This decision is determined on the evidence before me and not what they might choose to do if their plan does not prevail. I plainly stated I would not be ordering either parent to move.

[147] Essentially, during a planned family trip, the mother unilaterally changed the child’s residence from Ontario to her new residence in Alberta. The parents were not separated when they went on their holiday to Calgary. Two broke parents with chronic relationship issues wanted their baby to live near them. They had a history living in both places and have shifted provinces for various reasons including a plan to travel/live abroad for a year (although cut short), all within about 5 years. Both wanted help from family. The result is a significant impact on the father’s ability to have a relationship with the child. The flip side is the father does not unilaterally retain the child in Ontario just because it is where they last lived.

[148] The mother knew the father opposed changing the child's residence to Alberta. That was in her pleadings and evidence. She went to visit her family with the child, with a plan for the father to join them and an agreement to return to Ontario. While in Calgary, her evidence is she essentially decided to separate. She told the child protection authorities she had been influenced by a sermon on divorce. She described that it woke her up and she realized they should separate.

[149] I find she hoped to work out the marriage as they had done many times before but definitely set herself up to keep the child in Alberta. Though not mentioned in the evidence besides the child protection records reference, I find it is more likely than not a sermon focused her attention. I find it was reasonable for her to conclude their ongoing spats were adverse to the child. I find she thought about staying in Calgary before she left Ontario. Why wouldn’t she? The evidence is they had discussed separation and she wanted to move home to Calgary. The problem was not her decision so much as the way she executed it. The separation started badly and has seemingly worsened.

[150] Under the relocation provisions, the parent wanting to change residence needs to detail a plan. It does not have to be perfect but needs to be comprehensive. This is crucial in a relocation or a change of residence case. Where and how a child lives is the crux of every parenting case, regardless of geography.

[151] Regardless of a parental residence, how will each parent support and encourage the child’s relationship with the long-distance parent? The practicalities of the plans such as cost must be carefully considered. Regardless of who pays what and which parent delivers the child, the child is the traveler. So, looking at each option before me, I need to consider if the child is a good traveler. What would the travel arrangements be? There was very little evidence about this. Given the child’s tender age, she would require a travel guardian for many years which will double travel costs. Presently, the father’s plan to live with his parents places him in a rural area. Where would the mother stay? She testified she plans to rent a car and stay in a hotel for the May visit, thus increasing costs.

[152] The mother’s family members helped financially in the past and paid some air fare in the past. The temporary consent Court order required that contribution. There is no evidence that it would continue long term. It was not addressed in any testimony. The father previously stayed with a pastor friend and his family during a visit in Calgary. That pastor testified, but no one asked him if he would host the father long term for holiday blocks of visiting for the next many years. Is this a long-term solution for visits? There was no evidence. Most of the blocks of proposed visits are during the summer, holidays, March Break and Christmas. Asking anyone to host a parent for years during these peak family times should have been considered before trial. It is clear there is limited money for alternate accommodation. In addition to general costs of living and travel, the mother testified she owed her grandmother $160,000 for legal fees incurred before the trial. The father’s legal costs were not quantified.

[153] The plans are not helpful.

[154] Another issue of concern raised was status quo. The fact is the child has lived in Calgary with her mother since she was 10 months old. Temporary Orders allowed the child to reside in Calgary on a without prejudice basis. I agree with the mother that notwithstanding a “without prejudice” Order being made, the passage of time in the care of a person, even if on a “without prejudice” basis, can effectively create a new status for the child. However, I do not agree that, in the circumstances of this case, the status quo has greater weight than other factors.

[155] At law, it is not a status quo where one party imposes a regime. Status quo is found where parties have agreed to an arrangement they assess to be in the best interests of their child. Still, the pattern of time sharing is an important factor for the court to consider. Child development does not stagnate. Courts do not often change interim patterns before testing competing versions of truth because multiple changes of arrangements may result in less stability for a child.

[156] I have now had the opportunity to hear the evidence as tested through cross-examination. Status quo is only one factor in the determination of best interests. I find in this case, status quo is not about geography. There is no finding that either city is better. The concept of status quo must be placed within that context that as a 10-month-old, this child’s status quo rested with the parents, not with a city. The mother undertook more of the parenting tasks of their infant as had been their pattern during the marriage. I find the father’s opportunity to spend more time with the child was impacted by the investigations, and not by any lack of interest.

[157] The mother knew that the father would object to the child remaining with her in Calgary and to being excluded from her care. She introduced an element of self-help in keeping the child. Self-help by a parent is discouraged: Howard v. Howard, 1999 35009 (ON SC), [1999] O.J. No. 3164 (SCJ); Nyari v. Velasco, 2008 ONCJ 272.

[158] At the same time, the mother did not agree the child should reside in the Kingston area. To his credit, the father did not forcibly take the child back. He returned to Ontario and brought an application. He waited while the process found the matter to trial, having not been resolved earlier. He waited while the layers of concern the mother raised were investigated. I find he did not consent or acquiesce to the removal of the child from Ontario.

[159] I rendered the temporary decision to leave the child with the mother in Alberta. The parties had very limited financial resources. The mother went home to her family for help. It was clear the child had to live someplace pending the investigation of various allegations and determination of best interests. The circumstances of the breakdown of the marriage were framed as a crisis. Allegations of domestic violence and sexual abuse dominated the original material of the mother. The evidence was untested and concerning.

[160] Delay is always regrettable in determining where and how children should live. This case was slowed down due to the systemic backlog of cases post-pandemic and the unfortunate death of a key professional witness, Dr. Fedoroff. I am cognizant that the child’s development and attachment to her parents was not influenced by either of these factors. I do not hold the mother or her lawyer in any way responsible for the delay. In fact, I commend them for their co-operation in overcoming some evidentiary concerns to include the report of Dr. Fedoroff.

What Parenting Order is Best

[161] Parenting orders confer the rights and responsibilities for parents to make major decisions for their child. It entrusts the leadership of child rearing. It does not, in and of itself, protect a child or make people reasonable. In joint parenting orders, the parents share the legal authority over the major decision making for the child. Since parents with joint authority make decisions jointly, good communication, trust and similar values are keys to success. A parent with sole decision-making authority has the legal authority to make decisions without approval of the other parent. Usually these decisions concern education, religion and non-emergency health care, both physical and emotional. The contact parent is still a valued member of the parenting team, even if that parent has significant shortcomings and even if the contact is supervised. Parents often disagree about how best interests will be met but typically share the same moral code. The job here is to ascertain this particular child's needs – physical and emotional – and then analyze the capacity of each parent to satisfy those needs and determine how any risks can be safely managed.

[162] These parents agree on most of the big issues. They agree about school, religion and childcare. The mother enrolled the child in a Montessori program three days a week and has a combination of both Montessori and a Bible/church-based education program organized for September 2024. The father had no complaint about it. They have sorted out various post-pandemic issues and despite a few bumps, have worked through concerns about immunizations. Both parents take responsibility for some conflict and agree their child should be sheltered from arguments. Both completed parenting courses and testified in a child focused manner, exhibiting knowledge about modern parenting techniques. They lack interpersonal discussions about day-to-day routines such as bedtime hour, but this can be easily remedied. The father had no significant complaint about the mother’s daily routine or day care. There was no evidence to conclude the father would not support a similar routine if their child resided in his care.

[163] It is accurate that the father did not contact the school or doctor directly as alleged by the mother. I do not interpret this as disinterest but rather, that he has confidence in the information she is supplying. For example, he asked her about the child’s immunization status as opposed to calling the doctor. I see this as a consultation with her, not indifference. Why should a doctor’s office have to speak with him about routine matters when the mother could just tell him?

[164] By all accounts, the mother is devoted to their child with an in-person relationship. Similarly, by all accounts, the father wishes the same chance.

[165] If the child remains in Calgary, I find the child’s relationship with the father will be marginalized. As evidence unfolded that did not support the mother’s position of the child’s risk in the father’s care, through the investigations and the expert assessments, she remained entrenched. Her current position to never allow overnight parenting between the father and child is untenable, given the evidence and the law. I find that if the child lives with the mother in Calgary, the mother will not support overnight parenting time or, until age six, an unsupervised relationship between the father and the child. The father has no control over this.

[166] I find the father requires the support of his medical team and counsellors. He accesses some services in person and some are online. There was no evidence whether he could continue to access Ontario funded medical or counselling services in Alberta. The child’s best interests are served by ensuring the father has proximate access to his treatment providers. This is especially so in the event that more allegations require investigation. The child’s relationship with both parents would be best determined if the court has up-to-date evidence of his health status. Both parties have family doctors and the mother has demonstrated her ability to access medical assistance for the child as she felt was required, including allergy testing. The mother has also accessed counselling for herself as she felt she required and has a pastoral counsellor. There is no evidence of a clinical diagnosis or treatment plan that affects her parenting.

[167] The child is connected to her mother and her extended family. If the child remains in Ontario, and the mother lives in Alberta, the child will not have the daily personal connection with her mother. It would shift to video contact, which could be daily. I have specifically considered this in reaching my decision. There is no doubt it will be somewhat disruptive. The child needs her mother’s help to make the smoothest transition to refocus her in-person parental relationship with the mother to holiday block times plus video parenting, and to have the father’s relationship reframed primarily in person. I find she is very influential over the child and can help this happen.

[168] The uncontradicted evidence is that with the mother’s support, the child transitioned well to the grandmother after not seeing her for a period of four months. She transitions well to change in day care. The mother also established the child can keep a connection with an aunt who sometimes lives in Winnipeg. Unfortunately, after almost three years of long-distance parenting efforts, this child has not flourished the same way in a long-distance parent child relationship with the father. The mother’s testimony is that a long-distance relationship with the child will be workable for a parent, namely the father. I find it is the mother who will be the more successful parent in maintaining a long-distance attachment.

[169] A delay to trial has given me an opportunity to see how the child copes with long-distance parenting. Very little evidence was offered about how the child responds to travel and/or how she would cope with long blocks of time away from her mother. It is clear that a video parenting relationship with the father has been difficult for the child. This is partly due to her age and stage of development such as attention and focus. I accept the mother’s evidence that at times, the child just got bored. However, I find that the mother at times sees the video visits as a chore. This is understandable given the high level of friction between the parties and the frequency. The mother is laser focused and organized in other areas of her parenting. For example, she testified in great detail how she has a set and predictable, child focused bedtime procedure and even uses an alarm on her phone to set the stage for a successful routine. The phone/video contact seemed much more haphazard. It was facilitated but not prioritized. At times the mother would state the child was in a bad mood, for instance, and the video call would be cancelled. At times the child was given the phone and ran around with it, or dropped it, etc. At other times the young child was left to sort out technology issues herself as the mother was driving.

[170] The father described that the mother would sometimes have distractions such as conversations with others going on in the background. There is a time zone difference and the calls were late for the child. He said seven phone calls were rescheduled by the mother because she said the child was “too mad at him” to talk. He felt this encouraged the child to have a negative view of him.

[171] The essence of his case has been to petition the court to return the child to the Kingston/Athens area. He has tried to attach and maintain ties with the child as he reasonably can. His parents have tried to assist him and participate where possible. His contact with the child has been mostly supervised pursuant to a court order. The father has had approximately five in-person contact periods with the child. He has had very frequent video and phone contact but not surprisingly, it has been unsatisfactory. This is in part due to the age and attention span of the child. The father has complained about the mother’s facilitation techniques, allowing this very young child to have control of the phone or to have the contact happen while in the car resulting in frustration as the phone is dropped, etc. Phone and video contact of a toddler do not allow for the same opportunity of attachment that the mother has had.

[172] The mother testified the child transitioned well to a new day care on a couple of occasions. She plans to do so again this fall and to reduce the day care offered by the child’s grandmother and great-aunt. The child is clearly attached to her mother, not to a city.

[173] The mother testified she would contribute to the father's travel costs. She also concedes that she cannot afford the cost of travel. I find that if the mother is the traveler, she will prioritize these expenses. I similarly find the father has no funds to pay for years of travel.

[174] Comparing the two parenting plans, I find the father would better facilitate the mother’s relationship with the child. He had specific ideas for improving video contact such as avoiding distractions, putting the device on a tripod and structuring a predictable time.

[175] Credibility is a function of truthfulness and reliability. When assessing credibility in parenting cases, the judge looks at what the parents did, and not just what they now say they will do. This helps determine reliability. I have had the opportunity to hear both parties, and in reaching my decision, I have considered the credibility of their witnesses, including Dr. Gojer, and family members of the parties.

[176] Both parents were honest in admitting their responsibility in arguments or more volatile interactions. They both expressed some regret.

[177] I found the father to be direct in his testimony. When asked something uncomfortable, he answered truthfully, even when it was be unhelpful to his case. An example was his corroboration about some of the child’s odd touching behaviour alleged by the mother.

[178] Both parents want their child to have a functional childhood. He co-operated with an invasive sexual behaviour assessment. He followed through with treatment. The evidence is he is compliant with taking his anxiety medication. He answered difficult personal questions directly, without hesitation. He did not exaggerate when he had the chance in his testimony and readily admitted some poor choices and problems. He co-operated with authorities when allegations were investigated. He did not resort to self-help. He did not overhold the child. He sought a remedy through the court. His conduct supports his credibility. He was clearly frustrated at times, telephoned police when he thought his contact was being unfairly compromised and raised an issue of contempt. For the most part, though, his claim, plan, story and actions align.

[179] The parties both presented to me as very polite, well spoken, thoughtful and charismatic. Even so, this is a high conflict matter. Just because the parents are polite does not make their conflict less concerning.

[180] I found the mother to be generally truthful but at times, I found her answers were exaggerated or slanted to the edge of truth. There were conflicts between her reports to authorities and her affidavits.

[181] A further example of reliability concern is her evidence that Kingston lacks resources for the child such as a zoo, trampoline park, indoor playground, etc. While it is true that local animal resources cannot compete with the Calgary Zoo, the mother is mistaken about the balance of available resources. The father’s testimony is he planned to take the child to parks and other child centric places. The paternal grandmother mentioned local attractions and specifically identified a petting zoo as a destination. The mother is incorrect about the alleged lack of child focused local resources such as an indoor playground or even a trampoline park. In any event, these are not reasons to choose a child’s residence.

[182] The parents have an unreserved faith in God but have lost faith in each other. They both presented with mutual compassion fatigue. Perhaps this can be repaired after the trial but not without a joint commitment to do so.

Past Conduct

[183] Subject to the provisions related to family violence, as provided in s. 16(5) of the Act, in determining best interests, I have not considered the past conduct of the parents except as I find it is relevant to the exercise of their parenting time, decision-making responsibility or contact. In the circumstances of this case, this includes the allegations of the father’s access to child pornography.

[184] As stated, both parents denounce child pornography. I am satisfied that the father is aware of the risk of harm to the child that such conduct would bring.

[185] There are plenty of cases where allegations have included concerns about a parent viewing other pornography. For example, back in 2007, Justice Perkins held in C.S. v. M.S. (2007), 2007 6240 (ON SC), 37 R.F.L. (6th) 373 (Ont. S.C.), at para. 76:

The mother led some evidence to suggest infidelity and a penchant for viewing pornography by the father, but it was not strong and, in any event, not particularly relevant to his parenting, as the children were made aware of the sexual allegations by the mother, not by the father (except once), and there was no proof he had exposed them to pornography.

[186] In discussing the test for the child’s best interest in the context of a variation of custody order, the Supreme Court of Canada held: “Parental conduct, however meritorious or however reprehensible, does not enter the analysis unless it relates to the ability of the parent to meet the needs of the child”: Gordon v. Goertz, 1996 191 (SCC), [1996] 2 SCR 27, at para. 21.

Supervision

[187] The mother seeks an order that the father’s contact with the child be supervised until age six unless they are in a public place. Her plan permanently prevents overnight parenting time. The authority to make such an order is found in sections 16.1 (5) and (8) of the Act.

[188] At law, the parent seeking supervised access bears the burden of establishing that supervision is necessary. See: Klymenko v. Klymenko, 2020 ONSC 5451; C.S. v. K.M., 2023 ONCJ 106. “Supervision is a great intrusion into the relationship between children and parent, and its continued imposition must be justified”. See: Young v. Hanson, 2019 ONSC 1245, at para. 32 and cases cited therein. Similarly, suspicion of risk concerns, without evidence, is not a proper basis for ordering supervised contact, then called access. See: Tzaras v. Tzaras, 2007 CarswellOnt 8327 (Sup.Ct.).

[189] The mother alleges the child has been sexually abused by the father. As such, she has the burden of proving it on the balance of probabilities. I find she has not met that burden of proof.

[190] However, failing to meet that burden is not the end of the matter. On the evidence, I must still consider if the child is at risk of future sexual harm in the father’s care and even then, if yes, is there an order that can manage the risk that would be in the child’s best interests.

[191] As noted in Barnes v. Parks, 2001 241146 (Ont. C.A.), the court must consider the importance of bonding, attachment and stability in the lives of young children. At the same time, this must be considered within the context of this family’s circumstances to ensure the child’s physical, emotional, and psychological safety, security, and well-being. Having found the evidence does not support a finding of sexual abuse or a risk of future sexual abuse, then should there be a supervision requirement, as insurance, to keep the peace? The answer is no. I do not find an order for supervised parenting time to be in the best interests of this child.

[192] In Stec v. Blair, 2021 ONSC 6212, at paras. 22-24, Fowler Byrne J. reviewed the law related to supervised contact, then called access:

Supervised access is a great intrusion into the relationship between a child and parent and its continued imposition must be justified: Young v. Hanson, 2019 ONSC 1245, at para. 32, also cited in G. v. F., 2021 ONSC 1362 at para. 47.

The intrusion is less striking when supervision is by a family member in a home setting, but nonetheless, it is not a long-term solution. Supervised access is designed to provide a temporary and time-limited measure, to resolve a parental impasse over access, rather than provide a long [term] solution: M. (B.P.) v. M. (B.L.D.E.), (1992), 1992 8642 (ON CA), 97 D.L.R. (4th) 437, at para. 33. (Ont. C.A.)

The onus lies on the person seeking that parenting time be supervised, to show that such supervision is necessary. The greater the restriction on regular parenting time, the more important it is to show why the restriction is necessary: Liu v. Xie, 2021 ONSC 222, at para. 69, Docherty v. Catherwood, 2015 ONSC 5240, para. 38.

[193] Supervised contact is rarely intended to be a long-term solution to family problems. It is sometimes ordered for children who require gradual reintroduction to a parent, or whose safety requires it until such time as the parent is sufficiently rehabilitated and a child is no longer in danger of physical or emotional harm. See: Najjardizaji v. Mehrjerdi 2004 ONCJ 374, [2004] O.J. No. 5472 (OCJ); I.O. v. I.G., 2023 ONCJ 520.

[194] I have considered whether there should be some diminishing level of supervision to allow the parties to feel comfortable with the transition to a greater in-person parenting regime between the father and daughter. I reject it for three reasons. First, it is not warranted at law and supervision is not a comfort order. Second, there is a short time for the child to shift to the care of the father before the mother returns to Calgary in a week or so. They already planned a significant time share over the ten-day visit. Third, the uncontradicted evidence is the father does not require any rehabilitation. The psychiatric evidence supports his wellness. He is compliant with his medication.

[195] I find unsupervised contact, including overnights between the father and the child is consistent with the determination of her best interests. I find maximum contact between the child and both of her parents is consistent with the determination of her best interests.

Communication

[196] Communication and conflict management between the parties has been a challenge throughout their relationship. They have had high hopes but limited success in finding a peaceful path. Despite this finding, they exchange mostly polite emails. Both commit to child focused communication.

[197] This trial has been taxing on both parties and their families. The arrangement I find is best for the child leaves both parents in charge of major decision making with consultation in advance with the other parent. It is only in the case of a disagreement that such authority is required. I have allocated tie breaking authority on the major issues. It is a responsibility, not a right. The parent with the final decision must be even handed, fair and mindful of the child’s needs and the frailties of the other parent.

[198] The two major areas of disagreement are determined as follows:

a) The child shall reside in Ontario.

b) She does not require supervision in the care of the father.

[199] In the event of disagreement about a major decision, I find a final decision-maker will assist in minimizing conflict. To be clear, it is only in the case of a disagreement that final decision-making authority is required. When parents reach a stalemate, third parties – such as schools or doctors – need clarity. Decisions must be made quickly, and uneventfully. The only specific examples of major decisions awaiting determination are residence and supervision. Those are both decided in this judgment. Given the parental history of discord, I conclude a “tie breaker” provision for areas of final decision-making authority will reduce indecision, delay and power struggles, will improve communication, and will serve the child’s best interests.

[200] If there are areas not included in the assigned decision-making areas, I find the child’s best interests are served if the father retains final decision-making with consultation in advance with the mother. Authorizing the father to make major decisions for the child includes a duty to exercise those obligations fairly, having regard to the child’s needs. In entrusting him with this ongoing authority, he must be responsive in a timely way to the mother’s concerns.

[201] The mother has made efforts to speak privately with the father about some issues; however, he is resistant to discussions. This is understandable because he has been accused of sexually abusing their daughter and they were in high conflict litigation. It does not appear she was open to discuss the key issues of geography or overnight, unsupervised parenting time.

[202] The mother’s evidence is she followed the advice of professionals, including the child’s pediatrician, and kept the father updated. At the same time, she admitted she did not inform him that the child had been smearing feces or deliberately urinating. This was wrong.

[203] A second example of the mother’s poor communication relates to vaccination information. The father is of the view the mother is anti-vaccination. There was a history of her initial resistance because the child got a rash after her first needle. The father raised some other generalized concerns. The mother consulted a specialist, took advice and she did vaccinate the child. This remained a source of chafing between the parents. Shortly before trial, the father sent her an email asking for an update on the child’s vaccination status. The mother’s response was void of detail. She wrote in an email on March 5, 2024: “She has had her required vaccinations”. I find this level of updating is unsatisfactory. She needed to provide more detail. She had to have known the father would find her answer insufficient. She has been quite selective about what she communicated. The mother was keenly aware this was an issue and as the primary parent taking on the duty to inform him under the temporary order, she should have been proactive.

[204] The father has also been insensitive to her. In July 2022, the mother demanded particulars of an outing. Frustrated, the father in an offhand comment said, “to the airport”. Objectively, it was unreasonable for the mother to conclude it was an abduction plot. The father had complied with all orders. For the mother, it was very frightening. The father must learn to anticipate how she responds to his words and actions. For the child to thrive, both parents need to be especially sensitive to each other’s reference points. There is no order that can address all of their feelings. Court orders are not therapeutic plans.

[205] I find the looming trial and failed attempts at mediation have been factors inhibiting communication. Both parties must make concerted efforts to find new ways to exchange information for their child to flourish. The father’s plan of email exchange only is also unacceptable. Both parents have communication shortcomings. The child needs her parents to engage in some form of therapeutic help to find new communication solutions. Otherwise, their ongoing conflict could put their child at risk of harm, the very result they hope to avoid.

[206] Family Law Rule 37.7 requires parties to correct and update their s. 35.1 affidavits. Certainly, before a long-scheduled parenting trial, my expectation includes the parties detailing their parenting plan. I declined to allow the father to file an updated s. 35.1 affidavit at the end of his evidence. It was simply too late. The mother did so in a timely way. Unfortunately, her affidavit was void of a plan for the child to be parented by her from Ontario.

[207] This is not a temporary order. I do not know their child. It is preferable if the parents develop the detailed plan. S. 16.6 of the Act addresses parenting plans. These parties require a micro specific plan detailing how the child will travel, be exchanged, be educated, go to camp etc. A suggested exchange at the police station is impractical. There is no evidence of any police station in Athens, Ontario. Why should the child go to the police station for exchange anyway? It is not an Access Centre. The evidence is they were generally civil around the child. Their proposal is for large blocks of time. Do they plan to leave an airport and drive to the police station? What if the flight is delayed or there is bad weather? The mother’s plan for parenting time between the father and child was also general, with minimal detail, largely being a statement of good will and best efforts. In comparing both parents’ plans, I find neither as submitted will serve the best interests of their child. I find both parties have unreasonable expectations for this young child to be ferried back and forth for larger blocks of time because the child’s parents both want to live far away from each other. Neither plan is realistic or child centric.

[208] The father asks for an order for police enforcement. This is dismissed. I find there is insufficient evidence to support this invasive order. Both parties are cautioned to follow the order. If either party overholds the child, the matter may be returned to court on short notice. I appreciate the father’s trepidation. He doesn’t want to chase the child. They had return plane tickets before and the mother did not return the child. I have no reason to doubt she will obey this court order. If she overholds the child, contrary to any order, she risks suspension of her parenting time.

[209] The child shall remain in Ontario at the conclusion of the May 2024 visit. The father proposes in his draft order that the mother have the child for the summer, presumably in Calgary. I find the entire summer, as proposed by the father, for parenting time with the mother in Calgary is too long for 2024. It is already mid-May. The child will have just been settled with her father and will be preparing to attend school. They have not defined a specific plan for the summer 2024 visit to the mother in Calgary. These dates need to be arranged before the child may leave Ontario. A detailed plan and the purchase of return flight tickets must be secured before the child leaves Ontario. For this summer, the child shall be returned to Ontario by August 15, 2024 or such other date as the parties agree.

[210] Currently, the parents’ career paths and personal lives are portable. Neither owns property or at this stage, even has a job. Both have high hopes and good potential to reach financial independence. Neither can currently afford to live independently. The father had to sublet his apartment and move home, just before trial. The mother lives in a condo owned by her parents on a rent-to-own plan. No details were provided. Her financial statement lists about $1,450 per month in rent and utilities. She lacks income to maintain it. Both have large debts. The uncontradicted evidence is that neither parent has the financial ability to facilitate the travel they propose to maintain frequent contact between the child and the other parent. In addition to financial cost, is the toll it will take on this young child and her parents to travel long distances.

[211] What alternatives have they considered? For example, should the father consider seeking a job in Ottawa, perhaps, so the child can be closer to an airport? Are there job opportunities for him? It is the city of his treatment providers. The mother’s evidence is there is a flight between Calgary and Ottawa. They have over 12 years of frequent flying to consider before the child reaches age 16. The parties need to talk. Logistics must be worked out. They would benefit from a parent co-ordinator – a privately hired lawyer or social worker who acts like a mediator/arbitrator on little decisions, e.g. where will transfers take place, what lessons to take etc.

Child Support/Travel Costs

[212] Neither parent has any current means of financial support except family or government benefits that would flow to the parent with the care of the child. I do not find either parent is motivated by money or a child support outcome.

[213] The father filed an updated financial statement during the trial but it was useless, showing no income and no expenses. He filed an updated affidavit in November 2023 stating his debt was higher and he was only working part-time due to his return to full-time school. He noted the property matters were resolved. He stated he hoped to obtain full-time employment through his then-employer but at trial, he explained the job fell through. His financial statement did not include any proposed expense for travel with the child to see the mother under his plan.

[214] The mother filed a detailed financial statement sworn March 18, 2024, shortly before trial. She was able to secure a subsidized daycare space, reducing her monthly cost for Montessori to $208 per month. She testified that as of September 2024, the child would be attending a new program part-time and continuing in Montessori part-time. It was unclear if this changes the monthly cost. I am completely satisfied this mother will avail herself of any cost reductions. She is great at organizing such assistance.

[215] Her financial statement income was $2,428. Her monthly expenses were at $3,593.42. There is a deficit. She stated she maximizes her credit cards. Her sworn financial statement income consists of some employment income she no longer receives, plus unemployment and government benefits. Some of those benefits will be ending, particularly with the move of the child’s residence to Ontario with the father. She noted that the father has been generally paying her $400 per month in child support but did not include it in her financial statement. There is no explanation how she will make ends meet. Her financial statement includes a modest future education saving for the child and $300 per month in debt repayment, presumably to her line of credit and credit cards. On her financial statement under debts, she swears she pays $450 per month on credit card debt. She pays for a zoo pass, and has pet care costs for two cats of $110 per month. Her lifestyle is humble, and child focused but not affordable currently.

[216] I find on the evidence that neither parent has the financial resources to adequately facilitate their daughter’s relationship with the other parent on a long-term basis. The mother testified she planned to come twice a year to Ontario to facilitate parenting time. The father, in his proposed draft order, offers significant holiday travel time. He did not give any idea of how it would be funded. He did not say if he investigated travel costs at peak holiday times. I find both of their plans to support the child’s relationship with the other lack financial reality. This negatively impacts both of their credibility.

[217] They have both obtained financial help from family members to enable travel so far. Members of both families testified. None were asked if they planned to continue this sponsorship, or even if they had the means to do so. The mother testified she paid $160,000 in legal fees prior to trial and she plans to repay her family, primarily her grandmother, when and if she can. The mother’s financial statement does not show a monthly payment on this debt. Her financial statement does not include any actual or proposed expenses for travel to enable the child to see her father. The father did not quantify his legal debt. He also has student debt. He said he had room on his credit cards to go out west to pick up the child if he is successful.

[218] Both parents have a solid work ethic. Both have taken on a variety of service industry jobs in the past as necessary to pay their bills. They have both had help from their extended families. I am completely satisfied both parents will work hard to make a living and support their child. The father used the last few years wisely, returned to school and completed a post-secondary education computer program, just before trial. He is seeking work. The mother, after spending the last few years in low-paying jobs, plans to launch a career as a realtor. No business plan was provided, except that she will qualify to sell real estate only in Alberta and she does not plan to live in Ontario.

[219] With respect to child support, the current order is terminated. I find there is no case to impute income to the father, especially in light of the result. I find there are no child support arrears.

Conclusion

[220] I find the child’s best interests require her to reside with the father. Under his plan, the mother could have an equal time sharing with the child. He lives in the Kingston/Athens area. I find this will preserve and develop a family bond for her with all of her family members and maximize contact between the child and her parents. I find the transition to greater time with the father can go smoothly for the child with the co-operation and support of the mother, including unsupervised and overnight contact. I find the child’s best interests are served if she resides near a place where the father can continue to receive continuity of medical treatment. I have not limited the area to Kingston or Athens as requested because the parents need to discuss logistics for travel. I have specifically balanced the effect of allowing the child to live with each parent, now and in the future along with the disruption to her current routine. I have considered the potential long-term loss of a secure relationship with each parent if she only sees one of them for blocks of time. I find the child’s best interests are served by this order.

[221] The mother’s claim for a restraining order was not pursued at trial. On the evidence, I find there is insufficient evidence to support the claim for a restraining order and her claim is dismissed.

[222] The property issues were resolved by a previous final order.

[223] Viva voce evidence was given at trial regarding the divorce. There was an issue regarding the Clearance Certificate and it was resubmitted.

Order

[224] The claim for divorce is granted. The Divorce Judgment shall issue upon receipt of the Clearance Certificate.

[225] The mother’s claim for a restraining order is dismissed.

[226] The parties shall share joint decision-making responsibility of the child, G.L.W. (born […], 2020). The parties shall make major decisions about the child’s welfare together, including decisions about the child’s:

a. Education: if the parties do not agree, they shall request the opinion of the child’s teacher. If they disagree after such consultation, the Respondent Mother will have final decision-making authority. This includes the choice of third-party day care or after school program.

b. Major non-emergency health care: if the parties do not agree, they shall request the opinion of the child’s doctor. If they disagree after consultation with the child’s doctor, the Applicant Father will have final decision-making authority. For clarity, this includes immunizations.

c. Major recreational activities: if the parties do not agree, they shall request the opinion of a mutually agreed upon third party, such as a mediator or Pastor. If they disagree after consultation, the Respondent Mother will have final decision- making authority.

d. In the event of a major decision that does not fall within one of the categories listed above, they shall consult each other and seek advice from an appropriate professional. If they disagree after consultation, the Applicant Father will have final decision-making authority.

[227] The child, G.L.W. (born […], 2020) shall reside in Ontario and attend school at either Kingston or Athens or such other place as the parties agree.

[228] The supervision requirement for the Father’s contact with the child is terminated immediately.

[229] Overnight contact between the Father and the child shall commence forthwith.

[230] For the balance of the Mother’s ten-day visit with the child in May 2024, the child will be transitioned to the Father’s care as the parties agree to equal time share during this time period. If they disagree about the time share during this visit, the Applicant father’s schedule will prevail.

[231] If the Mother’s May 2024 visit to Ontario is extended, the transition of care may be more gradual to an equal time share within 30 days. The Father is encouraged but not ordered to have his parents in the home during overnights for thirty days and he shall inform the Mother of his plan.

[232] The claim for police enforcement of the order is dismissed without prejudice. Any overholding of the child by either of the parties may be returned to court on short notice.

[233] The parties shall exchange detailed parenting plans within 60 days. The plans must include a communication protocol and dispute resolution mechanism and a sharing of holidays including religious observations. I urge the parties to seek professional assistance, perhaps through the Court mediator or a parent co-ordinator.

[234] The parties shall detail the time and holiday share, including specific dates for the child’s travel to and from Calgary.

[235] If the parties reside in the same community, the parenting time shall be evenly divided in a manner as they agree, failing which, it will be a 2/2/3 time share schedule to include alternating weekends.

[236] Both parties shall be entitled to make inquiries and to receive information as to the health, education and welfare of the child directly from the child’s service providers, including but not limited to the child’s teachers, school principal, pastor, doctors, dentists, counsellors, and others.

[237] The parties shall share information about the child’s routine such as homework, activity and sleep schedules to encourage consistency with both parents’ homes.

[238] Each party shall promptly update the other party if there is any change to their contact information, including but not limited to address, email address and telephone numbers, or if there is anyone else residing in their home.

[239] The child’s documents, such as Health Card shall be kept up to date and the parties shall cooperate in this regard to ensure this occurs. The child’s passport shall not be unreasonably withheld when required for travel purposes.

[240] The parties shall pay child support in accordance with the Ontario Guideline amounts as applied to their income at the time of payment.

[241] The parties shall share the extraordinary expenses of the child, proportionate to their respective incomes and in accordance with Section 7 of the Ontario Guidelines. The parties shall consult with each other and shall agree to any extraordinary expense in advance. Neither party shall unreasonably withhold his/her consent.

[242] As of May 15, 2024, there are no arrears of child support owing by either party.

[243] The claim to impute income to the father is dismissed.

[244] Both parties shall exchange income tax returns and Notices of Assessment annually, no later than June 15 of each year for so long as the child is entitled to support.

[245] Each shall provide each other with particulars of employment within 10 days.

[246] Counsel may include the agreed wording in their draft order including exchange of financial information, tax returns and notices of assessment, and other non-contentious clauses.

[247] The parties are encouraged to resolve the matter of costs. If they are unable to do so, the Father shall submit his cost submissions by May 29, 2024. The mother shall submit her cost submissions by June 19, 2024. The Father shall submit any reply submissions, limited to one (1) page by June 26, 2024. Written submissions for both parties are limited to four (4) pages, double-spaced and 12-point font, excluding any bills of costs or offers to settle.

[248] If cost submissions are not received in accordance with the timeline, costs are deemed to have been settled.

[249] The balance of the claims are dismissed.

[250] Support Deduction Order to issue.

The Honourable Madam Justice C. Robertson

Date: May 15, 2024

COURT FILE NO.: FC-21-00000336-0000 (Kingston)

DATE: 20240515

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

T.K.W.

Applicant

– and –

S.R.W.

Respondent

JUDGMENT

Robertson J.

Released: May 15, 2024

[^1]: Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.), s. 16