Court File and Parties

Court File No.: Halton 97/10

Date: 2014-05-28

Ontario Court of Justice

Between:

BROOKE MILFORD Applicant

— AND —

STEPHEN CATHERWOOD Respondent

Before: Justice Sheilagh O'Connell

Trial heard on: June 13, 14, 15, August 19, 20, 21, 23, October 21, 22, 23, 25, 26, 2013

Reasons for Judgment released on: May 28, 2014

Counsel:

• M. Darling, for the Applicant
• J. Hart, for the Respondent

O'CONNELL J.:

1. Introduction

[1] The mother, Brooke Milford ("Ms Milford"), has brought a motion to change the final orders of Justice June Maresca, dated November 24, 2009 and Justice Roselyn Zisman, dated July 21, 2010. She seeks sole custody of the children and an order that the father have access to the children on alternating weekends only. She further seeks child support, retroactive to January 1, 2012, based on an income imputed to the respondent father of $30,000.00 annually.

[2] In his response, the father, Stephen Catherwood ("Mr. Catherwood"), also seeks to change the final orders of Justice Maresca and Justice Zisman. He requests sole custody of the children but with an access arrangement in which the children reside equally with both parents in the rotating schedule proposed by the clinical investigator for the Office of the Children's Lawyer. In the alternative, Mr. Catherwood requests that the children remain in the joint custody of both parents, in the equally rotating schedule.

[3] The two children of the relationship are Payton Olivia Milford, born November 4, 2005 ("Payton") and Parker Nolan Milford-Catherwood, born November 8, 2007 ("Parker").

2. Issues

[4] The main issue for me to determine is whether there has been a material change in circumstances since the final orders of Justice Maresca and Justice Zisman that affects the best interests of the children. If so, what custody and access order is now in the children's best interests?

[5] The second issue for me to determine is child support, including the amount and start date, if any, and whether income should be imputed to the father for child support purposes.

[6] In this trial, I heard ten days of evidence from the father and the mother, the clinical investigator from the Office of the Children's Lawyer, each parent's new common law partner, and the children's grandparents on both sides of the family.

[7] At the time of trial, the final orders of both Justice Maresca and Zisman had already been changed on a temporary basis. Since July of 2011, the children were now in the temporary sole custody of Ms Milford, with mid-week and alternating weekend access to Mr. Catherwood, pursuant to the order of Justice Zisman, dated July 29, 2011.

3. The Applicant Mother's Position

[8] Ms Milford submits that the parties have struggled for years under a joint custody regime that is completely unfeasible and traumatic for the children given the very high level of conflict and Mr. Catherwood's abusive and intimidating behaviour towards her. According to Ms Milford, every decision regarding the children's welfare, health or education has been fraught with conflict and violence. Mr. Catherwood has been repeatedly charged and convicted of assaulting her or breaching no contact orders.

[9] Ms Milford submits that since the 2011 order of Justice Zisman granting her temporary sole custody, the children are happy, healthy and thriving in a stable situation.

[10] Ms Milford further contends that Mr. Catherwood has proven himself to be an irresponsible parent who has been unable to meet the children's basic needs or to provide them with the structure and stability that they require. She claims that Mr. Catherwood is an extremely volatile and angry person who has repeatedly exposed the children to domestic violence, adult conflict and conflict in public with daycare and school teachers. He has failed to protect the oldest child Payton from his father's assaultive behaviour, as verified by the children's aid society; he has engaged in verbal and aggressive altercations with the children's day-care staff; he has failed to fulfil basic expectation, including getting the children to school on time, ensuring that their homework is complete, and picking them up from school and day-care on time.

[11] Ms Milford asserts that Mr. Catherwood is incapable of accepting any responsibility for his wrongdoing and that his lifestyle and anger issues are a danger to the children's well-being. She states that Mr. Catherwood has repeatedly breached court orders, including being consistently late, allowing the children to be alone with the paternal grandfather, and signing the children up for extra-curricular activities during her time with the children, without ensuring her availability, even after she was granted temporary custody.

[12] Finally, Ms Milford states that she has been the sole financial support for the children for years without any financial assistance from Mr. Catherwood while he has attended school. Mr. Catherwood has now dropped out of school after his educational pursuits did not materialise and she submits that he is obligated to support the children at an income imputed to him of at least $30,000.00 annually, retroactive to January 2012.

4. The Respondent Father's Position

[13] Mr. Catherwood submits that Ms Milford has repeatedly manipulated the criminal and child protection systems to undermine and restrict his relationship with the children. He vigorously denies that he has been abusive towards Ms Milford and states that she has made false allegations to the police and the children's aid society to gain an advantage in these custody proceedings, and that she continues to do so. He further states that there have been many occasions when Ms Milford has initiated contact with him notwithstanding criminal no-contact orders, leading to further criminal charges and convictions against him.

[14] Mr. Catherwood further asserts that since Ms Milford was granted sole custody, his access has been consistently reduced by her. He states that Ms Milford continues to harbour a great deal of hostility and resentment towards him, particularly after he was successful in halting the proposed adoption of Parker, their second child, without his consent in 2007. According to Mr. Catherwood, Ms Milford makes decisions that serve her own interest, and not the children and that she will do everything in her power to disrupt his relationship with the children.

[15] Mr. Catherwood also contends that the allegations that his father assaulted Payton are completely false and he denies that he has failed to protect and adequately supervise the children while they are in his care. Although he acknowledges that he has had difficulty in the past getting the children to and from school as a result of his school commitments, thereby having to rely on third parties, he submits that Ms Milford has made this more difficult for him by seeking unreasonable conditions. He claims that any altercations that he has had with the children's day-care staff were entirely the fault of Ms Milford for refusing to provide the daycare with alternate contacts for his family, such as the children's paternal grandmother, when he was unable to pick the children up at the required time.

[16] Mr. Catherwood also asserts that Ms Milford has repeatedly breached court orders to undermine and restrict and marginalise his relationship and his family's relationship with the children. He cites as examples her refusal to enrol the children in Catholic school, her refusal to allow him to see Parker when he was hospitalised for tonsil surgery and her refusal to change Payton's last name to 'Milford-Catherwood', pursuant to Justice Maresca's Order.

[17] During the course of the trial, Mr. Catherwood further submitted that he saw no reason why the parties could not continue with the joint custody arrangement, as any conflict was deliberately created by Ms Milford to sabotage the joint custody order. He submits that he has always sought joint custody and that the only reason it did not work is because Ms, Milford never wanted it to work.

[18] Mr. Catherwood states that any award for child support should be based on his current annual income and that it should not be retroactive. He states that he withdrew from his educational program because of the stress of this litigation and the repeated criminal and child protection investigations caused by Ms Milford's false allegations.

5. Background Facts

[19] Ms Milford is 33 years old. Ms Milford is employed at the Firehall Restaurant in Oakville, where she has been employed for the past eleven years. She and the children reside with her common law partner, Mr. Steve Frappier, in Oakville. Ms Milford and Mr. Frappier are planning to be married.

[20] Mr. Catherwood is 33 years old. He recently left Sheridan College, where he was a student since 2008. At the time he left college, he was enrolled in the chemical engineering technology program although he did not complete the program. During the course of this trial, he started employment as a cook at a restaurant in Burlington. He resides with his common law partner, Ms Mira Momeni, in Burlington, and with the children on their scheduled weekends and weekdays. Mr. Catherwood and Ms Momeni are also planning to be married.

[21] Ms Milford and Mr. Catherwood met and started dating in 2004 when they were both 21 and 22 years old. They were never married. They lived together briefly for approximately four months from September of 2004 to on or about December of 2004. This period of cohabitation ended when Mr Catherwood was charged and later convicted of assaulting Ms Milford on December 9, 2004. After they stopped living together, they continued to have a sporadic, sexual and "on again, off again relationship". Their relationship finally ended in 2007, before the birth of their second child.

[22] Both children were conceived during periods of brief reconciliations between the parties, and neither pregnancy was planned. Payton is now eight years old and Parker is six years old. The children attend the same school in Ms Milford's neighbourhood, which is also close to Mr. Catherwood's home.

[23] It is not disputed that the history of the parties' relationship and post-separation contact has been fraught with conflict and violence. Both parents blame the other as the instigator for the violence and conflict. Both the Halton Region Police Services and the Halton Children's Aid Society have had extensive contact with these parties and the children over the years.

[24] Mr. Catherwood has been convicted of assaulting Ms Milford and breaching a number of probation orders, although he maintains that Ms Milford instigated and initiated many of the situations in which he states that he was unfairly charged and incarcerated. Ms Milford was charged with assaulting Mr. Catherwood on one occasion, however that charge was later withdrawn. In 2004, in the early years of their relationship, both parties entered into a peace bond as result of an altercation between them.

[25] Mr. Catherwood was first convicted of assaulting Ms Milford in December of 2004. He entered into an eighteen month probation order prohibiting contact with Ms Milford. In February of 2005, Ms Milford became pregnant with Payton during a period of reconciliation between the parties, despite the outstanding probation order. In August of 2005, Mr. Catherwood was convicted of being unlawfully in Ms Milford's dwelling house, failing to comply with his probation order, and breaching a peace bond and his recognizance, after an incident that occurred in May of 2005 at Ms Milford's home. In November of 2005, Mr. Catherwood was convicted of breaching his probation order by communicating with Ms Milford and taking her to the hospital, at her request, for Payton's birth. In February and March of 2006, Mr. Catherwood was convicted of two counts of breaching his probation order by communicating with Ms Milford. In February of 2007, Ms Milford became pregnant with Parker and the parties finally ended their relationship on or about the summer of 2007.

[26] It is not disputed that when Ms Milford initially discovered that she was pregnant with Parker, she advised Mr. Catherwood that she would terminate the pregnancy. However, during the course of her pregnancy, she arranged for Parker to be adopted by family friends. Ms Milford then advised Mr. Catherwood of the proposed adoption and he was served with adoption proceedings before Parker's birth. Ms Milford brought an application, along with the prospective adoptive parents, seeking to dispense with Mr. Catherwood's consent to Parker's adoption. Prior to Parker's birth, Mr. Catherwood met with the adoption licensee in October of 2007.

[27] Mr. Catherwood did not consent to the adoption and advanced his own plan of care for Parker and sought custody of him. During the motion to dispense hearing before the Justice June Maresca, the prospective adoptive parents withdrew their adoption application.

[28] The parties then became engaged in a highly contested custody and access proceeding. Mr. Catherwood was granted temporary custody of Parker and Ms Milford was granted temporary custody of Payton and an access scheduled was developed whereby the children would spend time together and with each parent, pending a final resolution.

[29] The issues of custody and access were referred to the Office of the Children's Lawyer (the "OCL"). The social worker appointed at the time was Mr. Roy Reid, who completed his investigation and report in 2008. Mr. Reid also completed the updated OCL investigation and report in this trial. In his 2008 report, Mr. Reid recommended that Ms Milford have sole custody of both children, with the children residing equally with each parent in a rotating weekly schedule.

[30] In September of 2009, Mr. Catherwood was again charged with assaulting Ms Milford during an access exchange. Notwithstanding the OCL recommendations and the pending criminal charges, the parties entered into final Minutes of Settlement providing that the parties share joint custody of the children in an equal residential schedule. These Minutes formed the basis of the final order of Justice Maresca, dated November 26, 2009. The lengthy eight paged order contained numerous other detailed provisions relating to religious education, consultation, decision making and information sharing, emergency decisions, change of name, extra-curricular activities, and holidays, among other provisions.

[31] In particular, and relevant to this trial, the November 26, 2009 final order contained the following provisions:

"1. The parties shall have joint custody of the children. In the event that the parties are unable to reach an agreement on a significant issue relating to the children, after making all reasonable efforts to do so jointly, Brooke [the mother] shall have final say respecting Payton and Stephen [father] shall have final say respecting Parker.

2. The parties shall use all reasonable efforts to take the children to the same physician.

3. The parties shall cooperate in taking all reasonable steps to have Payton attend Junior Kindergarten at the Catholic school within Brooke's residential school district. They shall cooperate to have Parker attend Junior Kindergarten at the same school as Payton.

4. Stephen shall be responsible for ensuring that Payton receives all necessary religious instruction/church attendance required to maintain her enrolment in a Catholic school. Brooke shall cooperate in having Payton baptized Roman Catholic, as arranged by Stephen on prior notice to and discussion with Brooke...

5. The residence of the children shall alternate between both parties, on an equal basis, in accordance with the following two week schedule:

Week One:

a. Stephen will have both children from Sunday at 7:00 p.m., when he will pick up the children from Brooke's home, until Tuesday at 4:30 p.m., when Brooke will pick the children up from the daycare (re Parker) and Stephen's home (re Payton).

b. Brooke will have both children from Tuesday at 4:30 p.m. until Friday at 5:45 p.m., when Stephen will pick Payton up from Brooke's home and Parker from daycare.

c. Stephen will have both children from Friday at 5:45 p.m. until Sunday at 7:00 p.m., when Brooke will pick up the children from Stephen's home.

Week Two:

d. Brooke will have both children from Sunday at 7:00 p.m. until Tuesday at 5:45 p.m., when Stephen will pick Payton up from Brooke's home and Parker from the daycare

e. Stephen will have both children from Tuesday at 5:45 p.m. until Friday at 4:30 p.m. Brooke will be responsible for picking up the children

f. Brooke will have both children from Friday at 4:30 p.m. until Sunday at 7:00 p.m., when Stephen will pick up both children from Brooke's home…

20. Neither party shall schedule activities for the children, or coerce the other party to take the children to activities during the times when the children are scheduled to be with the other party, unless they obtain the prior consent of the other party, which consent will not be unreasonably withheld….

21. Brooke shall execute all necessary documents to effect a change of Payton's name from Payton Olivia Milford to Payton Olivia Milford-Catherwood within sixty days of signing the Minutes of Settlement dated August 211, 2009. The parties shall share the cost of obtaining this name change equally."

6. The History of the Current Legal Proceedings

[32] In February of 2010, only three months after the above final order had been granted, Mr. Catherwood commenced the first motion to change in these proceedings on an urgent basis. In February of 2010, he was charged with uttering threats against Ms Milford and breaching an undertaking that he had given in September of 2009 to have no contact with her.

[33] Mr. Catherwood brought an urgent motion to change the pick-up and drop off provisions for the children as he states that he had difficulty exercising access as a result of his bail conditions. He also sought to include a police enforcement clause in the final order because he alleged that Ms Milford was interfering with his access and that she had refused to enrol Payton in a Catholic school in her area despite the provision in the final order.

[34] In her response to the motion to change, Ms Milford denied restricting access, alleging that she had been contacted by both Mr. Catherwood and his father in January of 2010 to retrieve the children after Mr. Catherwood's neighbours had called the police to the Catherwood home due to an incident between Mr. Catherwood and his father regarding Payton. Mr. Catherwood was residing with his parents at the time and he exercised all of his access to the children in the grandparents' home. Ms Milford alleged that Mr. Catherwood was fighting with his father due to inappropriate discipline by Mr. Catherwood's father against Payton. She further alleged that she picked the children up from the grandparents' home at their request and was threatened by Mr. Catherwood, leading to the new criminal charges against him.

[35] Regarding the Catholic school issue, Ms Milford alleged that Mr. Catherwood had not taken any of the steps required, including baptising the children, to permit them to be registered in a Catholic school and as a result, she did enrol Payton in a public school because she was afraid that she would be subsequently removed from a Catholic school.

[36] On July 21, 2010, the parties entered into new final Minutes of Settlement regarding Mr. Catherwood's motion to change. The final minutes did not change the joint custody or holiday provisions of Justice Maresca's order, but modified the weekly residential schedule, which continued to be shared, as well as the pick-up and drop-off provisions for the children. The minutes also contained the following provision regarding the Catholic school issue:

Paragraph 3 of the [final] Order shall be rescinded and replaced with the following paragraph:

"Payton shall continue to attend Eastview Public School until the completion of Senior Kindergarten in June, 2011. Commencing in grade one, in September 2011, she shall begin attending school either at St. Dominic's Catholic Elementary School, or in the event that the Applicant moves prior to that time, at the Catholic Elementary School closest to the midway point between the parties' respective residences at the relevant time. Parker shall begin attending the same Catholic Elementary School as Payton commencing in his Junior Kindergarten year. The parties shall take all necessary steps to ensure that all enrolment procedures necessary to ensure compliance with this term are carried out before June 1 st , 2011. Unless otherwise agreed upon between the parties in writing, the children shall complete their Elementary education at Catholic Schools."

[37] These final minutes were incorporated into the Final Order of Justice Zisman, dated July 21, 2010. Justice Zisman also ordered that she shall remain seized of the case and included the following provision in the July 21 2010 final Order:

"In the event of any alleged breach of the terms of the order, either party may bring a motion before her on short notice. Such a motion must be brought to her attention by court staff and a date will be scheduled by the Justice Zisman at the earliest available court date."

[38] Justice Zisman also recommended that the parties individually attend a parent information program for separated parents.

[39] After the July 21, 2010 final order, both parties brought urgent motions in the fall of 2010 regarding a number of issues, case managed by Justice Zisman. On September 23, 2010, all of Mr. Catherwood's outstanding criminal charges were heard together and Mr. Catherwood plead guilty to two counts of breach of his probation order. He received a global intermittent sentence of fifty two days in jail, including eight days of pre-sentence custody, and a further two year probation order with a no contact provision with Ms Milford.

[40] Mr. Catherwood commenced serving his intermittent (weekend) custodial sentence in October of 2010 for breaching previous probation orders, so the access provisions were again modified during the fall of 2010, and the regular residential schedule resumed after Mr. Catherwood completed his sentence.

[41] On March 9, 2011, Mr. Catherwood brought a second motion to change the final order of Justice Zisman alleging that Ms Milford was refusing to permit him to attend the hospital for Parker's tonsil surgery due to the conditions of his probation order. He further alleged that Ms Milford had breached the access and the change of name provisions in Justice Zisman's order. He sought an order that he be permitted to take Parker to the hospital for his tonsil surgery, that the maternal grandmother be removed as a caregiver for the children and that Ms Milford comply with the outstanding order to provide a birth certificate for Payton.

[42] In her response, Ms Milford stated that was not her position. She agreed that Mr. Catherwood could attend Parker's surgery, but sought an order that the parties attend at different times given Mr. Catherwood's probation order and the conflict between them. She proposed a staggered schedule.

[43] An urgent motion was heard before Justice Zisman on April 1, 2011. She ordered that Ms Milford bring Parker to the hospital on Monday April 4, 2011 and stay until the completion of surgery, whereby she will then leave the hospital to permit Mr. Catherwood to attend the hospital and take Parker to his home.

[44] At the same time, Ms Milford brought a motion to change the final orders of both Justice Maresca and Zisman seeking sole custody of the children and brought an urgent motion restricting Mr. Catherwood's access to the children after learning that Mr. Catherwood's father had been charged with assaulting Payton. In April of 2011, Payton disclosed to a school teacher that her grandfather had thrown or dragged her upstairs of their home, leaving bruising on her legs and back. Mr. Catherwood was residing with the parents at the time and all access occurred at the paternal grandparents' home. The grandfather was arrested and his bail conditions prohibited direct and indirect contact with Payton.

[45] As a result of these events, Justice Zisman ordered that during the week, Mr. Catherwood's access would be on Monday and Tuesday from 3:15 pm to 8:00 pm, to reflect the difficulty in implementing court ordered access given that Mr. Catherwood was living in his father's home. Justice Zisman also ordered that the alternating weekend access would continue with the condition that Mr. Catherwood must ensure that that his father was not present for any of his scheduled time with Payton. She also ordered that Mr. Catherwood shall not discuss or permit any third party to discuss in the presence of Payton the outstanding criminal charges involving Payton and her grandfather.

[46] On April 12, 2011, Justice Zisman made a further temporary order that alternating weekend access between Mr. Catherwood be suspended as he was still residing with the paternal grandparents and not able to take Payton to his home during access, and accordingly was taking Payton "from place to place" during the weekend access, according to the written endorsement. She further ordered that Mr. Catherwood was to provide proof of his new residence so that the temporary access order can be varied.

[47] On June 9, 2011, at the return of both parties' motions to change, Mr. Catherwood had found new accommodation with his girlfriend, Ms Mina Momeni. Justice Zisman made a further temporary order reinstating his weekend access and ordered that Mr. Catherwood shall have the children in his care on alternate weekends from Friday after school/daycare to Sunday at 8:00 pm and Mondays and Wednesdays from after school/daycare to 8:00 pm.

[48] There were several other requests for relief before Justice Zisman, including once again the issue of the children's registration in a Catholic or public school. A number of temporary orders were made by Justice Zisman regarding Payton's change of name application, Payton's attendance at the Safety Zone counselling program, restricting the parties' communication to a logbook and email, and ensuring the times that the children should be delivered and picked up at day-care and school.

[49] The matter was then adjourned for a contested motion regarding the issue of the choice of school for the children and to determine any further temporary custody and access orders sought by both parties.

[50] On July 29, 2011, both parties' motions returned before Justice Zisman. After a contested hearing, Justice Zisman found that there had been a material change in circumstances and that "a joint custody order is not feasible or workable at this stage of the proceedings". She granted temporary sole custody to Ms Milford and ordered that Ms Milford be permitted to enrol both children in Eastview Public School and the YMCA daycare. The matter was then adjourned to a settlement conference on November 2, 2011. In her written endorsement on July 29, 2011, Justice Zisman set out the following reasons for her temporary order:

" For oral reasons, I find that there has been a material change of circumstances. There is overwhelming evidence that these parties are unable to communicate or co-operate. A joint custody order is not feasible or workable at this state of the proceedings.

I therefore grant Ms. Milford sole custody of the children.

Having determined that there has been a material change of circumstances, I must determine in this instance what schooling arrangement are in the children's best interests.

Justice Maresca's order required Mr. Catherwood to "be responsible for ensuring that Payton receives all necessary religious instruction/church attendance required to maintain her enrolment in a Catholic school. Brooke shall cooperate in having Payton baptized Roman Catholic, as arranged by Stephen on prior notice to and discussions with Brooke." He has failed this requirement. The correspondence of Father Formosi, dated August 21, 2009, indicates that the baptism for Payton could take place that Easter, if Mr. Catherwood demonstrates his desire to "truly raise the child in the Catholic faith."

There is no evidence before me, that Mr. Catherwood ever attempted to proceed with the baptism nor is there any confirmation that he has over the last 2 years taken the children regularly to church, except for the last several months. Although, I accept that the children could be registered in the Catholic school board without now being baptized (as long as that is done with 1 year), it does not appear on the evidence before me that Mr. Catherwood has in the past treated the children's religion as a priority and therefore it is questionable that he would make the necessary arrangements over the next year which could then result in the children having to move schools to the public school system.

Mr. Catherwood submits that the advantage of the children attending a Catholic school would be that they obtain religious instruction. However, such religious education can also be provided by the children attending church service or Sunday school.

More importantly, I find that Payton has been through several traumatic events in the last year including being assault by her paternal grandfather, being interviewed by the police and the Children's Aid and being caught in the middle of a highly conflicted relationship between her parents.

The Halton Children's Aid Society (by correspondence dated July 5, 2011, has verified physical discipline was used on Payton by the paternal grandfather and also that Stephen Catherwood failed to protect Payton from harm while she was in his care.

Therefore, the only place of safety for Payton has been her current school where she is doing well, has friends and where the school staff is aware of the conflict in her family. If Payton remains at her current school, she would also have the benefit of continuing in the same after-care program. Parker is familiar with the school as he goes with his mother to drop off Payton and some of his friends from daycare will also attend the school. He will be able to continue in his same daycare. Allowing the children to attend Eastview will permit them stability security in an otherwise chaotic and stressful situation."

[51] On November 2, 2011, both parties brought new motions before the court regarding a variety of issues. Justice Zisman requested the involvement of the Office of the Children's Lawyer in view of the high conflict between the parties and given that both parties were "continually before the court and arguing over every conceivable issue. The conflict that these young children are exposed to is detrimental to their emotional well-being."

[52] Justice Zisman further ordered that if Mr. Catherwood is unable to personally pick up the children from daycare or school, pursuant to a previous temporary order, then the children shall be picked up through a third party at Ms Milford's home. According to the endorsement, the outstanding access order was causing some difficulty as Mr. Catherwood's was unable to pick up the children at day-care or school as a result of his school schedule. The court further ordered, on consent, but without prejudice, that "the children shall not be left alone with the paternal grandfather." The further motions were adjourned for argument to December 28, 2011.

[53] On December 28, 2011, further motions were argued before Justice Zisman and the court made the following endorsement and temporary order, pending the input of the office of the Children's Lawyer:

"…The high level of conflict continues in this case and it is for that reason that I have requested that the OCL be involved. I continue to have grave concerns about the emotional turmoil these young children are exposed to…I am not prepared to make any drastic changes to the outstanding access arrangements until I receive the OCL report. Pending the input of the OCL, the father's access will continue as follows:

1. Alternate weekends from Friday at 3:15 to Sunday at 8:00 PM. If the father van not personally pick up the children at 3:15 pm, then the pick-up will be at the mother's home at 4:00 pm through a third party.

2. On Every Monday and Wednesday from 3:15 pm to 8:00 pm. If the father cannot pick up the children personally at the daycare at 3:15 pm then pick up with be at the mother's home at 4:00 pm through a third party

3. As longs as Payton is required to attend the Safety Zone on Mondays, the father's access is suspended. The mother will provide proof of the remaining sessions that Payton is required to attend For those weeks that Payton is attending Safety Zone, the father will arrange a third party to pick up Payton from the mother's home.

[54] The matter was then adjourned for a settlement conference to April 16, 2012 if the Office of the Children's Lawyer's Report was available. At that time, the matter was adjourned again to June 16, 2012 as the Office of the Children's Lawyer had not completed its investigation.

[55] In April of 2012, Mr. Catherwood was charged again with breaching his probation order for allegedly aggressively approaching Ms Milford during a pick-up of the children at the school and swearing at her. This charge was dismissed after a trial before the Honourable Justice Alan Cooper, however, Mr. Catherwood was ordered to "keep the peace and be of good behaviour especially towards Brooke Milford" under a twelve month peace bond. It is also worth noting that in his Reasons for Judgment, Justice Cooper stated that he believed that the words were probably spoken by Mr. Catherwood to Ms Milford, but he could not be sure beyond a reasonable doubt. He further did not accept the evidence of Mr. Catherwood's father, who testified on his behalf, and found that he was lying and contradicted himself.

[56] On May 16, 2012, Ms Milford brought a motion without notice before the court alleging that Mr. Catherwood was leaving the children alone with the paternal grandfather, contrary to the consent order of November 2, 2011. Justice Zisman directed that the motion must be on notice to Mr. Catherwood, however, in the interim, she continued the stipulation in the November 2, 2011 order that the children are not to be left alone with the paternal grandfather and further ordered that the paternal grandfather is not permitted to pick up or drop off the children.

[57] On June 18, 2012, the matter returned to the court for further motions by both parties. The Office of the Children's Lawyer had not yet completed its investigation and report, and the matter was adjourned to a settlement conference on July 10, 2012. Mr. Roy Reid attended the settlement conference at that time to discuss his recommendations. At that time, the parties entered into a further order regarding their communication, which replaced previous orders, and provided that the parties shall communicate by email only regarding the children for purposes of o discussing and exchanging information regarding access, medical issues, extra-curricular activities and education and schooling. The email communication between the parties shall be limited to one email per day, of no more than 140 characters, except for an emergency.

[58] The Report of the Office of the Children's Lawyer was released on August 28, 2012. Mr. Reid recommended that Ms Milford have sole custody of the children and that the day to day parenting schedule should be as follows, in addition to other recommendations:

1. "Ms. Milford should have sole custody of the children Payton Olivia Milford and Parker Michael Milford. The parent residing with Payton and Parker at the relevant time will make the daily decisions affecting their welfare.

2. Ms. Milford and Mr. Catherwood should have access to all medical, educational, religious and psychological records pertaining to the children. Both parents should also have the right to meet with all professionals to discuss their children's welfare. They should continue to provide each other with all names and contact numbers for the professionals involved in the children's care.

3. Currently, the parties have shown an inability to communicate with each other. The parties should begin using the Family Wizard computer program to communicate about their children. Alternatively, the parties should use a communication book to facilitate communication between them. To be effective, the use of the communication book should be limited to sharing information about the children. It is imperative that the parties refrain from using derogatory or denigrating language in the book.

4. The following day to day parenting schedule is recommended:

a. During the first week, Ms. Milford should have the children in her care commencing on Monday from after school until Wednesday morning when the children are dropped off at their school. The children should be in Mr. Catherwood's care from Wednesday after school until Friday morning when the children are dropped off at school. The children should then be in Milford's care from Friday after school until Monday Morning when they are returned to school.

b. During the second week, Mr. Catherwood should have the children in his care from Monday after school until Wednesday morning when the children are returned to school. The children should be in Ms. Milford's care from Wednesday after school until Friday morning when the children are returned to school. The children should then be in Mr. Catherwood's care from Friday after school until Monday morning when they are returned to school.

5. The pickup and drop off the children should take place at the children's school unless another location is agreed upon by the parties.

6. Birthdays (for the children and the parties) should fall in the normal parenting rotation unless otherwise agreed."

[59] Mr. Reid also made the following findings in the Discussion and Conclusion portion of this Report:

"This is the second time that the Children's Lawyer has been involved with this family in relation to their ongoing custody and access dispute. It is very clear that they have had numerous challenges from the time since their children were born. It is and has been very evident that this high conflict custody and access dispute has not abated over a number of years despite the intervention of various agencies and the lengthy court litigation. Payton and Parker are two very young children who have been thrust into the midst of this dispute between their parents. As noted despite the intervention of various community agencies, there appears to be no letting up or change in the discord that has existed and currently exists between the parties. Each party throughout these proceeding has expressed numerous concerns in relation to the other party. What is known is that the dispute between the parties has and will have profound impact on the children if the parties do not take immediate steps to cease the behaviour that has characterized their interaction and their relationship. The parties' behaviour has led to the involvement of various investigations by Halton Police and Halton Children's Aid on numerous occasions. The parties have not demonstrated any history of being able to communicate or to engage in cooperative parenting. While Mr. Catherwood has vocalized that there needs to be a joint custody arrangement in this case, the abundant divisive history between the parties does not support this position. Ms. Milford currently has temporary sole custody of the children through a court order. Furthermore, due to current criminal charges against Mr. Catherwood, he cannot have any contact with Ms. Milford. This further precludes any hopes of having a joint custodial order. Thus the existing sole custody order for Ms. Milford should continue. The children have suffered throughout this long ordeal. This is a result of each parent believing that they are acting in the children's best interest.

The children have benefited and will continue to benefit from engaging in a program that supports them in resolving their feelings around the history of the dispute that they have witnessed both directly and indirectly on numerous occasions between their parents. The children should resume attending the Safety Zone program immediately or as soon as possible. Furthermore, both Ms. Milford and Mr. Catherwood should be engaged in a program to assist each other of them to better understand how to disengage themselves from the long history of the destructive interaction that they have been engaged in.

While both parties have relied upon or have sought assistance from their extended family members, there have been a number of concerns raised about the interaction between Mr. Catherwood and his father. This interaction has been described as volatile at times as noted in various police and Children's Aid reports. Furthermore, the children's paternal grandfather was charged with assaulting Payton and although this matter did not proceed through the criminal system, the Children's Aid Society did verify physical abuse by the children's paternal grandfather.

Payton and Parker are two engaging, delightful and humorous children who have been through a long history of conflict between their parents. Despite their differences, they appear to have a close bond, they enjoy being active, spending time in each parents care and they have a healthy relationship with Mr. Catherwood's partner, Ms. Momeni. These two young children need to have a healthy relationship with each parent. If each parent would seek to cultivate and nurture that relationship with their children, that would serve to diminish the ongoing conflict between them. However they should not continue to focus on the parenting provided by the other parent.

The current access between Mr. Catherwood and the children should be addressed as the children are at a very young age. The current access does not provide the optimal contact between the children and each parent. As a result, it is recommended that the frequency of contact between each parent needs to be addressed. A new access schedule that limits the parties contact with each other would be optimal and also one that increases the contact between the children and each parent. Furthermore, the current pickup and drop off schedule has created many challenges and conflict which has not been in the children's best interest.

The children, despite the myriad of issues and the long history of conflict between the parties, appear to be doing well in a number of areas. They are healthy and progressing well in school. It is critical that the parties cease the behavior that has characterized their interaction. It has been harmful not only to the children but also to themselves. They need to take immediate steps to limit their interaction and furthermore make every effort to not engage the children in adult conflict and issues, and more importantly not expose the children to the behaviour that has characterized their relationship. They should cease making disparaging remarks about the other parent while the children are in their care. It is destructive to the children's view of the other parent and furthermore draws the children further into the conflict. It is hoped that the parties will take the necessary steps that would support a healthy and loving relationship with each parent."

[60] The parties returned for a settlement conference on October 26, 2012 following the release of the OCL report. They were unable to resolve the outstanding issues and the matter was scheduled for trial. A number of procedural orders regarding were made regarding the consolidation of both parties' motions to change into one amended motion to change and continuing record, to be commenced by Ms Milford and to be responded to by Mr. Catherwood. A trial management conference was scheduled before me on January 27, 2013 and a number of outstanding disclosure issues were discussed. The trial commenced on June 13, 2013.

[61] At the time of the trial, the children continued to be in the temporary sole custody of Ms Milford, pursuant to the order of Justice Roselyn Zisman dated July 29, 2011. Mr. Catherwood was exercising access on alternating weekends and on every Monday and Wednesday from 3:15 pm to 8:00 pm. However, Mr. Catherwood's Monday evening access was suspended while the children were required to attend counselling at the Safety Zone Program on Monday evenings.

[62] Mr. Catherwood was also subject to the peace bond entered into before Justice Cooper during the family trial, which expired on May 17, 2014. Mr. Catherwood completed his last probation order on September 23, 2012. The current temporary family court order restricts the parties' communication regarding the children to one email communication each day, subject to any emergencies. The parties do not communicate otherwise.

7. Summary of the Relevant Evidence

a) 2004 to 2009: Early Years of the Relationship

[63] In her evidence in chief, Ms Milford described a very abusive and highly conflictual relationship with Mr. Catherwood, which she testified continued after the parties' separation. Ms Milford became very emotional during parts of her testimony, particularly when describing the details of violent encounters between the parties and the incidents that occurred while she was pregnant with both children. She readily admits meeting Mr. Catherwood when she was very young, immature and engaged in illegal drug use. She testified that they both used illegal drugs during the early years of their relationship. She further admitted to continuing to engage in contact with Mr Catherwood notwithstanding the criminal proceedings and the no contact provisions during the early part of their relationship. She readily acknowledged that she continued to have contact with Mr. Catherwood notwithstanding her description of a toxic and abusive relationship between them. She accepted responsibility for her earlier behaviour and testified that she finally determined to end the relationship with Mr Catherwood during her pregnancy with Parker.

[64] Mr. Catherwood also described a volatile and violent early relationship. He testified that before he met Ms Milford, he had never had a criminal record or been in conflict with the law, although he later admitted in cross-examination that he was convicted as a 17 year old youth for robbing a gas station with other youths and served time in secure custody. Mr. Catherwood testified that he has been convicted so many times of breaches in the past and that these were all entirely because Ms Milford had initiated contact with him. He testified that Ms Milford would contact him and then "stab him in the back" by calling the police. Mr. Catherwood also described in detail the earlier violent incidents between the parties. He stated that both parties were violent with each other. He acknowledged that Ms Milford had broken an arm during one incident, but that this was her fault. According to Mr. Catherwood, "Brooke broke her own arm." He testified that he began to realise early on in the relationship that she was very unfaithful.

[65] Regarding the incident that led to the charge and conviction of assault against him in December of 2004, Mr. Catherwood testified that it was in fact Ms Milford who assaulted him while she was "high and drunk". The only reason that his friends intervened and pulled him away from her is because she screamed "stop hitting me" when he was trying to defend himself by trying to pick her up and remove her from the apartment. According to Mr Catherwood, Ms Milford is "smart, cunning and manipulative", and when she said that, "his friends ran out and tried to stop me from throwing her out."

[66] Mr. Catherwood detailed the numerous incidents when the parties continued to contact each other after this incident, leading to the breaches of his probation and no contact orders. He admits to entering her home at 1:00 a.m. while she was sleeping and without her consent, but again states that she invited him over. He further admits to then fleeing when the police were called and "going on the run" because he did not want to spend his birthday in jail. When the police arrested him, he was on his way to a friend's cottage. He was denied bail because he had breached his recognizance. Ms Milford describes being terrified during this incident.

[67] Mr. Catherwood testified that as soon as he got out of jail, Ms Milford contacted him and they started talking again. Mr. Catherwood was very proud that Ms Milford had contacted him to take her to the hospital for Payton's birth and stated that if he had to do it all again, he would do the same thing. Ms Milford testified that in retrospect, she should not have called Mr. Catherwood to take her to the hospital and that it was a serious error in judgment. She did not want him charged by the police, and believes that a nurse contacted the police after an altercation between the parties occurred at the hospital.

[68] Ms Milford moved to Toronto to live with her mother after Payton's birth. She described Mr. Catherwood's involvement with Payton as limited, irregular and unreliable after that. He did not visit frequently and when he did, he did not seem interested or engaged with the baby. They continued to have much conflict. Mr. Catherwood also did provide financial assistance or support.

[69] Mr. Catherwood testified that when Ms Milford went to Toronto to live with her mother, she shut him out and refused to let him see the baby and that at first, he did not even know where she was living. According to Mr. Catherwood, this is when all of the problems started as Ms Milford took it upon her to assume sole custody and deny him access. Notwithstanding this, Mr. Catherwood did not bring an application for custody or access to Payton during this two year time period.

[70] Both parties testified that they continued to have sporadic and irregular contact during this period. Mr. Catherwood would visit Ms Milford and the baby at her mother's home in Toronto when Ms Milford's mother was not present. Both parties described numerous conflicts between them during this time, however, it was also during this period that Ms Milford became pregnant again with Parker.

[71] Ms Milford became very emotional during her testimony regarding Parker's proposed adoption. She admitted that when she first discovered that she was pregnant with their second child, she initially told Mr. Catherwood that she would terminate the pregnancy. Mr. Catherwood testified that he agreed that it was best for Ms Milford to have an abortion. Mr. Catherwood believed that Ms Milford went through with the abortion and that she had lied to him. However, he testified that he then received a text message from her saying that she was 27 weeks pregnant and that she was having the baby and that she had decided to give the baby away. Mr. Catherwood testified that he was about to have a second child with someone who had cut him out of his daughter's life. He testified that he was devastated and shocked because she had decided to take it upon her give his son away. He agreed to meet with the adoption licensee and facilitator, however, this meeting did not go well because they tried to convince him to give his child away.

[72] Ms Milford testified that she could not go through with the abortion and decided that adoption was the better route. She testified that it was extremely difficult raising Payton as a single parent with little or no financial support from Mr. Catherwood in an emotionally and physically abusive relationship. She determined that it would be far more difficult bringing another child into this and she did not want Parker to be exposed to the emotional and physical violence that Payton had been exposed to, nor the financial struggles that she experienced as single parent. The family friends of her mother would provide Parker with a financially secure, loving and stable home, which she thought was best for Parker at the time.

[73] Ms Milford admitted that she had waited until August of 2007 to inform Mr. Catherwood of her change in plan. She testified that she after she informed Mr. Catherwood of this decision and it became apparent that he would not consent, she and the adoptive parents commenced the application to dispense with his consent.

[74] Mr. Catherwood's response to Ms Milford's application was entered as an exhibit in this trial. In a series of text messages, Mr. Catherwood called Ms Milford "a liar, a cheat, and a drug addicted whore who snorts meth while pregnant", "a rat fink slut", a "piece of shit" and other names which will not be repeated in this judgment. Mr Catherwood admitted to sending these texts, but testified that he very angry at what he described as Ms Milford's betrayal and lies. He testified that the happiest day of his life was when the proposed adoptive parents withdrew their application and he was awarded temporary custody of Parker. According to Mr. Catherwood, Ms Milford got temporary custody of Payton because she had hid her from him or cut him out of her life.

[75] Both parties testified at considerable length regarding the incident in September of 2009 that led to Mr. Catherwood's second charge of assault against Ms Milford. It is not disputed that Ms Milford attended at Mr. Catherwood's home to pick up Payton on a school day as Mr. Catherwood had not yet brought her to school. When Ms Milford arrived well after 9:30 a.m., Payton was still undressed and watching television with Mr. Catherwood. An argument ensued.

[76] Both parties described an extremely violent assault, although each testified that the other was the instigator and attacker. Mr Catherwood testified that the police ultimately charged him because he was deemed to be the "dominant aggressor" by the police. Mr. Catherwood vehemently disagreed with this characterization and testified that after this incident, he had no faith in the police.

[77] Both parties testified that Payton witnessed this entire incident. Both parties agreed that she was traumatised. Both parties testified that Payton was crying and screaming throughout the incident.

[78] The Children's Aid Society became again involved with the parties as a result of this incident. On consent, the parties entered a letter from the Children's Aid Society, dated October 28, 2009, which reads, in part as follows:

"In September of 2009, the Society received a report that indicated the above children were at risk of harm as a result of exposure to domestic violence…. Such concerns were verified…as the children's parent it is your responsibility to ensure that they are never exposed to any sort of verbal or physical aggression between adults, as this puts them at risk of physical and emotional harm. The Society recommends that the children participate in the Safety Zone program, which is available at Burlington and Counselling Family Services.."

b) The Significant Events after the Final Orders of Maresca, J. and Zisman, J.

The Children's Education

[79] Mr. Catherwood testified that he has been very frustrated and upset that the children are not in a Catholic school. This was a very important issue for him. He described himself and his family as Catholic and Ms Milford as having no faith.. He testified that in Justice Maresca's final order, he was permitted to enrol the children in a Catholic school, however, Ms Milford made a unilateral decision to put the children in a public school. According to Mr. Catherwood, Ms Milford never wanted the children in a Catholic school and was always trying to find ways to make it difficult for him to do. He testified that he got "absolutely zero cooperation from Ms Milford on this issue" and her decision to unilaterally enrol Payton in a public school was a direct breach of Justice Maresca's final order.

[80] Mr. Catherwood acknowledged that the final order provides that "the father shall be responsible for ensuring that Payton receives all necessary religious instruction, church attendance, required to maintain her enrolment in a Catholic school" and that the mother "shall cooperate in having Payton baptized Roman Catholic, as arranged by the father on prior notice to and discussion with Brooke." On consent, a letter dated August 21, 2009 written by Father Roger Formosi was entered as an exhibit at trial setting out the requirements for Payton's enrolment in a Catholic school, which at that time requires that the child be baptised. According to Fr. Formosi:

"If Stephen Catherwood demonstrates his desire to truly raise the child in the Catholic faith we can proceed with the baptism for Payton the next Easter season. This implies coming to the Lord's Day Mass with Payton at least a couple of times a month whenever the father has her."

[81] Mr. Catherwood acknowledged that it was difficult to attend church with Payton on his time with her, and that he had not in fact taken Payton to church, citing the difficulties of getting a four year old to church. However, he testified that Ms Milford had enrolled Payton in a public school in September of 2009 before even giving him the opportunity to start taking Payton to church and getting her prepared for her baptism in the spring of 2010. He viewed this as her total lack of cooperation and unilateral breach of the order. Ms Milford testified that she enrolled Payton in a public school in 2009 because she was concerned that Mr. Catherwood would not take Payton to church and ensure that she was baptised. She was concerned that Payton would be at risk of removal and transferred to a public school.

[82] After Mr. Catherwood's motion to change, the 2010 final order of Justice Zisman again required that the children to be enrolled in a Catholic school starting in September of 2011, and that "the parties shall take all necessary steps to ensure that all enrolment procedures necessary to ensure compliance with this term are carried out before June 1 st , 2011."

[83] Notwithstanding the above, Mr. Catherwood admitted in cross-examination that he continued to have difficulty getting both children to church during his time with them and that by the summer of 2011, he still had not made any arrangements to have either child baptised, nor had he fulfilled the requirements for so doing. He further admitted that in order for the children to be registered in the Catholic elementary school system, they needed to be baptised.

[84] At the time of this trial, neither child had been baptised. When asked why, Mr. Catherwood blamed Ms Milford for putting Payton in a public school. When asked if he takes the children to church now, Mr. Catherwood admitted that he did not but he was thinking about going again. He continued to blame Ms Milford for the fact that the children were not in a Catholic school and stated that the whole issue was handled by Ms Milford with "utter disdain."

c) The Change of Name Application for Payton

[85] Justice Maresca's final order provided that Ms Milford shall sign all necessary documents to change Payton's last name from Milford to Milford-Catherwood, within sixty days of the signing of the Minutes of Settlement dated August 21, 2009. Mr. Catherwood testified that Ms Milford deliberately breached this order by failing to submit the change of name application. Ms Milford acknowledged in her evidence that she completed the paper work for Payton's change of name but that she had submitted the application incorrectly and needed to take steps to correct this. As a result, Justice Zisman ordered that Mr. Catherwood shall re-submit the change of name form for Payton, the parties will share the cost, if any, and Ms Milford shall sign any necessary forms, to be to be submitted to her by mail by Mr. Catherwood. This order was made on June 9, 2011.

[86] Mr. Catherwood acknowledged in cross-examination that after Justice Zisman's order was made, he never re-submitted the change of name form. According to Mr. Catherwood, he has not complied with Justice Zisman's order because he did not feel it was necessary or fair. He did not think it was fair that he had to re-submit the form after Ms Milford had failed to complete the application correctly the first time. In his view, this was Ms Milford's responsibility. Notwithstanding the above, it is his firm belief that Ms Milford continues to be in breach of the court order.

d) March 2011 Criminal Charge against the Paternal Grandfather for Alleged Assault on Payton

[87] Both parties and the paternal grandparents testified about this incident. It is not disputed that there was an altercation on the evening of March 30, 2011 between Payton and her grandfather. Mr. Catherwood was upstairs and Payton and her grandparents were in the basement when it occurred. Mr. Catherwood heard Payton screaming but he did not see the incident. He ran down and saw Payton on the stairs crying. According to Mr. Catherwood, Payton got very upset because his father refused to give her another popsicle and told her to go to bed.

[88] Ron Catherwood, the paternal grandfather, testified that he and Payton got into an argument when it was time for bed. She wanted another popsicle. The grandfather testified that he would not permit this and Payton stood on the basement stairs and refused to move. She then sat down on the stairs and started screaming. According to the grandfather, he then put both of his hands up in a lifting gesture and made a pushing movement to get Payton up the stairs. He denies touching her, grabbing her, or throwing her up the stairs. He testified that there was no physical contact and he did not see Payton fall or stumble on the stairs. His son then came down the stairs to console her. According to the grandfather, he was charged with assaulting Payton five days later.

[89] The paternal grandmother testified that Payton was upset that evening because she did not get her way and that Ms Milford then had the grandfather charged with assault. She denied seeing her husband push or throw Payton up the stairs. She testified that Payton wanted a third Popsicle and when her grandfather said no, she then threw herself on the floor and started crying and screaming. The grandmother described that there was physical contact when the grandfather "ushered" or "shushed" Payton up the stairs with his hands, using a pushing motion. She denied seeing anything else.

[90] Ms Milford testified that she was unaware that the incident had even occurred until she received a call from the children's aid society. According to society, Payton had reported to her school teacher that her grandfather had hurt her back and legs. It is not disputed that the teacher reported Payton's disclosure to the children's aid society. Ms Milford testified that she had observed bruising on Payton's legs when she returned home after the incident but did not think it was serious. The police became involved and Payton provided a videotaped statement. It is not disputed that Payton reported what occurred consistently to her teacher, the children's aid society worker and the police. The Society, after completing its investigation, verified that Payton had been assaulted by her grandfather and that he had thrown her up the stairs.

[91] A report prepared by the society was entered, on consent, as an exhibit at trial and set out the details of its investigation. The protection concerns that Payton was physically disciplined by her grandfather causing her harm and that her father, who was present in the home at the time, had failed to protect her, were verified by the society.

[92] Mr. Catherwood vigorously denied that his father touched Payton or caused her any harm, although he did not see what occurred. Mr. Catherwood's described his father's relationship with Payton as difficult and testified that he has had arguments with his father about his discipline of Payton in the past, including a heated argument between them in January of 2010 which led to the neighbour calling the police being called to his father's home and a children's aid investigation. That investigation verified adult conflict in the home. It is not disputed, and all parties gave evidence about other incidents between Payton and her grandfather, including an incident which led to the police being called in Easter of 2010 after Payton called her mother at work very upset after conflict with her grandfather.

[93] Mr. Catherwood acknowledged that on this occasion, as well as others, his father has had difficulty with Payton's behaviour because she can be "belligerent" and difficult. On a number of occasions during the trial, Mr. Catherwood described Payton as a "belligerent" child who was sometimes very difficult to manage. When asked in cross-examination whether Payton is "belligerent", the paternal grandfather, Mr. Catherwood's fiancé, and the clinical investigator specifically disagreed with this description of Payton.

[94] In cross-examination regarding this incident, Mr. Catherwood testified that he believed his father because he knows that "Payton tells lies." He also believed that someone put the allegations in her head and believes that Ms Milford coached Payton to make false allegations against his father.

[95] Mr. Catherwood testified that the Crown withdrew the charges against his father because he was innocent and said that even the Crown described Payton as "belligerent", although there was no evidence to support this assertion. Ms Milford disagreed and testified that she did not want Payton, to be forced to testify in the criminal trial against the grandfather, so in a discussion with the Crown and the grandfather, she agreed that the charges be withdrawn on condition that Ron Catherwood enter into an agreement that he will have "no direct contact" with Payton unless with the prior written consent or in the presence of the mother. A signed copy of the agreement, dated September 25, 2011, was entered as an exhibit in this trial. The agreement also provided that Payton will attend counselling at Safety Zone from October 2011 to January 2012, and that once Payton is openly comfortable with access to her grandfather, the agreement will be reviewed in January of 2012.

[96] Notwithstanding the above, it is not disputed by the parties and the grandparents that Payton had contact with her paternal grandfather during a Thanksgiving celebration in October of 2011, less than one month after this agreement was reached. There were other Catherwood family members present during this celebration. Both Mr. Catherwood and Ron Catherwood testified that they did not view this as a breach of the agreement. Mr. Catherwood testified that Ms Milford greatly over-reacted to this.

[97] The Children's Aid Society became involved again and conducted a follow up investigation. They met with the children in the presence of the grandparents and other family members at the Catherwood home. In a report dated December 7, 2011, the society concluded that the children did not present as fearful in the presence of the grandfather and that he had completed an adequate parenting course. As such, the children were not at risk of harm as a result of Mr. Catherwood's insufficient efforts to protect them from the grandfather.

[98] On November 2, 2011, Justice Zisman ordered that the children shall not be left alone with the paternal grandfather. This order was made on consent of the parties. In cross-examination, Mr. Catherwood admitted to letting the children, in particular Parker, spend time alone with the grandfather. It also was unclear whether the grandfather was even aware of this order.

[99] Ms Milford testified that Payton has continued in the Safety Zone counselling program and greatly benefited from it, as has Parker. She testified that Payton has continued to express some fear and apprehension regarding her grandfather and did not agree that Payton was not fearful in her grandfather's presence. Mr. Catherwood did not agree with the Safety Zone program and believed that it was not helpful to the children to be in this counselling program. He disagreed with the recommendations of the clinical investigator and the children's aid society on this issue.

Lateness and Attendance at School

[100] The evidence established that there had been numerous occasions when Mr. Catherwood had been late in taking the children to school or picking them up, which has led to significant conflict between the parties leading to the changes in the order requiring third parties to pick up the children from Ms Milford's home, given Mr. Catherwood's conditions of probation.

[101] Mr. Catherwood acknowledged that as a result of his school schedule, it was very difficult for him to pick up the children in a timely fashion from school. However, he viewed Ms Milford's requests for changes in the court order as unnecessarily restrictive and onerous, solely as an attempt by her to make it more difficult for him. Mr. Catherwood agreed that there have been one or two occasions where he failed to attend the school to pick up the children. He testified that he had notified Ms Milford in advance but according to the email and text exhibits entered as exhibits at trial, the children had already been let out of school, and were waiting on school property. He did not seem concerned by this, again viewing Ms Milford's response as an over-reaction. Both Ms Milford and her mother described the children as being frightened and upset when they were left in the schoolyard waiting for someone to pick them up.

[102] Regarding the issue of homework completing, Mr Catherwood testified that his inability to assist the children with homework in the evenings that they were with him was because his time with them was so restricted.

[103] In 2012, after the change to Ms Milford's primary residence, the children were in Mr. Catherwood's care on some of the school days during a week while Ms Milford was away on a holiday. Mr. Catherwood acknowledged, as confirmed by the school reports introduced at trial, that on the days that the children were with him on that week, the children missed a full day of school, and were late for other the days that he was responsible for taking them. Mr. Catherwood did not have an adequate explanation for the school absence and late arrivals.

Daycare Incident

[104] The children changed day-cares in July of 2011. Ms Milford testified that she provided the day-care with her mother as an emergency contact for her and Ms Momeni as an emergency contact for Mr. Catherwood. She submitted the lists to the day-care for both parties and informed Mr. Catherwood in the log book that if there were any other emergency contact that he wanted on the list that he should inform the day-care.

[105] It is not disputed that Mr. Catherwood sent his mother to pick up the children on the first day that he was to pick up the children at the new day-care. The day-care staff would not deliver the children to the grandmother because she was not listed on the emergency card for Mr. Catherwood. The grandmother admitted to becoming very upset and crying about not being able to pick up her grandchildren. She testified that Ms Milford had only put her mother on the emergency card and not her. The day-care staff telephoned Ms Milford who immediately gave her permission for the grandmother to pick up the children.

[106] Mr. Catherwood that he attended the day-care on a separate occasion, approximately one week later on a day that Ms Milford was to pick up the children to discuss this incident with day-care staff. He admitted to being upset with the daycare and yelling at the supervisor. He admitted to yelling at the supervisor that it was unacceptable that his mother was not permitted to pick up the children. He admitted to yelling at her to the point where she stated to cry. Although he acknowledges that she was crying, he described her as being young and unprofessional. There were other families present during this incident.

[107] A report of the incident by the daycare was entered as an exhibit at trial, on consent. According to the report, Mr. Catherwood continued to yell, scream and swear and make comments about Ms Milford's mental health despite being asked to leave. The report also indicated that the staff member in question was feeling very threatened and intimidated and feared for her safety. Mr. Catherwood agreed that the contents of the report were generally accurate.

[108] Mr. Catherwood blamed Ms Milford for these above incidents. Initially, he testified that Ms Milford refused to agree that his mother could pick up the children from day-care. He later testified that it was her responsibility to inform the day-care that his mother would be an emergency contact for him and that she deliberately failed to do so. A copy of the log book entry from Ms Milford to Mr. Catherwood advising him to inform the daycare of any other emergency contacts was entered as an exhibit at trial. Mr. Catherwood at first denied receiving the log book entry and later suggested that it had been fabricated after the fact by Ms Milford.

[109] A further incident occurred on December 9, 2011 and on December 13, 2011, the general manager of the daycare sent a warning letter to Mr. Catherwood that a "No trespass order" will be issued against him "should the inappropriate behaviour continue." This letter was entered into evidence on consent.

The Grandparents

[110] Both paternal grandparents and the maternal grandmother testified. It is apparent that all three grandparents are closely involved with their children, grandchildren and the conflict between these parties. They all clearly love their children and grandchildren. Their evidence also served to support and protect their own children, not surprisingly.

[111] The maternal grandmother has a very negative view of Mr. Catherwood and expressed very real fear towards him. She became very emotional when she described the extensive bruising and injuries that she observed directly on her daughter during the early years of the parties' relationship, which she states were caused by Mr. Catherwood. She further described in detail an incident in April of 2012 when she went to the children's school and daycare. Ms Milford was away and the grandmother was unclear whether Mr. Catherwood was going to pick up the children on that occasion. She testified that Mr. Catherwood arrived shortly after her and began screaming at her that she was not "picking up the fucking kids because she was just the fucking grandmother." She described being petrified when Mr. Catherwood started following her in the car, only ten inches away, tailgating her with his radio on very loudly, screaming and yelling at her. Parker was in the car while this was occurring. The maternal grandmother described another incident of "road rage", as she called it, at the soccer park when the children were with her. She testified that Mr. Catherwood approached her angrily in front of the children and then again tailgated her all the way home while the children were in the car.

[112] Mr. Catherwood acknowledged that he had followed the maternal grandmother in the car because she had picked up Parker on his day, and he was on his way to pick him up. However, he denied being angry with her, swearing, yelling or tailgating. He denied following her on any previous occasion. He stated that these allegations were outright lies. According to Mr. Catherwood, the maternal grandmother "gets all nervous, I can see it in her eyes, when I am around. That's her problem."

[113] The paternal grandmother also has a very negative view of Ms Milford and believed that she was responsible for her son's numerous criminal convictions. She described an incident that occurred during the trial where Ms Milford has yelled at her for forgetting the correct pick up location for the children. She blamed the incident at the daycare on Ms Milford and accused her of refusing to put her name on the emergency list. It was very apparent that she was unaware that Mr. Catherwood had failed to do this as it was this responsibility. She also was unaware that the temporary order prohibiting the grandfather from being alone with the children continued to be in effect. She was obviously shocked when this was put to her during her testimony. It appeared that Mr. Catherwood had not informed her of this.

[114] In addition to his evidence regarding the criminal charge against him, the paternal grandfather also spoke about the conflict between the parties and believed that both were equally responsible. He described how deeply the past conflict has affected the children and the toll that it has taken on them. He described both children in detail very positively, contrasting their distinctive personalities. He discussed the steps he has taken to address his interaction and disciplining of Payton.

[115] The grandfather also seemed unclear that the temporary order prohibiting him to be alone with both children was still in effect. He testified that when he attended alone at Ms Milford's home in November of 2011, he did not know that he was not permitted to do this under Justice Zisman's temporary order. Mr. Catherwood had not given him a copy of the order. This incident led to further conflict and the police being called. The grandfather also expressed how the many different temporary orders changing pick up and drop off times have created confusion for him and his wife, thus contributing to the conflict.

Ms Mira Momeni

[116] Ms Momeni is 23 years old and 10 years younger than Mr. Catherwood. She has been in a relationship with Mr. Catherwood for the past four years, since she was 19 years old and he was 29 years old. They met while both were students in the engineering program at Sheridan College and started living together in 2011 when Mr. Catherwood had to leave his parents' home as result of the criminal charges against his father for assaulting Payton.

[117] Ms Momeni clearly cares for the children and has taken an instrumental role in their care. She disagreed with Mr. Catherwood's description of Payton as a "belligerent child" and gave very detailed and distinct descriptions of both children. Mr. Reid observed that Ms Momeni "balanced" Mr. Catherwood's parenting. The children also clearly love her very much and she is actively involved in their parenting, although careful not to usurp the role of their mother. The children call her "Mira".

[118] Despite a rocky start, including engaging in some inappropriate text messaging and disputes with Ms Milford (by both of them), Ms Momeni and Ms Milford appear to have developed a good and civil relationship. Ms Milford confirms this and testified that the children clearly love Ms Momeni and that she is very good with them.

Mr. Steve Frappier

[119] Mr. Frappier is a successful and mature 44 year old businessman, ten years Ms Milford's senior. They met approximately 4.5 years ago and he has been a stable and loving partner to Ms Milford for more than two years now. He met the children in 2012 and he and Ms Milford started living together in 2013, during this trial. He is actively involved with the children, but again careful not to usurp the role of their father. The children call him "Frap". He respects the children's right to have a relationship with their father. He appears to be a calming influence on Ms Milford and has helped her to pause and think before sending inflammatory emails to Mr. Catherwood when she is upset.

Evidence of Roy Reid, Clinical Investigator

[120] Mr. Reid has a Masters in Social Work from the University of Toronto and has been a clinical investigator for the Office of the Children's Lawyer for approximately ten years. He has completed numerous social work investigations and reports for the Children's Lawyer.

[121] Mr. Reid has been involved with this family since 2008. In his first report, completed in 2008, he recommended that Ms Milford have sole custody of the children in an equal residential schedule. The report prepared for this trial was completed on August 26, 2012. Mr. Reid conducted his investigation from November 2011 to middle of 2012. When he began his investigation, the children were in the temporary sole custody of Ms Milford and spending alternating weekends with their father and every Monday and Wednesday after school until 8:00 p.m.

[122] Mr. Reid considered the parenting concerns raised by each parent. He testified that Mr. Catherwood did not have specific concerns about Ms Milford's care of the children however he was very concerned that she was using her power as the sole custodial parent to interfere and limit his contact and relationship with the children.

[123] Mr. Reid testified that he did not find the father's concerns in this regard to be substantiated. He saw nothing to suggest that Ms Milford abused her power as the sole custodial parent in any way. According to Mr. Reid, there was no indication that she engaged in any kind of behaviour that undermined the father's role in the children's lives or that she was using her status as the custodial parent to do this. He found that the mother was making good decisions about the children's welfare, and in his view, she was capable of making decisions that are in the children's best interests.

[124] Mr. Reid testified that he considered Mr. Catherwood's concern that Ms Milford had undermined his ability to raise the children in the Catholic faith or attend Catholic schools. He described Mr. Catherwood's explanation as to why he had not raised the children Catholic as "fairly thin."

[125] Mr. Reid also considered the father's concerns that Ms Milford was using the children's aid society and the police to undermine his role as a parent and to restrict his access with false accusations. He testified that Ms Milford acknowledged to him that early on in the parties' relationship, she certainly played a role in engaging in contact with Mr. Catherwood and that she should have done things very differently. However, it was Mr Reid's view that the current CAS involvement with the parties was out of Ms Milford's control and was a natural offshoot of the conflict between the parties and not orchestrated by the mother.

[126] Mr. Reid cited as an example the police investigation of the alleged assault by the paternal grandfather against Payton and the police protocol to contact the children's society in those circumstances According to Mr. Reid, the father viewed the criminal charges against the grandfather as "trumped up bullshit" and that they were a result of Ms Milford being "out to get him and his family". However, this was not Mr. Reid's conclusion. Further, according to his report, the two most recent reports to the children's aid society during the course of his investigation were made by the father against the mother.

[127] Mr. Reid interviewed both children privately and individually at their school. He described both children as delightful and engaging. He observed them to have a loving relationship with both parents. He also conducted home visits in each family home and observed the parents to be appropriate and loving with the children as well as Ms Momeni. Both children spoke positively about their parents although they both wanted the conflict to end.

[128] Mr. Reid testified that Parker identified as living with his mother and visiting his father. He did not express any views or preferences about where he wanted to live and how often he wanted to see each parent. He appeared quite content.

[129] Mr. Reid stated that on the two occasions that he interviewed Payton, she expressed a consistent view to spend equal time with both parents, "one day with dad, one day with mom." She also expressed that she wanted the conflict to end between her parents. According to Mr Reid, Payton's final wish was for, "her parents to stop fighting, to stop yelling and to be happy and treat each other nicely." Payton was seven years old at the time of Mr. Reid's investigation.

[130] Mr. Reid testified that he was challenged to find any history of joint decision making between the parties at all. He found that the conflict between the parties was extreme. In his view, it was very clear that joint custody was not tenable. He recommended that sole custody should continue with the mother, given that she was making good decisions about the children since 2011 and the children were doing well in her care, according to his observations and the reports from all of the collaterals he spoke to, including the children's school, day-care, and family doctor. According to Mr. Reid, it was very clear that the mother had done an admirable job since the children were in her primary care.

[131] Regarding his recommendation to move to an equal rotating residential schedule of essentially two weekdays with each parent, and alternating weekends, Mr. Reid testified that it was intention to limit contact between the parents and thereby reduce situations where the children would be exposed to conflict. Further, in his view, the children were not helped by having marginalised contact with their father and that they should have more frequent contact with him. He acknowledged that the schedule was a significant change to the status quo, but he believed that it was important to create a schedule which would allow the children to maximize their time with each parent.

8. The Law and Analysis

[132] Rule 15 of the Family Law Rules governs the procedure for motions to change and applies to motions to change a final order for custody, access and child support.

[133] The test to be applied to change a final custody and access order is set out under section 29 of the Children's Law Reform Act, R.S.O. 1990, c. C.12, s. 29, as amended. This section provides as follows:

" 29. (1) 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. R.S.O. 1990, c. C.12, s. 29 ."

[134] The leading authority in interpreting this section is the Supreme Court of Canada's 2006 decision in Gordon v. Goertz , [1996] 2 S.C.R. 27. The court established a two-step process:

a) First, the moving party must meet the threshold requirement of demonstrating that, since the last order was made, there has been a material change in circumstances that affects or is likely to affect the child. The previous order is presumed to be correct. The change must have not been foreseen or reasonably contemplated by the judge who made the original order. The change must be to the condition, needs, means or circumstances of the child and the ability of the parent to meet those needs. If this test is not met, the inquiry goes no further.

b) Second, if the threshold is met, the court must embark on a fresh inquiry into the best interests of the child, having regard to all of the circumstances in section 24 of the CLRA . In this fresh inquiry, both parties bear the evidentiary burden of demonstrating where the best interests of the child lie. The court should consider the matter afresh without defaulting to the existing arrangement.

[135] The onus is on the person seeking to establish a material change in circumstances to prove on a balance of probabilities that there is a material change that affects or is likely to affect the best interests of the child. The change cannot be "trivial" or insignificant, it must be material. The requirement of a material change in circumstances means that a motion to change cannot be an indirect route of appeal from the original custody order. The court must assume the correctness of the first order and consider only the changed facts since the first order was made. See Docherty v. Beckett , (1989) , 21 R.F.L. (3d) 92 (Ont. C.A.). The court should allow only a limited look at evidence predating the order to understand how it was made in order to determine if a material change in circumstances has been established. See Hornan v. Hornan , 2007 CarswellMan (Man. Q.B.).

[136] The case law is well settled that joint custody should generally only be considered when the parents are capable of effective communication and cooperation regarding the children. The leading case is the Ontario Court of Appeal's decision in Kaplanis v. Kaplanis [2005] O.J. No. 275, 249 D.L.R. (4 TH ) 620, 10 R.F.L. (6 th ) 373 , 2005 CarswellOnt 266 (C.A.) and Ladisa v Ladisa . In that case, the Court set out the following factors:

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

2. Joint custody cannot be ordered in the hope that it will improve the communication between the parents;

3. Even if both parents are fit custodial parents, this does not necessarily 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 between the parents."

[137] In Kaplanis v. Kaplanis , supra , the Ontario Court of Appeal found that there was no history of co-operative parenting or effective communication between the parents. Rather the court found there was evidence to the contrary on these points. Accordingly, the court held that the trial judge erred in ordering joint custody and granted sole custody of the child to the mother who had been the child's primary caregiver.

[138] In Habel v. Hagerdon , [2005] O.J. No. 3566 (Ont. C.J.), Justice Margaret A. McSorley summarizes the principles developed in Kaplanis , supra , and Ladisa, supra , as follows:

"Although the Court of Appeal reached different conclusions on whether the trial judge erred in ordering joint custody and shared parenting in Kaplanis v. Kaplanis and Ladisa v. Ladisa, the court applied the same legal analysis. Several important guidelines can be taken from Appeals Justices Karen M. Weiler's reasons in Kaplanis v. Kaplanis and Ladisa v. Ladisa. They are as follows:

(a) there is no default position in favour of joint custody in Ontario;

(b) each case is fact-based and discretion-driven;

(c) past parenting experience, both during cohabitation and after separation, is of critical importance to a court's decision whether to order shared parenting in any form;

(d) 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 the litigation is over does not provide a sufficient basis for the making of an order for joint custody;

(e) where there is no evidence of historical co-operation and appropriate communication between the parents, joint custody may be inappropriate."

[139] Although neither party or counsel requested this relief, joint custody orders in the form of "parallel parenting orders", have also been ordered in high conflict cases, where each party is given separate, defined areas of parental decision-making, independent of the other; or alternatively, "full parallel parenting", where both parents are given the right to make major decisions respecting the child in all major areas of parental authority while the child is with them, without the consent of the other parent. See: Hensel v. Hensel , [2007] O.J. No. 4189, 2007 CarswellOnt 7010 (Ont. S.C.J.) ; Izyuk v. Bilousov , 2011 ONSC 6451 .

[140] The Ontario Court of Appeal has also upheld joint custody or parallel parenting in the absence of reasonably effective communication between the parents where it has been necessary to protect a parental relationship. In Andrade v. Kennelly , 2007 ONCA 898 , 46 R.F.L. (6th) 235, [2007] O.J. No. 5004, 2007 Cars­well­Ont 8271 (Ont. C.A.), the Court of Appeal upheld a joint custody order where a mother had laid down a pattern of resisting the father's access and was found by the trial court to be unable to appreciate the importance of the father's relationship with their children.

[141] The case law is clear that joint custody, parallel parenting orders have been made in high conflict cases. In K.H. V. T.K.R. , [2013] O.J. No. 3463 , Justice Stanley Sherr summarised at paragraph 46 of that decision when courts have ordered joint custody in the form of a parallel parenting order:

1. One parent is unjustifiably excluding the other from the children's lives and can't be trusted to exercise sole custody responsibly. See: Andrade v. Kennelly , 2007 ONCA 898 , [2007] O.J. No. 5004, 2007 CarswellOnt 8271 Garrow v Woycheshen , 2008 ONCJ 686 ; Madott v Macorig , 2010 ONSC 5458 , [2010] O.J. No. 4371 (SCJ); Cooke v. Cooke , 2012 NSSC 73 ; Bushell v. Griffiths , [2013] N.S.J. No. 184, 2013 CarswellNS 240 (N.S.S.C.) , and Izyuk v. Bilousov , supra , (where the court stated that it must still be satisfied that it is dealing with equally competent parents whose lack of cooperation does not affect the best interests of the child (par. 507)).

2. Where the parents are incompatible with one another, but are both capable parents and agree on major issues. See: Hajkova v Romany , 2011 ONSC 2850 , 2011 ONSC 2850; Scervino v. Scervino 2011 ONSC 4246 , 2011 ONSC 4246 (SCJ). In this line of cases, the conflict between the parents is not so high that it will interfere with responsible decisions being made about the children and the parents appear to be willing to put the best interests of their children first. See: Moyer v. Douglas [2006] O.J. No. 5124 (Ont. S.C.J.) ; Ursic v. Ursic (2006) , 32 R.F.L. (6th) 23 (Ont C.A.). See also V.K. v. T.S ., 2011 ONSC 4305 , where Justice Deborah Chappel conducted a thorough review of the case law.

[142] In the case before me, I have no hesitation in finding that there has been a material change in circumstances since the final orders of Justice Maresca and Justice Zisman that affect the best interests of the children. The continuing and escalating conflict between the parties since the joint custody order of Justice Maresca has made the joint custody order in place unworkable. Both counsel conceded this in their opening trial statements, which is why each sought sole custody on behalf of their respective clients. Further, the evidence of Roy Reid following his updated report and investigation also support this finding of fact.

[143] It is clear, that perhaps notwithstanding the best intentions of the parties and the court back in 2009, a reasonable measure of communication and cooperation is simply not achievable between these parties now or in the future, so that the best interests of the children can be ensured on an ongoing basis.

[144] It is further not disputed that there have been significant and material changes in the custody and access provisions since 2009, most significantly, the granting of temporary sole custody to Ms Milford in 2011, an order that had now been in place for almost three years. These changes constitute material changes in circumstances affecting the children's best interests.

[145] I also find that the criminal charges laid against the paternal grandfather for assault against Payton and the events following this incident, including Mr. Catherwood's response and the relocation of Mr. Catherwood to a new residence with his current partner are material changes in circumstances since the final orders of Justice Maresca and Zisman.

[146] In my view, after listening carefully to all of the evidence at trial, including the evidence of both paternal grandparents, I find that that Ron Catherwood did push Payton on or up the stairs on the evening in question and caused her injury. In cross-examination, the maternal grandmother testified that she did observe physical contact between Payton and the grandfather when he tried to "shush" her up the stairs. The paternal grandfather acknowledged disciplining Payton and that Payton was very upset, but he denied that there was any contact. Mr. Catherwood's absolute denial that anything occurred, despite the acknowledged history of conflict around his father's discipline of Payton, and his description of Payton as "belligerent" and a "liar" is very concerning.

[147] I also find that on the evidence before me, a joint custody order is not necessary to preserve Mr. Catherwood's parental relationship with the children. There was no evidence that Ms Milford was actively intent on undermining Mr. Catherwood's role as a parent or sabotaging his relationship with the children. On the contrary, the steps that she taken to protect the children from unreasonable or inappropriate conduct by Mr. Catherwood were reasonable in the circumstances, as will be described below. Mr. Reid testified that he found no evidence of Ms Milford abusing her status as a custodial parent in his investigation and he did not agree with the father's view that she was intent on sabotaging his relationship with the children.

[148] If a material change in circumstances has been established, in embarking on a fresh inquiry regarding the children's best interests, the court must consider section 24 (2) of the Children's Law Reform Act , supra, which sets out the criteria to be considered when determining the best interests of the child as follows:

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

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

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

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

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

(b) the child's views and preferences, if they can reasonably be ascertained;

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

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

(e) any plans proposed for the child's care and upbringing;

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

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

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

[149] Subsection 24(3) of the Act provides that the past conduct of a person is not relevant to a determination of custody unless the conduct is relevant to the ability of the person to act as a parent. Subsection 24 (4) provides that in assessing a person's ability to act as a parent, the court shall consider whether the person has at any time committed violence or abuse against,

(a) his or her spouse;

(b) a parent of the child to whom the application relates;

(c) a member of the person's household; or

(d) any child.

[150] For the reasons that follow, Ms Milford will be granted final custody of the children.

[151] I find that Ms Milford is the more competent, stable and responsible parent. The evidence supports the continuation of the temporary custody order on a final basis. Although there is no doubt that Mr. Catherwood clearly loves his children and the children clearly love him as well as his partner, Ms Momeni, the court was concerned about several examples of Mr. Catherwood's poor judgment and parenting ability. I also find that Mr. Catherwood caused many of the incidents that led to the conflict to which the children were exposed.

[152] Although at times very emotional and agitated, Ms Milford was a credible witness. Her evidence was consistent and compelling and she was not shaken in cross-examination. Although sometimes defensive, she readily admitted to her earlier mistakes and her obvious immaturity. She acknowledged that she repeatedly engaged in contact with Mr. Catherwood in the very early years of their relationship while there was a no contact order between them, leading to both pregnancies in the midst of a highly volatile and toxic relationship. Contacting Mr. Catherwood by telephone to take her to the hospital when she went into labour with Parker showed very poor judgment. She acknowledged her mistakes in these incidences and took responsibility for her actions.

[153] Ms Milford can still at times be very emotional and reactive towards Mr. Catherwood, thus contributing to the conflict between the parties. A recent example of this is her email correspondence to Mr. Catherwood during the trial over an incident that occurred when the maternal grandmother failed to attend at the right location to pick up the children. I find that Ms Milford greatly over-reacted this this event. She further acknowledged sending very inappropriate emails and texts to Mr. Catherwood in the past, although, she is learning to temper and control her reactions to him before sending emails that only serve to inflame the conflict between them.

[154] Notwithstanding the above, it was evident that Ms Milford has matured significantly over the past number of years and she is a responsible and caring at mother for her children. She has maintained steady employment with the same employer for the past eleven years. She has consistently maintained stable housing for the children and she is now in a mature and stable relationship with a loving partner. She has met all of the children's financial and material needs with no child support received from Mr. Catherwood at all. The children have done well in her primary care since 2011, according to the school reports, and the reports from the children's teachers to the clinical investigator.

[155] Regrettably, the court did not have the same view of Mr. Catherwood. It is not disputed that he appears to be in a stable relationship with a loving and good partner, although there was some evidence of periods of separation. Further, although Mr. Catherwood no doubt loves his children, and the children clearly love him, the court had concerns about Mr. Catherwood's maturity and credibility.

[156] Mr. Catherwood blamed Ms Milford for everything and he took no responsibility for any of his actions. He had little or no insight into his conduct and the impact on the children. He minimized some of the more egregious examples of his conduct and how it affected the children. Some examples follow:

1. Mr. Catherwood blamed Ms Milford for failing to enrol the children in a Catholic school and accused her of breaching Justice Maresca's order when the evidence at trial was undisputed and admitted by Mr. Catherwood that he failed to take any steps to baptise the children or to take them to church regularly (or at all), which he was required to do under both Justices Maresca and Zisman's order and which was required by the Catholic elementary system, according to his own evidence. Notwithstanding this, he still maintained that it was Ms Milford's fault that the children were not in a Catholic school.

2. Mr. Catherwood failed to protect Payton from the assaultive behaviour by his father. During this trial, he accused Payton of lying and repeatedly described her as a "belligerent child" who would not accept authority and direction from his father. He further accused Ms Milford of somehow causing Payton to make false allegations against his father even though the evidence was undisputed that Payton disclosed the assault to a school teacher who reported the incident to the Children's Aid Society, unbeknownst to Ms Milford, who did not even know about the incident until she was contacted by the Children's Aid Society. Mr Catherwood described what had occurred to his daughter as "trumped up bull-shit", as he stated to Mr. Reid during the course of the OCL investigation. He continued to permit contact between his father and Payton, notwithstanding agreement reached in the criminal proceedings and the order of Justice Zisman prohibiting the grandfather from being alone with Payton.

3. Mr. Catherwood blamed his outbursts and altercations with day-care staff on Ms Milford for failing to advise the daycare staff that his mother was on his contact list even though it was his responsibility to do so. When the day-care contacted Ms Milford, she immediately consented to the grandmother picking up the children. Nevertheless, Mr. Catherwood stormed into the day-care on a day that he was not supposed to be there, as he admitted during the trial, leading to a potential confrontation between Ms Milford and him, which thankfully did not occur. He then admitted during this trial to yelling at the day-care supervisor until she started to cry. He did not express any remorse for the upset he caused his mother or the supervisor at the daycare. It was very apparent that Mr. Catherwood believed that his actions were justified. He refused to acknowledge that he should have notified the daycare that his mother was on his contact list, when he and Ms Momeni were not able to pick up the children. During cross-examination, when faced with the log book communication from Ms Milford reminding him to let the day-care know of any other people on his contact list, Mr. Catherwood accused Ms Milford of fabricating the entry in the logbook.

4. Mr. Catherwood was unreliable in picking up the children on time from the school or day-care and he was repeatedly late, leading to numerous changes in the court orders around pick-up and drop-off for the children, given the understandable stress on the children. Nevertheless, he accused Ms Milford of over-reacting when on at least two occasions the children were left alone in the school yard after school hours until the school contacted Ms Milford. Mr Catherwood did not understand why Ms Milford was so upset about this, since she was so close to the school and was able to go and pick them up when the school contacted her, according to his evidence.

5. Mr. Catherwood's refused to support the children's counselling with Safety Zone as a result of being exposed to domestic violence, notwithstanding the recommendations of the Children's Aid Society and the OCL clinical investigator. Despite his admission during the trial that the children have been exposed to domestic violence and that Payton had experienced trauma by witnessing domestic violence between her parents, Mr. Catherwood was very dismissive of the Safety Zone counselling program during the trial and did not support it.

6. Mr. Catherwood failed to inform his parents about Justice Zisman's order prohibiting his father from being alone with the children. It was apparent during the trial that neither paternal grandparent knew that this order was still in effect, leading to the incident involving the police in March of 2012 when Mr. Catherwood sent his father alone to pick up the children from Ms Milford's home. The grandmother appeared openly shocked at trial when she was informed about this order. This conflict and police involvement in front of the children could have been entirely avoided had Mr. Catherwood acted responsibly.

7. During the course of the trial, Mr. Catherwood admitted to scheduling extra-curricular activities for the children on the days that they were with their mother, even after she was granted temporary sole custody. He did this unilaterally and without her consent and then was critical of Ms Milford for not taking the children to those activities on her days. He testified that the temporary order for sole custody was wrong because he should have the right to put the children in any sport; he has always given Ms Milford notice when he does this.

[157] During his examination-in-chief, it was evident that Mr. Catherwood saw himself as the victim of the criminal, child protection and family court systems. He professed to be accountable, but his lengthy speeches throughout his testimony clearly indicated that he was not accountable, nor did he take responsibility for his actions. It was also concerning and very informative that throughout his evidence in chief, he rarely discussed the children at all. He focused entirely on how his life has been destroyed by Ms Milford. He often focused his gaze directly at Ms Milford during his speeches in what appeared to be a hostile and intimidating manner.

[158] During his cross-examination, Mr. Catherwood was argumentative, sarcastic, disrespectful and aggressive. He would respond to difficult questions by either refusing to answer or asking aggressive questions in response, despite repeated cautions by the court. He would repeatedly interrupt counsel and the court. He had difficulty controlling his anger, particularly when he could not control the cross-examination.

[159] Further, it was also concerning that during Ms Milford's testimony the court had to caution Mr. Catherwood from continually whispering and talking throughout in a manner that was very distracting to both to the court and to the witness. In making this observation, I am not being critical of Mr. Catherwood's counsel, as it was apparent that he was having difficulty controlling his client.

[160] The fear that both Ms Milford and the maternal grandmother expressed regarding Mr. Catherwood's behaviour appeared credible and sincere. After observing Mr. Catherwood during the course of this trial and hearing the evidence of Mr. Catherwood's aggressive and intimidating conduct towards day-care staff, the children's mother and maternal grandmother, I find, on a balance of probabilities, that the violence and conflict in the parties' relationship has been primarily caused by Mr. Catherwood. I consider this to be an important consideration when assessing Mr. Catherwood's ability to parent, in accordance with subsections 24(3) and 24 (4) of the Children's Law Reform Act .

[161] In my view, Mr. Catherwood has not accepted responsibility for the violence and conflict that he has caused. Although he completed the PARS program (Partner Abuse Response Program) as a condition of one of his probation orders in 2011, the report of his participation entered on consent as an exhibit at trial, described Mr. Catherwood as someone who "maintained a victim stance, defaulting to his former partner's mental health concerns. Even though he could speak to alternate ideas, he had difficulty holding or accepting them, as though entrenched in his thinking." This supported my impression of Mr. Catherwood during this trial.

The OCL Report

[162] Mr. Reid was a good witness and much of his findings and observations regarding the issue of custody is borne out by the evidence at trial. However, his recommendation to radically change the primary residential schedule to a rotating schedule between the parents was not supported by the evidence at trial. Mr Reid testified that it was not his role to determine the source of the adult conflict or to "assess blame" and that the reality was that both parties have engaged in conflict. He did not believe that the current access provided optimal contact between the children and Mr. Catherwood.

[163] Although often a difficult task, determining whether one parent is more responsible for conflict or violence that the children have been exposed to is relevant to a determination of the issues of custody and access, particularly given subsections 24(3) and 24(4) of the Children's Law Reform Act . I have find that Mr. Catherwood has been more responsible for the conflict that the children have been exposed to during the course of this litigation, including the conflict between he and his father, the conflict between he and daycare staff, the conflict between he and the children's maternal grandmother and the conflict between he and Ms Milford. He has further failed to protect the children, particularly Payton, from physical harm by his father and he has denied that it occurred. This should have factored into Mr. Reid's analysis of access.

[164] Further, Mr. Reid acknowledged that he did not ask Payton about her relationship with her paternal grandfather, nor did he interview any of the grandparents. In his view, this issue had already been investigated by the children's aid society and it was not necessary for him to explore this further. He therefore did not explore whether Payton was comfortable in her grandfather's presence or being alone with him. Given the rotating equal residential schedule that he proposes, there is a far greater risk that this will occur.

[165] Mr. Reid also acknowledged that he was aware that Mr. Catherwood did not support the children attending the Safety Zone program, which is included in his recommendations. He appeared not to factor into his analysis the collateral reports from the school and day-care which both indicated that the children were doing better in the primary care of their mother. Although he found that the children were doing well he did not acknowledge that the children had been in their mother's sole custody for more than one year by the time he completed his investigation.

[166] Finally, he testified that he was not aware that Mr. Catherwood was consistently late in the picking up and dropping off of the children from their school and that he was not completing the children's homework when they were with him. Given my findings of fact regarding this issue, Mr. Reid's rotating weekday parenting schedule is untenable and not in the children's best interests.

Conclusion regarding Custody and Access

[167] The evidence shows that for the past almost three years, Ms Milford has made good decisions about the children's schooling, counselling and activities. There was no evidence before me that the children were doing poorly under the temporary order granting Ms Milford sole custody. Indeed the evidence established that the children were thriving and healthy under this sole custody order. They had settled well in school and they were described by Mr. Reid as healthy, happy and delightful children at the time he conducted his investigation, more than one year after the children had been placed in Ms Milford's temporary sole custody.

[168] The access arrangements under the temporary order have also been in place for almost three years and the children are content and doing well. I have considered Payton's views, as expressed to Mr. Reid, to live with each parent equally on alternate days. Payton was 7 years old during the OCL investigation, and in assessing her wishes, I must take in account her age. Her views are not determinative and must be weighed against all of the other circumstances, factors and practicalities that I must consider.

[169] It is not in the children's best interests to now be disrupted by a rotating schedule of two days on, two days off, with each parent. This will only create confusion and more conflict that the children could be exposed to, particularly given the significant parenting concerns that I have outlined regarding Mr. Catherwood. It will also negatively affect their schooling, given Mr. Catherwood's inability to get the children to school on time and to assist with homework.

[170] In stating all of the above, I do not want to minimize the importance of the children's relationship with their father. It is not disputed that the children love their father very much. Mr. Catherwood also clearly loves his children. Mr. Catherwood has been very active in the children's sports and extra-curricular activities and he is very proud of their accomplishments in these areas. Nevertheless, the principle of maximum contact is tempered by the children's best interests to be in a secure, stable and conflict free environment.

[171] In my view, the current schedule should only be adjusted minimally to address the concerns raised by Mr. Reid and the parties regarding the conflict around pick up and drop off of the children during the school week. The Monday evening visit should be eliminated and the Wednesday visit should be extended to overnight with Mr. Catherwood dropping the children off at school Thursday morning. The Sunday night return after an alternating weekend should be extended to Monday morning at school, again to avoid conflict between the parties. Mr Catherwood will be expected to ensure that the children get to school on time every Thursday morning and every alternating Monday morning. However, in the event that Mr. Catherwood or a third party designate cannot pick the children up from school by 3:15, then the pick-up shall be at the mother's home to ensure that the children are not left waiting at school.

[172] I also carefully considered whether there should continue to be a provision prohibiting the paternal grandfather from being alone with the children. I commend the paternal grandfather for the steps that he has taken to address his discipline of the children since he was criminally charged. I also considered the report from the Halton Children's Aid Society regarding contact between the grandfather and the children in the presence of others. However, there was evidence that Payton continues to be fearful of her grandfather in some contexts, such as when they are alone. Therefore, out an abundance of caution for all involved, in particular Payton, this provision should continue, unless the mother agrees in writing to terminate it, or upon further review by the court.

9. Determination of Child Support

[173] Mr. Catherwood is 32 years old. The children are 8 and 6 years old. It is not disputed that he has never paid child support, although he has paid for some of the children's extra-curricular activities. This is partly because he has been in school for a number of years and partly because the parties had a shared residential schedule until July of 2011. Ms Milford has been steadily employed throughout this time and has met the vast majority of the children's financial needs.

[174] It is not disputed that Mr. Catherwood dropped out of school in 2012 and formally withdrew in December of 2012. His transcript produced for the first time at this trial, after repeated requests for disclosure, shows that he had failed and withdrawn from most of his courses over the past three years. He blames Ms Milford for this, as well as the criminal charges and the stress of this litigation. During the time that he was in school, he was in receipt of government assistance and OSAP loans.

[175] Mr. Catherwood obtained employment as a cook in August of 2013. It is not certain what he was doing since January of 2013, although he testified that he was stressed and needed a break. His employment has been part-time. He has fours shifts per week. It is not certain why his employment is not full-time. He testified that he is really good at his job and, shortly after he obtained the position, he was already up for a raise. He testified that he did not have any trouble getting this job, despite later testifying that he could not find employment because of his criminal record.

[176] Ms Momeni, despite her obvious intelligence and potential, gave up her education and dropped out of school to be the main financial provider for Mr. Catherwood and the children while he was still in school. She has two jobs and continues to work full-time. She appears to continue to be the main financial provider in the family. According to Mr. Catherwood's most recent sworn financial statement and his testimony, Ms Momeni pays everything. Mr. Catherwood's parents also provide some financial assistance, and the parties have been fortunate to find subsidized housing.

[177] Ms Milford seeks child support retroactive to January, 2012 at an income imputed to Mr. Catherwood at $30,000.00 per annum. Mr. Catherwood acknowledged that he has not started paying child support nor has offered to pay child support, but stated that Ms Milford has not asked for it. He testified that if the court requests that he pay child support, then he will pay it.

[178] In her decision, Obodoechina v. Ayetor , [2013] O.J. No. 6066, at paragraphs 49 to 59 , Justice Carole Curtis provides an excellent summary of the governing principles in determining whether income should be imputed to individuals for child support purposes in circumstances similar to the case here:

"49 The purpose of the Child Support Guidelines, Ont. Reg. 391/97, as amended, is to establish a fair standard of support that ensures that children continue to benefit from the financial means of both spouses after separation, using a methodology that strives to achieve objectivity, efficiency and consistency: Lee v. Lee

50 Section 19(1) of the Child Support Guidelines addresses imputing income:

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

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

51 Section 1 of the Guidelines stipulates that one of its objectives is to establish a fair standard of support for children to ensure that they benefit from the financial means of both parents after separation. The need to ensure appropriate financial support for the children is dealt with by imputing income. Imputing income is one method by which the court gives effect to the joint and ongoing obligation of parents to support their children. In order to meet this legal obligation, a parent must earn what he is capable of earning: Drygala v. Pauli , 2002 CarswellOnt 3228, 29 R.F.L. (5th) 293, [2002] W.D.F.L. 406, 219 D.L.R. (4th) 319, 61 O.R. (3d) 711, 164 O.A.C. 241 (Ont. C.A.), para 31 , 32, 35.

52 There is a duty to seek employment in a case where a parent is healthy: Drygala v. Pauli , supra , 2002 (Ont. C.A.), para 38.

53 The payor is intentionally under-employed if that parent chooses to earn less than he is capable of earning. That parent is intentionally unemployed when he chooses not to work when capable of earning an income: Drygala v. Pauli , supra , 2002 (Ont. C.A.), para 28.

54 Section 19(1)(a) of the Child Support Guidelines permits a court to impute income to a spouse who is intentionally underemployed. When imputing income based on intentional underemployment, a court must consider what is reasonable in the circumstances. The factors to be considered are the age, education, experience, skills and health of the payor, as well as the payor's past earning history and the amount of income the payor could earn if he or she worked to capacity: Drygala v. Pauli , supra , 2002 (Ont. C.A.).

55 A parent cannot pursue an improvident career path at the expense of the child: Evans v. Gravely , [2000] O.J. No. 4748 (Ont. S.C.J.), para. 10 .

56 A parent cannot avoid child support obligations by a self-induced reduction of income: Weir v. Therrien , [2001] O.J. No. 2612, 20 R.F.L. (5th) 199, 106 A.C.W.S. (3d) 494 (Ont. Sup. Ct.), para 25 .

57 The court has a broad discretion to impute income where the father is not working to his potential. In exercising discretion, a court will bear in mind the objectives of the guidelines to establish fair support based on the means of the parents in an objective manner that reduces conflict, ensures consistency and encourages resolution. The fundamental principle is that the court must estimate the actual means which the parent has available for child support.

58 In Duffy v. Duffy , [2009] N.J. No. 245, 2009 NLCA 48 , 73 R.F.L. (6th) 233, 289 Nfld. & P.E.I.R. 132, 2009 CarswellNfld 211, 179 A.C.W.S. (3d) 879 (Nfld & Lab. S.C. - C.A.), para. 35, the Newfoundland and Labrador Court of Appeal set out a list of general principles to be considered regarding child support and when determining whether to impute income:

The fundamental obligation of a parent to support his or her children takes precedence over the parent's own interests and choices;

A parent will not be permitted to knowingly avoid or diminish, and may not choose to ignore, his or her obligation to support his or her children;

A parent is required to act responsibly when making financial decisions that may affect the level of child support available from that parent;

Imputing income to a parent on the basis that the parent is "intentionally under-employed or unemployed" does not incorporate a requirement for proof of bad faith. "Intentionally" in this context clarifies that the provision does not apply to situations beyond the parent's control;

The determination to impute income is discretionary, as the court considers appropriate in the circumstances;

Where a parent is intentionally under-employed or unemployed, the court may exercise its discretion not to impute income where that parent establishes the reasonableness of his or her decision;

A parent will not be excused from his or her child support obligations in furtherance of unrealistic or unproductive career aspirations or interests. Nor will it be acceptable for a parent to choose to work for future rewards to the detriment of the present needs of his or her children, unless the parent establishes the reasonableness of his or her course of action; and,

A parent must provide proper and full disclosure of financial information. Failure to do so may result in the court drawing an adverse inference and imputing income.

The support recipient bears the burden of proving that the support payer is intentionally under-employed. If the court is not satisfied that the support payer is intentionally under-employed, the inquiry ends there. Once you establish underemployment, the onus shifts to the payor to show one of the exceptions of reasonableness. Parents can take jobs with less money, as long as the decision is reasonable. The onus of proving the payor is intentionally underemployed is on the recipient. If proved, the onus then shifts to the payor to establish an acceptable reason. Intentional underemployment requires a voluntary act by the respondent: Rilli v. Rilli , [2006] O.J. No. 4142 , 2006 CarswellOnt 6335, 151 A.C.W.S. (3d) 1130 (Ont. Sup. Ct.), para 18 ."

[179] Mr. Catherwood is an intelligent, educated, healthy, able-bodied person who is capable of obtaining full-time employment and should be paying child support in accordance with the Child Support Guidelines for Ontario. He testified that he had no difficulty finding part-time employment when he finally started searching for employment. He has never paid child support. The court finds that a fair and reasonable amount of income to be imputed to him is $25,000.00 per annum, commencing in January 1, 2013, which is the first full month after Ms Milford issued, served and filed her amended motion to change and sought child support from Mr. Catherwood.

10. Order

[180] In conclusion, I make the following final order:

1. All existing custody and access orders are terminated.

2. The mother will have sole custody of the children.

3. The father shall have access with the children as follows:

   a) on alternate weekends from Fridays at 3:15 p.m. until Monday morning before school commences. The access shall extend until Mondays at 8:00 p.m., if the Monday is a statutory holiday.

   b) every Wednesday at 3:15 p.m. until Thursday morning before school commences.

4. Transportation and access exchange: The parents shall share the responsibility of transportation of the children on access exchanges. The father or a third party designate shall pick up the children at school at 3:15 p.m. and return the children to school the next morning at the conclusion of his visit. If the father or a third party designate cannot pick up the children at 3:15 p.m. from the school, then the father or third party designate shall pick the children up from the mother's home at 4:00 p.m. The father shall wait at the bottom of the driveway of the mother's home when he or a third party designate is picking up the children from the mother's home. He shall not approach the mother's home. When the father is returning the children to school at the end of the visit, the children shall be delivered to school on time. If the children are not being returned to school, then the mother shall pick up the children at the end of the visit from the father's home. The mother shall wait at the bottom of the driveway of the father's home when she is picking up the children. She shall not approach the father's home. For all other holiday access exchanges, or exchanges when the children are not in school, the above provisions shall apply, except at the times ordered or agreed upon for those exchanges.

5. The father shall ensure, as a condition of exercising his access, that the paternal grandfather shall not be alone with the children, unless the mother agrees in writing or further court order.

6. Neither party shall discuss this litigation or talk negatively about the other party in front of the children.

7. The parents shall communicate by email and shall respond to all time-sensitive emails concerning the children as soon as possible and no later than 12 hours.

8. The mother shall consult the father by email about any major decision concerning the children.

9. The father shall have permission to meet with any doctor, medical professional, teacher, leader, coach, principal or other professional who has contact with the children in order to obtain information about the children. The mother shall, upon the father's request, execute any direction or authorization to permit the father to do this.

10. The father shall be given notice of any school events to which parents are invited and be permitted to attend. He shall also be permitted to arrange and attend at parent-teacher meetings, at different times than the mother.

11. The mother shall provide the father with the schedules of extracurricular activities of the children as soon as they are enrolled in same, and promptly notify him of any changes to these schedules. The father shall not enrol the children in any extra-curricular activities without the mother's written consent.

12. Either parent may attend at special events at the children's extracurricular activities outside of school on days that they are not scheduled to be with the children, such as for a concert, final competition or game. Neither party shall communicate with the other during such events, although the children shall be permitted to greet the other parent, provided that they return to the parent that they are scheduled to be with at that time.

13. The father shall be listed as one of the emergency contacts with any school or any service provider (such as doctors, dentists, camps or counselors) for the children. The father shall provide the mother with any alternate emergency contacts in writing and she will provide those to the appropriate service provider.

14. The mother shall provide the father with copies of the children's health cards and report cards.

15. Each parent shall have the children with them for one-half of the winter (Christmas) school break. The father shall have the children with him from December 25th at noon until 6 p.m. on the Sunday preceding the children's return to school in odd-numbered years and from Friday at 6:30 p.m. on the children's last day of school before the winter school break commences, until noon on December 25th in even-numbered years. The children will be with the mother at the opposite times.

16. In even-numbered years, the children shall spend the entire March school break with the father, from 6:30 p.m. on the Friday preceding the commencement of the March school break until Sunday at 7:00 p.m. at the conclusion of the March school break, in even-numbered years. In odd-numbered years, the children shall spend these times with the mother in odd-numbered years.

17. The children shall spend every Mother's Day with the mother from 10:00 a.m. onward, if they would otherwise be with the father, and every Father's Day from 10:00 a.m. until 7 p.m., if they would otherwise be with the mother.

18. For Easter weekend, in even numbered years, the mother shall have the children from Saturday at 5:30 p.m. until Monday at 7:00 p.m. and the father shall have the children from Thursday at 5:30 p.m. until Saturday at 5:30 p.m. In odd numbered years, the mother shall have the children from Thursday at 5:30 p.m. until Saturday at 5:30 p.m. and the father shall have the children from Saturday at 5:30 p.m. until Monday at 7:00 p.m.

19. For Thanksgiving weekend, in even numbered years, the mother shall have the children from Friday at 5:30 p.m. until Sunday at noon, and the father shall have the children from Sunday at noon until Monday at 7:00 p.m. In odd numbered years, the mother shall have the children from Sunday at noon until Monday at 7:00 p.m., and the father shall have the children from Friday at 5:30 p.m. until Sunday at noon.

20. All other statutory holidays shall be shared in accordance with the regular weekend access schedule.

21. Summer access: Commencing in 2014, each parent shall have the children in their care for two non-consecutive weeks each summer. The father shall have one week in July (a seven day period) and one week in August (a seven day period) and the mother shall have one week in July (a seven day period) and one week in August ( a seven day period). The children shall always be with their mother on the weekend before the first day of school. The parties shall advise each other by May 30 th each year whether they wish to exercise this right, and if so, of the week which they propose to take this vacation. In the absence of notice, the party in question shall be deemed to have forfeited the right to summer vacation time. In the event of disagreement respecting summer vacation periods, the mother's choice shall have priority in even numbered years, and the father's choice shall have priority in odd numbered years. For the year 2014 only, the parties shall advise each other of their vacation request by June 15 th .

22. The holiday access schedules set out above shall take priority over the ordinary access schedule.

23. Each party may have the children on two days per year when they are otherwise supposed to be with the other parent if there is a special event, such as a wedding or family gathering. The parent must give the other at least 30 days' notice of the change by email and the other parent shall accommodate this.

24. The parents shall facilitate the children having telephone contact with the other parent when they are in their care.

25. The parents may agree on further and other access.

26. The parents are not to change this schedule without the consent of the other parent. The only exception is if a child is too ill to exercise access on the father's weekend, in which case the mother must provide the father with a doctor's note evidencing this. If a visit is cancelled for this reason, it shall be made up on the following weekend.

27. The mother shall not move the child's permanent residence further than twenty-five kilometres from her current residence without the father's written consent or a further order of the court.

28. Travel: Neither party shall remove, or shall help anyone else to remove the children from the Province of Ontario, without the consent of the other party. Such consent not to be unreasonably withheld provided that: the party requesting travel with the children shall provide a detailed itinerary, including departure and return dates, flight numbers or other transportation plans, place of stay and emergency contact information. Neither party shall deny a reasonable travel request and will provide notarized consents if requested.

29. Commencing June 1, 2014, the father shall pay the mother the guideline table amount of child support for two children based on income imputed at $25,000.00 per annum, being $373.00 per month, effective January 1, 2013. The arrears of support are therefore fixed at $6,341.00, payable at a rate of $75.00 per month.

30. The father shall also contribute to his proportional share of the children's reasonable section 7 special expenses, upon written notice by the mother. These payments shall be paid on the first day of each month.

31. The parents shall exchange their complete income tax returns and notices of assessment, and the mother shall provide the father with all receipts for special expenses by June 30th of each year. The parties are expected to annually adjust child support in accordance with the guidelines.

32. A support deduction order shall issue.

[181] If the parties are unable to resolve the issue of costs, they may make written submissions to the court. The applicant's submissions are to be served and filed no later than July 30, 2014 and the respondent's submissions are to be served and filed by September 1, 2014.

[182] I thank counsel for their professionalism throughout this trial.

Released: May 28, 2014

Signed: "Justice Sheilagh O'Connell"