Court File and Parties

Ontario Court of Justice

Date: 2014-07-28

Court File No.: Halton 88/14

Between:

LMS Applicant

— And —

JDM Respondent

Before: Justice Theo Wolder

Heard on: June 23, 24, 25, 2014

Reasons for Judgment released on: July 28, 2014

Counsel

Linda Joe — counsel for the applicant

Matthew Madott — counsel for the respondent

Andrea Himel — counsel for the Office of the Children's Lawyer, legal representative for the children

WOLDER J.:

Introduction

1The parties are husband and wife, and the parents of the two children AKM, born […], 2006 and EJM, born […], 2008, ages 7 and 6 respectively. The parties separated on November 11, 2013. The applicant mother seeks sole custody of the two children and permission to move with the children to Okotoks, Alberta. This proposed move is opposed by the respondent father, who seeks an order for joint or shared custody of the children and that the children remain in the province of Ontario.

2The Office of the Children's Lawyer (OCL) has investigated and has made recommendations to this court. The OCL, through its social worker Mr. Roy Reid, has investigated this matter and recommends that children remain in Ontario.

Background

3In her written submissions, counsel for the Office of the Children's Lawyer (OCL) has accurately outlined the majority of the relevant facts in this proceeding. I find that the relevant facts are as follows.

4The applicant mother was born on […], 1970 and is 44 years of age. She had previously resided in Okotoks, Alberta, where she entered into a relationship with Mr. G. The applicant has two children from this relationship, namely RG (born […], 1992, now age 22), and KG (born […], 1997, now age 17), (hereinafter collectively referred to as the 'older children').

5The respondent father was born on [...], 1981, and he is now (as of [...], 2014) 33 years of age and therefore 11 years younger than the applicant mother.

6The applicant and respondent originally met "online" prior to 2003. This "online" relationship continued for some time prior to 2003. At the time, the applicant and Mr. G and both children resided in Okotoks, Alberta. The state of the relationship between the applicant and Mr. G at that time is not clear.

7In or about 2003, the applicant left Okotoks with the two older children and moved to Sarnia, Ontario, where she began to reside with the respondent. At that time, Mr. Guiboche, the father of the older children, was reasonably close to his children. However, he did not take any steps to prevent the applicant from moving to Ontario with their two children.

8In 2004, in order to improve their employment prospects, the parties moved from Sarnia to Oakville, Ontario, and resided with the respondent's father, SM (the "Grandfather"). They subsequently moved to a rental home immediately across the street from the Grandfather. Both parties secured employment.

9The parties' first child, AKM, was born on [...], 2006. The applicant suffered from postpartum depression. The parties struggled financially as the applicant stayed home to care for AKM.

10The parties' second child, EJM, was born on [...], 2008. The parties financial and other pressures increased following EJM birth.

11The parties were married on February 14, 2009. The parties were having some difficulties in their relationship and wished to make a fresh start. They hoped that by taking this step and making this commitment, their relationship would be strengthened. The applicant's sister and mother travelled from Alberta to attend the wedding.

12By 2010, the applicant was diagnosed as suffering from depression. Her symptoms included difficulty getting out of bed, low energy and related challenges.

13The respondent also struggled with depression, as well as with alcoholism.

14The parties were unable to meet their financial obligations, causing additional stress on the family, notwithstanding that the respondent was employed full-time at Walmart where she had secured employment in mid-2010. The two older children helped the parties care for the two younger children. The paternal grandfather provided some financial assistance to the parties from time to time when their financial situation became desperate.

15The parties' relationship deteriorated and conflict ensued. In July 2011, the parties physically separated. At that time, the respondent moved back to his father's home across the street. The applicant and the four children remained the matrimonial home. The child RG then returned to Alberta to reside with his father. KG remained with her mother and the two younger children.

16At the end of November 2011, the applicant decided to return to Okotoks, Alberta with KG, but without the two younger children. She left the two younger children with the respondent, packed her belongings, and packed up her vehicle and started driving to Alberta with KG. She reached Northern Ontario, after her first day of driving towards Okotoks. The next day, she telephoned EJM.

17After speaking with EJM by telephone from Northern Ontario on the day after she had left Oakville to move to Okotoks with KG, the applicant had a change of heart and turned around and returned to Oakville. The three children then moved back into the rental home with the applicant. The respondent remained with his father but continued to pay the applicant's rent through to January 2012.

18The respondent stopped working in December 2011 as a result of his struggle with alcoholism, depression and issues relating to the breakdown of the relationship. As a result, he stopped providing any form of regular financial support to the applicant as of February 2012. Although he admits that he was working part-time as a bouncer for a few months in 2012 or 2013, at no time did the respondent make any child support payment to the applicant to assist her financially after February 2012.

19In January 2012, the respondent sought treatment to address his mental health issues, now diagnosed as "concurrent disorder". He was sober until September 2013, from January to April 2014 and from April 2014 to the present. The respondent continues to struggle with his concurrent disorder. He threatened to kill himself on or about October 2013, and again in April 2014. As a result, the respondent was held involuntarily on the psychiatric Ward of Oakville Trafalgar hospital for one week. In June 2014, the respondent completed a one-month day treatment program, and he continues to receive medication and counselling, as well as support from Alcoholics Anonymous.

20In 2012 and 2013, the applicant increased her work hours at Walmart in order to be able to better support the children in the absence of any financial support from the respondent. She had hoped that she would be promoted to a better position at Walmart. As a result, the applicant often worked evenings (until 9, 10 or 11 p.m.) as well as on weekends. During this time, she was still receiving child support for KG from Mr G.

21The financial pressures, long work hours, conflict with KG (who objected to continuously being required to provide care for the two younger children), parenting responsibilities and issues relating to the respondent (including the new relationship that he had entered into and his refusal to financially support the children) caused significant stressors for the applicant. In addition, the applicant did not receive the hoped-for promotion.

22In August 2013, the applicant attempted to commit suicide by ingesting over 120 pills. As a result of this suicide attempt, the applicant was held involuntarily on the psychiatric ward of Oakville Trafalgar Hospital for one week. The applicant sought medication and counselling. The applicant continues to follow these forms of treatment to the present.

23In December 2013, as a result of ongoing mother/teen conflict and following a physical altercation, KG also moved back to Alberta to reside with her father. As a result, the applicant stopped receiving child support or government support for KG, and the applicant no longer had any family (aside from the two children AKM and EJM) in the Oakville area. The applicant therefore became both totally physically and financially responsible for the care of both the children and needed and sought the assistance of the respondent to help provide care for the children while she was at work. The respondent then started providing more child care, though he was still not providing any actual financial support for the two children.

24Following further conflict between the parties and the respondent's relapsing in January 2014, the applicant determined that she wanted to return to Okotoks, Alberta with the children. The applicant believes that her financial circumstances will improve in Okotoks, and that she will receive emotional and other support from her sister, mother and older children (who now reside in Edmonton, Alberta with their father). Okotoks is situated a short distance south of Calgary, Alberta.

25The applicant commenced this court proceeding on February 12, 2014. In response to her concerns about the respondent's likely reaction to being served with the court documents, the applicant met with police. In her interview with the police, the applicant reported two alleged prior historical incidents of domestic violence. As a result of receiving this information, the police charged the respondent with various criminal offences relating to these alleged incidents. These criminal charges remain outstanding.

26The Halton Children's Aid Society, which was involved with the family at the time of the first alleged incident of domestic violence, was informed of the criminal charges, but did not reopen its file or reinvestigate the complaint.

27For almost 2 ½ years, from July 2011, when the parties separated, until February 20, 2014, when this court made a temporary custody order, the arrangement for the children's care was mutually agreed to by the parties from time to time.

28The current court order of March 20, 2014, as amended, provides that the respondent cares for the children every weekday after school until 6 p.m. or 7 p.m. and on alternate Saturdays from twelve noon to Sundays at twelve noon.

29From the date of separation until the present, on most nights, the children have slept at the applicant mother's home. However, on most weekdays after school, the children were picked up by the respondent and were either cared for by him, or were dropped off at the applicant's home to be cared for by KG, until her departure in December 2013.

30During the summer of 2012, the applicant worked full-time, and KG, with support from the respondent, cared for the children.

31During the summer of 2013, the applicant worked full time and the respondent primarily cared for the children.

32During the two one-week periods that each parent was held involuntarily on the psychiatric Ward at Oakville Trafalgar hospital (i.e. the applicant in August 2013, and the respondent in April 2014), the children remained in the other parent's care. Following each parent's release from hospital, the usual schedule in effect at those times was reinstated. Each parent was able to provide suitable care for the children while the other was hospitalized.

33Both children have special educational needs and have been informally identified by the school as students who require accommodations and/or modified programs. If AKM continues to attend Post Corners Public School in 2014-2015, she will likely undergo psycho-educational testing in order to have her special needs formally identified, whereupon the school will put the appropriate supports in place. The school intends to continue to monitor EJM's progress with respect to past issues with speech and ongoing concerns about his academic development.

34The applicant has been more involved in major decision-making in addressing these and other issues affecting the children. During the 2013-2014 school year, upon request from the school, the applicant participated in school meetings to discuss the children's learning needs and she executed various documents in order to allow the school to identify and address the children's special needs. However, neither parent was actively involved with the school during this past school year.

35The respondent's aunt, EG, a former Special Education teacher, has been voluntarily tutoring AKM twice per week with her special needs in Math and English. She sees the children regularly and the children have a good relationship with her.

36With respect to child care for summer 2014, as of June 2, 2014, the date of the second interview by the office of the children's lawyer with each parent, neither party had made arrangements for child care, nor had any steps been taken to devise a summer parenting schedule. By the conclusion of hearing the evidence on June 24, 2014, the parents had yet to agree to a summer parenting schedule or childcare arrangements, notwithstanding that the school year was ending and both parents were working. It appears that the applicant was then more focused on promoting her plan to move with the children to Okotoks and the respondent was more focused on resisting that plan. An agreement for summer 2014 access and some temporary child support was not reached until the afternoon of June 25, 2014, being the last day of this trial.

THE LAW AND ANALYSIS

The Custody Issue

37I agree with counsel for the applicant that the issue of custody must be decided before deciding the mobility issue. In a mobility case, where there is no existing order for custody, as is the case here, the issue of custody is to be determined prior to the mobility issue. To do otherwise would be "putting the cart before the horse." Bjornson v. Creighton, 2002 CarswellOnt 3866, 31 R.F.L. (5th) 242, 62 O.R. (3d) 236, 166 O.A.C. 44, 221 D.L.R. (4th) 489, at para. 19.

38Section 24 of the Children's Law Reform Act, R.S.O. 1990, c. C-12 [as amended], requires an application for custody and access be determined in accordance with the best interests of the child test.

39The high conflict between these parties, combined with the history of allegations and/or incidents of domestic violence, negate the viability of a joint custody arrangement with respect to major decision-making. The respondent frankly agrees that the parties are not capable of making joint decisions in the best interests of these children and that, as a result, the applicant should have sole decision-making power, with the requirement for consultation with the respondent before major decisions are made and implemented.

40Therefore, there will be an order granting custody of both children to the applicant mother, subject to a shared parenting regime that will allow the applicant to make all the day-to-day decisions concerning and for the children, provided that, with respect to major decisions affecting these children, such as decisions concerning the children's education, health and religion etc, the applicant shall first consult with the respondent and take into consideration the respondents views and wishes with respect to any of these issues, and should the parties remain at an impasse with respect to any such issue after such consultation has taken place, then the applicant shall have the authority to make such decision in the best interests of these children.

The Mobility Issue

41The Supreme Court of Canada in Gordon v. Goertz, [1996] 2 S.C.R. 27 held that the best interests test governs issues relating to mobility. Therefore, the court must focus on the children's best interests in a particular case, and not on the interests and rights of the parents.

42In this case, I find that the onus is on the applicant, who wishes to move with the children to Okotoks, Alberta, to demonstrate, on a balance of probabilities that such a move is in fact in the children's best interests.

43In applying the factors to be considered, and the application of the facts of this case to the legal test set out in paragraph 49 of Gordon v. Goertz (supra), I make the following findings:

44In assessing the existing custody and access arrangement and relationship between the children and each parent, I find that both children have a close and loving relationship with each parent. I find that the children have spent considerable time with each parent, including seeing each parent almost every day since separation. The children have never been enrolled in a childcare program or summer camp, and have always been cared for either by one of the parties or by the applicant's older children.

45I therefore find that each parent has the ability to provide adequate care for the children when the children are with her or him.

46In examining the desirability of maximizing contact between the children and both parents, I find that the children would have very limited, if not minimal, contact with the father and the paternal extended family (including the paternal grandfather, the paternal grandmother and Aunt EG, with each of whom the children presently enjoy a close relationship) if the applicant and the children moved to Alberta. I find that the family's limited finances, combined with the high cost of access in the estimated amount of $5,573.42 for three visits per year (one week in Alberta for spring break; one half of the summer in Ontario; one week over Christmas school break in Ontario) will obviously limit the children's access to their father and to the members of the extended family on their father's side.

47The respondent has been supporting himself from payments received through Ontario Works and the Ontario Disability Support Plan (ODSP). He now has some short-term employment which may or may not last. If the respondent is unable to work in the short/medium/long term and supports himself on payments made by Ontario Works or ODSP, there is no plan in place as to how the travel costs will be paid. The applicant's offer to forego child support will be of little assistance, as there may be no child support payable if the respondent is not employable and he will have insufficient funds to pay the travel costs.

48Is clear from the evidence that the applicant is angry and frustrated with the respondent, and sees little value in his contribution as a parent. She does not believe that the respondent wants to be an actively involved parent. I am not persuaded that the applicant will do anything to promote the children being able to spend actual time with their father should she be permitted to move to Okotoks.

49A parent should only be granted permission to move with the children when there is evidence that such parent will promote and not undermine the children's relationship with the left-behind parent. Such evidence is severely lacking in this case.

50There may be some merit in the applicant's anger and frustration towards the respondent as a result of the respondent's failure to assist the applicant financially whenever he had some means to do so. By failing to make any financial contribution to the applicant, even when he had some limited means of doing so, the respondent placed his own financial needs above those of the applicant and of the children in her care. Since he was living with his father, I find that he should have been able to make some financial contribution to the applicant for the care of the children, even when his income was from ODSP or from his short-term jobs.

51However, this court should not confuse such failure by the respondent to assist the applicant with her financial burden, with the children's need to continue to have a strong relationship with their father, in their best interests. Therefore, while the respondent's failure to assist the applicant with the financial burden when he had some means to do so cannot be condoned and should be remedied, the remedy is not to punish or undermine the best interests of the children by severing their strong relationship with their father.

52I find that the applicant is repeating her actions with respect to these two children as she did with the two older children when she decided to move with the two older children to Ontario when they were five and ten years of age, in order to allow her to establish a relationship with the respondent, knowing that the relationship between the two older children and their father would be severely curtailed and severed.

53After the applicant moved to Ontario with the two older children in 2003, the access by these older children to their father was limited to two or three weeks in the summer and every other Christmas or spring break. For approximately three years, when RG was a teenager, he refused to return to Alberta for visits with his father. The applicant did not object to RG's decision. She therefore took no proactive steps to foster and maintain the relationship between RG and his father.

54The fact that the two older children returned to live with their father recently, supports the fact that there was a strong relationship between the older children and their father that was not taken into consideration by the applicant when she chose to move them to Ontario in 2003. It appears that the applicant is now intent on repeating that mistake at the expense of the two younger children's relationship with their father.

55It therefore appears that by moving the two children to Okotoks, the applicant is undermining the best interests of the children in order to punish the respondent for failing to help her with the financial burden of caring for the children.

56At present, the children are not aligned with either parent. Notwithstanding the high conflict and the challenges faced by this family, I find that it is in the children's best interests that they continue to reside close to both parents in order to protect these relationships.

57In this case, I accept that the respondent cannot move to Alberta, as the professionals from this area from whom the respondent is receiving treatment, have advised that the risk of relapse will increase if the respondent is isolated from his support network and family. In Alberta, the respondent has no friends, no family, no housing, no employment, no counselors, and no support to address his concurrent disorder.

58While the children are relatively young, I find that they were able to truly, consistently and emphatically articulate their views and wishes to Mr. Roy Reid, the social worker investigator assisting the children's lawyer. Their wishes were that (1) they want their parents to get back together; and, (2) if their parents cannot get back together, they want to see each parent regularly.

59It is clear that both children have been deeply impacted by the idea of the proposed move to Alberta and the steps taken by the applicant to prepare them for the move. The evidence demonstrates that the children do not understand the real implications of a move to Alberta, or the significant impact of such move on their ability to see their father regularly. They have put conflicting proposals to the social worker, which clearly are not practical, but which are clearly an expression of a deep-rooted desire not to lose their relationship with either parent if such a move takes place.

60I therefore give no weight to the children's stated indication that they wish to move to Alberta, since they are clearly caught between a desire to please their mother and to be able to see their father regularly.

61The mother's first stated reason for the move was financial. She claimed that she had been offered a transfer to the Walmart store in Okotoks and that her sister and mother were there to provide both financial and emotional support.

62After considering all the evidence, it is clear and I find that while the applicant may still be able to secure some employment at Walmart in Okotoks based on her work experience with Walmart in Oakville, her financial situation will not improve, and, based upon all the evidence, will likely be worse than it is in presently in Oakville.

63The applicant testified that the transfer offer given to her by the Walmart Store in Okotoks has been withdrawn. Therefore, even if she does gain employment at Walmart, it may well be for fewer hours than she is presently working in Ontario. Also, the hourly rate at Walmart in Okotoks is no greater than it is in Oakville. Furthermore, the applicant's idea of earning income as a hairdresser has not been well thought out and is speculative only.

64For all these reasons, I find that the applicant has failed to provide any compelling evidence that her economic situation in Okotoks would be an improvement over that she is currently enjoying in Oakville.

65I further find that the cost of housing in Okotoks appears to be equivalent to those that are available to the applicant outside of Oakville (in Bradford or in the Brampton area, where the applicant has expressed a desire to live should she remain in Ontario). While the applicant's sister is prepared to provide some temporary housing at her home in Okotoks for the applicant and the two children, it is clear that neither the applicant's sister nor her mother are financially able to assist the applicant. Therefore, the financial burden for caring for the children will remain on the applicant, but now with no prospect of any financial help from the respondent.

66The applicant accepts that should she move to Alberta, she would need to forego child support in order to allow respondent to use these funds for travel expenses in order to be able to exercise access to the children. Since the travel costs would exceed $5000 per year, the applicant would be forfeiting at least $400 per month in child support which she obviously needs to help support these children.

67A deeper concern is the applicant's lack of due-diligence with respect to investigating the educational options for the two children. The applicant has not personally made any direct inquiries as to if or how children's special educational needs can be met in Okotoks. While the children's educational needs have been carefully scrutinized in their present school and a plan has been put into place to identify and address any of the children's potential special needs, nothing is known about the educational supports that will be available for the children in Alberta.

68The applicant's second reason for the move was to receive emotional and other support from her family. The applicant's sister has offered a place for the mother and children to reside temporarily and has done some preliminary general investigation on behalf of the applicant about available schooling, doctors and jobs. However, it is clear from the evidence of both the applicant's sister and her mother that their ability to assist the applicant is limited. The applicant's sister has her own family to look after. The applicant's mother resides in Calgary, some distance from Okotoks.

69I find that in the past the applicant's sister and mother have provided very little emotional support to the applicant. They only traveled to Ontario once during the 11 years since the applicant moved to Ontario in 2003 (i.e. only to attend the applicant's and respondent's wedding in February 2009). Their commitment and attachment to the applicant was therefore marginal at best.

70Neither the applicant's mother nor her sister, nor any other family member came to Ontario to provide emotional support for the applicant when she most needed it when she attempted to commit suicide as a result of her fragile mental health. Neither has provided any financial support to the applicant over the years. As a matter of fact, all of the financial and emotional support that the applicant has received from extended family members has been from the respondent's family. The respondent's father has assisted the applicant financially and respondent's aunt is assisting the parents by tutoring the children. These family supports would be lost if the applicant moved to Alberta, thereby making the children's situation even more difficult than it is now.

71I find that Mr Roy Reid, the social worker and clinical investigator who conducted this investigation on behalf of the Office of the Children's Lawyer, performed his mandate thoroughly and fairly considering the limited timeframe available to him. I find his evidence to be thorough and balanced. I therefore accept his evidence, assessment and recommendations and give them considerable weight.

72After considering all of the evidence, and the criteria set out in Gordon v. Goertz and the criteria of best interest set out in Section 24 of the Children's Law Reform Act, R.S.O. 1990, c. C.12 (as amended), I find that the applicant has failed to discharge the onus of proving that her proposed move to Alberta with the children is in fact in the children's best interests. Based upon all of the evidence received, I am completely satisfied that the move to Alberta proposed by the applicant is contrary to both children's best interests. I have no doubt that should the children be allowed to move to Alberta with the applicant, their lives will become very difficult indeed and the long-term negative impact upon the children would be profound.

73In coming to this conclusion, I have considered, applied and been guided by the following cases referred to by counsel for the respondent: Bilopavlovic v. Bilopavlovic, 2008 ONCA 380 (Ontario Court of Appeal), Elliot v. Turcotte, 2009 ONCA 240 (Ontario Court of Appeal) and Frayne v. Frayne, 2006 ONCJ 310 (Ontario Court of Justice), whose fact situations closely mirror the facts of this case. I have also considered the recent decision of the Ontario Court of Appeal in Decaen v. Decaen, 2013 ONCA 218 referred to by counsel for the children.

74On the mobility issue, I distinguish the case of Bjornson v. Creighton (supra) on its facts and find that it is not applicable to the facts before me. I find that MacGyver v. Richards, 1995 Carswell Ont 90, 11 R.F.L. (4th) 432, 22 O.R. (3d) 481 (Ontario Court of Appeal), having been decided before the Supreme Court of Canada decision in Gordon v. Goertz (supra) should be treated with caution.

75For all these reasons, this court finds that it is in the children's best interests to remain in Ontario, in the custody of the applicant mother, should she remain in Ontario, or should the applicant mother choose to move to Alberta in any event, (as was her position in her opening statement, which she later reversed), then the children shall remain in Ontario in the custody of the respondent father.

76I find the final order (Exhibit 13) proposed by the Children's Lawyer to be consistent with the finding of this court and is sufficiently detailed to minimize future misunderstandings or conflicts with respect to where the children should reside from time to time, with whom and upon which terms and conditions. I find the proposed details to be sensible and to properly address the best interests of these two children in this difficult case.

Costs

77Although the respondent has been substantially successful in this case by resisting the proposed move of the children to Alberta, there has been some divided success since the applicant succeeded in being awarded sole custody of the children, provided that she remains in Ontario.

78Furthermore, I find that the respondent's failure to make any financial contribution to the applicant during times that he had some ability to do so, cannot be condoned. I find that the respondent has behaved unreasonably in this respect as defined in subrule 24(4) of the Family Law Rules.

79Therefore, for these reasons, there will be no order for costs in favour of either party in this case.

This Court Therefore Orders That:

1. Mobility

1.1 This Court finds that the Applicant, LMS and the Respondent, JDM are the parents of the two children, AKM, born [...], 2006 and EJM, born [...], 2008.

1.2 The Applicant's application to move the two children AKM, born [...], 2006 and EJM, born [...], 2008 from Ontario to Alberta is hereby dismissed.

2. Custody and Access

2.1 The applicant shall have sole custody of the two children AKM, born [...], 2006 and EJM, born [...], 2008, subject to access by way of a shared parenting regime, as long as the applicant continues to reside in Ontario within a radius of 100 km from Oakville, Ontario.

2.2 Should the applicant move to Alberta, or move further than 100 km from Oakville, Ontario, without the prior written consent of the respondent or an order of this court allowing her to do so, the sole custody of the two children shall then be with the respondent.

2.3 The parent who has sole custody of the two children shall make all the important decisions about the children, after consulting with the other parent, in writing, and providing the other parent with a reasonable opportunity to provide his or her views on all major issues. The major decisions include decisions about the children's:

(a) education,

(b) major non-emergency health care,

(c) major recreational activities,

(d) religious activities, and

(e) therapy or counseling,

but failing agreement within a reasonable time, the final decision shall be that of the custodial parent.

2.4 The respondent has the same right and entitlement to information from third parties relating to the health, education and welfare of the children, without the necessity of any release, direction or acknowledgment executed by the applicant, and this order shall constitute sufficient release, authorization and direction to any third party for the release of such information.

3. Children's Residence and School

3.1 The children shall continue to reside in Ontario.

3.2 By no later than August 15, 2014, the applicant may give a written notice to the respondent as to where she will be residing with the children as of September 1, 2014. The residence may be situated in Bradford, Brampton, or elsewhere in Ontario that is within a 100 km drive of 2021 Sixth Line, unit 19 Oakville, Ontario. On at least 7 days written notice to the respondent, the applicant may enroll the children at a school in close proximity to the intended residence.

3.3 If the applicant fails to give the written notice by August 15, 2014, her residence with the children shall remain within 15 km of Post Corners Public School for the 2014 – 2015 school year, and the children shall continue to attend Post Corners Public School. In this case, the parenting schedule shall be as set out in paragraph 4.5 below.

3.4 If either party intends to move, he/she shall provide the other party with fourteen days written notice of the new address.

4. Parenting Schedule

Summer Schedule

The parenting schedule set out in the temporary order of June 25, 2014 shall constitute a final order of the court governing the parenting schedule to and including August 29, 2014, when the following parenting schedules will apply.

Usual Schedule

4.1 The parties have the right to communicate with the children at reasonable times by telephone, e-mail, and ordinary mail while either child or both children are in residence in the home of the other.

4.2 Subject to paragraphs 3.3 above and 4.5 below, the usual parenting schedule shall be as follows:

(i) The children shall reside in the respondent father's care:

(a) every Tuesday (at 6 p.m. or after school/daycare whichever shall be the earlier event) until Wednesday (drop off at school/daycare or 8:30 a.m. if not school or day care);

(b) every Thursday (at 6 p.m. or after school/daycare whichever shall be the earlier event) until 7:00 p.m.;

(c) alternate weekends from Friday (at 6 p.m. or after school/daycare whichever shall be the earlier event) until Sunday (at 6:30 p.m.).

Provided that access shall be extended by twenty-four hours when there is a holiday/professional development (p.d.) day; and

(d) any additional time as mutually agreed.

(ii) The children shall reside in the applicant's care at all other times.

4.3 At the respondent's discretion, if the distance is too far between the parents' homes, he may advise the applicant in writing if he prefers that the Tuesday access be eliminated or changed to an evening visit.

4.4 Transportation of the children shall be shared if the parties reside more than 15 km away from one another. Otherwise, the respondent or his designate shall pick up and drop off the children for his access visits unless otherwise agreed.

4.5 If, by November 1, 2014, the respondent is residing within 15 km from the applicant's residence with the children, the following usual schedule shall replace the schedule set out in paragraph 4.2 above:

(i) The children shall be in the respondent's care,

(a) alternate weekends, commencing from Friday at 8:30 a.m. until Monday at 8:30 a.m. and;

(b) every Wednesday from 8:30 a.m. to Friday at 8:30 a.m.

(ii) The children shall be in the applicant's care:

(a) alternate weekends commencing from Friday at 8:30 a.m. until Monday at 8:30 a.m., and

(b) every Monday from 8:30 a.m. to Wednesday at 8:30 a.m.

Holiday Schedule

4.6 The holiday residence schedule overrides the usual schedule.

4.6.1 School Spring Break - The school holiday will be shared with an exchange on Wednesday of the holiday week. Otherwise, as per the usual schedule.

4.6.2 Easter Weekend - As per the usual schedule. The non-resident parent shall have 4 hours of time to celebrate Easter, on a date and time as agreed to by the parties.

4.6.3 Mother's Day - if the children are not otherwise with the mother on this weekend, the children will reside with her on Mother's Day weekend, from Saturday at 7:00 p.m. until the children return to school on Monday.

4.6.4 Father's Day - if the children are not otherwise with the father on this weekend, the children will reside with him on father's day weekend, from Saturday at 7:00 p.m. until the children return to school on Monday.

4.6.5 Summer Schedule 2015 Onwards - Commencing on the first Friday after school ends, the children shall reside with each parent in accordance with the schedule set out in paragraph 4.5 above, subject to paragraph 4.6.6 below. The usual schedule shall recommence on the Friday before the children return to school. If the children are enrolled in subsidized day care, the parents shall ensure that they attend sufficiently to ensure that the spots are not jeopardized.

4.6.6 Each parent may have up to two weeks (consecutive or non-consecutive) of uninterrupted time with the children during the summer. The vacation weeks shall be decided by March 1st annually, with the applicant, having the first option in odd numbered years, and the respondent in even numbered years.

4.6.7 Thanksgiving Weekend - As per usual schedule. The non-resident parent shall have four hours of time to celebrate Thanksgiving, on a date and time as agreed to by the parties.

4.6.8 Christmas - the children will be with the respondent from 2:00 p.m. on December 24 until 2:00 p.m. on December 25, and with the applicant, from 2:00 p.m. on December 25 until 2:00 p.m. on December 26 in odd numbered years. The schedule will alternate in even numbered years. The parties will share equally the remainder of the children's Christmas school break. The children will reside with the respondent for the first half of the break in odd-numbered years, and with the applicant for the first half in even-numbered years.

4.6.9 Children's Birthdays - As per the usual schedule.

5. Other Parenting Provisions

5.1 If a child is ill and cannot attend school/daycare, then the parent who is responsible for that child from 8:30 a.m. onwards shall be responsible for arranging appropriate care for that child.

5.2 Neither parent will disparage the other parent, or will allow anyone else to disparage the other parent in the presence of the children.

5.3 Neither parent shall discuss the following with the children: concerns about the schedule; concerns about the other parent or extended family; concerns about past, current, future litigation/conflict between the parents.

5.4 The children may contact either parent when he/she wishes.

5.5 The parent caring for the children at the time may consent to emergency medical treatment. If a child needs emergency medical care while with one parent, that parent shall promptly notify the other parent of the emergency.

5.6 Until such time the communication between the applicant and respondent is no longer prohibited by conditions or otherwise, the applicant shall communicate with the respondent's father about any issues related to the children.

5.7 Once the conditions limiting communication between the applicant and the respondent are removed or varied, the applicant and respondent may communicate by:

(a) Face-to-face meeting;

(b) Telephone call;

(c) E-mail; and,

(d) Communications book.

5.8 Neither party shall consume alcohol or take any illegal prescription drugs (except as prescribed by his/her doctor) for at least twelve hours before he/she commences spending time with the children as outlined above, or during his/her care of the children. If either parent fails to comply, then his/her access shall be suspended.

5.9 Neither parent shall remove the children from Canada without the written consent of the other parent, such consent not to be unreasonably withheld.

5.10 If either parent plans a vacation [5 days or more] with the children, then, that parent shall give the other parent a detailed itinerary at least 14 days before it begins, including the name of any flight carrier and flight time, accommodation, including address and telephone numbers, and details as to how to contact the children during the trip.

5.11 If either parent plans a vacation without the children, then, that parent shall give the other parent a telephone number where he/she can be reached case of emergency or if the children wish to contact parent.

5.12 If required, the applicant may apply for a passport in the name of the children and the respondent shall consent. The passport shall be kept by the applicant, but provided to the respondent for traveling with the children, if needed, and returned to the applicant when the children return.

5.13 If either parent experiences mental health issues, or problems with alcohol or drugs (illegal or prescribed medication) that affect his/her ability to care for the children, the usual schedule shall immediately be suspended and the children shall reside primarily with the other parent, until such time as the parties agree, or the court orders otherwise.

5.14 Except for pickup and drop off of children before or after school or daycare, access exchanges shall take place at Walmart in Oakville, Ontario except for Sundays when Leah will pick up the children from the paternal grandmother's house. This shall continue until the parties agree otherwise in writing or through the Respondent's father, at least 48 hours before access exchange.

5.15 Each parent or his/her designate may pick up and drop off the children for access exchanges.

5.16 Each parent shall be responsible for the care of the children when they are in his/her care, which may also include the children being cared for by third parties, or attending a summer camp program.

6. Support

6.1 The respondent shall pay to the applicant for the support of the two children the sum of $400 per month commencing on July 1, 2014, and continuing on the first day of each month thereafter until further order of this court, based on income imputed to the respondent of $27,300 per year.

6.2 The respondent shall pay to the applicant his proportionate share of any special expenses incurred by the applicant.

6.3 All support payments shall be made to the Director, Family Responsibility Office on behalf of the applicant and a Support Deduction Order shall issue. The Support Deduction Order shall not apply to the July 1, August 1, and September 1, 2014 payments.

6.4 Should the respondent's sole source of income hereafter be from Ontario Works or from the Ontario Disability Support Plan (ODSP), the respondent shall continue to pay guideline child support to the applicant, based on his then total income, whether the Director, Family Responsibility Office is able to attach such payments or not.

7. Dispute Resolution

7.1 If the applicant and respondent disagree about their parenting, they shall first refer the dispute to mediation to assist them to resolve the issue, and only if mediation has been tried and failed to resolve the dispute, may the matter be referred to this court.

7.2 In the event of an urgent issue that cannot be delayed for mediation, the matter may be brought to the Court by either party.

8. Costs

8.1 There will be no order for costs in favour of either party.

80In the event that any portion of this schedule is not clear or requires some adjustment in order to reflect current circumstances, the parties may adjust any portions of this schedule by agreement in writing with the assistance of their counsel and counsel for the OCL and failing such agreement, I may be spoken to when available to make any necessary minor variations.

Released: July 28, 2014

Signed: "Justice Theo Wolder"