Court File and Parties
Court File No.: Guelph D187/17 Date: 2019-10-15 Ontario Court of Justice
Re: Kathryn Leanne Groff, Applicant And: Christopher Eric Russell, Respondent
Before: Justice K.S. Neill
Heard: July 24, 25, 26, 2019
Reasons for Judgment released: October 15, 2019
Counsel:
- Michelle Dwyer and Kaitlyn Armstrong, for the applicant
- Whitney Smith, for the respondent
Reasons for Judgment
Introduction
1The focus of this trial in the context of a very high conflict case is how decisions should be made for the parties' two young children, Kathryn Brynn Russell ("B.R."), d.o.b.: […], 2011 and Cerys Lee Marie Russell ("C.R."), d.o.b.: […], 2013, and what parenting time is in the children's best interests for the Applicant ("the mother") and Respondent ("the father"). At the time that this second Motion to Change was heard, B.R. was 7 and C.R. was 5. These children have essentially been the subject of litigation for their entire lives.
Background
2When the parties began their relationship in 2009, the mother was residing in Toronto and the father was residing in Rochester, New York. From 2009 to 2013 the parties maintained a long-distant relationship, and the father applied for permanent resident status in Canada with the mother being his sponsor. After B.R.'s birth in September 2011, the father would visit the mother on weekends. The father obtained permanent residence status in Canada and employment in Waterloo, Ontario in January 2013, and moved in with the mother and B.R. to her home in Tavistock shortly thereafter. It was at this time that the mother became pregnant with C.R. The parties separated in October 2013 one month before C.R.'s birth. The father remained residing in the home in Tavistock and the mother and B.R. moved in with her parents in Elora.
3In December 2013, the father moved to Kitchener and the mother and children returned to the home in Tavistock where they lived until October 2015. At that time, the mother sold the home in Tavistock and she and the children moved back in with her parents in Elora.
4On February 5, 2014, the mother commenced an Application for sole custody and supervised access to the father. On January 21, 2015, a final order was made on consent granting the mother custody of the children, with access to the father on alternate weekends from Friday to Sunday and extended access over holidays, including two non-consecutive weeks in the months of July and August.
5On July 1, 2015, while the children were in the care of the father, the mother attended at the father's home and they argued in front of the children. Although the accounts from the parents differ as to what happened that day, it is not disputed that the mother removed the children from the father's home, and she was charged with forcible entry and assault related to this incident. As a result, she had bail conditions to refrain from contact with the father and not to attend at his home. It appears that these charges were eventually withdrawn when the mother entered into a peace bond dated January 7, 2016 with minimal terms to keep the peace specifically towards the father, and not to possess weapons.
6The father did not have access with the children from July 1, 2015 to December 26, 2015. The mother explains that due to the no contact criminal conditions, access exchanges were difficult. However, she acknowledged to Ms. Dyszuk, the clinician with the Office of the Children's Lawyer and to the Children's Aid Society worker that she in fact withheld access to the father during this time as she believed the children needed to be protected from him.
7The father commenced a Motion to Change the order of January 21, 2015 and brought an emergency motion to have his access reinstated. On September 15, 2015 a temporary order was made that the father's access in accordance with the order of January 21, 2015 shall resume immediately, and that exchanges shall occur at a supervised access centre.
8As his access had yet to recommence, the father brought a further motion to reinstate his access, which was before Justice Carr on November 25, 2015. In his ruling on this motion, Justice Carr indicated that:
"I have considerable difficulty with (the mother's) attitude in this whole proceeding… the decision on whether there should be supervised or non-supervised access is not hers to make…she does not have the right to make the determination that all of a sudden access is going to be cut off and father can have some supervised access at a supervision agency… and I could change the custodial arrangement and she would lose the children and they would be placed with (the father)."
9Justice Carr found that since the incident of July 1, 2015 "the mother has really ignored court orders", and if the children are to be left in the mother's care, she must obey court orders. However, Justice Carr did not believe that overnight access with the father should be immediately reinstated. Justice Carr varied the orders of January 21 and September 15, 2015 to provide that the father have access every Sunday from 10 a.m. to 4 p.m.
10On December 21, 2015, Justice Carr further varied his order of November 25, 2015 to provide that the father have access with the children each Sunday from 10:30 to 3:00 p.m. apparently to accommodate the hours of the supervised access program for exchanges. The mother's no contact order ended on or about January 8, 2016. The father's access resumed on December 26, 2015 with a third party facilitating access exchanges.
11The mother and the children have resided in Elora with the maternal grandparents in the same residence since October 2015. The father has moved on several occasions but has been residing in Puslinch since in or about August 2017, with his fiancé, Lisa and their one-year-old daughter, Quinn.
12The Office of the Children's Lawyer first became involved in 2016 and Barbara Dyszuk, a clinician, was appointed. In her first report released on April 28, 2016, Ms. Dyszuk recommended that the father have sole custody, and that there be an equal time sharing between the parents.
13On December 9, 2016 a second final order was made on consent which provided for joint custody, primary residence with the mother, and access with the father on alternate weekends from Friday to Monday and one overnight during the week. This order provided that the parties will communicate with respect to all important issues pertaining to the children, and that neither party would expose the children to adult conflict.
14Only 9 months later, on September 12, 2017, the mother commenced a second Motion to Change seeking an order for sole custody, to vary the father's mid-week access so that it was not overnight, to readjust child support as of June 1, 2015 and for arrears of s. 7 expenses for daycare, camps and Montessori School. In the father's Response, he is basically seeking to reverse the order of December 2016 so that he has sole custody and the mother has access on alternate weekends and one overnight during the week, and child support from the mother. This second Motion to Change is the subject of this trial.
15On December 15, 2017, a temporary without prejudice order was made on consent that the father pay child support of $1,284.00 per month based on his 2016 income of $85,000.00.
16In June 2018, the parties agreed to retain Angela Murie as a parenting coordinator. The father agreed to pay for the full costs for Ms. Murie and the mother did not offer to contribute anything towards this expense. Ms. Murie was only able to have one joint session with the parties and one individual session with both of them. In August 2018, the father advised that he was unable to pay for this service any longer, and Ms. Murie closed her file in September 2018.
17The mother brought a motion on November 2, 2018 seeking several orders, including that the children attend for counselling and speech therapy with the costs of such services to be shared between the parties; that the father comply with the treatment recommendations for B.R. to administer her medication Restoralax; and that the father reimburse the mother for arrears of s. 7 expenses. The father brought a cross-motion seeking the re-involvement of the Office of the Children's Lawyer.
18On November 14, 2018, the first return date of both motions, the parties consented to an order that the children engage in counselling and speech therapy, with the costs to be shared in proportion to the parties' incomes. Both parties were ordered to administer prescription medication to the children as prescribed by their doctor. Arrears of section 7 expenses owing by the father from November 2015 to November 2018 were set at $9,398.00, with payments of $785.00 monthly commencing December 1, 2018 until paid in full. An order was made to request the re-involvement of the Office of the Children's Lawyer to provide an update to Ms. Dyszuk's 2016 report.
19The Office of the Children's Lawyer agreed to become involved once again, and Ms. Dyszuk was re-assigned as the clinician. In Ms. Dyszuk's report dated April 29, 2019, she recommended that the father have sole custody and primary residence of the children with access to the mother on alternate weekends, and a week-about arrangement in the summer months.
20A focused trial was ordered by Justice Caspers on May 15, 2019 wherein the parties were to file affidavits, and they were subject to time-limited cross-examination, as well as time-limited cross-examination of Ms. Dyszuk. The parties could file reports and affidavits of third parties, with notice to be provided should either party wish to cross-examine third parties by July 10, 2019. Neither party provided notice that they wished to cross-examine third parties. The parties filed voluminous documents including an Agreed Statement of Facts; a Request to Admit and Response, and several third party affidavits as evidence, but only the parties and Ms. Dyszuk testified orally.
Position of the Parties at Trial
21Both parties agreed to the holiday schedule as recommended by Ms. Dyszuk in her report dated April 2019, and that there were no arrears of child support or section 7 expenses as this was dealt with in the order of November 14, 2018. At the conclusion of the trial on July 26, 2019, the parents agreed that the father could have additional parenting time with the children from August 26 to September 3, 2019 in order to implement the week about shared parenting arrangement in the summer as suggested by Ms. Dyszuk.
22The mother's position at trial was that the language of joint/sole custody may not be helpful in this case but argued for a shared decision-making regime with the mother to have final decision-making authority for health care issues. The mother promoted continuing counselling for the children and that both parents should attend for counselling. The mother requests primary residence of the children so that they could continue to attend their present school but was willing to have the children in the father's care on alternate weekends from Thursday to Monday morning with shared time at holidays and a week about arrangement in the summer. The father was doing the majority of the transportation for access, but the mother was willing to share in the transportation.
23The father's position at trial continued to be that he should have sole custody, with alternate weekend access to the mother from Friday after school to Monday at school, and a mid-week access visit.
24Both parties agreed that the father's present income is $90,000.00 and the mother's present income is $56,277.00. Although both parties were requesting child support from the other in accordance with Guidelines as the primary parent, child support will flow from what the court orders regarding custody.
The Law
25This is a Motion to Change, which is governed by s. 29 of the Children's Law Reform Act, which provides as follows:
"s.29: A court shall not make an order under this Part that varies an order in respect of custody or access made by a court in Ontario unless there has been a material change in circumstances that affects or is likely to affect the best interests of the child."
26Quinn J. in the case of Bubis v. Jones, [2000] O.J. No. 1310 (Ont.S.C.) outlined the considerations to be applied under s. 29, at paragraph 20 of the decision:
"An applicant must first meet the threshold requirement of demonstrating that, since the last custody/access order was made, there has been a material change in circumstances that affects or is likely to affect the child. Thus, the last order is assumed to be correct.
Should the applicant fail to show the existence of the needed material change, the inquiry ends.
If, however, the threshold is met, the judge hearing the variation application must embark on a fresh inquiry in the best interests of the child, having regard to the matters found in s. 24 of the Children's Law Reform Act. In this fresh inquiry both parents bear the evidentiary burden of demonstrating where the best interests of the child lie: there is no legal presumption in favour of the custodial parent."
27The change in circumstances will only be considered "material" for the purposes of a custody and access variation proceeding if it has altered the child's needs or the ability of the parties to meet those needs in a fundamental way. [Gordon v Goertz [1996] S.C.R. 27; Roloson v. Clyde [2017] O.J. No. 325 (Ont. S.C.)]
28If a material change in circumstance is proven, when considering what order is now in the children's best interests, the court must consider all of the enumerated factors in s. 24(2) to (4) of the Children's Law Reform Act. However, the list of factors set out in sections 24(2) to (4) is not an exhaustive outline of the relevant considerations in carrying out the best interest analysis. Further, the court is not required to specifically enumerate and analyze the criteria set out in section 24 of the Act, but rather must consider all of the factors that are relevant in the particular case that it is called upon to decide [Walsh v. Walsh, [1998] O.J. No. 2969 (Ont. C.A.)].
Material Change in Circumstances
29Both parties are seeking changes to the order of December 9, 2016. In her Motion to Change, the mother initially sought sole custody and more significant changes than she did at trial, but at minimum was requesting to vary the mid-week overnight access visit and that she have final decision-making authority over the children's health issues. In Response to the mother's Motion to Change, the father is seeking a significant change to the last final order requesting that he be granted sole custody and be the primary parent.
30It is clear that both parties agree that there has been a material change in circumstances since the final order of December 9, 2016. I also find that there has been a material change in circumstances. Given that the parties reside 50 minutes from each other, mid-week overnight access for the children is difficult during the school year. Since December 2016, there have been continuing issues of conflict between the parties over services for the children including medical treatment requiring further litigation, and potential alienating behaviour by the mother that requires the court to embark on a fresh inquiry into what order is presently in the children's best interests.
Parenting Concerns
31The main issue regarding why each of the parties is requesting a change to the last order is their concerns regarding the other's behaviour and parenting.
The Father's Concerns About the Mother
32The father expresses numerous concerns regarding the mother that he argues represent alienating behaviour, which are outlined as follows:
The mother refers to the father by his first name and has spoken negatively about him in front of the children. The children disclose that the mother advises them that the father is a "bad dad", and a "liar". Ms. Starling, the children's counsellor and Ms. Merritt, the children's speech therapist, both confirmed that the mother spoke negatively about the father to them in front of the children, and state that the children's negative comments about their father were similar to the mother's comments. At trial, the mother acknowledges she should not have discussed these issues in the presence of the children and will discuss matters privately with professionals from now on.
C.R. advised that her mother told her that her father has pushed her mother against a wall. The mother denies that she told C.R. that the father pushed her, and states that C.R. has stated that her mother was thrown in jail by the police.
The mother has dropped off separate lunches at school for the children on several occasions when the children were in the father's care and he was to bring the children to school. C.R. advised Ms. Dyszuk that "lunches from dad are bad". Mr. Cooper, the principal of the Montessori school where B.R. attended for a period of time indicated at the beginning of the school year, at times the father did not pack enough food for B.R., but this was remedied once it was addressed with the father. The mother denies that she informed the children that the father's lunches are "bad". She advises that she drops off extra food for the children even on days when she or the maternal grandmother have dropped off the children, to ensure that they have a hot meal, or if the children have activities after school. At trial, the mother stated she did not realize that the children could perceive her actions as being negative against the father but now understands that.
In October 2018, the father dropped the children off at school during his scheduled time dressed for picture day. The mother also attended at the school that day with different outfits for the children, and the children told the father that the mother did not like how the father had dressed them. At trial, the mother stated that she did not think about the message she was sending the children as a result of her actions.
The mother has not always informed the father of extra-curricular activities for the children, or obtained his consent before enrolling the children, but then requested his proportionate share of the costs. In November 2018, the father requested B.R.'s hockey schedule so that he could attend some practices/games and the mother refused to provide it. At trial, the mother acknowledged that her actions were not appropriate.
The father has concerns that the mother cancels appointments that he makes with the children's doctors. The father had made an appointment with B.R.'s doctor, Dr. Mackie for January 10, 2018 to discuss B.R.'s digestive problems. Dr. Mackie's notes indicate that both parents should attend that appointment. As the mother could not attend at that time, she rescheduled the appointment for January 23, 2018 and advised the father about this on December 21, 2017 and January 9, 2018. Despite this, the father attended at Dr. Mackie's office on January 19, 2018 expressing concerns that the mother had cancelled the appointment. The mother acknowledges that she did not advise the father of a pediatrician appointment for B.R. on January 14, 2019 with Dr. Afadapa-Ipaye to discuss her digestive issues. The mother only advised the father of this appointment and outcome through a letter from her counsel dated May 3, 2019.
The children disclose to the father that their baby sister Quinn is not part of their family and is a "fake sister", and that Lisa is also not part of their family. The mother denies that she ever told the children these things and agreed it would be concerning if she did. When the mother discovered that Lisa was expecting, she purchased baby doll accessories to encourage the children to be excited about helping with the baby.
The mother has cancelled the father's access visits with little notice and at times without reason. Further, the mother is not flexible regarding access, and will insist on adhering exactly to ordered access times and threatens to call the police instead of entering into reasonable negotiation. For example:
On April 16, 2018, the children's school was cancelled due to icy road conditions. The children were in the father's care and he was scheduled to drop them off at school that morning. As the mother was aware that school had been cancelled, she emailed the father that morning to request that he drop the children off at her house. However, the father responded that he would keep the children as he did not feel it was safe for the children to travel due to the weather. The mother threatened that if the father he did not return the children to her, she would contact the police. The mother then drove to the father's residence to pick up the children at approximately 10:00 a.m. At trial, the mother agreed that she did not handle this situation well, but she was reacting to a derogatory name that the father called her, as explained below.
The father was scheduled to spend Halloween with the children on October 31, 2018 and had made costumes with them the prior weekend. That afternoon, the mother advised the father that B.R. was sick and could not attend access with the father. As C.R. was not sick, the father assumed she would be attending with him for Halloween. However, the mother picked up C.R. early from school and advised the father that both children would not be attending. In fact, the mother took the children trick-or-treating that night. At trial, the mother agreed that she was reactive by picking up C.R. early from school, and that the father could have taken the children out for Halloween.
In February 2019, the mother did not send B.R. for her weekend access visit with her father because she was sick. The mother told B.R. that her father cannot take care of her when she is sick.
On April 1, 2019, the mother had received a call from the school that the children were not present, and the father was scheduled to drop them off. The mother attempted to contact the father and he did not answer, so she contacted the police. The father eventually dropped off the children at school at 10:30 a.m.
On the May 2019 long weekend, at the request of the mother the parties changed their access weekend so that the father had the children with him. As it was a long weekend, generally this would mean that the father's access is extended to the Monday, and the father wanted to extend the visit until Tuesday morning. However, the mother insisted that the children be dropped off at 8:30 a.m. on Monday or else she would call the police. At trial, the mother agreed that this was not a good way to co-parent.
The father claims that the mother unilaterally enrolled both children in Montessori School without his consent, which is not exactly the case at least with the child, B.R. B.R. initially started junior kindergarten at St. Mary's Catholic School in Elora in 2015. Due to B.R. struggling with speech problems and bully issues, the mother explored a Montessori education because of its emphasis on speech and language and smaller class size that may assist B.R. The mother's lawyer sent a letter to the father in June 2016 proposing to enrol B.R. in Montessori. The father responded in writing on June 22, 2016 that he supported the idea of registering B.R. in Montessori but did not have the resources to contribute. At that time, the mother was the sole custodial parent pursuant to the final order of January 2015. As she believed that the father had consented, in September 2016, B.R. was enrolled in Montessori. However, the father insists that he never consented to B.R. being enrolled in Montessori and in February 2018, he withdrew his consent for B.R.'s enrollment. Thereafter, B.R. has attended at Elora Public School for the past 2018-2019 school year.
The mother sent an email to the father on February 7, 2017 confirming that the Montessori school could take C.R. starting on March 20, 2017. The father advised the mother that he did not agree with C.R. attending Montessori school, and proposed that the parties meet to discuss the children's school, or that they attend mediation. The mother did not engage in mediation and enrolled C.R. in Montessori despite the father's objections. At that time, there was a final order for joint custody. C.R. only attended Montessori for a short period of time, and then transferred to Elora Public School.
Records from the Society
33The father expresses concerns regarding the mother's numerous calls to the Children's Aid Society reporting her concerns with respect to the father, outlined as follows:
October 13, 2015: the mother contacted the Society on the advice of B.R.'s counsellor who had also reported concerns to the Society. The mother reported that the father was withholding food from B.R.; leaving C.R. in a car unattended; and scaring the children that there are monsters in their closet. When the Society investigated, B.R. was not able to articulate any of the information received in the referral, and only indicated that she did not want to see her father and that he is mean. The Society did not find that the children were unsafe with the father and closed their file.
January 19, 2016: A report was received by the mother regarding the father and it was not investigated.
February 16, 2016: A report was received by the mother that B.R. disclosed that her father "rubs her boobs". Both the police and Society investigated the allegations. The father denied touching B.R. in the chest area in a sexual manner. Concerns were not verified.
June 7, 2016: The mother reported that the father drives with the children in the car without seatbelts or car seats; that the father tells B.R. he doesn't love C.R. and hits her, that he calls the children "little shits""pain in the asses"'; and that the daycare reported that C.R. is tired and hungry on the days she is dropped off by the father. The Society did not investigate as the concerns appeared to be related the custody and access issues. The Society noted that "should the mother make allegations in the future that appear to be related to custody and access issues we may look at opening with concerns in regards to mom placing her children at risk of emotional harm".
April 2017: The mother reported concerns that while in her father's care, B.R. fell into a river and claims that she "almost drowned". The father allegedly told the girls not to tell their mother. The Society investigated and found that the father's and the children's accounts to be consistent that B.R. fell into the water while feeding geese and the father was able to quickly retrieve her. The Society verified emotional harm due to ongoing conflict between the parents with repeated allegations resulting in the children being repeatedly interviewed, which is compounded when the mother questions the children regarding their access with their father and misconstruing the information. The mother was cautioned about the repeated calls to the Society regarding concerns with respect to the father and the impact on the children of continually being interviewed. Shortly thereafter that mother took the girls to the doctor again alleging that the father was sexually abusing them. The file was then closed
34The mother acknowledges that she does not have knowledge that the father sexually abused the children as she is not present during his access with them. The Society has never verified any allegations of sexual abuse by the father.
35Since the mother's last report to the Society in April 2017, the Society records indicate the following additional openings with reports by the father and service providers as follows:
September 1, 2017: The father contacted the Society claiming that the mother was not providing him with access. He also expressed concerns that the mother was providing B.R. with laxatives, while he manages B.R.'s constipation with fruits and vegetables. The Society did not investigate but closed their file at intake. In fact, the mother had previously confirmed with the father that she would have the children for vacation during the week from August 28 to September 3, 2017 and was not withholding access.
May 24, 2018: The father reported concerns that he and the mother cannot communicate, and it is affecting the children. The girls say that the father's new baby is not their sister. C.R. was having behavioural problems at school, and the school suggested counselling, but the mother would not consent. He requested suggestions on counselling which was provided.
August 9, 2018: C.R.'s day camp contacted the Society to report issues with C.R.'s aggressive behaviour towards other children and when addressed with the father he appeared to dismiss the concerns. When the father dropped off C.R. at camp, they had an argument and the father slapped C.R. on the arm quite hard and said to C.R. "do you want me to bite your toes off". C.R. disclosed that her father slaps both children on their arms. C.R. reported to the worker that both parents slap her arm and bum. The father admitted to slapping C.R. on the arm as he was frustrated with her behaviour. The Society verified the concerns related to physical harm and both parents were cautioned against using physical discipline. Both parents agreed that the children should be in counselling.
August 22, 2018: C.R.'s camp counsellor reported that her father comes into her room at night, touches her in the private parts and touches her in the bath. A joint investigation with the Society and the police was initiated, and the father's access with the children was temporarily placed on hold during the investigation. No charges were laid, and the Society did not verify concerns. The Society again recommended counselling for the children.
December 23, 2018: Ms. Murie, the parenting coordinator reported to the Society that the mother advised her that B.R. told the maternal grandmother that the father asked B.R. if she liked big or small penis' or big or small vaginas. B.R. advised the mother that her father told her he never wanted another child and that Quinn was a mistake. Ms. Murie wondered why the Society was not more involved due to the mother's concerns. The children were privately interviewed by the Society and did not disclose any concerns regarding their father. The father denied talking about private parts in a sexualized way with the girls. The Society did not verify concerns.
The Mother's Concerns About the Father
36The mother expresses concerns about the father's parenting and his lack of communication, which are summarized as follows:
The father did not advise the mother about any details regarding his new living arrangements when he moved to Puslinch in 2017. This information was relayed to the mother by B.R. in the summer of 2017. The father's first s. 35.1 Affidavit sworn in September 2017 in response to the mother's Motion to Change does not indicate that he was also residing with Lisa's parents. The father filed a new s.35.1 Affidavit in January 2018 to provide the accurate information.
Although the father had an obligation to contribute towards extracurricular activities and was provided with at least some receipts in December 2017 and June 2018, it was only after the motion in November 2018 that the father paid his share of retroactive expenses. It was not clear, however, if the father had the complete receipts until the motion, but he was aware of his obligation.
The mother attempted to involve the father in the decision for before and after school care for the children. In June 2018, the mother contacted the father seeking his input, but he did not respond. In July 2018, the father indicated that he was looking into child care but provided no particulars. When the mother tried to press the issue given that child care had to be set up before school, the father became upset and indicated that she could arrange her own before and after school care. The mother arranged for tentative child care with Ms. Dack and sent an email to the father on August 8, 2018 requesting that he contact Ms. Dack. The father eventually contacted Ms. Dack on August 31, 2018, but as he did not sign the contract for her services there was no child care for the children. At trial, the father agreed that his response to this situation was not child focused.
The mother has concerns regarding the father's lack of supervision when the children are at his home as he is close to Emerald Lake where a man had drowned. The mother believes that the father permits C.R. to take her seatbelt off while driving in his car and allows B.R. to drive the golf cart on her own. The father denies the mother's allegations, which concerns were also investigated by the Society and not verified.
The mother attempted to obtain consent from the father for counselling for the children in April 2018, which he refused to do. Therefore, the mother brought a motion to permit the children to be enrolled in counselling. The mother acknowledges that at the time the motion was argued in November 2018, the father had finally consented to the children being involved in counselling. However, her concern was that the father could have withdrawn his consent at any time, which he has in the past.
37Due to these concerns however, the mother is not advocating for a change in the father's parenting time. In fact, she is willing to offer more parenting time to the father. The mother's major concern is that the father has not sought medical treatment for the children when they need it and does not abide by the medical recommendations regarding B.R.'s digestive issues.
38The mother indicates that at times, the children have been returned her care after being with the father with strep-throat and ear infections. On these occasions, the mother had to seek medical treatment for the children. In May 2018, B.R. returned after an access visit with the father with pain in her ankle. The father did not advise the mother that B.R. was injured, although it was not clear that he was aware of B.R.'s injuries. The mother took B.R. to the hospital and after x-rays she was given a soft cast and had to attend for physiotherapy.
39B.R. has a slow digestive system and suffers from constipation. Three separate doctors have confirmed B.R.'s diagnosis of constipation and have recommended the medication Restoralax. B.R.'s physician, Dr. Mackie has prescribed Restoralax to be administered daily. The mother took B.R. to a walk-in clinic in February 2018 and the attending doctor, Dr. Ray confirmed that B.R. should have half a cap of Restoralax daily for routine bowel care. In January 2019, B.R. attended an appointment with a pediatrician, Dr. Afadapa-Ipaye, who also found B.R. to have significant constipation as confirmed by an x-ray. Dr. Afadapa-Ipaye also recommended regular use of Restoralax.
40The father is critical of the mother's use of Restoralax, claiming that she is imposing a "diet of laxatives" on B.R. when the mother is only following the directions of the doctors. The father claims that B.R. has diarrhea while in his care and admits that he does not always administer Restoralax to B.R. B.R. has returned from access visits with her father with constipation.
41Dr. Mackie swore an affidavit filed on the Motion to Change dated July 3, 2019 indicating that it was possible for B.R. to be constipated and still experience symptoms similar to diarrhea. Dr. Mackie confirmed that Restoralax is the appropriate treatment for B.R.
42The father now agrees that he will abide by the doctor's recommendations for the children but would still like the opportunity to discuss his concerns with the doctors.
Office of the Children's Lawyer
43Following orders of the court, Ms. Dyszuk was assigned as a clinician on two occasions to conduct an initial investigation in 2016 and updated investigation in 2019. Ms. Dyszuk prepared reports pursuant to s. 112 of the Courts of Justice Act. Both of her reports dated April 28, 2016 and April 29, 2019 were filed as evidence, and she testified and was subject to cross-examination at the hearing.
First Report
44When Ms. Dyszuk completed her first investigation, B.R. was 4 years old and C.R. was 2 years old. Ms. Dyszuk indicated that at that time, the mother was making all major decisions for the children, and she was protective and nurturing of the children. Ms. Dyszuk found the children to be thriving in the mother's care. She also found that interactions between the children and their father were very positive, and the father appeared to be very organized, calm and gave balanced attention to the children. Ms. Dyszuk found that both parents were good people with many strengths.
45What concerned Ms. Dyszuk at that time was the following:
The mother restricted the father's access to the children, was non-compliant with court orders for access, and there were concerns that she would not support a healthy relationship between the children and their father;
The mother showed limited insight into the importance of the children having a relationship with both parents and limited understanding of the negative consequences of the children not having contact with their father;
She spoke negatively about the father including to professionals, and believed that he did not have any positive qualities as a parent;
The mother stated that the children's doctor advised her that he thought the father should not see the children, which was not true;
The mother did not involve the father in the process for counselling for B.R.;
The mother reported several concerns about the father to the Children's Aid Society, none of which were verified.
There was a significant concern that without legal intervention, the father would be marginalized in the children's lives.
46In 2016, Ms. Dyszuk recommended, among other things, the following:
The father have sole custody but must consult with the mother on major decisions regarding the children prior to making the final decision. Each parent should be responsible for the day-to-day decisions regarding the children when they are residing with them;
The children should primarily reside with the father;
The parents have parenting time with the children on an equal basis on a 5-5-2-2 day schedule, with exchanges at a neutral location such as school or day care; and
Each parent shall participate in parenting coaching to learn skills to communicate successfully with each other to parent the children and individual psycho-education to learn skills to support positive parenting of the children.
Second Report
47Ms. Dyszuk became re-involved as a result of the order of November 14, 2018 to provide an update to her initial report of April 2016. At the time of Ms. Dyszuk's second involvement, B.R. was 7 years old and C.R. was 5 years old.
48During Ms. Dyszuk's recent investigation, the mother reported concerns with the father including lack of supervision, and disagreements between the parents regarding speech therapy, counselling, medical treatment and schooling. The father reported concerns that the mother makes unilateral decisions regarding the children despite the order for joint custody and that the mother does not follow recommendations of professionals concerning the children. The father's main concern is that the mother continues to undermine his role as the children's father including making false allegations that he has sexually abused the children.
49Although the maternal grandparents were involved with Ms. Dyszuk's first assessment, they refused to participate in her second assessment as they perceived Ms. Dyszuk to be biased against the mother.
50During her observation sessions, Ms. Dyszuk noted that the girls appeared comfortable, relaxed and content at the mother's home and their interactions with their mother were positive. Ms. Dyszuk noted that the father and his partner Lisa were child focused and C.R. appeared to be happy, content and comfortable. B.R. appeared easily frustrated and had difficulty cooperating with C.R.
51Although B.R. told Ms. Dyszuk that she loves both her mom and dad, she made some concerning statements to Ms. Dyszuk that:
Her mother says that her father does not love her;
Her father tells lies about her mother and that her father did not want girls.
Her mother told her that Lisa is not her parent or part of her family.
That Quinn is part of her father's family and not hers.
That her mother told her that her father does not keep her safe.
52However, B.R. had positive things to say about both households. She advised that her favourite place to sleep is in her fort bed at her father's house. B.R. said that both her mom and dad's houses are the best to play at but that she likes being at her dad's in the summer as "its so nice there" and there is so much to do and explore as he resides in a trailer park. She said that her favourite thing to do with her dad is to be alone with him; her favourite thing to do with her mom is to go rock climbing, out for dinner to Crabby Joes and to the movies; and her favourite thing to do with Lisa is to bake.
53C.R. also made some concerning statements about her father to Ms. Dyszuk including:
During her interview with Ms. Dyszuk at the school, C.R. had two lunches, as her mother brought her a second lunch telling her that "lunches from dad are bad" and "rotten".
That she did not like her dad as "he threw Mom against a wall".
That her mother tells her that Quinn is not her real sister.
That she knows that her parents hate each other.
54C.R. also had positive things to say about both households. C.R. said that she likes Lisa and likes to play with her. C.R. says that her favourite thing to do with her dad is play in the park and go to the pool at Emerald Lake, and she likes to be alone with her dad. Her favourite thing to do with her mom is go rock climbing and play barbies.
55In Ms. Dyszuk's opinion:
Generally, the concerns identified in the OCL report in 2016 are the same issues reported by the parents in the current investigation.
Despite the order for joint custody, the mother made unilateral decisions, such as enrolling B.R. in Montessori without the father's input or consent; not including the father in the children's medical appointments and changing medical appointments that the father had scheduled; and enrolling the children in extracurricular activities without the father's input or consent.
The mother made several reports to the Society regarding concerns about the father that were not verified. In December 2018, the Society records indicate that:
"We are worried that the mother has a history of reporting allegations against the father to our agency or to other service providers (doctors, parenting coordinator) that turn out to be unfounded. We are worried that the children hear negative messages about their dad when they are with their mother, as evidenced by comments like "daddy pushed mommy against the wall""daddy hurt mommy" and "I don't like going to dad's". We are worried that the mother has provided misleading information in court documents about our Agency's involvement, reporting that a worker advised her to withhold access from the father in 2015 and reporting that the Agency has significant worries about the father acting in an abusive manner towards the children. Concerns (regarding the father) that have been addressed and investigated in previous openings:
- supervision of B.R. and C.R. while at the father and Lisa's home
- B.R. taking a daily prescription for a laxative and having accidents while at the father and Lisa's home.
- allegations of spanking and hitting on arms and hands.
- allegations of sexual touching, sexual assault, sexually inappropriate language
There were three allegations of sexual touching and abuse, none of which have been verified. One incident of physical harm was verified in the August 9, 2018 opening when the father admitted to slapping C.R. on her hand and arm. There have been two verifications of emotional harm resulting from exposure to post-separation caregiver conflict".
56The concerns reported by the mother to the Society resulted in investigations that were intrusive to the children.
57Ms. Dyszuk noted other concerns by professionals regarding the mother, including:
The principal of Elora Public School, Mr. Ellery, reported that on days that the father brings the girls to school, the mother or grandmother also bring the children lunches and the children prefer to each the lunch brought by their mother or grandmother although there were no concerns with the lunches sent by the father.
The principal of the Montessori school, Mr. Cooper, said that the mother spoke negatively about the father; shared her concerns for the safety of the children in the father's care, and details of the court situation. The principal had no protection concerns with either parent and stated that both parents love their children and hate each other. Mr. Cooper said that B.R. told school staff that "as long as she could remember her parents were fighting and would never like each other".
The mother told the children's counsellor, Ms. Stirling that the father would be resistant to counselling. However, Ms. Stirling found that the father was "on board" with therapy and wanted to be involved in their counselling. Ms. Stirling was concerned by the mother's overt negative judgment of the father and will make negative statements about the father including that "he never wanted girls".
The children's Speech and Language Therapist, Ms. Merritt was aware of the conflict between the parents. She noted that the mother spoke negatively about the father and that the girls also said negative comments about their father that sounded similar to the mother's comments. The mother wanted to re-enroll B.R. in Montessori and register her for Sylvan Learning tutoring. However, Ms. Merritt found that B.R. did not require the intensive tutoring recommended by Sylvan Learning, that a public school environment was a better fit than Montessori for B.R., and that messaging by the mother that B.R. required this level of intervention may undermine B.R.'s confidence.
As recommended by C.R.'s school, the father contacted Here4Kids for a referral for counselling for C.R. due to her behaviours. This agency contacted the mother for her consent, which she refused as she claimed the school identified C.R.'s behaviour as normal and typical for her age.
The children's physician, Dr. Mackie wrote a letter dated January 22, 2018, that he felt that "it would be in the children's best interest, both physically and emotionally, that only one parent be designated as the primary authority for health care". Dr. Mackie expressed concerns about the mother's reports of abuse by the father to the Society, and that the mother felt the Society was ignoring her concerns and wants professionals to intervene. In 2016, the mother advised Dr. Mackie that she feels the father is not a good father and hopes he will move away.
58Ms. Dyszuk found that the children's stories had a "rehearsed" quality, and mimicked information provided by the mother.
59Ms. Dyszuk was concerned that the mother's hostility and negative feelings towards the father and the influence she has on the children's perception of their father may lead to one or both children developing a negative attitude and rejecting their father as they get older. She found that the mother's conduct to undermine the children's relationship with their father to be damaging to their emotional development, and that the mother showed no awareness or insight of the impact of her behaviour on the children. Ms. Dyszuk believed that the children's aggressive behaviours may be an adapted response to stress they were experiencing.
60Ms. Dyszuk acknowledged that since the order of December 2016 the father's access has not been an issue and they enjoy their time with their father. She did not indicate that the children have been estranged from the father, but the concern is more about the lack of communication, not informing the father about issues and appointments and the mother's negative comments about the father. In the end, Ms. Dyszuk found that there was less opportunity for the children to be negatively influenced if in the father's primary care, but the concerns were not significant enough to request supervised or no access to the mother, as in other extreme cases.
61As the children are still young, in Ms. Dyszuk's opinion, they did not have the emotional maturity to reject a parent, but this was a risk as the children grew older and may be more receptive to alienating influences. Ms. Dyszuk found that at this time, the children did not appear to be under their mother's influence when in the care of their father. The children appear to have a positive relationship with their father and they are spending regular time with their father. However, they are at "significant risk that without legal and mental health intervention, the mother will not support the children's relationship with the father and will continue to influence and reinforce the children's rejection of their father, half-sister, step-mother and paternal extended family".
62Ms. Dyszuk indicated that maintaining regular contact with both parents generally results in better long-term outcomes for children. She found that the parents are "good enough" parents, and make the following general recommendations:
The father should have sole custody and the children should primarily reside with him. Due to the parents' lack of communication, in Ms. Dyszuk's opinion, one parent should make the decisions
During the school year, the children should spend time with the mother on alternate weekends from Friday after school until Monday morning.
All other holidays, including the summer school holiday, should be shared equally between the parties.
63Ms. Dyszuk recognized that a change in custody and primary residence may initially be disruptive to the children, as it would also require a change in the children's school, but this was outweighed by the long-term objective of maintaining healthy relationships between the children and both parents.
64Ms. Dyszuk suggested that the mother participate in intensive counselling with a mental health professional with specialized training and experience in high-conflict separated families and competence in family therapy and cognitive behavioural therapy, and specifically recommended 6 therapists. Ms. Dyszuk also recommended that the father work with a therapist to help him understand his role in the family problem and to learn strategies to increase co-parenting cooperation and recommended a mental health professional with specialized training in high-conflict separated families.
Oral Testimony of Ms. Dyszuk
65In her oral testimony, Ms. Dyszuk acknowledged that both parties had played a role in the lack of cooperation and communication, and this was partly why the parents were not good candidates for joint custody. She had recommended therapy for both parents, and specifically for the father to understand his role in the family problems.
66Ms. Dyszuk clarified that she recommended that primary residence change to the father as it was in her opinion that the parent who spends the most time with the children has a significant influence on them. At this point, the children spend the majority of the time with their mother, which Ms. Dyszuk found to be a negative influence. Ms. Dyszuk acknowledged that there is no estrangement from their father as the children love their father, are happy with him and his partner. However, there was a potential for estrangement. There have been periods of time when the father did not have contact with the children due to actions or concerns by the mother and Ms. Dyszuk was concerned that if these actions continued the father would be marginalized. By recommending a change in custody Ms. Dyszuk wanted to prevent future harm to the children.
67A significant factor for Ms. Dyszuk was which parent would support a relationship with the other parent, and she believed that there was evidence that the mother would not support and in fact could interfere with the children's relationship with their father.
68Ms. Dyszuk acknowledged that both parenting plans presented by the parties were reasonable but thought that the father's parenting plan was more solid as his employment was flexible so that he could be available before and after school for the children, whereas she believed that the mother would put the children in a before and after school day care.
69If the children were in the primary care of the father, Ms. Dyszuk indicated that he should be the parent to make decisions regarding the children, particularly educational decisions as he would be close and available for the school.
70Ms. Dyszuk did not recommend an overnight access during the week as the distance between the homes was 50 minutes, and it would disrupt the children's activities during the week. Further, it was helpful to minimize the transitions during the school week to avoid the children being exposed to conflict.
71Ms. Dyszuk did not believe that changing schools would be a major disruption for the children. The children had already experienced a change in schools: B.R. three times and C.R. twice. Ms. Dyszuk recognized that although there could be an immediate impact to the children with a change in custody, she was looking at the long-term benefits for the children of being in the primary care of their father.
Dispute by the Mother
72The mother filed a Dispute to Ms. Dyszuk's second report of April 2019. In her dispute the mother highlighted the following:
That she had followed through with Ms. Dyszuk's recommendations from her report dated April 28, 2016 by attending parenting coordination and counselling with Ms. Murie and used Our Family Wizard, while the father cancelled the parenting coordination.
The father also played a role in the parents' poor communication.
Ms. Dyszuk failed to consider the impact on the children by a change in primary residence, which would mean a change in school and removal of them from their community.
Ms. Dyszuk made inaccurate findings of fact indicating that the mother reported sexual abuse to the Society in August 2018, when it was the day camp who reported these allegations to the Society;
Ms. Dyszuk failed to consider that the father had not followed the medical recommendations of the children's doctor, Dr. Mackie with respect to giving B.R. Restoralax, or that the father failed to seek medical treatment for B.R. on several occasions in 2018 when she sprained her ankle, had strep throat and suffered a perforated ear drum, or that B.R. disclosed that she drives a golf cart at her father's home, or that the father had moved 5 times in 4 years.
73The OCL considered the mother's dispute. In a letter dated June 21, 2019, the OCL Regional Clinical Supervisor, Ms. Durrani, indicated that the information in the mother's dispute would not change the OCL's recommendations.
Steps Taken by the Parents in Response to the OCL Recommendations
74Following Ms. Dyszuk's first recommendation for counselling, the mother engaged in individual counselling with Carizon in Kitchener from 2015 until 2017/2018.
75From September 2018 to May 2019, the mother engaged in individual counselling every two weeks with Ms. Murie, the parenting coordinator. In Ms. Murie's affidavit sworn in July, 2019, she outlined that during sessions, she worked with the mother on ensuring that the actions the mother took regarding issues with the father were for the benefit of the children and not simply reactionary; examining her behaviours to make changes to decrease conflict with the father; creating plans to correctly address issues the children brought up with her; decreasing the impact of the stress on her from the conflict; and increasing the mother's communication skills. Ms. Murie reported to the OCL, Ms. Dyszuk that the mother is "committed to trying to co-parent with the father to learn skills and strategies to manage the conflict between them and to learn parenting strategies to support the children".
76The mother considered the 6 therapists recommended by Ms. Dyszuk in her second report, but none of them worked close to where the mother resides. The mother contacted one proposed therapist, Dr. Barbara Fidler, who indicated that she did not have availability for new clients, and proposed Angela Murie in Guelph for counselling, who the mother was already engaged with. Dr. Fidler suggested therapy requiring the participation of all family members, including the children and both parents. Dr. Fidler also suggested Families Moving Forward to provide clinical intervention for families experiencing parent-child contact problems. The mother contacted Families Moving Forward and learned that the total cost for this service was between $35,850.00 to $54,950.00, which the mother cannot afford.
77In June 2019, the mother privately retained Chris Calley-Jones, who is a clinician with the Office of the Children's Lawyer, to discuss and gain insight on how her behaviour may be contributing to the parental conflict with the father and how it may impact on the children.
78At trial, the mother took responsibility for her past actions as not being child-focused and recognized that she was wrong. She indicates that she previously would react immediately to the father and now she journals rather than reacting. For example, in July 2019, B.R. told her mother that her father hit her, and the mother did not address this with the father but wrote in her journal. She has recently been sending the father regular emails about doctor's appointments, camps and they are communicating better.
79After Ms. Dyszuk's first report, the father engaged in counselling from 2015 to 2016 for anxiety, communication skills and to deal with the litigation. He has also engaged in counselling since the fall, 2018 for anxiety, communication and to deal with the children's behaviours. He advised his counsellor of Ms. Dyszuk's recommendations, and it was also suggested to him that he also engage in counselling with Chris Calley-Jones. No further particulars were provided regarding this counselling.
Best Interests
80The factors in s. 24(2), (3) and (4) of the Children's Law Reform Act must be taken into account when considering what order is in the best interests of the children.
24(2)(a) Love, Affection and Emotional Ties Between the Children and Parents/Siblings/Caregivers
81The parties acknowledge that the children love both of their parents.
82The children have a good relationship with their father's partner, Lisa. Although initially the children stated that their half-sister, Quinn was not their "real" sister, Lisa has reported this has improved and that they appear to enjoy interacting with Quinn.
83For the majority of their lives, the children have resided with the maternal grandparents, and have a close relationship with them. For the past 4 years, the maternal grandmother has provided before and after school care for the children. The grandparents attend for some of the children's activities, and the children spend time with the grandparents at their cottage in Tobermory.
84While in the care of their father, the children also reside with Lisa's parents during the summer months. Lisa's parents view themselves as the children's grandparents.
24(2)(b) The Children's Views and Preferences
85Ms. Dyszuk indicated that the children report loving both parents and enjoy spending time in both households. The children did not express to her any specific views and preferences.
24(2)(c)(f) The Length of Time the Children Have Lived in a Stable Environment, and the Permanency and Stability of the Family Unit with Which It Is Proposed That the Children Will Live
86B.R. has resided primarily with her mother, except for approximately 10 months in 2013 when the parents were residing together. C.R. has always resided primarily with her mother. The children have also resided with their grandparents and their mother in the same home in Elora since October 2015.
87B.R. has always attended school in Elora. B.R. attended junior kindergarten at St. Mary's School, the Montessori school from 2016 to 2018, and has attended at Elora Public School for the past 2018-2019 school year. This last school change was initially an adjustment for her, however B.R.'s performance at school has improved over the year and she is noted to be more self-confident. Her report cards from November, 2018 to June, 2019 indicate that she has improved in almost all areas, and it was noted that she had made "considerable growth" in her second term, her "attitude towards school and learning is more positive", and her "self confidence is starting to grow and she is beginning to open up with her peers".
88C.R. initially started school in 2017 at the Montessori School with her sister. C.R. struggles with behavioural issues and exhibited aggression towards other students. Due to her behaviours, in October 2017 C.R. transferred to Elora Public School. C.R. has required supports in school to deal with her behaviours. In junior kindergarten, C.R. had an Educational Assistant at school to help her with transitions, and other special provisions were put in place to assist her, such as giving her a special chair in the room to give her space and early transition between breaks. It is acknowledged by both parents and by C.R.'s teacher that C.R.'s behaviour has improved over the course of the 2018-2019 senior kindergarten year. C.R. also has the support of occupational therapy provided through the school. C.R.'s final report card from June 2019 indicates that C.R. had grown in her ability to manage changes, and made great gains recognizing and expressing her emotions.
89Both children have developed friendships in school and are invited to birthday parties and playdates with other children in Elora.
24(2)(d) The Ability and Willingness of Each Parent to Provide the Children with Guidance and Education, the Necessaries of Life and Any Special Needs of the Children
90Both children struggle with speech impediments and learning issues. In or about December 2015, B.R. was diagnosed with a severe delay in her speech sound development, and in or about February 2016, C.R. was diagnosed with a moderate speech sound delay. Both children have been involved in speech therapy with Emily Merritt; B.R. since January 2018 and C.R. since June 2018. Both parents bring the children to their therapy appointments and express a willingness to Ms. Merritt to do what is best for the girls. B.R. completed speech therapy in November 2018 and C.R. continues to attend speech therapy. In 2018, the mother expressed a concern to Ms. Merritt regarding B.R. academically and that B.R. should return to the Montessori school. However, Ms. Merritt was concerned that moving B.R. to another school may undermine her confidence and give her the message that she is not doing well. B.R. did not change schools and continues to attend at Elora Public School.
91The Society has recommended counselling for the children on several occasions. In April 2018, the mother met with a psychologist who could provide counselling for the girls. The father did not agree with the initial counsellor as proposed by the mother but by September 2018, he did agree that the children received counselling with Donna Starling, a Certified Play Therapist.
92C.R.'s school also recommended counselling through Here4Kids for C.R.'s behavioural issues. The father was agreeable, but the mother refused any referrals from this agency stating that the school identified C.R.'s behaviour as normal. The mother explains that at the time that Here4Kids was recommended, she had already met with a psychologist in April 2018 for counselling for the children.
93Ms. Starling commenced counselling with the children in October 2018. In her affidavit sworn July 4, 2019 filed on the Motion to Change, Ms. Starling indicates the following:
She was initially contacted by the mother who advised that the father did not want to be involved in therapy and expressed concerns about the father's parenting.
The father, in fact, contacted Ms. Starling to express interest in being involved in therapy, and expressed concerns about the effects of the tension between the parents on the children.
Both parents express a wish for the children to have a safe place to talk, and there is a strong connection between the children and both parents. Ms. Stirling witnessed both parents' interactions with the children which were caring and attentive with the ability to redirect appropriately. The children were positive about activities they did with both parents.
Ms. Stirling witnessed B.R.'s lack of respect for her father as she made statements about not liking her father, not wanting to go on access visits, and stating that he hurt her mother, but could not provide specifics. The father understood B.R.'s negativity and asked for assistance in how to deal with this in a helpful way.
Ms. Stirling expressed concerns regarding B.R. being at risk for self-esteem issues and depression.
Although the mother initially linked B.R.'s struggles to the father, she recently has not done this and is focusing on B.R.'s self-esteem and positivity.
94Both children report enjoying counselling and the mother reports improvements in both children, and in particular B.R. is more open to share her feelings.
95In Ms. Dyzsuk's opinion, the mother did not make the best educational decisions for B.R. Although the mother has moved B.R.'s school on several occasions and suggested a further move back to the Montessori school last year, she has maintained B.R. in her present school where B.R. is doing well. B.R. advised Ms. Dyszuk that she liked reading and doing homework with her father.
96The mother has been the parent to arrange for the majority of services for the children, including arranging for appointments with the doctor, speech therapy, counselling, and child care, including paying for the initial costs of child care and day camps. In Dr. Mackie's affidavit, he stated that the mother brings the children to appointments, is attentive and caring towards them, and appears to follow treatment recommendations. He advised Ms. Dyszuk that he believes that the mother is doing a "good job with the kids". Dr. Mackie has never met the father, although the father attempted to arrange an appointment with him in January 2018.
97Both parents are engaged with and play an active role with the service providers for the children. Although they may have disagreed with the initial counsellors proposed for the children, they eventually agreed upon Ms. Stirling.
24(2)(e) The Plan Proposed by Each Parent
The Mother's Plan
98The mother has resided with her parents and the children in the same home in Elora since in or about October 2015, where both C.R. and B.R. have their own rooms. Both children take piano and swimming lessons and play soccer in the spring and summer. In the fall and winter, B.R. plays hockey and C.R. takes skating lessons. B.R. is in Brownies and C.R. is in Sparks. The mother volunteers for both the children's soccer and B.R.'s hockey team and is a volunteer for both Brownies and Sparks.
99The mother works from 8:00 a.m. to 4:00 p.m. in Kitchener so requires before and after school daycare. The maternal grandmother provided daycare for the children until the summer of 2018, but indicated it was too much for her. However, she continues to provide daycare as an alternate daycare provider could not be agreed upon by the parties. The grandparents can assist to take the children to their activities.
100The mother will continue to enroll the children in Elora Public School, and enroll B.R. in Sylvan Learning for tutoring, continue counselling for B.R. and speech therapy for C.R.
The Father's Plan
101The father resides with his fiancé, Lisa, and their one-year-old daughter, Quinn in Puslinch. They reside in the home of Lisa's parents located on a resort owned by Lisa's parents, the Emerald Lake Trailer Resort and Waterpark, and where Lisa works as a Manager of Human Resources and Events. Lisa's parents live in Florida from October to March each year. Her parents are emotionally supportive and have embraced the girls as part of their family. The girls have their own beds and share a bedroom at his home.
102The father works as a software engineer with flexible hours and the ability to work from home several days a week. Lisa works full-time from April to October and is home from October to April. When she is working, Lisa has flexibility with her hours.
103If the children reside full-time with the father, they will attend Aberfoyle Public School, and would take the bus as the school which is approximately 13 minutes from their residence. Due to their flexible hours, the father or Lisa would be available for the children before and after school. The father would like the children to continue to be involved in extracurricular activities including piano.
104The father's long-term plan is for he and Lisa to move to their own residence, but within the catchment area of Aberfoyle Public School.
105The children have friends at their father's home that reside close by in the summer months.
24(2)(g) The Ability of Each Party to Act as a Parent
106There is no doubt that each parent loves and can meet the needs of the children. However, as outlined above, both parents have concerns regarding the other parties' parenting abilities. The question is whether these concerns tip the scale in favour of one parent over the other, and which parent will best continue to promote a relationship between the children and the other parent.
107With respect to the mother, the main concern is her potentially alienating behaviour that could be emotionally harming to the children. She spoke negatively about the father in the presence of the children; she undermined the father's parenting by bringing lunches to the school for the children and bringing outfits for the children on picture day during the father's parenting time; she has withheld access; and she made appointments for the children with doctors and service providers without advising the father. The mother has made several reports to the Society regarding concerns with the father that were never verified and has inappropriately threatened to call the police on the father.
108The children have clearly been affected by the conflict between their parents. They witnessed the physical conflict between them on July 1, 2015. C.R. talks about the physical conflict between her parents. B.R. told Ms. Dyszuk that she is confused about her mom and dad and her "head hurts from thinking about it"; that her parents don't like each other and that "mom hates dad"; and that neither parent says anything nice about the other parent. B.R. told her teachers that "as long as she could remember her parents were fighting and would never like each other".
109There is a serious concern that the mother's behaviour in attempting to undermine the children's relationship with their father, whether intentional or unintentional, demonstrates her inability to act in the children's best interests. [see Leggatt v. Leggatt [2015] O.J. No. 3744]
110However, I was impressed by the mother's testimony at trial, her acknowledgement of her errors in how she dealt with parenting situations with the father, and the steps she has taken to implement the recommendations of Ms. Dyszuk. The mother appreciated the Society's concerns regarding her multiple reports and the effects on the children and has only made one report to the Society since the final order of December 2016. The mother could articulate the strategies she has learned to better communicate with the father and not be so reactive. She acknowledged that the father is a good father and the children should have a positive relationship with him and was willing to accept any order of the court that would permit the children maintain their stability in their present school and community, even a shared parenting arrangement.
111However, the father must accept some responsibility for the conflict in the relationship. The father says and does things that cause the mother to react negatively. For example, the father initially presented as evidence an email from him to the mother dated April 2018 regarding the incident with respect to the icy roads. This email was addressed to "L.Groff". At trial, the actual email sent at that time was filed as evidence by the mother, showing that the father in fact addressed the email to "Supreme Overlord Gorff". The mother advises that the father would call her other derogatory names and she would react to this. The father explains that he used nicknames for the mother to cope with his stress, and by the time that he forwarded the email to his counsel for the trial he had changed the mother's contact name on his computer so that name did not appear. He acknowledged that calling the mother this name was not appropriate.
112The father has also threated to call the police when the mother does not abide by the access terms, such as when the mother would not allow the children to attend for access on Halloween in 2018 with the father. Since the final order of December 2016, the father has contacted the Society twice to report concerns regarding the mother.
113The father acknowledges inappropriate actions on his part, but states they are to a lesser degree than the mother. He maintained that he had concerns regarding the mother's ability to act as a parent. He confirmed at trial what he told the mother in an email dated May 12, 2017 that he thinks she is "selfish and unstable and did not put B.R. and C.R.'s mental health and well being to heart". The father would not acknowledge anything positive about the mother. He was clear that the mother was not welcome to meet his partner, Lisa or her parents, with whom he was proposing the children reside, and that the mother was not welcome to attend at his home.
24(3) and (4) Past Conduct and Violence and Abuse
114I have outlined above the parents' past conduct, specifically the mother's conduct as it is relevant to her ability to act as a parent. Regarding violence and abuse by the parties, the mother was charged with assault and forcible confinement with respect to an incident with the father in July 2015, in which the children were present, and which clearly has an impact on them. I believe this is part of the reason for the father's refusal to have the mother attend at his home. However, that charge was ultimately withdrawn, and there have been no further reported incidents of any type of violence between the parties, other than their ongoing verbal conflict between them.
Conclusion on Parenting Time
115Given the totality of the evidence and what is in the children's best interests considering the factors outlined in s. 24 of the CLRA, I find that it is in the children's best interests to remain in the primary care of their mother, but with substantial and expanded access to their father.
116To be clear, the mother's alienating behaviours are not acceptable. However, the court should not focus on punishing the mother for her behaviours, but on what order is in the children's best interests. Even if the court finds that there are alienating behaviours by one parent, that does not necessarily mean and custody should revert to the non-alienating parent, and a joint custody or parallel parenting arrangement with generous parenting time for both parents should be considered. The question is what is in the best interests of the children. [Scervino v. Scervino, 2011 ONSC 4246; S.(S.) v. S. (D.), 2013 NSSC 384 (N.S.S.C.)]
117There are many positive aspects to the mother's parenting. She has been the children's primary caregiver for their entire lives, and the children are doing well in her care. The third parties involved with the mother are positive about her parenting of the children. The family doctor Dr. Mackie indicated that the mother is attentive and caring towards the children and follows his treatment recommendations. He was concerned about the mother's custodial rights being reduced or limited. Mr. Cooper, the principal of the children's Montessori school reported that the mother is supportive. Donna Starling, the children's counsellor, states that the mother is a dedicated and involved mother.
118The mother has generally complied with the parenting time schedule in the December 2016 order for the past few years. Despite the concerns regarding the mother's behaviours, Ms. Dyszuk acknowledged that the children are not estranged from their father and have been able to develop a relationship with both parents and established a relationship with their half-sister Quinn. Ms. Stirling, the children's counsellor, noted that C.R. is able to have a joyful connection with her father despite the negative messages about her father from her mother. Ms. Stirling was concerned that B.R. may feel she needs to push her father away to be able to be loved by her mother. Ms. Stirling found that B.R. presents with a negative mood, and she is concerned that B.R. is "without hope" and has "learned helplessness" and this can affect B.R.'s personality. In Ms. Stirling's opinion, B.R. is at risk for self-esteem issues, depression and self-harming behaviour. Thus, continued counselling for the children and the parents is crucial. Both Ms. Murie and Ms. Dyszuk agree that addressing possible estrangement requires a system intervention and involvement all members of the family.
119The children are involved in many activities in Elora, are doing well in school and have friends in their community. A significant factor is that the children continue to maintain this stability.
120The father's plan is to move the children from their community and their present school. B.R. has already had three changes in school, and transitions have not been easy for the children. The children's speech therapist, Ms. Merritt expressed concerns regarding the number of school transitions B.R. had made so far. The father recognized that a change in residence may initially be a big adjustment and difficult for the children. He is clear that the mother is not welcome to his home or to meet his partner or her parents, even though his plan is to have the children primarily reside with all of them.
121I appreciate that my conclusions on what is in the best interests of the children differ from that of the OCL investigator Ms. Dyszuk. However, I note that:
Ms. Dyszuk completed her interviews with the parents on April 6 and 11, 2019. She did not have the evidence that the mother had considered the counsellors recommended by Ms. Dyszuk, reasonably determined that she could not retain their services, but privately retained Ms. Calley-Jones for individual counselling. I found that the mother appeared to have benefited from this counselling.
I found that the mother acknowledged and took responsibility for her inappropriate behaviour. However, the father did not appear to completely understand his role in the parents' conflict, particularly calling the mother derogatory names. There is no evidence that Ms. Dyszuk was provided with the father's email to the mother addressing her as "Supreme Overlord Gorff".
Ms. Dyszuk was concerned that the mother's plan included before and after day care for the children while they were in school while the father or Lisa were available for the children before and after school. This was inaccurate and in fact the mother's plan was to have the maternal grandmother care for the children before and after school as she had done for years.
Ms. Dyszuk believed that the father was the better parent to encourage a relationship between the mother and the children. The mother acknowledged that the father is a "good dad" and the children need a relationship with him However, the father believes that the mother is selfish and unstable and had concerns regarding her ability to be a good parent. Given the father's unwavering attitude about the mother coming to his home or having contact with his partner, I have concerns regarding the father's ability to encourage a relationship with the mother.
Ms. Dyszuk was concerned that the mother had made a unilateral decision to enroll B.R. in Montessori school in September 2016. However, at that time, the mother did have sole custody. She consulted with the father regarding this issue and the father advised that he supported the idea of B.R. attending Montessori, but did not have the resources to contribute to the cost.
Ms. Dyszuk was concerned by the number of referrals made by the mother to the Society that resulted in investigations. However, since the final order of December 9, 2016, the mother has only contacted the Society once in April 2017, and the father has contacted the Society twice regarding concerns with respect to the mother.
Ms. Dyszuk's concerns were future concerns that there could be continuing conflict over decisions and services could be delayed, litigation could continue; and the children may reject their father. Ms. Dyszuk acknowledged that the children are not presently estranged from their father. They attend access visits and they love their father and are happy with him and his partner. She also acknowledged that although the father expressed concerns that the children made statements that Quinn was not their real sister, both girls spoke positively about Quinn.
122Although Ms. Dyszuk's assessment is very important and helpful, a custody and access assessment is not determinative and is but one piece of evidence the court must consider in determining the best interests of the children. [Scervino v. Scervino 2011 ONSC 4246 (Ont. S.C.); Moyer v. Moyer, 2017 ONSC 1110]
123In Ms. Dyszuk's opinion, the children should spend more time with the father to avoid the mother having a significant influence on the children and thus parenting time with the father should be expanded. The court should always consider that maximum contact with both parents is preferable to the extent that it is consistent with the child's best interest. [Gorden v. Goertz, [1996] 2 S.C.R. 27]
124As a completely equal time sharing is not possible during the school year, and to avoid as many transitions as possible, during the school year, the children shall be in the father's care for the first three weekends of the month from Thursday after school if picked up by the father, or later if transported by the mother, to Monday morning at school, and in the care of the mother at all other times so that they can continue to attend their present school. During the summer and on holidays, there shall be an equal sharing of time between the parents.
Joint/Sole Custody or Parallel Parenting
125There are several custodial options available, including an order for sole custody, joint custody, a parallel parenting regime or a combination of joint custody/parallel parenting.
126In the case of Ashman v. James [2008] O.J. No. 5861 (Ont. C.J.), McSorley, J. enumerated the principles outlined by the Ontario Court of Appeal in the decisions of Kaplanis v. Kaplanis, [2005] O.J. No. 275 (Ont. C.A.) and Ladisa v. Ladisa, [2005] O.J. No. 276 (Ont. CA.) with respect to when joint custody or sole custody should be ordered, as follows:
There is no default position in favour of joint custody in Ontario;
Each case is fact based and discretion driven;
Past parenting experience both during cohabitation and after separation is of critical importance to a court's decision on whether to order shared parenting in any form;
The fact that one parent professes an inability to communicate with the other parent does not in and of itself mean that a joint custody order cannot be considered, but hoping that communication between the parties will improve once litigation is over does not provide a sufficient basis for the making of an order for joint custody; and
Where there is no evidence of historical co-operation and appropriate communication between the parents, joint custody may be inappropriate.
127Justice McSorley further expanded on the principles outlined in Kaplanis v. Kaplanis and Ladisa v. Ladisa in the case of Habel v. Hagedorn, 2005 ONCJ 242 , [2005] O.J. No. 3556 (Ont. C.J.); appeal dismissed [2007] O.J. No. 2343 (Ont. S.C.), that joint custody may be appropriate in three main types of cases:
An order for joint custody works best when the parents agree to it, although such agreement is not a prerequisite to ordering joint custody.
Joint custody may also be appropriate where neither parent has disentitled himself or herself to custody and where there is a positive history of co-operative parenting and effective, appropriate communication between the parents with respect to their child or children.
Finally, joint custody may also be ordered to preserve a parent's relationship with the child or children in cases where the parent who is the primary caregiver objects to joint custody without just cause, particularly where there is a risk that the objecting parent will try to marginalize and limit the other parent's involvement with the child.
128It is well established that conflict, lack of cooperation and lack of communication are an impediment to an effective joint parenting arrangement, as well as a source of stress for the child. [Weggitt v. Belanger, [2001] O.J. No. 4777 (Ont. C.A.); Graham v. Bruto; Lawson v. Lawson] However, it is not expected that communication between the parties should be "easy or comfortable, or free from conflict". A standard of perfection is not required. [Spack v. LaBine, 2013 ONCJ 252 (Ont. C.J.); Milonas v Copsas, 2018 ONCJ 713 (Ont. C.J.)] The question is whether there is a reasonable measure of communication and cooperation in place, and is achievable in the future, so that the best interests of the child can be ensured on an ongoing basis. [Warcop v. Warcop] However, where the communication from one parent becomes verbally abusive, this calls into question whether a joint custody situation is in the child's best interests. It has been found that such situations are not appropriate for a joint custody order. [S.S. v. S.K., 2013 ONCJ 432 (Ont.C.J.)]
129In this case, I do not find that an order for sole custody to either parent is appropriate. As I have found that it is in the best interests of the children that the mother continue to be the primary resident parent, it would not be practical for the father to have sole custody. Further, there is a real risk that by granting the mother sole custody she would minimize the father's role in the children's lives.
130I find that it is extremely important in this case to preserve the balance of power between the parties. Courts have ordered joint custody where such an order is considered necessary to preserve the balance of power between the parties, particularly in cases where both parties are caring and competent parents, but one party has been primarily responsible for the conflict between the parties. [Roloson v. Clyde, 2017 ONSC 3642; Milonas v. Copasas, 2018 ONCJ 713 (Ont. C.J.)]
131In Madott v. Macorig, 2010 ONSC 5458 (Ont. S.C.), Justice Blishen held that in situations where parents have been distrustful, hostile, and uncooperative, joint custody can still be an appropriate disposition if crafted as "parallel parenting" instead of "cooperative parenting".
132I have considered a true parallel parenting regime, which orders have been made in high conflict cases, particularly where one party is unjustifiably excluding the other from the children's lives and cannot be trusted to exercise sole custody responsibly. A parallel parenting regime is usually reserved for those cases where neither sole custody, nor cooperative joint custody, will meet the best interests of the children. [H. (K.) v. R. (T.K.), 2013 ONCJ 418 (Ont. C.J.)] However, it has also been found to be appropriate in cases where both parents have continuously played a significant role in the children's lives on all levels. [K (V.) v. S. (T.), 2011 ONSC (Ont. S.C.)]
133One concern is if the conflict is too high between the parents, a parallel parenting regime may not work as it may often place the children in the middle of the conflict. [Graham v. Bruto [2007] O.J. No. 656 (Ont. S.C.), aff'd at 2008 ONCA 260 (Ont.C.A.)]
134Justice Sherr in H. (K.) v. R. (T.K.) warned of concerns with a parallel parenting regime including a "spillover effect" with one category of decision-making conflicting with another; the possibility that parallel parenting may create scheduling conflicts for activities and services for the children, which in turn could be a new battleground and increase the conflict between the parents; and the fact that if there is a geographical distance between the parties and if the non-residential parent has one area of decision-making, could the residential parent logistically implement those decisions. Justice Sherr further warned that in high conflict cases, parallel parenting could have the inadvertent effect of escalating conflict and destabilizing children and important decisions may not be made in a timely manner.
135While I am cognizant that the court does not have to make an order for joint or sole custody, as indicated by the Ontario Court of Appeal in M. v. F., 2015 ONCA 277, I believe it is in the best interests of the children to award joint custody, if crafted as a "parallel parenting" regime. Joint custody under a parallel parenting regime may be suitable where both parents love the children and should play an active role in their lives, yet have difficulty communicating or reaching a consensus on the children's upbringing. [Ursic v. Ursic, [2006] O.J. No. 2178 (Ont.C.A.)] An order for joint custody is required to ensure that both parties have an equal voice in important decisions regarding the children and to preserve the balance of power between the parties, which I believe that the mother has abused in the past and attempted to marginalize the father. A joint custody order will also ensure that there are no gaps in the types of decisions that have to be made for the children.
136The major issues regarding the children's health and educational decisions are the mother's concern that the father does not make medical decisions for the children while in his care, does not follow the recommendations of the doctors regarding administering Restoralax to B.R., and has delayed on consenting to counselling for the children. The father's main concern is the mother's unilateral decision regarding the children's enrollment in school. These concerns can be avoided by specifically outlining ultimate decision-making authority over these areas.
Child Support and Section 7 Expenses
137The present incomes of the parties are not in dispute.
138The mother is now working full-time at Allianz Global Assistance, and she is also completing her Bachelor of Business Administration degree. In 2018, the mother's line 150 income was $56,277.00.
139The father is an employee of Clearbridge Mobile Inc. in Woodbridge and is currently earning an annual salary of $90,000.00.
140As I have ordered that the father shall have access on 12 overnights each month from September to June, and shared parenting at all other times, he therefore has the children in his care at least 40% of the time. Pursuant to s. 9 of the Guidelines, there shall be a set-off of child support. The mother's child support obligation is $858.00 per month and the father's child support obligation is $1,351.00 per month. Therefore, the father shall pay the mother $493.00 per month in child support.
141Section 7 expenses for child care, medical, dental and health-related expenses should be shared in proportion to the parties' incomes, being 38% for the mother and 62% for the father. It appears that both parties agree that the parties should consent to any extra-curricular activities and lessons for the children that overlap on both parents' time, which expense shall be shared in proportion to their incomes, but that extracurricular activities occurring on one party's parenting time does not require the other party's consent and that party is responsible for all costs but shall inform the other party of the activity.
Order
142On the basis of the above, the order of December 9, 2016 shall be terminated, and the following new final order is made as follows:
1. The Applicant mother and Respondent father shall have joint custody of the children, Kathryn Brynn Russell born […], 2011 and Cerys Lee Marie Russell born […], 2013. The parties shall consult with each other on all major issues regarding the children's care. In addition:
(a) If there is any disagreement regarding the children's health care, the parties will defer to the recommendations of the children's primary treating physician. Both parties will advise the other of any medical or counselling appointments scheduled for the children.
(b) The children shall continue to be involved in counselling as recommended by their counsellor. If there is any disagreement between the parties regarding counselling for the children, the mother shall have the final decision-making authority.
(c) If recommended by B.R.'s counsellor, B.R. and the father shall participate in attachment-based play therapy to rebuild a trusting connection.
(d) The children will continue to attend Elora Public School, unless otherwise agreed upon by the parties. If there is any disagreement of the children's school, the father will have the final decision-making authority, provided that while the mother is the primary resident parent, the children's school shall be in the jurisdiction where the mother resides.
2. Both parents shall have the right to make direct inquiries and be given information with respect to the children's health, education, religion and recreational activities directly from the third party professionals involved with the children. Both parties shall be able to attend school meetings and events, medical and health related appointments, and recreational activities. Both parents should be listed as emergency contacts for the children.
3. In a health emergency, the parent with whom the children are residing at the time can make the decision. If a parent makes an emergency decision, the parent who has made the decision must immediately contact the other parent by text message/telephone.
4. Neither party shall expose the children to any adult conflict between them or make any negative remarks about the other party or the other party's family in the presence of the children and will discourage all other adults from doing so while in the presence of the children.
5. Each party will provide the other with their present telephone number and email address.
6. The children shall continue to reside in the primary care of the Applicant mother and secondarily with the Respondent father.
7. The father shall have parenting time with the children during the school year as follows:
(a) For the first three weekends of the month commencing October 17, 2019, the father shall have the children in his care from Thursday either after school or at 7 p.m. until Monday morning returning the children to school. If Monday is a holiday, the children shall be with the father until 4 p.m. on Monday. The father shall pick up the children from school on Thursdays, otherwise, the mother shall transport the children to the father's home by 7 p.m. The father will drop off the children at school on Monday a.m.
8. The parties shall alternate March Break. The children shall spend March break (Monday at 9 p.m. to Friday at 5 p.m.) with the mother in even numbered years commencing in 2020 and with the father in odd numbered years commencing in 2021. When the exchange cannot occur at the school the resident parent and/or designate should be responsible for transporting the children to the other parent's residence.
9. During the summer school break, the children shall spend alternate weeks (7 days) with both parents with the transition to occur on Fridays at 7 p.m. The summer break begins on the Friday following the last scheduled day of classes before the break, with the parent who is the scheduled for the weekend and ends on the Friday before the first regularly scheduled classes after the summer school break. The resident parent and/or designate should be responsible for transporting the children to the other parent's residence at 7 p.m. on Friday.
10. Regardless of the regular schedule, the children should spend Mother's Day with the mother and Father's Day with the father from Sunday at 10 a.m. until Monday at school. The resident parent and/or designate should be responsible for transporting the children to the other parent's residence at 10 a.m. on Sunday.
11. The parents should alternate Christmas. In odd numbered years beginning in 2019, the children should spend the first week of the Christmas school break from after school on the Friday December 20, 2019 to Friday December 27, 2019 at 7 p.m. with the father and from December 27, 2019 to Monday January 6, 2020 with the mother. The father and/or designate will be responsible for transporting the children to the mother's home on Friday December 27, 2019 at 7 p.m. In even numbered years beginning in 2020, the children should spend the first week of Christmas school break from after school on the last day of scheduled classes for one week (7 days) with the mother and the second week of the Christmas school break with the father. The mother and/or designate shall be responsible for transporting the children to the father's residence at 7 p.m.
12. Regardless of the regular schedule, the parties shall share the holiday weekends of Thanksgiving and Easter at times mutually agreed upon.
13. The parties shall communicate regarding the children via the web-based communication tool, Our Family Wizard (OFW). The parties should utilize the messaging feature of OFW only when information cannot be conveyed in the Calendar, Expense and Info bank features. The parents should not communicate by email, text messaging or telephone except regarding matters of an urgent nature or an emergency regarding the children that must be acted upon in less than 24 hours. Neither party shall fail to renew the annual subscription to the website without a signed agreement by both parties.
14. The parties shall not make plans for the children when they are scheduled to be with the other parent, without first having the consent of the other parent, and the parents should communicate about the proposed change to the schedule through OFW prior to mentioning anything to the children about a change and/or special activity.
15. The mother shall be the librarian for the children's health cards, medical records/documentation, birth certificates and passports. The father shall have a notarial copy of the children's health cards and birth certificates and the mother shall make the original documents available to the father as necessary.
16. Both parties should have the opportunity to travel with the children outside of the Province of Ontario as long as the other parent is advised of the travel plans in advance. If either party plans a vacation outside Canada with the children, the travelling party shall provide the other party with a draft letter authorizing the children to travel, for the other party to execute and have notarized. The other party should provide the notarized travel letter to the travelling parent no less than 7 days in advance of the children's departure date. The travelling party should provide full particulars of the trip itinerary to the other party.
17. If there is an opportunity for one or both of the children to participate in an extended vacation (up to two weeks or more in length), each parent should be reasonably flexible and support the child(ren) to experience as much as possible. The parents should make their requests for extended vacation time via OFW at least 2 months prior to the planned vacation.
18. The mother's consent will not be required for trips of less than 4 days for the purpose of visiting the father's family in upstate New York. The father will provide 14 days notice to the mother of such travel.
19. Both parents shall continue to participate in counselling with a professional with training in high-conflict separated families.
20. Commencing November 1, 2019, the father shall pay child support to the mother in the amount of $493.00 per month for the children, Kathryn Brynn Russell born […], 2011 and Cerys Lee Marie Russell born […], 2013, which is a set-off amount based on the mother's income of $56,277.00 and the father's income of $90,000.00.
21. Any net section 7 expenses for childcare and health related issues shall be shared in proportion to the parties' respective incomes, the mother's proportion being 38% and the father's proportion being 62%, which expense shall be paid within 30 days of the other party providing a receipt.
22. The parties shall come to a mutual agreement regarding the children's enrolment in extra-curricular activities and lessons that overlap both parents' time, the cost for which call be shared in proportion to the parties' incomes. Any extracurricular activities occurring on one party's parenting time does not require the other party's consent and that party is responsible for all costs, unless the parties otherwise agree in writing through OFW. The parties will inform one another of any extracurricular activities they enroll the children in through OFW.
23. Neither party shall relocate their residence more than 40 km from their current place of residence without first obtaining the other party's written consent or court order.
143I would encourage the parties to resolve the issue of costs given the divided success obtained. However, should costs be an issue, both parties may file written submissions of no more than 3 pages in length, attaching any Offers to Settle and Bill of Costs by November 8, 2019.
Released: October 15, 2019
Signed: Justice K.S. Neill
