Court File and Parties

COURT FILE NO.: FS-23-00034524-0000 DATE: 20240103

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Malgorzata Rygiel Applicant – and – Bryan Mathes Respondent

Counsel: Ilana Zylberman Dembo and Raquel Simpson, for the Applicant Sarah Gulas and Kirsten Hughes, for the Respondent

HEARD: November 27, 29, 30, December 1, and 20, 2023

L. Brownstone J.

Introduction

[1] Ms. Rygiel and Mr. Mathes are the loving and devoted parents of a ten-year-old boy who is by all accounts happy, curious, healthy, and closely bonded to both of them. Since their separation in March 2020, the parents have worked very hard to put their son’s interests first. The father purchased a home in close proximity to the matrimonial home so the son could move freely between the houses. The parents communicated regularly by text message in a largely positive way to facilitate their son’s schedule and report on his activities.

[2] The mother works for Wilton Brands LLC, a corporation whose head office is in Naperville, Illinois. She started working for Wilton in September 2020 at its Canadian head office in Newmarket, Ontario. In November 2022, as a result of restructuring, the mother’s job was eliminated. Wilton offered her a promotion which requires her to work in Naperville. She wishes to do so and to move the parties’ son with her. The father objects to the relocation.

[3] The court must determine whether it is in the son’s best interests to relocate to Naperville with the mother or to remain in Toronto with the father. To make this decision, the court must first determine who bears the burden of proof. It must then assess the best interests of the child by looking at both the relocation-specific factors and the general factors in the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.).

[4] The parties disagree on who bears the burden of proof and on which option is in their son’s best interests. They agree that regardless of the outcome, there should be an order for joint decision-making.

[5] The parties also request a divorce.

1. The burden of proof

[6] Section 16.93 of the Divorce Act governs the burden of proof in relocation cases. If the parties substantially comply with an agreement, order or award that provides that the child spends substantially equal time in the care of each party, the party who intends to relocate bears the burden of proving the relocation would be in the child’s best interests. If the parties substantially comply with an agreement, order or award that provides that the child spends the vast majority of his time in the care of the party who intends to relocate, the party who opposes the relocation bears the burden of proving that the relocation would not be in the child’s best interests. In any other case, the burden is shared.

[7] The mother contends that the child spends the vast majority of time with her, and that therefore the father bears the burden of proving the relocation is not in the child’s best interests. In the alternative, she argues that each party bears the burden. The father argues that there is an agreement that the child spends substantially equal time with each parent, so that the mother bears the burden. He argues in the alternative that the burden is borne by both parties.

i) Was there a written agreement for substantially equal time with which the parties substantially complied?

[8] In April 2022, the parties entered into a separation agreement. The motivation for entering into the agreement was the father’s imminent purchase of a new home. In order to secure financing, he needed to provide assurance to his lender that he no longer had any financial obligations in respect of the matrimonial home. The mother found a lawyer who prepared the separation agreement. Although the mother testified that the lawyer was a real estate lawyer, the agreement covers issues well beyond the financial arrangements regarding the matrimonial home. The agreement reflected the parties’ common intention that there would be no child or spousal support claim from either party. The background section contains the following provisions “They have 1 child, [name]. [Name] will be spending equal time between the two parties”; and “The parties agree to be bound by this Agreement which settles all issues between them.” The parenting section of the agreement provides that the parties will have joint decision-making responsibility and will make decisions about the child’s welfare together, including decisions about his health, education, and significant extra-curricular activities.

[9] The mother’s position is that this agreement was not followed, nor was it ever intended to reflect an equal parenting arrangement between the parties. Rather, she states that the parties had an oral agreement under which their son spent the vast majority of time with her. She argues that this oral, de facto agreement should govern: Tariq v Khan, 2022 ONSC 1167 at paras. 73-75. Under the de facto agreement, she states, the son lived with her when the father moved out of the matrimonial home, and the father spent time with the son on a regular ad hoc basis. In fact, if the summer months are included, the father spent about 26 per cent of the time with the son during the thirteen months after the parties physically separated. The mother’s calculations are based on a spreadsheet she prepared, which the father accepted as accurate, which set out the parties’ parenting time from the time the father moved out of the matrimonial home in January 2022 until mid-February 2023. The mother also argues that background provisions in an agreement are not binding terms, and there were no provisions in the agreement that operationalized an equal parenting regime: Canadian Faces Inc. v. Cosmetic Manufacturing Inc, 2011 ONSC 6171 at para. 39 and Vhora v Vhora, 2016 ONSC 2951 at para. 110.

[10] The father accepts that he spent 26 per cent of the time with their son during the thirteen months following his departure from the matrimonial home. However, he explained that when he moved out of the home in January 2022, he moved into a one-bedroom rental apartment close to the matrimonial home. He explained this was to be a transitional home, while he looked for a house to purchase close by. The parties agreed they did not want the son “travelling back and forth with a suitcase”. The father felt the apartment was not a suitable place for their son to spend time, and certainly not to stay overnight, so he spent time with the son out in the community or in the matrimonial home, to which he retained a key for this purpose (with the mother’s agreement). He also testified that he felt stability for the mother and son was paramount – he did not want them to feel as though there was a “massive shift” in their lives when he moved out so he did whatever he could to accommodate that. He noted that moving out of the matrimonial home was a “monumental decision” and he wanted to minimize the impact on his son. He testified that he made concessions at this time in order not to “rock the boat”.

[11] During this time, the father was also very busy with his volunteer position with his fishing organization and was spending a very significant amount of time on this activity.

[12] The father purchased a house a few blocks away from the matrimonial home in May 2022. The new home required extensive renovation, which he carried out largely on his own.

[13] A review of the parenting-time spreadsheet from the summer of 2022 to February 2023 indicates that the father was spending more time with his son than was the case during the transition period when he lived in the one-bedroom apartment and was very involved with his fishing matters. Further, both parties engaged the maternal grandparents, particularly the grandmother, to spend time with their son, as had been their habit during the marriage.

[14] Whatever the parties’ intention was in signing an agreement that contained a background provision that the son will spend equal time between the two parties, and even if a background provision could be binding, I find that the parties did not substantially comply with the agreement after it was executed. Therefore, s. 16.93(1) does not govern the burden of proof issue.

ii) Did the son spend the vast majority of time with the mother?

[15] As indicated above, the mother states that the parties had an oral agreement under which their son spent the vast majority of time with her, that this oral, de facto agreement should govern and that the father therefore bears the burden in this proceeding.

[16] I must determine whether to consider the parenting time that was in place at the time of the trial in determining whether the son spent the vast majority of time with his mother. That is, there was evidence that the parenting arrangements have been changing so that the father now has more time with the son than was previously the case. Much of this occurred subsequently to a case conference that occurred before Kristjanson J. on April 6, 2023, after which Her Honour made the following endorsement:

I encourage the parties to come to an “interim, without prejudice, pending relocation motion, no new status quo” parenting schedule. If the parties cannot agree, the respondent father is granted leave to bring an interim parenting time motion for one hour on the regular list.

[17] The mother argues that an interim without prejudice arrangement should not be factored into the analysis: Rigillo v. Rigillo, 2019 ONCA 548 at para. 10. Given the express wording of the endorsement of Kristjanson J. I agree with the mother’s position. I will not consider the interim without prejudice arrangement in determining who bears the burden.

[18] In considering the interpretation of “vast majority” in the provisions of the Children’s Law Reform Act, R.S.O. 1990, c. 12 that mirror those of the Divorce Act provisions at issue here, Monahan J. (as he then was) in Credland v. Cymbalisty, 2022 ONSC 433 stated as follows (footnotes omitted):

[178] This provision does not define the threshold above which a child could be said to be spending the “vast majority of time” with one parent. However, given that s. 9 of the Federal Child Support Guidelines describes a 60/40 split in parenting time as one of “shared custody”, in my view a child would need to be spending significantly more than 60% of their time with one parent in order to cross the “vast majority of time” threshold in s. 39.4(6) of the CLRA.

[179] Furthermore, the relatively few cases interpreting this provision have held that a parent has crossed the “vast majority” of time threshold only when they have a child in their care for more than 80% of the time. For example, in KDH v. BTH, Lema J. held that where an order provided that the mother had the children in her care for 12 out of every 14 nights, or about 85% of the time, “the order indeed provided that the children spend the ‘vast majority of their time’ with her [the mother].” Similarly, Professor Rollie Thompson, a respected authority on these issues, has opined that “a range of 75 to 87 per cent is a reasonable representation of “vast majority”, but I would personally peg it at 80 per cent”, noting that this is consistent with the opinions he obtained through a canvass of family law professionals.

[180] In my view, interpreting the “vast majority of time” threshold in s. 39.4(6) in this manner gives meaningful effect to the burden of proof that it contemplates, without giving undue effect to the burden and thereby skewing the “best interests” assessment in a particular direction.

[19] The applicant relies on Professor Thompson’s explanation for the underlying premise of the “vast majority” burden provision, that where one parent is the “predominant primary caregiver of the child, the central figure in the child’s life, the parent whose presence and care is critical to the child’s well-being” and that person intends to relocate the continuity of that predominant primary parent becomes critical”: Rollie Thompson, Legislating About Relocating, Bill C-78, NS and BC (2019) 28th Annual Institute of Family Law Conference at p. 20. It is just before this quote that Professor Thompson states that he would personally “peg” the “vast majority” at 80 per cent of the time, and that he relies on the policy reason above to explain his position. He then explains that in some cases “the other parent is much less important, and their minority of the time reflects that too”, and “one parent is much more important to the child than the other.”

[20] I do not find that this is such a case.

[21] I find that under the parties’ arrangements or de facto agreement up to the time of the without prejudice arrangements, their son spent more time with his mother than his father. However, I do not find that the son spent the vast majority of time with the mother. When the parties originally separated, they continued to live in the same home for close to two years. When the father moved out of the matrimonial home, there was a transition period during which the father did not have a suitable living space for the son. When that transition period is excluded, and the son’s time with the parties’ extended families in the absence of his parents is excluded, the father spent well over 30 per cent of time with his son during the remainder of the time covered by the spreadsheet. He had and has a close, active, and regular relationship with his son.

[22] I find that in this case, the parenting arrangement falls between the “vast majority” of the time and “substantially equal” time. As Professor Thompson describes it at p. 21, these cases include “active non-primary parents”, an apt description of the situation here. Therefore, s. 16.93(3) applies, and each party has the burden of proving whether the relocation is or is not in the best interests of the child.

2. The best interests of the child

[23] In relocation cases, s. 16.92 of the Divorce Act sets out specific factors that must be considered in addition to the general “best interests” factors. The court is not to consider the impact of its decision on a party’s relocation plans (Divorce Act, s. 16.92(2); Barendregt v. Grebliunas, 2022 SCC 22 at para. 140). To do so would create a “double bind” for the party who wishes to relocate in that either they would appear to be putting their own best interests ahead of that of the child, or they would weaken their relocation application: Barendregt, 2022 SCC 22 at para. 138.

[24] The court is to consider all of the relevant factors from both s. 16 and s. 16.92 and determine whether the move is in the child’s best interests. The options are that the child relocates with the moving parent or stays where he is with the parent who lives here. The primary parent’s wishes are not determinative, nor is there a legal presumption in favour of the primary parent, but that parent’s views are “entitled to great respect” Gordon v. Goertz, [1996] 2 S.C.R. 27 at para. 49 and “the most serious consideration” Metcalfe v. Metcalfe, 2022 ONSC 4471 at para. 35.

[25] My findings of fact that underlie my assessment of the factors below has depended at times on my credibility assessments of the parties. For the reasons articulated below, I have accepted some of the evidence of each party: R. v. D. R., [1996] 2 S.C.R. 291 at para. 93. I explain my reasons for doing so in detail when considering the parties’ willingness to foster a meaningful relationship with the other parent, below, as this is the criterion in respect of which credibility played perhaps the most significant role.

i) The relocation-specific best interests factors

[26] The Divorce Act’s s. 16.92(1) provides as follows:

16.92 (1) In deciding whether to authorize a relocation of a child of the marriage, the court shall, in order to determine what is in the best interests of the child, take into consideration, in addition to the factors referred to in section 16,

(a) the reasons for the relocation;

(b) the impact of the relocation on the child;

(c) the amount of time spent with the child by each person who has parenting time or a pending application for a parenting order and the level of involvement in the child’s life of each of those persons;

(d) whether the person who intends to relocate the child complied with any applicable notice requirement under section 16.9, provincial family law legislation, an order, arbitral award, or agreement;

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

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

(g) whether each person who has parenting time or decision-making responsibility or a pending application for a parenting order has complied with their obligations under family law legislation, an order, arbitral award, or agreement, and the likelihood of future compliance.

[27] In this case, while there was some evidence about the timing of the objection to the relocation notice, there is no live issue about notice. Nor is there an order or agreement that specifies the geographic area in which the child is to reside, or any issue of compliance with family law obligations. I will consider the remaining factors in turn, and then will consider the non-relocation-specific best-interests factors.

a. The reasons for the relocation

[28] The addition of this factor in relocation cases was the subject of comment from the Supreme Court of Canada in Barendregt, 2022 SCC 22. The Court cautioned that courts must be careful not to judge a parent’s reasons for moving, and that the lack of a compelling reason for the move is irrelevant unless it negatively affects a parent’s ability to meet the child’s needs. The reasons for the move are only relevant insofar as they are relevant to the child’s best interests: Barendregt, 2022 SCC 22 at paras. 128-130.

[29] The mother argues that the financial advantage of the promotion and the move will inure to the son’s benefit: Barendregt v. Grebliunas, 2022 SCC 22 at para. 128; Moreton v Inthavixay, 2021 ONCA 501 at para. 12. She states that case law supports moving for financial reasons where it is necessary for the parent’s career: Sammon v. Krajewski, 2021 ONSC 8310 at para. 81.

[30] I do not discount the importance of the job in the mother’s life. I accept that the mother’s promotion comes with added financial benefits that may be of benefit to the child. However, I agree with the father that the child has always been well looked-after financially. The parents both described a life filled with experiences, activities, and material goods. They have both worked consistently to provide this life for their son. This is not a case in which there has been chronic financial instability that will be remedied by the new job.

[31] Further, given the mother’s employment history which involves regular changes of employment and, more importantly, given the fact that she made no effort to seek other employment in the Toronto area when her job was eliminated, I do not find the evidence in the case before me rises to the level of the move being necessary for her career. It is a very different situation than that in Krajewski, 2021 ONSC 8310, where the mother was a surgeon and “needed to find a position where she could do surgery fulltime, or risk losing some of her credentials.” It is also not comparable to the situation in O'Brien v. Chuluunbaatar, 2021 ONCA 555 in which the mother was unable to find work commensurate with her education and abilities in Canada. The evidence here is that the applicant’s Canadian position, which she had held for just over two years, was eliminated. There was no evidence that she could not have a career in Toronto that matched her skills and education. Rather, the available evidence suggests that she has been consistently able to do so.

[32] That said, I do not find an improper motive in the mother’s move. She is not moving in order to adversely affect her son’s relationship with his father. The father in essence argues that moving for a promotion is not a compelling reason to move. I do not “count the reason for the move against” the mother.

[33] However, there are two ways in which I consider the reason for the relocation to be a relevant factor.

[34] Some background to the mother’s work history helps provide context to my assessment of this factor. In 2011, before the child was born, the parties moved to Toronto from Vancouver. The precipitating event for that move was a promotion the mother received from Energizer, where she then worked, and the parties decided it made sense for them to make the move. She continued to work for Energizer and its successor corporation until 2016, at which time she moved to a new company where she stayed until 2018. From 2018 to 2020 she worked for Sunstar, and in 2020 she secured her job at Wilton. It was two years after she started working at Wilton that its restructuring resulted in the elimination of her job and her promotion to Vice President Sales, North America, E-Commerce, & Canada, the role that is located at Wilton’s head office in Chicago.

[35] The timing of events relating to her promotion and this relocation request is important. On November 28, 2022, the mother received the news that her job had been eliminated but she was offered a promotion that required relocation. She advised the father about the offer the same day. The father stated he would need to think about it. On November 30, 2022, the mother signed back her acceptance of the offer. The parties continued to discuss the issue, and the father had texted the mother within a day of the offer stating: “we are a distance apart… I’m having a hard time seeing how this works best for (our son)”. In December, the mother provided her formal notice of relocation and in early January, the father provided his objection to the relocation. Discussions between them continued.

[36] I note that the mother signed back the offer virtually immediately, despite the fact that the father had not signaled his agreement and had in fact indicated he had concerns that the move was not in the child’s best interests. She made no effort to seek other options. She did not make any inquiries of Wilton to see if her Canadian residence could be accommodated. She did not look for other work. She did not consider trying to get a lesser position at Wilton in Toronto. This, combined with other evidence discussed below, demonstrates that she is not giving adequate weight to the role that her son’s relationship with his father as a regular presence in his life plays in the son’s best interests. I will expand on this factor below.

[37] The other relevant factor is to consider whether the new job itself may affect the mother’s ability to care for the son. The evidence from Sarah Buckley, Vice President of People and Culture at Wilton, is that Wilton provides some flexibility and is a family-friendly workplace. However, she also testified that the mother can be expected to work long days, and to have to work many evenings. Vice Presidents are typically in the office 3 days per week. The mother will have to travel for work. The text and email messages between the parties filed in evidence indicate that in the past when the mother had extensive or unexpected work obligations, the parents would communicate and the father would often be available to care for the son when the mother was delayed at work. The mother will not have the father in Naperville. She described making connections with colleagues and others, but none of them lives in the suburb to which she proposes to relocate. This is a relatively minor concern, given that resourceful single parents find systems for childcare, but it is one small fact, among many, to consider.

b. The impact of the relocation on the child

[38] I will consider the impact of the relocation on the child’s relationship with his father below. Here, I consider the following. The child has attended the same school since grade one. He is in grade five and his current school continues to grade eight. He has some academic struggles at his current school. There are thirty students in his class and he has some learning challenges. He has had an Individual Education Program since grade one.

[39] He is comfortable with the community, describing a stable and secure environment in which he feels a strong sense of belonging. He is attached to his friends and their parents. The school has a large Polish community which gives him an added sense of belonging. He told Ms. Gardner, who prepared a Voice of the Child Report, that if neither of his parents could attend a school event he would be fine as he knows a lot of his friends’ parents, and it would just feel normal to him.

[40] The school to which his mother proposes to send him in Naperville ends in grade five, the grade the child currently attends. There are only about thirteen students in each class which both parents believe would be good for him. However, if he relocates in January, he will attend a new school for five months, and then he will need to choose among three middle schools to commence the following September. There was no evidence about these schools. Indeed, it was only in cross-examination of the mother that it was revealed that the school to which she proposes sending the child ends after grade five.

[41] I accept that children, particularly young children, are adaptable: Reeves v. Brand, 2018 ONCA 263 at para. 30. I further accept that in this case the child is an easy-going, funny and social child who makes friends easily.

[42] I note too that the child is very closely bonded with the mother, and the father is confident that the mother will make decisions in the child’s best interests. She has found extra-curricular activities for the child that mirror those in which he is engaged in Toronto. This will assist the child in adapting to the changes.

[43] However, I also consider that these are a significant series of successive changes for a child whose parents have relatively recently physically separated. The child has expressed his happiness with the current arrangements and the amount of time he is able to spend with each parent. He has indicated that it would make him sad to spend less time with either of them, and to not be able to move easily between his parents’ homes. The parents have been exceedingly careful to move slowly in introducing changes to the son since separation. The father did not move out of the house for close to two years after the parties decided to separate and he moved to the basement. They did not use the word separation at first. In his transcript of read-ins from questioning, the father stated that he was “not allowed’ to tell the son he moved out at first, that the mother thought this was not a good idea, that he disagreed with it but went along with it because they wanted to protect their son’s innocence. The father bought a house around the corner from the matrimonial home. In short, the parents did everything they could to disrupt their son’s world as minimally as possible. Moving to a new country, and two new schools in quick succession, away from a parent who has a positive and regular role in his life will have a significant disruptive impact on the son.

c. The amount of time the child spends with each person who has parenting time, and the level of involvement of that person in the child’s life

[44] As indicated above, the child spends more time with the mother than the father. The mother is clearly very closely bonded with her son. She is the parent who is most directly involved with his teachers and tutors. She is focused on his educational and social needs and is the planner of the majority of his activities. She is the parent who takes the child to his dental appointments and generally to the doctor. The father expressed no doubt that the mother would research suitable educational, extra-curricular and healthcare options for their son and be motivated by his best interests.

[45] The mother has taken on primary responsibility for liaising with the school, the tutor, and the health care providers and planning extra-curricular activities. She has spent more time with the son. In his early years, she took a one-year maternity leave and thereafter travelled frequently to Winnipeg with the son. The father did not accompany them on many of these trips. In addition, there were periods when she was not working in 2015 and 2020 when she was home with the son. In 2018 when the mother had some health issues, the son stayed with his maternal grandparents in Winnipeg for several months. The father stayed in Toronto with the mother.

[46] The father is also closely bonded with the son. The father acknowledged that for some years during the marriage and when he first moved out of the matrimonial home he spent significant time pursuing his fishing hobby, and that this took time away from his son. He also acknowledged that he only sought equal parenting time once the mother provided him notice of her intended relocation.

[47] However, the father also provided important context for this.

[48] He testified that during the marriage, the mother was the primary driver of the family’s plans. He described her as much more “type A” than he would describe himself. He generally went along with the mother’s plans and found that they worked for him and for the family as a whole. Certainly he benefited from her taking the lead on many issues and activities, and her willingness to make plans that allowed him to pursue his hobby.

[49] For close to two years post-separation, the father lived in the basement of the matrimonial home. He purchased his new home so that it would be in very close walking distance to the matrimonial home, where the mother stayed after he moved out. He did so in order to make things easy for the parties’ son, to be in the son’s school and community, and to enable the son to travel back and forth between homes easily. The father put tremendous effort into creating a welcoming, comfortable, proximate home for his son. He is involved in the child’s school meetings, homework, and extra-curricular activities. He teaches his son about home renovations. He taught him to ride a bicycle. He has been intimately involved with issues concerning the son’s health and welfare – he repeatedly expressed concerns about screen time, telephone access and sleep patterns.

[50] He is an important and regular part of the son’s life.

[51] I accept the mother’s position that she has been the primary caregiver for the son, but this is not a case where there is a great gulf separating the child’s relationships with each parent. The father has always been apprised of and involved in his son’s life. Each parent pursued outside hobbies and interests, albeit the father’s was more time-consuming. There were significant periods of time when the father’s fishing hobby reduced his time with his son. However, I accept that his son’s interests come first, and that he would willingly sacrifice his own hobbies and interests for time with and attention to his son. I have no doubt about the sincerity of this evidence. The messages and photographs filed, as well as the father’s testimony, show a clear picture of a loving, devoted father who treasures his relationship with his son and who is an active and regular part of his son’s life, to the child’s great benefit.

[52] I find that he is willing and able to meet his son’s emotional, physical, educational and health needs. I do not view his testimony that the mother will be motivated by the son's best interests as a “zero-sum game”. I find the father, too, will be motivated by and act in accordance with those best interests.

[53] The son clearly adores both of his parents. The Voice of the Child Report indicates that the son “likes being with his mother just a little bit more. He shared that this is because he knows her more and feels a bit closer to her.” The son advised that “an ideal schedule for him would be not too long with either his mother or father. He said that he does not care what the schedule would actually look like as long he is able to see both his mother and father frequently. If he saw his Father or Mother less than he does it would make him sad.”

[54] I accept the mother’s evidence that she has been the parent who has been more actively involved in making plans and arrangements to meet her son’s needs. I accept the father’s evidence that this was the pattern the parties developed during the marriage and that it worked well for the family. I accept his evidence that the mother prefers to be the parent who is in this position and does not like to cede control of these issues.

[55] I accept the mother’s evidence that the father was heavily involved in his fishing hobby and that this sometimes interfered with his parenting time. However, I accept the father’s evidence that there was a time or times when he was not told the mother would be out of town and the maternal grandmother would be staying with the son during his fishing, and that had he known of this arrangement, he may have changed his plans. Importantly, I also accept his evidence that he is willing to give up or severely limit his time spent fishing if he is the primary caregiver to the son.

[56] The mother states that under her plan of care, the father will have the same aggregate amount of time with the son as he currently enjoys. The father will continue to be able to take their son to his family cottage for the month of July and will be able to be with the son in June as the son’s school ends in late May or early June. He will have part of Christmas break and March break, as well as a number of other long weekends, which she states is a bare minimum.

[57] I find the father’s involvement with the son will be drastically reduced with the move. The father regularly takes the son to swimming lessons. He is aware of and involved in his son’s school life and homework obligations. He fosters relationships with the son’s cousins, neighbours and the children of his current partner. While he may have been a less-than-enthusiastic participant in some of the son’s recent extra-curricular activities arranged by the mother, I find that he is an active, regular, and important presence in the son’s daily life.

[58] In this respect, I found Ms. Legrange, Mr. Mathes’ sister, to be a credible witness. While she was clearly upset about the prospect of her nephew moving to Naperville, she provided candid and straightforward evidence. She testified clearly about her nephew, her relationship with him, and her observations of the relationship between her nephew and his father. She testified with genuine feeling and respect about her nephew’s maternal grandparents. I find that although her opportunity to observe the father and his son together was largely limited to summers at the cottage, her evidence was consistent with the other evidence about the close bond and comfortable relationship between the father and his son.

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

[59] The mother proposes that the parties maintain joint decision-making. However, she would be the de facto decision-maker in most aspects of their son’s lives – she will be the only parent “on the ground” to find schools, extra-curricular activities, and health care options.

[60] She also proposes the father see the son for half of the son’s winter break, his spring break, a long weekend in February, the first three weeks of June, all of July, a long weekend in November, and weekends in May and October. In addition, there would be regular audio and facetime calls.

[61] The father agrees that if she is permitted to relocate, the proposal is generally a reasonable one.

ii) The best interest factors in s. 16(3) of the Divorce Act

[62] Other factors relevant to this case are the child’s needs, given the child’s age and stage of development, such as the child’s need for stability; the nature and strength of the child’s relationship with each spouse, and grandparents and any other person who plays an important role in the child’s life; each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse; the history of care of the child; the child’s views and preferences; any plans for the child’s care; the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child; and the ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child.

[63] A child should have as much time with each parent as is consistent with the child’s best interests: Divorce Act s. 16(6). This principle, referred to by the Supreme Court of Canada in Barendregt, 2022 SCC 22 as the “parenting time factor” is “mandatory, but not absolute”: Gordon v Goertz, [1996] 2 S.C.R. 27 at para. 24. It is one factor among many, and is not to be treated as the governing factor: Reeves v. Brand, 2018 ONCA 263 at para. 22.

a. The child’s needs, including his need for stability

[64] The mother argues that the most important contributor to the son’s stability is that he will remain with her, his primary caregiver who ensures his needs are met. I accept that the mother provides stability to the son due to their close relationship and her committed focus on his wellbeing. However, there are other important factors that cause significant concern with respect to the relocation plan. The relocation would involve two school changes in short order, a move to a new city in a new country where he has minimal contacts, and separation from his father, who is an important part of his daily life. As noted above, this is a significant change of approach for a family that has moved exceedingly carefully in introducing change to their son’s life. The mother relied on the son’s need for stability, in part, as a reason for which he should only gradually start to spend overnight time at his father’s new home. The change of relocation would be a significant disruption to the son’s home, school, extended community and relationship with his father.

b. The strength of the relationship with parents and grandparents

[65] I have considered this factor in respect of the parents above. The other relationship of central importance to the child is his relationship with his maternal grandmother, who lives in Winnipeg. This relationship will be largely unaffected by the move. The mother testified that she expects her mother’s visits to remain largely as they are now.

c. Willingness to support the relationship with the other spouse

[66] As noted above, credibility assessments played a particularly important role in my consideration of this issue. I will explain the reasoning behind those assessments here.

[67] In assessing the credibility of the witnesses’ testimony, I have paid particular attention to how their evidence accords with other available evidence, internal inconsistencies in their evidence, their willingness to make concessions, and the inherent reasonableness of their evidence: McBennett v. Danis, 2021 ONSC 3610 at para. 41.

[68] I found both parties to be generally credible but found that both exaggerated their evidence in part where it would support their position. I find that the father was willing to concede points that may be harmful to his position, while the mother was less willing to do so. My concerns with the mother’s evidence lead me to conclude that she has overstated her willingness to foster a deep and meaningful relationship with the father. Rather, I find that she is only willing to foster a relationship that is clearly secondary to her own relationship with the son and that in doing so, she is not considering what is in her son’s best interests. I also find that the joint decision-making she proposes would not in fact be joint decision-making, and that she would not provide serious consideration to the father’s views if she were with the son in Naperville.

[69] I find that the mother somewhat minimized the father’s historical involvement in the son’s life. She testified that he was not especially involved in extra-curricular activities, but the evidence supports that he was very involved in the child’s swimming, in particular. The text messages also reveal that the father took an active role in the son’s homework, and was regularly parenting their child, including times when she was working late, out of town for work or pleasure, or at exercise classes. She testified that the father sometimes took the child to swimming and skating, but never came to lacrosse or hockey. In fact, the father attended all lacrosse practices that occurred during his parenting time. She stated that she was the organizer of all special-event parties relating to the son; the evidence demonstrates significant involvement on the part of the father.

[70] Perhaps most concerning, I find that the mother also overstated her co-operation with the father. For example, the mother made several unilateral decisions to which the father was opposed, such as the extensive purchase of video games and a cell phone for the son and her continued co-sleeping with the son. Similarly, she unilaterally enrolled the child in competitive lacrosse three times a week at some distance from their home without discussing it with the father, despite their prior practice of discussing his activities and despite her commitment to joint decision-making, made orally and in writing in the April 2022 separation agreement. Likewise, after a somewhat heated text exchange when she was out of town and the father was concerned about her mother’s ability to supervise the child’s homework, she declined the father’s offer to drive the son and grandmother to swimming, advising that she would send them in an Uber. I accept the father’s evidence that she can be a hard negotiator.

[71] While she claimed they have always had an ad hoc parenting schedule, this does not acknowledge the father’s attempts to have more time with the son, or his more recent attempts to have a more fixed schedule.

[72] I also find that the mother’s testimony that she did not make the decision to move to Naperville lightly belied by the evidence. She signed the offer back to her employer two days after receiving it. The father had clearly not agreed that the son could move with her at that time. She made no other inquiries about jobs with Wilton in Canada, or whether she could work from Canada, nor did she make efforts to look for a different job. I do not accept her evidence that the effect of the move on her son and his relationship with his father keeps her up at night, or that she did not take the decision lightly.

[73] Exaggeration was also apparent in her evidence about her son’s relationships in Naperville. The son has a friend he has met online who lives in a suburb 40 minutes from Naperville. When visiting Naperville in the summer, the families spent a day together. The mother referred to this friend repeatedly as her son’s best buddy. While I do not downplay the fact that friends can be made online, and that the day spent together provides hope for a blossoming relationship, I find that referring to this child repeatedly as the son’s “best buddy” is the kind of exaggeration engaged in by the mother to support her position that the move is in the son’s best interest.

[74] The father, too, made some overstated claims. For example, he repeatedly took the position that the mother had been impeding his time with their son prior to the commencement of the relocation application and had to concede each time that this behaviour had only started after the relocation litigation commenced. Even then, he ultimately conceded they were generally able to work out parenting time, although he maintained that it became more difficult to do so. He understated how much time he spent fishing, including in his answers to undertakings. He took the position in his written documentation that the mother travelled extensively, when in fact he ultimately conceded she did not start travelling for work until September 2021.

[75] However, I find that the father was readily willing to concede issues, even those that may not have helped him, such as that he had no doubt the mother would always look out for their son’s best interests and make informed choices for him, and that his positions described above were overstated or incorrect.

[76] As noted above, I find the father overstated the level and timing of the resistance of the mother in facilitating his parenting time. However, I also find that the mother views her own relationship with the son as much more important than that of the father. This is illustrated in various ways.

[77] For example, in February, 2020, when the mother was travelling, she messaged the father, thanking him for “taking such good care” of the child. When the father responded that she didn’t “need to thank me. He’s mine as well. Not all yours.” she responded “he’s mine!!!” While of course text messages can be sent in jest, I find this consistent with her approach to the familial relationships evidenced in her testimony. I also note that when she returned from her trip, she insisted on taking the son to the hairdresser with her. When the father suggested he would keep the son, as the son may rather participate in another activity, the mother insisted and the father replied “I guess I don’t have a choice in the matter”. Further, the mother advised Ms. Gardner that the father not being the primary parent puts him in the “fun uncle” mode. Moreover, when asked what her position would be if the father moved to Naperville, she testified that the arrangement would be that the son would continue to live primarily with her and the father could see the child whenever he wanted. While that may have been the arrangement when the father first moved out of the matrimonial home, it was not an arrangement the father was agreeing to by the time of her evidence at trial. I find that the mother sees the father’s relationship with the son as secondary, to the detriment of the son. I have significant concerns that this relegation would be solidified by the move and that she would not encourage or facilitate a true parental relationship between father and son.

[78] The father has worked very hard to ensure he has a close and regular relationship with the son. I do not accept the mother’s suggestion that this was done “once the court’s eyes were on him” if the implication is that the purpose of this was to enhance his position at this hearing or that it was motivated by anything other than his genuine belief that this relationship is important to his son’s best interests. Rather, I find his dedication to their son and his increased willingness to push for more time with this son is due to the changing dynamic that occurs when parties separate and the established dynamic between them changes. As he poignantly testified, when deciding to advise the mother he would not agree to the relocation after a brief period in which he had wanted to make it work, he had had to choose between maintaining a significant relationship with his friend, the mother, or his son, and he chose his son.

[79] I find that the father is willing to support the development and maintenance of the child’s close relationship with the mother, and that he would communicate and co-operate with her on matters affecting the child. While he recently failed to provide her notice of a meeting with the school, I do not find that is a repeated occurrence. The father has actively assisted in making arrangements for the mother to send gifts during his parenting time, has included the maternal grandparents in plans, and has routinely passed on frequent messages to the son at the mother’s request when the father is with the child. He conveyed to Ms. Gardner his respect for and acknowledgement of the important bond between the mother and son, and his belief that they are both very good parents. I find that the joint decision-making he proposes would in fact be joint decision-making, and that he would consult with the mother on all matters of importance that affect the child.

d. History of care of the child

[80] I have reviewed the history of the care of the child above. The mother has taken the reins on major issues involving the child and has spent more time with the child. I accept that she has been the child’s primary caregiver. The father has been aware and involved throughout the child’s life.

e. Plans for the child’s care

[81] The father’s care plan is for him to become the primary caregiver for the child. He has a very flexible work schedule, a supportive workplace, works from home the vast majority of the time, and lives near the child’s school. He will continue to foster the child’s swimming lessons and has done some investigation of new extra-curricular activities for the child. He has been involved in supervising the son’s homework and meeting with the school and will continue to do so. His neighbour, Ms. Lobo, testified that she is available and willing to assist in cases of emergency or unexpected events. The son has a good relationship with the father’s new partner and her children.

[82] The mother plans to live a short drive from both the child’s school and her workplace. She describes the emergency contacts for her son as the mother of the friend he made on-line, who lives in a suburb about 40 minutes away, and a work colleague who lives in a neighbouring suburb. Her mother will continue to visit and to assist in the son’s care. She has located extra-curricular activities for him. She did not describe her daily after-school plans, when the child finishes school at 2:30 pm.

[83] The mother also testified that she would have to travel only to Toronto in her new role, that this would occur every 6-8 weeks, and that she would do her best to facilitate bringing her son with her during those visits if they aligned with a PA day at school. However, Ms. Buckley testified that the mother would also have to travel two or three times a year within the United States for work.

f. Ability and willingness of each parent to meet the child’s needs

[84] I find that both parents are willing and able to care for and meet the child’s needs. The mother has been the one to take the lead on ascertaining the child’s needs and making the plans to meet them to date. She has been the primary caregiver. However, the father has shown himself to be both willing and able to do so.

g. The ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child

[85] Both parents, to their credit, have generally been able to communicate with each other about all matters affecting the child. The mother has, on occasion, communicated only after having made decisions. The father recently, as noted above, failed to advise the mother about an event at the school. However, these are lapses in what is generally a communicative relationship on both sides, albeit somewhat strained by these proceedings.

[86] In terms of co-operation, I need not repeat here my findings above about supporting the relationship with the other spouse.

3. Has the mother demonstrated that the relocation is in the child’s best interests? Conversely, has the father demonstrated that the relocation is not in his best interests?

[87] As noted above, in assessing this factor, the court may not consider whether the relocating spouse would choose not to relocate if the relocation application were denied. I make this assessment on the basis that the court must choose between the child relocating to Naperville with his mother or staying in Toronto with his father when his mother relocates.

[88] The factors above are not a list that one party wins and the other loses, to have the “score” added up at the end and the winner declared: Credland, 2022 ONSC 433 at para. 174.

[89] Rather, the best interests of the child must be considered holistically, having regard to these factors. Relocation cases are known to be very difficult for the courts, as they involve weighing a primary parent’s legitimate interest in moving with the other parent’s legitimate interest in maintaining their relationship with the child: Reeves v. Brand, 2018 ONCA 263 at para. 17.

[90] In this case, weighing all of the factors above, I conclude that it is the father who has discharged the burden that the child’s best interests are not to relocate. I note my conclusion would be the same had I determined that the father solely bore the burden under s. 16.93(2) of the Divorce Act.

[91] I say this for a number of reasons. Under the relocation scenario, the father is relegated to a weekend and holiday parent, to the son’s detriment. I find the joint decision-making the mother proposes post-relocation will be joint in name only. I do not believe the mother will foster a meaningful parental relationship between father and son. I find that she will ensure the relationship is one of “fun uncle” and I find this is not in the son’s best interests.

[92] Further, the son’s school will be disrupted not once but twice, in an unfamiliar city, in an unfamiliar country, with no support network around him other than his mother. Given this child’s need for stability, and how importantly the parents have treated his need for stability in his life, I find this weighs heavily against relocation. As indicated, I find both parents are willing and able to meet the child’s needs, despite the fact that the mother has been the primary caregiver to date.

[93] Under the scenario where the child remains here, the mother may travel back and forth frequently and have regular parenting time with the son. She is required to travel to Toronto every 6-8 weeks. The evidence of Ms. Buckley is that Vice Presidents are expected to be in the office in Naperville three days per week. She will be earning a significantly larger salary, and will be able to facilitate regular meaningful contact with the son while permitting him to remain in his current community and have a meaningful relationship with his father. I find that the father will facilitate joint decision-making; he will consult the mother about decisions relating to their son.

[94] I note that the mother did not offer a position on the terms of the father’s proposed order, stating that she “could not fathom” it. I find that the order proposed by the father, which was similar to that proposed by the mother, taking into account the different long weekends and school schedules between the two countries, should be altered to provide more parenting time for the mother, taking into account the frequent trips to Toronto she will be able to make. If the parties are unable to agree on such a revised schedule, they may arrange for submissions and an attendance before me.

4. The Divorce

[95] The parties meet all requirements for a divorce and an order granting the divorce will issue accordingly.

Disposition

[96] The mother’s application for authorization to relocate the child to Naperville, Illinois is denied.

[97] The parties shall have joint decision-making of the child.

[98] The Applicant, Malgorzata Rygiel and the Respondent, Bryan John Mathes who were married at Winnipeg, Manitoba, Canada on August 14, 2010, shall be divorced and the divorce shall take effect 30 days after the date of this order.

[99] If the parties are unable to agree on a parenting schedule, they may arrange a date to make submissions before me through the Family Trial Office.

[100] The parties are encouraged to agree on costs of the trial. Should they be unable to do so, the respondent may provide costs submissions of no more than five pages double spaced, along with a bill of costs and any offers to settle, within 14 days. The applicant shall have 14 days to respond, with the same page limits. There shall be no reply submissions without leave. These submissions may be sent to my judicial assistant at linda.bunoza@ontario.ca.

L. Brownstone J.

Date: January 3, 2024