



COURT OF APPEAL FOR ONTARIO

CITATION: O'Brien v. Chuluunbaatar, 2021 ONCA 555

DATE: 20210805

DOCKET: C68793

Gillese, Tulloch and Roberts JJ.A.

BETWEEN

Jeffrey OBrien

Applicant (Respondent)
[1]

and

Bia Chuluunbaatar

Respondent (Appellant)

Bia Chuluunbaatar, acting in person

Jeffrey OBrien, acting in person

Heard: June 14, 2021 by video conference

On appeal from the order of Justice James F. Diamond of
    the Superior Court of Justice, dated October 26, 2020, with reasons reported at
    2020 ONSC 6394, and from his costs order, dated November 23, 2020.

Gillese J.A.:

I.

OVERVIEW

[1]

This family law appeal engages new provisions in the
Childrens Law
    Reform Act,
R.S.O. 1990, c. C.12 (the 
CLRA
)
    governing relocation and allocation of parenting time.

[2]

The mother and father have one child. They separated when she was about
    nine months old. Based on a consent order, the mother has sole custody of the
    child and the father has access on alternate weekends.
[2]

[3]

When the child was five years old, the mother brought a motion seeking permission
    to relocate with the child to Mongolia. The mother was born, raised, educated,
    and employed in Mongolia before immigrating to Canada. The father opposed the
    motion.

[4]

After a three-day trial in the Ontario Court of Justice, the trial judge
    issued an order permitting the relocation. The fathers appeal to the Superior
    Court of Justice was successful and the relocation order was overturned.

[5]

The mother appeals to this court. Her appeal depends, in part, on
    whether the recent amendments to the
CLRA
relating to relocation apply
    to a case started before the amendments came into effect on March 1, 2021. In
    my view, they do.

[6]

Further, as I explain below, there was no basis to overturn the
    relocation order. A trial judges decision on relocation is fact-based and
    discretionary. Because of this, it is to be given significant deference on
    appeal:
Van de Perre v. Edwards
, 2001 SCC 60,
    [2001] 2 S.C.R. 1014, at para. 11. Trial judges are in a better position than
    appellate judges to determine a childs best interests:
Reeves v. Brand
,
    2018 ONCA 263, 8 R.F.L. (8th) 1, at para. 6. In this case, the trial judge made
    unimpeachable factual findings, correctly articulated the relevant legal
    principles governing relocation, and applied those principles to the facts as
    she found them, before concluding that relocation was in the childs best
    interests. There was no basis for the appeal judge to interfere with the trial
    judges exercise of discretion.

[7]

Accordingly, I would allow the appeal and restore the trial order, with
    the mothers requested variation of the winter access provision.

II.

BACKGROUND

[8]

The appellant (the 
mother
) was 43 years old at
    the time of trial and is from Mongolia. After graduating from a top school in
    Mongolia with a B.A. in Financial Management, she obtained an M.A. in Economics
    from Japan. In Mongolia, she worked as an economic analyst, a financial sector
    specialist, and a consultant for various international companies. She immigrated
    to Canada in January 2010. Unfortunately, despite her efforts and completing various
    programs to upgrade her skills, she has not had stable employment in Canada.
    She has been sporadically employed in low-level jobs and is currently
    unemployed.

[9]

The respondent (the 
father
) was also 43 years
    old at the time of trial. He was born and raised in Peterborough, Ontario. He has
    full-time employment. In 2018, his annual income was $114,876.

[10]

The parties became romantically involved in 2010. In 2013, they began
    living together and had a child. They separated in September 2014 when the
    child was about nine months old. The mother has been the childs primary caregiver
    since her birth.

[11]

When the child was about two years old, a temporary court order
    allowed the mother to take her to Mongolia without the fathers permission. Since
    then, the child has continued to have a relationship with her maternal
    grandparents, keeping in touch with them through Skype. She has also kept in
    touch with her cousins in Mongolia, playing with them weekly on Skype. While English
    is the childs
first language, she can understand Mongolian in the
    household environment.

[12]

A consent order made in August 2016 (the 
Consent Order
) gave
    the mother sole custody of the child and the father access, as agreed-on,
    including on alternate weekends. Although weekend access was specified, overnight
    access did not begin until January 2019.

[13]

In July 2018, the mother brought a motion to change the terms of the
    Consent Order so that she and the child could relocate to Ulaanbaatar, Mongolia
    (the 
Motion
). Ulaanbaatar is the capital of Mongolia, a cosmopolitan
    city with a population of about 1,000,000. The mothers family lives in Ulaanbaatar.
    The mother asked that the fathers access be adjusted and offered to provide
    him with extensive access at Christmas and during the school summer vacation, as
    well as at other times, both in Toronto and Mongolia. The father opposed the Motion
    and sought an order for joint custody.

[14]

The mother wanted to relocate to Mongolia with the child because they
    would have a better financial situation and increased family support, and it
    would help the mothers mental health. In Canada, she has been unable to obtain
    work at a level consistent with her education, ability, and experience. In
    Mongolia, she worked as a business consultant, economic analyst, and project
    specialist, but her most recent jobs in Canada have been as a door-to-door
    water tank salesperson, barista, interpreter, and data entry clerk. The mother expects
    to find permanent, full-time work as a mid-level professional with an
    international organization or foreign company in Mongolia.

[15]

As a result of her employment situation in Canada, the mother has
    been unable to independently support herself and the child. They subsist on
    government benefits and child support from the father. In 2018, her total
    income was $38,380. The mother and the child live in a small bachelor apartment
    in Toronto where the child does not have her own room.

[16]

The
    evidence at trial showed that the mothers family has provided her and the
    child with love, support, and financial assistance since the childs birth. The
    maternal grandmother was the only extended family member at the hospital when
    the child was born. No one from the fathers large family in Peterborough attended
    at the hospital. The mothers mother and sister helped care for the child for six
    months after her birth. After the parties separated, the maternal grandparents deposited
    $5,000 in a bank account in Mongolia for the mother and the child. They also gifted
    the child their second apartment on her third birthday for her future use. The
    mothers evidence is that she also has an apartment, held in trust for her, in
    Mongolia.

[17]

If the relocation is permitted, the mothers family will provide childcare
    and the child will enjoy a closer relationship with her maternal grandparents
    and cousins. In contrast, while the child has participated each year in a
    number of large family events with the fathers family, they have otherwise been
    largely absent from the lives of the mother and the child since the parties separation.

[18]

The mother has few friends and no family in Canada. She has been
socially
    isolated since the childs birth, despite having sought help through mental
    health counselling, community supports, and her family doctor. The mothers isolation
    has had an impact on her psychological and emotional well-being.

[19]

The
    Motion was heard over the course of a three-day trial where the parties were
    cross-examined on their affidavit evidence. The mothers evidence included a detailed
    plan of how the childs life would be improved in Mongolia (the 
Plan of
    Care
). It shows how the child will benefit from close connection with her
    extended maternal family, the ability to participate in many extra-curricular
    activities, and developing a connection to her Mongolian heritage and
    tradition. As well, her evidence is that the child will have better living
    conditions, including having her own room for the first time. The mother intends
    to sell the apartment in Ulaanbaatar that her parents gifted the child. With
    the sale proceeds, she will buy a two-bedroom apartment and therefore not have
    to pay rent. She plans to enroll the child in a private school with a rigorous
    international curriculum where the child will continue with English language
    instruction and become more fluent in Mongolian.

[20]

The
    t
rial judge found that the relocation was in the childs best
    interests, notwithstanding the change in access for the father. By order dated July
    5, 2019 (the 
Order
), she permitted the mother to relocate, with the
    child, to Mongolia; granted the father extensive access; dismissed the fathers
    claim for joint custody; required the father to pay child support in accordance
    with the
Federal

Child Support Guidelines
,
S.O.R./97-175; and, adjusted child support to reflect the
    table amount for the years 2016, 2017, and 2018, based on the fathers income
    for each of those years. The Order specified that winter access would take
    place in Canada, or another location of the fathers choice.
The
    mother was awarded trial costs of $25,000.

[21]

The father appealed to the Superior Court of Justice. In reasons for
    decision dated October 26, 2020 (the 
First Appeal Decision
), the
    appeal judge reversed the trial decision on relocation. He said the trial judge
    erred by focusing on the mothers reasons for relocation, rather than on whether
    relocation was in the childs best interests. He also said there was not a
    proper evidentiary record to show how the move was in the childs best
    interests. He further concluded that the trial judge had not given proper
    effect to the maximum contact principle.

[22]

By endorsement dated November 23, 2020, the appeal judge ordered the
    mother to pay the father costs of the trial and the first appeal fixed at $37,500
    (the 
First Appeal Costs Award
).

III.

THE TRIAL DECISION

[23]

The
    trial judge gave lengthy, thoughtful reasons for decision. On the relocation
    issue, she began by setting out the legal principles in
Gordon v. Goertz
,
    [1996] 2 S.C.R. 27, as well as additional factors courts have since considered when
    applying those principles. She explained that although the Motion was brought under
    the
CLRA
, not the
Divorce Act
, R.S.C., 1985, c. 3 (2nd Supp.),
    the legal principles in
Gordon
applied nonetheless.

[24]

The
    trial judge then canvassed the evidence relevant to the relocation request and applied
    the
Gordon
principles and additional factors to her factual findings. Throughout
    her reasons, the trial judge repeatedly stressed that the question for
    determination was whether relocation was in the childs best interests.

[25]

The
    trial judges reasons for concluding that relocation was in the childs best
    interests include the following:

-

The mothers family in Mongolia has a long and strong relationship with the
    mother and the child; the family members have made them a priority in their
    lives, which the fathers family has not. The mothers family will continue to support
    them, particularly now when the mother especially needs their help;

-

The mother is struggling in Toronto as a single mother living alone, and
    feels isolated and insecure. She would benefit from the support of her family
    and friends in Mongolia;

-

The mother and child will have a better life in Mongolia  the mothers
    employment prospects are better, she will be more financially secure, and she will
    have help from her family financially and with childcare for as long as she
    needs it;

-

The mother will regain her confidence and her emotional, psychological,
    social, and economic well-being, which will benefit the child and is, therefore,
    in the childs best interests;

-

The child will benefit from a close connection with the mothers extended
    family, being able to participate in numerous extracurricular activities, having
    better living arrangements in a more spacious apartment, and developing a
    connection to her Mongolian heritage and tradition.

[26]

The
    trial judge found that even with the relocation, the mother would facilitate
    the relationship between the child and the father, which the mother recognized
    as important. On the trial judges findings, the mother has always followed the
    court ordered access; been generous with additional access; encouraged telephone
    access between the father and the child even when they were in Mongolia; and, allowed
    the father to attend her residence for access in a period when the father had mental
    health difficulties.

[27]

The
    trial judge considered the relationship between the father and the child, and
    the disruption that would result from the relocation. She recognized that the
    father has a good relationship with the child and noted the mothers evidence
    that the child has developed a strong bond with her father and enjoys spending
    time with him. She concluded that the advantages for the mother and the child of
    moving outweighed the disadvantages of a possible reduction of the fathers
    contact with the child. She ordered extensive access for the father including ten
    weeks in the
summer, three to four weeks in the
    winter, and, in Mongolia any time during a school break, for up to two weeks,
    on one months notice.

IV.

THE FIRST APPEAL DECISION

[28]

The appeal judge acknowledged that the trial judge properly
    articulated the key principles on relocation from
Gordon
. He also accepted the trial judges findings on the mothers mental
    health, isolation, and loneliness. However, the appeal judge concluded that
the trial judge erred by focusing solely upon the
    [mothers] reasons for relocating, saying that a parents reasons for moving
    cannot be the only reason upon which to ground a relocation request.

[29]

The
    appeal judge stated that the court must respect the maximum contact principle
    to the extent that such contact is consistent with the childs best interests. He
    noted that the trial judge had found the father to be a good parent but had
    done little analysis of the negative impact the move to Mongolia would have
    on the relationship between the father and the child.

[30]

The appeal judge also said there was an inadequate evidentiary
    record for the trial judges conclusion that the proposed move was in the
    childs best interests. He described the mothers Plan of Care as speculative,
    saying it was made 
without any independent,
    corroborative evidence from any admissible source. He added that it was
    surprising that there was no evidence from any of the mothers family members,
    friends, or business colleagues in Mongolia, and that the mother had failed to provide
    evidence to substantiate the qualifications of the private school she intended
    the child would attend or its admission requirements. He also questioned the
    mothers evidence about her financial and job prospects in Mongolia and was
    critical of her failure to provide the court with more information about
    Mongolia.

V.

THE ISSUES

[31]

The mother submits that the appeal judge erred in:

1.

finding that the trial judge improperly applied the test for relocation;

2.

reweighing the trial judges assessment of the maximum contact principle;
    and,

3.

intervening because of an allegedly deficient evidentiary basis for the
    move.

[32]

If the appeal is allowed, the mother asks that the winter access provision
    be varied. On this matter, she seeks to introduce fresh evidence bearing on the
    appropriate location for the fathers winter break access. The fresh evidence
    consists of two affidavits: one from her and the other from the childs doctor.

ISSUE #1    THE TRIAL JUDGE MADE NO ERROR IN
    HER APPLICATION OF THE TEST FOR RELOCATION

[33]

At
    para. 67 of his decision, the appeal judge gave two reasons for concluding that
    the trial judge erred in her application of the test for relocation. First, he
    said that instead of determining whether relocation was in the childs best
    interests, the trial judge permitted it because the mother would have an
    improved life in Mongolia. Second, he said that the trial judge erred in
    considering the mothers reasons for moving because those reasons should have been
    considered only in an exceptional case where they were relevant to her ability
    to meet the childs needs. In my view, neither reason is correct. The trial
    judge made no error in her application of the test for relocation.

[34]

In
    terms of the first reason, it is simply incorrect to say that the trial judge
    focussed solely on the mothers reasons for relocation. The trial judges focus
    throughout was squarely on whether the relocation was in the childs best
    interests. She repeatedly stressed this: see paras. 15-16, 28-29, 32-34, 36,
    39, 121, 123, 125, 128-30, 132, 136-37, 139, and 141-46. Further, the trial
    judges weighing of the various considerations demonstrates her adherence to
    that focus. Three examples are sufficient to demonstrate this.

[35]

At
    para. 39 of her reasons, the trial judge wrote:

Requiring a parent to remain in a community isolated from his
    or her family and supports and in difficult financial circumstances will adversely
    impact a child.
The economic and financial benefits of moving to a community
    where the parent will have supports
, financial security and the ability to
    complete their education and establish a career
are properly considered

in
    assessing whether or not the move is in the childs best interests
.
    [Emphasis added.]


[36]

At
    para. 137, she wrote:

The court considered all of the following: that the mother feels
    isolated and insecure in Canada; that she would benefit from the support of her
    family and friends in the other location; that her employment prospects are
    better there; that
the child will benefit if the mother is able to become
    independent and live in a stable environment
; and that
the child will
    suffer if the mother is restricted and remains insecure.
[Emphasis added.]

It follows that an improvement in the mothers social, emotional,
    and financial circumstances are in the childs best interests.

[37]

And,
    at paras. 141-42 of her reasons, the trial judge wrote:

There is also a psychological, social and emotional component
    to [the mothers] desire to move, in order for her to regain the general stability
    and control in her life that has been absent since the relationship with the
    father ended in September 2014. There is a connection between the quality of a
    parents emotional, psychological and social and economic well-being and the
    quality of the childs primary care-giving environment.

An improvement in the mothers physical, emotional, and
    financial circumstances can only benefit the child and therefore be in the
    childs best interests.
[Emphasis added.]

[38]

The
    appeal judges second reason for concluding that the trial judge erred in her
    application of the test for relocation  namely, that the trial judge erred because
    she considered the mothers reasons for moving  disappears because of recent amendments
    to the
CLRA
governing relocation.

[39]

The
CLRA
amendments largely mirror amendments to the
Divorce Act.
Section
    16.92(1)(a) of the
Divorce Act
explicitly directs the court, when
    deciding whether to authorize a relocation, to take into consideration the reasons
    for the relocation. It reads as follows:

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

(a) the reasons for the relocation;

[40]

The
Divorce Act
amendments came into force and effect on March 1, 2021.
    The transition provision in s. 35.3 of the
Divorce Act
makes it clear
    that the new relocation provision in s. 16.92(1)(a) applies, as of that date,
    to any ongoing proceeding:

35.3
A proceeding commenced under this Act
    before the day on which this section comes into force and not finally disposed
    of before that day shall be dealt with and disposed of in accordance with this
    Act as it reads as of that day.

[41]

Section
    39.4(3) of the
CLRA
also now directs the court to take into account the
    reasons for the relocation:

39.4(3)
In determining whether to authorize
    the relocation of a child, the court shall take into account the best interests
    of the child in accordance with section 24, as well as,

(a) the reasons for the relocation;

[42]

Unlike
    the
Divorce Act
, the
CLRA
does not contain an explicit
    transition provision governing the amendments. However, in my view, the
CLRA
amendments must also apply to any ongoing proceedings when they came into
    force on March 1, 2021. Common sense dictates that the parallel amendments in
    the
Divorce Act
, governing parenting orders for children on married
    parties, and the
CLRA
, governing parenting orders for children of non-married
    parties, operate in the same fashion.

[43]

Accordingly,
    on this appeal, the reasons for relocation are a proper consideration and this
    supposed error on the part of the trial judge falls away.

[44]

For
    these reasons, in my view, the mother succeeds on this ground of appeal.

ISSUE #2    THE TRIAL JUDGE MADE NO ERROR IN
    RESPECT OF THE MAXIMUM CONTACT PRINCIPLE

[45]

The
    appeal judge found fault with the trial judges application of the maximum
    contact principle, saying that the trial judge did little analysis of how the
    move would negatively impact the relationship between the father and the child.
    I do not agree for two reasons.

[46]

First,
    on the law as it stood when the Motion was decided, the trial judge made no
    error. She was fully alive to the maximum contact principle and its importance when
    assessing whether the relocation was in the childs best interests. Her
    relocation decision was an exercise of discretion that involved the weighing of
    competing considerations, including those arising from the maximum contact
    principle. That decision was entitled to deference. Rather than the trial judge
    having erred, it was the appeal judge who fell into error by reweighing the
    competing considerations based on his view of the weight to be afforded to the
    maximum contact principle.

[47]

At
    paras. 84-91 of her reasons, the trial judge addressed the maximum contact
    principle under the heading The Desirability of Maximizing Contact between the
    Child and Both Parents. She referred to the mothers detailed plan for regular
    contact between the father and the child, including a plan for extensive access
    and encouraging the child to have regular video chats as often as possible with
    the father. At para. 91, the trial judge explicitly found that the mother has
    always been supportive of the fathers relationship with the child. Other of
    her findings show how the mother has fostered and preserved that relationship. However,
    the trial judge found at para. 145 of her reasons, the importance of the
    fathers contact with the child could not override the positive effects of the
    move for the child: The advantages for the mother and the child in moving
    outweigh the disadvantage of the possible reduction of contact with the father.

[48]

The
    appeal judge interfered with the trial judges relocation decision because, in
    his view, she had given insufficient weight to the maximum contact principle. In
    so doing, the appeal judge erred in law. An appeal court is not to reweigh the
    relevant considerations. Interference with the trial judges exercise of
    discretion would have been justified only if the appeal judge was satisfied
    that it was unreasonable:
Reeves
, at para. 23. The appeal judge did
    not suggest that the trial judges relocation decision was unreasonable nor, on
    the record, could he have.

[49]

Second,
    the maximum contact principle has been replaced by s. 24(6) of the
CLRA,
another
    new provision.
[3]
As I have explained, because this appeal was heard after March 1, 2021, s.
    24(6) applies.

[50]

Section
    24(6) highlights the importance of a child having time with each parent while explicitly
    providing that the allocation of parenting time must be consistent with the
    childs best interests. It provides that:

In allocating parenting time, the court shall give effect to
    the principle that a child should have as much time with each parent as is
    consistent with the best interests of the child.

[51]

The
    trial judges reasons demonstrate that she was alive to the importance of the
    child having time with each parent so long as the allocation of parenting time was
    consistent with the childs best interests. Accordingly, in my view, the trial
    judges relocation decision and access order are fully consonant with s. 24(6).

[52]

For
    these reasons, in my view, this ground of appeal also succeeds.

ISSUE #3    THE TRIAL EVIDENCE WAS SUFFICIENT

[53]

The
    appeal judge said there was an absence of a proper evidentiary record to
    support the trial judges finding that the proposed move to Mongolia was in the
    childs best interests. In my view, he erred. The mothers evidence was led
    through her affidavits and that evidence was tested before the trial judge through
    cross-examination. The trial judge was best positioned to assess the sufficiency
    of the evidence. Further, she was entitled to accept the mothers evidence, as
    she did.

[54]

In
    her affidavit evidence, the mother gave detailed information about the proposed
    move and how it would affect the child. For example, at para. 50 of her affidavit
    dated April 4, 2019, the mother deposed:

With the move to Mongolia, [the childs] standard of living
    will improve because of my property ownership in Mongolia, she will reside in a
    middle class type of accommodation where for the first time she will have her
    own room and bed. The income that I expect to earn from my consulting job,
    support from [the father] and my parents help will cover [the childs] private
    school tuition, a cost that I could otherwise have not afforded here in Canada.
    I will also be able to enrol her in many extra-curricular activities as
    detailed in [the childs] Plan of Care in Mongolia. I expect [the child] and I
    to have a similar lifestyle as that of my sisters with her two children
    including going away on vacations

[55]

And,
    in the mothers Plan of Care, she addressed her plans for the childs education,
    schooling, healthcare, and extra-curricular activities; the role the maternal
    family would play with respect to the child and as support for the mother; managing
    the childs language and emotional transitions; how the father could stay
    connected with the child while she is in Mongolia; and, how the child would
    become more fluent in Mongolian and learn about her Mongolian heritage, while maintaining
    her English.

[56]

The
    mothers evidence also included information about her career opportunities, her
    connections and professional networks in Mongolia, and sample job postings from
    Mongolia, complete with expected or potential salaries.

[57]

The
    appeal judge questioned the absence of witness testimony from the mothers family
    in Mongolia. The language, financial, and technical barriers to having
    witnesses from Mongolia testify, coupled with the mothers limited financial
    means, go a long way to explaining why direct witness evidence from Mongolia
    was not before the trial court. In any event, however, there was no question about
    the veracity of the information that the mother provided about her education
    and work experience in Mongolia. The evidence concerning the emotional,
    financial, and physical help that the mothers family had already given her and
    the child was unchallenged. Nor was there any dispute about the mothers
    commitment to the fathers relationship with the child and the many ways she
    had fostered it. I will not repeat the evidence on these matters, details of
    which can be found above. The point is that this uncontested evidence provided the
    context within which the trial judge considered the mothers evidence and came
    to the determination that relocation was in the childs best interests. There
    is no basis on which to question the trial judges acceptance of that evidence,
    much less to interfere with her decision to permit relocation.

[58]

To
    say there was an inadequate evidentiary record on which the trial judge based
    her decision fails to recognize that the mothers affidavits and her oral
    evidence at the trial was evidence that the trial judge was entitled to accept.
    That evidence contained detailed information on all aspects of the move and how
    it would affect the child.

[59]

The
    trial judge saw and heard the parties. As
Van de Perre
makes clear, she
    was in the best position to decide whether relocation was in the childs best
    interests. She concluded that it was and exercised her discretion accordingly.
    There was no basis for interference by the first appeal court.

[60]

In
    my view, the mother succeeds on this ground of appeal as well.

VI.

THE FRESH EVIDENCE APPLICATION

[61]

The
    trial judge ordered both summer and winter access to be in Canada or another
    location of the fathers choice. However, at trial, the mother and father had agreed
    that if the move were allowed, winter access should take place in Mongolia
    until the child is 12 years old.

[62]

The
    mother seeks to introduce fresh evidence to show the difficulties for the child
    if winter access were to take place in Canada. That evidence shows, among other
    things, that the child would have to fly for over 25 hours across 12 time zones
    in a 3-week period at an extraordinary financial cost to the parties. The fresh
    evidence also includes an unchallenged letter from the childs doctor that such
    a trip would likely lead to health issues for the child, interruptions in her schooling,
    and behavioural issues arising from sleep loss and fatigue.

[63]

I
    would admit the fresh evidence and make the requested change to winter access. I
    commend the parties for placing the childs best interests ahead of their own
    as demonstrated by their continuing agreement that winter access should take place
    in Mongolia until the child is 12 years old and thereafter rotate, with one
    winter access period taking place in Toronto and the following one in Mongolia.

VII.

DISPOSITION

[64]

For
    these reasons, I would:

a.

allow the appeal;

b.

set aside the First Appeal Decision and the First Appeal Costs Award;

c.

restore the trial judges Order, with the exception that I would vary
    para. 3(b) so that access during the childs winter school break shall take
    place in Mongolia up to and including 2026 and, thereafter, shall alternate
    between Canada and Mongolia, with the visit in 2027 taking place in Canada;

d.

restore the Trial Costs Award; and,

e.

substitute a costs award of $12,500 all inclusive, in favour of the
    mother, in place of the First Appeal Costs Award.

[65]

Because
    the parties each said at the oral hearing of this appeal they would not seek
    costs of this appeal, I would make no order as to costs of this appeal or the
    motion heard by Sossin J.A. on January 19, 2021.

Released: August 5, 2021 E.E.G.

E.E. Gillese J.A.

I agree. M. Tulloch J.A.

I agree. L.B. Roberts J.A.





[1]

The mother requested the use of initials only in the title of
    proceedings. Absent legislative or court-ordered prohibition on identification,
    this courts general practice in private family law disputes is to retain the
    parties names in the title of proceedings while otherwise protecting the
    childs privacy to the fullest possible extent.



[2]

Pursuant to amendments to the
CLRA
, which came into
    effect on March 1, 2021, the terms parental custody and access have been
    replaced by the terms decision-making responsibility and parenting time.
    Sections 76(2) and (3) of the
CLRA

provide that references to custody and access in orders
    prior to March 1, 2021, shall be read as references to decision-making
    responsibility and to parenting time respectively. However, to avoid
    confusion, in these reasons I use the original language in the existing orders.



[3]
The
Divorce Act
now also contains a
    similar provision in s. 16(6): 
In
    allocating parenting time, the court shall give effect to the principle that a
    child should have as much time with each spouse as is consistent with the best
    interests of the child.


