



COURT OF APPEAL FOR ONTARIO

CITATION: Bourke v. Davis, 2021 ONCA 97

DATE: 20210217

DOCKET: C68969

Feldman, Tulloch and Nordheimer
    JJ.A.

BETWEEN

Darcy Bourke

Applicant (Appellant)

and

Jennifer Davis

Respondent (Respondent)

Michael J. Stangarone, for the
    appellant

Richard A. Noll, for the respondent

Heard: February 4, 2021 by videoconference

On appeal from the order of Justice David
    A. Broad of the Superior Court of Justice, dated December 16, 2020, with
    reasons reported at 2020 ONSC 7667.

Feldman J.A.:

A.

INTRODUCTION

[1]

The parties are the divorced parents of two boys
    aged six and four. The respondent mother is remarried to an American man who
    lives in Washington State, U.S.A. and is employed with Microsoft Corporation.
    While the new husband was able to work in Ontario for a period of time, in
    December 2020, he was obliged to return to Washington for his work. The
    respondent and her new husband recently had a baby girl together.

[2]

This is an appeal from a decision following a
    trial that allowed the respondent mother to move with the two boys to
    Washington. The trial judge ordered significant periods of in-person access to
    the appellant. He also ordered joint custody but with ultimate decision-making
    authority to the respondent.

[3]

Following the decision of the trial judge, the respondent
    made plans to travel with the boys to Washington. The appellant sought and
    received a stay of the order pending the appeal of the trial judges decision.
    The hearing of the appeal was expedited. As a result, the boys have remained in
    Ontario with the appellant pending the outcome of the appeal.

B.

Factual Background

(1)

Marriage and divorce

[4]

The parties were married on June 22, 2012 and
    had two sons who are now six and four years old. The parties separated in 2017 and
    eventually divorced on August 27, 2018.

[5]

The appellant is a transgender woman. She made
    the decision to transition from male to female following the birth of the
    parties second son.

(2)

Post-separation arrangements

[6]

The children have always resided in Kitchener,
    Ontario. After the parties separation in 2017, the children remained with the
    respondent in the matrimonial home, and the appellant moved to her mothers
    house in Moffat, Ontario where she resided for two months before going to live
    with friends in Breslau, Ontario. Since July 2020, the appellant returned to
    residing with her mother in her house in Moffat.

[7]

From the beginning, the children had access
    visits with the appellant. The schedule, which began with only Sunday afternoon
    visits, increased over time to include overnight visits from Friday to Sunday
    on alternate weekends and one midweek non-overnight visit. During the period of
    August to October 2018, when the appellant underwent and recovered from her
    transition surgery, access visits were largely interrupted. However, by
    November 2018, the previous schedule had resumed. The appellant had the
    children for a full week in each of July and August 2019. The respondent also
    offered the appellant additional time from December 31, 2019 to January 5,
    2020.

[8]

Due to the COVID-19 pandemic and the subsequent
    school shut-down in the spring of 2020, the appellants mid-week afternoon
    access visits expanded to become overnight access visits. When the children returned
    to school in September 2020, these overnight visits were discontinued, and the
    previous schedule was re-instated.

[9]

The trial judge referred in his reasons to
    parenting time records placed in evidence by the respondent, and noted that
    the respondent had offered the appellant numerous extra visits, and that the
    appellant had missed a number of these scheduled visits. The records were
    largely not disputed by the appellant.

(3)

Respondents relationship with her new spouse

[10]

The respondent met her current husband, Bradley
    Davis, on-line in March 2017. He lived in Redmond, Washington and worked for
    Microsoft. He was divorced and had a young son who lived with his ex-wife in
    San Antonio, Texas. He has a shared custody/access arrangement with her regarding
    his son.

[11]

The respondent and Mr. Davis began to spend one
    extended long weekend together per month, including with Mr. Daviss son on a
    number of occasions. When Mr. Davis was transferred to San Antonio, he was able
    to travel frequently to Ontario to visit the respondent and her children. The
    respondent and Mr. Davis were married on December 14, 2018.

[12]

Mr. Davis was transferred back to Redmond in
    April 2019, and was allowed to live for two weeks in Washington and two weeks
    in Ontario. On December 20, 2019, the respondent and her children spent ten
    days with Mr. Davis in Redmond.

[13]

With the onset of the COVID-19 pandemic in
    February 2020, Mr. Davis arranged to work remotely from Kitchener, and obtained
    a Canadian work visa. However, that visa expired on December 31, 2020 and could
    not be extended.

[14]

The respondent and Mr. Davis also now have a
    daughter, born in April 2020.

C.

application for custody

[15]

In her original application, the appellant
    sought joint and shared custody of the children on a 2/2/3 schedule, but no
    interim order changing the then current arrangement. In response, the
    respondent asked for sole custody of the children, an order allowing her to
    move with them to the United States, and an interim order confirming the current
    arrangement. Both parties agreed to an investigation by the Office of the
    Childrens Lawyer (OCL), which was conducted beginning in July 2019 with the
    report delivered in January 2020.

[16]

The OCL investigator, Mr. Glory To, interviewed
    both parties and observed them with the children at their respective homes. He
    spoke to the children but because of their young age, he received no input from
    them regarding custody and access, other than that they were happy with both
    parents. He also spoke to Mr. Davis, as well as to the appellants mother who lives
    with the appellant and helps with the children.

[17]

Mr. To recommended that:

·

The respondent should be given sole custody of
    the children, but with the requirement that she provide advance notice to the
    appellant of any major decisions regarding the children.

·

The children should not be relocated to
    Washington. He agreed that the respondents plan for the children in Washington
    was well thought out and researched, including significant access visits with
    the appellant both in Ontario and in Washington, but he believed that frequency
    of visits was more important than length of visits with the access parent, and
    that it would be difficult for the appellant to be involved with the childrens
    education, health and religion if they resided in Washington State.

·

The children have one overnight access visit
    with the appellant once a week and every other weekend.

·

The appellant continue to receive psychiatric
    counselling because of her past mental health issues.

·

Both parties receive professional guidance to
    help the children accept the appellants gender change.

D.

THE TRIAL JUDGES DECISION

[18]

In lengthy and very thorough reasons, the trial
    judge reviewed the evidence, including that of Mr. To, and the positions of the
    parties. He also reviewed the legal principles in detail, including the guiding
    principles under the
Divorce Act
, R.S.C. 1985, c. 3 (2nd Supp.), as
    well as under the
Childrens Law Reform Act
, R.S.O. 1990, c. C.12, regarding
    custody and access, and the Supreme Court of Canada decision in
Gordon v.
    Goertz
, [1996] 2 S.C.R. 27, regarding mobility orders.

(1)

Review of the legal principles

[19]

The trial judge noted that
Gordon
was
    the pre-eminent authority on the issue of mobility and residency, and
    summarized the relevant governing principles set out by the Supreme Court, at
    paras. 49-50, as follows:



4. The inquiry does not begin with a legal
    presumption in favour of the custodial parent, although the custodial parents
    views are entitled 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 circumstances of 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
    parents reason for moving, only in the exceptional case where it is relevant
    to that parents ability to meet the needs 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.

In the end, the importance of the child
    remaining with the parent to whose custody it has become accustomed in the new
    location must be weighed against the continuance of full contact with the
    child's access parent, its extended family and its community. The ultimate
    question in every case is this: what is in the best interests of the child in
    all the circumstances, old as well as new?

[20]

The trial judge also referred to the British
    Columbia Court of Appeal decision in
Hejzlar v. Mitchell-Hejzlar
, 2011
    BCCA 230, 18 B.C.L.R. (5th) 128, at paras. 24-27, for the four important
    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:

(a) while subsection 16(10) 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 that
    which 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
    primary caregiver. This means, in part, the party seeking to move need not
    prove the move is necessary, although any degree of necessity, such as for
    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 discussions a presumption which is contrary to the instructions in
Gordon
    v. Goertz
to assess each case individually, and is contrary to the
    principle that 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 will not move if the child cannot accompany him or her, as it places the
    parent in a classic double bind.

[21]

On the same issue, the trial judge also quoted
    from the decision in
Thompson v. Drummond
, 2018 ONSC 1975, at para. 47-11,
    as follows:

[I]f the primary caregiver plans to move and
    has indicated that maintaining the status quo is off the table, the best
    interests analysis cannot focus on comparing the effect on children if they are
    permitted to relocate with the primary parent versus maintaining the status quo
    with that parent in the current location. The courts have indicated that
    approaching the issue in this manner ignores a key component of the
Gordon
test, namely the effect of removing the child from the care of their primary
    caregiver after that parent moves (
McAlpine v. Leason
, 2016 ABCA 153
    (Alta. C.A.); leave to appeal refused
Leason v. McAlpine
, 2016
    CarswellAlta 2158 (S.C.C.);
Spencer v. Spencer
, 2005 ABCA 262 (Alta.
    C.A.), at paras. 15 and 19;
Christmas v. Christmas
, 2005 ABCA 213 (Alta.
    C.A.), at para. 5;
MMG v. JAS
, 2017 ABCA 209 (Alta. C.A.), at para.
    23).

(2)

Factual findings and analysis

[22]

In approaching the issues before him, the trial
    judge determined to first decide the issue of custody, and then to proceed to the
    question of mobility.

(a)

Custody

[23]

To make the custody determination, the trial
    judge made a number of findings. First, he found that there was a reasonable
    measure of communication and cooperation between the parties regarding decisions
    about the children, including their medical and dental care, additional access
    time for the appellant, education issues, and the arrangement of events such as
    birthday parties. The trial judge noted that he was not required to apply a
    standard of perfection in assessing the parties ability to communicate and
    work together. It [was] sufficient if the necessary cooperation [was] workable
    and adequate. He ultimately concluded that the parties had the ability to make
    decisions respecting the best interests of the children. In so doing, he
    rejected Mr. Tos conclusion to the contrary as not supported by the evidence.

[24]

Based on the evidence the trial judge observed
    and accepted, he found that an order for joint custody would be in the
    childrens best interests because it would manifest the appellants important
    role in their lives.

[25]

The trial judge next addressed the related issue
    of whether final decision-making authority should rest with one parent or the
    other, and determined that the issue should be deferred pending a determination
    of the mobility question. Relying on references from two Manitoba Court of
    Appeal decisions in
Lamont-Daneault v. Daneault
, 2003 MBCA 111, 177
    Man. R. (2d) 235, which quoted from
Sawatzky v. Sherris
, 2002 MBCA
    143, 170 Man. R. (2d) 51, the trial judge looked at the factors to be applied when
    considering the conferral of final decision-making authority in a joint custody
    situation. He agreed that although many factors will be relevant, because the
    parent with primary care and control will ordinarily have the greater
    responsibility for the childrens upbringing and will have to implement the
    decisions, that parent should have the final decision-making authority.

(b)

Mobility

[26]

The third issue was the mobility question, i.e.
    whether the respondent could move with the children to Washington State. The
    trial judge agreed with the conclusion of Mr. To that the respondent has been
    and continues to be the primary caregiver of the children. As such, her reasons
    for wanting to move with the children were to be given great respect and the
    most serious consideration by the court: see
Gordon
, at para. 48;
Porter
    v. Bryan
, 2017 ONCA 677, 6 R.F.L. (8th) 41, at para. 11.

[27]

The trial judge found that the respondent had
    carefully researched the practicalities of the proposed move in a child-focused
    manner, as well as its implications for the children and for their immediate
    and extended family. This included options for school, as well as the economic,
    cultural, recreational and social characteristics and amenities in the greater
    Seattle area. Her proposed plan to maintain the childrens relationship with
    the appellant was practical and realistic, with blocks of time throughout the
    year designated for visits to Ontario. In addition, the respondent indicated
    that the appellant and her family would be welcome to visit the children in
    Washington and to stay at the Daviss home. The respondent had identified a
    list of extended family members of Mr. Davis who would provide a network of
    support for the children and her family. She had also considered the
    significant economic benefits of Mr. Daviss employment for the family, as well
    as the available employment opportunities for herself.

[28]

The appellants position before the trial judge
    was that the respondent did not need to move because Mr. Davis could find a way
    to move to Ontario, or in the alternative, that the respondent would not move
    without the children and therefore the status quo should be maintained in order
    to foster maximum contact with both parents.

[29]

The trial judge rejected these submissions. He found
    that in cases such as this one, where there was no suggestion that the
    respondents purpose for the move was to improperly deprive the appellant of
    access to the children, it was not the courts role to second guess the
    decision of the primary parent on what is best for the family. The trial judge
    accepted that the respondent intended to move to Washington, with or without
    the children. As a result, the status quo was not an option.

[30]

The trial judge acknowledged and agreed with
Hejzlar
,
    at para. 27, that courts should not put the moving parent in a double bind by
    relying on an expression by the moving parent that they would stay if the
    children were not allowed to move, in order to justify an order that maintains
    the status quo. Similarly, it would be improper for a court to speculate that
    the moving parent would not move without the children and then impose the
    status quo, relying on that speculation.

[31]

The trial judge then addressed the maximum
    contact principle, observing that a move by the respondent, with or without the
    children, will mean that their contact with one of the parents was inevitably
    going to be reduced. He referred to s. 16(10) of the
Divorce Act
,
    which directs the court to take into consideration the willingness of the potential
    custodial parent to facilitate maximum contact with the access parent in order
    to achieve that goal for the best interests of the children. The trial judge
    accepted that the respondent was willing and determined to facilitate the
    appellants contact with the children and to foster a healthy relationship
    between them, and that the respondents plan was intended to maximize that
    contact commensurate with the childrens education schedule.

[32]

The trial judge also addressed the potential
    disruption to the childrens lives by moving, and put weight on their young ages
    as minimizing the effects of such a move. He noted that they would have to move
    to a different school if they were ordered to live with the appellant in
    Moffat, Ontario. With respect to the childrens connection to the appellants
    extended family, the trial judge found that it is common for people today to
    live at great distances from each other, and to adapt to the situation by using
    more electronic communication. As a countervailing consideration, he noted that
    the children have a new extended family with Mr. Daviss son and their baby
    sister.

[33]

Furthermore, the trial judge found that the
    parenting plan proposed by the appellant, being premised on maintaining the status
    quo, was not realistic. The appellant did not present a plan to be the primary
    caregiver for the children once the respondent relocated to Washington. Specifically,
    she did not outline her plans for the childrens schooling, as well as their
    before- or after-school care. She also did not explain how she would foster the
    childrens relationships with their sister and the respondent.

[34]

The trial judge rejected Mr. Tos recommendation
    on the mobility question. The trial judge recognized that Mr. Tos
    recommendation against the childrens relocation was similarly premised on the
    respondent remaining in Ontario. Mr. To appreciated that the respondent had
    been the primary caregiver since the parties separation, but did not address
    the best interests of the children if the respondent were to move without them.
    Mr. To recommended that the best interests of the children would be better
    served with maintaining the status quo, where the respondent would have sole
    custody, and the appellant would have frequent visits, rather than long ones.
    The trial judge noted that Mr. To offered no evidence to back his opinion that
    the frequency of visits was more important than the length of the visits, and
    that on cross-examination, Mr. To conceded that longer visits could compensate
    for lack of frequency.

[35]

Because the issue had been raised, though not
    pressed in argument, the trial judge addressed the appellants fears that as a
    transgender person, the cultural differences between the United States and
    Canada may negatively impact the children. The trial judge acknowledged that the
    appellants fears were sincere and strongly held. However, since the appellant did
    not lead any evidence on how transgender people experience discrimination in
    the two jurisdictions, he could not find that her concerns would affect the
    best interests of the children.

[36]

Finally, the trial judge addressed the potential
    effect of the COVID-19 pandemic on the parties ability to give the
    contemplated generous access to the appellant. The trial judge took judicial
    notice of the fact that given the two countries travel restrictions, the
    parties would not be able to visit the children as freely. However, he
    concluded that his primary focus had to be on the long-term best interests of
    the children.

[37]

For all of the above reasons, the trial judge concluded
    that allowing the children to move with the respondent, with generous and
    liberal access to the appellant, would be in the childrens best interests.

(c)

Final decision-making authority

[38]

The final issue, for the purposes of this appeal,
    was whether as part of the joint custody award, the respondent should have
    final decision-making authority, given that she would have primary care of the
    children in Washington. The trial judge rejected the concern that the effect of
    giving one parent final decision-making authority would be to undermine the
    reality of the joint custody order. He agreed with the Manitoba Court of Appeal
    in
Lamont-Daneault
, that such an order made sense in the circumstances
    of this case because the respondent will have the greater responsibility for
    the childrens upbringing and for implementing [the] decisions made for their
    well-being. The trial judge noted that there was still a benefit to the joint
    custody order as it aligned with the childrens perception that decisions about
    them would be made collaboratively between their parents. The trial judge also
    signalled that the use of the final decision-making authority should be a last
    resort by stating that the respondent would have final decision-making
    authority, if necessary after meaningful consultation.

[39]

I attach the 22 paragraph terms of the trial
    judges final order as an appendix to these reasons.

E.

Stay pending appeal

[40]

The appellant appealed the decision of the trial
    judge and sought a stay pending this appeal. A stay was granted on January 15,
    2021 and the hearing of the appeal was expedited and heard on February 4, 2021.
    In the interim, the children have remained in Ontario with the appellant.

F.

Issues on the appeal

[41]

The appellant submits that the trial judge erred
    in law by:

1)

relying on the respondents position that she
    would be moving to Washington with or without the children to determine the
    best interests of the children;

2)

failing to give effect to the maximum contact
    principle, and instead focusing on the respondents position that she would
    move with or without the children and the reasons for the move;

3)

rejecting the recommendation of the OCL
    investigator against the relocation because he failed to consider the scenario
    where the respondent would move without the children; and

4)

giving final decision-making authority to the
    respondent.

G.

Analysis

[42]

Appellate courts are to give considerable
    deference to the decisions of trial judges on custody and access matters. An
    appellate court is not to overturn a custody order in the absence of a material
    error, a serious misapprehension of the evidence, or an error in law:
Segal
    v. Segal
(2002), 26 R.F.L. (5th) 433 (Ont. C.A.), at para. 1.

(1)

Did the trial judge err in law by relying on the
    respondents position that she would be moving to Washington with or without
    the children to determine the best interests of the children?

[43]

The appellant asserts that the trial judge erred
    in his analysis when he failed to consider the amendments to the
Divorce
    Act
which will come into force on March 1, 2021 and will include s.
    16.92(2). The provision, once amended, will read as follows:

In deciding
    whether to authorize a relocation of the child, the court shall not consider if
    the childs relocation was prohibited, whether the person who intends to
    relocate the child would relocate without the child or not relocate.

[44]

While this provision was not in force at the
    time of the trial, and is not yet in force, it is a fair submission by the
    appellant that s. 16.92(2) reflects Parliaments view about the courts
    approach to the moving parents intentions when considering the best interests
    of the child.

[45]

The Government of Canada website provides the
    following explanation for the s. 16.92(2) amendment:

Parents seeking to relocate with their
    children are sometimes required to answer in court the difficult question of
    whether or not they would proceed with a relocation if they were not permitted
    to bring their children. A response of I wont relocate without my child may
    be interpreted as evidence that the proposed relocation is not sufficiently
    important and should not be permitted. A response of I would relocate without
    my child may be interpreted as evidence that the parent is not sufficiently
    devoted to the child.

This provision would prohibit courts from
    considering this question  or the parents response  if raised in the context
    of the court proceedings. This will assist in focusing on the specific legal
    issue before the court.

[46]

Parliaments explanation of s. 16.92(2) reflects
    the classic double bind that has been recognized in the jurisprudence for many
    years. When the parent who wants to move with the children is asked whether they
    will stay in their current location should the mobility order not be made, the
    parent is immediately placed in a lose-lose situation. If they answer that
    they would stay with the children, it allows the court to fall back on the
    status quo and force the parent to remain when that result may not be in the
    best interests of the child. By contrast, if the parent says that they would go
    regardless, it allows the court to draw an adverse inference about that
    parents dedication to the children. The problematic double bind has led the
    courts to repeatedly discourage judges from relying on a parents
    representations about whether they will or will not move without the children:
    see, for example,
Spencer v. Spencer
, 2005 ABCA 262, 371 A.R. 78, at
    para. 18;
Hopkins v. Hopkins
, 2011 ABCA 372, at para. 6; and
Hejzlar
,
    at paras. 24-27.

[47]

The appellant argues that despite citing the
    appropriate cases on the double bind, the trial judge nonetheless placed undue
    weight on the respondents intention to move in his analysis of whether to
    grant the childrens relocation. However, I do not believe that is what
    occurred in this case.

[48]

The respondent was clear with the court that she
    had made the very difficult decision to go to Washington with her husband and
    baby, whether the children could go with her or not. She put forward three
    alternative parenting plans: 1) the children move with her to Washington and
    the appellant moves to British Columbia for closer and easier access; 2) the
    children move with her to Washington and the appellant stays in Ontario; and 3)
    she moves to Washington and the children remain with the appellant in Ontario. There
    was no plan presented where the respondent would remain in Ontario. In other
    words, the respondent made the trial judge aware that the status quo was not an
    option. For her part, the appellants plan only contemplated that the
    respondent would remain in Ontario with the children and that they would share
    custody on a 2/2/3 arrangement.

[49]

The respondent explained to the trial judge why she
    made the very difficult decision about the move. From an employment and
    financial point of view, it was not feasible for the family to remain in
    Ontario, and live on her salary alone, and if her husband gave up his job with
    Microsoft, he would lose not only his salary but the generous benefits in which
    she and the children as well as the baby were enrolled.

[50]

In these circumstances, the trial judge was not
    only entitled but was obliged to accept the fact that the respondent would be
    moving to Washington with or without the children and that the status quo was
    not an option for the court to consider. Because the appellant did not put
    forward her own parenting plan for the children if they remained in Ontario
    without the respondent, the trial judge was limited in the analysis he could
    conduct for the childrens best interests if the order was not made.

[51]

In his consideration of the mobility issue, the
    trial judge was always focused on the best interests of the children. In
    particular, he considered the research the respondent had conducted and the plans
    she had made for the children in Washington, including the family situation
    there, the economic benefits, and the maintenance of maximum contact with the
    appellant through visits as well as electronic means. He acknowledged the
    double bind issue that courts have wrestled with, where the moving parents
    motives for, and sincerity about moving has put that parent in a difficult
    position, but pointed out that in this case, the respondent was clear she would
    move either way. He rejected the appellants position that the respondent was
    holding the court up to ransom by saying she would move regardless of the
    outcome on the mobility application. The trial judge noted that this submission
    was simply another way of saying that the respondent was acting in bad faith,
    when there was no evidence to support that position.

[52]

I see no error in the trial judges treatment of
    the respondents intention to move to Washington. To the contrary, he assessed
    the reality of the available options for the children and used their best
    interests as the yardstick by which to measure the most suitable option for
    them.

(2)

Did the trial judge err by failing to give
    effect to the maximum contact principle?

[53]

Again, the trial judge addressed the issue of
    the maximum contact principle specifically and in detail. His analysis makes it
    clear that maximizing contact with the appellant was a significant aspect of
    the respondents parenting plan that allowed him to approve the childrens move
    to Washington. He recognized the reality that since the respondent would be
    moving, whether the children moved with her or stayed in Ontario, their contact
    with one of the parents would be limited.

[54]

The trial judge noted that since the appellants
    parenting plan was premised on the status quo, it did not explain how the
    childrens relationships with their new sister and the respondent would be
    maintained after the respondents move. By contrast, the respondents plan
    sought to maximize the childrens contact with the appellant. The trial judge
    accepted that the respondent had demonstrated a determination to foster the
    maintenance of a healthy and beneficial relationship between the appellant and
    the children.

[55]

Paragraph 6 of the order prescribes the
    childrens visits with the appellant in Ontario in February, March, April, May,
    July, August, October, November and December, as well as further dates as
    agreed by the parties. The respondent also testified that the appellant and her
    family would be welcome at the respondents home in Washington. The trial judge
    accepted this evidence.

[56]

As well, paragraph 9 of the order stipulates
    that there will be liberal electronic communication, which, while not a
    substitute for in-person access visits and live-ins, will certainly assist in maintaining
    the relationship between the appellant and the children.

[57]

The reality is that even in normal times, one
    parents move to another country creates many logistical difficulties for either
    that parent or the other parent visiting the children. The pandemic creates
    many more challenges. Having said that, the order demonstrates that the maximum
    contact principle, commensurate with the best interests of the children, was
    implemented by the trial judge.

(3)

Did the trial judge err by rejecting the
    recommendation of the OCL investigator against the relocation?

[58]

The appellant submits that the trial judge erred
    by failing to give weight to Mr. Tos recommendation against the relocation of
    the children, and in particular, to his evidence that it was in the childrens
    best interests to have regular and frequent contact with the appellant, given
    their young ages.

[59]

The appellant analogizes the case at hand to
    this courts decision in
Young v. Young
(2003), 63 O.R. (3d) 112
    (C.A.), where the court found that the trial judge had failed to take into
    account the OCL investigators recommendations. That was not what occurred in
    this case. As Laskin J.A. states in
Young
, at para. 40, the
    recommendations are not binding on the trial judge: see also
Prokopchuk v.
    Borowski
, 2010 ONSC 3833, 88 R.F.L. (6th) 140, at para. 116. Rather, the
    trial judge must give the report serious consideration and weigh the evidence
    accordingly:
Maharaj v. Wilfred-Jacob
, 2016 ONSC 7925, at para. 67. Here,
    the trial judge carefully considered Mr. Tos recommendations and accepted some
    while rejecting others.

[60]

For example, the trial judge accepted Mr. Tos observations
    that the respondent was the primary caregiver to the children following the
    parties separation. However, he rejected Mr. Tos conclusion that the parties
    were not able to get along and make decisions regarding the children. The trial
    judge found the evidence at trial to be to the contrary, and based on that
    finding, he awarded the parties joint custody of the children. In so doing, he
    did not follow Mr. Tos recommendation that the respondent be given sole
    custody, but awarded joint custody instead.

[61]

The appellant also submits that the respondents
    parenting plan #3, i.e. that she move to Washington and the children remain in
    Ontario, was not presented to Mr. To, and therefore, the trial judge should not
    have faulted him for failing to address that situation in his recommendations.

[62]

I do not agree. To the extent this issue was
    explored at trial, the respondent acknowledged that the parenting plan she
    provided to Mr. To was not the same as the one she provided at trial. She testified
    that she had told the appellant about her desire to move to the United States
    as early as 2017; that she had started working on the parenting plan in 2018;
    and that she had evolved the plan in response to Mr. Tos concerns about the
    frequency of visits with the appellant. To the extent that anyone at trial was
    concerned about a deficiency in the OCL report, that issue should have been
    addressed either with Mr. To when he testified, or with the trial judge.

[63]

As it was, the trial judge gave careful
    consideration to the OCL report and used it in his determination of the issues.

(4)

Did the trial judge err by giving final
    decision-making authority to the respondent?

[64]

The appellant submits that the trial judge erred
    in law by awarding joint custody but granting final decision-making authority
    to the respondent. She argues that because the trial judge accepted that the
    parties communicate well on issues surrounding the children, there should have
    been no final decision-making order imposed.

[65]

I would also reject this submission. The
    appellant has put forward no case law to support the position that the trial
    judges approach amounted to an error of law. To the contrary, the trial judge
    referred to case law in support of his observation that the parent with primary
    care and control and the greater responsibility for the childrens upbringing
    should, in some circumstances such as in this case, have final decision-making
    power. He also referred to
Newstead v. Hachey
, 2018 ONSC 1317, at
    para. 68, where the trial judge noted that giving final decision-making authority
    to one parent may appear to weaken the effect of the joint custody order, but it
    is important for children to see that decisions about them are being made
    collaboratively by both their parents.

[66]

The appellant referred to the case of
Segal
,
    as an authority for her submission, but in that case, the trial judge gave no
    reasons for awarding final decision-making power to one spouse. That is what constituted
    an error.

[67]

In this case, the trial judge provided an
    explanation for his decision to award the respondent final decision-making
    authority. He granted the final decision-making power only if necessary after
    meaningful consultation, showing his confidence in the parents that they will
    collaborate together in the best interests of their children.

H.

COVID Issues

[68]

For the above reasons, I would dismiss the
    appeal on the grounds raised.

[69]

However, I am cognizant of two circumstances
    that have had a significant impact since the trial and the decision of the
    trial judge. The first is that as a result of the stay imposed in order to
    expedite this appeal, the children have remained in Ontario in the care of the
    appellant. The second is that as a result of the pandemic, further travel
    restrictions have been announced or implemented by the government that will
    affect the ability of the parties and the children to travel back and forth
    between Washington and Ontario in the immediate future.

[70]

As a result, it is appropriate to amend para. 6
    of the trial judges order that sets out the access travel schedule. In her
    testimony at trial, the respondent agreed that longer access visits may be
    needed to compensate for quarantine obligations.

[71]

In order to compensate the appellant and the
    children for anticipated difficulties in travelling back and forth for the next
    couple of months, the children may remain in Ontario with the appellant until
    March 21,

which is identified at para. 6(b) of the order as the end
    of a long weekend that fits with the school schedule in Washington. This longer
    period of access with the appellant will help to compensate for the likely
    inability to conduct other access visits over the next number of months until
    travel restrictions are eased.

[72]

On that last point, it may be that the April
    10-18 visit provided in para. 6(c) of the order will not be feasible this year
    because of travel restrictions. I will not remove it from the order, but leave
    it to the parties to make the decision in accordance with the then current
    restrictions and the best interests of the children.

I.

Conclusion

[73]

I would dismiss the appeal, except for the
    amendment of para. 6 of the order for 2021 only, which will now provide that
    the children may remain in Ontario with the appellant until March 21.

[74]

With respect to costs, the appellant was
    successful on the stay application, and the respondent was successful on the
    appeal, subject to the access variation for 2021. As a result of the divided
    success, I would make no order as to costs.

Released: K.F. February 17, 2021

K. Feldman J.A.

I agree. M. Tulloch J.A.

I agree. I.V.B. Nordheimer J.A.


APPENDIX

1.

The title of proceedings is amended to change the name
    of the respondent to Jennifer Davis.

2.

The applicant Darcy Bourke and the Respondent Jennifer
    Davis shall have joint custody of the children of the marriage, namely Ronan
    William Bourke, born June 19, 2014 (male) and Hudson Jeremy Bourke, born March
    27, 2016 (male).

3.

The parties shall consult and confer with each other
    regarding all major educational, medical or religious decisions affecting the
    children. In the event the parties are unable to reach an agreement after
    having a meaningful discussion, the respondent shall make the final decision,
    keeping the applicant informed.

4.

The respondent shall be permitted to relocate with the
    children of the marriage, namely Ronan William Bourke, born June 19, 2014 and
    Hudson Jeremy Bourke, born March 27, 2016 to Washington State, United States.

5.

Until the children relocate to Washington State,
    United States, the applicant shall have access to the children as follows:

a.       Alternating
    Wednesday and Thursday evenings from 5:30 p.m. until 7:30 p.m. Wednesday
    evening access visits shall be in weeks ending with the weekend access visits
    referred to below, while Thursday access visits shall be during the alternate
    weeks; and

b.       Alternate
    weekends from Friday from the end of the school day (3:30 p.m.) until Sunday at
    6:00 p.m.;

c.       The
    Christmas school break 2020 shall be shared equally by the parties, as agreed
    upon in a manner consistent with manner in which the parties shared time with
    the children in 2018 and 2019;

Or such other
    times as may be agreed upon by the parties in writing.

6.

Once the children relocate to Washington State, United
    States, the applicant shall be entitled to exercise the following parenting
    time with the children in Ontario, Canada:

The children
    shall be in the care of the applicant, in accordance with the following
    schedule, which aligns with the childrens school vacation calendar:

a.       Winter
    Break each year: In 2021, dates are February 13th  21st;

b.       Extended
    long weekends each year: In 2021, dates are March 18th  21st and May 28th 
    31st

c.       Spring
    Break each year: In 2021 dates are April 10th  18th

d.       Summer:
    Two weeks in early summer break and two weeks at the end of summer break;

e.       Extended
    long weekend each year in October;

f.        Extended
    long weekend each year in November;

g.       One week
    at Christmas each year alternating the week; and

h.       Such other
    and further dates as agreed upon by the parties.

7.

Commencing in 2021, the respondent shall provide the
    applicant with a copy of the childrens school calendar and the proposed
    parenting time for the full year including summer, extended long weekends, Christmas,
    winter break and spring break as set out in paragraph 6 above.

8.

The applicant shall be permitted to exercise
    additional parenting time with the children in Washington State, or in British
    Columbia.

9.

The applicant shall exercise liberal telephone,
    video-call, Skype, and email contact with the children. The parties shall both
    be flexible with regard to the childrens schedule and availability for said
    telephone and/or video access. The applicants family shall be permitted to
    exercise telephone, video-call, Skype or email contact with the children, in
    the event the applicant is unable to do so.

10.

The respondent shall be permitted to reasonably
    contact the children during the applicants time with them via video-call,
    Skype or telephone.

11.

The respondent shall set up a OneDrive account for the
    children in order to share frequent photos, videos, school calendars, school
    events, and information directly with the applicant and her family.

12.

The children shall fly to Ontario from Washington,
    non-stop via Air Canada or another agreed upon airline, departing from
    Seattle-Tacoma Airport and landing at Toronto Pearson Airport. Until such time
    as the children are of the age to utilize the Unaccompanied Minor Service
    offered by the airlines, the applicant shall be responsible for travelling with
    the children, if applicable. The parties shall share equally in any costs
    associated with utilizing the Unaccompanied Minor Service.

13.

The respondent shall obtain and pay for Nexus passes
    for the children to expedite the process at the airport and to ensure easy
    cross-border entry to assist in facilitating the applicants parenting-time
    with the children.

14.

The costs associated with the applicants access with
    the children shall be offset as the applicants child support obligations for
    the children.

15.

a. The respondent may apply for, renew and/or replace
    the children's passports without the consent of the applicant.

b. The parties
    shall cooperate to facilitate one anothers international travel with the
    children which shall include but not be limited to the following:

i.
    executing travel consent letters and/or other documentation as may be required;

ii. exchanging the childrens identification; and

iii.
    adjusting the childrens regular residential schedule as may be reasonably
    necessary.

c. If either
    party travels with the children to a destination other than between the homes
    of the parties, they shall advise the other party of the location and dates of
    travel. In the event that this travel is for a period in excess of 72 hours,
    they shall provide the following additional details:

i. If
    the children are travelling by air, the name of the airline, the dates and
    times of the flights and the flight numbers;

ii.
    Full details of where the children will be staying, including names and
    addresses of any hotels or other accommodations; and

iii. Emergency contact telephone numbers for the children.

16.

The respondent shall pay for all of the Section 7
    Special or Extraordinary expenses for the children.

17.

There are no arrears of child support and/or Section 7
    Special or Extraordinary expenses owed by the applicant to the respondent.

18.

The respondent shall advise the applicant in writing
    of the names, addresses and telephone numbers of all third parties involved
    with the children including but not limited to all educational professionals
    and health care professionals (teachers, principals, tutors, physicians,
    psychologists, social workers, counsellors, dentists, etc.).

19.

If required by the childrens educational or health
    care professionals, the respondent shall provide written permission to these
    professionals to release information directly to the applicant.

20.

The applicant may directly contact all third parties
    involved with the children, namely, Ronan William Bourke, born June 19, 2014
    and Hudson Jeremy Bourke, born March 27, 2016 and shall be entitled to complete
    access to any information regarding the children, including and not limited to,
    all educational professionals and health care professionals.

21.

The applicant and the respondent shall maintain the
    children of the marriage, Ronan William Bourke, born June 19, 2014 and Hudson
    Jeremy Bourke, born March 27, 2016 on any extended health and medical benefits
    available to them through their employers.

22.

The applicant and the respondent shall at all times
    keep each other apprised of their current contact information including but not
    limited to address, telephone number and email address.


