citation: "Michael Romita v. Jennifer Humphries" parties: "Michael Romita v. Jennifer Humphries" party_moving: "Michael Romita" party_responding: "Jennifer Humphries" court: "Ontario Court of Justice" court_abbreviation: "ONCJ" jurisdiction: "Ontario" case_type: "trial" date_judgement: "2018-01-05" date_heard:

• "2017-08-29"
• "2017-08-30"
• "2017-08-31"
• "2017-09-01"
• "2017-09-05"
• "2017-09-06"
• "2017-09-07"
• "2017-09-08"
• "2017-12-13"
• "2017-12-14"
• "2017-12-15" applicant:
• "Michael Romita" applicant_counsel:
• "S. Moss" respondent:
• "Jennifer Humphries" respondent_counsel:
• "M. White" judge: "Philip J. Clay" winning_degree_applicant: 4 winning_degree_respondent: 2 judge_bias_applicant: 1 judge_bias_respondent: 0 year: 2018 decision_number: 18 file_number: "Brampton 875/15" source: "https://www.canlii.org/en/on/oncj/doc/2018/2018oncj18/2018oncj18.html" summary: > A custody and mobility trial involving a three-and-a-half-year-old child, Logan. The father sought joint custody with shared parenting time and opposed the mother's relocation from Mississauga to Deer Lake, Newfoundland and Labrador. The mother sought sole custody and permission to relocate with her parents. The court found evidence of domestic violence perpetrated by the father against the mother during their relationship. The court awarded sole custody to the mother and permitted relocation to Newfoundland and Labrador. The court established a detailed access schedule involving electronic communication and extended visits during school holidays, with the father bearing responsibility for travel costs to visit the child in Newfoundland and Labrador. Child support and spousal support were also ordered. interesting_citations_summary: > The decision provides significant guidance on custody determinations in high-conflict relationships involving domestic violence allegations. The court applied the Kaplanis factors for joint custody and found that the absence of effective communication, combined with evidence of domestic violence and power imbalance, precluded a joint custody order. The decision extensively discusses the Gordon v. Goertz framework for mobility cases, emphasizing that the best interests of the child must focus on the custodial parent's emotional, psychological, and social well-being. The court rejected a presumption in favour of the custodial parent while recognizing that a well-functioning, happy custodial parent better serves the child's interests. The decision also addresses the practical challenges of long-distance parenting and establishes a structured access regime using electronic communication and scheduled visits. final_judgement: > Sole custody awarded to the mother. Permission granted for relocation to Deer Lake, Newfoundland and Labrador. Access schedule established with electronic communication (FaceTime/Skype) on specified days and extended visits during school holidays. Child support of $702 per month plus $75 per month for section 7 expenses. Spousal support of $500 per month plus retroactive arrears. Each parent responsible for their own travel costs and the child's ticket when accompanying the child to visits. keywords:
• Custody
• Mobility
• Relocation
• Domestic violence
• Joint custody
• Spousal support
• Child support
• Long-distance parenting
• Best interests of the child
• Kaplanis factors
• Gordon v. Goertz areas_of_law:
• Family Law
• Custody and Access
• Relocation
• Domestic Violence
• Child Support
• Spousal Support cited_cases: legislation:
  • title: "Children's Law Reform Act, R.S.O. 1990, c. C.11, s. 24" url: "https://www.ontario.ca/laws/statute/900c11"
  • title: "Courts of Justice Act, R.S.O. 1990, c. C.43, s. 112" url: "https://www.ontario.ca/laws/statute/900c43" case_law:
  • title: "Gordon v. Goertz, [1996] 2 S.C.R. 27" url: "https://www.minicounsel.ca/scc/1996/191"
  • title: "Kaplanis v. Kaplanis" url: "https://www.minicounsel.ca/oca/2005/1625"
  • title: "Bjornson v. Creighton" url: "https://www.minicounsel.ca/oca/2002/45125"
  • title: "Graham v. Bruto, 2008 ONCA 260" url: "https://www.minicounsel.ca/oca/2008/260"
  • title: "Ladisa v. Ladisa, 2005 O.J. No. 275" url: "https://www.minicounsel.ca/oca/2005/1625"
  • title: "Ursic v. Ursic" url: "https://www.minicounsel.ca/oca/2006/18349"
  • title: "Andrade v. Kennelly, 2007 ONCA 898" url: "https://www.minicounsel.ca/oca/2007/898"
  • title: "Porter v. Bryan, 2017 ONCA 677" url: "https://www.minicounsel.ca/oca/2017/677"
  • title: "Ganie v. Ganie, 2015 ONSC 6330" url: "https://www.minicounsel.ca/scj/2015/6330"
  • title: "MacDonald v. Robinson, 2013 ONSC 86" url: "https://www.minicounsel.ca/scj/2013/86"
  • title: "Boudreault v. Charles, 2014 ONCJ 273" url: "https://www.minicounsel.ca/ocj/2014/273"
  • title: "Greenfield v. Garside" url: "https://www.canlii.org/en/on/onsc/doc/2003/2003canlii53668/2003canlii53668.html"
  • title: "MacKenzie v. Newby" url: "https://www.canlii.org/en/on/onca/doc/1999/1999canlii3393/1999canlii3393.html"
  • title: "Lebrun v. Lebrun, [1999] O.J. No. 3393 (SCJ)" url: "https://www.canlii.org/en/on/onsc/doc/1999/1999canlii3393/1999canlii3393.html"
  • title: "Woodhouse v. Woodhouse, 29 O.R. (3d) 417" url: "https://www.canlii.org/en/on/onca/doc/1996/1996canlii902/1996canlii902.html"
  • title: "Woods v. Woods, 110 Man. R. (2d) 290" url: "https://www.canlii.org/en/mb/mbca/doc/1996/1996canlii18119/1996canlii18119.html"
  • title: "Chatterson et al. v. M&M Meat Shops, 2014 ONSC 1897" url: "https://www.canlii.org/en/on/onsc/doc/2014/2014onsc1897/2014onsc1897.html"

ONTARIO COURT OF JUSTICE

DATE: January 5, 2018

File No.: Brampton 875/15

BETWEEN:

MICHAEL ROMITA

Applicant

— AND —

JENNIFER HUMPHRIES

Respondent

Before: Justice Philip J. Clay

Heard on: August 29, 30, 31, September 1, 5, 6, 7, 8, and December 13, 14, 15, 2017

Reasons for Judgment released on: January 5, 2018

Counsel:

• Ms. S. Moss for the Applicant
• Mr. M. White for the Respondent

CLAY J.:

PROCEDURAL BACKGROUND

1The Applicant father Michael Romita ("Michael") brought an urgent without notice motion to this court seeking an order to prevent the Respondent mother ("Jennifer") from moving with their child Logan Humphries, born April 4, 2014, from Mississauga to Deer Lake Newfoundland ("N.L."). At the same time he issued an Application seeking custody of the said child. I have referred to the parties by their first names as some of the evidence relates to a period when they were not parents of a child and because Michael's brother and the mother's father gave evidence and I wanted to avoid any confusion over last names.

2On September 2, 2015, the Honourable Justice P.W. Dunn made a without prejudice temporary order that the child was not to be removed from the Region of Peel. Jennifer then filed an Answer in which she sought custody and the right to move with the child to Deer Lake.

3The matter was case managed by the Honourable Justice S.V. Khemani. She made two temporary orders and both were pursuant to Minutes of Settlement. On November 25, 2015 a without prejudice order was made that the parties shall share joint custody of the child and his primary residence shall be with Jennifer. That order set out Michael's access and required that he pay child support in the amount of $594 per month. On May 12, 2016 a temporary order was made that provided for Michael to have phased in overnight access to the child. This access schedule was still in place at the time of the trial.

4The matter was scheduled for a seven day trial to begin during the sittings that started August 28, 2017. It soon became apparent that the matter could not be concluded in that sitting and it was adjourned for three more days and was completed on December 15, 2017.

EVIDENCE ORDERS

5The order made at the Trial Management Conference required that all witnesses with the exception of the parties and the clinical investigator from the Office of the Children's Lawyer shall give their direct evidence by way of affidavit and be available for cross-examination.

6The parties each filed voluminous document briefs. They were filed as exhibits as each document in the briefs had been disclosed prior to the trial. Both parties wanted to play audio recordings at the trial. I expressed some concern with the secret taping of the other party in the course of a custody proceeding and noted that there were public policy concerns if the court were to condone this behaviour. Both counsel emphasized that these recordings were critical evidence upon which they had based their trial strategy. As its admission was on consent I permitted the parties to play audio recordings. I should note that at least one of the parties was aware of the taping in every instance and that neither party had any real concerns with respect to misleading editing. Ms. Moss had obtained a transcription of the audio recordings that she wished to introduce though the work had not been done by a certified reporter in the province of Ontario. Mr. White had not had the audio tapes transcribed but Ms. Moss had her office prepare a transcription of the audio tapes that Mr. White wanted to rely upon.

7Counsel agreed that the evidence before the court was not the uncertified transcripts but the audio actually played in court. That being said no issue was taken at the trial as to the accuracy of the transcripts of those recordings that were played. The uncertified transcripts were received and marked as Exhibit A. The transcripts were filed as an aid to the audio evidence. Both counsel said that it was necessary that the audio tapes be played in order to understand not just the content of the tapes but the tone of voice used by each of the parties in the disputes recorded.

8As is usually the case in a family law trial there were basic facts that were not in dispute. There were other facts upon which the parties completely disagreed and there were yet more facts to which they each brought their own interpretation. There were vigorous, indeed aggressive, cross-examinations of each party. I think it is most useful to provide a brief overview of the history of the parties, their relationship, their parenting and their ability to communicate and then to explore the evidence in more detail in each area.

OVERVIEW

9This matter is ultimately about whether Jennifer should have custody or whether there should be joint custody of three and a half year old Logan. If Jennifer obtains custody the issue is whether she can move his primary residence to Deer Lake.

10The parties met in 2005 at their workplace Boston Pizza in Peel region. Michael was a 17 year old high school student who was living with his parents. Jennifer was a 24 year old manager at the restaurant and at that time lived on her own. By 2007 the parties were dating on and off. After they began dating Jennifer moved back in with her parents.

11The relationship continued to be off and on and the parties were on a year-long break when Jennifer unexpectedly became pregnant in the late summer of 2013. By October 2013 the parties moved into an apartment at 14 John St. in Brampton. Both parties stated that they continued to argue and fight. Despite the poor relationship Jennifer testified that she wanted to marry Michael. They became engaged just before Christmas 2013. Logan was born on April 4, 2014. Michael was then employed on a full time basis in downtown Toronto. In or about August 2014 they were evicted due to all of the yelling and screaming. They then moved into a basement apartment at 114 Bayhampton Road in Brampton. Both parties admitted that throughout their entire relationship they continued to argue frequently. Both admitted that the arguments did result in some physical altercations. The nature of the altercations was very much in dispute.

12On August 9, 2015, Michael had finally decided that the relationship was not going to work and he told Jennifer that he was leaving and would not return. Michael was clearly determined to have a major role in the child's life. While aspersions were cast on his motivations for wanting to be so involved there was no doubt that from the beginning of the separation he exercised access at just about every opportunity and asked for more time with the child than Jennifer was willing to agree to.

13The spectre of the move to N.L. has made this matter incredibly contentious. Jennifer seeks an order that Logan can be relocated to Deer Lake to live with her and his maternal grandparents Tom and Wanda Humphries. Michael seeks an order that Logan remain in the Peel region where Jennifer and Michael should share joint custody and equal time.

14The Maternal Grandparents ("MGP") are still in Peel region but not because they want to be. The Maternal Grandfather ("MGF") has not sold his specialized sandblasting business only because his daughter and Logan reside with him and his retirement plan includes providing a home for Jennifer and Logan in their home town of Deer Lake.

15The MGPs retirement plans have been put on hold pending a determination of whether Logan will be permitted to reside in Deer Lake. In the last two years Logan has developed a close and loving relationship with Michael, Michael's parents, Michael's three brothers and all of the extended family in the Greater Toronto Area.

16The above overview will hopefully provide some context for the consideration of the evidence set out below.

THE ISSUES

1. Should Jennifer have custody of the child or should a joint custody order be made?

2. Should Jennifer be permitted to move with the child to Deer Lake, N.L.?

3. If the move is permitted what access should the child have to Michael?

4. What amount of child support should Michael pay to Jennifer and when should it begin?

5. What order should be made for the child's s.7 expenses under the Child Support Guidelines?

6. What amount of spousal support should be paid by Michael to Jennifer and what terms, if any, should be placed upon that support?

17Most of the evidence in this trial was directed to the custody and mobility issues. I will address those issues first. I will set out the applicable law, the evidence with my factual findings and then my analysis which will be the application of the law to my factual findings. I will then turn to the financial issues.

CUSTODY AND MOBILITY LAW

Custody

18In this matter it is necessary to make a determination as to custody before moving on to the issue of mobility. In Bjornson v. Creighton, 2002 CarswellOnt 3866 (Ont. C.A) Austin J.A. addressed the custody/mobility issue at paragraph 19 as follows:

[19] In applying the guidelines provided by Gordon to the instant case, two matters require consideration. The first is that at the outset of the trial, the parents were "equally entitled to custody". As a result, for analysis purposes, the parents could not be divided into "custodial parent" and "access parent". The second is that the organization of his reasons is such that the trial judge appears to have decided the question of mobility first and the question of custody second. With respect, that strikes me as putting the cart before the horse.

19In the matter before me there is a without prejudice joint custody order that designates Jennifer's home as the child's primary residence. It is necessary to consider the parenting roles taken on by each of the parents to identify the parenting arrangement that existed at the time of trial. This is because the case law dealing with the mobility issue addresses the merits of a move by reference to the custodial designation and the parenting arrangement.

20The statute that governs the custody and access issues in this matter is the Children's Law Reform Act. The relevant section is s. 24 and the sections relevant to this matter read as follows:

Merits of application for custody or access

24 (1) The merits of an application under this Part in respect of custody of or access to a child shall be determined on the basis of the best interests of the child, in accordance with subsections (2), (3) and (4). 2006, c. 1, s. 3 (1).

Best interests of child

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

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

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

(ii) other members of the child's family who reside with the child, and

(iii) persons involved in the child's care and upbringing;

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

(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;

Past conduct

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

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

(b) if the court is satisfied that the conduct is otherwise relevant to the person's ability to act as a parent. 2006, c. 1, s. 3 (1); 2016, c. 23, s. 7 (2).

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;

(5) For the purposes of subsection (4), anything done in self-defence or to protect another person shall not be considered violence or abuse. 2006, c. 1, s. 3 (1).

21In this matter Jennifer sought sole custody. Michael sought sole custody in his pleadings but his counsel made it clear at the outset of the trial that at that time he sought joint custody with shared parenting time and what is often described as a parallel parenting regime. The latter term is not set out in legislation but has been adopted in some cases where each parent makes a final decision in one area, i.e., health decisions by one parent, i.e., education decisions by the other.

22In determining whether this is an appropriate case for joint custody I must look to the case law. The leading case in Ontario is Kaplanis v. Kaplanis. In that case the Court of Appeal set out a number of factors that must be present for a court to consider a joint custody order. They can be summarized as follows:

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

2. It cannot be ordered in the hope that it will improve their communication.

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

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

5. 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.

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

23In Graham v. Bruto, 2008 ONCA 260, the Court of Appeal stated clearly that the joint custody and parallel parenting option was not in the best interests of the child of that family because the parents disagreed on too many important issues that affected the child's best interests.

24There is a line of cases that have awarded joint custody notwithstanding intense conflict between the parents. It begins with Ladisa v. Ladisa, 2005 O.J. No.275 (C.A.). In that decision, released at the time of Kaplanis, the court did not interfere with the joint custody order. Despite the intense conflict between the parents, in emergencies and when the parents had an opportunity to consider the real interests of their children, they behaved appropriately. They coexisted at the doctor, at school functions and at activities. The court found that those circumstances supported a joint custody order.

25In Ursic v. Ursic the court found that joint custody or parallel parenting was considered necessary to keep the "innocent" parent in the child's life. The Ontario Court of Appeal has upheld joint custody or parallel parenting in the absence of reasonably effective communication between the parents only where it has been necessary to sustain a child's contact with a parent who has been subjected to a campaign of alienation. A joint custody order was upheld where a mother had laid down a pattern of resisting the father's access and was found by the trial court to be unable to appreciate the importance of his relationship with their children. Andrade v. Kennelly, 2007 ONCA 898.

Mobility

26Any analysis of mobility law in Canada begins with the seminal case of Gordon v. Goertz, [1996] 2 S.C.R. 27. The key principles to be applied are set out by McLachlin J. (as she then was). In paragraphs 49 and 50 of the judgment she sets out the ultimate task for this court. The first three sub-paragraphs of 49 deal with variations of final orders that are not applicable to the facts herein. The others are:

4. The inquiry does not begin with a legal presumption in favour of the custodial parent, although the custodial parent's views are entitled to great respect.

5. Each case turns on its own unique circumstances. The only issue is the best interest of the child in the particular circumstances of the case.

6. The focus is on the best interests of the child, not the interests and rights of the parents.

7. More particularly the judge should consider, inter alia:

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

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

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

(d) the views of the child;

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

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

(g) disruption to the child consequent on removal from family, schools, and the community he or she has come to know.

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

27In Porter v. Bryan, 2017 ONCA 677 the court found that the mother had a valid and compelling parenting-based reason for the move: it was necessary to enable the primary caregiver to remain financially viable while providing care for the child. The Court found that the trial judge had made an error in not identifying the mother as the primary caregiver. They held that just because there is a joint custody order and shared parenting that does not preclude one parent from being the primary caregiver.

EVIDENCE ON CUSTODY AND MOBILITY

The parties' early relationship

28There was a great deal of evidence led as to the nature of the relationship between the parties. This evidence was relevant to the important issues of whether there was domestic violence and a power imbalance between them that impacted upon their ability to parent and to communicate with each other.

29Michael stated that he was seven years younger than Jennifer and initially she was his manager at work. Jennifer appeared to have no other friends and she changed jobs frequently. Jennifer always seemed quite dependent upon her parents both emotionally and financially. He said Jennifer's parents were traditional and very strict and Jennifer was fearful of doing things her parents would not approve of. She did not want to tell her parents that she was pregnant until she could tell them she was engaged. In giving evidence Michael expressed on many occasions his frustrations with Jennifer. He felt that she needed help in order to succeed, financially and otherwise, and as he had done well at such a young age he thought she should take his advice and follow his direction.

30Michael clearly had a plan to get ahead financially. He also presented as very eager and even anxious to become a father when he learned that his erstwhile girlfriend was pregnant. Michael presented as someone who had a plan for his life and this resulted in him convincing himself that he could mould his girlfriend into the wife and mother he wanted her to be.

31Jennifer was 25 when the parties met and 36 at the time of trial. While Michael had a plan for his life Jennifer had a dream for hers. Jennifer presented as somewhat emotionally immature. She had left her parent's home in Deer Lake N.L. to attend St. Mary's University in Halifax. She was unable to succeed socially or academically. She yearned to return home and she did so after the first term. After 18 months back in Deer Lake she made another attempt at St. Mary's but she was academically dismissed when she failed or dropped too many courses.

32By this time Jennifer's parents had moved to Mississauga and she moved to join them. She found a few jobs but never settled anywhere. She moved out of her parent's home but remained very connected to them both financially and emotionally. She was 25 years old when she became very attracted to a 17 year old high school kid who worked on her shift. It was telling that Jennifer had no other emotional relationships in her life outside of her parents and her young, on again off again, boyfriend.

33In the early years of their relationship the parties spent time at their respective parent's homes. Jennifer and the paternal grandparents appear to never have enjoyed a close relationship. The evidence was that the couple had arguments in front of both sets of parents. Michael was quick to point out that he was not the dominant one in the relationship because Jennifer had no issue raising her voice at his family's house. He noted that she would even yell at his parents. Much later it appears that she acted in more of an adolescent role at her own parent's home when she called 911 on her own father for not permitting her to leave his home to go back with Michael. Mr. Humphries had determined that Michael had acted in an abusive manner with Jennifer and he wanted to protect her from harm.

34Michael's position throughout the trial was that there was no domestic violence or power imbalance in this relationship because Jennifer was much older, yelled at him more than the reverse and always tried to prevent him from leaving her. The evidence taken as a whole shows the age gap to be illusory. Jennifer was socially isolated and in her relationship with her parents often acted more like a teenager than a mature adult.

35Jennifer's plan in October 2013 was to marry Michael and be a stay at home mother to their young child. Jennifer's plan at trial was to be the primary caregiver to Logan while finishing off her university education to be in a position to obtain a better paying job once Logan was in full time school. Michael had a three year college diploma in architectural technology and had worked his way into a full time job with Stantec a large company that design institutional buildings. When he obtained that job in downtown Toronto his salary jumped to $65,000 a year. He had a plan to be a successful architectural technician and an active and involved father. Jennifer had dreams of a university degree and a well-paying job. She had not really done anything to fulfill those dreams. Both parties presented as emotionally insecure people who desperately wanted to prove themselves to be good parents. When they felt that their plans and dreams were being thwarted by the other they acted in ways that were mutually destructive.

Domestic violence

36The parties moved in together in October and became engaged in late November 2013. They had a terrible argument just after Christmas 2013. Jennifer said it was on Boxing Day. It was clearly quite a few days before January 4, 2014. Jennifer said that Michael became enraged and pushed her against the door with his hands at her throat. She says he punched her pregnant belly with a closed fist. She said she was terrified. She did not call the police. Her parents were in Deer Lake for Christmas. She was supposed to pick them up at the airport on January 3. Her text message to her father that day said that Michael was angry and she could not leave the home. She took photos of her body on January 4. The photos were filed in the document brief. They depict a faint purple roundish bruise on the belly, and long yellow and purple marks/bruises from the neck area to near the end of the clavicle.

37Jennifer said that she was worried on January 6 that she could not feel the baby's heartbeat. The parties went to the Brampton Civic hospital together. Jennifer was examined. She told the doctor and/or nurse that she had bruised her belly when she ran into a door knob. It appears that the bruising all around her neck was not noted. Jennifer was assured that the baby was fine and the parties went home. Jennifer did not tell Michael about the photos that she had taken until he was shown them at the questioning in this matter in June 2016. Michael was aggrieved that Jennifer had taken photos of herself without telling him and that she had saved them for possible use later. He felt betrayed by that. He became very emotional and tearful when he was shown the photos and asked if he hit Jennifer when she was nearly six months pregnant. He said that he had never used force upon Jennifer during her pregnancy. He denied punching her in the belly. He said that "I would never hit my child in the womb". He stated that being accused of that gets him angry. He said that to allege that he would hit his unborn child was the lowest allegation a person can make. It did appear that Michael was most concerned about an allegation of harm to his unborn child and not so much about an allegation of harm to Jennifer.

38Under cross-examination Michael said that the conflict between the parties was "consensual violence". He explained this odd phrase to mean that if he hit Jennifer it was always in self-defence and usually when he was trying to leave the apartment. He admitted to the OCL that there had been some physical altercations but he did not admit that he caused bruising to Jennifer when she was pregnant. Michael said that he too was abused. Jennifer often scratched and clawed him. With respect to the level of bruising Michael said that Jennifer bruises easily. He was not sure that the purplish yellow marks around her neck were caused by him and even suggested that Jennifer might have caused them herself. This might explain why they never talked about the incident and why she never told him she had taken photos. Michael denied that he was insistent on attending the hospital with Jennifer to prevent her from explaining what happened. He said they were anxious first time parents and on two occasions he accompanied her to the hospital when she was concerned about lack of fetal movement. Michael stated throughout a vigorous cross-examination that Jennifer was not a victim - the parties were equally responsible for the arguments that led to physical conflict.

39It was quite clear that if he was not confronted with the photo evidence that Michael would never have admitted any physical confrontations with Jennifer when she was pregnant. Even while staring at the photos and being reminded that there was no one else in the house who could have caused the bruises Michael dissembled and finally reluctantly conceded that it was possible that the bruises were the result of an incident in which Jennifer was yelling at him and "he may have pushed her away defending himself". He insisted that he never slapped her or punched her. Michael said that he did not grab Jennifer by the neck. He said he simply pushed her away with a flat hand against the upper part of the chest (he showed the sternum area). It is quite possible that Michael is ashamed and cannot bring himself to believe that what he did could have caused such extensive bruising. It is also possible that he was in a blind rage and did not intend to actually punch his pregnant fiancée.

40Jennifer's account of what occurred was clear and unshaken by cross-examination. It was consistent with the photographic evidence. Jennifer claimed that the first violent incident occurred on December 26, 2013. She said that Michael wanted to leave but she wanted to talk it through. He became "really, really angry". She said he did have his hands around her throat and he did punch her. She also stated that shortly after the incident Michael said he was sorry and that he did not mean to cause her harm. That is why she did not call the police. She said she "wanted to believe" that it would not happen again. She took the photos because Michael would not admit that he punched her. She kept the photos and did not tell him about them because she hoped he would change and she would never have to use them. I think that in some part of her mind she knew that the relationship might not improve and she might require some proof of what had gone on.

41Neither party could accurately remember the exact sequence of events between December 26 and the attendance at the hospital on January 4. Jennifer said there was a terrible argument with yelling and screaming on January 3, 2014. The text between Jennifer and the MGF was filed in which she tells him that she cannot pick him up from the airport because Michael is in an angry mood and she did not want to leave.

42Jennifer said Michael choked her on two occasions. One was when he had his hands around her neck and punched her in the belly. She says that the other was when she tried to block him from leaving the apartment and he "strangled" her. She said when he was doing this she spit at him in an effort to get free. She ran into the bedroom, grabbed her cell phone and tried to record what was happening. Mr. White played the tape in court. The tape was chilling. Michael could be heard yelling in a very angry voice that he was trying to suppress through clenched teeth. He said that Jennifer had spit on him while he was working on the computer. Jennifer said that Michael was trying to "choke her out". In a later audio recording Jennifer tried to get Michael to admit that he strangled her while she was pregnant. He did not directly do so but he was somewhat mocking of her allegations and said "did you pass out?"

43The evidence was that Jennifer did not seek medical attention until January 6 and when she did so it was to report a lack of fetal movement not to have her injuries looked at. She claimed that the unlikely doorknob explanation was a way to get the hospital staff to enquire further as to what really happened. She may well think that now, but at the time Jennifer still wanted to believe Michael would change and she still had plans of marrying him. She chose to ignore or explain away the mounting evidence that this always dysfunctional relationship had now become abusive.

44Jennifer provided photos of another incident in which she sustained bruising to her arms. She testified that this incident occurred in March 2015 and she took the photos on March 16 and 19 of that year. One year old Logan's face can be viewed in one photo. There was evidence that the police were called to the home on March 24, 2015 but the parties told the police it was a verbal argument only and no further action was taken. The conflict between the parties worsened over the spring of 2015. Michael left the apartment on a few occasions to stay with one of his brothers. The longest time he was out of the home was for three days in May 2015. The parties had argued over what they called "crib training". They had not slept together since the child was born as Jennifer insisted on co-sleeping with the child. Michael thought that at a year old it was well past time that Logan be introduced to a crib though even he thought that this could be a trial and error process that would take some time. Jennifer refused to budge and Michael simply left the apartment. He imposed some conditions for his return. Jennifer said she felt abandoned and vulnerable so she agreed to his terms.

45It is not difficult to conclude that as a first time parent Jennifer was overly protective of the child and afraid to allow Michael to do much more than play with the child in the first year. However, by this time Jennifer had been physically and emotionally abused by Michael for some time and while she could not bring herself to leave the relationship she had no confidence and trust in Michael.

46There was a very concerning incident when Logan was about one and a half years old. The parties started yelling at each other when Michael was holding Logan. Jennifer tried to take Logan from Michael and he resisted her. Michael said that she tried to physically pull the child away from him and he tried to twist away leading to a literal tug of war over the child. He alleges that when she hit him on the head with her closed fist he released the child and walked away. Not surprisingly Jennifer recalls the incident differently and said that it was Michael that struck her with one hand while holding Logan with the other.

47There was a lot of evidence that Michael did not simply make suggestions to try to constructively work with Jennifer as new parents. He insisted that he knew better and used the threat of leaving the relationship to try and get his way. He left on more than one occasion for an indefinite period (albeit they ended up being short). Intentionally or otherwise he took advantage of her insecurities and vulnerabilities to impose his own conditions. Michael knew Jennifer was financially and emotionally dependent upon him. He was not fully committed to the relationship. He wanted to be a father to Logan on his terms. He was prepared to leave his young son with the young child's distraught mother to get his way. He has stated in this litigation that leaving was the only way to ensure that he would be allowed a fair opportunity to parent. In fact, I find that Michael left Jennifer because he was never fully committed to the relationship and he was not committed to co-parenting with Jennifer. He simply felt that he should have the child at least half of the time.

Other witnesses

48Both parties filed affidavits from family members and friends that touched upon the issue of whether there was domestic violence and a power imbalance in this relationship. They also commented on the ability of each party to parent the child.

49Neither party alleged that the other was not a competent parent. Each of them loved Logan and enjoyed a very positive relationship with him. Both parties had the ability to meet Logan's instrumental needs. Both would ensure that he was well cared for and they would attend to his medical, educational and all other needs. The real issues for a custody determination were whether there was a power imbalance between the parties due to domestic violence and their dysfunctional interpersonal relationship and whether the parties had the ability to communicate effectively by putting Logan's best interests ahead of their own needs.

Ambalavaner Sivarajh

50Michael filed an affidavit dated July 14, 2017 from his landlord Ambalavaner Sivarajh. The landlord rented out the basement of his home on Bayhampton to the parties in or about August 2014. Both parties lived there until the August 9, 2015 separation. Michael left then but moved back in by the end of the month when Jennifer went to live with her parents.

51Mr. Sivarajh stated in his affidavit that he never heard a male voice yelling at any time in the apartment. The only raised voice he ever heard was Jennifer's. It was clear that the landlord and Jennifer did not get along. She was home all day while Michael was at work. She complained to him about the heat, smoke (which he said she should have known was incense) and the ability to do laundry. On the other hand Mr. Sivarajh reduced the rent when Michael kept the apartment and they have become friends over time.

52Mr. Sivarajh was about a poor a witness as it is possible to call. He adamantly denied speaking to Ms. Haroon from the OCL and then after much prompting recalled the conversation. The only thing that can be gleaned from his evidence is that he never personally witnessed the conflict between the parties and that Jennifer had a tendency to raise her voice.

Jenna Revell

53Ms. Revell was Michael's former girlfriend. They met in college in 2009. She had dated Michael in 2012 during a time when he had broken up with Jennifer and then again on a few occasions when the parties were on a break from their relationship in the spring and summer of 2013. The evidence was that Michael had been dating Ms. Revell just prior to the time when he had sex with Jennifer in the late summer of 2013 and Logan was conceived. Once Michael decided to be exclusive with Jennifer his romantic and sexual relationship with Ms. Revell ended. They stayed friends and dated again from October 2015 to October 2016.

54Ms. Revell said that Michael told her that the parties argued a great deal although she never personally witnessed an argument. Michael complained to Ms. Revell about how Jennifer was always in his space and not giving him any privacy. After Logan was born Michael was pretty distant and she just heard from him once in a while. When asked if Michael ever complained about Jennifer or about her restricting his time with the child Ms. Revell paused for a long time. Finally she said she did not recall that. She remembered him talking about how proud he was of his son but not that he was having difficulties with Logan's mother. Under cross-examination Ms. Revell did reveal that Michael would allege that Jennifer tried to egg him on and start fights. She conceded that the bruising shown on the photos would be domestic abuse. She chose her words carefully as she tried to reconcile the person she said she knew with a person who could cause such bruising. The audio tape was played to her wherein Michael refers to Jennifer as a "fucking idiot" with barely suppressed rage. She seemed stunned by the tape. Ms. Revell said that she had been in a lengthy abusive relationship with another man and knowing what she now knows if she had heard Michael say what he did on the tape she would leave him. She was careful to say though that this was not the man that she knew. She thought there must have been triggers for Michael to snap in the way that he did.

Anthony Romita

55Anthony Romita, Michael's brother gave evidence. He is a special constable in the Peel courthouse. His two older brothers are police officers in Toronto and Peel respectively. Anthony admitted that he had seen a lot of conflict in Michael's relationship with Jennifer but he never witnessed anything that crossed a line. The arguments he witnessed did not involve either party belittling the other. He thought the couple were trying to force something that was not there. Michael had admitted to him that there had been physical altercations prior to Logan being born. It was always put to him as Michael wanting to leave and Jennifer blocking his way. It was a toxic relationship. Anthony said he advised Michael numerous times that the relationship was not going anywhere. He did not observe Michael to have any passion about the relationship. He did see that his younger brother was very frustrated.

56Anthony also chose his words very carefully when he was asked to listen to the tape and see the photographs. He said the photos and the tone and language on the tape were shocking and disturbing. He said he had never witnessed anything like this between them. Anthony noted that Jennifer could be very controlling about time with Logan. She seemed to have Logan attached to her. Anthony said that Jennifer was very overprotective.

Frank Romita

57Frank was the eldest of the Romita brothers and he works as a police officer in Toronto. He was not living at home when Jennifer and Michael stayed there so he did not personally witness any arguments. He was made aware by Michael and other family members about the difficulties in the relationship. Frank said that Jennifer tried to elicit his assistance later on in her relationship with Michael. She would call Frank from time to time to tell him her concerns about Michael. She would say Michael was depressed and perhaps bi-polar. Frank followed up by speaking to his youngest brother and making sure he was fine.

58Frank said that he did let Michael come and stay with him from time to time when he and Jennifer fought. He said he remembers one night and another period of about three days when Michael stayed over. Frank said that over the course of their entire relationship Michael and Jennifer would have spent time with himself and his wife Erin and their then infant son Marcus about seven times. He recalled arguments about money, Jennifer's pursuit of education and the quality of time that Michael was able to spend with Logan. Frank said that he observed that Jennifer was somewhat controlling of Michael especially when it came to Logan. He was especially concerned about Jennifer trying to enlist his help to enforce time sharing at Thanksgiving in 2016. He did not see Jennifer as dominated by Michael but saw Jennifer as the parent who set the rules. He said given their relationship they would have trouble co-parenting.

59Frank was very careful when asked about the photos and audio tapes. He was careful to note that as a police officer that he always had to have both sides of a story. It was clear that he wanted to support his brother but the evidence with which he was confronted was troubling.

Rita Romita

60Mrs. Romita is Michael's mother. She said that she had some reservations about Jennifer and Michael being together due to their seven year age difference. Mrs. Romita noted that Jennifer would always be talking about marriage and Michael never mentioned it. She would tell Jennifer that she did not see her youngest son as being as serious about the relationship as Jennifer was. She perceived that Jennifer was trying to mould Michael into the person she wanted him to be. She said that she could not change him and if she was not happy she should find someone with whom she is more compatible.

61Mrs. Romita said she learned that Jennifer was pregnant in the late summer of 2013. She had deep concerns about Michael's commitment to the relationship. She saw Jennifer as anxious to be in a long term relationship especially after she became pregnant. By way of contrast Michael never talked of getting engaged and never spoke in a way that suggested that he had found "the one" in the way that her other sons did. Mrs. Romita said that despite all of the stress of the litigation and Michael's frustration over his access time he always says that he wants everyone to respect Jennifer.

Tom Humphries

62Tom Humphries is Jennifer's father. He is 61 years old and resides with his wife Wanda Humphries and his daughter and grandson Logan. He has resided on and off in Ontario since 1979. He moved back to his hometown of Deer Lake from 1993 to 1999. He then divided his time between Deer Lake and Ontario until he moved to Mississauga on a full time basis in 2009. In 2013 he planned to sell his specialized sandblasting business and retire to his home in Deer Lake. He put his plans on hold when Jennifer became pregnant. He and his wife planned to support their only daughter through the pregnancy and in the first few months of raising Logan.

63In August 2015, when Michael left Jennifer and Logan and did not offer to pay any support Jennifer moved in to Mr. Humphries' home. In September 2015, he put his business up for sale on the expectation that the four of them would move to Deer Lake as soon as it was sold. He obtained a willing buyer fairly quickly. He was surprised when Michael obtained the order blocking the move. Since then he has put the business sale on hold and continued to provide a home for Jennifer and Logan.

64Mr. Humphries said over the seven years that the parties were together he observed good and bad times in their relationship. He said there were often lengthy bad periods. He said that Michael "is selfish, has a temper and a controlling personality". He observed that Michael was abusive to Jennifer. He admitted that his daughter can be strong willed and will at times verbally fight back when she feels attacked. He felt that Michael predominantly caused the "bad spells". In his affidavit Mr. Humphries stated that since the separation Michael continued to act in a manner towards Jennifer "which is abusive, controlling, dismissive and disrespectful". Mr. Humphries came to his conclusions not so much by what he heard from his daughter but from what he heard himself. He was present when Michael yelled at Jennifer and called her harsh and derogatory names. Jennifer always contacted her father by phone or text when she was afraid of Michael or upset by his actions. He could hear Michael's voice in the background during the calls. The audio recordings were played for him and he confirmed that the very angry voice heard through clenched teeth was the voice that he would hear when Jennifer called him when in crisis. Once she called him from her car when she and Logan were inside it and he could hear Michael's voice as he pounded on the car roof. Mr. Humphries said that Michael always wanted to know where Jennifer was or what she was doing. After the separation he would overhear Michael's voice on Jennifer's phone, even though he stood a few feet away, demanding to know where Logan was and demanding to see him.

65Mr. Humphries related that he had received phone calls from Jennifer late at night and she would tell him that she had taken Logan and barricaded herself in the bedroom. She said she was afraid of Michael. He could hear Michael clearly in the background banging on the door and demanding to be let in. He would tell Jennifer to leave with Logan and come to his house. Often Mr. Humphries would drive to their home to ensure that his daughter was all right. By the time he got there Michael had calmed down or left the apartment.

66Mr. Humphries said that on a number of occasions he observed Michael insist on arguing and fighting with Jennifer even while she was holding Logan in her arms. Sometimes he would yell and other times he would speak in a low and seething voice and pace back and forth. Mr. Humphries said he was not aware of the assaults in which his daughter was injured until these proceedings were commenced.

67Mr. Humphries was always nearby when Michael picked up Logan for access visits. He said that Michael continued to berate Jennifer and made inappropriate comments to Logan such as "do you know where my money for child support is going because it isn't being spent on you." Mr. Humphries intervened on a few occasions to prevent the conflict at the doorstep from escalating. It was clear from the evidence of each of the parties that Michael respected Mr. Humphries and sought his approval. Michael gave very emotional evidence that Jennifer's texts and phone calls had tried to undermine his good relationship with her parents. Jennifer said that her father was very good at calming Michael down and Michael liked him. Mr. Humphries was not shaken in cross-examination. He was prepared to find fault with his daughter when warranted. Notwithstanding his knowledge that Michael had assaulted his daughter on more than one occasion he had continued to facilitate access and he thought it important that Michael be involved in his son's life.

68It was clear that Mr Humphries and his wife had gone to some significant personal sacrifice to be available to their daughter and grandson. It was also clear that Mr. Humphries had always tried to make the best of a bad situation and had always put Logan's best interests above all else. In one recording made by Michael Mr. Humphries is the one who told both Michael and Jennifer to stop arguing and he walked Michael to his car and tried to defuse the situation. There were no examples given of any situation in which Mr. Humphries lost his temper with Michael or verbally attacked him in any way. In all of the circumstances I find this to be quite remarkable. Mr. Humphries is clearly a man of good character and integrity who would do anything he could to make his grandson's life as good as it could be.

Dwayne Langdon

69Mr. Langdon is Jennifer's second cousin - they share a great-grandmother but he is a generation older. He lives in Deer Lake. He filed an affidavit and attended via Skype for cross-examination. He has two young kids and there is another relative with young kids in Deer Lake. His evidence of a large extended family in N.L. was somewhat blunted in cross-examination when he confirmed that some of the family was in St. John's which was a six and a half hour drive away. Ms. Moss prepared and filed a chart of the extended family on both sides to show that there were more children close to Logan's age in the Brampton area family than there were in the Deer Lake family. Mr. Langdon was a good witness though, clearly a nice man who would be a family contact for Jennifer if she was able to move.

Parenting history

70Michael made it clear that he always wanted to be a father. Even though the child was conceived when the parties were "on a break" once he learned that Jennifer was pregnant he resolved to be there for the child. He said that he wanted to be present for the entire pregnancy experience. He wanted to talk to his child in the womb. While giving this evidence Michael became very emotional. He began crying uncontrollably and needed to pause in his testimony to collect himself on a few occasions.

71Michael proposed that Jennifer and he move in together in October 2013. He told his parents early on about the pregnancy and was frustrated that Jennifer did not want to tell her parents until she was engaged. He proposed to Jennifer before her parents left for Deer Lake that Christmas. The period immediately after Christmas 2013 was a time of high conflict and violence as noted above. Michael said accompanying Jennifer to the hospital on January 6, 2014 was not unusual. Jennifer was very anxious throughout the pregnancy about something being wrong and he accompanied her to the hospital at least one other time when she was worried about a lack of fetal movement. Michael was present at the child's birth and both parties were prepared for him coming home. Michael took two weeks off work. He said that he wanted to be able to do everything with the newborn baby that Jennifer could do. He said that in the first few weeks Jennifer was so nervous and cautious that he did most of the diapers. Jennifer was breastfeeding and they were both concerned that Logan was losing weight. Michael stated that they worked together in those first two weeks that he took off work.

72After he returned to work and Jennifer gained more confidence around her newborn child it was apparent to Michael that she felt that she no longer needed him for daily tasks. From then on he said her way was the right way. When he was home he wanted to help with everything but Jennifer insisted that she do it all she would not let him do anything. In Michael's view the parties only really co-parented for two weeks. After that he had to fight to be actively involved in his son's life. By May 7, 2014 Jennifer was already denigrating his parenting and calling him an idiot to her parents.

73In addition to the parenting issues, money or more properly the lack of it, continued to irritate Michael. He said that Jennifer had no understanding of finances. His salary was only $45,000 in 2014 and Jennifer was on maternity leave. He tried to get her to stick to the budget he worked out but she could not seem to do so.

74Michael recalled a fight on February 7, 2015. He told Jennifer that he was going to call U-Haul to rent a truck to move his things out of the apartment. Jennifer panicked and called her father. She told him that her father said that this threat was probably something abusers do. Michael was very upset by any negative comments that Jennifer made about him to her parents. He became very emotional when he said that she was trying to sabotage the good relationship that he had with them. He made it clear that it was very important to him that people think well of him. He was very upset with Jennifer for telling her parents about their arguments and the physical altercations.

75The parties continued to fight only now it was in the presence of their infant child. Jennifer accused Michael of hitting her when she was holding Logan. Michael emphatically denied that and stated that Jennifer would rip Logan from his arms when they were arguing.

The separation

76As time went on Michael started to leave the house sometimes overnight. He began planning to end the relationship. He did not tell Jennifer this. On August 9, 2015, Michael told Jennifer that he wanted to end the relationship. He would be moving out and she could stay. Jennifer says that she asked how she and Logan would manage and he said that "Logan is your problem now" Michael denies saying this. I accept Jennifer's evidence on this point.

77Michael did move out without making any plans for the financial support of Jennifer and Logan. The texts filed make clear that he wanted her to let him know if she was going to stay in the apartment. At that time she had no employment and no income. After a few days she realized that Michael was not coming back and she decided to move to her parent's home. She said she had no choice as she could not afford to stay in the apartment. In the pressure of the moment it did not seem to occur to her that she could insist that Michael financially support her and the child so that she and the child would not be the ones that had to move. Michael says it was her decision to move and when she did so it made sense for him to move back in. It appears that he did not intend to support her at this time and just made the assumption that she would move to live with her parents who had always emotionally and financially supported their daughter. He seemed to think that that was the natural thing to do. Logan would live with his mother and the MGP and he would have as much time with Logan as he could get unfettered by the rules and controls that he felt Jennifer was imposing upon him. In this way Michael decided right from the time of a separation that he initiated that Jennifer would primarily look after Logan and in so doing she would either need or benefit from the unqualified support of her parents.

78Throughout the entire length of their relationship Michael had complained that Jennifer had not pursued education diligently and was not planning to work. It is not clear if he wanted Jennifer to become more emotionally and financially independent because it would be good for their life together, or if in the back of his mind he always intended to end the relationship at some point and he wanted her to be more financially independent of him. He was frustrated with her and this caused him to denigrate and demean her throughout the relationship.

79It seems clear that after she became pregnant Jennifer did not give much thought to her financial future. She admitted that she had grown up in a home where her father was the breadwinner and her mother played a traditional role. She saw gender roles through that lens. In a conversation that Michael surreptitiously taped she said that she was a mother and he was a father and that meant that she was the primary caregiver for the child. She clearly felt that fathers cannot do what mothers do for young children. In 2017, with the exception of breast feeding, we know that this is not true.

80There is no doubt that Jennifer spent far more time with Logan than Michael did. She said that Michael did not attend for all of his access and when he did have Logan he did not focus his attention upon him. That is not the evidence. I find that Michael did seek access immediately after the separation and attended for all access possible. He worked in downtown Toronto so initially he was unable to attend at the apartment for mid-week access. I find no lack of effort in exercising access and no fault with what Michael did when he had Logan with him. Having said that, Michael was excessively worried about Jennifer's intentions. He stated that he was "terrified" that he was being "alienated" from his young child. When he said that he was seeing his son three times a week for three hours at a time. There is no evidence of alienation in this matter. There is evidence that the Jennifer was angry with Michael for ending the relationship and in the early days lashed out at him. Michael said she obtained his phone and deleted all his messages. He said that he gave her all of his photos of Logan but she failed or refused to provide him with any photos on her phone. Had Jennifer continued this pattern Michael might have a point. However, access began immediately after the separation and Jennifer told Michael that he could see his son every day. He was unable to do so because of his work hours in downtown Toronto but the amount of time he had was not unreasonable in all of the circumstances.

81There were restrictions on Michael during these early days. I do not see this as evidence of alienation but as evidence of an anxious, insecure mother wanting to establish herself as Logan's primary caregiver. Jennifer had not succeeded with her education or a career and her main adult romantic relationship was abusive and dysfunctional. The evidence supports a finding that she was absolutely determined to be a good mother to Logan. She did not want to exclude Michael from his son's life but she did want to ensure that she would make all of the decisions about Logan. She had already defined her life as being Logan's primary caregiver a phrase she repeated throughout this lengthy trial. When the parties separated Logan was 16 months old. Jennifer insisted that she supervise all access. She did limit access due to the need for breast feeding on demand and naps which she said could only occur in her presence. She did not see a way that the parents could co-parent Logan and she did not see a way for her to successfully raise Logan without the emotional and financial assistance of her parents.

82Jennifer retained a lawyer who sent a letter to Michael setting out her desire to move to Deer Lake with Logan. Michael immediately went to court and on September 1 he obtained a without prejudice order preventing a move. That order was effectively made a temporary order when it was not overturned on a motion review. The matter was then adjourned to October 15. In the period September 1 to October 15, 2015, Michael stated that his role as a father was minimized. He said that he thought it only fair that the parties share joint custody and 50% of the time with the child. While much was made over the fact that Michael had sought sole custody it appeared that this pleading was simply to make it clear that if Jennifer was to move he was ready, willing and able to care for his young son with the assistance of his own mother.

83Jennifer's evidence was that she felt that Michael was trying to intimidate her into giving up her plans to move by threatening to take her son away from her. She said in her testimony that Michael said he would keep Logan with him as a "power move". Michael denied using this expression but it was consistent with the tone of many of his emails in which he essentially asserted that he had a good education and a good job and she was a failure.

84It may be that Jennifer's insecurities together with her fear of what Michael might do caused her to be less generous with access time than she otherwise might have been. It is clear from her evidence that Jennifer was determined to follow the exact wording of a court order and willing to believe that Michael will stop at nothing to take Logan away from her. Objectively there was little to no risk of Michael and his family keeping Logan with them if Jennifer was a little more flexible with access. Subjectively Jennifer saw Michael as an abusive man who was charming and well-liked by everyone he encountered. She seemed to feel that she was at constant risk of being manipulated by him. I find that this attitude caused her to unduly delay the expansion of Michael's time with Logan. Further down the litigation road it caused her to oppose the appointment of the Office of the Children's Lawyer and to oppose the release of the therapist's notes because the therapist was provided by Michael's employee assistance plan. She felt that Michael would present well and she would not or that Michael had more power than she did. This attitude is consistent with the profile of a person with low self-esteem who has been the victim of domestic violence.

85Michael and his counsel went to great lengths to show that Jennifer was unreasonable and controlling. He said she was inflexible when it came to time with Logan. There were examples of inflexibility. Michael had changed the schedule to accommodate a visit by Jennifer's aunt. Jennifer denied Michael a little extra time for an anniversary party when the child was 27 months old. Jennifer did wait 12 days to respond to a request to change an access day. Conversely in the middle of that time frame she asked him if he wanted to go out with her and Logan on Halloween. She was slow to agree to overnight access but she sent Michael an e-mail before Easter inviting him to select the time he would like with their son. Both parties were guilty of exaggerating the other's faults and errors and presenting themselves as always fair and reasonable.

86There was other seemingly contradictory evidence. In general the parties exchanged texts that were reasonably polite and focused. Their emails were another matter. Hundreds of emails were included in the documents briefs. There were many in which Michael was quite demanding and on occasion demeaning. Jennifer's emails might be described as passive/aggressive at times. She would fail or refuse to answer Michael's queries which just resulted in more emails that were more insistent and more demanding. Michael admitted that he forwarded his e-mail to his counsel. There was no evidence that anyone other than the parties themselves wrote the emails. Nevertheless the emails were clearly written knowing that they would be used in litigation. The evidence of both parties was that outside of these emails they were able to communicate about their son by text and sometimes at exchanges at the MGPs home. Mr Tom Humphries was instrumental in ensuring that conflict was kept to a minimum at exchanges but there were some troubling encounters.

87Michael decided at the time of the separation to put his cell phone in his pocket to record all of the discussions at exchanges. He claimed that he needed to protect himself from false allegations. He made hundreds of recordings and went to the trouble of having them transcribed and filed. Ms. Moss chose a few to illustrate what Michael thought was Jennifer's unreasonable behaviour. Mr. White chose a few of Michael's own recordings to prove that he was obsessive and demanding. Overall Michael's decision to record did not assist his case. He taped Jennifer surreptitiously so he knew he was being taped but she did not. This seriously diminished the evidentiary value of the recordings. Furthermore, it showed that he did not respect boundaries. He used access exchanges as evidence gathering exercises. One example stands out. Ms. Moss spent some time exploring with Michael how Jennifer had failed to inform him that his son could have allergies. He only discovered it after poring over medical records after disclosure. He confronted her with this at the doorstep in an aggressive way. Jennifer, the one who was unaware that she was being recorded, responded calmly and reasonably. Logan could be overheard in the background as Michael quizzed Jennifer. Jennifer's mother took Logan out of earshot and Jennifer's father who is always nearby at exchanges did a masterful job at defusing the situation and guiding Michael outside to his car.

88This confrontation ended up being over nothing. Logan did not have allergies and nothing was being hidden from him. I find that Michael was determined to use these tapes not to protect himself but to condemn Jennifer. He was spectacularly unsuccessful in these efforts. In the few tapes that were played Jennifer was almost always calm and Michael almost always anxious and demanding.

89Not all of the exchanges were confrontational. Some were uneventful. Jennifer testified that there were a few others that were simply embarrassing. On one occasion Michael was on the front driveway yelling at her when Logan was just inside the open door. A neighbour noticed when Michael yelled loudly that he could not wait to go to court.

90Michael's compulsion with proving himself to be a loving and devoted parent was also somewhat counter-productive at times. Michael would make a point of arriving 15 to 30 minutes early for exchanges. He testified that he did this because he does not get much time with Logan and wants to see him as much as possible. What it really demonstrated was that Michael was putting pressure on Jennifer to give him Logan before the time that they had both agreed upon.

Communication issues

91Michael also made a huge issue of not being informed in advance of every medical and dental appointment the child had so he would have an opportunity to attend. There was e-mail and text evidence that Jennifer ultimately kept Michael apprised of all health issues. Michael was very upset when he heard that Logan needed "dental surgery" (chipped teeth and a cavity) and he insisted that he be able to attend. Jennifer agreed. Unfortunately Michael overslept. He explained that he had been up all night because his father was having brain surgery to combat Parkinson's. When he texted to say he was still coming Jennifer agreed to wait for him. The dentist had already put the wrist band on the MGF (as only two adults could be present) when Michael came through the door. To his credit Tom Humphries stepped aside and to her credit Jennifer suggested that Michael take Logan in for his surgery.

92The nadir of the e-mail exchanges may have been the napping issue. Michael accused Jennifer repeatedly of terminating Logan's napping long before it should have ended for the express purpose of delivering to him an exhausted child. He e-mailed her websites on the issue of the ages that children should nap. Perhaps Jennifer did end the afternoon naps earlier than some parents might have done. The fact is that the child was with her most days of the week. She said that ending the naps did not impact Logan's energy levels for his swimming and gymnastics classes. I can accept Michael's evidence that his son fell asleep soon after he was picked up at four or 4:30 p.m. for mid-week access. I cannot accept that any reasonable parent would complain about it to the degree that he did. It is common knowledge that the movement of a car often causes children to fall asleep when they might not have done so otherwise. The evidence was that it was a 20 to 30 minute drive from one home to the other. So what if the child was asleep on the drive and a little groggy at the beginning of a three hour visit.

93Michael also complained repeatedly that he was not informed by Jennifer about Logan's extra-curricular activities. To some degree he had a point. Jennifer registered Logan for gymnastics and a new more expensive swim program without providing Michael with the details. She was evasive in her testimony as to why she did not do so and basically suggested that he should have found out about the activities himself. This issue does not reflect well on Michael either. He knew his son was taking swimming lessons when he left in August 2015. He knew Jennifer had no independent source of income. On August 17 Jennifer asked if Michael was going to help with the cost of the swimming lessons. Jennifer said that Michael responded with the "Logan was now her problem" comment. Then he called back and said he would bring a cheque but he never did.

94From his frequent access Michael knew that Logan was in some sort of gymnastics program but he made no inquiries about it and did not offer to contribute any money. Finally Michael was most aggrieved that Jennifer did not let him sign Logan up for soccer when he suggested it in the spring of 2017. Interestingly he took no steps to look into any programs and no steps to sign Logan up himself. The parties had a joint custody order. He could have found a program, sent the information to Jennifer, and then offered to sign up his son. Instead he broached the subject of soccer and became incensed that Jennifer signed him up for soccer without giving him the chance to do so. Jennifer invited him to attend all of the games on the condition that he not interfere with the coach. He did attend all but three games, he did not contribute to the cost and he did speak to the coach which is the one thing he was asked not to do.

95Another area of e-mail confrontations dealt with the regular access schedule itself. It is important to note that both parties were represented by experienced family law counsel throughout. Notwithstanding that Michael sent Jennifer many emails either requesting or demanding that she provide him with more time with Logan. The most egregious examples of trying to pressure her directly on issues being addressed the lawyers came after the parties negotiated comprehensive Minutes of Settlement to resolve a motion that was scheduled for May 12, 2016. Two weeks after an order had been made based upon these Minutes Michael began sending Jennifer emails stating that he was pressured into signing Minutes with which he did not agree. He claimed that Jennifer refused to negotiate in good faith as the Minutes signed were substantially the same as an offer she had made some two months before. He said her refusal to be reasonable caused him to have to give in or face the costs of a contested motion. He testified that he was "terrified" that he was being "pushed out" of his son's life. He claimed that he assumed that there would be flexibility after the final phase of access expansion was reached but that was not done. He said that he feels that Logan could easily have more time with him and that he has to fight for every minute of time with him.

96Jennifer responded quite rightly that they had both agreed to an order with their lawyers present and she was going to stick to the wording of that order. This was not enough for Michael who was frustrated by the pace of the expansion of access was determined to keep pushing until Jennifer agreed with the 50/50 time sharing that he had decided was fair and in Logan's best interest. Michael asked for make-up time for a work related trip and Jennifer did agree to a change in the schedule but not exactly what he wanted. Michael testified that "He is the main provider and she is reluctant to work around my work schedule".

Discussion around move to Deer Lake

97In his evidence Michael noted that Jennifer had been born in Mississauga and had spent most of her life here. The uncontested evidence was that Jennifer's parents had grown up in Deer Lake and moved to the Mississauga area prior to Jennifer's birth in 1981. The family moved back to Deer Lake in or about 1993 when Jennifer was 12. She attended high school in Deer Lake. She was then accepted into St. Mary's University in Halifax to take a business degree. She moved into residence there in 1999. Jennifer's evidence was that she did not enjoy the busy social life of campus living and the transcripts filed show that she did not do well in her courses. Jennifer returned to her parent's home in Deer Lake for Christmas 1999 and then returned to Halifax for the winter term. She obtained a D on one course, failed two others and dropped out of the fourth one. She received an academic dismissal.

98Jennifer then returned to Deer Lake in the spring of 2000 and her evidence was that she lived with her parents and worked. She returned to Halifax to take a business diploma program in the fall term of 2002. She passed three of her four courses that term but withdrew from all of her classes in the winter term. At this time her parents had decided to move back to Mississauga and Jennifer moved to join them. By 2005 she was living on her own and working at Boston Pizza where she met Michael. She moved back into her parent's home during this time before finally moving in with Michael in October 2013.

99Jennifer's close ties to Deer Lake were evident during the parties' relationship. When they were dating Michael accompanied her to Deer Lake for Christmas one year. Michael was quite close to Jennifer's parents so that he was well aware fairly early on in the relationship that they had maintained a home in Deer Lake and planned to move there when Tom Humphries retired.

100After Jennifer became pregnant Michael asked her if she planned to return to Deer Lake to raise the child. Jennifer filed a copy of a Facebook Messenger conversation with Michael concerning the move. She said the conversation was shortly after she learned that she was pregnant in around August 2013. The excerpt of the conversation filed reads as follows:

M. Do your school

Then you won't be stuck anywhere no matter what happens

J. I'm going to be stuck here if we do this, you'll (unreadable) mind about what?

M. I TOLD you

If you're not happy here I WON'T KEEP YOU HERE

J Will u try to keep the baby in ON?

M. No…

J. K. bc I can't decide if I want to live here forever this fast, I don't even know what it will be like and it's stressing me out making a decision so quickly.

101Jennifer said that over the next few weeks she was focused on their relationship. She wanted to move in with Michael and get engaged before she told her parents of the pregnancy. She wanted to be married sooner rather than later.

102When this discussion was put to Michael he said that this was only one of many discussions about the possibility of Jennifer moving to Deer Lake. He denied that he had given Jennifer the impression that if the relationship did not work out that she could move with the child. Even after Michael obtained the September 1 order that prevented Logan from leaving he entered into discussions with Jennifer about the possibility of her moving if the travel costs for him were deducted from the child support. Michael's evidence on the Facebook message and any discussions about a move to Deer Lake were confusing at best. In a roundabout way he said that he was only prepared to discuss what her move could look like, but he never would have agreed because he would lose his close relationship with his son.

103There is no doubt from the evidence that Michael was aware throughout the relationship that if their relationship did not work out that Jennifer would want to move back to Deer Lake with her parents. In his own evidence Michael spoke about how Jennifer had been unable to make any friends in the Greater Toronto Area notwithstanding all of the jobs that she had where she worked with the public. He had known her for nine years by the time of separation and their relationship had been on and off over many of those years. Michael had dated other women when they were "on a break" but Jennifer had not gone out with anyone else. He also knew that apart from a first cousin in Cambridge, whom she had not seen in a long time, that she did not have any extended family in southern Ontario. There was never any discussion of both parties moving to Deer Lake. Michael had a good job in Toronto and a large and loving family in Brampton.

Travel to Deer Lake

104Jennifer has not been to Deer Lake since this proceeding began on September 1, 2015. There is an order that prevents either party from removing the child from Peel and Jennifer was quite clear that she would not leave Logan even for a visit to N.L.

105This travel issue is a good example of the parties' inability to co-operate in Logan's best interest. Michael said he wants Logan to know his family in Deer Lake and he will encourage Jennifer to take him there once it is clear that Logan will remain living in Ontario. Jennifer said that it had been very difficult for her to not be able to spend Christmas 2015 and 2016 in Deer Lake and implied that Michael had frustrated her ability to go there simply out of bad faith. Michael's position has been that he will not negotiate holidays for Jennifer without there being a negotiation of additional time for him. He said he was prepared to agree to Jennifer going to Deer Lake if he could get a few extra days of holiday time with his son. Jennifer's position was that this was an example of Michael always pushing her for more concessions.

106In the end result the parties, with the assistance of counsel, did work out a time sharing arrangement over Christmas in 2015 and 2016. Michael noted that he did not get the time he proposed. He wanted 50% time sharing over the holidays but when he calculated it out he realized that he only received 16% of the Christmas holiday.

107I find fault with both parents over the holiday issues. In May 2016 when Logan was only two years old they consented to an order. Paragraph 21 of that order stated:

21. The schedule does not determine holiday schedules and the parties will rearrange the schedule as needed in the case of holidays and special events which may include travel outside the province.

108Notwithstanding this order, with a few minor exceptions to accommodate an aunt here and a work conference there, the parties have been unable to agree upon any holiday schedule. They are both so focused on the litigation and so determined that the other not gain any advantage that they have both missed opportunities. More importantly Logan has lost out on extended time with his father and his family and with the chance to spend time at Christmas with his mother, her parents and the extended family in Deer Lake.

109They contemplated holiday time and out of province travel in May 2016 but they were unable or unwilling to come to any sensible compromise. They both put their own needs ahead of the best interests of their son. They demonstrated that they are completely unable to work co-operatively to ensure that Logan has the advantage of an extended period of time with each of their families.

Child's documents

110Michael was very emotional when he spoke about the fact that Jennifer had not registered him as Logan's father on the Statement of Live Birth. Jennifer said that when she completed the form about a month after the birth she and Michael were getting along poorly. She decided that since they were not married and she was not sure what would happen in their relationship that she would not list him. She said that she could always add him on later. Michael considered this to be a momentous decision that showed that Jennifer wanted to exclude him from his son's life. In addition Jennifer was slow to provide him with a copy of Logan's health card. She did not agree to provide Logan's Social Insurance Number ("SIN") number until after the questioning in June 2016. It is arguable that Jennifer was overly protective of Logan's legal documents. Mrs. Romita could not begin an RESP without the SIN number and this delay was not good for Logan. There was no need to hide the birth registration particulars. Jennifer's actions were consistent with her unreasonable but very real fear that Michael would somehow use the information to his advantage.

111Michael grossly overacted to the documents issue. He became very angry at the lack of disclosure. He allowed himself to think that the child not bearing his surname was somehow an attack on him as a father. This was one of many examples when in his testimony Michael completely broke down. He presented himself as a victim, a man just trying to be a good father to his son. He complained bitterly that Jennifer was trying to control and manipulate him at every turn. A constant theme in his testimony was his unflinching effort to be able to be a father to his son and all of the hurdles and roadblocks Jennifer put in his way. The emotion he displayed on these points was genuine but it was out of all proportion to the alleged attacks upon him.

Michael's plan

112Michael was quite clear that he should have Logan with him at least 50% of the time. He said that he worked in downtown Toronto so he had to leave early in the morning. On the days when he does not have Logan he can work to 7:30 or 8:00 p.m. at night. The company allows him the flexibility to be able to leave work early on the mid-week days when he has Logan from 4:00 p.m. on. He said that he could work from home if needed.

113Michael said that his family was there to support him. His mother has offered to care for Logan at any time as she does not work outside the home. Logan will be in full time school in September 2018 so there will be less need for child care. Michael described all of the enriching activities that he did with Logan on his time with him. At the same time he emphasized that he did not want to be just a "good time Dad" and he said he will be actively involved in health and education decisions.

114Michael said he understood the need for Logan to visit with family in Deer Lake and as long as Logan primarily resided in Ontario he would be generous with extended holiday time in N.L. Michael said he had a phenomenal bond with Logan and his son wants to be with him and resists going back with his mother after visits.

115Michael was clear that he wanted to have Logan 50% of the time. He was not asked his specific proposal for the sharing of time if Jennifer stayed in Mississauga. The evidence was that it was approximately 30 minutes between the party's current homes. Logan will start school on a full time basis in September 2018. Ms. Moss submitted that the schedule should be two days with each parent and alternate weekends. The only merit to such a schedule is that it divides the time exactly equally. As I understand it Logan would be with his mother on Monday and Tuesday then go to his father's for Wednesday and Thursday and back to his mother's Friday until Sunday. The schedule would be the reverse for the next week. This would mean that Logan would change homes five times in a 14 day period. As all the evidence is that there is significant tension between the parties this would put Logan in the middle of that tension on a regular basis. The switch in days would mean that each parent would have Logan for an extra-curricular activity on all weekdays and all weekend days in a fourteen day period. That might be fair for the parents but in situation where the parties do not communicate well it is a recipe for disaster. I can only surmise that this submission was made because as he stated throughout his evidence Michael wanted exactly 50% of the time with Logan. A week-about arrangement is the only other alternative and seven days away from each parent would not be in the best interests of a three and a half year old child.

Jennifer's plan

116Jennifer's evidence was that she fully expected Michael to not oppose her move to Deer Lake with Logan given that their Facebook conversation immediately after the separation which she said was consistent with many previous discussions both before and after Logan was born.

117Jennifer planned to move with her parents to Deer Lake when her father's business is sold. She would live in their two storey three bedroom house. Logan would have his own room. She noted that her father owned a second house that used to be his parent's home and it could be renovated to be a home for herself and Logan.

118Jennifer was adamant that she wished to obtain a university education so that she could obtain a better job perhaps in Cornerbrook, the regional centre for western N.L., which is only a 40 minute drive from Deer Lake. She said she could take online courses from the Grenfell campus of Memorial University there. She did not expect any difficulties being accepted notwithstanding her poor performance in university in 1999 and 2002 and her withdrawal from all of her online courses at Ryerson University since 2012. Jennifer thought it would take about two years for her to obtain a degree or diploma. Jennifer said that she would not be able to pursue education if she remained in the GTA as the cost of living is so high that she would have to work to pay rent and afford daycare. She said that in Deer Lake she would have no rent and her parents could look after Logan. Jennifer said she was confident that she could obtain employment once she completed her education as she had worked almost all of the time before becoming pregnant with Logan.

119Both parties filed a great deal of information about the educational and recreational opportunities in Brampton and Deer Lake and the relative cost and availability of various programs. I told counsel that I was satisfied that if Logan lived in either community there was no doubt that he would have the opportunity to participate in many activities and the evidence was that as his primary resident parent Jennifer had already demonstrated that she would enrol him in age appropriate activities.

120With respect to access Jennifer repeatedly stated that Michael loves his father and is well bonded to him. She was open to extensive Skype or FaceTime access and to Michael visiting with Logan whenever he wanted to travel to Deer Lake. She said her parent's home was only eight minutes away from an international airport and there were two direct flights to Toronto daily. One flight leaves Toronto late at night so that with the one and a half hour time difference it arrives early in the morning so that it is possible to sleep on the plane and not lose a day. Jennifer knew from personal experience that children under eight years old needed to be accompanied by an adult. After age eight a small fee can be paid for the children to be identified as an unaccompanied minor so that the flight attendants can keep an eye on them. Jennifer acknowledged that until he was eight travel between Deer Lake and Toronto would involve purchasing three round trip tickets. She was prepared to share in the cost in whatever manner the court felt appropriate. She was also prepared to travel with her son to Toronto to deliver him for access.

121As Logan will be in full time school in September 2018 Jennifer described the school year. Unlike Ontario there was a mid-fall break for approximately a week. The Christmas school break is for two weeks and she thought it fair that Logan be with each parent every alternate year from December 23-29. She was content with Michael having as much other time during that break as could be accommodated around that time. Instead of a March Break there is a week long Easter Break which with Good Friday and the weekend involved amounts to about ten days off school. Finally the school summer break is similar to that in Ontario and she thought that in the first year Logan could be with his father in Ontario for three straight weeks with each subsequent summer being four consecutive weeks.

The evidence from the OCL

122Ms. Shazeeda Haroon was the clinical investigator retained by the OCL to conduct an investigation in this matter pursuant to the provisions of s. 112 of the Courts of Justice Act. She delivered her report on April 13, 2017. Briefly stated Ms. Haroon recommended the following:

1. That the parties share joint custody related to major decisions with Jennifer making day to day decisions.

2. That the current access schedule remain in place with additional access to Michael when Logan gets older perhaps when he starts school.

3. That there be a detailed holiday schedule which she set out.

4. That Jennifer should attend counselling related to parenting after separation.

5. That the parties should communicate using a third party tool such as Our Family Wizard.

6. That neither parent should denigrate the other.

7. That neither party should withhold travel consent.

123The most important statement made by Ms. Haroon is contained in the last paragraph of the Discussion part of her report. Ms. Haroon stated:

A primary concern of this matter is related to the relocation of Logan from Ontario to Deer Lake Newfoundland….Ms. Humphries has put forth some compelling reasons to relocate, however at this time the OCL would not support the relocation of Logan. As mentioned previously the OCL is concerned that Ms. Humphries has difficulty supporting Logan's relationship with Mr. Romita and marginalizing his role as a father, there is no evidence that being significantly further away would improve her ability to do so. The current co-parenting relationship between Mr. Romita and Ms. Humphries is not indicative of a relationship that best supports mobility which is difficult at the best of times. Logan at this time is just turning three years old and bonding and attachment are still critical at this age, there is evidence of a bond with both Ms. Humphries and Mr. Romita, the OCL considers that a relocation of this magnitude could jeopardize Logan's right to a relationship with his father and therefore considers it to be in Logan's best interests to remain in Ontario.

124Not surprisingly Michael supported most of the recommendations in the report and Jennifer filed a Dispute basically stating that Ms. Haroon had misapprehended the evidence and reached conclusions that were not supported by the evidence.

125The report is made to the court and the clinical investigator is the court's witness. Ms. Haroon attended and was cross-examined by both counsel.

126Ms. Haroon testified as to some of the reasons why she concluded that Jennifer would not promote and facilitate an ongoing relationship with Michael if she were permitted to move. She said that Jennifer did not believe that Michael really wanted a strong parental relationship with his son. She seemed to think that he only pursued custody to maintain an ongoing contact with Jennifer. She felt that the litigation was a way for him to continue to abuse and control her. Ms. Haroon felt that Jennifer did not really see Michael as a parent beyond his biological ties. She said that Jennifer had difficulty acknowledging that Michael was part of Logan's identity. She noted how many times Jennifer mentioned that she was the primary caregiver. She considered Logan to be a Humphries not a Romita.

127Ms. Haroon was questioned extensively about whether there was domestic violence and emotional abuse in the parties' relationship. In her report she related all of the information provided to her by each of the parties. She had seen the photographs and heard the audio recordings. She concluded:

There is evidence to support both claims of conflict and abuse. Based on the interviews with Ms. Humphries and her parents and the photographs and the bruising there is evidence that Ms. Humphries did experience abuse by Mr. Romita. It is not uncommon for victims of abuse to not contact the police and not be forthcoming about their experience and this should not be considered to be evidence that abuse did not occur. Likewise there is evidence that Mr. Humphries' behaviour in the relationship could be aggressive and could be considered out of control….A request for a consent to speak to Dr. Nicolson a counsellor seen by Ms. Humphries and Mr. Romita jointly was granted by Mr. Romita but declined by Ms. Humphries. Ms. Humphries reports she declined consent as she was concerned that she did not speak up in the sessions… This may have been useful in furthering the understanding of the relationship dynamics independently of familial sources. The OCL can conclude that the relationship between Ms. Humphries and Mr. Romita was highly conflicted and that there is evidence to support physical aggression and verbal aggression between both Mr. Romita and Ms. Humphries, however it is difficult to conclusively determine degrees of responsibility, as there is evidence gathered which supports the concerns of both Mr. Romita and Ms. Humphries.

128In her testimony Ms. Haroon said that there was no disclosure by Jennifer that she was controlled by Michael. She said that if she had evidence that this was a truly abusive relationship that could have had an impact on her recommendations.

129Ms. Haroon conceded to Mr. White that there were parameters to her investigative powers as without people telling her things she does not have factual basis for an opinion. She said she was also constrained as to how deeply she can follow up statements made to her. She stated that she cannot cross-examine people. She agreed that it can be hard to test the truth of what people are telling her and if people have not been truthful that could call into question her conclusions.

130Mr. White then put evidence to Ms. Haroon to see if information that she did not know at the time of her report could have affected her conclusions. He referenced evidence that in the period 2012 to 2013, when the parties had been dating seriously for some time, Michael asked for a break in the relationship and insisted that he should be able to sleep with other women. Mr. White posited that if Jennifer was in love with him and wants to keep him happy was it emotionally fair for Michael to tell her about his sex with other women and compares her sexual prowess to theirs. Ms. Haroon conceded that if this were true it would be indicative of a power imbalance in the relationship.

131Ms. Haroon also said it was clear in her report that she believed that there was abuse. She said that she had limited evidence to support a finding that the abuse was ongoing. At the same time she had some evidence to support a finding that Jennifer was physically aggressive and spit at Michael which someone who was so intimidated by her partner would not do.

132Mr. White's cross-examination was very thorough. Ms. Haroon conceded the importance of understanding if there was domestic abuse before making joint custody recommendations. His questions effectively showed that Michael minimized the abuse in his meetings with Ms. Haroon. For instance she said he did share with her that if he touched Jennifer it was only because she would get in his face. He acknowledged mutual conflict but he denied that he hit her or said that he may have done so but does not recall. He did not directly admit causing the bruising that was apparent in the photos and she did not put the photos to him (the black and white copies she then had may not have been shown the extent of the bruising).

133Ms. Haroon stated that she did consider recommending sole custody to Jennifer. She said that Jennifer had indicated that if she were allowed to move that she would be agreeable to a joint custody order. Ms. Haroon admitted that the audio tape wherein Michael is very angry and calls Jennifer "a fucking idiot" is shocking and disturbing. She did hear this tape during her investigation. She qualified her statement about the tape by stating that one has to be careful about drawing conclusions when one does not have the full context.

134Ms. Haroon said that the evidence that she had was that a lot of the conflict was mutual. Michael had told her that if bruises were caused it was not out of intentional abuse. They must have happened when he pushed her away. She did say that Michael may need to attend a program for domestic violence. After a long pause Ms. Haroon conceded that Michael has not acknowledged the abuse for which he was responsible. She did not agree with Mr. White's suggestion that this undermined her report.

135With respect to whether she would consider changing the recommendation based upon the misreporting of the domestic violence, Ms. Haroon returned to her earlier answers to Ms. Moss that there are other factors involved in her recommendation such as Jennifer's inability to support Michael's relationship with his son.

136Ms. Haroon said that there was evidence that Jennifer does not provide Michael with information. When she spoke to the doctor it was her understanding that Jennifer had said that he was not to give information to Michael. Mr. White pointed out that that was not the evidence before this court.

137Ms. Haroon was asked how she could make a recommendation for joint custody when there was such a lack of trust between the parties. She paused and then stated that much of the mistrust could be related to the litigation. She noted that in spite of all of this they were still able to co-exist. They exchanged Logan directly between them and they were together with him at events like Halloween.

138Ms. Haroon said she was not shown the extensive e-mail communication between the parties. She was then not able to factor their respective communication styles into her recommendations. Ms. Haroon did state that from her two direct interviews and one telephone call with Michael that he consistently said that his relationship with Logan had been limited.

139Ms. Haroon said that she had evidence that Jennifer physically limited Michael's ties with the child by insisting that his access be supervised and that he acknowledge that she was the primary caregiver before she agreed to Thanksgiving weekend access. She found that request to be unreasonable, but did acknowledge that there was not yet a court order in place and if Michael did threaten to take Logan from his mother that she might be especially cautious.

140Mr. White skillfully took Ms. Haroon through a series of texts and emails that showed Michael to have misrepresented Jennifer's lack of co-operation with him. He put to Ms. Haroon emails in which Michael adopted an accusatory, disrespectful and even condescending tone. Ms. Haroon conceded that there were e-mail that were aggressive in tone and could be considered bullying. She said her recommendations were based upon the relationship no longer being abusive. She said that if she had new information that the parties communication was of this nature she might have to reconsider her joint custody recommendation. Ms. Haroon did not ultimately abandon her recommendation despite the vigorous cross-examination on those points. She did indicate that when facts relied upon are shown to be unreliable that a responsible assessor may have to reconsider their recommendations. She quite fairly said that she had not had an opportunity to look at all of the information. Mr. White had referred her to emails that showed that Michael had either been inaccurate in what he told her or did not tell her the entire story. She also said she did not know what was in all of the e-mail that she was not shown.

141Ms. Haroon said that on the mobility issue she had made it clear in her report that her decision was based upon the bond between father and child. She said that Jennifer would have to maintain the bond and at the time of her report there was evidence that she was not motivated to do so.

ANALYSIS OF CUSTODY AND MOBILITY ISSUES

Custody

142The only test is what is in the best interests of the child as "best interests' is defined in s. 24(2) (3) and (4) of the CLRA. There is no doubt that Logan loves both his parents and each can meet his instrumental needs. I will only set out those sub-sections which are directly relevant to the resolution of this matter.

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

143The evidence is clear that Logan has been in Jennifer's primary care for his entire life. To say that is not to criticize Michael - it is just a fact. Michael has a good full time job and after Logan's birth it only made sense for him to continue to work and for Jennifer to stay home on her year long maternity leave. When that leave ended Jennifer continued to stay home with Logan until Michael left the home in August 2015. Since then Logan has resided with Jennifer and her parents in the same home. I have found that Michael has had Logan with him at every opportunity that he has had. I have found that the access schedule should have expanded to overnight visits more quickly than it did but ultimately the parties consented to expansion. Michael has had Logan with him at least every three days since May 2016. This has allowed him to develop a strong bond with his son.

144Despite all of the conflict in this matter the parties are to be commended for their devotion to their son and to keeping to the agreed upon schedule throughout a period during which each of them desperately wanted a different arrangement. Logan has no doubt benefitted from this stability in contact.

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

145I will consider this sub-section only to the degree that it bears upon custody as the plans for care in this matter are entirely dependent upon my decision on the mobility issue. Jennifer's plan is that she continue to be the primary caregiver and that a custody order be made in her favour. She argues that this would be a continuation of the status quo with respect to decision making.

146Michael's plan is that the parties share joint custody and that a parallel parenting plan should be implemented. There was no real evidence led as to how parallel parenting would work in practice. As noted above Ms. Moss proposed 5 exchanges is 14 days. It was not made clear what sphere of final decision making would be undertaken by Jennifer and what sphere would be undertaken by Michael. It was clear that, for better or for worse, Jennifer had made all of the decisions to this point.

147Mr. White argued that there is no legislative mandate for the term "parallel parenting" and it appeared to have been developed in some cases to address situations where both parents are competent and capable and they both want to be recognized as custodial parents each able to make final decisions for their child. He submitted that parallel parenting should not be used when parents are unable to effectively communicate. He said it should only be ordered where there is good communication and consultation and the parents agree to decide between them who shall make the final decision in the event of disagreement in a certain area. He said that the concept did not eliminate the need for effective communication before any order for joint custody could be considered.

148As noted above the leading case with respect to whether a court should make a joint custody order is Kaplanis. I reviewed the factors set out in that case against the factual findings that I made in this matter. I will review the factors in order.

1. I had found that there is no evidence of appropriate communication between the parents. All of the evidence is that the e-mail communication was demanding and accusatory. The text communication was much better but neither party trusted the other to any degree at all. All statements made were viewed in the context of the ongoing dispute. Michael's emails were often both demanding and demeaning. Jennifer's were better but she did not disclose much about Logan without being asked a direct question and that contributed to the problem. Overall though I found that Jennifer was much more forthcoming and reasonable than Michael accused her of being. The thrust of Michael's evidence on the communication issue was that he was the victim of an alienating parent and the evidence did not support that theory.

2. Joint custody cannot be ordered in the hope that it will improve the party's communication. The evidence is clear that at the time of trial the parties are unable to communicate co-operatively and in their son's best interests. Once this financially and emotionally exhausting litigation is completed there is no reason to think that the referring to the parties as joint custodial parents will improve their communication. The without prejudice joint custody order that has been in place for two years has not led to good communication so it is difficult to see how a final order to that effect will assist.

3. Just because both parents are fit does not mean that joint custody should be ordered. I have noted that both parents are competent and individually could effectively parent Logan. There is no presumption of joint custody though.

4. I do not find that Jennifer has failed to communicate in order to show that joint custody cannot work. She has responded to all communication and made some, albeit very minor proposals for additional access. She has not tried to sabotage communication for an ulterior purpose of getting sole custody.

5. 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. Logan is three and a half years old. It is impossible at this age to anticipate all of the decisions that will need to be made over the course of the next 12 or 13 years. Putting mobility considerations aside both parents are in housing that may change in the near future. Decisions need to be made regarding Logan's school, and his before and after school programs. While the pre-school stay at home parent situation has led to a stable schedule that is soon to change. The parties will have to construct a new parenting schedule and they have shown no ability to work together in so doing. The consent orders made were really quite illusory as they were simply agreements to disagree as each party jockeyed to try and advance their primary position.

6. The younger the child, the more important communication is. As stated above Logan needs all of his decisions made for him. He is too young to express views and preferences and will be for quite some time to come.

149I should address the Court of Appeal decision in Ladisa a decision released at the time of Kaplanis in which the court accepted that there was intense conflict between the parents but did not interfere with a joint custody order. The factor that distinguished the Ladisa case from Kaplanis, and the case before me, is that despite the conflict, in emergencies and when the parents had an opportunity to consider the real interests of their children, they behaved appropriately. The parties co-existed at the doctor, at school functions and activities. In the case before me the parties fought about access to the doctor and could not even agree on napping, feeding, potty training, car seats and a myriad of other day to day decisions. Michael was present for the dental surgery, at the invitation of Jennifer, only after a series of scathing emails sent by Michael alleging a refusal to provide information about Logan's dental care. The emails were unfair and inaccurate but they highlight the point that Michael did not trust Jennifer to provide him with timely and accurate information and he second-guessed or critiqued all of her decisions.

Past conduct

The domestic violence evidence was relevant to the past conduct. The relevant sub-sections at s. 24 read as follows:

s. 24 (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. 2006, c. 1, s. 3 (1); 2016, c. 23, s. 7 (2).

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;

150A great deal of evidence was led on the history of the parties' relationship and the issue of domestic violence which included emotional abuse. I understand that Ms. Haroon, the clinical investigator from the OCL, spoke to both parties and was aware of allegations and had access to the audio tapes. She found that there was domestic violence but concluded that both parties engaged in the abuse and it was difficult to tell who did what and when. Most importantly she understood that in the time between the August 2015 separation and her April 2017 report that there were no further incidents of abuse. She did not ultimately resile from her conclusions but she was very clear that if she had new information that was suggestive of ongoing abuse and an ongoing power imbalance she would have to reconsider her recommendation for joint custody.

151A Children's Lawyer report is invaluable to the court. A clinical investigator is able to conduct interviews with parents, the child and collaterals and to observe a child with each of the parents. The evidence provided is always helpful to the court. However, the case law is clear about the limits of such a report. An OCL report differs from a full CLRA s. 30 expert assessment. An OCL report is, in its nature, a fact-finding report. The recommendations that result are a starting point; not the last word. Ganie v Ganie, 2015 ONSC 6330.

152The simple reality is that Mr. White's effective cross-examination demonstrated that:

a) Michael lied to Ms. Haroon about his role in the domestic violence.

b) She was not aware of other indicia of a power imbalance in this case such as Michael's statements to Jennifer about her inadequacies.

c) She had not reviewed the e-mail correspondence parts of which she conceded were accusatory and demanding.

153Ms. Haroon also did not have the opportunity to see the party's statements and positions challenged in court. The cross-examination of each party was very illuminating. Michael initially presented as friendly and well spoken. He was relatively comfortable speaking in public and it was not difficult to see that he could be charming and likeable which is how everyone, including Jennifer, described him. However, when forced to examine his actions under cross-examination Michael always deflected away responsibility. Michael did not accept any responsibility for the bruises on his pregnant girlfriend's body. Even on the witness stand he blamed Jennifer for contacting her own father during and after conflicts as that had the effect of making him look bad and undermined his relationship with her father. In fact Michael went out of his way to be nice to Jennifer's father. He knew that Mr. Humphries had heard him screaming through Jennifer's cell phone when she called him in the midst of, or just after, he had completely lost his temper with her. Ms. Haroon did not see Michael's very fragile emotional state. He broke down frequently when giving his evidence. She did not hear him blame Jennifer for everything that had gone wrong in his life. Mr. White summed it up best when he put it to Michael that nothing was ever his fault. It was clear from Michael's evidence in the fall of 2017 that he was still as bitter and resentful towards Jennifer as he was on the day he left her.

154Jennifer presented as a shy and withdrawn person who spoke very softly. She appeared to lack confidence. She was not shaken in cross-examination. She was clear and consistent in giving her evidence about the abuse. She admitted that she did not remember all of the dates correctly and may have the sequence of some events mixed up. She stated that she wanted to believe that Michael loved her and that he would change and that is why she did not report the abuse and even lied to protect him. She was very close to her parents but had not told them that she was hurt while pregnant. There was credible evidence from the Romita brothers that Jennifer could be feisty and that she yelled at and criticized Michael in their presence. There was also evidence that she yelled at her father during a dispute and called the police on him. I find that this evidence does not mean that Jennifer was not the victim of domestic violence. It simply means that when there are other people around she is able to speak her mind and can get angry at Michael and others. I find that as the parties cannot recollect exactly what happened in each incident described in court that no one else will ever know the real truth. I also find that Michael's blanket statement that he never touched Jennifer unless incidentally when leaving his apartment to be incapable of belief. Jennifer admitted that she did not want Michael to leave. I am sure that she did try and block his way. She did plead with him to return when he left the home for days on end. When she called the police on her father it was because her father did not want to let her go back to Michael where he knew she was being hurt.

155On all of the evidence I find that Michael did abuse Jennifer physically, emotionally and financially. In this litigation she was able to redress the power imbalance by having counsel available. This frustrated Michael who contacted her directly on numerous occasions to pressure her to make a deal with him outside of court and the lawyers. Once the lawyers are gone he will no doubt press his advantage. Jennifer has also been somewhat insulated from Michael by being able to have her parents available for access exchanges. Both parties respected Mr. Humphries as an intermediary and he was fair and even handed. I accept his evidence that he will be retiring and returning to Deer Lake, so that there will be no one who can ensure emotionally safe exchanges of the child.

156The presence of such a power imbalance in this matter means that joint custody is not possible. I will make a final custody order in favour of Jennifer.

MOBILITY

157Mobility cases are by their nature very fact-driven. However, the facts of each case must be examined in light of the principles set out by the Supreme Court of Canada in Gordon v. Goertz. I will review the facts of this matter under sub-headings formed from the principles found at para 49 of the judgment.

No legal presumption in favour of de facto custodial parent.

158I have found that Jennifer was the de facto custodial parent for Logan's entire life and that she should be granted custody of the child. This does not mean that she is presumptively entitled to move his primary residence wherever she wishes. A custody finding is a significant factor but it is far from the only factor.

The focus is on the best interests of the child and not the wishes of the parent.

159Gordon reminds us that the best interests of the child must prevail in the determination of a request to move the child's primary residence. The request to move once made requires the court to look at all of the surrounding facts and the respective plans of the parents to determine which plan is in the child's best interests. The court cannot simply construct a plan that might work well, it must compare and contrast the actual plans put forward by the parties. The best interest's analysis must consider all of the actual evidence supporting the respective plans

The court should consider the existing parenting arrangement.

160Notwithstanding Ms. Moss' submission that the MGPs have not yet moved and may never move if Jennifer stays in Mississauga I find that the evidence does not support that position. I find that they are determined to retire in Deer Lake and, having postponed this move since 2013 when their daughter became pregnant, they will move once this litigation is concluded. The MGPs are from Deer Lake. While Mr. Humphries started working in the area as early as 1979 and the MGP raised Jennifer here until the age of 12 they returned to Deer Lake for her high school and university years. They then used to travel back and forth on a seasonal basis. It was not until 2009 that the MGP moved back to Ontario on a year round basis and even then they went back to Deer Lake at all holiday times. They have a fully furnished house there and they have another little house that they plan to renovate for Jennifer and Logan. Mr. Humphries is 61 and his work involved hard physical labour. Finally, Mr. Humphries was an excellent witness and I accept his testimony that he will sell his business as soon as possible and move "home".

161The parenting arrangement since August 2015 when Logan was only 16 months old has been that Jennifer and Logan have lived in the home of the MGP. The MGP have been with Logan every evening and weekend that he is not with his father. They have facilitated all of the access exchanges as the evidence was that the MGM would take Logan from the doorstep and the MGF would be close by to intervene in any argument. They have financially assisted Jennifer which has not only provided her with free rent but also allowed her to enrich Logan's life with activities such as swimming, gymnastics and soccer. Logan will not remember a time when he did not primarily live in the home of his MGP. If Jennifer is not permitted to move with them to Deer Lake then Logan's life will dramatically change. If he stays in Mississauga it is likely that he will be caught in the middle of his parent's ongoing conflict.

The desirability of maximizing contact with both parents.

162With a move to Deer Lake Logan will lose the frequent in-person contact he has always enjoyed with his father. To his credit Michael has consistently exercised positive access with Logan since the time of the separation. That access has graduated over time consistent with the age and stage in life of the young child. There is no way such frequent access can occur in person if Logan moves to N.L.

The custodial parent's wishes to move are only considered if they are relevant to their ability to meet the needs of the children.

163I find that the main reason for Jennifer to want to move to Deer Lake is the fact that her parents are retiring there and they do provide her with emotional and financial support. A desire to live with or close to one's parents in and of itself may not justify moving a child's primary residence to another province. However, I have looked at the reason for the move against the factual findings I have made. If her parents move Jennifer will be socially isolated in Ontario. Apart from one cousin she rarely sees she has no other family in southern Ontario. Despite living in Mississauga since she was 23 years old, 36 year old Jennifer has no real friends here. She describes herself as shy. Michael's family members state that she is withdrawn and does not connect with any of them. Michael himself states that Jennifer cannot get along with co-workers and that may explain why she has had so many jobs. Despite jobs where she would work with many other young women in restaurants she has not formed any lasting female friendships and there was no evidence of any other romantic relationships. She clung desperately to a relationship that she began with a teenaged boy and even when he rejected her she fought to get him back as she had no one else in her life.

164While it is certainly not determinative it is significant that Michael confirmed to Jennifer in FaceBook Messenger immediately after learning of the pregnancy that he would not prevent her from taking the baby to Deer Lake. It shows that he fully expected that she would want to move. At that time a desire to move was not related to access arrangements or jobs or even schooling. He knew that she would be lost without her parent's direct support. From that point on a move to Deer Lake was always uppermost in the minds of both parties.

165All of the evidence shows that the party's relationship was not healthy for either of them. They were not even dating from October 2012 to October 2013. The child was conceived when they were "on a break" and Michael was dating someone else. They only began living together in October 2013 because Jennifer became pregnant with Michael's child. Jennifer forced a relationship that should not have continued. Michael was never truly committed to it and it was largely an unhappy union from the very beginning. The only thing that will connect Jennifer to Ontario once her parents leave is that her child's father lives here. She does not want to be in Ontario. There is no doubt she will be very unhappy here.

166As Logan's custodial parent her deep sense of isolation and unhappiness will inevitably impact upon her parenting of him. It is likely that she will be resentful of Logan's father for effectively forcing her to live in a small apartment in Brampton instead of her parent's spacious home in Deer Lake. If she is permitted to move to Deer Lake she will be returning to a loving home. She was most successful in her life when she lived in that small community and was an A student in high school. Her shy and retiring personality may be better suited to a quieter more familiar place.

The disruption to the child by change in school, community and family they have come to know.

167The only real disruption, and it is a significant one is the loss of frequent in person contact with Michael and his family. Logan is completely dependent on his parents for all of his needs. He has no independent connections. He has never been to a daycare and he has not started school. The only evidence of a friend is Abby, a little girl who went to the same gymnastics class. If Logan is ever going to move from Brampton to Deer Lake this is the best time for it to happen.

168I have also looked at other mobility cases. The Ontario Court of Appeal dealt with mobility in Bjornson v. Creighton (supra). In this case the mother had left her home in Alberta to move with the father to Ontario. She was simply unable to earn the income as a nurse in Ontario that she had with all of her seniority in Alberta. After the separation she wished to return to Alberta with the child. Austin J.A. said at paragraph 21:

… the trial judge erred in reducing the issue of the child's best interests to one that deals only with employment. In doing so, the trial judge overlooked or disregarded the social, psychological and emotional aspects of the mother's desire to return to Alberta with the child. Bjornson wishes to return to Alberta to regain the general stability, control and independence that she enjoyed in her emotional, professional, psychological and social life there.

169Bjornson was also a case that had evidence of a dysfunctional parental relationship. The mother testified that when she left her husband:

. . . I felt like I had to do it legally and with legal counsel because I did not trust Bill and he's always been somewhat controlling and manipulative with me so I felt like that's what I had to do.

170There was other evidence of the power imbalance that existed in that case as it does in the case before me:

[27] Her sister also expressed the view that, throughout the relationship, Creighton exercised both financial and emotional control over Bjornson. This continues notwithstanding their separation. Creighton still retains a degree of control over Bjornson's life. One illustration of this control is Creighton's manner of exercising access. Although the present agreement is for Creighton to have the child living with him from Thursday evening until Sunday evening, Creighton usually keeps the child over Sunday night and delivers him to school on Monday morning. He regards this as a matter of his choice despite the agreement. [page244]

[28] Moving to Alberta, where she plans to resume a well- adjusted and independent life -- a life that she worked hard for and had achieved there previously -- will, in all the circumstances of this case, enhance the best interests of the child. This is particularly true when contrasted with the potential negative effects of prohibiting Bjornson from relocating. The evidence indicates that Bjornson has neither the 12 years' seniority status that she accumulated in Alberta nor the full-time hours, self-scheduling and full benefits, including pension, which came with her lengthy period of employment there. She also does not have the support of her friends and family which is beneficial, if not crucial, to raising a child as a single parent. In this case, the child's best interests are better served and better achieved by a well- functioning and happy custodial parent, operating at her full potential.

[29] In Gordon, the Supreme Court of Canada reiterated that the best interests of the child test governs relocation disputes. Ultimately, the only issue is what is in the best interests of the child. In determining this, careful attention should be paid to the potential negative effects on the child should the custodial parent be restricted from relocating. Likewise, careful attention should be paid to the potential positive effects on the child should the parent be permitted to relocate (Woodhouse v. Woodhouse (1996), 29 O.R. (3d) 417, 136 D.L.R. (4th) 577 (C.A.) per Weiler J.A. at p. 439 O.R., p. 597 D.L.R.).

[30] With the greatest respect to the learned trial judge, he did not contemplate what improvement, if any, would result to the interests of the child if the custodial parent were permitted to move to Alberta. I agree with the statement of counsel for the mother, as expressed in her factum, that the trial judge failed to "give due regard to the relationship between the quality of the custodial parent's emotional, psychological, social and economic well-being and the quality of the child's primary care-giving environment". The learned trial judge failed to appreciate the multi-faceted nature of the mother's desire to return to Alberta with the child and the concomitant positive effects on the child's best interests in being cared for by a well-functioning and happy custodial parent.

171There are, of course, differences in the facts in Bjornson and the case before me. In the former the mother was returning to a good job whereas Jennifer does not have immediate job prospects in Deer Lake. However, the court's emphasis on the social and psychological well-being of the custodial parent and its positive impact on the child's life are directly applicable to this matter. It is noteworthy that in Bjornson the father had extensive overnight access to the child which would end with the move. The court noted both the negative effects upon the child of not moving and the positive effects of a move. This case makes it clear that the best interest's analysis cannot be focused on the loss of Michael's access or the application of the maximum contact principle.

172Ms. Moss referred me to a number of cases in which mobility applications were denied and emphasized that the cases were decided on their particular facts. She referred to MacDonald v. Robinson, 2013 ONSC 86 . In that matter the mother wished to move from Ottawa to Sydney N.S. for better job prospects and because her mother and other family members resided there. Justice J. MacKinnon stated that:

[47] I appreciate that serious weight and consideration must be given to the wishes of the custodial parent. So doing does not override the court's obligation to rule in the best interest of the child. Here, the current practical reality does not support the mother's proposed move to Sydney with Teaghan. The plan was put together very quickly with the result that the court was really left in the position of not being able to perform an independent evaluation of it. With only the testimony of the applicant, and in the absence of any supporting medical, employment or family witnesses, the court is essentially asked to accept at face value the applicant's testimony that her proposal is in the child's best interest. In my view, so doing would be tantamount to giving her the benefit of a presumption in favour of her entitlement to move the child, which the law does not provide.

173This case is distinguishable from the case before me in that there was no real evidence before the court about the life that the child would have if the move were permitted. The court did not even have the evidence of the grandmother with whom the mother and daughter planned to live. By way of contrast Jennifer and her father addressed all of the details of life in Deer Lake and the plan was a continuation of Logan living primarily with his mother and MGPs.

174Both counsel referred to Boudreault v. Charles, 2014 ONCJ 273 . This was a motion for a temporary mobility order permitting the mother to move from Toronto to Montreal. Ms. Moss cited it for the fact that although the mother was permitted to move she was required to bring the child back to Toronto every third week for supervised access. She said that it was distinguishable as a relocation case due to the fact that ongoing access was not that impacted. Mr. White cited it as a good review of the law on mobility in Ontario. In Boudreault Justice Sherr reviewed the case law. The points most relevant to the facts of the case before me are as follows:

a) The financial security of the moving parent is a relevant factor in mobility cases. See Greenfield v. Garside, 2003 CarswellOnt1189 (Ont. SCJ).

b) Several cases have recognized that requiring a parent to remain in a community isolated from his or her family and supports and in difficult financial circumstances will adversely impact a child. The economic and financial benefits of moving to a community where the parent will have supports, financial security and the ability to complete their education and establish a career are properly considered in assessing whether or not the move is in the child's best interests. See: MacKenzie v. Newby, supra, paragraph 53, where in paragraph 54, Justice Roselyn Zisman also accepted the following passages from Lebrun v. Lebrun [1999] O.J No. 3393 (SCJ) where the court wrote at paragraphs 32-34 as follows:

32 The children's need for shelter, food and clothing which could be provided by adequate earnings by the mother must take priority over the disruption of a move, and reduced contact with the father and his family. The intellectual and emotional flowering of these children cannot occur until their basic physical needs are met.

33 The economic realities require that the mother be free to pursue employment which will permit her to escape the welfare rolls. I am confident she will manage the move in a way which promotes the children's best interests.

34 An order restricting the residence of the children would, as in Woods v. Woods reflex, (1996), 110 Man. R. (2d) 290 C.A., condemn the mother and children "to a life of penury with a dissatisfied [mother] bereft of work and dignity. The alternative is to empower the [mother] to improve their lives from both a material and psychological standpoint." While the security of the positions offered to the mother cannot be assured, I am satisfied that the prospects of good, full-time employment are much better in southern Ontario. Leave is granted to the mother to move the residence of the children within Ontario.

175After applying the law to the particular facts of this case I am ultimately left with the decision as framed in paragraph 50 of Gordon (supra). I find that in this case the importance of the child remaining with Jennifer, in whose custody and primary care he has become accustomed, in the new location, outweighs the continuance of full contact with Michael and his extended family. I find that not restricting Jennifer from moving Logan's primary residence from Mississauga to Deer Lake N.L. is in Logan's best interests.

Access after the move

176FaceTime access on the same days as the current access can be ordered so that Logan can see his father as well as talk to him. It will be critical for Jennifer to facilitate this contact. I understand that Michael and his family may have no confidence that she will do so. I find that despite the party's toxic relationship and the domestic violence that happened over time Jennifer has been able to separate her personal feelings about Michael from her understanding that Logan needs a positive and health relationship with his father. If I am wrong in assessing her motivation I am quite sure that her parents will support a relationship with Michael and his family. Mr. Humphries was a witness to some very abusive behaviour by Michael yet he never reacted negatively to him and he facilitated the frequent contact that occurred. I am confident that Jennifer will be supported in her parent's home to ensure frequent FaceTime contact. I will not limit the amount of the contact. However, I think it is important to put some structure around it to prevent allegations and cross-allegations that a parent was, or was not, available for the calls. Michael has seen his son at least every three days. That frequent contact should continue by way of FaceTime. In this way the arrangements that Michael has made at work to leave early some days and stay late others can continue (or he can FaceTime his son from his office). Deer Lake is one and a half hours ahead of Toronto so that a bedtime call at around 7:30 for Logan will need to be placed by 6:00 p.m. Toronto time. I will provide that Jennifer can always have Logan call more frequently but if she does so she must not criticize Michael if he is not available given work commitments and travel in the GTA.

177What will be lost in terms of frequency of contact will be addressed to some degree by the length of the visits. Despite the distance, travel to and from the parent's homes will not be as onerous as travel might be for parents who live much closer together. This is because Michael lives in Brampton close to Pearson airport and Jennifer lives within an eight minute drive from an airport with two direct flights a day to Toronto. Michael should be able to see Logan on an overnight basis anytime he is able to fly to Deer Lake.

178I understand that Michael will want his visits to be at his home and that he will want to include his large extended family in special times. I will require that Jennifer facilitate this by bringing Logan to him for four extended visits during the year. Jennifer had agreed that Michael should have long visits with Logan for the Easter week school break, for three to four weeks in the summer, for five days or so at the fall break and for essentially one half of the Christmas school break. There was a lot of evidence about the importance of Logan's contact with his PGP and his many uncles, aunts and cousins in the GTA. The Romita family is clearly a close and loving family. They have strong bonds with Logan and have expressed a desire to see him involved in family celebrations. I find that Logan will benefit from extended contact with his paternal family. Like many children of separated parents Logan will have an entirely different experience with the Romitas in the GTA and the Humphries in Deer Lake. He will go from the home of a quiet family in a small town to that of a large, boisterous family in the GTA. This should be seen positively by both families and Logan's life will be enriched by these very different families who are both part of his core identity.

CHILD SUPPORT

179This case was about custody and mobility and relatively little time was devoted to the financial issues.

Table support

180Mr. Humphries confirmed his daughter's evidence that Michael did not offer to pay anything to Logan after the August 9, 2015 separation. He also confirmed that even prior to the separation he provided monies to her for groceries. He said that Michael had put her on a strict budget as she did not work after her maternity leave ended and he felt he had to give her money when she asked. He said that at one point Jennifer told him that Michael wanted Mr. Humphries to contribute $500 a month to her budget! Mr. Humphries said that Michael did not send any child support until Mr. Humphries retained a lawyer to send him a letter.

181It appears that Michael paid table child support retroactive to the separation. An order for child support was made on consent on November 25, 2015 for $594 per month based upon an income of $65,000 per year. The evidence was that this order was increased by the use of the online program available to payors of support who only have T-4 income. Both parties said that Michael should now pay table child support of $684 per month from January 1, 2016 on his 2016 income of $72,256. Both parties were prepared to increase that support to $702 per month effective December 1, 2017 as that is the new table amount on that income pursuant to the 2017 tables.

s. 7 expenses

182Briefly stated the evidence was that Logan was involved in a number of extra-curricular activities but Michael was never asked to contribute to their cost and he did not volunteer any money. Jennifer's parents assisted her with the costs.

183Jennifer said that Logan was taking Red Cross swimming lessons at the time of separation. Michael told her he would give her money for them but he never did so. She said he would have known the cost and he was fully aware of the activity. Jennifer's evidence was that the swimming lessons cost $93 per year in 2015 but that in 2016 and 2017 she put Logan in the Making Waves swim school that had a 3:1 teacher to parent ratio. She said Michael was aware of this program because Logan was in it prior to the separation but the invoices do not support that. The cost was $647.81 in 2016 and $1,088.59 in 2017.

184Jennifer put Logan in a gymnastics program. Initially it was a program for very young kids called Monkeynastics, and then he was placed in one called Future Gymnastics which was for older children. In 2015 the cost was $147.50, 2016 $586.20 and in 2017 $778.95. Jennifer did not tell Michael about gymnastics, she dodged his questions when he asked. It appeared clear that Jennifer did not want Michael involved in these activities which she had scheduled on her time with her son. Sometimes activities were in the afternoon on weekdays so he could not have attended due to work. Other times they were in the later afternoon. Michael said he would have left work early to attend if he had known about gymnastics. (He was already leaving work early two weekdays one week and one weekday on the other week for his late afternoon/evening access so there may have been a limit on his ability to do this).

185Michael became very emotional in his evidence as to the opportunities that he had lost to bond with his young son over swimming and gymnastics. In essence he accused Jennifer of trying to alienate him from his son by excluding him from "massive parts" of his son's life. He was extremely upset that report cards from swimming and gymnastics were very positive about Jennifer's involvement when he did not have the chance to be involved and therefore receive the same comments. While no doubt genuine his level of emotion seemed far too focused on what he had lost without any true recognition that Jennifer had found appropriate and fun activities for their son. The parties admitted that their relationship was toxic. Michael had Logan with him three weeknights in a 14 day period and Friday night to Sunday night every second weekend. There was no evidence that Michael had ever taken Logan to family swim time at a recreation centre or that he made any suggestions to Jennifer about programs he would like to participate in. As with much of his evidence Michael simply presented himself as the victim of an alienating ex-partner. He never took the initiative to find organized programs on his own.

186Michael was especially aggrieved over soccer. He suggested in the spring of 2017 that Logan should play soccer. He did not inquire into any programs. Jennifer then registered Logan to play, without consulting with Michael before so doing. Michael felt that she had appropriated his idea and that was grossly unfair to him. Jennifer invited him to attend soccer and he did go to all but three of the games. Jennifer's stated concern that Michael would push the boundaries if invited to be involved with Logan on non-access times was validated when Michael insisted on going on to the field and speaking with Logan's coach rather than just observing his son.

187In the context of what I have found to be a high conflict abusive relationship Jennifer's desire to not have Michael around for late afternoon activities is understandable. It was clear that she did not send him invoices for the costs because if he was asked to pay he would want involvement. When the litigation dragged on Jennifer was asked to produce invoices and she did so for the questioning in June 2016.

188I have reviewed the provisions of s.7 of the CSG. I find that the activities that Logan was involved in were reasonable for a child of his age and abilities. I find that the cost of the activities was a little high in 2016 and 2017 in relation to the means of the parties at that time. Michael earned about $65,000 in 2015 and $72,256 in 2016. Jennifer's E.I. maternity benefits had expired before the separation so her only income was the child tax benefit. In 2017 Jennifer expended $2,092 on s.7 extra-curricular costs for a child who was only three years old. She was able to do this only with the financial assistance of her father. I do not criticize her for her choices but I am responsible for ensuring that any order that I might make for Michael to contribute is according to law.

189The CSG do not provide that a party has to be aware of an expense in order to be required to pay for it. However most agreements and orders, particularly ones where both parties are actively involved in their child's life, do require a consultation process before a child is registered and the production of information and invoices. In this matter Jennifer made a choice not to involve Michael and not to provide him with any information. I find that in these circumstances it would not be fair to require Michael to contribute retroactively to such costs. I also find that by June 2016 Michael was fully aware not only of the particulars of the activities but the costs involved. Therefore Michael should be required to contribute to 2017 costs. I find the actual costs to be too high so I will reduce them to $1,200 per year. This is more than enough to allow Logan to participate in a recreation centre swim program, soccer and gymnastics for young children. I have reviewed the SupportMate calculations filed and note that if Jennifer is imputed to have an income of $15,000 in addition to her other government benefits Michael should contribute 75% of the s.7 costs. That amounts to $900 for the 2017 costs. Given the total amount of ongoing monies Michael will owe as a result of my decision I will order that Michael pay $100 per month for nine months to the retroactive amount.

190There is so much conflict between the parties that I find that my order should be as simple as possible. Therefore I will continue a s.7 budget of $1,200 a year into the future and require that Michael pay 75% or $900 a year. This amounts to $75 per month and this sum can be part of the support deduction order and collected by FRO. Jennifer will of course have to send invoices annually to prove that she is spending the budgeted amount. If she spends more than the budgeted amount she has to pay the additional amount as she will be in the best position to make decisions as to what programs to register for each year.

191The budget is set based upon the party's current income difference. It is possible that the gap will narrow if Jennifer obtains full time employment and Michael's income does not go up a similar amount. If the total parental income is higher than the budget for s.7 expenses can increase. If Jennifer earns more money she will be able to afford more s.7 costs even if Michael remains contributing $900 a year. If there is a material change in income and/or s.7 expenses a motion to change can always be brought. The fixed monthly amount ensures that there is always money coming in for Logan's s.7 costs even if the parents disagree about what he should be doing and how much they should each contribute.

SPOUSAL SUPPORT

192Jennifer sought spousal support in her Application. No spousal support was ever paid and no motion for spousal support was ever brought.

Entitlement

193Mr. White said there was entitlement to spousal support both on a compensatory and financial need bases. Ms. Moss emphasized that since separation Jennifer had not taken any steps to advance her education or obtain employment. She argued that spousal support should be reviewable five years post separation. She also argued that if Jennifer was to stay in Brampton Michael recognized that she would have higher costs as she would not be able to live for free with her parents. She said that if Jennifer was imputed to have an income of $15,000 then spousal support at the high end of the range of about $1,000 a month for a limited time would be appropriate. Ms. Moss also said that there should be no retroactive spousal support as Jennifer's father met all of her financial needs and she chose not to work or to go to school.

Compensatory support facts

194Mr. White quite correctly stated that when there is a child of the relationship there should be compensatory support at least while the child is not yet school age. The evidence was that Jennifer had not worked since Logan's birth in April 2014. She had been his primary caregiver prior to the separation in August 2015 because Michael worked on a full time basis. She had tried to do some online courses but she felt that she did not have any assistance from Michael with child care so she had had to withdraw from them. After the separation she moved in with her parents. Both of her parents worked on a full time basis in her father's business. She was responsible for all of Logan's care except when he was with Michael. He said it was not reasonable to expect that Jennifer could work and or attend university or college in these circumstances. Mr. White said that Michael had benefited from the fact that Mr. Humphries had been able to subsidize his daughter. Michael now earned $75,276 a year and had not paid "a dime" in spousal support. He said Jennifer should not have been required to incur the legal costs of a motion as Michael should have paid something voluntarily.

195Michael's evidence was that when they met Jennifer was working on a full time basis. She had talked vaguely about finishing her education and getting a government job but he considered it a "pipe dream". He said he led her to believe when they lived together that she was taking online courses at Ryerson. That is what she stated in her affidavit material before this court. He denied her statement that he did not help her with child care so she could study. He said that he was good with finances and computers and he could help her with her business courses but she never let him do so. She told him nothing about the courses and he was completely unaware that she had withdrawn from every university course she had taken since 2002. She had completed some high school updating in math between 2003 and 2010.

196Michael compared Jennifer's lack of effort to his own career path. He had taken a three year college advanced diploma course and found full time work shortly after. He made "a big move" in his career by finding a well-paying job in downtown Toronto. He was only 28 years old and he earned over $75,000. She was 36 and had only ever held waitressing, reception and retail jobs. Money had been a big source of tension in the relationship and Michael was clearly of the view that since he earned it he should be able to determine how it was spent. He was very demeaning to Jennifer when speaking of financial issues and scoffed that she "seemed to be happy with being a waitress".

197Michael was particularly frustrated that Jennifer had no firm education or career plans. He wanted to help her with that as she needed to contribute financially to the relationship. Ms. Moss noted in her submissions the evidence that Jennifer did not even create a resume despite giving an undertaking to produce one in June 2016. Jennifer's response that she was not looking for employment in the GTA was taken by Michael as a sign that she was lazy and content to be dependent upon Michael and her parents. I find that it was not unreasonable for Jennifer not to look for work due to her child care responsibilities and her uncertain future with a decision on her planned moved to N.L. being postponed time and time again by this litigation. It makes perfect sense that if she is required, in effect, to live in the GTA she will have to work to afford daycare and if she is able to go to Deer Lake the free housing will allow her to pursue her education.

Jennifer's Financial Independence

198I do have difficulty with Jennifer's statements that she plans to finish a university degree and get a good paying job. The facts are that Jennifer did not succeed in university immediately after being an A student in high school. For whatever reason she was unable to pass courses even when she did not have the responsibilities of a part-time job or a child. She made a decision to not attempt to go back to university from the time she was 22 to the age of 36 even though she would have had the full emotional and financial support of her parents had she chosen to do so. I do not know why Jennifer did not pursues education or some type of career. In giving evidence she seemed quite intelligent. She had a good memory for the facts. She was wise enough only to answer questions asked and not to go out on a limb. With a few notable exceptions around s.7 activities she generally did her best to give full and direct answers. She was quiet and her voice trailed away at times, but she was a co-operative witness even under tough cross-examination and she handled herself well with only a few tearful moments when discussing particularly difficult topics. I cannot speculate as to why Jennifer did not complete her education before having a child. To the extent that the past is the best predictor of the future it seems unlikely that she will succeed in getting a university degree and a well-paying job. For her sake I hope that I am wrong.

199The wider implication to Ms. Moss' submissions is that Jennifer lacks energy and does not want to support herself. This submission is not supported by the facts. By her own admission Jennifer is shy and somewhat withdrawn and does not share Michael's ambitious outlook. She concedes that she lacks the charm and social skills that Michael displays. Nevertheless Jennifer has maintained steady employment as an adult. She did live on her own for quite some time, worked on a full time basis and had her own apartment and vehicle. I expect that Jennifer will do her best to become self-supporting. I find that that is more likely to happen in Deer Lake where she will have the emotional support that she will need to succeed than it will in the GTA where the pressures upon her would be intense.

Retroactive Spousal Support

200Mr. White submitted that it was not reasonable to expect Jennifer to have earned an income since Logan was born so he urged the court not to impute income to her. He did concede though that Jennifer did benefit from the free housing that she received from her parents and that one way to approach the retroactive support claim was to consider that she received a financial benefit of approximately $15,000 a year as free rent. He then looked at the Spousal Support Advisory Guideline ("SSAG") calculations in the SupportMate submitted and noted that at the low end of the range spousal support would be at least $556 per month and there were certainly good arguments to go above the low end.

201Ms. Moss said that Michael's position was that there shall be no retroactive spousal support.

Ongoing Spousal Support

202Ms. Moss said that if Jennifer was to stay in Mississauga Michael would be prepared to pay $1,000 a month which is at the high end of the SSAG. The SSAGs range for Michael's income with an imputed income to Jennifer of $15,000 per year. Michael viewed this as a significant incentive for Jennifer to stay as she could find a way to earn additional monies and be able to afford an apartment. If Jennifer moved to Deer Lake Michael's position was that he should only have to pay $250 per month and the order should be time limited or at least reviewed in three years. The reasoning for this was that Jennifer would have very low costs in Deer Lake due to free housing and a lower cost of living. Furthermore, if the costs of access were not deducted from child support as Ms. Moss proposed then there should be a lower amount of spousal support that takes those costs into consideration when considering Michael's income available for support.

Access costs

203As noted above Ms. Moss submitted that the annual costs of access should be deducted from the table child support. It was agreed that three round trip tickets four times a year would cost approximately $6,000. If Michael had to pay all of the costs Ms. Moss argued that he should get a deduction on his child support and it followed that the maximum deduction would be $500 a month ($6,000 a year). This would leave table child support at only $202 a month though and Ms. Moss was seeking a spousal support of only $250 per month if Jennifer was in Deer Lake.

204Mr. White said that access costs should be divided in some way but should not be a deduction from table child support. He said that his submission of only $500 per month for spousal support if Jennifer were to move already factored in access costs.

205I find that in this high conflict situation where the parties will be living in two different provinces that there is great benefit to a final order that is fairly simple to adjust and does not require the exchange of money outside the FRO collection system. It is for that reason that I set an annual budget for s.7 costs. I find that for similar reasons table child support should not be reduced for access costs. All of Michael's income is from employment and the parties have already taken advantage of the online annual adjustment. They should continue to do this. If access costs are built into the support calculation many problems could ensue. If Michael does not exercise access how would that non-expenditure of money effectively budgeted for those costs be adjusted? If the access costs, largely airline tickets, increase significantly how will that be accounted for? When Logan is able to travel on his own how will the reduced fares be adjusted with the child support?

206Jennifer has made the decision to move. She has committed to Logan going to Ontario for extended visits four times a year. Her family has a history of travelling back and forth from Deer Lake to Toronto. She made a point of saying that, given her proximity to the airport, travel is relatively easy. I also take into account that this is a high conflict matter in which neither party trusts the other. I find it is easier in long distance access cases for the party with the child to be the one that drops the child off for access. I will make Jennifer responsible for getting Logan to the Pearson airport to be exchanged with Michael and/or members of his family. Logan is still very young. It may well be easier for him to travel in a plane with his mother to see his father rather than leave his mother at the Deer Lake airport while he flies away from her. In the same way it will likely be easier for Logan to accompany his father to the airport to fly back to his mother. There was a lot of evidence in this trial about the different experiences of each parent and what they are able to do with the child. In this way Logan will experience air travel with both parents. It should be a good signal to Logan that both of his parents are committed to him having a strong and ongoing connection with his father and extended paternal family if his mother directly facilitates that by travelling with him to visits.

207Each party shall pay for the cost of their own return ticket and they shall pay for Logan's ticket when he accompanies them. They will exchange copies of tickets in advance so that there is no doubt as to whether the trip will occur. This means that each parent will have to pay about $3,000 in airline tickets per year if there are four trips.

Terms of Spousal Support

208I find that there is merit in Mr. White's submission that spousal support should be set at $500 per month. That submission assumed though that Michael would pay all of the access costs. In the order I will make Jennifer is to pay $3,000 in access costs. I have considered whether to increase spousal support to give her more funds to do so. I must though consider the totality of the support that Michael is required to pay. He will need to save $3,000 a year for his trips back to Deer Lake with his son after access visits. I find that $500 per month is an appropriate amount. The costs are a factor in the quantum of spousal support.

209The spousal support should be for an indefinite period subject to change only upon a material change in circumstances. I have decided against including a review date. A review in a case where there is a dependent child should be based upon some facts being in existence now that make it likely that the financial circumstances of the recipient could be materially different at a fixed point in time. I have already made a finding that I do not expect that Jennifer will complete a degree in the immediate future and have access to a much better paying job at least in the immediate future. This means that there is no point in reviewing spousal support after some deemed date by which she will have a university degree.

210I have imputed Jennifer to have income of $15,000 due her ability to get at least a part-time job with her parents available for child care. I find that even if Jennifer found a full time job in Deer Lake or Cornerbrook that it is not likely that with her current education and work experience that she will earn much more than $30,000 per year. Michael's projected salary for 2018 is $75,000. The possibility of a minor change in spousal support after a review does not warrant imposing another legal proceeding upon the parties. They will be required to exchange Notices of Assessment and if such disclosure reveals a material change in circumstances then spousal support can be addressed at that time.

FINAL ORDER

1. The Respondent Jennifer Nancy Humphries shall have custody of the child Logan Thomas Humphries born April 4, 2014.

2. The Respondent may move the residence of the child to Deer Lake N.L. once the maternal grandparents Thomas Humphries and Wanda Humphries move to that city. The Respondent shall give the Applicant at least 30 days' notice of her move by email.

3. The Respondent may apply for a passport for the child and travel with the child outside of Canada without the consent of the Applicant provided that she gives the Applicant at least 14 days' notice of such travel which shall include a copy of the child's airline tickets, an itinerary of the travel and a number by which he may contact the child.

4. Until such time as the Respondent moves to Deer Lake N.L. the Applicant shall have access to the child as follows:

   a) During the first week which shall begin January 9, 2018 Tuesday from 4:00 to 7:30 p.m. and Friday from 6:00 p.m. to Sunday at 7:00 p.m. provided that if the Monday is a statutory holiday the access shall extend to Monday at 7:00 p.m.

   b) During the second week which shall begin on January 16, 2018, Tuesday and Thursday from 4:00 p.m. to 7:30 p.m.

   c) The regular access schedule shall be suspended in favour of the following holiday access if the Applicant does not otherwise have the child with him at these times:

   i) February 19, 2018 (Family Day) from 10:00 a.m. to 7:00 p.m.

   ii) Thursday, March 29, 2018 at 4:30 p.m. to Easter Sunday, April 1 at 7:00 p.m.

   iii) June 17, 2018 (Father's Day) from 10:00 a.m. to 7:00 p.m. (provided that the child will be with Jennifer on Mother's Day, May 13, 2018).

5. Upon the Respondent and the child moving to Deer Lake N.L. the Applicant shall have access as follows:

   a) Overnight access for any period of time that the Applicant travels to Deer Lake provided that he gives the Respondent at least 14 days' notice by email of his planned trip, which notice shall include a copy of his return airline tickets, proof of where he will be staying while in N.L. and a contact number at which the child can be reached during the visit.

   b) Telephone, Skype, FaceTime or such other electronic communication to be initiated by the Respondent contacting the Applicant and facilitating the child's communication with the Applicant at the following times:

   i) Every Tuesday and Thursday between 6:30 and 7:30 p.m.

   ii) Every alternate weekend on the Saturday between 9:30 and 10:00 a.m. and on the Sunday between 6:30 and 7:00 p.m.

   iii) Provided that this contact may be more frequent in the discretion of the Applicant.

   iv) Provided that the parties may agree by email communication initiated by the Applicant to adjust the days of the call or the times of the contact on the said days.

   c) Every Easter from the day after the beginning of the school holiday to the day before the end of the school holiday.

   d) Three consecutive weeks in the school summer vacation in 2018 and four consecutive weeks in each and every other summer thereafter.

   e) Any school holiday of at least five consecutive days between Labour Day and the Christmas school vacation or the Thanksgiving weekend. If the latter is chosen the child may miss up to two days of school for the purpose of access in Ontario (to make a total of five consecutive days) until he begins high school.

   f) At least seven days during the Christmas school vacation with those days being December 23 to December 29 in every alternate year beginning in 2018.

   g) For the child's access in Ontario on the dates set out in sub-paragraphs c) to f) above:

   i) The Respondent shall purchase a return ticket for herself and a one way ticket for the child and she shall accompany the child on the flight to the Pearson airport where the child shall be exchanged with the Respondent.

   ii) The Applicant shall purchase a return ticket for himself and a one way ticket for the child and he shall accompany the child on the flight to the Deer Lake airport where he shall exchange the child with the Respondent.

   iii) Provided that the parties may reverse the responsibilities in sub-paragraphs i) and ii) if they agree by email communication that doing so is in the child's best interest.

   iv) Provided further that the parties must purchase all airline tickets at least 14 days prior to the travel and send copies by email of the tickets that they purchased to the other party.

   v) A) The Applicant shall be able to pick the summer weeks that he wishes to have the child in every year until he is advised by email communication that the Respondent has full time employment.

   B) In the first summer that the Respondent has full time employment and every alternate year thereafter she shall have first choice of the four weeks in the summer that the child will be with the Applicant in Ontario and in the alternate year the Applicant shall have first choice. The weeks selected shall be communicated by email no later than April 30 in each and every year. The party without first choice shall confirm the weeks selected within 48 hours of receiving the message.

   vi) The Respondent shall forward to the Applicant a copy of the child's school calendar as soon as it is available to her so that the Applicant can decide upon the fall holiday in Ontario and upon the Christmas holiday travel times.

   A) The Applicant shall advise the Respondent by September 30 each year as to what five day period of time that he wants with the child in Ontario between Labour Day and the Christmas school holiday.

   B) The Respondent shall advise the Applicant by November 30 of each year as to the days the child will be with him in Ontario during the Christmas school vacation (provided that the child shall be in Deer Lake from December 23-29 in odd numbered years beginning in 2019.)

6. a) For the period January 1, 2017 to November 30, 2017 the Applicant shall pay to the Respondent child support in the amount of $684 per month.

   b) Beginning December 1, 2017 and on the first day of each and every month thereafter the Applicant shall pay to the Respondent child support in the amount of $702 per month.

   c) The said support is based upon the Applicant's 2016 income of $75,256 a year.

7. a) The Applicant shall pay to the Respondent arrears for 2017 s.7 expenses in the amount of $900 payable at the rate of $100 per month beginning January 1, 2018 and continuing until fully paid.

   b) Beginning January 1, 2018, the Respondent shall have a budget of $1,200 per year for s.7 expenses and the Applicant shall pay 75% of the costs for same based upon the Applicant's income of $75,256 per year and the Respondent's imputed income of $15,000 per year plus the spousal support.

   c) This shall result in the Applicant paying s.7 expenses in the amount of $75 per month on the first day of each and every month beginning January 1, 2018.

   d) The Respondent shall provide to the Applicant by December 31 in each and every year invoices showing that she has incurred s.7 expenses of at least $1,200 per year. If s.7 expenses exceed $1,200 in a given year the Respondent shall be solely responsible for the additional amount. If they are less than $1,200 in a given year the Applicant shall be given a credit for the difference between the $900 accrued for that year and 75% of the actual expenses proven by invoices. The Respondent shall advise the FRO in writing, with a copy to the Applicant, of the amount of the credit to be applied to his account for an over accrual of s.7 expense for the immediately preceding year. She shall send a copy of this order with her correspondence to the FRO.

8. a) The Applicant shall pay to the Respondent as spousal support the sum of $500 per month beginning January 1, 2018 and payable on the first day of each and every month thereafter.

   b) The Applicant shall pay to the Respondent for retroactive spousal support the sum of $4,000 ($500 per month beginning September 1, 2015 and ending December 31, 2017.)

   c) The said arrears shall be paid at the rate of $100 per month beginning January 1, 2018 and payable on the first day of each and every month thereafter until they are fully paid.

9. The Respondent may seek her costs for this matter by serving and filing the following by January 29, 2018:

   a) A Costs submission limited to three pages double-spaced;

   b) Offer to Settle, if any; and

   c) A Bill of Costs.

   The Applicant shall serve and file his:

   a) Costs submission; and

   b) Offer to Settle, if any by February 14, 2018.

   All costs documents shall be emailed to my assistant.