Choudry v. Cater, 2018 ONCJ 238

ONTARIO COURT OF JUSTICE CITATION: Choudry v. Cater , 2018 ONCJ 238 DATE: 2018 04 09 COURT FILE No.: Toronto DFO-12-11030 B1 BETWEEN: MARIA CHRISTINA CHOUDRY Applicant — AND — TRISTAN PATRICK CATER Respondent Before Justice Alex Finlayson Heard on January 9, 12, 17, and February 2, 5 and 6, 2018 Reasons for Judgment released on April 9, 2018 Maria Christina Choudry.......................................................................... on her own behalf Tristan Patrick Cater.................................................................................. on his own behalf ALEX FINLAYSON J.:

PART I: NATURE OF THIS PROCEEDING [ 1 ] The is my judgment following a trial concerning the Applicant mother’s claims to relocate with the parties’ two children to Newcastle, England and for retroactive and prospective child support and

section 7 expenses. It also deals with the Respondent father’s cross-claims respecting custody, access and child support. The father asks the Court to change the governing custody and access order irrespective of whether the mother’s request to move is granted or denied. [ 2 ] The Applicant is Maria Christina Choudry and the Respondent is Tristan Patrick Cater. They are the parents of two children, Brooklynn Doreen Amari Cater, born June 17, 2009 (age 8) and Bryden Avery Cater, born October 7, 2011 (age 6).

Pursuant to the governing Order of Justice Murray dated November 6, 2013, the mother has sole custody of the children. The children reside primarily with her and they see their father on alternate weekends, at Christmas and for two weeks in the summer. [ 3 ] Each parent has re-partnered and each has a new child of that new relationship. The mother is re-married to Adnan Choudry, who lives in Newcastle. They have a new child together, Zain Choudry, born June 23, 2017.

Pending the outcome of this trial, the mother remains in Toronto and is parenting Zain child largely on her own. [ 4 ] The father is re-married to Shonelle Maria Ramserran. They have a new child together, Cole John Patrick Cater, born February 15, 2016. [ 5 ] The parties were both self-represented at trial. Despite that, they each presented sufficiently comprehensive evidence, they were organized and they were efficient in their presentation. This enabled the Court to consider fully the merits of the competing plans. [ 6 ] The mother seeks permission to move with Brooklynn and Bryden because:

(

a) She has been the children’s primary parent; (

b) She is re-married to Adnan; (

c) The children have a good relationship with Adnan; (

d) She now has Zain too, whom she is parenting on her own. Brooklynn and Bryden are closely bonded to Zain and she wants the children to be able to move with her and live under the same roof; (

e) She was laid off from her previous job in 2016 and has been unable to obtain employment in Toronto, despite “extensive” efforts; (

f) She has an offer of employment for a job in Newcastle, and will earn the equivalent of $64,000 CAD there; (

g) The father has not paid child support in accordance with his income, nor has he even complied with the governing child support order. He did not provide updated financial disclosure as he ought to have; and (

h) Despite the distance between Toronto and Newcastle, if the move is allowed, the father’s contact with the children can be preserved. [ 7 ] The issues in this case call upon the Court to make a very difficult decision. The mother has put forward a plan in which she highlights benefits of the move for the children. She says those benefits are financial, educational and emotional.

Concerning child support, while she asks for an order for retroactive and prospective child support, she is also prepared to forgo some of the support in recognition of the increased travel costs under her plan. [ 8 ] On one hand, the proposed move, if allowed, will materially impact the children’s relationship with their father, and with their extended family in the Greater Toronto Area by extension. Contact right now happens regularly and it is beneficial. But it is not only regular contact that the father is concerned about.

The father raises concerns about the mother’s plan generally, and about the parties’ finances. He challenges the parties’ ability to fund travel between Toronto and Newcastle, and he questions how the logistics of that travel (and also telephone contact), will work post-move. [ 9 ] The father is also worried about how any Order of this Court will be enforced if the mother is allowed to leave with the children and then chooses not to comply with the Order.

He argues that the mother has a poor track record of facilitating his relationship with the children and she has a poor track record respecting compliance with court orders. [ 10 ] The father is concerned about the children’s stability if the move is permitted. The father says the mother’s relationship with Adnan is not yet tried and tested. It will be destabilizing for the children if they are allowed to move, and then the mother’s relationship with Adnan ends. [ 11 ] Finally, the father argues the mother is not trustworthy.

He says she was not truthful with the Court during the trial, [1] and that she has withheld vital information from him as to the nature of her relationship and the state of affairs in the United Kingdom. He says her job search was not very extensive. Because of her lack of credibility, he questions the veracity of the job offer she presented and he invites me to find that there is no job in Newcastle. [ 12 ] The father disagrees with the mother’s request for retroactive child support.

He argues that he paid pursuant to the governing Order (although he admits he did not always do so in full or on time), and he argues that the mother knew of his increased income, but neither pursued disclosure nor additional support from him. [ 13 ] On the other hand, if the move is denied, the mother will either chose to remain in Toronto, or she may choose to move to the UK to pursue her marriage, without the children. In the former scenario, she will continue being the children’s primary parent in Toronto along with Zain. Currently, she has limited financial resources and debt.

She will likely remain dependant on her new spouse. [ 14 ] Or perhaps she will choose to move to the United Kingdom without the children. I did not allow the father to ask the mother whether she would move without the children if the Court denies the move. This is an unfair question, which has little evidentiary value.

The question if answered would have put the mother in a “classic double bind” [2] . [ 15 ] However, the evidence concerning the children, which I will detail, revealed that if the mother moved without them, such an outcome would be distressing to the children, particularly Brooklynn. [ 16 ] For the reasons that follow, I am allowing the mother to move with the children to Newcastle, England. Despite a significant adverse credibility finding that I am making against the mother, my overall assessment of the evidence is that the move is in the children’s best interests.

However, I am attaching a number of conditions to the move to ensure that the father’s close and positive relationship with the children will continue and be preserved, and to ensure that the children will benefit from spending generous time with him (and their extended family) in Ontario. [ 17 ] In my view, the parenting

schedule can be adjusted to provide that the children will be with the father on holidays throughout the year, such that the quantity and quality of the children’s relationships with their father, and with their extended family relationships here may be maintained. [ 18 ] Concerning child support, for the reasons that follow, I find that the father failed to meet his child support obligations. He has engaged in blameworthy conduct.

He neither paid in full in accordance with the governing Order, nor on time, nor did he provide disclosure as he ought to have, nor did he increase the support in accordance with increased income. However, I also find that the mother delayed pursuing support and her delay was unreasonable. In crafting both the retroactive and prospective child support order that I am

making, I am taking into account the travel costs to be incurred as a result of the move.

PART II: FACTS [ 19 ] The mother is 31 years old and the father is 33 years old. The parties were never married. They started dating in about October 2007 and lived together in an ‘on again, off again’ relationship from October 2008 until June 2010 according to the mother, and until 2012 according to the father [3] . [ 20 ] As set out above, they have two children, Brooklynn, age 8, and Bryden, age 6. The children currently attend Winchester Public School.

In this 2017-2018 school year, Brooklynn is in grade 3 and Bryden is in grade 1. [ 21 ] The mother enrolled the children at the Winchester Public School in September 2016. Previously they attended Our Lady of Peace Catholic School in Etobicoke. According to the father, the manner in which the mother changed the children’s school is an example of the mother not following a court order. [ 22 ] By all accounts, Brooklynn is a bright, gifted child and she is excelling in her current school.

The father says that a move would entail another school change and it is risky to permit this change given Brooklynn’s performance here. He argues that the mother failed to produce evidence that the school she wishes Brooklynn to attend, Hilton Academy, will meet her academic needs, or that she will thrive in the United Kingdom. [ 23 ] I decline to make this finding. The mother tendered some documentary evidence about the rating and other aspects of Hilton Academy.

But more importantly, I accept the mother’s evidence that Brooklynn is excelling, due in large part to the mother’s efforts and involvement in the children’s education. I am confident that the mother will continue to be involved in the children’s education and ensure their educational needs are met as she has to date. Incidentally, I also note that the father’s alternative plan would involve a school change too. [ 24 ] The mother and her new partner, Adnan, met online in 2015. Adnan is of the Islamic faith.

The mother has converted and is now a practicing Muslim also. [ 25 ] The mother and Adnan were married in a religious ceremony in the United Kingdom in October 2016. They later married in a civil ceremony in Toronto on January 23, 2017. [ 26 ] Although it was not specifically stated during the trial, the father’s not so subtle suggestion was that in 2016, the mother changed the children’s school from the Catholic school system to the public school system, because of her religious conversion.

The father also said that the mother’s exposing the children to Islamic teachings and practices is a violation of the governing Court Order. [ 27 ] The father’s evidence on this point was inconsistent. He wants the children to choose what religion they will practice when they are older, but he also says they should be raised Catholic in the mean time. He told the Court that Brooklynn had been baptized but the mother would not allow Bryden to be baptized. [ 28 ] The mother pointed out that the father is a non-practicing Catholic and suggested he was being hypocritical.

She also denied both that the school change was due to her conversion or that she breached this Court’s Order in changing the school. I will deal with this allegation in more detail below. [ 29 ] The mother was laid off from her previous job on April 28, 2016. Currently, her income consists of child tax benefits of $1,751.78 per month. To supplement that, Adnan sends her about 1000 pounds (GBP) per month, which I estimate to be approximately $1,720 CAD [4] per month. [ 30 ] The mother produced a job offer for a sales manager role for a company in Newcastle.

This is a job that Adnan helped her source by leveraging one of his business contacts. The mother intends to work as a sales manager for MI Traders Limited, a wireless warehouse, if she is permitted to move. She says that the job will pay her about 40,000 GBP and that she will have job flexibility and will be able to sometimes work from home. She testified that her new home will be only 5 minutes from work. Her plan will enhance the family’s finances. [ 31 ] The mother’s current annual budget for her household of four is modest. She is doing her best but is barely making ends meet on the resources she has.

While her budget balances, she has almost no savings [5] and she has debts of $23,404.07, that she cannot afford to pay. The father asked me to find that the mother’s failure to pay her debts is irresponsible and that I should consider this when deciding the relocation issue. His submissions in this regard ignore the fact that he has failed to meet his child support obligations, which has contributed to the mother’s financial troubles. [ 32 ] Adnan owns and operates retail stores in the mobile phone industry in England.

He testified that his income is between 50,000 and 65,000 pounds per year [6] (approximately between $86,000 and $111,800 CAD per year [7] ) from which he sends money to the mother. [ 33 ] Adnan’s income also funds his and the mother’s travel back and forth between Toronto and Newcastle. The evidence was that they took between 7 to 8 trips back and forth (either Adnan coming here or the mother going there) since they have met.

Although the mother and Adnan have not yet lived together with the children as a family in Newcastle, the mother testified that she and Adnan have cumulatively lived together for the equivalent of several months as a result of these trips. [ 34 ] Adnan has two children from his previous relationship, Aafia, age 2 and Aleena, age 2. They live with their mother primarily in the United Kingdom and see their father weekly on Saturdays overnight to Sundays. Adnan testified that he and his former spouse maintain flexibility as to the parenting arrangements for Aafia and Aleena.

There are no ongoing family law proceedings between them in the United Kingdom.

[ 35 ] The father and Shonelle have been in a relationship since the fall of 2013. As set out above, they have a son, Cole (age 2). The father and Shonelle were married on November 18, 2017. [ 36 ] The governing child support Order is that of Justice Murray dated April 25, 2014. When that Order was made, the father was unemployed. He then secured employment at some point in 2014 [8] .

He did not increase his child support or provide financial disclosure respecting this however. [ 37 ] Then, from June 2017 until the middle of this trial, the father was unemployed again. [ 38 ] On January 22, 2018, the father secured a job as a sales representative for Metroland Media Group commencing January 29, 2018. In this new role, he will receive a salary of $350 per week, plus guaranteed commissions each week. His commission income will then be reconciled according to formulae that are set out in his employment contract.

He is also entitled to extended health, dental, disability and life insurance benefits and a taxable auto allowance. [ 39 ] The father testified that he will be working Monday to Friday from 9 am to 5 pm. He testified that based on the contract, his “guaranteed” income will be $47,000.00 [9] . [ 40 ] Since October 31, 2016, Shonelle works full time as a Digital Marketing Specialist for the Home Depot Canada. She earns approximately $68,000 per year after bonuses. [ 41 ] At the moment, the combined incomes of the two couples are similar. However, the mother and Adnan are running two households.

If the move is permitted, the evidence is that the mother’s and Adnan’s combined incomes will increase above the father’s and Shonelle’s household income, in view of the mother’s job offer. Before the issue of travel is factored in, their expenses will also decrease, as they will no longer be running two households. [ 42 ] Based on my review of all of the financial considerations in this case, which I explain later in these reasons, I find that both parties can afford the cost of travel between Newcastle and Toronto post-move.

For the reasons that will follow, I find that the mother should bear the greater burden of the travel costs.

PART III: THE PARTIES’ COMPETING PLANS [ 43 ] Again, the mother offered a number of reasons for the move, which she said will benefit the children. She gave details about her proposed new job. She provided the address at which she and the family will live [10] . Again, she testified that she plans to enrol the children in Hilton Primary Academy, which she says has an outstanding rating. The school is approximately 6 minutes away from her proposed new home.

She also provided specifics of extra-curricular activities in which she intends to enrol the children. [ 44 ] The mother testified that she is prepared to facilitate telephone access and communication by Skype. She is prepared to have the children travel to Toronto during the school’s spring holidays, for part of the summer holidays, [11] and over the Christmas holidays, but in alternate years only. She is also prepared to allow the father to have additional time with the children in the United Kingdom on adequate notice.

According to the mother’s primary plan, all of the father’s and the children’s travel to and from the United Kingdom should be at the father’s expense. [ 45 ] The mother testified that the move will benefit the children in several respects. First, she argues that there will be an economic benefit. The mother will be able to thrive with her new employment opportunity. The children will benefit from remaining with her. They will also have the benefit of another adult parental figure, Adnan, involved in parenting them on a daily basis.

The children will be able to develop relationships with extended family in the United Kingdom, and they will continue to enjoy the mother’s support academically. [ 46 ] The father’s plan, in a scenario where the mother and the children remain in Toronto, is that the governing Order should be varied such that the children will reside with the parents on a 50-50 basis. The father testified that he and Shonelle have been structuring their lives in anticipation of a request that the children move to a 50-50 schedule.

Alternatively, if the mother decides to move to the United Kingdom, then he wants the children to remain in his care primarily. He would change the children’s school next year in this scenario to a school closer to his home. [ 47 ] For the purposes of either scenario, the father tendered photographs of his house and he says he is able to accommodate the children. He submits the children will continue to have contact with their extended family in the Greater Toronto Area. He will be able to meet the children’s educational needs.

He testified about the level of education of various members of his family, and he told the Court that education is an important value for him. [ 48 ] In a scenario where the mother goes and the children stay behind, the children will spend time with their mother in the United Kingdom according to his plan. He says that telephone calls will work better in this scenario, given the time difference. I will explain his logic later in these reasons. Finally, in the scenario where the children reside with him primarily, he seeks child support from the mother.

PART IV: PRIOR LEGAL PROCEEDINGS [ 49 ] The governing orders which each party seeks to vary are the Orders of Justice Murray dated November 6, 2013 and April 25, 2014. The November 6, 2013 Order provides that the mother shall have final custody of the children and they shall reside with her primarily. There is a duty on the mother to consult with the father “in advance about any important decisions about the children”. [ 50 ] Pursuant to that Order, the father has access to the children on alternate weekends from Friday at 7:00 pm to Sunday at 10:00 am.

He is supposed to confirm each visit at least 72 hours in advance by text, otherwise the visit is cancelled. Apparently the parties stopped following this notice provision for a while at some point after the Order was made, and then adhered to it again, at least in part, while this proceeding has been underway.

[ 51 ] The Order also divides the Christmas holiday and provides that each party is entitled to a summer holiday with the children for two weeks on reasonable notice to the other party. [ 52 ] The Order does not address child support. [ 53 ] The parties later settled child support on April 25, 2014 [12] . That Order provides that the father shall pay child support of $337 per month commencing January 1, 2014 based on his annual income of $22,300.00. The father is also to pay 34% of Brooklynn’s ballet costs and of any other expense for sports, extracurricular activities, agreed to in advance in writing.

The mother’s income is stated in the Order to be $43,415.00 for the purposes of determining the percentage sharing of the cost of the extracurricular activities. [ 54 ] As set out above, the father was not working at the time this Order was made but he started working at some point in 2014. Meanwhile, the mother lost her job on April 23, 2016. [ 55 ] The mother launched her Motion to Change both Orders on March 13, 2017. [ 56 ] This Court has made the following interim Orders leading up to this trial: (

a) On May 3, 2017, Justice O’Connell vacated the first appearance scheduled in this matter and scheduled a case conference before her on June 22, 2017; (

b) On June 22, 2017, O’Connell J. made a temporary consent order requiring the parties to exchange disclosure and plans of care, she extended the father’s weekend access to end on Sundays at 5:00 pm rather than 10:00 am, and she made an order for summer access. The parties’ consent, drafted by their former counsel, also states that on a temporary basis, the “children habitually reside in the Province of Ontario and that the Ontario Court of Justice or Superior Court of Justice of Ontario shall have jurisdiction relating to the issues of custody/access of the children [13] ”; (

c) On September 20, 2017, O’Connell J. made a referral to the Office of the Children’s Lawyer and requested a focused, expedited investigation on the issues of mobility and the children’s views and preferences; (

d) By October 18, 2017, the Children’s Lawyer’s report had been filed. On that date, O’Connell J. scheduled a Trial Management Conference before me for December 14, 2017, and she scheduled trial dates before me on January 9 and 12, 2018; and (

e) On December 14, 2017, I conducted a Trial Management Conference [14] . Based on my discussions with the parties, I provided specific directions regarding how the parties were to organize documents briefs and their evidence. [ 57 ] The trial in this matter commenced on January 9, 2018.

PART V: APPLICABLE LEGAL PRINCIPLES, ANALYSIS AND ADDITIONAL FINDINGS OF FACT RESPECTING THE PARENTING ISSUES A. Statutory Provisions Respecting the Mobility Claims [ 58 ] Various sections of the Children’s Law Reform Act, R.S.O. 1990, c. 12, as amended, govern this proceeding: Application for custody or access 21

(1) A parent of a child or any other person, including a grandparent, may apply to a court for an order respecting custody of or access to the child or determining any aspect of the incidents of custody of the child. Merits of application for custody or access 24

(1) The merits of an application under this

Part in respect of custody of or access to a child shall be determined on the basis of the best interests of the child, in accordance with subsections (2), (3) and (4). Best interests of child

(2) The court shall consider all the child’s needs and circumstances, including, (

a) the love, affection and emotional ties between the child and, (

i) each person, including a parent or grandparent, entitled to or claiming custody of or access to the child,

(ii) other members of the child’s family who reside with the child, and (iii) persons involved in the child’s care and upbringing; (

b) the child’s views and preferences, if they can reasonably be ascertained; (

c) the length of time the child has lived in a stable home environment; (

d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child; (

e) the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing; (

f) the permanence and stability of the family unit with which it is proposed that the child will live; (

g) the ability of each person applying for custody of or access to the child to act as a parent; and (

h) any familial relationship between the child and each person who is a party to the application. Past conduct

(3) A person’s past conduct shall be considered only, (

a) in accordance with subsection (4); or (

b) if the court is satisfied that the conduct is otherwise relevant to the person’s ability to act as a parent. Violence and abuse

(4) In assessing a person’s ability to act as a parent, the court shall consider whether the person has at any time committed violence or abuse against, (

a) his or her spouse; (

b) a parent of the child to whom the application relates; (

c) a member of the person’s household; or

(

d) any child. Powers of court 28

(1) The court to which an application is made under

section 21 , (

a) by order may grant the custody of or access to the child to one or more persons; (

b) by order may determine any aspect of the incidents of the right to custody or access; and (

c) may make such additional order as the court considers necessary and proper in the circumstances, including an order, (

i) limiting the duration, frequency, manner or location of contact or communication between any of the parties, or between a party and the child, (ii) prohibiting a party or other person from engaging in specified conduct in the presence of the child or at any time when the person is responsible for the care of the child, (iii) prohibiting a party from changing the child’s residence, school or day care facility without the consent of another party or an order of the court, (iv) prohibiting a party from removing the child from Ontario without the consent of another party or an order of the court, (

v) requiring the delivery, to the court or to a person or body specified by the court, of the child’s passport, the child’s health card within the meaning of the Health Insurance Act or any other document relating to the child that the court may specify, (vi) requiring a party to give information or to consent to the release of information respecting the health, education and welfare of the child to another party or other person specified by the court, or (vii) requiring a party to facilitate communication by the child with another party or other person specified by the court in a manner that is appropriate for the child.

Order varying an order 29 A court shall not make an order under this Part that varies an order in respect of custody or access made by a court in Ontario unless there has been a material change in circumstances that affects or is likely to affect the best interests of the child. Child entitled to be heard 64

(1) In considering an application under this Part, a court where possible shall take into consideration the views and preferences of the child to the extent that the child is able to express them. B. The Test in Mobility Cases

[59] It is the Order of Murray J. dated November 6, 2013 that currently governs the custody and access arrangements between theparties. Pursuant to

section 29 of the Act, this Court may not make an Order that varies Murray J.’s Order unless “there has been amaterial change in circumstances that affects or is likely to affect the best interests of the child.” Therefore, before I may consider themerits of the proposed move, I must first determine whether there has been a material change in circumstances that affects or is likely toaffect the best interests of the child. The mother bears this initial burden of demonstrating that there has been a material change incircumstances.

(1) Material Change In Circumstances [60] The leading case, both as to the requisite material change threshold that the Court must apply, and then the analysis that followsif a material change is found, is Gordon v. Goertz, (SCC), 1996 CarswellSask 199 (S.C.C.). Gordon v. Goertzconcerned a parent’s request to vary a previous custody order and to relocate from Saskatchewan to Australia. Although Gordon v. Goertz was decided as a variation pursuant to

section 17 of the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.), its principles apply to casesdecided under the Children’s Law Reform Act. [61] At ¶ 10-16, McLaughlin J. defined what will amount to a material change. She wrote, “[c]hange alone is not enough; thechange must have altered the child’s needs of the ability of the parents to meet those needs in a fundamental way”. While relocation willalways be a “change” it may not always be a material one.

For example, a move to a town nearby, or a move in the case where the childlacks a positive relationship with the other parent or extended family may not affect the child sufficiently. “The question is whether theprevious order might have been different had the circumstances now existing prevailed earlier”. And, “…the change should represent adistinct departure from what the court could reasonably have anticipated in making the previous order.”

(2) The Best Interests of the Children [62] Once a material change in circumstances is found, a number of principles are engaged. [63] Concerning the scope of the inquiry, at ¶ 17, McLaughlin J. wrote, “once a material change is found, the Court should considerthe matter afresh without defaulting to the existing arrangement”. If the Court finds there is a material change, then it must consider allfactors relevant to the children’s best interests in light of the new circumstances.

As McLaughlin J. held at ¶ 47, “There is neither neednor place to begin this inquiry with a general rule that one of the parties will be unsuccessful if he or she fails to satisfy a specifiedburden of proof”. [64] In considering the children’s best interests if a material change is found, the Court must be guided by the statutory criteria setout in section 24(2) of the Act. In accordance with Van de Perre v. Edwards, 2001 SCC 60 at ¶ 10, the Court should considerthe applicable statutory factors in light of the evidence before it. [65] There is a considerable discussion at ¶ 26-48 of Gordon v.

Goertz as to whether the Court should begin the best interests’analysis with a “presumption in favour of the custodial parent”. After canvassing the history of this notion and considering argumentsfor and against such a presumption, the Court held that no such presumption exists. [66] However, at ¶ 48, McLaughlin J. stated, “[w]hile a legal presumption in favour of the custodial parent must be rejected, theviews of the custodial parent, who lives with the child and is charged with making decisions in its interest on a day-to-day basis, areentitled to great respect and the most serious consideration.

The decision of the custodial parent to live and work where he or shechooses is likewise entitled to respect, barring an improper motive reflecting adversely on the custodial parent’s parenting ability”. Seealso Rushinko v. Rushinko, (ON CA), 2002 CarswellOnt 1997 (C.A.) at ¶ 5-6 and most recently Porter v. Bryan,2017 ONCA 677 at ¶ 12 for subsequent restatements of this principle. [67] Related to this concept are the custodial parent’s reasons for the move and how to weigh these.

The Court held at ¶ 23 that acustodial parent’s reasons for the move are relevant only if they impact the parents’ ability to meet the child’s needs. [68] Lastly, the Court held that it should try to maximize contact with both parents as is consistent with the children’s best interests. See Gordon v. Goertz at ¶ 24-25. The maximum contact principle may be at odds with a move in many cases. However, the Court gaveguidance about how to weigh this factor.

(3) Summary of these Principles [69] Paragraphs 49 and 50 of Gordon v. Goertz contains a

summary of the aforementioned principles. I quote from it verbatim asfollows: 49 The law can be summarized as follows: 1. The parent applying for a change in the custody or access order must meet the threshold requirement of demonstrating amaterial change in the circumstances affecting the child. 2. If the threshold is met, the judge on the application must embark on a fresh inquiry into what is in the best interests of the child,having regard to all the relevant circumstances relating to the child's needs and the ability of the respective parents to satisfy them. 3.

This inquiry is based on the findings of the judge who made the previous order and evidence of the new circumstances. 4. The inquiry does not begin with a legal presumption in favour of the custodial parent, although the custodial parent's views areentitled to great respect.

5. Each case turns on its own unique circumstances. The only issue is the best interest of the child in the particular circumstancesof the case. 6. The focus is on the best interests of the child, not the interests and rights of the parents. 7. More particularly the judge should consider, inter alia: (

a) the existing custody arrangement and relationship between the child and the custodial parent; (

b) the existing access arrangement and the relationship between the child and the access parent; (

c) the desirability of maximizing contact between the child and both parents; (

d) the views of the child; (

e) the custodial parent’s reason for moving, only in the exceptional case where it is relevant to that parent’s ability to meet theneeds of the child; (

f) disruption to the child of a change in custody; (

g) disruption to the child consequent on removal from family, schools, and the community he or she has come to know. 50 In the end, the importance of the child remaining with the parent to whose custody it has become accustomed in the new locationmust be weighed against the continuance of full contact with the child's access parent, its extended family and its community. Theultimate question in every case is this: what is in the best interests of the child in all the circumstances, old as well as new? C.

There Have Been Material Changes In Circumstances Since Murray J.’s November 6, 2013 Order [70] It is not seriously disputed that there have been material changes in circumstances in this case. The children have frequent andmeaningful contact with their father and their extended family by extension. The proposed move will curtail that contact.

This amountsto a sufficient change and there is a sufficient connection between the degree of change and the circumstances of the children in thiscase. [71] The custody and access Order of Murray J. dated November 6, 2013 was a consent Order, premised on both parents residing inthe Greater Toronto Area. A move to Newcastle was not forseen, nor could it have been reasonably contemplated by Murray J. whenshe made the Order. I add that it was not forseen or reasonably contemplated by the by the parties either. See L.M.P. v.

L.S., 2011 SCC64 , [2011] 3 SCR 775. [72] It is not just the proposed move that amounts to a material change in circumstances since Murray J.’s Order of November 6,2013. I find that the mother’s job loss, her new relationship, her new child and her financial circumstances are all material changeswhich are sufficiently connected to the circumstances of the children in this case. These changes were not forseen nor reasonablycontemplated by either the Court or the parties at the time of the November 6, 2013 Order. D.

The Mother is the Children’s Primary Parent and Her Views are Entitled to “Great Respect and the Most SeriousConsideration” [73] I find that the mother is and has always been the children’s primary parent. In accordance with Gordon v. Goertz, the mother’sviews are entitled to great respect and the most serious consideration.

Likewise, her views about where she wants to live and work arealso entitled to respect. [74] My finding that the mother was the primary parent is based on the following. [75] First, that the mother is the primary parent is reflected as such in the wording of the governing order of Justice Murray datedNovember 6, 2013. By virtue of that order, the mother has custody and the children reside primarily with her.

I am not persuaded by thefather’s argument that the mother does not have sole custody because of the duty imposed on the mother by the Order to consult with himabout major decisions. [76] Moreover, there is overwhelming evidence that the mother has been the children’s de facto primary parent since their births. The evidence is: (

a) She is responsible for their day to day care; (

b) She has been the parent who has made the majority of the decisions respecting the children; (

c) She has enrolled the children in day care, school and activities; (

d) She takes the children to school and to their health appointments; (

e) The father has done some of the school pick-ups and drop offs, but this has mostly centered around his access or when thechildren have been in his care when the mother was abroad on a few occasions. The father also did some pick-ups on an ad hoc basiswhen the mother was working between 2014 and 2016 if something came up at work and she could not get the children on time; (

f) The mother’s evidence, that the father did not challenge, was that the father took the Bryden to the doctor only twice. Bothtimes were in response to incidents that occurred when the child was in the father’s care;

(

g) She is a member of the children’s Parent-Teacher Committee with their school. She attends the parent-teacher meetings. The father has only attended three parent teacher interviews, two of which were in the three months leading up to this trial; (

h) She also volunteers in the classroom when additional assistance is required; (

i) She has invested in additional educational programs for Brooklynn and Bryden; (

j) She is the parent primarily responsible for working with the children on their nightly homework and projects. The mother testified that the children often came home from visits with their father with their homework incomplete; (

k) In cross-examination, the father was unable to name the children’s teachers from prior years. He was aware of the names of the children’s current teachers only; (

l) The mother is giving the children a broader exposure to other religions and cultures and is teaching the children to be open minded; (

m) Until April 2016, the mother primarily parented the children while working. Then after that, she has been a stay at home parent; and (

n) As I will explain below, there is evidence that Brooklynn’s primary attachment is to her mother. [ 77 ] To challenge the suggestion that the mother has been the primary parent, the father testified that looked after the children on a few occasions when the mother travelled abroad. As well, during the trial, the mother credited her heavy involvement in the children’s education as being one of the main reasons for Brooklynn’s academic performance. Simultaneously, she said the father was largely uninvolved in the children’s educational lives.

To refute the mother’s allegation in this respect, the father testified about taking the children to the Science Center. He also told the Court that Shonelle plays with the children in the park, and reads to Brooklynn nightly when she is in the father’s care. [ 78 ] While both parents played a role in Brooklynn’s development, this evidence does not alter the finding that the mother was the primary parent of both children.

In particular respecting the care the father provided when the mother wished to travel, I note that on some occasions, the mother wanted to take the children with her but the father refused travel consent.

While I do not necessarily fault him for withholding consent (I address this below), the care that the father provided for the children during certain extended periods was temporary care only for a specific reason, and it does not alter the state of affairs respecting parenting and who was the primary parent. [ 79 ] I find that the father has been the fun, access parent, whereas the mother has been the parent responsible for the care of these children on a day to day basis. E.

The Mother’s Reasons for the Move are Relevant [ 80 ] In a nutshell, the mother’s reasons for the move are that she is in a new relationship and has a new child. She wishes to improve her financial circumstances and avail herself of the emotional and financial support from her new partner. She seeks to improve her family’s well-being. I find that these reasons for the move are relevant to the analysis that I must apply. [ 81 ] In Maynard v. Arruda, 2006 CarswellOnt 7561 (S.C.J.) , the Court permitted the mother, who was the custodial parent, to move from Orillia, Ontario to Maine.

Unlike in this case, the mother had an existing job in Ontario. However, she met her new partner on the internet and planned to marry him. Regarding her reasons for the proposed move, at ¶ 19-21, Wood J. held that the move would result in the children living in a dual income household, as opposed to the single income household and having improved living circumstances in the new home in Maine.

Although the proposed move was motivated in large part by the mother’s desire to pursue her new relationship and her “wish to have his support and affection”, the move benefitted the children because of the consequent ability of the mother to provide a “better lifestyle for the children as part of this new family”. [ 82 ] In Rushinko v. Rushinko , the Ontario Court of Appeal reversed the lower Court’s refusal to permit the mother’s proposed move from Delhi, Ontario to Tecumseth, Ontario, to pursue new employment. The mother was the custodial parent.

The potential new job offered the mother more flexible hours, increased income, the ability to spend more time with the children, and it eliminated the necessity of a babysitter for the children on school days. [ 83 ] Likewise, in Trisolino v. De Marzi, 2013 ONCA, 135 , the trial judge permitted the mother to move with the children, from Ontario back to Italy, where the parties had lived during the children’s early years. The mother was a lawyer who could only practice her profession in Italy.

The trial judge found that the reasons for the move had a “direct bearing on the children’s best interests, both emotionally and financially”. At ¶ 4, the Court of Appeal agreed that the reasons for the move were relevant, holding that “the mother’s reasons for the move reflect her perception of the needs of the children, and her judgment about how those needs may best be fulfilled.” [ 84 ] A number of cases have considered the consequent benefits of the move for the children flowing from the primary parent being able to relocate to an environment where she or he will be fully functioning and happy.

See for example Chakraborty v. Chakroborty, 2008 CarswellOnt 6597 (S.C.J.) at ¶ 16 (affirmed by Chakraborty v. Chakroborty, 2010 ONCA 123 ), where the Court recognized the “good health of the applicant and the social, psychological and emotional aspects of her desire to move” as being significant factors impacting the child’s best interests. [ 85 ] Another such case is Sferruzzi v. Allan, 2013 ONCA 496 .

Although a case concerning a child with special needs, in reversing the motion judge’s decision to deny the move, the Court of Appeal relied on the fact that the move would enable to father to have his new partner’s support in looking after the child and “in sharing the associated financial and emotional burdens”. The child would have “the benefit of a healthy, happy parent who is better equipped physically, emotionally and financially to care for him”. The Court discusses these benefits in a number of paragraphs in the judgment. See ¶ 23-31, 49 and 56.

[86] Similarly, in Bjornson v. Creighton, (2002) (ON CA), 62 O.R. 3d 236 (C.A.) at ¶ 30, the Court of Appealreversed the trial judge’s denial of the move. In part, the Court of Appeal held that the trial judge “failed to appreciate the multi-facetednature of the mother’s desire to return to Alberta with the child and the concomitant positive effects on the child’s best interests in beingcared for by a well-functioning and happy custodial parent”. [87] Finally, see also Zanewycz v.

Manryk, 2010 ONSC 726 ¶ 116 for another case on this point. [88] In this case, the mother believes that the proposed move will benefit Brooklynn and Bryden. The move will also benefit themother’s well-being, which will enhance her ability to care for the children with the support of her spouse. I find that the mother’sreasons for the move to be relevant to her ability to parent. Further, as I will explain below, I do not find that the mother wishes to movefor an improper motive, such as to restrict the father’s access. F.

The Mother’s Credibility Respecting Her Proposed New Home in England [89] One area of the mother’s and Adnan’s testimony caused the Court considerable concern. Both the mother and Adnan testifiedabout the home in which the children will reside if the move is permitted. At the outset of the trial, Adnan was in the process of enteringinto a lease for a home in Newcastle in preparation for the mother and the children to arrive if permitted.

The mother testified that theysecured a new rented home just as the trial was starting[15]. [90] The mother tendered various photographs, purportedly of the new rental accommodations. She explained to the Court that thephotographs depict the home in which she and the children would be living. The photographs of the interior of the home depict amodern kitchen, a modern bathroom, and nicely decorated bedrooms. [91] In cross-examination, the father produced a real estate listing that he discovered on the internet respecting the address that themother said she and Adnan had rented.

The listing describes the house as a semi-detached, three bedroom home. However, the listingcontains different photographs. There is a photograph of the exterior of the home depicting a semi-detached, red brick house but theinterior photographs are very different from those tendered by the mother. The interior photographs are of more basic accommodations;as if it were a house that had not been renovated. [92] When confronted with these pictures, the mother changed her story about the rental.

She testified that she made a mistake, andthe set of pictures that she originally tendered were intended to be examples of how she would decorate the home in the future. She saidhad mixed up the photographs. I do not believe this explanation, which appeared to have been made up in the middle of cross-examination. [93] Adnan testified soon after the mother gave this evidence. I did not take a break in between the mother’s evidence on this pointand Adnan’s evidence knowing that the father would also question Adnan on the photographs.

In cross-examination, Adnan confirmedthe mother’s original set of photographs to be an accurate depiction of the house. The father did not then confront Adnan with theaccurate rental listing. Nevertheless, I interrupted the cross-examination and specifically asked Adnan whether he had actually beeninside the home that the parties had just rented. He confirmed that he had. [94] Later in both her cross-examination of the father and in submissions, the mother attempted to correct this evidence by suggestingthat humans make errors.

For example, the father omitted the employment insurance income he earned in 2017 from his sworn financialstatement for the trial (although he simultaneously provided documentary proof the employment insurance income in his exhibit book). The mother suggested to the father that this omission on his financial statement was “human error”, which the father readily admitted. The mother then asked the father to accept more generally that human errors can occur.

The not so subtle message was that herswitching the photographs was “human error”. [95] The mother never acknowledged that she had misled the Court nor did she apologize for that. At the end of the trial, the motherasked me to find that the photograph switch was a mistake. I do not accept this. I find that the mother deliberately filed misleadingphotographs of the home in Newcastle and I find that she and Adnan attempted to mislead the Court about their housing. What I do notunderstand is why they would do this.

Granted the false photographs that the mother submitted were nicer, but the actual photographsthat the father retrieved from the internet depict housing that is perfectly appropriate. [96] Based on the mother’s conduct on this point, the father asks the Court to find that the mother is not credible and that I shouldnot trust her other evidence. He relies on this in support of his request that I deny permission for the move. [97] While the Court in no way condones the mother’s and Adnan’s misleading conduct, I decline to deny the move on this basis.

Just because I have made an adverse finding about her credibility and conduct in relation to this piece of evidence does not mean that Imust reject all of the mother’s evidence. See Baker-Warren v. Denault, 2009 NSSC 59 , 2009 NSSC 59 (S.C.). [98] Although the mother and Adnan misled the Court, ultimately I must be guided by what is in the children’s best interests. Despite their serious lack of judgment respecting this evidence, I nevertheless find the move to be in the children’s best interests whenconsidering the totality of the evidence. I note that the Court followed this approach in Johnston v.

Brighton, 2004 CarswellOnt 3420(S.C.J.) at ¶ 41-46 and rejected an argument that the move should be denied based on the mother’s past lies under oath. In that case, theCourt sanctioned the mother through an award of costs for her conduct. In this case, I find the mother’s and Adnan’s misrepresentationto be relevant to a question I have about whether to order the mother to post security. G.

The Mother’s Employment History and Prospects [99] I agree with the mother that if the move is allowed, she will be able to pursue an employment opportunity in the UnitedKingdom which will enhance the family’s finances and ultimately it will benefit the children. [100] The mother testified that she has a job in the United Kingdom. She tendered a one page “Offer of Employment” for a SalesManager job for MI Traders Ltd. The document states that the mother will be paid “40K[16]” with the possibility of a yearly bonus.

She is required to work 37.5 hours (flexible) between the hours of 9 am to 8 pm. [ 101 ] MI Traders Ltd. is a company that also is in the mobile phone business. The mother explained that her role in this new job will be to oversee the other sales representatives for the company, monitor sales targets and report to the director of sales. [ 102 ] Regarding her qualifications for this job, the mother testified that she has a high school education and that she studied theater at Humber College after that for about one year.

Several years later, she took a night course in project management at Ryerson University that she completed in 2013. She testified that it took her two years to complete because of her parenting responsibilities. [ 103 ] The mother’s first job was at Telus beginning in 2008. She started out working in a call center, switched to work for Telus’ loyalty and retention program and then took some leadership training and became a trainer. [ 104 ] After about 5 years at Telus, she went to work for Auto Trader. She worked as a performance manager there.

She was laid off on April 28, 2016. [ 105 ] Towards the end of her time at the Auto Trader, she was offered the opportunity to become a financial advisor for Sunlife. After she was laid off from Auto Trader, to pursue the opportunity at Sunlife, she started a licensing course in about May of 2016, which she completed in October 2016. [ 106 ] In May 2016, she also simultaneously applied for four jobs. In cross-examination, she testified that she did not apply for additional jobs because she had put her “heart and soul” into getting the job at Sunlife.

Despite passing the licensing exam, the mother then discovered that she was ineligible to work as a financial planner because of her debts. She was led to believe this would not be a problem when she was studying, but discovered otherwise months later. [ 107 ] Then, in about November of 2016, she discovered she was pregnant with Zain.

The mother candidly admitted that she wasn’t focused on looking for another job after she became pregnant. [ 108 ] I do not fault her for focusing on retraining for a job at Sunlife for several months in 2016, and then changing her focus when the job at Sunlife did not materialize and when she discovered her pregnancy. [ 109 ] The mother testified that she and Adnan initially discussed Adnan moving to Canada.

However, Adnan has business ties in the United Kingdom and was then financially supporting the mother (he still does), their soon to be born child (he still does), and Brooklynn and Brayden to some extent through his payments to the mother. He also supports his children from his first marriage. [ 110 ] They agreed that Adnan moving to Toronto was not an option. [ 111 ] In anticipation of a move, Adnan introduced the mother to one of his colleagues, the owner of MI Trading Ltd., who later offered the mother the job in his business.

The mother had discussions with him in December 2017 and January 2017, but before committing, she wanted to first have a discussion with the father about a possible move. This discussion then happened in February 2017 at the father’s home. How that meeting unfolded is dealt with below, but needless to say, the father did not consent to the move. [ 112 ] The mother participated in a telephone interview for a job at MI Trading Ltd. in May of 2017. Her prospective employer was prepared to hire her, given her experience working for Telus.

She testified that she told her new prospective employer about this court case as she could not commit to a start date. She also testified though that she thought this case would be over by the time the trial started, and that she would have a decision by now. Based on that understanding about timing, she had hoped to already be in her new job when this trial was proceeding. [ 113 ] Nevertheless, the mother maintained that there is flexibility as to the start date for this new position despite her inaccurate time estimate for the move.

I accept this given that the new employer is a contact of Adnan’s. [ 114 ] The father challenged this evidence in two main respects. First, he suggested that the mother did not look hard enough for a job in Toronto. Second, he suggested through his cross-examination that the mother’s employment offer is not real.

He questioned her stated job flexibility, he suggested that the contract provides that she will be paid more than market rates (based on his own internet research), and he suggested that the mother has no managerial experience. [ 115 ] I am not prepared to find that the mother’s job offer is not real as the father argued. Neither parent called the new prospective employer to testify.

Despite the father attempting to challenge the mother’s rate of pay, I received no admissible evidence concerning market rates of compensation in the United Kingdom to contradict the reasonableness of the compensation the mother says she will receive. The father’s questioning of the mother on this point armed with his own internet research is not evidence. [ 116 ] Moreover, the mother’s evidence about the sequence of events leading to this job, and the information she provided about her discussions with the potential employer, and about this job itself, was detailed.

For the mother to mislead the Court about this job as the father suggested, she would have had to tell multiple lies to the Court. I am not prepared to find that she did this. Incidentally, it is also makes sense that Adnan, who works in the mobile phone industry, would reach out to a contact in the same industry, to get the mother a job. The evidence is that a move to Newcastle will enable the mother to pursue this job, increase her income and to have the job flexibility to better parent the children. H. The Maximum Contact Principle [ 117 ] As Gordon v.

Goertz and other cases direct, I must take into account the “maximum contact principle”. The maximum contact principle is the notion that the children should have as much contact with both parents that is in their best interests. The focus is on meaningful contact. [ 118 ] Although this principle is enshrined in the Divorce Act but not in the Children’s Law Reform Act, it has been nevertheless been

applied in cases decided under Ontario’s provincial legislation (see for example Cavannah v. Johnne, 2008 CarswellOnt 7455 (S.C.J.) ¶ 38), and it is a relevant consideration in mobility cases. [119] The parties have raised the maximum contact principle in three different ways in this case. [120] The first is whether or not the travel plan(

s) will, either from a monetary point of view or from the point of view of logistics,permit the children to have contact with their father, and by extension, their extended family here in the Greater Toronto Area. [121] The second is whether the time zones between Toronto and Newcastle will interfere with telephone and other contact, such asvia Skype.

Embedded in this second argument is the father’s submission that telephone and Skype access only work in the scenariowhere the children remain here in Toronto with him and the mother moves to Newcastle without them, but not in the reverse scenariowhere the children are in England. [122] And third, the father has squarely raised the question of whether the mother’s move is designed to frustrate his access. [123] On its face, the maximum contact principle could be said to be completely inconsistent with a move. However, that is not howthe principle has been interpreted and applied.

As McLaughlin J. held at ¶ 24 of Gordon v. Goertz, and previously at ¶212-219 of Youngv. Young, (SCC), 1993 CarswellBC 264 (S.C.C.), the maximum contact principle is mandatory, but not absolute. TheCourt must respect it to the extent that such contact is consistent with the children’s best interests. [124] Further at ¶ 217 of Young v. Young, McLaughlin J. said the maximum contact does not mean daily contact. Nor does it meanthat a custodial parent may not move. “Optimum access may simply not be in the best interests of the child for a variety ofcircumstances.” [125] And at ¶ 25 of Gordon v.

Goertz, she said, “[t]he reduction of beneficial contact between the child and the access parent does notalways dictate a change of custody or an order which restricts moving the child”. The benefits served by remaining with the custodialparent and permitting the move may very well offset the reduction of contact. [126] I will now address the three arguments about contact raised by the parents.

(1) The Various Travel Plan(s) [127] Although I am permitting the move, I do not find the specifics of either party’s travel plans to be in the children’s best interests. However, the parents each made concessions during their evidence which will permit the Court to craft a suitable alternative. [128] The mother’s plan is that the children would travel to Toronto twice per year, for the school spring holiday and part of thesummer school holiday, and over Christmas in alternating years.

She states that this plan provides the father with 52 days per year,which she says approximates the current access he has right now[17]. She also says he can travel to Newcastle if he wants and he cansee the children there on appropriate notice. [129] The mother initially presented a travel budget in a spreadsheet format that she prepared, without providing any supportingdocumentation.

The budget claims that the cost of travel for the father and the two children for the spring holidays is approximately$2,800, and the cost for the summer and winter holiday travel ranges between $3,600 and $3,900. [130] According to her proposal, the total annual cost of travel would be about $6,706.49 in years where the father does not have thechildren for Christmas under her plan, or $10,373.87 in years where he has Christmas. [131] The mother’s initial travel plan focuses more on her own interests than those of the children.

She argued that the father shouldnot only pay retroactive and prospective child support and fund 100% of the cost of his and the children’s travel to and from Newcastle,but she wanted the father, exclusively, to be the parent who will accompany the children on the plane back and forth between Torontoand Newcastle. [132] Until the children are old enough to travel on their own, each of the children’s trips for access, according to the mother’s plan,would require multiple return flights and hotel stays as follows: (

a) The father bears the cost of ground transportation to get to Toronto Pearson Airport. This cost of this is not reflected in themother’s travel budget; (

b) The father travels to Newcastle from Toronto. He must purchase a round trip ticket and uses the first leg of that ticket to get toNewcastle; (

c) The father stays overnight in hotel; (

d) The father brings the children back to Toronto. He must purchase three round trip tickets for himself and the children and usesthe first leg of those tickets to get from Newcastle to Toronto; (

e) The father and the children travel from the Toronto Pearson Airport to his home. The cost of this ground transportation is notreflected in the mother’s travel budget; (

f) The father and the children travel to the Toronto Pearson Airport from his home. The cost of this ground transportation is notreflected in the mother’s travel budget; (

g) The father returns the children to Newcastle after his visit and uses the return portion of the three round trip tickets; (

h) The father stays overnight in a hotel;

(

i) The father travels back to Toronto on the return portion of original round trip ticket referred to in paragraph (

a) above; and (

j) The father returns from Toronto Pearson Airport to his home. The cost of this ground transportation is not reflected in the mother’s travel budget. [ 133 ] In response, the father tendered a proposed itinerary that Shonelle created using British Airways’ website. The father’s/Shonelle’s itinerary purports to depict what the cost of travel between Toronto and Newcastle will be. Shonelle’s internet search assumes random travel dates in March and April 2018. [ 134 ] Shonelle testified that she used British Airways because it offered the most direct routing between Toronto and Newcastle.

According to Shonelle’s research, the cost of airfare for one access visit only, exclusive of hotels and ground transportation, was $6,582.01 CAD. This was almost equivalent to the mother’s total annual travel costs in certain years. [ 135 ] Shonelle’s airfare costs were broken down as follows: (

a) The father’s trip from Toronto to Newcastle on British Airways costs $1,679.64 CAD. I note that Shonelle searched for this leg as a one way ticket, which inflates the cost of a ticket; (

b) The cost of three roundtrip tickets from Newcastle to Toronto, and then returning from Toronto to Newcastle is 1,466.82 GBP (or approximately $2,522.93 CAD using the conversion rate of 1.72 that I used above); and (

c) The cost of the father’s trip from Newcastle to Toronto is 1,385.14 GBP (or approximately $2,382.44 CAD using the conversion rate of 1.72 that I used above). Again, I note that Shonelle searched for this leg as a one way ticket. [ 136 ] To respond to this evidence, the mother suggested through questions in cross-examination, and then in her own reply evidence, that the father’s and Shonelle’s searches were too narrow. She tendered an internet search from the Google Flights search engine that showed the cost of round trip flights to be much lower.

Shonelle argued with the mother that the mother’s Google Flights’ search produced routes with multiple stops or long lay overs, including in one instance, an overnight in Amsterdam. Indeed, in some instances the mother had the children and the father flying in and out of Manchester.

I was then told that Manchester and Newcastle are a driveable distance, but I received no evidence about the cost of that ground transportation between Newcastle and Manchester. [ 137 ] Through this evidence, one parent or the other tried to persuade the Court the other’s travel plan was either inaccurate, incomplete, understated or overstated in terms of cost, or that it didn’t make sense logistically. The Court finds that both parties’ evidence and submissions on this point are inaccurate. To some degree such evidence will always be somewhat inaccurate because it is evidence of projected future travel costs.

Both parties necessarily had to search on random dates to come up with estimates of airfare. The parties will not have the actual costs until such time as travel actually happens and the parties sit down to actually book a trip. [ 138 ] However, in the mother’s case, she didn’t present any documentation to support her travel plan, at least initially. I also note that she had an interest in persuading the Court the father could afford the cost of travel, and so lower travel costs would support her plan.

Yet even then, her plan omits the cost of certain travel items, and it places on the father an unreasonable burden respecting paying for the travel and accompanying the children on their flights. [ 139 ] Conversely, it was in the father’s interest to inflate the cost of travel as much as possible to support his argument that travel will not happen post-move. His evidence is not reliable in that Shonelle’s searches included two one way tickets for himself at the start of the journey and at the end of the journey, rather than searching for a return trip that may have lowered the cost.

He also didn’t provide the cost of ground transportation either, nor proof of the cost of hotels. Finally, Shonelle only searched on a single airline when cheaper, convenient options may be available. [ 140 ] I am not prepared to conclude that British Airways is the only airline that is in the children’s best interests to use. It is not necessarily true that all other airlines’ travel times and layovers are too long for these children to tolerate.

For example, one of the mother’s proposed routes that she depicted in her reply evidence provides that the total travel time, one way, would be 11 hours and 30 minutes, versus 8 hours and 50 minutes that Shonelle’s British Airways itinerary depicts. The cost of a return trip for that itinerary dropped significantly to $902 round trip, almost half of the cost of the one way ticket that Shonelle’s search revealed. [ 141 ] Regardless, the mother’s plan that the father bear all of this burden is not a financially viable option, nor is it reasonable.

If I were to order her plan as presented, I find it would risk impairing the father’s relationship to the children, because I do not believe that the access the mother proposes should happen will actually happen. I say this due to a lack of finances on the father’s part to fund all of this travel, and also because I recognize the father has other work and family commitments. I also find that the mother’s proposal that the father could spend extra time with the children in Newcastle on adequate notice is not realistic for the same reasons.

It is not in the best interests of the children to have their father’s financial resources diminished to fund the full cost of all this travel, nor to have the father exhausted from travel, when they are supposed to be enjoying visits together.

The mother’s initial travel plan also fails to acknowledge that it is the mother, not the father, who has come to the Court seeking permission to move. [ 142 ] If the Court were to order the mother’s initial travel plan, the Court would not be giving due weight to the maximum contact principle. [ 143 ] But on the other hand, despite the deficiencies respecting the travel evidence, the father’s proposal that the move be denied and that the children should reside with both parents equally is not in the children’s best interests either.

Nor is it in the children’s best interests for the move to be denied and for the children to reside with him primarily should the mother choose to go to Newcastle anyway. I make this finding based on my overall assessment of all of the evidence and the factors that must be weighed. [ 144 ] In coming to this conclusion, I have specifically considered and rejected the father’s argument that Adnan could move here as an alternative that militates in favour of not allowing the move. I do not find this to be reasonable or realistic. Again, he has a business in the United Kingdom and other obligations.

His income is the source of support for two families [18] .

[ 145 ] Although the mother’s initial travel plan is not acceptable to the Court, in my view, there are alternatives available. During the trial, I asked the parties a number of questions about different alternatives in a scenario where the move is permitted, or where a move is denied, to ensure I had both parties’ complete positions respecting the obligation to fund and facilitate the travel. [ 146 ] In response, both the mother (and Adnan) said they would make financial concessions.

The mother suggested that the father be given some child support relief, and she and Adnan are “open” to sharing the financial and logistical burden of travel in some fashion. I was not given a number and they essentially left it to the Court to decide. [ 147 ] Specifically, Adnan said he would contribute financially to the cost of travel if that what is required. I note that he testified that if the mother was ordered to pay for travel and she couldn’t afford it, he would pay the shortfall.

While he does not have direct liability to do this and the Court is not ordering him to do this, I have considered the mother’s finances in this context and Adnan’s promise of continued financial support for travel costs post-move. [ 148 ] In response to my questions, the father said that in either scenario, the mother should be responsible for the cost and logistics of travel, including accompanying the children on their flights.

Alternatively, he is prepared to accompany the children one way, but the mother should accompany the children the other way, the cost of the children’s flights should be entirely at the mother’s expense, and he will pay for his own travel. [ 149 ] Shonelle said she is prepared to help out with the costs if necessary to support her husband, but she cannot contribute in a significant way. She has a child of her own. Shonelle has no responsibility to contribute anything to this.

She may choose to do so as a supportive spouse, but that is up to her. [ 150 ] I intend to craft an Order that takes these and other considerations into account. I provide specifics later in these reasons.

(2) The Arguments Respecting Telephone and Skype Access [ 151 ] The mother proposes that the father may also have telephone and Skype access with the children if the children are permitted to move. The father submits that the mother’s plan in this respect is unworkable. [ 152 ] The father tendered telephone records from August 6, 2016 to December 6, 2017 to show that he had regular telephone access with the children when they were not in his care for access visits.

In cross-examination, the mother admitted that the father speaks to the children either daily or every other day, although she said the calls were short. [ 153 ] According to the father, telephone and Skype access will not work in a scenario where the children are allowed to move given that Newcastle is 5 hours ahead of Toronto. If he tries to telephone the children before they go to school in the morning, it will be in the middle of the night here.

On the other hand, if he waits until the end of his work day, it will be too late in the evening and the children will already be in bed. [ 154 ] However, he says that telephone and Skype access will work in a scenario if the mother moves and the children stay behind. She can telephone the children in the evening from the United Kingdom when it will be after school here. Apparently this has already been done during the mother’s previous trips to the United Kingdom when the children remained behind. [ 155 ] I did not find this argument to be persuasive.

The father does not need to wait until he gets home from work to telephone the children. He can certainly take a break during the afternoon of his work day and telephone the children when it will be evening time in Newcastle. As well, he does not necessarily have to have daily telephone or Skype contact for that contact to be meaningful. If he cannot make day time calls work, he can telephone and Skype on weekends for longer periods of time.

(3) The Parties’ Compliance With Court Orders [ 156 ] Each party accuses the other of failing to comply with Court Orders and asks that I take this into account. Again, in the father’s case, he argues that the Court should be suspect that the mother will not facilitate his relationship with the children or comply with any Order I make if I permit the move and he makes this argument with reference to the mother’s past conduct. [ 157 ] I am considering this evidence pursuant to section 24(3) of the Children’s Law Reform Act.

However, I am also mindful of the backdrop of the litigation when I consider these allegations. I find there has been some positioning by both parties with a view to their desired outcomes in the litigation. In the result, I am not prepared to find that the mother’s desire to move is motivated by a desire to curtail the father’s parenting time. Nor am I prepared to find that she has engaged in a pattern of frustrating the father’s contact in the past. (

i) The Mother Changed the Children’s School in 2016 [ 158 ] Firstly, the father complains, with hindsight, that the mother did not respect the duty to consult him about important decisions respecting the children as she was required to do by Murray J.’s November 6, 2013 Order. He says this with specific reference to the mother’s decision to change the children’s school.

As set out above, for the school year commencing 2016-2017, the mother changed the children’s school from Our Lady of Peace Catholic School to the Winchester Public School. [ 159 ] The mother explained that she did so because she was previously living in Etobicoke but moved within Toronto. Therefore, she moved the children to a school within the new school district. [ 160 ] She testified that she did discuss it with the father. She refuted the father’s allegation that religion was a motivating factor for the school change; rather she changed schools due to convenience/geography.

Moreover, she selected the specific school within her new area, because it offered French Immersion. [ 161 ] The father testified that the mother did not consult with him, rather she just told him. The father tried to suggest to the mother in

his cross-examination of her that she only told him about the school change in the summer of 2016, after the registration had already been done. The mother maintained that she told him just as she was about the change the registration, but beforehand. She was firm under cross-examination that the father did not object to her plan to change the school. The father even agreed with this proposition in his questioning of the mother, by responding in commentary to her that he didn’t object because he didn’t want to make it difficult for the children. [ 162 ] I prefer the mother’s evidence on this point.

I find her evidence to be credible respecting the school change. Incidentally, the manner in which the evidence unfolded and the content of that evidence is consistent with the evidence that the mother was primarily responsible for the children’s education, which I have dealt with above. [ 163 ] I am not prepared to find that the mother breached the Order of Murray J. dated November 6, 2013 in this respect. The evidence is that she told the father about the school change before she effected it, thereby giving him an opportunity to dispute it.

Even if the issue was disputed, the mother had custodial authority to change the school. Her reasons for the school change were perfectly reasonable, which the father seemed to acknowledge in his cross-examination of the mother. Even if a broader exposure to other religions was a motivating factor for the mother, there is nothing inappropriate about that. (ii) The Father’s Introduction to Adnan and the Initial Discussion of the Proposed Move [ 164 ] The balance of the allegations by both parties primarily relate to the other’s willingness to facilitate a relationship with the other parent.

In my view, the unfortunate manner in which the father was introduced to Adnan and the timing of the mother’s announcement that she intended to move to the United Kingdom have created some rigidity on the part of the parents, which is unfortunate. However, the mother has not attempted to frustrate the children’s relationship with the father. [ 165 ] I will first provide context. [ 166 ] Although he was aware of the mother’s new relationship previously, the father first met Adnan in February 2017 during one of Adnan’s trips to Toronto.

During this particular trip, the mother and Adnan asked for a meeting with the father and Shonelle. At this first introductory meeting, they announced the mother’s intention to move to the United Kingdom. Understandably, the conversation did not go well. It ended without any specifics discussed. Both parties agreed in their evidence that the father was unwilling to consider the move. The mother testified that the father said that she could move, but not with the children. [ 167 ] I understand why the father found this first meeting to be off-putting.

Adnan acknowledged that the timing of the conversation was not ideal. However, he expected the father to be open to the idea, particularly given the various benefits that he said he could offer the children. [ 168 ] Interestingly, notwithstanding this rocky introduction, the father and Adnan developed a cordial relationship with each other. In his evidence, Adnan described himself as a “man of dialogue”. The father agreed with Adnan’s characterization about himself. The father and Adnan seem to like each other.

In his evidence in chief, the father described Adnan as “extremely respectful”, although he testified that he didn’t know enough about Adnan as he would like. The father and Adnan were incredibly polite to one another during the father’s cross-examination of Adnan. [ 169 ] There is evidence that the two men respect one another. As I will explain below, this relationship of respect, and Adnan’s intervention, later operated to diffuse a difficult situa

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