Court File and Parties

Court File No.: Halton 295/10 Date: June 1, 2012 Ontario Court of Justice

Between: Richard Mitchell Applicant

— And —

Lara Lynn Carson Respondent

Before: Justice R. Zisman

Heard on: March 19, 20, 21 and 22, 2012

Reasons for Judgment released on: June 1, 2012

Counsel:

• Richard Mitchell on his own behalf
• Monica Lipson for the respondent

Zisman, J.:

1. INTRODUCTION

[1] This trial was about parenting arrangements for the parties' son, Alexander James Mitchell (Alex) born […], 2010. The applicant (father) seeks a continuation of the current arrangements namely, joint custody and equal parenting time and no child support. The respondent (mother) seeks sole custody, access to the father generally in accordance with the recommendations in the report of the Office of the Children, child support and ongoing financial disclosure.

2. BACKGROUND

[2] The father is 32 years old. He has a Grade 12 education. He is currently attending school full time in a payroll and accounting program. He is supporting himself through an OSAP loan.

[3] The mother is 25 years old. She has a Grade 11 education and did not complete high school. She was employed at a bakery as a deli clerk but is currently a full-time homemaker. She hopes to return to her job when her children are older. Her source of income is Ontario Works.

[4] The parties are not married. They had an on and off relationship for about 15 months, lived together for about one month and permanently separated in July 2010. At the time they both resided in Milton.

[5] The mother has a child from another relationship, Emily Claire Bisset who is 5 years old. The mother has sole custody of Emily and Emily's father has regular access.

[6] The father met his new partner Ashlee Christiaens in July of 2010. Ms Christiaens has two children Joshua aged 6 years old and Jacob aged 3 years old. She had recently separated from her partner when she met the father. The father moved into Ms Christiaens' residence in Guelph in October 2010. They were married on August 20, 2011 and have a new child Xavier Mitchell born […], 2012.

[7] During the first three months of Alex's life he resided primarily with his mother. The father exercised access at the home of the mother. The father also exercised overnight access at his friend's home where he was residing at the time.

[8] On July 4, 2010, when the father was returning Alex from a weekend visit, he told the mother he was meeting another woman for a drink. The father was aware that the mother still had feelings for him. He was also aware that she had been feeling depressed and stressed out about being a single parent caring for their son and upset about the breakup. The mother became upset, threw an ashtray at the father's car and told him to take Alex back home with him. According to the mother she did not intend that the father keep Alex permanently.

[9] On July 5, 2010 the father attended court and obtained an ex parte temporary order of sole custody and an order that the mother's access to their son be supervised at the discretion of the father by a mutually agreed upon third party including Gwen Jepson, the maternal grandmother.

[10] Subsequent to July 4th and despite the restraining order made on July 5th, the mother sent the father many inappropriate text messages. Some of these text messages were entered as exhibits on the trial.

[11] On September 2, 2010 the father contacted the Guelph police to report that the mother breached the terms of the restraining order by contacting him from a blocked or unknown number. He also advised the police of several prior breaches when the mother contacted him through Facebook and by sending text messages. The mother was charged with a breach of a family court order. The mother confirmed that she had been charged, pleaded guilty at the first court appearance and was fined $60.00.

[12] The return of the ex parte order was before the court several times and further supervisors were included in the approved list. However, between July 5th and September 13, 2010 the mother had only seen Alex on three occasions for two hours each. The parties could not agree on terms to expand access and a date was set for a temporary motion to be heard on the merits. Pending a hearing on its merits, Justice Wolder appointed the Office of the Children's Lawyer.

[13] On October 21, 2010, after hearing submissions on behalf of the parties and reviewing the affidavit materials filed, Justice Wolder set aside the restraining order finding that it was no longer required. He also found that the mother had made a good recovery from her bout with postpartum depression and that she was fully capable of caring for her child without supervision. Justice Wolder ordered that on a temporary basis the parties would have joint custody and that Alex, who was six months old at the time, would reside with each parent on an alternate week basis unless the parties agreed on a different equal sharing arrangement. He ordered that unless the parties agreed otherwise, the exchange would occur on Friday at 6:00 p.m. The father was to be responsible for all transportation. There was no order for child support.

[14] On November 29, 2010 the parties agreed to a schedule for Christmas access and also agreed that Alex would not be circumcised unless both parties agreed or with a formal court order, should consent not be provided, as the father wished to initiate this procedure.

[15] On February 3, 2011 a second order was made appointing the Office of the Children's Lawyer. A motion and cross motion were heard on that date to vary the order of October 21, 2010. The father was ordered to provide the mother with his address and telephone number and both parties were ordered to advise each other of any change in their contact information. No order for child support was made as the father had recently lost his car so his transportation costs had increased and he had just started a new job earning only about $24,000.00. The father's request to vary his responsibility for transportation was not granted. The father's motion for a further restraining order was dismissed. The father's motion for production of the mother's medical records was dismissed without prejudice to being reinstated if the Office of the Children's Lawyer chose not to be involved. The temporary order was varied to provide that the access exchange occur on Saturdays at 2:00 p.m. for the alternate week arrangement.

[16] The Office of the Children's Lawyer agreed to accept the referral. Ms Cris Calley Jones was assigned as the clinical investigator and released her report on July 13, 2011. Ms Jones recommended that the mother be granted sole custody with specified access to the father. She found that the alternate week arrangement was not working as the father had been unable to arrange transportation, had missed significant amount of access, and had not picked up or returned Alex due to transportation issues. She also found that there were serious communication difficulties between the parties. She concluded that the mother was the parent best able to provide the child with the consistency and stability he needed and the parent best able to meet his needs.

[17] Ms Jones testified at the trial. The father testified and also called as witnesses his stepsister Alexandra Linnard and a family friend Barbara Thompson. Although advised several times by the court that he should call his wife as a witness, he declined to do so. The mother testified and called as witnesses two of her friends and neighbours, Melody Gray and Lindsay Edmunds. In addition, on consent, a police occurrence report and a summary letter outlining the involvement of the Children's Aid Society of Halton was filed. Numerous text messages and emails were also entered as exhibits.

3. POSITION OF THE PARTIES

[18] The father seeks joint custody and a continuation of the current alternate week arrangement but with the parties sharing the transportation. He is not prepared to have any direct communication with the mother due to her harassment and threatening behaviour. He expressed concerns that the mother's mental health is not stable, that she is not gainfully employed and on "welfare", that she does not value education, that she smokes marijuana and that she "smothers and babies" Alex. Otherwise, he believes that the mother is a good parent and meets the needs of both Alex and Emily. If he is not granted joint custody and equal shared parenting then he seeks access every week end.

[19] The mother seeks sole custody with alternate weekend access to the father and a sharing of holiday access. She expressed concerns about the instability in the father's life with respect to his constant change of residences, lack or change of contact information and lack of stable employment. She is concerned about his lack of good decision making regarding their son and his inability to provide proper care for him. She is most concerned about his refusal to communicate with her, provide her with information about their son or use a communication journal to exchange information. She is also concerned about his overreliance on Ms Christiaens and babysitters to care for their son.

4. PARENTING ARRANGEMENTS

[20] In determining what parenting arrangements are in the child's best interests, I have considered the evidence in the context of the factors set out in subsection 24 (2) of the Children's Law Reform Act, R.S.O. 1990, c. C-12, as amended.

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

(i) each person entitled to or claiming custody of or access to the child;

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

(iii) persons involved in the care and upbringing of the child.

[21] Both parents love the child and have a good relationship with him. I have no doubt that he loves both of his parents, the father's new spouse, Ms Christiaens, and his half siblings in both homes. Unfortunately because the father chose not to call Ms Christiaens as a witness there is no direct evidence about her relationship with Alex.

[22] As part of the Office of the Children's Lawyer investigation, Ms Jones observed the child in both homes and saw him with the parties, with Ms Christiaens and with his siblings and observed affection and appropriate interaction between them.

(b) The views and preferences of the child, where such views and preferences can be reasonably ascertained

[23] Alex is only 2 years old and is too young to express any views and preferences.

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

[24] The child is now just over two years old and in his short life he has had at least four primary caregivers and at least four homes. Initially the child resided in the primary care of his mother in her home in Milton and he spent time with his father at the father's friend's home. From the time the child was three months old to six months old he resided in the primary care of the father again at the father's friend's home. During this time, he rarely saw his mother. As the father was working the child was primarily cared for by babysitters. Since six months of age, the child has been in the care of both of his parents on an alternate week schedule.

[25] But while in the care of his father, he has lived in two different residences and is now cared for primarily by the father's spouse. Although the father disputed this, the observations of Ms Jones during her home visit confirmed that the father seemed to have little practical knowledge about the child and deferred to his spouse. The father acknowledged that parenting is "a big learning curve" for him and he admitted that once he met his current spouse, she became the child's primary caregiver although they are both involved in his care.

[26] Further, although the court ordered that the child live with both parents on alternate weeks, this arrangement has proven to be very problematic. The mother does not drive. The father lost his licence due to unpaid fines and although his licence was subsequently reinstated, his car in the interim had been re-possessed. The father moved to Guelph which is about an hour from the mother's residence and he has relied on friends and family for transportation. As a result he was late or he picked up or dropped off the child on unscheduled days or missed substantial periods of access all together.

[27] While in the care of the mother, Alex has lived in a stable residence. The mother has lived in the same apartment complex for the last four years. She resides in a residential area with all of the necessary amenities. In the report of the Office of the Children's Lawyer the mother's home was described as being neat, appropriately furnished and well equipped for children.

[28] In contrast, when the father's home was observed as part of the Office of the Children's Lawyer investigation, there were concerns noted about the state of the residence, lack of appropriate sleeping arrangements for all of the children, the bedroom was described as bleak, disordered with broken furniture, no dressers and bare mattresses. Several safety concerns were noted and although Ms Jones was at the home on three separate occasions there did not appear to be any substantial change in the state of the home. The father testified that since the investigation he and Ms Christiaens have moved to bigger accommodations. None of the father's witnesses provided any evidence to corroborate the nature and condition of the new accommodations nor did the father provide any detailed evidence or photographs of the accommodations.

[29] There are also some concerns about the stability of the father's relationship. It may be that now that the father is married and has a child with his new spouse that this will provide more stability in his life. However, this is a relatively new relationship; they were married within a year of meeting each other and then had a child six months later. During the home visit, Ms Jones commented on the tension and stress she observed between the father and his new spouse and the difficulties she observed with them caring for Alex and Ms Christiaens' two young children and now of course they have another child. There are also some financial strains as the father testified that he was supporting the family on his student loan that had run out, that Ms Christiaens was not working and on maternity leave. The father testified that he was unsure as to how he would be paying next month's rent, that he was planning to take a leave from his school program and look for a job but then he testified that Ms Christiaens' family would help them. As Ms Christiaens did not testify, the court was not able to assess the strength of her relationship with the father, how she is coping with caring for all of the children and how she is coping with the financial stresses in their relationship.

[30] Based on the evidence, I find the mother is the parent that has been able to provide stability for the child.

(d) The ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child

[31] Both parents have the ability to provide the child with guidance and education. I reject the father's concerns that the mother does not value education. Although it is correct that the mother herself has not graduated from high school and has not returned to school to obtain her high school certificate, there was no evidence to suggest that she does not value a good education or that when the child is older that she would not encourage him to pursue a good education. The father in his evidence confirmed that the mother is a good parent to both of her children, meets all of their needs and encourages them to watch educational shows.

[32] Although the father graduated from high school and according to his testimony did well academically, he has had a great deal of difficulty maintaining employment and does not appear to have any career goals. He testified that he is currently taking a postsecondary course for a certificate in payroll and accounting from the Academy of Accounting. He expected to obtain his certificate in payroll in May and then would qualify for his certificate in accounting in June. But then he testified that he was planning to take a leave from school as soon as he obtained his payroll certificate and planned to obtain a job. He tried to suggest that the administrator of his program suggested he do so. No one from this school was called to testify nor did the father provide any documentation from the school. The mother submitted that this indicated that he did not value education. But in my view it is more of an indication of the father's ongoing lack of stability and poor decision making.

[33] The mother has done her best to provide the necessities of life for Alex and her daughter. During the home visit, it was observed that the mother had many age appropriate toys and other necessary equipment for the child. She has sometimes been forced to rely on food banks due to her limited finances. Also for several months due to the change in the custodial arrangement regarding Alex, she lost her child tax benefit and this caused her to lose her cable, internet and fall behind in her rent. But she was able to resolve those issues and now is debt free.

[34] Although it is correct that the father was not required by court order to pay child support, he was aware of the mother's financial situation and he never provided any voluntary support except for the first few months where he provided the mother with some items for the child. Further, although one of the reasons the father was not required to pay child support was based on his cost of transportation for the access visits, the father testified that he relied on friends and relatives for transportation and never provided any proof that he had to pay any of them.

[35] Alex is a healthy, bright and engaging child and has no special needs.

[36] Based on the evidence, I find that both parents are willing and able to provide Alex with the necessities of life and provide him with guidance and education.

(e) Any plans proposed for the care and upbringing of the child

[37] The father's plan is to continue the alternate week schedule. Ms Christiaens is currently at home on maternity leave so she would be available to care for Alex and if they were both working, then the father testified that there would be no problem in arranging for babysitting. He did not consider that an alternating week schedule would be problematic once Alex started school. It is not possible to assess the viability of this plan as the father chose not to call Ms Christiaens as a witness who has been the primary caregiver of Alex while he is with the father. During the investigation by Ms Jones she obtained information about Ms Christiaens' past involvement with the children's aid society. She has a history dating from August 2005 to September 2010 with six different involvements. The report from the society indicated involvements with respect to mental health issues, domestic violence, instability of residences, financial stressors, drug use and concerns about care giving skills. The most recent report obtained by Ms Jones indicated Ms Christiaens was experiencing multiple stressors, with the separation from a long term relationship, lack of finances and not using community resources. There were concerns about her mental health and drug use, exposure of her children to domestic violence and concerns about meeting the needs of her children. The father was not even aware of Ms Christiaens' past until the disclosure meeting by Ms Jones.

[38] The mother hoped to enrol Alex in a daycare or nursery school program but the current arrangement made that impossible. He would attend the same school as her daughter. She planned to stay home to care for him until he was old enough to attend school and then she would return to work. The mother has done a good job of raising her daughter and there is no reason to expect that she would not do the same with Alex.

[39] Based on the evidence, I find that the mother has the better plan for the care and upbringing of the child.

(f) The permanence and stability of the family unit with which it is proposed that the child will live

[40] The mother is single and not in a new relationship. She has custody of her daughter Emily.

[41] The stability of the father's relationship is unknown although Ms Jones noticed tension in the relationship during her investigation. The father explained that this was only because they were in a hurry and had plans when Ms Jones came to their home.

(g) The ability of each parent applying for custody of or access to the child to act as a parent

[42] The father's testimony and his cross-examination of the mother and Ms Jones focused on the events in May and July 2010 that resulted in Alex coming into his care and the mother's past and present mental health problems. He was unable to refocus his case and it was not clear, if he was still proposing that they share physical custody of Alex, why these past incidents would be relevant.

[43] The mother acknowledges that she was having a difficult time raising Alex in May 2010 and she was feeling depressed and unable to properly care for Alex. She telephoned the father to come and take Alex for the week-end which he did. But then he called the children's aid society and reported that she was abusing alcohol and drugs and had mental health issues. She felt betrayed by the father for reporting her to the children's aid society. She also acknowledged that she refused to be tested for drugs as she had been smoking marijuana and knew that would show up in the test results.

[44] The mother also acknowledged that when the father returned Alex from a week-end visit on July 4, 2010, she completely lost control. She still loved him and when he told her that he was going out for a drink with another woman, she became enraged and threw an ashtray at his car and told him to take Alex. Thereafter, she sent him malicious and disturbing emails.

[45] The mother testified that after the court ordered Alex into the care of the father it was a wake-up call for her. She stopped smoking marijuana and she sought assistance. She was diagnosed with post partum depression and received treatment and medication from Dr. Kamouna and counselling from Robin Cairn at the Halton Women's Services. Dr. Kamouna reported that the mother had responded well to treatment, was mentally stable and he did not have any concerns about her parenting. Ms Cairn reported that the mother had continued with monthly counselling sessions and had made progress through her past life issues with regard to abuse and demonstrated insight into her parenting connecting the past with the present. She commented that the mother parented with ease and patience.

[46] The mother testified that she was benefitting from the counselling and felt much better. She had recently discontinued the medication prescribed by Dr. Kamouna, with his knowledge, as she no longer felt she needed it. She testified that she was very apologetic for the inappropriate emails and text messages she had sent the father. She produced into evidence a letter she had given to the father apologizing for her past behaviour and wishing him well on his upcoming marriage. The mother also testified that once the order for the alternate week schedule was made she became better as she was able to rebuild her bond with Alex.

[47] The father in his examination of Ms Jones asked why she had not delved more deeply into the mother's past as she had been in foster care since she was 13 years and during a stay in a mental health group home she had been diagnosed with depression and bi-polar disorder. Ms Jones testified that based on the information from the mother's counsellor and Dr. Kamouna she did not feel there was any need to do so as those professionals were confident that currently the mother was functionally well.

[48] Based on the evidence of the mother and the investigation of Ms Jones, I find that there is no concern about the mother's mental health and that she has fully accepted responsibility for her inappropriate behaviour from July to October 2010.

[49] The father also alleged that he moved to Guelph because the mother continued to harass him and Ms Christiaens, that he thought someone was following him and that he was concerned for his safety. However, in cross-examination, the father was unable to produce any proof that the mother continued to send him harassing or threatening communications after October 2010 and he agreed that he never reported any concerns about his safety or that someone was following him in his report to the police. He then finally admitted that the main reason he moved to Guelph was to be with Ms Christiaens.

[50] The evidence with respect to the mother's ability to parent was all positive. Even the father admitted that she was a good parent to both Emily and Alex. He testified that he had previously raised concerns about the mother "babying" Alex but now understood that she was being appropriate.

[51] The father and his witnesses acknowledged that he had a lot to learn about caring for a young child but that he had been willing to take on that responsibility when it unexpectedly arose in July 2010. The father should be commended for assuming this responsibility. Both Ms Thompson and Ms Linnard confirmed that they felt the father did a good job of caring for Alex and that he was always ready and willing to take their advice.

[52] However, I find that the father has not always acted in Alex's best interests. For example, he took the child to the "well baby" check up on September 23, 2010 and he then scheduled an appointment for a six month vaccination. He did not keep this appointment and testified that he forgot about it. He also never told the mother about the appointment. The mother was unaware, until the disclosure meeting with Ms Jones, that Alex had missed his vaccination. She immediately arranged for the vaccination with Dr. Kamouna and scheduled annual medical appointments for both children with him. The father had not arranged for any medical care for Alex in Guelph.

[53] The father has shown a lack of insight into the needs of this young child and has shown poor judgement. For example, during the investigation by Ms Jones that he suggested that he would hire his 15 year old nephew who lived out of town or Ms Christiaens' former spouse to care for Alex. He did not believe that Alex was affected by the lack of communication between him and the mother. He believed that Alex likes to travel back and forth between Guelph and Milton and the present custody/access conflict will not have a negative impact on Alex. Ms Jones concluded that the father seemed to be over reliant on others for direction on parenting. During Ms Jones' home visit she concluded that he did not know whether the child had slept or his favourite toy. He had not established a sleeping routine for Alex when he was in his sole care. He refused to cooperate with regard to Alex's travel supplies. He would not use the supplies sent by the mother such as a bottle of water, a snack and extra diapers as he felt it was a short ride and the child would be fine. He returned the bag to the mother unopened, containing a mouldy snack and juice bottle. He had suggested sending a taxi or a friend to transport the child to and from Guelph and Milton.

[54] The father testified that Ms Jones misunderstood him regarding using his 15 year old nephew as a caregiver, he only meant that he would babysit for a few weeks until they found a permanent solution. He also testified that the taxi driver was someone he knew and the friend was someone the mother had met. He did not testify that either of these people knew the child and he had no insight into how a young child might feel being driven by someone who was a stranger to him.

[55] The father blamed all of the transportation difficulties on others and felt the court order that required him to do all of the driving was unfair and he did not see the rationale for this. He did not acknowledge that he chose to move out of the jurisdiction to live in Guelph with Ms Christiaens. He had not even tried to find accommodations in Milton to be closer to his son. He originally lost his licence for unpaid fines but testified that he now had his licence but no car. Although Ms Linnard testified that she gave him an old car that needed some work, he never explained why he had not repaired the car. He also never looked into renting a car for the weekend. Because the father has relied on friends and relatives for transportation the arrangements are not predictable or reliable and plans are often made at the last minute. He has sent his friends to pick up the child without previous agreement of the mother who on several occasions has then refused to release the child. Other times he has just kept the child for two weeks, or told the mother to pick him up or returned him whenever he had a ride. As the parties do not communicate, the transportation arrangements have been chaotic, unpredictable and impossible to maintain.

[56] The mother testified that she wished to be able to put the past behind and communicate with the father. She had attempted to use a communication book but after one or two entries the father did not use it. The father has blocked her from his Facebook account. The mother is able to send text messages but as the father and Ms Christiaens share a cell phone, she never knows who she is communicating with. The father has made it clear that he does not wish to have direct communication with the mother and prefers all communication to be through a third party. However, the father did testify that he would be prepared to use a communication book.

[57] Based on the evidence, I do not find that there are any concerns about the mother's ability to parent. However, there is evidence that although the father is willing to parent he has a great deal to learn about parenting. He needs to be able to move beyond what he feels are the mother's past problems and learn to recognize that this child needs stability and consistency and two parents that are not constantly exposing him to conflict.

[58] It is somewhat ironic that the father has no problem accepting that his spouse is a good parent despite the fact she has suffered from post partum depression and had a much more serious drug problem than the mother but he cannot move beyond the mother's past.

(h) The relationship by blood or through an adoption order between the child and each parent who is a party to the application

[59] This is not a factor.

5. ANALYSIS OF CUSTODY AND ACCESS ARRANGEMENTS

[60] The father seeks an order of joint custody that is opposed by the mother and not recommended in the Office of the Children's Lawyer report.

[61] In Kaplanis v. Kaplanis, the Ontario Court of Appeal confirmed the principles in determining whether a joint custody order is appropriate:

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

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

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

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

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

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

[62] Joint custody should not be ordered where there is poor communication and the parties fundamentally disagree on too many issues affecting the child's best interests.

[63] Although perfect communication that is easy or comfortable or free of conflict is not expected, what is expected is that there is a reasonable level of communication and cooperation in place or that can be achieved in the future so that the best interests of the child can be assured on an ongoing basis.

[64] Where the conflict between parents is primarily the fault of one parent, the other parent should not be able to use the conflict as a justification to oppose joint custody.

[65] In this case, it is the father who is refusing to communicate directly with the mother and as a result a joint custody order would be impractical. Until ordered by the court, the father would not even reveal his address or telephone number to the mother. He has blocked her from his Facebook account.

[66] The father is the parent that is perpetuating the conflict by failing to abide by the terms of the outstanding parenting arrangement. The lack of communication around transportation is the most concerning aspect of the parents' failure to communicate and the resulting negative effect on the child.

[67] The parents disagree on many issues and the father has consistently not communicated with the mother about what parenting decisions he makes while the child is in his home. For example:

1. The parent jointly chose the name and agreed to call him "Alexander". But the mother found out that after the separation the father was calling him "Lex" so she started to call him "Alex" to lessen the confusion.

2. At the mother's house the child sleeps in a crib, at the father's house he sleeps in a bed.

3. At the mother's house she still gives the child a bottle at night but at the father's house he drinks from a cup and is not allowed a bottle.

4. The father wanted to have the child circumcised but the mother disagreed.

5. The father started to potty train the child without advising the mother.

6. The father did not tell the mother he arranged for a vaccination. The father then neglected to take the child himself and did not tell the mother that the child had not received his vaccination.

7. The child returned from spending time with the father with a bruise on his back and the father did not volunteer how it happened.

[68] In all of these circumstances a joint custody order is not workable. The mother has shown herself to be the parent most able to meet all of the child's needs. Any decision she has made has been in the child's best interests. She wishes the father to be involved in the child's life. She has a good relationship with her daughter's father and it is reasonable to expect that over time a better relationship will develop with the father. Just because the father is not granted joint custody does not in any way preclude him from being actively involved in the child's life.

[69] With respect to access, it is in a child's best interests to have as much contact with both parents as is consistent with the child's best interests.

[70] I accept the evidence of the father and his witnesses that the father has a loving and affectionate relationship with the child. There was evidence of the unkempt condition of the child and his dirty clothing when returned from spending time with the father but I am hopeful that if the father accepts some suggestions from the mother and as he gains confidence and understanding of the needs of Alex, his physical care of the child will improve. I also remain concerned about the role of Ms Christiaens given her background and the decision made not to call her as a witness. However, I have confidence that the father loves his son and that with time he will take a more active role in meeting his needs. Alex also will benefit from spending time with his new sibling and Ms Christiaens' sons. I have also considered that the mother is not requesting that access to the father be curtailed because of her concerns. The mother has in the past shown herself to be accommodating to the father's request for access for special family events such as his wedding and other family gatherings.

[71] Unfortunately the father's decision to move to Guelph and his current lack of transportation does not permit much if any week day access. As it is important for the child to spend quality time with the mother and Emily on weekends, an alternate week-end access schedule is appropriate and some time on the week-days if he is able to do so. Neither the parties nor the report of the Office of the Children's Lawyer dealt with many holiday arrangements so I will incorporate the recommendations made and would encourage the parties to remain flexible with respect to any holidays or special events that are not specifically referred to in the court order. Despite the conflict between the parties, there were numerous instances where the mother was flexible in permitting the father to spend time with the child outside of his scheduled access week when he had missed his week because of being unable to make appropriate arrangements or for a special event. I expect the mother will continue to accommodate the father. However, the father must realize that a child needs predictability and consistency and he needs to find a way to arrange a schedule of regular access.

[72] There are recommendations in Ms Jones report to assist the parties in communicating with each other, in view of the conflict especially around transportation issues, I have incorporated these recommendations in the court order. Both parties indicated that they were willing to abide by those recommendations.

6. CHILD SUPPORT

6.1 Position of the parties

[73] The father made no submissions on the issue of child support.

[74] The mother sought child support on the basis of imputing income to the father. Although the mother initially sought child support to the commencement of the application, she did not vigorously pursue this at trial.

6.2 Relevant evidence

[75] The father's estimate of his income for the last several years is as follows:

• 2011 - $19,750
• 2010 - $30,495
• 2009 - $32,000

[76] The father's last job was as a cleaner for an industrial cleaning company, from January 2011 to about mid October 2011, where he earned $19,750. He testified that he quit that job because he decided to return to school, had to care for his family and it was too much to also continue working. Prior to that job he worked for Galvaast Manufacturing earning $18.50 an hour but was laid off due to a shortage of work. He has also worked part time preparing tax returns.

[77] The father testified that once he finished school and was qualified as a payroll clerk he could earn about $15.00 to $20.00 per hour and once he obtained an accounting certificate he could earn up to $60,000.00.

7. ANALYSIS

[78] Clause 19 (1) (a) of the Child Support Guidelines, O. Reg. 391/97 as amended provides that a court can impute income to a party in appropriate circumstances as follows:

19. (1) The court may impute such amount of income to a parent or spouse as it considers appropriate in the circumstances, which circumstances include,

(a) the parent or spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of any child or by the reasonable educational or health needs of the parent or spouse;

[79] The onus is on the party seeking to impute income to the other party to establish the other party is intentionally unemployed or under-employed. The party requesting an imputation of income must establish an evidentiary basis upon which this finding can be made.

[80] There is a duty on the part of the payor to actively seek out reasonable employment opportunities that will maximize their income potential so as to meet the needs of their child. Further a determination as to whether or not a payor was intentionally under-employed does not require a finding of bad faith or the intention to defeat a support claim. The issue is whether the support payor, through his own conduct, which is not a result of circumstances beyond his control, is earning less that he is capable of earning.

[81] The father has made some poor employment choices and has changed jobs several times. It was unclear from the evidence as to the time he needed to spend in his current education program as at times he testified that he could do most of the courses on line. Yet he testified that he quit his job cleaning because he could not manage to work and go to school. It was not clear whether or not he could have at least worked part-time while attending school.

[82] What is clear is that currently the father has no income or assets and is not in a position to pay child support. However, based on the father's evidence he was scheduled to finish his payroll certificate in May and then he planned to obtain employment and then finish his accounting certificate which he expected he could do online or if he stayed in school he expected to be finished by June. In either event the father should be in a position to obtain employment within the next several months.

[83] In these circumstances and taking into consideration that the father quit his last job and chose to return to school, I accept the mother's submissions that income should be imputed to him at a minimum of $25,000.00 with an ongoing disclosure requirement.

[84] Therefore, there will be an order imputing income to the father of $25,000 (being about $13.00 per hour) and he shall be required to pay child support of $200 per month in accordance with the child support guidelines commencing September 1, 2012 which allows him some time to find employment and organize his finances to meet this obligation. Currently there are no Section 7 expenses but it is likely that the mother will return to work and therefore the child will need to be in daycare and likely he will be involved in some extracurricular activities. To deal with these expenses in the future, I will make a general order that the parties share such expenses in proportion to their respective incomes. But that no such expense should be incurred without the prior written consent of the father, such consent not to be unreasonably withheld.

8. ORDER

[85] Order as follows:

1. The Respondent, Lara Lynn Carson shall have custody of Alexander James Mitchell born […], 2010.

2. The Applicant, Richard Mitchell, shall have access as follows:

i) on alternate weekends from Friday at 7:00 p.m. to Sunday at 6:00 p.m. to be extended to Monday at 6:00 p.m. or to begin Thursday at 7:00 p.m. on any statutory holiday;

ii) on every Wednesday for a four hour visit in Milton with times to be arranged.

3. The parties shall share holiday access as follows:

i) the Applicant shall have access every December 25th from 2:00 p.m. to December 26th at 6:00 p.m.;

ii) the child shall spend Father's Day weekend with the Applicant and Mother's Day weekend with the Respondent regardless of the regular schedule;

iii) the parent in whose care the child is with on his birthday shall celebrate with him on that day; the other parent can celebrate with the child on another day in accordance with the regular schedule;

iv) all other holidays shall be as agreed upon by the parties in advance and in writing.

4. The Applicant shall be responsible for all transportation. If the Applicant does not intend to personally be present at the pick-up and drop off he shall advise the Respondent of the arrangements and obtain her consent, such consent not to be unreasonably withheld.

5. The Applicant and Respondent shall follow these guidelines with respect to communicating with each other:

i) The parties shall use a communication book with respect to all non-emergency issues regarding the child; the entries shall be respectful, brief and limited to the care of the child;

ii) Any other communication, including access arrangements, shall only be between the parties through email or text messages;

iii) Both parties shall advise the other within 24 hours of any change in their contact information including address, telephone number or email address;

iv) The Applicant shall inform the Respondent of the transportation arrangements for the weekend on the Thursday evening prior to his weekend access and on the Sunday evening prior to his weekday access of the time of the visit;

v) In the event the Applicant is not able to make appropriate transportation arrangements, the parties will agree to such access being exercised in Milton for up to four hours on either the Saturday or Sunday of his regularly scheduled access weekend;

vi) Both parties should advise the other of any important or special events that they wish the child to attend; both parties should be flexible in permitting the child to attend such events;

vii) Both parties shall keep each other advised about routine and emergency health care issues, treatments and medications. Each party shall be responsible for administering any prescribed medications as directed by a physician while the child is in his/her care;

viii) The child shall be provided with appropriate and sufficient clothing and personal effects when transitioning to the other parent. Anything that is sent to the other home should be returned clean and in reasonable good repair. Anything that is lost shall be replaced by the party in whose home it went missing. Appropriate supplies are to be packed to travel with the child such as his health card, a bottle of water, a snack weather appropriate clothing and a spare diaper, as long as it is needed.

6. The Respondent shall provide to the Applicant the names and contact information of any of the child's health care providers and when applicable, any daycare and school information. The Respondent will sign any necessary documents to ensure that the Applicant is able to obtain information directly from any health care provider, daycare provider and the school.

7. Based on the Applicant's imputed income of $25,000.00 he shall pay child support for Alexander James Mitchell born […], 2010 based on the Child Support Guidelines for one child of $200.00 per month as of September 1, 2012.

8. The Applicant shall advise the Respondent within two weeks of obtaining any employment and provide her with a copy of his employment contact or pay stub.

9. The Applicant shall provide to the Respondent on an annual basis, commencing June 30, 2012 a copy of his tax return with all attachments and his Notice of Assessment or Notice of Re-assessment. The child support payable for the preceding year may be re-adjusted at the instance of either party by initiating the appropriate court process.

10. In the event, that the Respondent requests that the Applicant pay his proportionate share of the child's special expenses, as defined by section 7 of the Child Support Guidelines, she shall provide the Applicant with prior notice of the expense and proof of her income. No such expense to be incurred without the Applicant's prior written consent, such consent not to be unreasonably withheld. In the event, the parties cannot agree, the issue will be resolved through a court process.

[86] Support Deduction Order to issue.

[87] In the event the Respondent is seeking costs, brief written submissions are to be made within three weeks and the Applicant will have a further two weeks to respond.

[88] Ms. Lipson to prepare order. Approval as to form and content by the respondent is dispensed with.

Released: June 1, 2012

Signed: "Justice R. Zisman"