Rioux v. McCutcheon, 2022 ONCJ 246

ONTARIO COURT OF JUSTICE CITATION: Rioux v. McCutcheon , 2022 ONCJ 246 DATE: 2022 04 11 COURT FILE No.: FO-19-104 BETWEEN: Michael David Patrick Rioux “Applicant” — AND — Jessica-Lynn McCutcheon “Respondent” Before Justice B.C. Oldham Heard on December 6, 7 & 8, 2021 and January 19, 2022 Reasons for Judgment released on April 11, 2022 William Abbott .......................................................................... counsel for the applicant(

s) Farrah Hudani/Jessica Luscombe .................................. counsel for the respondent(

s) OLDHAM J.: [ 1 ] This trial involves a three-year old boy, Matthew John David Rioux, born [xxx], 2019 (“Matthew”). The Applicant, Michael Rioux (“Michael”) is the biological father (the “father”) and the Respondent, Jessica McCutcheon (“Jessica”) is the biological mother. [ 2 ] The parties were in a brief relationship which commenced in January 2018. They are both young, first-time parents. Michael is 31 years of age and Jessica is 26 years old. Jessica was attending a nursing program at Nipissing University in North Bay, Ontario when the parties met.

Michael is employed as a truck and coach technician and was employed in a similar capacity when the parties met. Jessica became pregnant soon after the parties started dating. They moved in together in September 2018. The relationship ended on April 18, 2019, when Matthew was only three months old. The final separation was marked by a domestic incident and police involvement which set a tone of lack of trust, high conflict and intense litigation. The Issues [ 3 ] The issues to be determined at trial included the following: a. Decision-making responsibilities.

Michael seeks an order for joint decision making, with the right to make the final decision if the parents cannot agree. Jessica seeks final decision-making responsibilities, with an obligation to seek and solicit input and opinions from Michael. Both agree that communication is and has been a challenge and that communication needs to take place through the ‘Talking Parent’ or some similar application. b. Mobility. Michael seeks an order confirming Matthew’s residence in North Bay. Jessica seeks approval to relocate to Sudbury with Matthew.

Variations in decision-making responsibilities may flow depending upon whether the move is approved, or if Jessica moves even if the relocation for Matthew is not approved. If Jessica is not allowed to relocate with Matthew and she proceeds with her plans to

move to Sudbury, Michael seeks an order granting him sole decision-making responsibilities. c. Parenting time. Michael seeks equal parenting time pursuant to a 2-2-5–5 parenting schedule. Jessica seeks an order providing Michael with parenting time three weekends a month with additional mid-week visits in Sudbury. The parties are in substantial agreement with respect to parenting time during the holidays, school breaks and special occasions which have been proposed and detailed by each party through draft orders provided to the court. d. Child Support.

Michael seeks an order for off-setting child support based on a shared parenting schedule. If Matthew is allowed to relocate, Jessica seeks an order for child support in accordance with the Child Support Guidelines . Both parties agree that an order for a proportionate sharing of special expenses, which include daycare, is appropriate. e. Costs. The issue of costs with respect to Michael’s contempt motion returnable on June 10, 2021, was reserved to trial. Jessica seeks a cost order in the amount of $1,754. Michael submits that the motion was necessary and that costs should not be ordered.

The Evidence [ 4 ] The parties obtained extensive disclosure prior to the trial which included police records, daycare notes and attendance sheets, medical records, hospital and Children’s Aid Society (“CAS”) records and a report by the Office of the Children’s Lawyer (“OCL”).

In accordance with the Trial Management Conference Endorsement, the evidence was present by affidavit and the parties, and their witnesses attended in person to be cross-examined. [ 5 ] In addition to his own testimony, Michael relied upon the evidence of his father, Donald Rioux; Jannah Avery, the operator of the North Bay Daycare and Learning Centre; Dr.

Gleeson, Matthew and Jessica’s physician in North Bay; and Sean Nolan, the facilitator for the Partner Assault Response Program (“PARS”). [ 6 ] Jessica relied upon the evidence of her father, John McCutcheon; Dude Senack, the biological father of Layton (Jessica’s and Dude’s daughter who was born […], 2021); Kelly Guillard, a friend Jessica met through the nursing program; and Hannah May, a friend Jessica met at the Tim Horton’s in North Bay in July 2019. [ 7 ] Carol Vaillancourt, the Clinician appointed by the Office of the Children’s Lawyer (“OCL”) testified with respect to her report dated January 10, 2020. [ 8 ] The parties also filed Statements of Agreed Facts which establish an agreement with respect to many aspects of the timing, caregiving and incidents that arose both prior to and after the separation.

Both acknowledge a relationship and bond between Matthew and the other parent. The main discrepancy in the evidence is with respect to who is responsible for conflict, litigation and lack of communication. Each party in their extensive affidavits set out in detail virtually every incident that occurred in their relationship and in their parenting of Matthew. Position of the Parties [ 9 ] Michael’s position is that he was an active and engaged father during the first three months of Matthew’s life. He claims that Jessica was controlling and irrational.

He claims that she would be physically aggressive and would insult him. He claims that he would not respond and would sit quietly waiting for her to calm down. Michael denies that he was intoxicated on either occasion when the police attended their home. [ 10 ] Michael has concerns about Jessica’s ability to manage her own health and worries about how that will impact her ability to care for Matthew. [ 11 ] Michael does not trust Jessica. He claims that Jessica fabricated the allegations against him so that she could get the strategic advantage in the litigation.

Since the separation, Michael claims that Jessica has failed to provide him with information about Matthew’s medical appointments and general well-being. He claims that she has made decisions about Matthew’s care without consultation and has unilaterally restricted his parenting time and created conflict at access exchanges.

Michael firmly believes that Jessica has not made reasonable efforts to find employment in North Bay and that she has been intent on moving Matthew from North Bay so that Matthew will not be able to have a relationship with his father. [ 12 ] Michael believes that it is in Matthew’s best interest that he stay in North Bay so that Matthew can continue to have the love and support of his family.

Michael does not believe that Jessica has a close relationship with her family and suggests that she has been creative in the presentation of her support group in Sudbury. [ 13 ] Jessica claims her relationship with Michael was impaired by the interference of his parents. She claims that their attitude towards her changed drastically when they announced the pregnancy. Their distain for her created considerable tension in her relationship with Michael. [ 14 ] Jessica claims that she felt that Michael was not supporting her in the care of Matthew during the first three months prior to their separation.

She claims that she attended to the majority of his caregiving and when she sought help, he was critical and dismissive. Rather than assist, he worked late or invited friends over to drink and play video games. [ 15 ] Jessica denies making false allegations and maintains that she was fearful of Michael in both February and April 2019 when the police were called.

She claims that he drank to excess and that he became angry and aggressive with her. [ 16 ] Jessica claims that she tried to find employment in North Bay but decided early on that she needed to return to Sudbury where she would have the support of her family. Jessica was able to obtain a permanent full-time position in her field in Sudbury and has obtained geared to income housing. Jessica believes that she will be able to ensure that Matthew maintains his relationship with his father and that the move to Sudbury is in Mathew’s best interest.

[ 17 ] Jessica claims that the lack of communication by the paternal grandparents created conflict that was not necessary. The tension has only strengthened her resolve that Matthew will be better off with her in Sudbury. She does not believe that Michael or his parents are prepared to encourage or facilitate her relationship with Matthew. Facts and Findings Relationship Prior to Matthew’s Birth [ 18 ] Michael was born and raised in the North Bay area. He has a close relationship with his mother, Diane Rioux and father, Donald Rioux who live in Callander, Ontario, approximately 20 to 30 minutes from North Bay.

Michael’s father, Donald, is a retired supervisor from a heavy equipment truck coach shop. His mother, Diane, is a Registrar/Clerk at the North Bay courthouse. Michael graduated from college and works as a truck and coach technician. At the time the parties met, he was working for Arnstein Equipment. At the time of the trial, he was employed with McDougal Transport. Both employers are located in or have branches in North Bay. [ 19 ] Jessica was born in Sudbury, Ontario. Jessica’s parents separated when she was 11 years of age.

She continued to live with her mother following the separation and remained with her until she was 16 years of age. She lived with her father, John, in Oakville, Ontario for a brief period of time when she was 16, but returned to Sudbury to reside with her aunt, Anita Norad that same year. In 2013, Jessica was admitted into the nursing program at Nipissing University. Jessica had significant health issues in October 2014 which resulted in her withdrawing from all classes for a year. During the entire period that Jessica was out of school, she lived with her father.

He supported and provided her with care until she was diagnosed with neuropathy and gastroparesis. She was placed on medication and able to return to school in mid 2015. Jessica graduated with a Bachelor of Science in Nursing from Nipissing University on June 7, 2018. Jessica suffers from Type 1 Diabetes which she has had since she was approximately 15 years of age. [ 20 ] When Jessica and Michael first started dating, they spent a lot of time at the paternal grandparent’s home in Callander. Michael was living with his parents at this time.

After learning of the pregnancy, the parties moved into a residence together which was located at 165 Sherryl Crescent in North Bay. [ 21 ] It was undisputed that Michael’s parents were concerned when they found out about the pregnancy. Jessica testified that their attitude toward her changed dramatically at that point. Donald Rioux confirmed in his affidavit and oral evidence that he and Diane asked Michael and Jessica to meet with them to have a discussion.

The grandparents raised a number of concerns such as how new Michael and Jessica were in their relationship and how Jessica’s pregnancy was high risk because she had Type 1 Diabetes. They asked about the couple’s plans to live together or in separate homes and questioned what would happen if the relationship did not last. Donald confirmed that Diane would encourage Jessica to eat properly and regularly once they learned of the pregnancy.

By any measure, the grandparent’s approach was a significant intrusion into the lives of this couple. [ 22 ] Jessica testified that their reaction caused considerable tension in her relationship with Michael and in her comfort around the paternal grandparents. Jessica testified that she felt that Michael was not as supportive as he could have been and that she was often left to attend pre-natal appointments on her own. Michael testified that he was working full-time and that he was unable to attend.

He expressed frustration with Jessica’s lack of personal care, including her lack of healthy eating and proper management of her diabetes during the pregnancy and before.

While Michael and his parents downplayed the suggestion by Jessica that there was friction in the relationship prior to Matthew’s birth, this court accepts Jessica’s claim that she was distraught and uncertain about the relationship to the extent that she was reaching out to her friends and father for support. [ 23 ] Jessica’s father, John McCutcheon (“John”), testified that he first met Michael in April 2018 and that he seemed nice, but that “many red flags appeared over the next few months”.

He testified that he observed Michael and his parents to be intoxicated at the ‘gender reveal’ in September 2018 and that he became at bit concerned at this point. He described Michael as extremely drunk by the end of the baby shower (which was on another occasion). He described how Jessica reported that she continued to work throughout the pregnancy and that Michael often belittled her job and that she was left to do the majority of the chores around the house. He described the call on February 9, 2019 when Jessica called him “crying loudly and in obvious distress”.

John tried to console his daughter as she described the lack of support she was feeling. She called an hour later reporting that Michael had overheard the conversation and became so irate that she called the police. [ 24 ] Kelly Gillard (“Kelly”) received similar calls. She testified that as of September 2018 “Jessica would regularly call [her] crying and confide in [her] about arguments she was having with Michael”. Kelly described Jessica as anxious, worried and unsure of what to do about her relationship with Michael.

Jessica relayed concerns about Michael being belligerent and scaring her when he was drinking. Jessica called Kelly to pick her up from Michael’s parents one evening. Kelly described Jessica as begging her to come because Michael could not or would not drive her home. She found Jessica sitting outside crying by herself. Jessica called Kelly on February 9, 2019 and reported similar observations as Jessica’s father. Kelly reported that Jessica “sounded really upset and shaken”.

Jessica reported that Michael was drunk, she feared for her safety and the police were called and drove him to his parents. [ 25 ] Michael denies that he was ever intoxicated, belligerent or argumentative. He claims that Jessica was violent and unpredictable. There is no corroboration for this claim. Even Michael’s parent’s do not describe any incidents where they observed Jessica to be aggressive or where Michael reported these concerns to them.

They maintain, however, that all of Jessica’s allegations are false and deny that they or Michael have ever been intoxicated in Jessica’s presence. [ 26 ] The court accepts Jessica’s evidence regarding the tension and arguments in the relationship before the separation. It is corroborated by her father and by Kelly. It is consistent with Michael’s evidence that he felt that Jessica was not doing her share of the household chores and that he was often frustrated.

Jessica’s reports of feeling belittled are strengthened by Michael, Donald and Diane’s evidence that they did not believe that Jessica was capable of caring for herself, much less a child. The court does not accept that Jessica made up allegations of excessive drinking. Jessica’s father observed it on at least three occasions. Her father was credible and supportive of the relationship and pregnancy at the beginning. It was not until there were repeat calls and observations that he took note of the red flags that began to appear. Relationship and Roles following the birth of Matthew

[ 27 ] The tension and division of roles continued and escalated after Mathew was born […], 2019. [ 28 ] Matthew was born with a number of medical issues which included a large hematoma from the forceps delivery and laryngomalacia (soft larynx and vocal cords). He had approximately 15 doctor’s appointments in the first three months of his life. In the first four months of Matthew’s life, he was in the hospital overnight on three separate occasions.

When he was almost two months old he contracted an MRSA (Methicillin-resistant Staphylococcus Aureus) infection and required intravenous antibiotics and a hospital stay from February 5 th to February 8 th , 2019. [ 29 ] Jessica expressed frustration with Michael’s lack of attendance at the various appointments and hospital stays. Michael’s evidence was that he was unable to attend appointments because Dr. Gleeson’s office was only open during his work hours.

He noted that he did attend two appointments which he deemed to be important as one required his family’s medical history and the other was a follow up on his own concerns regarding Matthew’s health. He took time off work to attend these appointments. [ 30 ] Michael denies that he was not involved in early days and denies that Jessica was primarily responsible for caregiving tasks such as bathing, changing and feeding Matthew. Jessica claims that she did the majority of the caregiving tasks, even when Michael was home from work.

Michael acknowledges that he felt obligated to work to financially support the family and notes that he did some after hours work and acknowledges being at the shop for longer hours before Matthew was born to repair a Jeep Grand Cherokee for the family. [ 31 ] While Michael provided explanations for his absences, there is no question that Jessica took on the primary caregiving role during the first three months of Matthew’s life while the two lived together. This is confirmed by the evidence of Kelly, Jessica’s former roommate and friend who spent time with Michael and Jessica before and after Matthew’s birth.

Her evidence was that she would come by regularly, at least three times a week, after Matthew was born to help Jessica. She acknowledged that Michael helped Jessica at first, but that he returned to working long hours within two weeks of Matthew’s birth. [ 32 ] Kelly’s evidence was that Michael was often away working when she visited Jessica and Matthew. She testified that she would try to stay with Jessica until he came home to provide support, but that eventually Michael was staying out so late that she would have to leave before he came back.

Kelly claimed that she was called to pick Jessica up from the hospital following the three-day stay in February 2019, because Michael was busy at work. Kelly was a credible witness. She was friends with and supported both Michael and Jessica in the early stages of their relationship. Moreover, none of Kelly’s evidence of her observations are inconsistent with Michael’s evidence that he was working long hours to support the family financially. [ 33 ] Kelly also testified that she observed Michael to refuse to cook, clean, change diapers or bathe Matthew.

While Michael claims that he assisted when he came home, he acknowledges that he was tired and that he urged Jessica to wake up through the night during the week to care for Matthew. Michael’s evidence was that he worked from 8:00 am until 5:30 or 6:00 pm. Jessica claims that Michael routinely came home after 8:00 pm and often not until 9:00 or 10:00 pm. [ 34 ] The court accept Jessica’s evidence that Michael was working late and that she continued to be the primary caregiver in the evenings and weekends. This evidence is consistent with Kelly’s observations and the tensions forming between Jessica and Michael.

Michael confirmed that he felt that Jessica should be doing more of the chores at home given that he was working long hours. If he was working long hours, he was not available to assist Jessica to the extent he claims. [ 35 ] The tensions boiled over on February 9, 2019 and on April 18, 2019. [ 36 ] Jessica returned home on February 8, 2019, after spending three days in the hospital with Matthew. Michael claims that he asked, and Jessica agreed to him inviting friends over that evening. He claims that these friends came to share exciting news of their pregnancy.

Michael acknowledges that when they arrived, Jessica said that she was going into the bedroom for awhile and might come out after. That is not indicative of a person ready to receive guests. Jessica claims that Michael and his friends drank and played music and video games late into the night and that she was frustrated and exhausted when she could not wake him up the next morning to help with Matthew as promised. Michael acknowledges that he had agreed that he would assist with Matthew the next day. [ 37 ] Jessica’s evidence of what occurred the next day is supported by her father’s affidavit.

He confirms that Jessica called him in the early hours of February 9, 2019. She was crying, exhausted and frustrated that Michael was not helping her. Jessica claims that Michael overheard this conversation and woke up and confronted her about it. The police were called and Michael does not deny that there was a verbal dispute. Michael acknowledges that he agreed to leave because Jessica had no where else to go.

This was to be a cooling down period, but Michael also acknowledges that the level of conflict had risen to the stage that he felt he should move out and return to live at his parent’s home for a period of time. He claims that he no longer trusted Jessica ‘after she made the first false allegation about him to the police’. [ 38 ] Michael claims that he was not drinking that night and the allegation by Jessica that he was intoxicated was a false allegation.

Whether he was intoxicated or not, the fact that Michael takes no responsibility for the impact that his late night videogaming may have had on his partner and child who just returned from a three-day hospital stay, is concerning. The Separation [ 39 ] The parties separated following a second incident involving the police on April 18, 2019. On this occasion, there was another altercation and Jessica called the police. Kelly testified that the call was at her direction after they were unsuccessful in de-escalating the situation.

Michael disputes this and claims that Jessica was the one who decided to call the police and that she did this, and made-up false allegations of abuse to strategically restrict his time with Matthew. Michael claims that Kelly told Jessica not to call the police. Kelly’s evidence was that Michael threatened that “if Jessica did this [call the police] he would leave her and she would never see Matthew again”. Michael denies that he made this threat. [ 40 ] Jessica did call the police and they attended on April 18, 2019. After speaking with Jessica, Michael was arrested and charged with domestic assault.

Kelly claims that he continued to make threatening remarks such as “see what you did”, “there’s no coming back

from this” and “you’ll be sorry”. She claims that he was told by the police to stop talking. The court accepts Kelly’s observations from that night. She was a credible witness and was called over to help de-escalate. Her observations were detailed. Michael claims that her evidence that he had been drinking is inconsistent with the officer’s decision to allow Michael to continue his efforts to feed Matthew. He claims that this is evidence that Kelly and Jessica were lying and exaggerated the events of that night. The court does not agree. Unless Matthew was in danger, there would be no reason to pull Matthew away.

Michael was sitting on the couch at that time and the other officer was talking to Jessica. [ 41 ] Jessica’s affidavit sworn on October 29, 2021 indicates that she understands that the police lost her original statement and the photographs they took of her injuries. Michael claims that the photo’s taken by Jessica were undated and prove nothing. He claims that she only went to a clinic five days after the incident and that the marks depicted in her photos could have been anything. [ 42 ] The records from the North Bay Police Service were produced on November 26, 2021 and filed as Exhibit #6 at the trial.

These records include Jessica’s statement and the date stamped picture of what appears to be a red mark on her shoulder. This photo is the one taken by the North Bay Police Service in the kitchen on April 18, 2019. Michael denies that he assaulted Jessica and advises that the charges have been withdrawn. The fact that the charges have been withdrawn does not confirm that there was no physical contact.

Michael’s claim that Jessica’s allegations are completely false are belied by Jessica’s evidence, the photos taken by the officer that night and by Jessica’s follow-up visit to the walk-in clinic on April 23, 2019. [ 43 ] The court accepts Jessica’s claim that there was some jostling and physical contact. She claims she was elbowed and pushed to the ground. She did not suffer any serious injury, but claims to have been in pain for several days following the incident. [ 44 ] Michael also claims that he voluntarily completed PARS.

This is an example of Michael’s evidence falling short in terms of being completely candid with the court. Sean Nolan, the PARS Facilitator testified and confirmed that PARS is a mandatory program and that it is either mandated by the court or a probation officer. In this case he believed it to be by the court as he was contacted by Michael’s lawyer. The court acknowledges that Michael may have agreed to engage in the PARS program, but it appears that this was done in the context of the criminal charges.

There is no evidence before the court that Michael he took the PARS program or an equivalent voluntarily in the sense that he wanted to take a program to inform himself of issues around domestic violence. Michael maintains that the allegations were completely false, that he is non-violent and does not drink to excess. [ 45 ] Regardless of the outcome of the criminal proceedings, these incidents cannot be categorically dismissed as false allegations. They are incidents of domestic violence. [ 46 ] Both Michael and Jessica agree that the disagreement was around the fact that Jessica had not started to make dinner.

Michael claims that he offered to help when he finished the maintenance on his vehicle. Jessica claims that she had been in the hospital with Matthew all day and that she told Michael she needed to rest before making dinner. [ 47 ] Jessica decided to leave to avoid conflict and was packing Matthew in a car seat. Michael took Matthew out of the car seat and locked himself and Matthew in the bathroom for a period of time. Jessica called her friend, Kelly, to come over to assist.

Although Matthew was only three months old at the time, the environment, the tone and the interaction between these parties that night was escalated and negatively impacted Matthew who was reportedly crying for most of the time when he was locked in the bathroom with Michael. When he came out, Michael refused to allow Jessica to console Matthew and sat on the couch trying to bottle feed him.

Matthew was being breast fed at this time. [ 48 ] Michael claims that Jessica was rough when she put Matthew into the car seat and that he was alarmed and fearful that she would be rough again, so he needed to remove Matthew from Jessica. The court does not accept that this was the reason Michael removed Matthew. If that was his concern, the situation would have de-escalated when Kelly arrived. Michael did not want Jessica to leave with Matthew and was prepared to lock himself in the bathroom with Matthew to prevent that from happening. [ 49 ] Again, Michael takes no responsibility for his role.

He claims that it was a “minor disagreement when he asked Jessica to start dinner”. He maintains repeatedly that the allegations were false allegations, false charges and that Jessica did this to strategically gain an advantage in family law proceedings. The court does not accept that characterization. Jessica’s decision to call a friend, before the police and her private hand-written note to Michael dated April 19, 2019 suggest otherwise. She was scared and needed assistance to de- escalate the situation. Her letter to Michael asks for space and understanding.

She was hopeful that the relationship could continue. Jessica did engage in counselling for domestic violence and provided a letter from Nipissing Transition House dated July 25, 2019 confirming her attendance since May 21, 2019. [ 50 ] Michael claims that Jessica is the one that is aggressive and that she yells and screams at him. This is not borne out in the evidence. Jessica’s demeanour in court and the patience demonstrated through her notes in the communication book are not consistent with Michael’s description.

Jessica’s friends and family describe her as supportive, loving, generous, kind, funny, and nurturing. Neither the Daycare providers, nor Dr. Glesson note any concerns regarding anger or irrational behaviour. Dr. Glesson’s letter dated September 24, 2021 confirms that she has “never seen any aggression and [has] no concerns about Matthew or Mom”. She describes mom as “completely appropriate. She always brings Matthew in when he is sick.” [ 51 ] The CAS was contacted on April 20, 2019. The caller reported concerns about Jessica’s ability to care for Matthew.

These concerns included the risk that Jessica may be aggressive with Matthew and that she was “lazy, gets frustrated and [that the caller] finds her to be overwhelmed”. The CAS closed its file on July 31, 2019 after meeting with Jessica and investigating the concerns. The CAS noted that “Jessica presents with numerous strengths”. There were no concerns about her home or care of Matthew and she was described as presenting “as attentive, responsive and affectionate toward Matthew.” In terms of aggression she was described as presenting “as being well balanced, calm and attentive toward Matthew”.

The CAS records are redacted, but it was acknowledged that the caller was Michael’s mother, Diane Rioux. [ 52 ] Even though the paternal grandparents made a number of negative comments about Jessica, Donald did not describe any incidents where he observed Jessica yelling or screaming. Donald’s main concern was around Jessica’s behaviour at the exchanges where she would be insistent on saying goodbye to Matthew or adjusting his car seat straps which he felt was unnecessary. Donald was

convinced that Jessica’s every move was an effort to breach Michael to make the grandparents look bad. He believed that she would intentionally tug on Matthew’s car seat straps to make him cry. The video recordings provided to the court do not show any signs of aggression or even an elevated tone of voice or posturing by Jessica at the exchanges. This line of reasoning by Donald demonstrates the deeply entrenched lack of trust. There is no question that there were times when Jessica lingered longer than she should have and that perhaps a quick exchange may have made the transitions smoother.

However, the court does not accept that she did anything to attempt to make Matthew uncomfortable or to make the grandparents look bad. She is a young mother adjusting to leaving her infant child. The court does not accept that Jessica was aggressive or violent with Matthew or with Michael. [ 53 ] In contrast, there are police reports documenting some concerning behaviour by Michael. The police records are dated and the court accepts Michael’s acknowledgement that he was not perfect growing up.

This acknowledgment is a recognition of the inappropriateness of his conduct at the time and supports his claim that he has changed and is more focused on work and getting ahead. Notwithstanding the progress Michael may have made, the court does not accept his claim that he sat patiently discussing issues with Jessica while she yelled and screamed at him and throughout this tug of war with Matthew on April 18, 2019.

Michael is not being candid with the court about his role in the escalation and the conflict that occurred on April 18, 2019. [ 54 ] Following the arrest, Michael was released on a Promise to Appear and an Undertaking to Peace Officer which included a condition that Michael was to “abstain from communicating directly or indirectly with Jessica McCutcheon or from going to 165 Sherryl Crescent, North Bay, Ontario or any subsequent residence of Jessica McCutcheon expect through counsel.

Litigation Following the Separation [ 55 ] As a result of the incident and the non-communication condition, Michael was unable to have liberal access to Matthew following the separation. [ 56 ] Jessica is critical of the fact that Michael did not reach out for access until May 31, 2019. Michael describes this time as being very difficult for him. He had to move out of the residence at 165 Sherryl Avenue. He was away from Matthew. He was dealing with the criminal charges and had no real means of finding out how Matthew was doing during this period of time.

Apart from having his parents reach out to Jessica to ask for access, the court accepts that there was little Michael could do at this early stage to arrange for parenting time with Matthew without the assistance of a lawyer or a court proceeding. [ 57 ] Michael retained a family lawyer and made a request for access through counsel on May 31, 2019. Jessica’s response at that time was to ask for supervised access. Michael was not prepared to have his access supervised and accordingly, he did not accept any access until August 5, 2019 following a motion that was heard on July 31, 2019.

At that time, Justice Mendes made an order for the gradual reintegration of Michael into Matthew’s life (the “2019 Mendes Order”). She did not agree that supervision was necessary. The parenting time under the 2019 Mendes Order commenced with two-hour visits three times per week in August 2019 and progressed to one overnight commencing September 9, 2019, increasing to two overnights as of January 2020.

The exchanges were to be facilitated by the paternal grandparents at the Tim Hortons between Callander and North Bay. [ 58 ] By letter from the Crown Attorney dated August 13, 2019, Michael was advised that the non-communication condition was varied to include a further exception: “except through a third party for the purposes of arranging for access pursuant to a valid family court order.” [ 59 ] The 2019 Mendes Order also included a restriction preventing either party from changing Matthew’s ordinary residence from North Bay, without consent or further court order. [ 60 ] From August 2019 until March 2020 exchanges occurred at the Tim Horton’s between Callander and North Bay.

Hannah May (“Hannah”), who had befriended Jessica provided an affidavit of her observations of the exchanges during this period of time. Hannah worked as a supervisor at the Tim Horton’s and testified that she observed the exchanges twice a week. She described the exchanges as uncomfortable to watch noting that the paternal grandparents would often ignore Jessica completely and look right past her and act as if she did not exist.

Hannah said, “It made me sad for her watching this each week”. [ 61 ] Donald testified that he experienced a lot of difficult situations during the exchanges and attributes the difficulties as being Jessica’s attempts to discourage a healthy relationship with his family. He goes on to describe a number of situations where he believes that Jessica was trying to breach Michael by meeting up with him in a Subway restaurant or by approaching the vehicle.

Jessica denies knowing that Michael was at the various locations and denies any effort to cross paths with him. [ 62 ] The court was provided with videos of a few of the exchanges. Two cameras were mounted inside the paternal grandparent’s vehicle. One to capture the view out the front window and a second to capture a view of the backseat where Matthew was placed in his car seat. On August 14, 2019, the second week of access visits, the paternal grandparents called the police to assist with the exchange.

The video shows the exchange and the placement of Matthew in his car seat in the back of the vehicle by the grandparents. Donald says that Jessica then approaches the backseat but is unable to access Matthew as the door is locked. The grandparents refuse to give her access to the inside of their vehicle and Jessica positions herself in front of the vehicle while her friend tries to negotiate with Donald and Diane to allow Jessica the opportunity to say goodbye to her son. Jessica is clearly emotional and is seen wiping tears from her eyes as she stands in front of the vehicle.

In her evidence Jessica acknowledges that this was a difficult time for her. She was anxious about leaving Matthew and concerned about Michael’s parenting time given the health issues with Matthew and the lack of communication. Jessica testified that the lack of communication by Diane and Donald was the most concerning part of the exchanges. She describes how they would not even look at her or acknowledge her. They simply wanted to get Matthew in the car and leave. [ 63 ] Jessica’s description of the tone of the exchange is confirmed by the video and by Donald’s evidence.

He testified that he and Diane wanted nothing to do with Jessica. He just wanted to pick up Matthew and leave. On the video, Diane and Donald are seen to respond to Jessica’s friend by telling her that Jessica is to say her goodbyes before she approaches their car. She is to hand Matthew over and she is not entitled to enter or reach in the car to say goodbye. When Jessica does not leave the front of the vehicle, the police are called. Diane and Donald are heard explaining to Jessica’s friend that there is a court order which prohibits Jessica from being in their car.

Presumably the reference is to the criminal non-communication provision. There is nothing in either the family court order or the

criminal non-communication provision which restricts Jessica from saying goodbye to Matthew while seated in the Rioux’s vehicle. Jessica’s friend appears to accept the information at face value. The friend acknowledges that this is new information and shortly after returning to her car, she and Jessica leave. They depart before the police arrive. [ 64 ] In his affidavit and in cross examination, Donald maintained that he intentionally refused to engage with Jessica as he believed that any communication would be a potential breach of Michael’s release conditions and he was not prepared to risk a breach.

This attitude demonstrates an extraordinary level of distrust and the complete absence of any desire to take practical steps to reduce the tension and stress that was so apparent at the exchanges. [ 65 ] The paternal grandparent’s position with respect to communication moves from unreasonable to outrageous when viewed in light of the efforts made by Jessica to manage the issue. Not only did she try to bring a self-represented motion seeking communication through the Family Wizard or Talking Parents in August 2019, she initiated a written communication book when she was unable to proceed with that motion.

Jessica wrote in the communication book consistently and appropriately from September 2019 until January 31, 2020 without receiving a single response from the paternal grandparents. The communication book describes Matthew’s feeding, bathing and sleeping routines. It notes medications and any health or dietary concerns. Jessica’s comments are not judgemental, critical and almost without exception, they are completely child focused.

There may be a couple of comments where there is a hint of frustration, but that would be expected in the circumstances. [ 66 ] The paternal grandparents maintain that they could not respond because of Michael’s restrictions, even though the restriction was changed on August 13, 2019. If there were any concerns about ambiguity, that could have been addressed. The Crown’s consent to the variation in August 2019, demonstrated an agreement that communication through a third party was not problematic as long as it was child focused. Jessica’s communications were child focused.

Donald acknowledged in cross examination that there were no further changes to the conditions in January 2020 when they finally started to write in the communication book. [ 67 ] By January 2020, the refusal to communicate had reached the point of being inexcusable. On December 27, 2020, the paternal grandparents recognized that they needed to get some information to Jessica. Matthew had been sick and they had administered medication. They wanted to ensure that Jessica did not give him too much not knowing what had been provided.

Notwithstanding their concerns, rather than address her directly at the Tim Horton’s during the exchange, Donald loudly announced the information to a complete stranger anticipating that Jessica would hear or that the stranger would properly relay the information. [ 68 ] The grandparents then communicated the information to Michael’s family counsel hoping that the information would get to Jessica in a timely manner. The date of this incident was December 27, 2020, falling between Christmas and New Years when one might reasonably expect counsel to be off on holidays or at least taking a break from the office.

Given the nature of the information, it needed to be communicated immediately. [ 69 ] In all of the circumstances, including the ongoing communication log by Jessica, the number of exchanges that had occurred, the fact that the exchange was in a public location, the variation to the Undertaking to provide for third party communication, the paternal grandparent’s actions on this occasion were indefensible. Donald and Diane understandably wish to protect and support their son, Michael. They are no doubt great grandparents to Matthew.

However, there has to be a point at which one recognizes that the level of disfunction affects the child. [ 70 ] Donald, in his evidence at trial, did not back down from his actions at the exchanges or on this occasion. He described Jessica as working her agenda at the exchanges. When asked what agenda, Donald explained that he believed she was trying to keep Matthew from Michael and the rest of his family. He believed that she intentionally tried to upset Matthew to create conflict or to make them look bad. He thought she was dishonest and was concerned about how her improper morals would impact Matthew.

His approach to the access exchanges and obvious distain for Jessica leaves the court with no confidence that he, or Diane, will be able to let their guard down enough to respect or foster the relationship between Jessica and Matthew. It is also clear to the court that they have a significant impact on Michael and his approach to Jessica. Michael endorsed their concerns and their decision to limit all communication and have minimal contact during the exchanges. With respect to the incident on December 27, 2020, Michael described it as “not ideal”, but defended their actions.

Unfortunately, Michael’s distrust of Jessica parallels that of his parents. [ 71 ] Shortly after the incident on December 27, 2020 communication by way of the communication book started for the Riouxs, but the litigation did not end. [ 72 ] The OCL who had been appointed in the 2019 Mendes Order provided its report on January 10, 2020 (the “Report”). The Report recommended an order for full custody to Jessica and an order granting her leave to relocate to Sudbury. The Report further recommended longer, but less frequent access in light of the relocation.

Three weekends a month, plus holidays and summer access was recommended. Communication was noted to be an issue and the use of a communication tool was recommended if the difficulties continued. [ 73 ] Counsel for Michael submits that the Report is biased and flawed in that the Clinician accepted Jessica’s information without confirmation and failed to properly investigate and engage the appropriate collaterals. While the Report appears to be thorough, it is dated. As noted by counsel for Michael a lot has changed since the Report. Matthew is much older.

Michael had only just begun having parenting time with Matthew and had not even had an overnight visit with him by the time the Report was released. [ 74 ] Ms Vaillancourt acknowledged that the changes may have an impact on her recommendations if she were asked to provide an update. Given the stage of these proceedings and the resulting delays that would follow if an update were requested, neither counsel felt that an update was appropriate.

At the time of the trial, Matthew was only three years old and accordingly, his wishes and preferences would be difficult to ascertain, even with the assistance of a clinician. Consequently, to the extent that the Report relies upon the circumstances in 2019 and 2020 and Jessica’s role as the primary caregiver, it does not fairly take into consideration Michael’s increased engagement and relationship with Matthew. The recommendations are dated and cannot be given much weight in these proceedings. [ 75 ] On January 16, 2020, six days after the release of the Report, Jessica was served with a motion for contempt.

The motion involved a misunderstanding of the 2019 Mendes Order. As of January 2020, access moved from one overnight to alternate weekend

access. Understandably, Michael wanted to preserve his parenting time and interpreted the Order as providing for ongoing two-hour parenting times on Mondays, Wednesdays and Fridays. Jessica interpreted the Order as ending these visits when the full weekend parenting time commenced. Although it was ultimately determined that Jessica’s

interpretation was wrong, as noted by Justice Villeneuve, ‘a simple phone call to the court to arrange a five minute telephone call with Justice Mendes to clarify the terms of her order would have, in my view, sufficed to clarify for both parties”. Jessica’s counsel had suggested that approach. [ 76 ] Following a settlement conference on March 27, 2020, the parties consented to an expansion of Michael’s parenting time as an “interim, without prejudice arrangement made in light of the pandemic”. Michael’s employment was suspended for a period of time allowing him more time with Matthew.

Pursuant to the terms, Michael’s parenting time increased from every other weekend and Wednesday evenings to include an overnight on the opposite weeks such that Matthew was with his father approximately four days over a 14 day period. [ 77 ] The exchanges at Tim Horton’s also ended at this time and the exchanges moved to Jessica’s and the paternal grandparent’s homes.

Donald started to pick up Matthew at Jessica’s home at the beginning of Michael’s parenting times and Jessica would pick up Matthew at the Rioux’s home at the end of Michael’s parenting time. [ 78 ] While the exchanges improved, the limited communication, allegations of stalking, watching and documenting exchanges, continued on both sides. [ 79 ] Donald describes and provides a video of an exchange in August 2020. Michael is in the back seat receiving Matthew who is fussy and begins to cry. Jessica is seen to be hovering while Donald attempts to put Matthew in the back seat.

All three appear to be working relatively co-operatively to calm Matthew, offering toys and a bottle. At one point, Donald suggests taking Matthew for a short walk to calm him and have Michael drive a block or so to meet him. Jessica follows him. Her continued presence at this stage is problematic. Matthew likely would have calmed quicker if she had simply said goodbye and departed. Michael was present and appropriately calming Matthew. [ 80 ] Matthew started daycare in July 2020. Exchanges eventually moved to the daycare centre which further reduced the interactions and opportunities for allegations.

Communications continued to be problematic, with allegations by Michael that Jessica did not properly advise him of medical appointments, health concerns and Covid testing. The court reviewed the volumes of communication notes through the communication book and the Talking Parents App which started in April 2021.

While there may have been a couple of occasions where a Covid result or an appointment may not have been communicated, taken together, the logs confirm that Jessica is prepared to and has provided the father with timely, appropriate notification of all of the major milestones and issues relative to Matthew’s care. [ 81 ] On May 20, 2021, the parties consented to a further temporary order that expanded Michael’s parenting time to six days in a 14 day period.

Matthew is picked up at day care at noon on Wednesday and stays in his father’s care until Friday morning in week one and then from Thursday at 5:00 pm to Monday morning in week two. [ 82 ] At the same time, the motion by Jessica to relocate to Sudbury and the cross-motion by Michael for primary residence and decision-making responsibility of Matthew were stayed pending final determination of the matter by way of trial. [ 83 ] On May 26, 2021, Jessica texts Michael to confirm that she has been asked by the daycare to drop Matthew off at 2:00 pm so that he does not disturb the other children who are napping.

She informs Michael he can still pick up Matthew right after work and that it will not result in an absent day if Matthew is only there for 1-2 hours. Michael’s response was “my access starts at noon I’ll be contacting my lawyer.” [ 84 ] On May 31, 2021, Michael served Jessica with the second motion for contempt alleging that she had moved to Sudbury in breach of the 2019 Mendes Order. While both parties filed materials for the motion which was returnable on June 10, 2021, the motion did not proceed as the information requested had been provided to Michael by the return of the motion.

Costs of that motion are an issue to be determined in this trial. The Law [ 85 ] This case commenced in May 2019 with claims for custody and access. The law regarding mobility and the language in the Children's Law Reform Act (“ CLRA ”) changed on March 1, 2021. Custody and access are now described as decision-making responsibilities and parenting time. In closing, both counsel focused on the issue of mobility.

While mobility features large, there is no agreement with respect to decision-making and parenting time and those issues need to be determined first, but also in the context of Jessica’s request to relocate from North Bay to Sudbury which is an approximately 1.5 hour drive. [ 86 ] The relevant sections of the CLRA regarding mobility and parenting orders are set out below. Parenting order, application by parent 21

(1) A parent of a child may apply to a court for a parenting order respecting, (

a) decision-making responsibility with respect to the child; and (

b) parenting time with respect to the child. Best interests of the child 24

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

Primary consideration

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

(3) Factors related to the circumstances of a child include, (

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

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

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

d) the history of care of the child; (

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

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

g) any plans for the child's care; (

h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child; (

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

j) any family violence and its impact on, among other things, (

i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and (ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to co-operate on issues affecting the child; and (

k) any civil or criminal proceeding, order, condition or measure that is relevant to the safety, security and well-being of the child. Factors relating to family violence

(4) In considering the impact of any family violence under clause (3) (j), the court shall take into account, (

a) the nature, seriousness and frequency of the family violence and when it occurred; (

b) whether there is a pattern of coercive and controlling behaviour in relation to a family member; (

c) whether the family violence is directed toward the child or whether the child is directly or indirectly exposed to the family violence; (

d) the physical, emotional and psychological harm or risk of harm to the child; (

e) any compromise to the safety of the child or other family member; (

f) whether the family violence causes the child or other family member to fear for their own safety or for that of another person; (

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

h) any other relevant factor. 2020, c. 25 , Sched. 1, s. 6. [ 87 ] The amendments to the CLRA also include

definitions in ss. 18(1) which include: “contact” means the time a child spends in the care of a person other than the child’s parent, whether or not the child is physically with the person during that time; “contact order” means an order made under

section 28 respecting contact with respect to a child; … “decision-making responsibility” means responsibility for making significant decisions about a child’s well-being, including with respect to, (

a) health, (

b) education, (

c) culture, language, religion and spirituality, and

(

d) significant extra-curricular activities; … “family violence” means any conduct by a family member towards another family member that is violent or threatening, that constitutes a pattern of coercive and controlling behaviour, or that causes the other family member to fear for their own safety or for that of another person, and, in the case of a child, includes direct or indirect exposure to such conduct; “parenting order” means an order made under

section 28 respecting decision-making responsibility or parenting time with respect to the child; “parenting time” means the time a child spends in the care of a parent of the child, whether or not the child is physically with the parent during that time; (“temps parental”) “relocation” means a change in residence of a child, or of a person who has decision-making responsibility or parenting time with respect to the child or is an applicant for a parenting order in respect of the child, that is likely to have a significant impact on the child’s relationship with, (

a) another person who has decision-making responsibility or parenting time with respect to the child or is an applicant for a parenting order in respect of the child, or (

b) a person who has contact with respect to the child under a contact order; … [ 88 ] Subsection 18(2) of the CLRA contains an expansive definition of what constitutes family violence. It reads as follows: "Family violence" 18

(2) For the purposes of the definition of "family violence" in subsection (1), the conduct need not constitute a criminal offence, and includes, (

a) physical abuse, including forced confinement but excluding the use of reasonable force to protect oneself or another person; (

b) sexual abuse; (

c) threats to kill or cause bodily harm to any person; (

d) harassment, including stalking; (

e) the failure to provide the necessaries of life; (

f) psychological abuse; (

g) financial abuse; (

h) threats to kill or harm an animal or damage property; and the killing or harming of an animal or the damaging of property. [ 89 ] The amendments with respect to residence and relocation of a child are set out in s. 39.1 and following of the CLRA . The relevant provisions regarding relocation are as follows. Relocation 39.3

(1) A person who has decision-making responsibility or parenting time with respect to a child and who intends a relocation shall, at least 60 days before the expected date of the proposed relocation, notify any other person who has decision-making responsibility, parenting time or contact under a contact order with respect to the child of the intention. 2020, c. 25 , Sched. 1, s. 15. Notice requirements

(2) The notice shall be in the form prescribed by the regulations or, if no form is prescribed, shall be in writing and shall set out, (

a) the expected date of the proposed relocation; (

b) the address of the new residence and contact information of the person or child, as the case may be; (

c) a proposal as to how decision-making responsibility, parenting time or contact, as the case may be, could be exercised; and (

d) any other information that may be prescribed by the regulations. 2020, c. 25 , Sched. 1, s. 15. ….. Best interests of the child 39.4(3) In determining whether to authorize the relocation of a child, the court shall take into account the best interests of the child in accordance with

section 24, as well as,

(

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 is an applicant for a parenting order with respect to the child, and the level of involvement in the child's life of each of those persons; (

d) whether the person who intends to relocate the child has complied with any applicable notice requirement under

section 39.3 and any applicable Act, regulation, order, family arbitration award and agreement; (

e) the existence of an order, family arbitration 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 decision-making responsibility, parenting time or contact, taking into consideration, among other things, the location of the new residence and the travel expenses; and (

g) whether each person who has decision-making responsibility or parenting time or is an applicant for a parenting order with respect to the child has complied with their obligations under any applicable Act, regulation, order, family arbitration award or agreement, and the likelihood of future compliance. 2020, c. 25 , Sched. 1, s. 15. Factor not to be considered

(4) In determining whether to authorize a relocation of the child, the court shall not consider whether, if the child's relocation were to be prohibited, the person who intends to relocate the child would relocate without the child or not relocate. 2020, c. 25 , Sched. 1, s. 15. Burden of proof

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

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

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

(8) If an order referred to in subsection (5) or (6) is an interim order, the court may determine that the subsection does not apply. 2020, c. 25 , Sched. 1, s. 15. [ 90 ] Prior to the above amendments, there were no specific statutory provisions in the CLRA which addressed the issue of mobility or the relocation of a child’s residence.

These changes are still relatively new and accordingly, there are only a few cases which specially address these provisions. [ 91 ] Counsel for Michael submits that the amendments have drastically changed the law in this area and that the court must be cautious in relying on jurisprudence decided before the amendments to the CLRA on March 1, 2021. The court, counsel submits, is limited to the specific considerations set out in ss. 39.3 and 39.4 of the CLRA .

Notably, the happiness and well-being of the caregiver proposing the move is not part of the framework under s. 39.3 and 39.4 of the CLRA and counsel submits, should not be determinative as it is not a child-focused inquiry. [ 92 ] Counsel for Jessica submits that the changes to the CLRA , simply codify or enshrine the recent trends in the mobility decisions. The emotional and psychological well-being and happiness of the primary caregiver, she submits is still a relevant and important consideration.

The well-being of the caregiver impacts the well-being of the child which is an enunciated best interests factor. [ 93 ] Counsel for Jessica also submits that the four principles applied by the Ontario Divisional Court in Kazberov v. Kotlyachkova , 2021 ONSC 5006 (” Kazberov ”) are still appropriate and applicable in this case. At paragraph 56 the court in Kazberov sets out the four principles and at paragraph 57 notes the application in cases of unmarried couples who are not subject to the provisions of the Divorce Act .

Specifically, Justice Sachs refers to the following and then concludes that the trial judge failed to apply the four principals: [56] In Bourke v. Davis , 2021 ONCA 97 , the Court of Appeal dismissed an appeal from a trial decision allowing the mother to move to the state of Washington from Ontario with her two boys, ages six and four, to be with her second husband. In doing so, at para. 20, the Court of Appeal for Ontario referred to four important principles that were relied upon by the trial judge and set out by the Court of Appeal for British Columbia in Hejzlar v.

Mitchell-Hejzlar , 2011 BCCA 230 , 18 B.C.L.R (5th) 128 , at paras 24-27 . These are the principles “that are to be applied in cases where the custodial parent proposes to relocate with the children against the wishes of the access parent”. While Bourke was decided after the trial in this case, by the time of the trial, the principles at issue had already been established in the jurisprudence on mobility cases. The four principles are:

(

a) while subsection 16(1) of the Divorce Act provides that the court must consider maximizing contact between the child and parent,the same subsection makes it clear that maximizing contact is not an absolute principle, and is only to be pursued within the limits of thatwhich is consistent with the best interests of the child; (

b) barring an improper motive for the proposed move, there must be an attitude of respect for the custodial parent/or primarycaregiver. This means, in part, the party seeking to move need not prove the move is necessary, although any degree of necessity, such asfor income-earning reasons, may bear upon the best interests of the child; (

c) the authorities generally do not favour the status quo as a “default position” as such an approach reinserts into custody discussionsa presumption which is contrary to the instructions in Gordon v. Goertz to assess each case individually, and is contrary to the principlethat presumptions are inappropriate in custody cases and detract from the individual justice to which every child is entitled; and (

d) courts in Canada have discouraged reliance by a judge on any expression by the parent who is seeking to move that he or she willnot move if the child cannot accompany him or her, as it places the parent in a “classic double bind.” [57] In Bjornson v.

Creighton (2002), (ONCA), 62 O.R. (3d) 236, at para 32, the Court of Appeal confirmedthat the principles applicable to a mobility case apply even if the parents were unmarried and, accordingly, the mobility case was not proceeding under the Divorce Act, R.S.C., 1985, c.3 (2nd Supp.). [94] The court agrees with counsel for Michael that the jurisprudence must be cautiously applied. It cannot, however, be ignored. The amendments do not completely replace or overwrite the jurisprudence. Some of the amendments codify the direction provided bythe court with respect to mobility – the double bind issue, for example.

Treatment of the primary caregiver, as the parent with decision-making responsibilities is addressed to some extent, through the burden of proof provisions. Maximum contact considerations are stillimportant, but the best interests of the individual child remain the paramount consideration. Application and Analysis Decision Making Authority [95] Neither parent in this case, is seeking joint decision-making. Michael seeks an order for joint decision-making, with the abilityto make the final decision if the parties cannot agree.

Jessica submits that an order granting her final decision-making is in Matthew’sbest interests. [96] Joint decision-making requires evidence of an ability to communicate effectively. One cannot simply hope that the parents willlearn to communicate effectively if they are required to make joint decisions. Communication is particularly important when the court isdealing with younger children. (See: Kaplanis v. Kaplanis (Ont. C.A.) (“Kaplanis”)). [97] As a result of the criminal charges, Michael was subject to a non-communication provision for approximately two yearsfollowing the separation.

There is no evidence of effective communication prior to the separation or after the restrictions were lifted. Jessica made the majority of the decisions with respect to Matthew’s health and well-being before the parties separated. She attendedmost of the doctor’s appointments. She was the one who stayed in the hospital with Matthew when he was sick. Michael attended to thefinancial support of the family.

Their inability to communicate and effectively resolve issues led to two attendances by the police withinthe first three months of Matthew’s birth. [98] From the date of separation forward, Michael took a very rigid approach to communication.

He, or his parents, decided it wastoo risky to communicate with Jessica even by way of a written communication book until January 2020. [99] As time moved on and the parties started to use the Talking Parent App, communication improved; however, even after all of therestrictions were lifted, the parties continue to use the communication tools and both have submitted that this should continue.

Theevidence in this case does not support effective engaged communication, but rather suggest a fragile framework where parties cannothave meaningful discussions about important health, education and well-being decisions that will need to be made in respect of Matthewover the years. [100] While Michael has demonstrated that he is a capable and loving father to Matthew, the court is not satisfied that an order for jointdecision-making would be in Matthew’s best interest. Communication does not have to meet a standard of perfection in order to supportan order for joint-parenting (See: D.G. v.

K.G. , 2005 ONCJ 235 at para 23 and Kaplanis, supra, at para 11). However, thecommunication in this case falls far short of perfection, without any evidence to suggest that the situation will change. [101] Parties who require such detailed court intervention about their interactions are not good candidates for joint decision-makingresponsibility orders. [102] Citing from Justice Chappel in McBennet v Danis 2021 CarswellOnt 7411 (“McBennet”), counsel for Michael urges the court todelve below the surface and consider the source of the conflict.

In situations where a parent creates conflict, engages in unreasonableconduct, impedes access and marginalizes the other parent, the court has granted decision-making to the marginalized parent, oralternatively, makes an order for joint decision-making as a way of ensuring a balance of influence and authority between the parties inmaking important decisions. (See: McBennet, supra at paragraph 97(7).) [103] The court is not convinced that Jessica created the conflict in this case.

The criminal charges, the lack of communication andparenting time immediately following the separation set the tone as is often the case. It is what the parties do after that is important. Jessica initially resisted access by insisting on supervised access. Once granted, however, she complied with the orders and over timeconsented to significantly expanded access. [104] The court is sympathetic to Michael’s concerns and accepts that there is a lack of trust. His parenting time with Matthew wasirreparably interrupted by the non-communication restrictions.

He faced an uphill battle to get parenting time going and he has

demonstrated his commitment to Matthew by his consistency, engagement in the daycare and planning for Matthew and in his concerns and follow up on medical and developmental issues. He did not, however, open up with respect to communication and engagement with Jessica. As he became more involved, he chose parallel parenting options, such as scheduling his own 18-month wellness check, rather than providing comments to Jessica as he was invited to do. [ 105 ] Jessica was the primary caregiver during the relationship and continued in that role following the separation.

The court does not see her actions in taking the lead in scheduling appointments and arranging daycare as unilateral decisions, but rather as a continuation of her primary parenting role. As Michael’s parenting time increased, she increased the communication to Michael. Jessica has been consistent in her desire to have Michael help in Matthew’s care – from her urgings before the separation to her detailed reports in the communication book and through the Talking Parents application. [ 106 ] By contrast, Michael maintained his campaign against communication. He refused to engage in any form of communication.

He supported his parents request that Jessica limit entries in the communication book or by text message to emergencies. This approach resulted in delays in information, miscommunication about medical appointments and the need to set up parallel meetings with service providers. [ 107 ] There were examples of missed information by both parents, but the claim that Jessica was the source of the conflict is not supported by the evidence.

Given her role as the primary caregiver during the relationship and in the months following the separation, it was reasonable for her to take exception when the father rebooked the hearing test on his time when the clinic called him after being unable to reach Jessica. She notified Michael, through Donald, that she would be cancelling this appointment.

While it may have been preferrable for Jessica to have notified Michael of the new date in advance, it is understandable that she would have wanted to attend the appointment as she had scheduled the original appointment and had been present at all appointments to date. It was not an option at the time to suggest that they both attend. [ 108 ] Despite the concerns raised by Michael and his parents about Jessica’s ability to provide proper care for Matthew, there is no evidence that Jessica has not attended to Matthew’s needs.

She has engaged therapists, doctors and has followed through with recommendations for socialization and engagement. Witnesses who testified for her gave evidence of her fully packed diaper bag, well prepared meals and her ability and desire to engage Matthew with arts and crafts and various activities. She is child focused, engaged and capable of making decisions in the best interests of Matthew. [ 109 ] The lack of trust is a further concern. As noted by Justice Sherr in L.B. v.

P.E. , 2021 ONCJ 114 at paragraph 104 “there must be some modicum of trust and respect to make a joint decision-making responsibility order viable for a child”. There is a lack of trust and a lack of respect by the father in his case. An order for joint-decision making would only escalate the conflict and tension and delay decision making. A detailed order would not be sufficient to remedy the lack of co-operation and communication that exists at present. [ 110 ] An example of the court’s concern in this regard is around the day care registration.

Michael claims that Jessica registered Matthew in daycare without seeking his opinion. He then notes that “had I been consulted and involved in the decision as to where Matthew would be cared for, I would have researched and made an informed decision. There were a lot of concerns about social distancing and the doctor suggested a small daycare.” Initially, Michael did not agree with the daycare that Jessica chose and even though she had already registered Matthew, she had to go to considerable lengths including getting Dr. Gleeson to confirm that she supported Matthew’s enrolment in daycare.

By trial, Michael was very supportive of the daycare and listed it as one of the stabilizing factors that supported Matthew maintaining his residence in North Bay.

Had Michael been a joint-decision maker at the time of Matthew’s enrollment, it is unlikely that the parties would have agreed upon the North Bay Daycare and Learning Centre which has proven to be a good placement for Matthew. [ 111 ] Similarly, speech therapy was delayed for approximately two months, because Michael told the doctor that Matthew was speaking at a two-year old level while Jessica was reporting concerns that both she and the daycare had observed. [ 112 ] The court is satisfied that an order granting Jessica sole decision-making responsibility is the most appropriate order in this case.

Through her counsel, Jessica consents to an order requiring her to solicit input and opinions from Michael. Any obligation in this regard should not result in delayed decision-making, or in increased litigation and accordingly, must be limited given the history of distrust, lack of respect and communication that exists in this case. Mobility – The Proposed Move to Sudbury [ 113 ] Michael’s primary concern regarding the relocation relates to how a move to Sudbury will disrupt the current parenting time and his ability to be part of Matthew’s day to day life and activities.

Jessica claims that the move to Sudbury is what is best for Matthew. She has secured a permanent part time position at the hospital in Sudbury. She has a geared to income apartment and family supports in Sudbury. Mobility cases are some of the most difficult cases. Relocation impacts the nature of the relationships between the child and each of his or her parents. The challenge is to determine what is best for the child. a. Notice of the Move [ 114 ] Counsel for Michael submits that Jessica failed to provide proper notice of the move as required by s. 39.3(1) and (2).

He submits that mobility was not properly put before the court until the Amended Answer dated October 13, 2021 was served and filed just prior to the commencement of the trial. [ 115 ] Notwithstanding the delayed Amended Answer, mobility has been a central feature of this litigation from the start. The parties were prohibited from moving Matthew’s residence without consent, or a further court order in the 2019 Mendes Order.

The OCL recommendations which were released on January 10, 2020, were structured around Jessica’s request to relocate to Sudbury. [ 116 ] The amendments to the CLRA included the formal notice requirements which did not come into effect until March 21, 2021. By this time, Jessica had already secured employment and housing in Sudbury. The only outstanding issue was approval to relocate. To the extent that the details of her plans to move to Sudbury had not been formally communicated to Michael, Jessica’s affidavit dated May 13,

2021, attached her offer for employment dated February 9, 2021 and a letter dated January 12, 2021 confirming her address and approval for subsidized housing. Through the trial process, both parties have provided details of their plans with respect to decision-making and parenting time. [ 117 ] Counsel for Jessica was critical of Michael’s failure to put forward a formal plan for parenting time in the case where Jessica’s request to relocate was denied and she relocated to Sudbury without Matthew.

Subsection 39.4(4) prohibits the court from considering “whether, if the child’s relocation were to be prohibited, the person who intends to relocate the child would relocate without the child or not relocate.” The court must consider the interests of the child in both scenarios.

The lack of a detailed plan does not prevent this consideration, but as noted by counsel, leaves the court with the father’s representation that he would “communicate with Jessica and do what is healthy for Matthew”. [ 118 ] In all of the circumstances, the court is satisfied that the notification requirements have been satisfied such that the court is in a position to properly consider the requested relocation. b. Burden of Proof [ 119 ] Subsections 39.3(5) – (8) of the CLRA address the issue of the burden of proof in mobility cases.

Counsel for Michael urges the court to rely on the Order of Justice Carr from May 20, 2021 which expanded Michael’s parenting time to six of 14 days.

Counsel submits that Michael and Jessica have had approximately equal parenting time since May 2021 and accordingly Jessica should bear the onus of proving that the relocation is in Matthew’s best interests. [ 120 ] Counsel for Jessica submits that Jessica has been the primary caregiver and that the burden falls on the father, as he is opposing the move. [ 121 ] This case can be distinguished from those where there is a final order and those where there has been a long-standing status quo .

The May 20, 2021 order is an interim order expanding parenting time for Michael approximately six months before the trial commenced. Prior to that, Matthew spent most of his time with Jessica. While counsel submits that Jessica made unilateral decisions that impacted Michael’s time with Matthew, as noted above, the court does not agree. Even when the parties were together, Jessica was home with Matthew while Michael worked. That is the routine that this couple chose prior to their separation. Upon separation, the criminal charges and non-communication order impacted Michael’s ability to arrange for access.

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