Sader v. Kekki, 2013 ONCJ 605

Court File and Parties

Court File No.: Toronto DFO 11 11091 00 A3

Date: 2013-11-12

Ontario Court of Justice

Between:

Andrew Mark Sader Applicant

— And —

Natalie Lotti Kekki Respondent

Before: Justice Ellen B. Murray

Heard on: September 5 & 6, 2013 and October 1, 2, 3 and 7, 2013

Reasons for Judgment released on: November 12, 2013

Counsel:

Mr. Andrew Mark Sader — on his own behalf

Ms. Melanie Sager — for the respondent

Reasons for Judgment

MURRAY, E. B. J.:

[1] Introduction

Andrew Sader and Natalie Kekki are the parents of one child, Annalie, born April 6, 2010. The parties were in a relationship from March 2009 to April 14, 2011, but maintained separate homes during their relationship. Annalie has always lived primarily with Natalie; since separation she has regularly spent time with Andrew, increasing from day-only to overnight periods.

Since their relationship ended, Andrew and Natalie have been in conflict about the appropriate decision-making model and the appropriate residential schedule for Annalie. This case is about the determination of their dispute, and of what child support should be paid.

The parties have very different visions.

Andrew asks for an order of joint custody in the parallel parenting model. Under Andrew's plan, he would have final decision-making authority about medical/dental care, and Natalie would have final decision-making authority about education. Andrew asks for a schedule which provides that Annalie would spend three out of every four weekends with him, with transportation responsibilities to be shared equally by the parents. Each parent would have a "right of first refusal" that would apply if the residential parent planned to be away from Annalie more than 24 hours.

Natalie asks for an order of custody to her, with access to Andrew on alternate weekends (Friday at 6 p.m. to Sunday at 6 p.m.) and one day each week, from after school or daycare to early evening. Under Natalie's plan, she would transport Annalie to a mid-way point between their homes for weekend and mid-week visits, where Andrew could pick the child up, but Andrew would be responsible for returning Annalie home to Natalie. Natalie agrees with Andrew's proposal that each of them have a "right of first refusal", assuming that there is agreement on transportation for Annalie during these periods.

The parties agree that Andrew has been making child support payments since Annalie's birth, and that he will continue to do so. Natalie says that the table amount of support paid needs to be updated, and asks that Andrew contribute to the cost of the child's daycare in proportion to their incomes; Andrew says that he should contribute to 50% of the cost of daycare, which would be less than proportionate to the parties' incomes.

1. History of Case

Andrew commenced this case on June 1, 2011. There have been two temporary orders made, both on consent.

The first order was made on August 31, 2011 at the first case conference. That order provided that Annalie would be in Natalie's primary care, and would spend time with Andrew each Sunday from 8:30 a.m. to 6 p.m., and on Wednesdays from 4-5:15 p.m., a time which coincided with a medical appointment for Natalie which took place downtown, near Andrew's workplace. It was acknowledged that if this appointment changed, that the parties would cooperate to reschedule time for the child to spend with Andrew. The order further provided that the parties would attempt to schedule a second mid-week visit with Andrew, taking into account the child's needs and the parties' work schedules. It was further provided that each party was entitled to receive information about Annalie directly from service providers, and that each party could attend Annalie's doctor appointments, which "should be scheduled on days both parties are able to attend".

The second order was made on consent in June 20, 2013, a date on which a motion brought by Natalie was to be heard. That order permitted Natalie to travel outside Canada with Annalie for three weeks, and set a summer residential schedule.

By the time this trial commenced in September 2013, Annalie was spending alternate weekends -- from Friday after work to Sunday at 6 p.m. -- with Andrew. This schedule was arranged by the parties, and not reflected in a court order. No mid-week visit was taking place; the parties could not agree on a time which was workable for each of them.

At trial, Andrew represented himself, and Natalie was represented by counsel. I heard evidence from each of the parties. Andrew also introduced viva voce evidence from his former wife, Manjula Sharma, who is the mother of his 8-year old son Owen, and evidence in affidavit form from his brother, Wassim Sader, and from two friends, Ali Lienaux and Andrew Mahar. Natalie introduced viva voce evidence from her principal, Lou Paonessa, and from Jackie MacDonald-Bartkiw, the director of the daycare centre which Annalie attends.

I found both Andrew and Natalie to be truthful witnesses.

2. The Evidence

There is little disagreement about most of the relevant facts in this case. The disagreement arises from the inferences which should be drawn from those facts.

Andrew maintains that Natalie has from the beginning acted in such a way as to minimize his role in Annalie's life and the child's time with him. Andrew says that he cannot trust Natalie, that he is the victim of "a severe power imbalance", and that the time since the breakdown of their relationship has been "the worst 2 ½ years of my life".

Natalie says that she values Andrew as Annalie's father, and has done all that is reasonably possible to facilitate the child's relationship with Andrew, and to arrange for Annalie to spend regular meaningful time with him. Natalie maintains that their relationship, even prior to separation, was characterized by conflict. She says that she and Andrew have very different styles of communication, and that if she says "red" that he will automatically say "blue", and will defend his position aggressively. Natalie's view is that any order for joint custody, including an order for parallel parenting, will create only more conflict.

2.1 Background Facts

Andrew is 46 years of age; he works as a lawyer in the field of family law for the provincial government. Natalie is 41 years of age; she works as a secondary school teacher for the York Catholic District School Board. Andrew lives in a rented house in the west end of Toronto, near St. Clair and Jane, and works in downtown Toronto. Natalie lives in a rented house in Markham, Ontario, and works at Father McGivney secondary school in Markham. During the parties' relationship, Natalie lived in a 1 bedroom condominium apartment which she owned in east end Toronto (Bayview and Eglinton). She sold the condominium and moved to Markham in June 2013.

When the case began, Andrew alleged that Natalie suffered from a serious mental illness, a bi-polar disorder, which accounted for what he described as difficult and self-centered behaviour. He said that this illness was at the root of what he saw as her failure to support his relationship with Annalie.

Evidence established that 8 years ago Natalie suffered a serious depressive episode, which had led her to withdraw from full-time employment for a year. Natalie took treatment, returned to work, and has maintained a supportive relationship with a psychiatrist since that time. She takes medication for depression and finds the support of the psychiatrist helpful.

In cross-examination, Andrew testified that he has periodically met with a psychiatrist for support over the years, during times that are particularly stressful for him, and has sometimes been prescribed medication to assist him. He has been receiving support and prescribed medication from a psychiatrist during this litigation. Andrew does not characterize himself as suffering from a mental illness.

I do not find that either parent is suffering from a mental or emotional illness which impairs his or her ability to facilitate a healthy relationship between the child and the other parent.

2.2 Annalie

Andrew and Natalie agree that Annalie is a happy, bright child who is meeting her developmental milestones. She is healthy, except for breathing difficulties which may presage the onset of asthma, and which have led to several emergency visits to hospitals or clinics. Annalie is described by each of her parents and by the director of her daycare centre as being cheerful and affectionate.

Annalie's parents also agree that each of them is generally a good parent. Andrew acknowledges that Natalie is a "wonderful mother"… except for one serious flaw, what he sees as her failure to support the child's relationship with him.

Natalie acknowledges that Andrew provides good care for Annalie when she is with him. Having said that, Natalie is critical of what she described as Andrew's failure to always put Annalie's interests first—e.g., by not attending Annalie's baptism ceremony because he was angry with her, or by failing to arrange his schedule to attend a mid-week visit with the child over the last year.

Andrew and Natalie agree that Annalie is well-bonded to each of them. In particular, they agree that Annalie has a loving relationship with Andrew, and looks forward to seeing him. Manjula, who has occasionally seen Annalie with Andrew, testified that she had "not seen anything concerning" in Annalie's transition to overnight visits, and that the child has a "lovely" relationship with Andrew.

The parties also agree that Annalie has an important relationship with Owen. Andrew has scheduled his weekends with Owen to coincide with his weekends with Annalie. Andrew often takes Annalie with him to attend Owen's sports events. Natalie testified that she created a photo collage which included a picture of Andrew and Owen for Annalie to bring to daycare, and that Andrew and Owen are included in the child's nightly prayers.

2.3 Andrew's Co-parenting of Owen with Manjula

Annalie is Natalie's only child. As set out above, Andrew has another child, Owen, 8 years old, whose mother is Manjula Sharma.

Manjula is a social worker who is employed by the same provincial government office as Andrew. She conducts investigations and prepares reports with recommendations for courts with respect to the parenting arrangements for children whose parents are in litigation.

Andrew and Manjula cooperate in parenting Owen. They live close to each other, and Owen changes homes every weekday, alternating weekends between his parents. Owen's schedule—which has persisted for over 4 years—involves him being with Andrew overnight on Monday, Wednesday, and Fridays, from after Andrew's work hours (about 5:45 p.m.) to the following morning. Andrew and Manjula agree that Owen is an active child with a very busy schedule of sports and extra-curricular activities which he participates in during the week and on weekends. Manjula testified that she and Andrew have "seamlessly shared parenting tasks". They periodically spend "family time" together with Owen.

Andrew and Manjula did not always have such a cooperative parenting arrangement. When they separated and could not agree on the arrangements for Owen, who was then 3 years old, Manjula commenced litigation. She requested an order providing that Owen live primarily with her. In her application, she said:

• Andrew's "angry outbursts made the relationship intolerable for me and led to our separation….these angry outburst have often occurred in front of Owen."

• "Since the separation, our relationship has gotten worse. I am 'walking on eggshells' in the matrimonial home. I worry constantly about Andrew getting angry and shouting at me, especially in front of Owen. I try to placate Andrew to minimize the conflict, but it still occurs."

• Provided Andrew and I can develop a working relationship and provided that Andrew deals with his anger issues, I would be prepared to agree to joint custody".

Manjula and Andrew agreed to divert their case to a private mediator/arbitrator. The mediation was unsuccessful, and the arbitrator made an award that imposed a parallel parenting arrangement, with Andrew having authority in the area of medical issues and Manjula having authority in the area of education, and a schedule which placed Owen with Manjula about 60% of the time.

Andrew and Manjula agree that within six months of the arbitral award, they began speaking more civilly to each other and acting cooperatively. They started their present schedule because Owen said that he wanted equal time with each parent, and wanted frequent transfers of care to allow him to see each parent almost every day. In order to accommodate this change in schedule, Manjula changed her work hours so that she was home by approximately 3 p.m. every day, to receive Owen back from school; Andrew then picked Owen up from her on Monday, Wednesday and Friday. That is the schedule that they have maintained to this day.

Andrew and Manjula agree that neither of them has ever exercised the authority given to make decisions on their own in separate spheres; all important issues are decided together.

When asked to explain the transition from acrimony to harmony in their relationship as separated parents, Manjula said that they were both under pressure at separation, and that when a decision was made and the litigation process ended, they gradually became more cooperative. She said that she now recognizes that she was probably over-protective of Owen at separation, and not sufficiently sensitive to Andrew's need to be recognized as an active parent. Andrew agreed with that analysis, but added that he believed that Manjula had initially created conflict and misrepresented the causes of that conflict in an effort to get her own way in litigation—behaviour which he believes Natalie now displays.

2.4 Beginning of the Relationship

Natalie and Andrew met online in March 2009, and quickly became involved in an intense romantic relationship. From the beginning they argued frequently about small issues (what movie to see), and issues of some importance (whether Andrew would invite Natalie to accompany him and Owen on a visit to his parents in Montreal). Although Andrew was "very much in love" with Natalie and sometimes said that he wanted to spend the rest of his life with her, he was uncertain about the relationship. He hesitated to have Owen spend too much time with her, in case the relationship broke up. Each party testified that, because of the difference in their personalities and the conflict between them that the relationship would likely have dissolved early if Natalie had not become pregnant in July of 2009.

The pregnancy was unplanned. There was discussion about whether Natalie should terminate the pregnancy. Andrew made it clear that if she decided to have the baby, that he could not live with her, given his responsibilities with Owen, but that he would try to be supportive.

Annalie was born on April 6, 2010. Andrew alleges that the issue of the baby's name sparked an intense fight, as Natalie did not want the name to include his surname, and he did. Natalie agrees that they discussed the issue, but does not recall that the discussion was bitter. She says that she always wanted the baby's name to include Andrew's surname, and that the only debate was whether the surname would be hyphenated. In any event, Natalie and Andrew agreed that the baby would bear both their surnames, and she was registered as "Annalie Sader Kekki".

After Annalie's birth, Natalie was on maternity leave for one year. During that time, Andrew regularly came to her home on Tuesdays and Thursdays after work and stayed overnight. He was also there on many Sundays during the day, and on alternating Saturday overnights. When Andrew was there, he assisted with Annalie's care, helping to diaper and bathe the child. Occasionally, he cared for Annalie alone—when Natalie had to attend a doctor's appointment for herself, for example.

Natalie secured a paediatrician for Annalie, and invited Andrew to come with her on doctor's visits. Andrew did come once or twice, but he usually was not able to attend.

When Natalie prepared to return to work in March of 2011, she researched daycare options. She favoured the Village Children's program an award-winning daycare centre located in the same building as Father McGiveny, the school in which she teaches. She invited Andrew to visit the centre. Andrew did not visit, but approved of her choice.

2.5 The Break-up / Andrew Begins Litigation

On April 14, 2011, Andrew and Natalie had an argument which led to the termination of their relationship as romantic partners. According to Natalie, the argument began in a phone conversation late in the day; Andrew had committed to leave work early and care for Annalie so that Natalie could attend parent/teacher interviews in her school. Andrew complained that she was unreasonable to expect him to do this, and Natalie hung up on him. Andrew sped to her condo, and the argument continued; he was angry that she had hung up on him. Natalie testified that she was shaken—she had never seen Andrew so angry and "out of control".

Natalie was holding Annalie during the argument. Andrew says that Natalie "charged him" and brushed his arm; he warned her "that's an assault"; Natalie is adamant that she did not touch Andrew, but remembers him yelling that he would have her charged with assault. Natalie ordered Andrew to leave, and he did. The relationship was over.

Within a few days, Andrew sent an email to Natalie with proposals for a residential schedule for Annalie, suggesting attendance with a mediator or a parenting coordinator, and requesting income documentation from her, so that the appropriate contribution from him for Annalie's daycare could be calculated. Andrew asked to see Annalie on Tuesdays and Thursdays for "a reasonable amount of time", depending on each party's work schedule and Annalie's bed and naptime, and on Saturdays and Sundays for a few hours each day.

When Andrew did not receive an immediate reply, he emailed Natalie the next day. Natalie made suggestions for visits, and they started within a few days. There was difficulty arranging times and places convenient for both parties. Within a month, Andrew was seeing Annalie two and sometimes three times a week-- after work for 45 minutes on Tuesdays and/or Thursdays (reflecting the time available from when Andrew could reach Natalie's home after work to Annalie's bedtime), and on a weekend day for three hours. Visits took place at a community centre or at Natalie's parents' home (which was vacant, as they were in Florida).

Natalie wanted to be nearby, but out of sight, during the visits. She was still breast-feeding Annalie, had difficulty expressing milk, and thought that proximity during a visit would allow her to feed Annalie when needed. Andrew was unhappy with this visiting arrangement, which he characterized as "supervised access". Although dissatisfied, he accepted the arrangement in order to see the child, and he did bring the baby to Natalie during visits to be fed.

Andrew commenced his action on June 1, 2010. Natalie soon stopped insisting that she be nearby during visits.

The next two years entailed a cycle in which Andrew made proposals for longer visits, more frequent visits, overnight visits (involving one overnight, then two overnights), and Natalie's cautious replies. Before I deal with the particulars of these disputes, I will set out some facts with respect to each party's schedules and work/family commitments.

2.6 Logistical Facts

Much of the conflict between the parties over the past three years relates to the issue of mid-week visits, and the constraints that Toronto traffic places on parents who live far apart and who have busy professional lives.

Some facts relevant to scheduling:

• Andrew lives at St. Clair/Jane, west end Toronto
• Andrew works in downtown Toronto, at University and Dundas
• Natalie formerly lived at Bayview/Eglinton, east end Toronto
• Natalie now lives at 30 Cornell Meadows in Markham, slightly above the 407 near Markham Rd. (1st main road east of 404)
• Natalie works at Fr. McGiveny secondary school, Markham, below the 407 and slightly east of the 404
• Annalie's daycare centre is in the same location as Fr. McGiveney
• Natalie's parents' home – where the parties have periodically met for transfers of Annalie – is in North York, near Avenue Road/Wilson
• Natalie says that to allow Annalie her usual bedtime routine, it is best that she be home by about 6:30 p.m., and Andrew does not disagree. Annalie's bedtime has recently been extended to 8 p.m.; for much of the time since the parties' breakup it was 7-7:30 p.m.
• Andrew's schedule with respect to Owen provides that the child is with him overnights from about 5:45 p.m. on Monday, Wednesday and Friday; Andrew gets Owen to school on Tuesday and Thursday mornings. As well, Owen spends alternate weekends with Andrew.

I heard much evidence about various travel times for each party. These times were generally longer if travel at "rush hour" was involved, and varied a bit given the direction of travel.

2.6.1 Andrew's Schedule

Even before Annalie was born, Andrew had a very busy life. Soon after her birth, when Natalie complained that he was not around when she needed assistance, Andrew emailed a reply: "As you know, I do not have a lot of free time between caring for Owen and my work, and have tried to spend almost all of such time with you and Annalie".

Andrew testified that his "official" work hours are 9 a.m.-5 p.m., Monday to Friday. His travel time to Natalie's former residence after work from downtown Toronto usually required 45-60 minutes. His travel time to her parents' home in North York is a little less.

For over a year after his break-up with Natalie, Andrew was able to leave work early—at about 3:45 p.m.—to accommodate a mid-week visit which took place on Thursday (and occasionally on other days). Until the fall of 2012, Andrew took the position that any mid-week visits had to be scheduled on a Tuesday or Thursday, given his schedule with Owen. In the fall of 2012, when difficulties for Thursday visits arose with Natalie's schedule, Andrew said that he would attempt to change Owen's schedule to accommodate a visit with Annalie on, for example, Wednesday, if he could be assured that the Wednesday would be maintained.

Andrew's position at trial was that he should no longer be expected to curtail his work hours to accommodate time with Annalie. It was not clear whether his employer had told him he could no longer leave work before 5, or whether Andrew simply felt that it was unreasonable to expect him to do so. In any event, Andrew made it clear that any mid-week visits must respect his 9-5 schedule.

Andrew has only travelled during the week to Annalie's daycare or Natalie's new residence once, perhaps twice. His evidence is that at the end of a workday, coming from downtown, the trip can take 1 ½ to over 2 hours.

Natalie's lawyer questioned Andrew's estimate of travel time. She introduced a Google map calculation indicating that travel time from Andrew's home to Natalie's home in Markham is 38 minutes, only 13 more minutes than the Google map calculation of the trip time from his home to Natalie's former residence. By inference, the shorter trip (from Andrew's workplace to Annalie's daycare) would take even less time. There was no evidence as to day and time of day on which the Google map calculations are based, but anyone who drives in Toronto would say that the calculations are not representative of travel times from downtown Toronto at 5 p.m. on a weekday. They may be a better indication of weekend day travel times.

2.6.2 Natalie's Schedule

Natalie teaches French. She is also the department head in this subject, which imposes additional out-of-class responsibilities on her pursuant to the Education Act. She is also the head of the prestigious International Baccalaureate French program at her school. The school application for the IB program was made in 2008, but the 2011-2012 school year was its first year of operation at the school. The additional responsibilities imposed by the IB program are extensive and onerous. For example, Natalie is required to assess each of her 37 IB students in individual oral exams, which must be conducted in the lab at school but normally take place after school hours.

Andrew alleges that Natalie's work schedule allows her more flexibility than she admits, and that she manipulated the schedule to block his desired schedule for mid-week visits and to eliminate the Thursday afternoon visit in September 2012. His evidence and position on this point was as follows:

• Prior to the breakup, Natalie always returned home from work early, between 4-4:30 p.m., except on Tuesdays. Prior to trial, Andrew insisted that Natalie provide evidence from her principal that she was expected to work on Thursdays, after students were let out at 2:30 p.m. She provided two letters from her principal confirming this, but Andrew was still suspicious.

• A teacher's "official" work hours are classroom hours, which at Fr. McGiveney are 8:15 a.m. to 2:30 p.m.

• If Natalie has additional work, it can be completed in the evenings and on weekends.

• If Natalie has additional work commitments that require her to be on school premises, she should think about giving up those commitments.

In response to Andrew's allegations, Natalie led detailed evidence about her work schedule. Natalie and her principal, Mr. Paonessa, gave evidence on the subject of Natalie's work commitments and the schedule entailed. I also received in evidence the written school schedule of all activities for 2012-2013 and for the current year (additional items are added from week to week), and a schedule showing when Annalie was picked up from daycare after work by Natalie during this period.

Natalie testified that during the first school year after the breakup, she was able to obtain permission from her former principal to miss or reschedule some of the late afternoon/early evening work commitments which she had on Thursdays. This allowed her to leave work by 3:30-3:45 p.m., in order that Andrew could pick Annalie up from her home for a visit from 4:30-6:30 p.m. in the community.

By the fall of 2012 when the next school year started, Natalie no longer had this flexibility. This was confirmed by her current principal, Mr. Paonessa. Natalie had after-school duties most Tuesdays and Thursdays that prevented her from leaving school as early as she had the previous year. That constraint continues.

Natalie denied Andrew's charge that prior to the breakup, she was routinely home by 4 or 4:30 p.m.; she says that she was sometimes home that early, but had many commitments that often kept her at school till 5:30, 6 p.m. or later. I prefer Natalie's evidence on this point. Daycare records for the month and a half before the breakup of the time that Annalie was picked up indicate that although there were times that Natalie could have arrived home as early as 4 p.m. (as Andrew testified) that on most days the child was not removed from daycare until 4 or 4:30 and that there were some days she was not removed until 5 or even 6 p.m.

In any event, I note that Natalie began working in the first full year of the IB program in the fall after she returned to work. This commitment was made several years before Annalie's birth, when the school was working to be admitted to the program. The IB program added significantly to Natalie's work, and interfered with her leaving school early.

Based on the evidence, I make the following findings:

• Natalie is expected by her employer, and, in certain respects, required by the Education Act, to do significant work other than in-class teaching. That work involves meetings and activities scheduled after classroom hours most Tuesdays and Thursdays, and occasionally on other days.

• If Natalie withdrew from the additional work that is expected (versus the minimum legally required) of her, it would seriously damage the school's French program and its status in the IB program. It could also negatively affect her own work status. As Mr. Paonessa testified, if the French program, which is elective, suffers a decrease in enrollment, Natalie could be required to teach other subjects, transferred to another school, or even be surplussed.

• A significant part of this additional work—e.g., meetings with other teachers, parents, and students, certain exams—cannot be done at home and requires her presence at school.

• Natalie does not set the schedule for school activities and programs (including after-school hour activities and meetings). The vice-principal sets the schedule, except for the IB activities, which are set by the IB coordinator.

2.7 Scheduling Changes and Conflicts

As set out above, Andrew and Natalie at their first case conference consented to an order for Annalie to spend time with Andrew each Sunday from 8:30 a.m. to 6 p.m., and on Wednesdays from 4-5:15 p.m., when Natalie was required to be downtown for a medical appointment.

Over the next several months Andrew agreed to several minor changes requested by Natalie. For example, the Sunday pickup was changed to 10 a.m., so that she could take Annalie to church.

In the fall of 2011 when Natalie's doctor eliminated her mid-week appointment, the parties agreed to Natalie's proposal for a mid-week visit on Thursdays between 4:30-6:30 p.m., with the weekend visit alternating between Saturday and Sunday.

The parties were unable to find a workable time for a possible third weekly visit mentioned in the August 2011 order. Andrew blamed Natalie for this.

The schedule for Christmas 2011 was a point of disagreement. Natalie's first proposal was that Annalie be with Andrew on December 24th, and that she would then take the child to Florida for a visit with her family for the balance of the holiday. At a case conference. It was agreed that Annalie with have four days with Andrew, and that Natalie would also have 10 days for the family vacation.

By the summer of 2012, Andrew was anxious to have overnight visits start. Natalie's position was that overnight visits should begin, but she was not ready to specify a start date. Natalie researched (by consulting professionals and reading articles) how to transition the child from breast feeding, and how to start and gradually progress with an overnight schedule of visits that would meet Annalie's interests. Andrew, fed up with what he perceived as Natalie's obstructionist attitude, said that he would not agree to any disruption of the "regular" schedule to allow Natalie to travel with Annalie during the summer as she wanted, to see her sister in Florida or spend extended time at her family's cottage in the Kawarthas.

At a conference at the end of August, 2012, it was agreed that overnights would start. Initially, the schedule provided that the overnights alternate, so that on one weekend Annalie was with Andrew from Friday at 5:30 p.m. to Saturday at 4 p.m., and on the following weekend, she was with him during the day on Sunday, from 10:30 a.m to 6 p.m.

Subsequently, the parties agreed that Annalie would be with Andrew on "full' alternate weekends, from Friday after work until Sunday at 6 p.m. After Natalie moved to Markham, Andrew advised that he could not pick the child up on Fridays, and that the weekend visits would have to start on Saturday mornings. Natalie offered to drive Annalie to her parents' home in Toronto on Fridays to allow a longer weekend visit, and Andrew now picks the child up from there at 5:30 p.m. on Fridays.

Natalie's lawyer also advised in August 2012 that 4:30-6:30 Thursday visits would no longer be possible due to Natalie's changed work schedule. She proposed some alternatives— either Tuesday or Thursday, with pick-up from daycare as early as 3 p.m. and return to Natalie's home at 5:30 or 6 p.m., or on Wednesday from 4- 6 p.m., with pickups and drop-offs at Natalie's home.

Andrew's responses to Natalie's suggestions are summarized above, in the discussion of Natalie's schedule. He believed that Natalie simply wanted to eliminate a mid-week visit. With respect to his offer to explore a change in Owen's schedule to make a Wednesday visit possible if he could be assured that Wednesday would not change, Natalie's lawyer replied that she could not give this commitment, as she did not control her schedule.

Andrew suggested that the problem of scheduling of a mid-week visit could be solved if Natalie changed Annalie's daycare facility to one in Toronto. Natalie rejected this proposal. Annalie had been in her daycare, an award-winning facility, for over a year; she did not believe it was in the child's interest to change. Furthermore, a change would mean that Annalie would not be in the same location as Natalie during the day; their proximity had enabled Natalie to attend to the child on occasions when she was sick or tired. Their proximity meant that Natalie need have no anxiety that she might miss the 6 p.m. pickup time that daycares have because of traffic.

Thus, the mid-week visit stopped in September, 2012, and has not occurred since.

2.8 Natalie's Move to Markham

In November 2012, Natalie advised Andrew through her solicitor that she was planning a move from her home in Toronto to eastern Scarborough, or Markham, or Pickering. Andrew objected to the move, but did not attempt to bring a motion until the matter was set down for trial months later. At that point, he asked leave to bring a motion to have an assessment, and for an order "preserving the status quo until trial". The case management judge did not permit him to bring the motion.

In June 2013 Natalie moved to Markham, to a rented home near her place of work and Annalie's daycare.

Natalie in her evidence gave three reasons for the move:

1. She was in a one-bedroom unit, and needed more space in an affordable neighbourhood.

2. She needed the money which would be received from the sale of her condo to pay her legal fees in this case.

3. She was finding that the daily commute from Toronto to Markham—at least 30 minutes, sometimes as long as 60 minutes, twice a day—was very hard on Annalie, and wanted to reduce this time.

Natalie finds that the reduction of time required for the daily commute is beneficial for her and for Annalie.

Before the move, Natalie would awake at 5:30 a.m., and wake Annalie at about 6:15 a.m. They would leave her condo to go to Markham at 7:30 a.m. It was hard to keep the child calm and happy on the trip to daycare, and in the evening, coming home.

In the evening, Natalie and Annalie would arrive home between 5:30- 6p.m. After dinner and a bath, Annalie would be in bed by 7 p.m., and after stories and other bedtime rituals, would ly fall asleep by 7:30 p.m. Natalie usually tried to put in two hours of work each night. At times, she was so tired that she would go to sleep when Annalie did, and set the alarm to awake at 11 p.m. to work.

After the move to Markham, the commute which Natalie and Annalie have has shrunk to 10-15 minutes. Natalie is able to stay at school a bit later, to complete more work, and usually picks Annalie up from daycare at close to 6 p.m. Annalie is also a bit older, and her bedtime is now at 8 p.m. Natalie does not have to spend as much time working in the evening, and the commute is much easier on her and the child. Annalie has her own bedroom, and can play in a fenced-in yard.

From Andrew's perspective, the move was yet another indication that Natalie did not value his place as a father in Annalie's life. Natalie's new home is 35 km further from Andrew's home than her previous residence (albeit, a distance that is spanned mainly on highways). Andrew says that the move negates the possibility of any mid-week access, and quashes his hope for an equal time-sharing schedule in the future.

In cross-examination, Andrew questioned whether Natalie gave any thought to the effect which the move would have on the viability of maintaining mid-week visits between Annalie and himself. Natalie responded that she had considered this, but was unsure as to whether he was really motivated to have such visits, given that he had made no practical proposal to continue them after September 2012. Natalie's view was that, in any event, the benefits of the move to Annalie and herself outweighed the negative effect of the increased travel time to Andrew.

Andrew suggested to Natalie that she could have preserved the mid-week visit if she and Annalie had instead moved to her parents' home in North York, which is empty for several months each year while they are in Florida. Natalie rejected this option. Andrew testified that he had considered moving closer to Natalie's home, but had not done so.

Natalie testified that she was very unhappy that Annalie now had no mid-week contact with her father. In her evidence at trial, she proposed that she would facilitate a mid-week visit on Wednesday by driving Annalie to the mid-way point between their homes often used by them in the past—her parents' home in North York. Andrew could pick Annalie up 5:30, and return her by 6:30. Natalie would wait and receive Annalie, and drive her back to their Markham home, leaving sufficient time to complete their bedtime routine and have her in bed by her new bedtime, 8 p.m.

This option did not appeal to Andrew. Andrew testified that he was not now seeking a mid-week visit, as the travel time required for a short visit was "not worth it".

In response to a question from me, Natalie indicated a willingness to entertain a mid-week overnight visit. She could take Annalie to her parents' house for pickup at a time convenient to Andrew. Andrew would return Annalie to daycare in Markham on Thursday morning, and then make his way to work in downtown Toronto. Andrew's position on this option was that this involved too much travelling for Annalie and himself, and too early a start for Annalie on Thursday morning. Natalie countered that, until her move to Markham Annalie had to get up just as early to accommodate the trip from the condo to Markham and Natalie's morning schedule.

Andrew's position was that the only satisfactory scheduling option which met Annalie's needs was one which placed the child with him 3 out of every 4 weekends. He acknowledged that many enjoyable family activities take place only on the weekend, but said that this was the logical result of Natalie's decision to move to Markham.

2.9 Communication

2.9.1 History of Communication Problems

Andrew and Natalie have serious difficulties in communication, difficulties that were evident from the beginning of their relationship.

Andrew referred to their communication problems in an email to Natalie in August 2009: "When we argue, which is most of the time lately, things never get to a resolution". The parties commenced couples counselling in the fall of 2009. The counselling did not help. Just a week after Annalie's birth, Andrew wrote to Natalie: "Unfortunately, we appear to be unable to discuss our issues in a way that resolves them-rather the conflict simply escalates".

This dysfunctional communication pattern has continued in their relationship as parents, despite the fact that they appear to have similar parenting values.

Andrew blames Natalie entirely for any communication problems between them. He testified that Natalie was rude, self-centred, and controlling, whereas he was reasonable and accommodating to her in the extreme. He describes Natalie as a "high-conflict personality".

Natalie had a different analysis of the communication problems. She testified that Andrew is intense, bright, and given to quick decisions; he is impatient with people—like her—who don't think and move as fast as he does. Natalie characterized herself as a slow and deliberate person, who when a decision is required researches and mulls over options. She described how, when she was considering the proper time to start overnights visits and wean Annalie from breast-feeding, she met with a parenting expert, read books and articles, and talked to Annalie's paediatrician, a public health nurse and the LaLeche League. Natalie acknowledged that she is perhaps sometimes "too slow" at times in making decisions. Natalie has taken several courses at Families in Transition to attempt to improve her communication with Andrew, but is pessimistic about communication improving soon.

2.9.2 Allegations of Abusive Conduct

Natalie alleges that when there is conflict, Andrew can be "abusive". In her pleadings she alleged that Andrew has a "very bad temper and was prone to verbal outbursts directed at ( me ) which included shouting, swearing, name calling and belittling ( me ).". Natalie testified that she tried to be careful not to "set him ( Andrew) off" to avoid these scenes, some of which occurred when Annalie was present.

One example Natalie gave of controlling behaviour by Andrew concerned a day in the fall of 2010 on which she asked him not to come to her home, as planned, after his work; she wanted "a night off" from the relationship. Natalie's evidence is that Andrew "exploded", warning her that he could get a court order that would guarantee his time with Annalie. (An email from Andrew in which he apologized for this threat was put into evidence.) Natalie testified that threats of litigation by Andrew when they disagreed were a theme in their relationship after Annalie's birth, even before their break-up. She was intimidated.

Andrew vehemently denies that he has "issues with anger". In his evidence Andrew said that he had only two arguments with Natalie during their whole relationship, arguments in which they had both exchanged intemperate remarks—one argument was about the child's name, and the other on the date of the relationship breakdown. When questioned about Manjula's claims at the time of their separation that he had issues with anger (claims which she confirmed were accurate in her evidence before me), Andrew said that it had been a "difficult time" and suggested that Manjula had twisted the truth to try to gain an advantage in the case.

I accept that Andrew believes that he did not try to intimidate Natalie with displays of anger. However, I find that Natalie experienced Andrew's behaviour during conflicts between them as angry and intimidating, and that she was not unreasonable in her perceptions. I say that for two reasons:

• Andrew acknowledged during cross-examination that "in my culture, people talk loud", and that his behaviour when he is "talking loud" could be perceived by others as anger. Even in the courtroom, Andrew presents as an intense and passionate individual. I can easily believe that Andrew may, when dealing with an emotional subject—such as his status as a parent—become overwrought, and not realize that he is acting in a way that would be experienced as abusive or intimidating.

• Andrew demonstrated angry, explosive behaviour to Manjula when dealing with issues similar to those which he says he has with Natalie—a failure by his child's mother to acknowledge his status as an "equal parent". Manjula had no reason to not be truthful in her evidence—she was called as a witness by Andrew.

Angry face-to-face interactions between Andrew and Natalie are not a current problem, because they have almost no conversation with each other, and communicate almost solely by email (or lawyer).

After Natalie continued to accuse Andrew of "abusive" behaviour in a case conference brief in August 2011, Andrew advised her that in order to protect himself he would in the future communicate with her only in writing, by email. Andrew felt so strongly about this that he refused to take calls from Natalie's number during her morning ride to work, when she sometimes called to let Annalie speak with him. The parties were obliged to see each other during transfers of Annalie, and Andrew told Natalie that he was going to tape record these exchanges, and did so, again in order to defend himself against possible accusations of abusive behaviour.

Andrew questioned why Natalie would attempt to try to communicate with him by phone, given her evidence about his "abusive" behaviour. Natalie testified that when the parties were not arguing that she felt face-to-face communication was a better forum in which to communicate about Annalie. However, she eventually acceded to Andrew's request to communicate by email.

2.9.3 Current Communication

Currently, then, the parties communicate by email. There is little or no conversation between them when Annalie is exchanged for visits. There seems to be little information regularly exchanged about Annalie's situation—her activities, progress, problems—except for reports when Annalie has to be taken to a doctor.

Andrew complains that Natalie often does not reply to his emails in a timely fashion. Natalie replies that, unlike Andrew, she is not sitting in front of a computer screen with access to email most of the day. She says she replies when she can, but she is usually busy after work with Annalie, and sometimes does not even check her computer before turning in.

2.10 Doctor Visits

Andrew points to what he says is Natalie's breach of the provision in the order of August 31, 2011 -- which provided that medical appointments for Annalie should be scheduled at times that both parents could attend—as another example of her lack of respect for him as a parent. At Andrew's request, Natalie produced a list of every medical/dental appointment the child had since the date of the order, 16 in all.

Andrew was advised of and attended the two annual check-ups with the paediatrician which took place during this time. There were three emergency attendances at the Hospital for Sick Children (HSC) to deal with episodes of respiratory distress the child suffered. Natalie advised or attempted to advise Andrew that Annalie was at hospital, but he could not attend. She advised him of the outcome of treatment on each occasion.

The balance of the appointments entailed last-minute visits to the child's doctor or after-hours clinics because of immediate problems, usually with respiration but sometimes for other reasons (e.g., pink eye, fever). Natalie did not attempt to co-ordinate a time for these urgent appointments with Andrew. On some of these occasions, Natalie emailed Andrew with information about the problem and treatment; she filed documentary evidence of this, consisting of emails.

2.11 Use of Annalie's Surname

Andrew's evidence was that, despite the fact that Annalie's name includes both her parents' surnames, that Natalie makes a point of only using the name "Annalie Kekki" in interactions with the daycare, doctors, etc. He says that this is yet a further illustration of Natalie's disregard for him as a parent.

Natalie denies Andrew's allegation. Natalie produced documentary evidence indicating that she consistently uses both the child's surnames –the child's baptismal certificate, daycare records of payment, registration for extracurricular activities, and a library card. Natalie acknowledges that on the daycare attendance sheets the staff sometimes referred to the child as "Annalie Kekki", but says this is not at her direction.

3. The Law and Analysis

Section 24(1) of the Children's Law Reform Act directs that applications concerning custody of and access to a child shall be determined in reference to what is in a child's best interests. Deconstructed, orders as to custody and access deal with two issues: decision-making authority with respect to a child, and the child's residential arrangements. Section 24 goes on to set out factors that are usually relevant in assessing a child's best interests:

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

  • (i) each person 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) the relationship by blood or through an adoption order between the child and each person who is a party to the application.

(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.

3.1 Decision-Making Authority

3.1.1 When is Joint Custody Appropriate?

There is no presumption in Ontario that a particular decision-making regime—whether it is sole custody, joint custody, or parallel parenting—is in a child's best interests. What regime is best for any particular child depends on the circumstances of that child's life.

Joint custody involves joint decision-making by parents about the major issues involved in a child's upbringing.

A recent case neatly summarizes the decision of the Ontario Court of Appeal in Kaplanis v. Kaplanis, which set out principles to be considered by a court when it must assess whether a joint custody order is appropriate for any child:

a. There must be evidence of historical communication between the parents and appropriate communication between them;

b. Joint custody cannot be ordered in the hope that it will improve communication;

c. Just because both parents are fit does not mean that joint custody should be ordered;

d. The fact that one parent professes an inability to communicate does not preclude an order for joint custody;

e. No matter how detailed the custody order, there will always be gaps and unexpected situations, and when they arise they must be able to be addressed on an ongoing basis.

f. The younger the child, the more important communication is.

Kaplanis remains the law of Ontario.

Courts following Kaplanis have found that if one parent is the primary instigator of conflict that he or she should not be able to rely on that conflict to oppose a joint custody order if it is otherwise in the child's best interests. Courts have also cautioned that occasional conflict should not preclude an order for shared parenting of some type; the court should consider the entire record of the parents' communication.

Following Kaplanis, the Court of Appeal held that joint custody may also be available as what is essentially a "defensive" order for a parent attempting to resist a campaign of alienation by the parent with whom the child primarily resides.

3.1.2 Andrew's Allegations of Alienating Behaviour by Natalie

Andrew alleges that this case falls within this last category, and that he is the victim of a campaign of alienation by Natalie. He says this campaign is demonstrated in many respects:

• Natalie's resistance to establishing a reasonable schedule between him and Annalie
• Natalie's termination of the Thursday visit last September
• Natalie's move to Markham
• Natalie's refusal to share the driving involved in his access
• Natalie's failure to acknowledge his surname when referring to the child
• Natalie's failure to schedule the child's medical appointments at times convenient for him.

I do not agree with Andrew's analysis.

I start with the observation that Andrew acknowledges that Annalie has a wonderful relationship with him and with Owen. There is no evidence that this relationship has deteriorated or suffered over the past two and a half years, years during which Andrew alleges that Natalie has been engaged in this campaign.

My findings with respect to the specifics Andrew provides in support of his claim are set out below.

Resistance to a reasonable schedule? I do not intend to engage in a minute analysis of each party's proposals and positions over this period with respect to the duration of visits, commencement of overnight visits, and scheduling of holiday and vacation time. Natalie may at times, as a first-time mother, have been very cautious before agreeing to longer visits, or an overnight schedule. However, I find that Natalie has generally agreed to times for the child to spend with her father that are reasonable, given the child's age and developmental needs, the work schedules of both parties, Andrew's commitments to parenting Owen, and the distances which must be travelled for visits to take place. I add that Andrew was also generally reasonable in his proposals, although in my view, he failed to appreciate the real logistical constraints imposed upon Natalie and him when attempting to arrange mid-week time for him to spend with Annalie. This failure contributed to the intensity of the conflict when Natalie's work schedule changed, affecting the Thursday visit.

Termination of the Thursday visit I do not find Natalie's termination of the 4:30-6:30 p.m. Thursday visit indicates a failure on her part to value Andrew's role as Annalie's parent. Changes in her work schedule outside of her control resulted in her inability to facilitate that visit. Natalie's suggestions for an alternate time for the visit were not realistic, being premised on the assumption that Andrew had additional flexibility in his work schedule, flexibility that Andrew testified he did not have.

An assessment of the evidence as a whole indicates that regardless of the change in Natalie's work hours, the Thursday visit in this time slot would have ended in any event. Andrew's evidence at this trial was that he now is unable to accommodate a visit premised on a departure time from work earlier than 5 p.m. The trip to Natalie's former home took 45-60 minutes. The parties agreed that it is best that Annalie be back to Natalie's home by about 6:30 p.m. That leaves practically no time for a visit.

Given my finding that Andrew does not have flexibility in his work schedule, I add that I do not agree with Natalie's allegation that Andrew showed a disregard for Annalie in not taking up her offer last fall for Thursday visits beginning at 3 or 3:30, or Wednesday visits starting at 4 p.m.

I conclude that the logistical facts in the fall of 2012 made a mid-week non-overnight visit unrealistic. Neither Andrew nor Natalie can be faulted for that.

Move to Markham. In my view, Natalie's decision to move to Markham involves a reasonable balancing by her of the pros and cons of such a move as it affects Annalie as well as herself. A shorter less stressful daily commute, more spacious affordable accommodation near her work and the child's daycare, and the funds needed for this litigation were gained; the realistic possibility of a two-hour weekly after-work visit was diminished. The problem which the move created with a mid-week visit must be viewed in the light of the change in Andrew's situation—that he was no longer in a position to bend his work schedule to accommodate a mid-week non-overnight visit in any event.

Transportation of Annalie I do not view Natalie's stance about the responsibility for providing transportation for Annalie on visits as evidence that she is on a campaign of alienation. The practice in the courts for many years has been to require the parent with whom the child does not primarily reside to provide transportation for the child's visits with him or her. This practice takes into account the fact that it is the custodial or primary parent who shoulders most of the day-to-day work involved in childcare, including providing whatever transportation is necessary. This practice is reflected in caselaw. It was not unreasonable for Natalie to follow this practice in her dealings with Andrew. It should be acknowledged that, despite this practice, Natalie has from time to time provided transportation for Annalie to points mid-way between her and Andrew's homes for visits, and that since her move to Markham, she has offered and provided more transportation to facilitate visits.

Annalie's name The evidence indicates that Natalie agreed that "Sader" form part of Annalie's name, and that Natalie refers to the child by her full name—including "Sader"—at times when she has occasion to use the child's surname—e.g., registration for daycare, the library. The fact that some service providers may abbreviate the child's name to "Annalie Kekki" in their records does not indicate any lack of support by Natalie for Andrew's relationship with the child.

Doctor's visits I have inspected the list of medical appointments made for the child since the relationship breakup. Natalie arranged for all checkups at a time convenient for Andrew, and he attended. Although she advised or attempted to advise him of the three attendances at HSC emergency in a timely fashion, he was unable to attend. The balance of the appointments relate to what I would class as "urgent" appointments, usually at walk–in clinics. I would not expect Natalie to attempt to arrange with Andrew by email a time convenient for him to attend on these occasions; the process would likely involve a delay of at least a day or two, a delay in Annalie receiving necessary medical attention. Natalie advised Andrew of the results of these urgent attendances. I do not find that she was acting unreasonably, or in a fashion calculated to diminish Andrew's parental role or his relationship to Annalie.

3.1.3 Is Parallel Parenting the Answer?

Andrew acknowledges that there are significant communication problems between him and Natalie (albeit saying that these problems are all Natalie's fault), and for that reason does not ask for a "pure" joint custody order. Instead, he asks for an order for parallel parenting. Parallel parenting has been described by Rachel Birnbaum and Barbara Fidler as follows:

"Parallel parenting as defined in the social science literature is not a manifestation of joint legal custody in the sense of the parents making major decisions jointly, but rather parallel parenting involves each parent making the final decision about a different domain. In other words, each parent has sole custody, only over a different domain of decision-making."

Justice Deborah Chappel in V.K. v. T.S observed that parallel parenting orders in high-conflict cases may allow each party "the benefit of playing a meaningful player in the child's life" while allowing them to "reduce parental conflict". Is there any research-based evidence on the actual outcomes for children who are the subject of parallel parenting orders? This evidence would be useful, but if it exists, it was not provided.

Andrew says that in situations like his and Natalie's – two competent parents with too high a level of conflict to make "pure" joint custody workable—parallel parenting is the answer. He cites the Ontario Court of Appeal decisions in Ursic v. Ursic and in Andrade v. Kennelly and subsequent trial decisions providing for parallel parenting as authority for this proposition. Under Andrew's plan for parallel parenting, he would have final decision-making authority in the area of health and medical and dental treatment, and Natalie would have such authority with respect to education.

Justice Chappel reviewed many of the cases which discuss parallel parenting in V.K. v. T.S and identified significant factors which courts have considered in determining when a parallel parenting order may be in a child's best interests:

• Both parents have strong ties to the child, and prior to separation each had "consistently played a significant role in the child's life on all levels". It is hoped that a parallel parenting order may assist in preserving each parent's role as an equal parent.

• Each parent is capable of making decisions in the child's best interests, and able to place the child's needs above their own needs and interests.

• Although there is extensive conflict, the parents are able "at times to focus jointly on the best interests of the child"; a parallel parenting order may encourage such cooperation.

• Alienating or undermining behaviour is displayed by a parent who is otherwise a good parent (perhaps the primary parenting figure in the child's life). In these cases, a parallel parenting order may "safeguard" the maligned parent's role in the child's life.

An analysis of these factors does not indicate that a parallel parenting order would be in Annalie's best interests.

Significant role prior to the breakup? Andrew did not, prior to the relationship breakdown"consistently play a significant role in (Annalie's) life on all levels". The best that can be said is that Andrew, busy with his work and the parenting of Owen, did not object to decisions that Natalie made for the child. When Andrew stayed at Natalie's home, he assisted with the child's care. He did not take the child to the doctor. He never visited her daycare centre. It is notable that, even after the relationship breakdown, Andrew did not visit the daycare except for one occasion—last November, when he arrived unannounced, on a day when a special activity was about to begin. The daycare director advised that she did not have the time to meet with him that day, and invited him to return for a visit at another time, and to answer any questions he had about the program. Andrew did not return; he did not contact the director with any questions.

Put child's interest first? Both Natalie and Andrew are capable parents who can make decisions that are in Annalie's best interests. They have similar values about parenting in many respects. However, there have been occasions when, in my view, Andrew takes positions that do not sufficiently consider Annalie's interests, because he is caught up in a power struggle with Natalie. The problems with the order Andrew seeks giving him sole authority as to medical decisions illustrates this. I asked him if this order would, for example, mean that he would select Annalie's doctor, and if this would mean a change of doctor. He said that he would change doctors, and that he would likely select a doctor for the child in his neighbourhood, which is 46 km. from Natalie's (and Annalie's) home. The reason for the change was not any dissatisfaction with Annalie's current doctor. On any residence schedule proposed, Annalie will continue to spend most of her time at Natalie's home. How is it in Annalie's interest to remove her from the care of a doctor who has cared for her well since birth, and transfer her care to a doctor who would be difficult to access much of the time?

Ability to communicate when necessary. Unlike the parents in Hajkova v. Romany, there is little evidence that, despite their conflict, Andrew and Natalie have communicated cooperatively on important issues regarding Annalie's welfare. A recent incident involving non-communication about a basic medical issue which should have engendered communication serves to illustrate this.

Annalie recently arrived home from a visit with Andrew complaining of a "hurt tooth". Natalie took the child to a dentist, where it was discovered that her tooth was chipped. When questioned about this at trial, Andrew testified that Annalie, while swimming, had complained about a pain in her tooth; he investigated, and saw nothing. He gave her ibuprofen for the pain. Andrew communicated nothing about this pain or the medication he administered to Natalie when he returned the child. He said he did not think it necessary, because Annalie was not reporting pain at the time of the transfer.

Does Natalie display "alienating" behaviour? There are situations in which one parent is seeking to eliminate the other from a child's life in which a parallel parenting order is the best of a number of imperfect options—it is essentially a defensive order. Andrew claims that he is the victim of a "severe power imbalance". As I have said above, the evidence simply does not support this claim.

In discussing how a parallel parenting order would work in this case, Andrew said that he envisioned that it would be a spur to cooperation, and that likely neither he nor Natalie would ever make any important decisions about Annalie on their own. He bases this hope on his experience with Manjula, in which a "true" joint custody arrangement resulted after a parallel parenting award was made. In my view, this merely amounts to a hope that cooperation between he and Natalie will result from such an order. As the Court of Appeal has cautioned"hope" is no basis for an order for joint custody of any type.

The situation between Andrew and Natalie is very different than that between Andrew and Manjula. Andrew and Manjula were married, and lived together for several years before deciding to have a child. They parented that child together for three years before separation. Since separation, they have lived in close proximity to each other, not on opposite sides of the city. In addition, Manjula presents as an exceptionally understanding parent. She has been willing and able to make a major change in her work schedule to accommodate the parenting arrangement she has with Andrew.

It is tempting but, I believe, unrealistic to believe that an order for joint custody in the parallel parenting mode as requested by Andrew would be a quick fix for the lack of cooperation and effective communication that have plagued him and Natalie. There will be decisions to be made with respect to Annalie that do not fall within the neat silos of "education" and "health" decisions, and issues that overlap those silos. Within a parallel parenting regime, when one or both parents want to argue or are quick to see slights to their parental status, there are still many opportunities for conflict. As Justice Alex Pazaratz has observed, an order for parallel parenting "can perpetuate hostilities, indecision and power struggles". In my view, and order for parallel parenting in this case would do just that.

3.1.4 An Order for Sole Custody

The order which will meet Annalie's best interests is one which places authority with respect to major decisions about Annalie's upbringing with one parent. In my view, that authority should rest with Natalie, for the following reasons:

• Annalie resides primarily with Natalie, and Natalie provides most of her care.

• As I observed above, Natalie has shown herself to be more consistently focussed on Annalie's best interests than Andrew has.

• Natalie has shown that she is able to make good decisions about Annalie's care and upbringing.

• Natalie's plan provides more stability for the child than Andrew's plan, in that it will decrease conflict and allow decisions to be made within a reasonable time.

Natalie's authority to make decisions about Annalie will be exercised within the ambit of certain restrictions I will impose on that authority. My detailed order is set out at the conclusion to this decision, with the major points summarized below:

1. Natalie shall have custody of Annalie.

2. Natalie shall consult with Andrew in writing at least 60 days in advance in advance with respect to any non-emergency major decision about Annalie's upbringing.

3. Natalie and Andrew are each entitled to make "day-to-day" decisions about Annalie during the time the child is in his or her care. This includes decisions about Annalie's bedtime, diet, hygiene, and whether she requires minor medical treatment (e.g., for a cold).

4. Each parent can only enrol Annalie in sports or other organized activities for the time that the child is scheduled to be with him or her.

5. Each party advise the other in writing in advance of a plan to move more than 5 kilometres from each other, at least 60 days in advance of the move. (This clause was suggested by Andrew, concerned that a move by Natalie would unduly restrict his time with Annalie. There is no indication that Natalie plans such a move; she has lived and been employed in the GTA for years.)

6. The parties shall share information regularly about Annalie's routines, activities and experiences using email on an on-line parenting program, such as Family Wizard.

Andrew should not see this order as one which limits his opportunity to be "a meaningful player" in Annalie's life. He can be involved in Annalie's life if he wishes, and does not need the label of custodial parent to achieve this goal. He is free to participate in her life—by, for example, becoming involved in her daycare centre. When Annalie attends school, he can participate in school activities. When he decides to enrol Annalie in activities (he has not chosen to, to date), he can participate in those activities.

3.1.5 Annalie's Residential Schedule

It is trite to say that, whether a case is decided under the Divorce Act or under the Children's Law Reform Act, a child should have as much contact with each parent as is consistent with his or her best interests. However, as Justice J.A. Austin of the Ontario Court of Appeal cautioned in Bjornson v. Creighton: "While the "maximum contact" principle does apply and is an important one, it is not absolute and it remains one factor in the whole of the analysis. It ought not to be treated as the governing factor".

Andrew says that the only order which will achieve the goal of "maximum contact" is one that provides that Annalie spend 3 out of every 4 weekends with him. This would mean that out of approximately 40 non-holiday/vacation weekends in a year, that Annalie would spend 10 with her mother and 30 with her father. Natalie says that the appropriate order is one for alternate weekends with each parent, and some form of mid-week access.

Weekend times are valuable for parents and children. They are the times when they can visit extended family, go to a museum, take a hike, or just hang out around the house with each other without the pressures of weekday schedules. Generally, a court will not find that it is in the best interests of a child with two capable parents to provide that a child spend significantly more weekend time with one parent, thereby depriving the child of the weekend experiences she can have with the other. The cases in which a skewed weekend schedule may be ordered include those in which a parent has disrupted a 50/50 parenting schedule by moving so far away that no mid-week contact is possible, or in which parents who live a significant distance from each other have maintained a 50/50 schedule for a pre-school child, a schedule which must be changed when the child enters school.

In my view, Annalie can spend mid-week time with Andrew on a schedule that is workable for both parents and for her. Andrew testified as to the importance, from his perspective, of Annalie being with him for overnight visits; this allows him to participate not just in "fun" weekend activities, but in normal bedtime and morning routines. Natalie can deliver the child to Andrew at her parents' home on Wednesdays at 5:30 p.m. Andrew can return Annalie to daycare on Thursday morning, and continue on to work by 9 a.m. Although this will mean an early wake-up time for Annalie, as Natalie observed, it will be no earlier than the child was accustomed to when she lived with her mother at her former residence.

A mid-week visit with Annalie will require Andrew to negotiate an adjustment of the schedule he has for Owen with Manjula. The evidence suggested that both he and Manjula were open to this change, once a schedule was firmly established, but I would not expect that the change can be made instantly. For that reason, I direct that Andrew confirm to Natalie within 30 days that he can and will accept the mid-week visit I have ordered. If he does not accept that visit, then it shall not take place.

I see no reason to impose an unbalanced weekend schedule for Annalie. It is in her best interests to enjoy significant weekend time with each parent, and the order that I make continues her current alternate weekend schedule. When her weekend with Andrew abuts certain holiday Mondays, she will stay with him until 6 p.m. on the Monday. Natalie shall continue to drop Annalie off to Andrew on Fridays at her parents' home, a mid-way point, and Andrew shall return the child to Natalie's home on Sunday, or Monday, as the case may be. I intend that the weekends Annalie spends with Andrew should continue in the current pattern—i.e., if Andrew was with her father last weekend, then she will reside with him again in two weekends.

This is not a case in which I find that equal sharing of the transportation for access visits is appropriate. I am mindful of the fact that Natalie is responsible for Annalie's care, including her transportation, most of the time, and of the fact that Natalie's move did not lengthen the travel time involved for Andrew significantly for weekend visits. Given the early time Natalie must start her workday, it is impractical for her to be responsible for transporting the child back to daycare on Thursday mornings. During holiday and vacation periods, I have provided that Natalie share more in transportation responsibilities.

I have made orders which expand the holiday and vacation time that Annalie spends with Andrew. These times in some instances exceed what Natalie said was appropriate, but do not always reflect what was requested by Andrew. In my view, what I have ordered is appropriate, given the child's age and stage of development and the good experience the child has had with Andrew on weekends and shorter holiday visits (maximum three consecutive days, to date). The time should allow the child an opportunity to be with with Andrew's extended family in Montreal, a trip which he has not yet been able to accommodate.

My detailed order with respect to scheduling is set out at the end of this decision.

4. Child Support

There is little disagreement on the proper order for child support. Natalie asks that I make an order adjusting, in the light of financial disclosure from both parties, the amounts payable for the table amount of support and the after-tax cost of Annalie's daycare. Andrew asks that I order that his contribution to the daycare cost be 50%, and not the proportionate amount owing, which is in the range of 56-57% of the cost, to take into account the cost to him of providing most of the transportation for the time Annalie spends with him.

Section 7(2) of the Guidelines provide that the "guiding principle" in determining the amount that a parent should contribute to section 7 expenses is that it should be proportionate to income. That leaves open a discretion for the court to depart from that principle in appropriate circumstances. In this case I see no reason to do so. Many parents within the GTA spend significant amounts of money in order to provide transportation for their children during periods of access. If the drafters of the Guidelines had intended that these ordinary transportation expenses provide a basis for a disproportionate allocation of responsibility for section 7 expenses, that could have been said.

The amounts payable by Andrew for child support are set out below. He shall receive credit for the amounts paid from May 1, 2011 to date.

1. Commencing May 1, 2011 up to and including December 1, 2011, Andrew shall pay $1078 monthly in a table amount, based on a 2011 annual income of $125,322. Based on Natalie's annual income of $97,772 and the after-tax cost of daycare of $11,168, Andrew shall contribute 56% of the total cost, or $521 monthly, from May 1, 2011 to December 1, 2011.

2. Commencing January 1, 2012 to and including December 1, 2012, Andrew shall pay $1125 monthly in a table amount, based on a 2012 annual income of $131,433. Based on Natalie's 2012 annual income of $101,567 and the after-tax cost of daycare of $11,948 of Andrew shall contribute 56% of the total cost, or $558 monthly, commencing January 1, 2012.

5. The Order

I order as follows:

Decision-Making

1. Natalie shall have custody of Annalie.

2. Prior to making any major decision as to Annalie's upbringing (for example, changing schools, non-emergency surgery), Natalie shall consult with Andrew about the issue in question by email or an on-line parenting program at least 60 days in advance, and shall consider Andrew's views in making the decision.

3. Natalie and Andrew are each entitled to make "day-to-day" decisions about Annalie during the time the child is in his or her care.

4. Each parent shall enrol Annalie in sports or other organized activities only for the time that the child is scheduled to be with him or her.

Communication and Information

5. All communications between Natalie and Andrew, other than communications in the event of an emergency, shall be by email or an on-line parenting program, unless both agree in writing that they can communicate orally going forward. Should they agree to communicate orally, communication shall revert to email at the written request.

6. Using email or an on-line parenting program, the parties shall inform each other of facts important to Annalie's daily care, such as developmental changes, medications administered, and any new experiences for the child.

7. In the event of an emergency, each party may attempt to contact the other by telephone.

8. Each party shall keep the other updated with current information in relation to:

   • (i) home address;
   • (ii) cell and work phone numbers;
   • (iii) email address

9. Both parents shall have access to all reports and records directly from the medical professional/facility, and be free to discuss medical issues with health care professionals. Natalie shall sign consent forms where necessary to give effect to this clause.

10. Natalie shall advise Andrew of appointments which she has made for Annalie's annual check-ups and he shall be free to attend such appointments. Andrew may also attend any medical appointments for Annalie arranged by Natalie to investigate or treat any serious medical conditions.

11. Emergency medical visits shall be attended by the parent with whom Annalie is with at the time the need arises, and the other parent will be advised immediately by telephone, text message and/or by email of the nature of the emergency and the location of treatment. If the parent is unreachable at both their cellular telephone and work numbers then they may be informed of the emergency by email. When contacting Natalie at work in case of emergency, Andrew shall request that the office staff page Natalie.

12. Both parents shall have independent and equal access to all reports and to teachers/workers and school administration, and school events, and both parents shall ensure the institution is aware of these rights and not seek to interfere with them.

Residential Schedule

13. The particulars of the schedule set out below shall not be changed by either party without prior written agreement of the other party. When this schedule refers to "a week" it shall mean from Sunday at 6 p.m. to the following Sunday at 6 p.m.

14. Annalie shall reside primarily with Natalie, and with Andrew at the times set out below.

15. Caregiving by persons other than the relatives of the child, for periods of more than 24 hours (for example if one parent who would normally have care of the child has to travel without the child,) shall not be arranged unless the other parent has first had the opportunity to care for the child upon reasonable notice having been given by the travelling parent, provided that the non-travelling parent can provide transportation for the child.

Regular Schedule

16. Annalie shall spend alternate weekends with Andrew from Friday at 5:30 p.m. to Sunday at 6:00 p.m. Natalie shall bring Annalie to her parents' home by 6:00 p.m. Friday, and Andrew shall return Annalie to Natalie's home at 6:00 p.m. on Sunday.

17. Andrew shall have Annalie in his care weekly on Wednesday from 5:30 p.m. to Thursday morning, when he shall return the child to daycare or school. Natalie shall bring Annalie to her parents' home for pickup on Wednesday.

18. Where certain statutory holidays (Family Day, Victoria Day, and Thanksgiving) fall on a Monday, Annalie shall spend it with the parent with whom she spent that weekend. In other words, if Annalie spent the weekend with Andrew, Andrew will return her to Natalie's home at 6 p.m. on Monday instead of on the Sunday.

19. Canada Day and the August Civic holiday shall fall where they fall pursuant to the parties' summer parenting schedule.

20. Regardless of other provisions in this schedule:

    • Annalie shall spend Labour Day with Natalie each year.
    • Annalie shall spend Mother's Day with Natalie and Father's Day with Andrew regardless of the regular parenting schedule from 11:00 a.m. to 6:00 p.m. Pick-up and/or drop-off will take place at Natalie's parents' home.

21. Annalie shall spend her birthday with the parent whose care she is in pursuant to the regular week to week parenting schedule.

22. The Summer, Easter, March break and Christmas schedules will take priority over the regular schedule (including the provisions for statutory holidays). This means that the regular schedule is suspended, and when the periods set out in the Summer or Easter or March break or Christmas schedules end, the regular schedule shall recommence as if not interrupted.

Christmas Schedule

23. For Christmas 2013, Andrew shall have Annalie in his care as follows:

    • Friday, December 20 at 6:00pm (Andrew pick up at Natalie's home) to Sunday December 22 at 5:15pm (Natalie pick up at Andrew's home);
    • Tuesday, December 24 at 9:00am (Andrew pick up at Natalie's home) to Wednesday, December 25 at 9 a.m. (Natalie pick up at Andrew's home);
    • Saturday, January 4, 2014 at 9:00am (Andrew pick up at Natalie's home) to Sunday January 5, 2014 at 5:15pm (Natalie pick up at Andrew's home).

24. For Christmas 2014 and beyond, Annalie shall reside as follows:

    • Of the two week public school holiday period, beginning Friday evening at 6:00pm of the first weekend, and ending at 5:15pm on Sunday of the last weekend (at which time revert to regular schedule), with each of Natalie and Andrew for one week, Natalie to decide and advise Andrew by September 15 of which week in even numbered years, starting Christmas 2014, and Andrew to decide and advise Natalie by September 15 of which week in odd numbered years, starting Christmas 2015.
    • The changeover will occur on the "middle" Saturday at 5:15pm.
    • Andrew shall pick up Annalie at Natalie's home at the beginning of Annalie's time with him, and Natalie shall pick up Annalie at Andrew's home at the end of Annalie's time with him.

Easter Weekend

25. The Easter holidays shall be shared each year such that Annalie shall be in Andrew's care from Thursday at 6p.m. (Andrew to pick up at Natalie's home) to Saturday at 6:00 p.m. (Natalie to pick up at Andrew's home). Annalie shall be in Natalie's care the balance of the Easter long weekend.

Summer Schedule

26. The regular week-to-week parenting schedule shall be suspended during the entire school summer vacation, which is defined as from the evening of the last day of school to the evening of the Sunday before the first day of school. However, where not specified below, the "regular schedule" applies during this period.

27. In 2014, 2015, and 2016:

    • Natalie shall be entitled to 3 weeks, consecutive or non-consecutive, with Annalie.
    • In addition to the time Annalie would spend with him according to the regular schedule (but taking into account that some of these visits will be missed because of the 3 week period Natalie can spend with Annalie), Andrew will be entitled to up to three 5-day (4 overnight) periods, from 9:00am until 5:15pm four days later (which may not be consecutive, and must have at least two overnights with the mother in between them).
    • Natalie will advise Andrew by email by January 1 of that year of her chosen 3 weeks. Andrew will advise Natalie by email, between January 1 & January 15, of his choices as to his three 5-day periods, and prepare a calendar that sets out the schedule according to the choices each has made.
    • If neither meets these deadlines, then the first to advise the other of his or her intentions (by email) will have priority.
    • Andrew shall pick up Annalie at Natalie's home at the beginning of Annalie's time with him, and Natalie shall pick up Annalie at Andrew's home at the end of Annalie's time with him.

28. In 2017 and following, Andrew shall be entitled to 3 weeks with Annalie, consecutive or non-consecutive. Otherwise, the schedule set out in paragraph 27 above applies.

March Break

29. The March break vacation is defined as the period from Friday afternoon at the close of school to 6 p.m. Sunday evening prior to return to school. Annalie shall spend the school March break vacation with Andrew in odd numbered years and with Natalie in even numbered years. If Andrew is unable to take vacation during Annalie's March break, Natalie shall care for Annalie and the regular schedule shall apply. Andrew must notify Natalie by email, by December 1st prior to his scheduled March break parenting time whether he will be available to have Annalie in his care over the school March break vacation.

Communication Between Annalie and Parent During Absences

30. Despite the provisions set out in paragraph 5 above, each party shall cooperate when Annalie is in her/his care to facilitate the child's contact with the other parent by email, telephone, or video calls.

Mobility

31. Andrew and Natalie shall advise each other in writing of any intention to move more than 5 kilometres further from each other than they currently reside, at least 60 days in advance of signing any agreement of purchase and sale or lease.

International Travel/Passport

32. Natalie will apply for and hold a valid passport for Annalie at all times, and provide it to Andrew upon request as required. In holiday times when Annalie is in the care of a parent according to the schedules set out in this agreement, that parent shall be permitted to take her out of Canada with the prior consent of the other parent, which consent shall not be unreasonably withheld, and travel consent forms prepared by the travelling parent shall be signed by the other parent as required and returned within 72 hours of receipt unless it is required sooner due to emergency.

33. At the outset of travel with Annalie out of province, the accompanying parent shall advise by email of dates, location (name, address, telephone number, if possible), flight itinerary (if applicable), etc.

Child Support

34. Commencing May 1, 2011 up to and including December 1, 2011, Andrew shall pay $1078 monthly in a table amount, based on a 2011 annual income of $125,322. Based on Natalie's annual income of $97,772 and the after-tax cost of daycare of $11,168, Andrew shall contribute 56% of the total cost, or $521 monthly, from May 1, 2011 to December 1, 2011.

35. Commencing January 1, 2012 to and including December 1, 2012, Andrew shall pay $1125 monthly in a table amount, based on a 2012 annual income of $131,433. Based on Natalie's 2012 annual income of $101,567 and the after-tax cost of daycare of $11,948 of Andrew shall contribute 56% of the total cost, or $558 monthly, commencing January 1, 2012. These payments shall continue until a change is agreed upon by the parties or ordered by the court because of a material change in circumstances.

36. Andrew shall receive credit for all child support payments, including contributions to Annalie's daycare costs, made up to the date of this order.

37. Neither party shall be required to contribute to any special or extraordinary expense other than the daycare expense above unless that expense is agreed upon in writing or ordered by a court.

38. On or before June 1 each year, each party shall provide the other with his / her complete income tax return (including all schedules and attachments) and Notice of Assessment for the previous calendar year. In addition, Natalie shall provide documentation with respect to the cost of Annalie's daycare for the prior year.

39. The parties will cooperate in utilizing any benefit plans in which they are members to be reimbursed for expenses that are incurred for Annalie, and provide the other with any benefit card that is available through the plan. An expense paid for by one parent but reimbursed by the benefit provider to the other will immediately be reimbursed to the other parent.

If costs are sought, the party seeking costs shall serve and file written submissions no more than 10 pages in length (not including the bill of costs) within 30 days. The other party shall serve and file his or her response of no more than 10 pages within a further 30 days.

Released on: November 12, 2013

Signed: Justice E. B. Murray