Court File and Parties

Court File No.: North York D57923/12 Date: October 29, 2014 Ontario Court of Justice

Between:

AMBER CRYSTAL TIVERON Applicant

— AND —

ERIC RICHARD COLLINS Respondent

Before: Justice R. Zisman

Heard on: October 6, 7, 8, 9 and 10

Reasons for Judgment released on: October 29, 2014

Counsel:

• Katharine Robinson, counsel for the applicant
• Eric Richard Collins, on his own behalf

Zisman, J.:

1. Introduction

[1] The parties are the parents of three young children. This trial was with respect to what custody arrangements are in the best interests of the children, some specific incidents of custody including travel consents, continuation of an existing restraining order and choice and payment of section 7 expenses.

[2] The applicant ("mother") seeks a final order continuing the temporary sole custody order currently in place and a continuation of the current access arrangement, the right to travel without the respondent's ("father") consent and the right to obtain passports for the children without the father's consent.

[3] The mother also seeks a continuation of the current restraining order to govern communication between her and the father. The mother fears if the current restrictions of communication through a restraining order are not continued that the father will revert to his previous behaviour.

[4] The father seeks joint custody in the form of a parallel parenting order in which he would retain the ability to make educational decisions for the children and the mother would make all medical decisions. In the alternative, the father seeks sole custody.

[5] Although initially it appeared that the father consented to the current access arrangements continuing, it became clear during the trial that he was seeking equal parenting time with the children as of September 2015.

[6] The father also seeks an order that he hold the passport for one of the children and the mother for the other children and that both parties need to consent for the children to travel with the other parent.

[7] The father also seeks a termination of the restraining order as he alleges it was obtained on false and misleading evidence and that the continuation of the restraining order will prevent him from obtaining a gun licence. It is the father's position that with a carefully crafted court order the parties will be able to communicate and there is no need for a restraining order.

[8] By closing submissions, both parties agreed to the issues of the section 7 expenses.

2. Background

[9] The mother is 33 years old. She completed high school and has a college degree in business administration. She is employed by Bell telephone where she has worked for the last 8 years. The mother earns about $40,000.

[10] The father is 38 years old. He had a difficult childhood and left home at 16 years of age. He later was able to complete high school and obtained his licence to be a truck driver. He has mostly worked as long haul truck driver but he quit or has been terminated from several positions and currently is working as a short distance driver. From 2008 to 2011 he earned a gross income of about $49,000 to $56,500. In 2012 his income was reduced to $18,806 and then in 2013 reduced to $14,826. He blamed the court proceedings and his desire to exercise access to the children on the necessity of him filing for bankruptcy and for the various changes to his employment.

[11] The parties met in 2001 and began dating in 2007. Although the parties did not agree on the exact dates they resided together or when or for how long they separated, they did agree that they had an off and on relationship.

[12] Shortly after their relationship began, the mother became pregnant and their first child Danica was born on December 13, 2008. The mother was home on maternity leave for about a year.

[13] There were problems in the relationship and the parties separated multiple times and at least on one occasion they separated for several months and the mother retained counsel to attempt to work out a separation agreement. The police and the children's aid society became involved on several occasions. During all of the separations, Danica remained in the mother's primary care.

[14] The parties began to see each other again and the mother became pregnant and sometime after February 2010, they reconciled. The twins, Chloe and Breanna were born on October 1, 2011. The mother again remained home with the twins on maternity leave for about a year. At the end of the maternity leave, the mother needed to complete a six week training course and the father took a leave from work for these six weeks and cared for the children.

[15] The parties again separated for the final time sometime between September and November 2012.

[16] When the parents separated the father moved out of the mother's apartment into another apartment in the same building. The children began to spend one week with each parent but the father agreed that this was not workable as the children missed their mother too much. Then the children began to spend alternate days with each parent but this resulted in too many transitions and exacerbated the level of conflict between them. Both parties agreed that neither of these arrangements were in the children's best interests.

[17] The mother began this application on November 19, 2012 seeking sole custody and an order for access to the father based on the inability of the parties to agree on a parenting arrangement. The mother also sought an order for child support retroactive to April 1, 2009, a non-removal order and a restraining order based on her allegations that the father was continually harassing and repeatedly threatening her. The mother alleged that the father was controlling, demeaning and that his emails and texts to her were increasing in frequency and his level of hostility and anger were frightening to her. She alleged that the father made direct and veiled threats of violence and death against her.

[18] The father denied that his email and text messages were threatening or harassing and blamed the mother as being the aggressor. The father denied any abuse or that he controlled the mother. The father alleged that the mother was acting out of revenge as he had ended his relationship with the mother. The father alleged that the mother falsely obtained a temporary restraining order to create a status quo with her as the primary parent and that she is not child focused and unable to successfully parent.

[19] The parties have been before the court many times and have brought multiple motions. The children's aid society and police have been involved several times throughout their relationship. The parties blame each other for their inability to communicate. They do not agree on fundamental parenting issues and specifically what parenting arrangements are in the children's best interests. Many of the issues have been resolved through active case management, multiple court orders and through mediation. It appears that the current orders have somewhat reduced the conflict and improved the parties' ability to communicate.

3. History of court proceedings

[20] On November 23, 2012 on short notice to the father, the mother brought an urgent motion for a restraining order and sole custody. Justice Curtis granted the mother temporary sole custody, the father access on Tuesday and Thursday evenings and alternate week-ends from Friday to Sunday with pick up and drop off in the lobby of the apartment where both parents resided at the time. A temporary restraining order was also granted prohibiting contact between the parents except through counsel or through text or email messages relating to the children. A further order was made preventing the father from removing the children from the City of Toronto without the mother's prior consent or court order.

[21] The matter was adjourned for the father to serve and file materials. The father filed a cross-motion seeking termination of the temporary restraining order, joint custody with an equal time-sharing parenting plan, no retroactive child support, that the mother be solely responsible for all section 7 expenses and an order that the children's travel be restricted to North America.

[22] The temporary motions were argued before Justice Jones on January 23, 2013. Pending the release of the decision, the father filed 4 Form 14B motions with voluminous affidavits that were all opposed and the mother filed one Form 14B motion requesting changes to the terms of the restraining order. Justice Jones held that these were not proper procedural, uncontested or unopposed motions. The endorsement states that it was clear that the parties' acrimonious relationship had continued with children's aid society and police involvement and that it was clear that communication between the parties by email and text had not been effective or constructive.

[23] On May 2, 2013, Justice Jones varied the restraining order to provide that the father have no contact directly or indirectly with the mother or the children except contact with the children during his court ordered access or in the presence of counsel. Further, access exchanges were changed to the lobby of a local police station and communication was limited to communication about the children through a communication book that was to travel between the children on access visits. The restraining order was later further varied to provide that the parties could communicate by text message in the case of a medical or other emergency or where sufficient advance notice of an access cancellation was impossible.

[24] On May 17, 2013 Justice Jones released her decision on the temporary motions. The mother's temporary sole custody was continued. The father was granted access on alternate week-ends from after school on Friday to Monday morning and every Wednesday to Thursday morning. All pick-ups and drop-offs were at the daycare or school. There were many terms regarding the exchange of information or changes in access to be through the communication book. Based on the father's income of $30,000.00, he was ordered to pay child support of $591.00 per month without prejudice to the mother's right to argue for retroactive child support. The issue of the sharing of the daycare expenses was adjourned for further written submissions of the parties.

[25] The issue of costs for the temporary motion and cross-motion and the father's four Form 14B motions and the mother's Form 14B motion was reserved.

[26] On June 26, 2013 the father brought another motion to file a further affidavit on the issue of costs pertaining to the motion heard on January 23, 2014. The father's motion was dismissed and he was ordered to pay costs of $350.00 to the mother immediately.

[27] By Form 14 B the parties filed a consent agreeing that during the summer, when Danica was not in school or daycare and staying with the maternal grandfather that the father would pick her up on Friday at 1:00 p.m. and return her on Monday at 10:00 a.m. at a designated location convenient to the maternal grandfather's home. Despite agreeing to this arrangements the father in the trial argued that the mother deliberately made these arrangements to interfere with his ability to exercise access.

[28] On July 30th, 2013, Justice Jones released her costs decisions and ordered the father to pay costs of $2,685.00 with respect to the Form 14B motions.

[29] On July 30th, 2013 Justice Jones also released her decision regarding the section 7 expenses. The father was ordered to pay $37.00 per month as his share of the subsidized daycare expenses and 40% of any costs for summer daycare for Danica or any of the children's extracurricular activities up to a maximum of $300.00 per year. There were further provisions regarding notice, consents and timelines for payment.

[30] At a case conference on September 27, 2013, there were further orders extending the father's week-end access to include any statutory holiday and providing that if any of the children were ill and unable to attend school or daycare the access exchange was to occur at a local police station. There was also an order requiring the parties to provide a written response to disclosure requests.

[31] On October 17, 2013 the father filed another Form14B motion to change the terms of the temporary access order of May 12, 2013 as amended on September 27, 2013 on the basis that he had changed employment and was no longer able to drop the children off in the mornings. The father demanded that the mother agree to the changes on a timetable he outlined. He then demanded further changes and after not being satisfied with the response of mother's counsel he filed another Form 14B motion. The mother's counsel responded to his motion by outlining the changes agreed upon and also requesting an order that the father not be permitted to bring any further motions without leave of the court.

[32] On December 13, 2013 Justice Jones released her decision granting the variation the mother consented to and dismissed the remainder of the motion and again pointing out the father's improper use of Form 14B motions. The new access order provided that the father's alternating week-end access would end on Sundays at 7:30 p.m. with exchanges to be facilitated at a local police station. It was also agreed that in advance of an access visit the parties could, in writing, make minor changes to the access including changes to access times, dates and location of pick up and drop off.

[33] On December 13, 2013 the parties were also before Justice Jones on a case conference and indicated that they had an agreement in principle on the issues of child support and holiday access. A further order was made for disclosure by both parties of proof of their respective 2013 incomes.

[34] The father was before the court on May 2, 2014 and a refraining order was granted on terms that he pay the ongoing child support of $591.00 per month and $109.00 per month on account of the outstanding arrears.

[35] On June 6, 2014 the parties were again in court as a result of the father's motion to stay enforcement or withdrawal of the order from the Family Responsibility Office. The father then withdrew this motion.

[36] On consent, the parties agreed that the mother would notify the father of any application to change the children's school or daycare and provide him with prior notice before implementing any such change. The parties agreed that the father have Skype access to the children on Tuesdays and Thursday between 7:30 and 8:00 p.m. with the mother to facilitate the calls. They agreed that if either of the children is ill and not in attendance at daycare or school the exchange would take place at McDonald's at Islington and Norseman Streets. The mother agreed to withdraw her claim for retroactive child support. The parties reached a final agreement regarding child support based on the temporary order in place, the father also agreed to pay the arrears at the rate of $59.00 per month and the mother agreed not to seek any contribution to the daycare expenses as she was receiving a subsidy.

[37] On August 5th, 2014 Justice Jones released a further cost order regarding costs for the remaining motions. The father was ordered to pay costs of $4,080.71 of which $1,272.66 related to child support and was enforceable by the Family Responsibility Office and a timetable was ordered of the payment of the remainder of the costs. On consent, the father agreed not to file any further motions in this proceeding without prior leave of the court.

[38] On August 15th, 2014, the parties attended a settlement conference and filed a final agreement regarding holiday access that they had negotiated through mediation.

[39] The matter was before me on September 18, 2014 for a trial management conference and the trial dates and issues for trial were confirmed. It was agreed that the issues for trial were custody and access including ancillary matters with respect to travel, passports and decision making, the issue of ongoing special expenses and the continuation of the restraining order.

[40] At the trial the mother testified on her own behalf as well as her step-mother. The father testified as well as his step-grandmother and a former girlfriend. Both parties filed a joint document brief as well as separate document briefs.

[41] In reaching my decision I relied on the materials the parties identified in their respective document briefs specifically, their email and text messages, portions of police reports and reports from the children's aid society that were either confirmed by the parties or otherwise admissible as business records. The father included a great deal of documents in his briefs that he either did not refer to in his examination or that were otherwise not admissible for example, printouts rating the quality of various schools. Such documents were objected to on the basis that they were not business records, did not qualify as expert reports and the contents were not accepted by the mother. Other documents were either not relevant or their relevance was not explained.

[42] At the commencement of the trial, the court was advised that the parties reached further consents that morning relating to the father's ongoing access that was to revert back to alternate week-ends from Friday to Monday morning and some incidents of access and information sharing.

[43] It was based on this consent that the court, the mother and her counsel all assumed that the father was agreeing to access as agreed upon in the consent. It was only during the father's cross-examination of the mother that it became clear that the father's position was that he wished access to evolve to a shared parenting scheme when the twins began school in September 2015. The father indicated he was content to deal with this issue by filing a motion to change closer to September 2015. But the father was advised by the court that the issue of ongoing access would be dealt with during this trial. The mother's counsel was permitted to re-examine the mother on her views about a shared parenting arrangement.

4. Relationship between the parties

[44] It is important to review the parties' relationship prior to this court proceeding to put into context the decisions the court must make with respect to what parenting arrangements are in the children's best interests and to determine their ability to co-operate and communicate effectively.

[45] The parties disagreed even before Danica was born as the father did not agree with the mother taking short term disability leave during her first trimester of her pregnancy as he feared it would interfere with her maternity benefits.

[46] The police became involved with the parties when Danica was only 7 months old. In July 2009, the mother reported her concerns about the father being verbally and emotionally abusive to her and that he continued to come to her home and was yelling at her despite the fact the parties were separated and living apart. She sought information about how to obtain a restraining order.

[47] In December 2009, the father and mother and her male friend were involved in a dispute when the father was returning Danica's things after a visit. The father was charged with assaulting the mother and her friend and with forcefully entering the home and with break and entering with intent to commit an indictable offence. While awaiting trial he was also charged with a breach of his undertaking because he communicated with the mother in breach of his release terms. This charge was subsequently withdrawn. After a trial in October 2010, the father was only found guilty of the charge of assaulting the mother and obtained an absolute discharge. The father completed an anger management program and community service.

[48] The parties reconciled sometime in 2010 and the police were again involved on November 1, 2012 due to concerns about domestic violence. The mother told the police that she had had another argument with the father about the children and that he was constantly verbally abusive to her and constantly criticising her parenting and life style. When the police spoke to the father he confirmed that he said the mother did not know how to care for the children and he had to do everything to make sure it was done properly. The mother told the police that several days earlier she had felt suicidal because of all of the ongoing stress from the father and the added stress of having just returned to work after maternity leave. The police report indicated that both parties confirmed that the mother was no longer feeling suicidal and that she was not a danger to herself or the children. The children's aid society also investigated and confirmed that there were no concerns with the children in the mother's care and closed their file. Yet the father in his evidence referred several times to the fact that the mother had threatened to commit suicide and cross-examined the mother on this issue.

[49] The mother gave numerous examples of the father being critical and demeaning of her while they resided together. For example, she testified that he yelled at her because she washed the floors on her hands and knees; that he criticized the way she handled the cat litter, the way she handled raw chicken, the way she hung and folded the clothes, the meals she prepared or how often she cleaned. The father did not deny that he did any of these things but testified that once the mother "altered" her behaviour and followed his instructions that things were fine. He testified that he bought the mother a mop and bucket and instituted a schedule for the cleaning and washing and a menu plan. In other situations he just did the work himself and for example refused to allow the mother to handle chicken anymore. He denied that his behaviour was controlling.

[50] The father did not deny that he called the mother names such as "angry Amber" and "Ambbaslack" in front of the children but explained that either these names were a joke or the mother also called him names and told him he was bi-polar. He did not deny that he told the mother that he wished she would die like her mother. This was stressful and hurtful to the mother as her mother died when she was only 21 years old. The father did not deny that he criticized the way the mother looked and told her she was only "perfect from the head-up."

[51] The parties were suspicious of each other having been unfaithful and the father denied that he had given the mother a sexually transmitted disease. Based on the OHIP records produced by the father, he had himself tested regularly for sexually transmitted diseases.

[52] The mother testified that she found her relationship with the father stressful and it caused her anxiety and she finally could no longer put up with his verbal abuse and his controlling and demeaning behaviour. The father, on the other hand, testified that the mother constantly wished to resume the relationship and it was he who finally left the relationship because he could not put up with the mother's behaviour and her refusal or inability to follow his rules.

[53] The father did not deny that he had on two occasions become angry and that he kicked or threw speakers that had belonged to the mother's mother and another time he put a hole in a closet. But he blamed the mother for the fact he had lost control and became angry. He also testified that he pushed the mother causing her face to hit a cupboard but this was because the mother pulled a knife on him, something she denied.

[54] The mother testified that the father had taken her laptop and her cell phone and wiped out the evidence she had gathered documenting his threats and his abusive and controlling behaviour. The father did not deny he did this but testified that he did so as he was worried the mother would use the information against him.

[55] Patricia Heath is the common law spouse of the mother's father. She testified that the parties, while they were together, generally visited their home on holidays. Based on her observations she felt their relationship was volatile and unstable. The father would be critical of the mother and tell her she was not brought up properly since she could not cook or clean to his standards. When they announced that the mother was pregnant with the twins, the father told the mother that he would be there for the twins if the mother did what he wanted and if he left the mother she would end up on welfare. Ms Heath was concerned about the mother but felt she should leave the issue of their relationship up to the mother.

[56] In cross-examination, Ms Heath agreed that at times the parties did get along and her observations were only based on the times she saw the parties and on what the mother told her.

[57] The father in his testimony blamed the mother for almost everything that went wrong in their relationship. He stated that he viewed the mother's behaviour as "destructive and uncooperative" and as a result when they lived together they were never able to rise above the poverty level. While they were together, he told the mother they were a team, that they needed to work together but every team needs a leader and he was the leader. He felt the mother was immature. He agreed that there were problems in the relationship because the mother accused him of being controlling but he did not agree with his characterization of him.

[58] Based on the evidence, I find that the relationship between the parties was volatile. I find that the father was controlling, demeaning and disrespectful to the mother.

5. The Relationship of the parties to the children and respect for each other as parents

[59] While the parties resided together, the mother did not dispute that the father was involved in the children's lives when he was not working but she testified that he was generally away all week and only home on week-ends. As a result she cared for the children and made all of the decisions regarding the children.

[60] The father's evidence was confusing and at times contradictory with respect to when he was working and the times he was home. Although he attempted to prove he was home more than alleged by the mother, it was clear that he was away a great deal of time as a long distance truck driver. The fact that he cared for Danica for six weeks when the mother took a retraining course after her maternity leave or that he may have taken Danica when she was a baby with him once or twice on a short trip or taken the mother and Danica on several trips does not detract from the mother being the primary caregiver of both Danica and later of the twins. The mother took maternity leave after the birth of both Danica and the twins and whenever the parties separated the children remained primarily in the care of the mother.

[61] When the parties separated in 2009, Danica remained in the mother's care despite the father testifying that he left the relationship because he did not like how the mother was parenting Danica. The father would spend time with Danica on week-ends. At the time he was living in his truck and when he had Danica in his care he took her to the homes of his relatives or friends or rented a hotel room.

[62] The father agreed that when the parties separated in the Fall of 2012, he agreed that the mother would be the primary parent. To his credit he acknowledged that in view of the age of the children, especially the twins that they needed to be with their mother But then he contradicted his evidence by being critical of the mother and insisting that they stay with him for half of the time.

[63] Generally, the mother was not critical of the father's parenting style although it is distinctly different from her style. The mother appeared to be content to allow the father to parent the children when they are in his care in his own way as long as their well-being was not being jeopardized.

[64] Ms Heath described the father's parenting style as loving but inconsistent. She provided an example of one Thanksgiving dinner when the parties were still together and the father continued to belittle and threaten Danica to eat to the point that she became so upset she cried. She testified about another occasion after the parties were separated when the father returned the children barefoot as he had taken their shoes off. The father explained that he had bought the children new shoes because the mother was sending them with old, torn shoes and when he picked up the children as they were still wearing their old shoe he took them off and sent the children home barefoot.

[65] Ms Heath described another occasion when the father was returning the children to their home and he tried to shove papers at her and her spouse about the quality of various schools and yelling that Rawlinson was the worse school in the city and finally the police had to be called because he would not leave.

[66] The mother testified about concerns regarding the parenting arrangements when any of the children are ill. She testified about several instances since the court proceedings commenced when the father either insisted on all of the children being in his care during his time even if one of them was ill but then he would return the children early because he could not care for them while they were ill. At times the father agreed that the children needed the mother when they were ill and other times he accused the mother of deliberately withholding the children from his care.

[67] The father and his witnesses testified about the close and loving relationship the father has with the children, the many activities he does with them and that they listen to him.

[68] Dorothy Allen the father's step-grandmother testified that based on her observations the father puts his children first and there is mutual love and respect between them. When the parents were together they visited her a few times and they both cared for the children and she had no concerns.

[69] Ms Allen testified that she met Liza who she understood would be the father's nanny when he moved closer to where the children would be attending school and the children seemed to like her. She confirmed that the father had not told her that she was his girlfriend.

[70] Isabella Lanting testified that she dated the father for about 4 months ending in August 2014 and she met the children within a couple of weeks of dating the father. She spent a lot of time with the children. She observed that the father was very good with the children, he paid a lot of attention to them, he was always teaching them things and they always wanted to be with him. When asked about how the father disciplined the children she testified that he just used a loud voice and they listened to him. The father took the time to explain to her the children's bedtime and toilet routines and what they eat. She became very close to the children and continued to see them a few times after she and the father ended their relationship.

[71] Ms Allen and Ms Lanting described the father's home as being very well organized with lots of toys with a nice bedroom for the children room and that the children understand that they need to clean up and put their things away and not run around the house.

[72] When asked about how he disciplines the children, the father explained that he spanked the children on several occasions when they were young and that it worked but now he just talks to them and they behave. In his home, they do not jump on furniture or run around as they do in the mother's home.

[73] The father was extremely critical of the mother's care of the children and her decisions both before the separation and since the separation.

[74] The mother testified that the father would tell her what a bad mother she was and she became depressed and began to believe him.

[75] The father was critical of the mother's medical care while she was pregnant with Danica and after the birth, he was critical of the fact the mother drank a great deal of coffee while she was breastfeeding and alleged that her drinking coffee was the cause of Danica being colicky.

[76] After the birth of the twins, the father and mother argued about giving the babies skim rather than whole milk and they argued regarding the use of baby powder or Vaseline to cure diaper rashes.

[77] The father did not approve of what the mother fed the children alleging that it was only processed foods and not healthy foods, he was critical of what the children wore, he criticized the mother's lack of attention to their medical needs, her improper use of antibiotics for the children and the proper schedule for giving medication. He was not satisfied that the mother dealt with the children's illnesses promptly enough.

[78] During his testimony he made statement such as, "I was always giving her medical advice and she would not listen…..I believe this person does not have decision making ability regarding major medical decisions." Essentially, they disagreed because the mother did not believe that it was necessary to take the children to the doctor every time they had a minor illness whereas the father felt they needed to be seen as these illnesses could be the sign of some more major illness. He voiced concerns when Danica was younger that she might be autistic and another time was worried that her vomiting could be sign of having a brain tumour.

[79] When the father testified about why he was now proposing that the mother have final decision making for medical issues, he stated that he felt she had now "improved" and does the "appropriate" things by taking the children to a medical clinic and not a walk-in clinic and she was not overusing antibiotics and communicating better with him about the children's medical issues.

[80] With respect to decision making, the mother testified that when they resided together she made all of the decisions because the father was not around. But they fought over all of those decisions. There was no evidence that the father ever took the initiative in making any decisions about the children.

[81] The father did not agree with the arrangements the mother made for daycare for Danica in August 2009 when she was returning to work as she filed for a subsidy based only on her income whereas the father wanted her to file based on both of their incomes. They fought again in August of 2012 when the mother was making arrangements for daycare for the twins. At the time the parties were either already separated or on the verge of separation. The daycare providers in the Etobicoke area where they were living did not accept subsidies and the mother would not agree to pay cash or agree to put the twins in a home daycare. The mother applied for a subsidy and put the twins in Rawlinson daycare which was close to where she worked. The father did not agree with this arrangement and threatened to report the mother as he alleged that she had falsely applied for the subsidy as the sole parent supporting the twins.

[82] When the parties separated Danica was attending a local school in Etobicoke, the maternal grandfather who lived in Brampton would come in the mornings to take Danica to junior kindergarten as the mother could not afford before school care and the father was not paying child support. As the mother felt this was not a long term solution in September 2013, she arranged for Danica to attend French immersion at Rawlinson public school and arranged for before and after care with a caregiver who lived nearby. The mother agreed that this arrangement made it easier for the mother as the school and daycare were close to where she worked. The father did not agree with this arrangement as he alleged that it made it impossible for him to exercise his time with the children. He did not approve of the school or that Danica had been moved from her old school and away from friends. He was also not supportive of Danica being enrolled in a French immersion program.

[83] The father criticized that mother's ability to meet the children's educational needs and in particular to help Danica with her French and that he was the parent best able to provide the children with the guidance they needed with respect to their education. The father was critical of the fact that Danica could still not ride a tricycle, had trouble tying her shoelaces and that he had to spend 20 minutes teaching her the difference between her left and right hand and spent the rest of a day quizzing her on this.

[84] Although the father said that in some ways the mother was a good parent as she loved the children and did crafts with them and other motherly things, he was critical of her ability to educate and discipline them. He considered that the mother's ability to educate the children was "below average" and that she put no effort into educating the children. He then conceded that the mother helped Danica with her homework and that no concerns were noted on Danica's report card. But he was concerned about the future and that children need to be taught to get A's and not taught to just get by. He was not satisfied with the mother's efforts and used the example of Danica not being able to ride a tricycle or the mother not ensuring Danica brushed her teeth.

[85] The father described himself as a "great father" and noted that his strengths are his dedication to his children and his ability to teach them. When asked about his weaknesses he testified that he considers himself a disciplinarian and that he can be abrasive and sometimes frustrated with the children. He stated that by the end of a week-end on Sundays it is tough for him to care of the children. He stated several times that the children needed a woman in the home to be a balanced family.

[86] Based on the evidence, I find that the mother has always been the primary caregiver of the children and the parent who made all of the major decisions regarding the children. I find that the decisions made by the mother were child focused and that she is meeting all of their needs. Although the father loves his children and has been involved in their upbringing due to his employment he was and continues to be less available for the children. The father has been critical of almost every decision made by the mother and critical of almost every aspect of her parenting and does not respect her as a parent. I find that the mother has attempted to accommodate the father's time with the children and not interfered with his relationship with the children and has been respectful of his role as a parent.

6. The ability of the parties to communicate and co-operate

[87] The parents ability to communicate and effectively co-operate is best illustrated by the series of text messages before the mother began this court proceeding. This was during the time the parties were attempting to work out a parenting plan and resolve some issues regarding the separation such as the father's demand that the mother prove she had changed her address on her driver's licence, on the 407ETR records and on the car insurance.

[88] From November 13th to 15th, 2012 the father sent the mother 58 text messages regarding these type of issues. Despite the mother asking the father to stop sending texts, he continued and when she did not respond he sent further texts. The texts are demanding and threatening. An example of one of the texts the father sent on November 14th at 7:35 p.m. is as follows:

I will stop texting you after this one FUCK YOU YOU LYING SCANDALOUS FILTHY DIRTY BITCH WHORE I DESPITE YOUR LOW CLASS WAYS AND I HOPE YOU SCRATCH YOUR FACE RIGHT OFF YOU GET NOTHING AND DESERVE LESS AND WHENTHE END COMES YOU WILL HAVE NOBODY TO SAVE YOU EXCEPT ME BECAUSE YOU ARE THE MOTHER OF MY CHILDREN,UNTIL THEN….HAHAHAHAHAHAHAHHAHAHA AHAHAHAHAHAHAHAHAHAH

[89] The father continued with many more texts over the next several days with threats that he would report the mother to the City of Toronto for claiming she was the sole provider for the twins on her application for a daycare subsidy.

[90] When he did not believe the mother's word that she had changed her address on her driving and insurance records, he made comments such as:

Yeah I know you are busy, 24/7 right? I always communicate with you, you answer 30 percent of the time without me making a move in the games you are playing. You need to change your ways now more than ever

The trust issues between us are severe. Your word means nothing to me anymore. Either go to the ministry or go to Service Canada kiosk where they print the paper…. …Either way you have until tomorrow evening to prove it

I don't believe anything you say ever and I am in control of the situation so you better do it

I'm not backing down so do it and be accountable for your actions

Now that it is over and you are disrespectful, you are required to prove you have complied. I've been telling you from the beginning the address much [must] show on a ministry printed card. So answer me are you going to do it or not I'm sick of these fucking games.

[91] There were a further series of 30 text messages from November 18th to 19th, 2012 regarding the access arrangement as the father was upset the mother was late and there was a dispute about when the children would be returned. During this exchange a sample of the text messages sent by the father is as follows:

Your lying about something you disrespected the situation you didn't tell me you're going to be late your being a bitch your deviating your not answering questions directly so now you can pay because I never want to see you or talk to you again

I told you you would never cross me again. I don't want to see you or talk to you after you drop them off until you learn to communicate properly and stop being a liar and a disrespectful person

You could have made the right choice and brought the children here on time but you had to fill your own selfish needs and then you lie about it you're fucking up my life and now you can fuck yourself. This is your last chance what time will you bring those infant seats here? Make the right choice I'm telling you there's going to be consequences if you don't

Due to the constant provocation by you and constant aggravation of our arrangements I am no longer able to see you in person. I am totally losing control of my anger and you're disturbing the harmony of my days with the children…..Do not come to my door except if you have the infant carriers tonight. If you come to my door tomorrow I will call the police. I do not want to see you. I do not want you to harass me. I do not want to lose control if you provoke me and jeopardize my own life.

[92] The night before the urgent motion was to be heard the father sent the mother a long email titled "hear me out" where he threatened that if she did not withdraw the motion and agree to joint custody he would drag out the court proceedings so it would cost her money, that he would never back down and that he would prove she lied and was implicated in filing a false child support agreement.

[93] The mother testified that the father would not stop texting and emailing her and these were typical examples of his threats, demands and accusations all because she was late or he did not like her responses. The mother testified that she feared for her safety, that she felt intimidated by the father, worried about his anger issues and that her anxiety level was through the roof. The mother believed that she needed to go to court as a result of these types of communications, the inability to make appropriate parenting arrangements and the issue of payment of child support. The father quite remarkably testified that the mother was constantly threatening him with court proceedings and he did not see the need as they had arranged a parenting schedule and he told her he would pay child support.

[94] When father was cross-examined about these various text and email messages, he agreed for the most part that they were inappropriate and could be viewed as threatening but he explained they were "part of his strategy", "his tactics" and it was "politics". He never explained quite what this meant but I infer his strategy and his tactics were to relentlessly bombard the mother with text and email messages and file or threaten to file various motions to intimidate or wear down the mother to agree with whatever he wished and further to increase her legal costs.

[95] Based on the evidence, I find that there is no history of the parties being able parties to communicate or co-operate. I find that the father's method of communicating with the mother is to berate, harass, insult, demean and degrade her. It has only been through the intervention of the court that the communication between the parties has been controlled and more appropriate.

7. Events subsequent to the court proceedings

[96] The father threatened the mother before she commenced the court proceedings that he would prove she had lied and thereafter when she would not discontinue the court proceedings he again threatened her.

[97] The father carried out these threats. Shortly after the court proceedings began, the father reported the mother to both the City of Toronto and the Canada Revenue Agency alleging that she had lied about her single status when she applied for a childcare subsidy and that she had falsely filed as being single on her income tax returns. He also reported she had forced him to sign documents to verify her marital status. He also reported that the mother produced in this court proceeding a child support agreement, that he falsely prepared and filed with his trustee in bankruptcy, stating that he owed the mother child support arrears and that he was paying child support of $655.00 per month.

[98] As a result of the father's actions, the mother was investigated with respect to her subsidy and her entitlement to child tax benefits. The mother testified that she was living pay cheque to pay cheque, lost 20 pounds, her subsidy was cut off for a time but it was later re-instated.

[99] The mother felt that she did nothing wrong as she and the father had such an off and on relationship that she was correct in filing as a single person and reporting that she was the sole provider for the children. She was required to pay back somewhere between $2,000 and $4,000 because she was not believed as to the marital status between her and the father and eventually she just gave up and paid the funds required. The mother admitted that she was aware when she signed the child support agreement that the father prepared that it was a fraud on his trustee in bankruptcy. The mother testified that she believed that father reported her as an act of revenge for her continuing the court proceedings.

[100] The father denied that he acted out of revenge but rather testified that he did this for the best interests of the children. He confirmed that he was aware that by reporting the mother she would likely lose her benefits. He also confirmed that he felt he had to report the mother as she was requesting retroactive child support and he needed to prove that they had been together and jointly parented and that he supported the children when they resided together and then when they separated.

[101] However, throughout the relationship the father resided in apartments in the mother's name. He explained that he had a bad credit rating and so the leases could not be put in his name. He either paid no rent or paid whatever he could. The father testified and provided records of payments he made that at times he characterized as rent and other times as child support and other times as loan repayments. What is clear is that there was never any continuity with respect to when payments were made or how much was paid.

[102] The father continued to make veiled threats against the mother and sent what I view as sarcastic and demeaning correspondence to mother's counsel educating her about parental alienation, how she would not get higher child support and repeating time and time again that it was the mother who was the caused all of the problems. In his evidence that father explained that this was also part of his "litigation strategy".

[103] After the initial restraining order was made on November 23, 2014, the mother called the police several times as the father continued to barrage her with his texts and emails but the police would not enforce the terms of the restraining order as in their view the terms were too broad.

[104] When the terms of the restraining order were varied to limit contact to a communication book, the mother testified she was overwhelmed by the father's entries. The father began to dictate to the mother how she should write and what she should write and barrage her with questions and criticisms of every aspect of her parenting. A review of the father's entries corroborates the mother's evidence.

[105] However, over time the mother testified that the father has limited his comments and the father's entries are now shorter and more child-focused. Both parties agreed that the use of the communication book is a workable method for the parties to exchange information about the children. In addition, the parties have sent each other text or email messages when arrangements needed to be changed on short notice. These communications have generally been appropriate.

[106] The temporary orders for access have been made to accommodate the father's changing employment schedules. The father's alternate week-ends from Friday to Monday mornings was made based on his assurance that he could drop the children off at their daycare and school on Monday mornings. In October 2013 the father advised the mother that he had commenced new employment and could no longer drop the children off on Monday mornings. The court order was formally changed on December 13, 2013 to accommodate the father's request to drop off the children Sunday evening. The parties also agreed that minor changes to the access schedule could be made in writing and in advance of the access visits. No other change to the access schedule was requested by the father. But the father has not been exercising his Wednesday overnight access for a considerable amount of time and he has also not been picking the children up from daycare or school. The temporary order of June 13th, 2013 provided for an alternate pick up at McDonald's for emergencies or the rare occasion when the father could not attend at the daycare or school. But this has now become a regular practice. The mother has been accommodating that father by agreeing to pick up the children after daycare and drive them to a McDonald's, which is somewhat inconvenient to the mother and she then waits with the children for the father to arrive. Despite the court orders being changed several times to accommodate the father's work schedule and the father alleging that he had to change or quit several jobs so that he could exercise his access, he has not been able to manage to fully exercise his access with the children.

[107] The mother agreed that the exchanges of the children have been civil and that she no longer fears for her physical safety.

[108] The parents have continued to have other disagreements. The father accusing the mother of not accommodating his access by not agreeing to assume the transportation and refusing to transport Danica to attend ballet classes he wanted her to go to.

[109] The father made numerous reports to the children's aid society from November 2012 to April 2013. The father confirmed that he reported concerns about the mother allowing her friend who has pit bulls to visit the children, that the mother was sending Danica to school sick, that Danica was being manipulated and brainwashed, that Danica was suffering from anxiety and he wanted to know if the society could help him obtain a psychological assessment of her, that the mother was not parenting properly as Danica still did not know how to toilet herself properly and that Chloe has a hernia problem that is not properly being taken care of by the mother. The children's aid society confirmed with the children's doctor and Danica's school that there were no concerns and the file was closed.

[110] The father also confirmed that he was not satisfied with the mother's medical care of Danica when she had a bout of vomiting and that the mother refused to communicate with him regarding the children's medical issues.

[111] There were ongoing disputes as father was upset with the mother as he alleged that she refused to return his property including his company documents. It was pointed out that within four days of being aware of the issues, mother's counsel arranged for the company documents to be returned and the mother signed forms resigning as a director and signing officer of his company. But the father was not satisfied with the documents and similarly on another occasion he was not satisfied with documents the mother prepared when he asked for various travel consents.

[112] There have also been problems with respect to the father's Skype access to the children. The mother testified that she called the father at 7:30 p.m. to accommodate the children's schedule but the father began to dictate to her that he could not always be available and that the order permitted the calls between 7:30 and 8:00 p.m. and that he wanted the calls later and did not believe the children needed to be in bed by 8:00 p.m. The father complained that the mother was interfering with the calls as she had the twins sit on her lap during the calls. The mother testified that she sat the twins on her lap because they would not sit still for the calls but she has stopped doing this. The mother also testified that if the father was going to see the children on Wednesdays she felt the calls should only be once a week.

[113] I find that since the court proceedings have begun although the parties have been able to act civilly towards each other at access exchanges and have abided generally by the terms of the restraining order restricting contact and communication, the level of distrust has not abated. Nor has the father's criticism of the mother's parenting changed.

8. The mother's plan

[114] The mother's plan is essentially to continue the current arrangements. She testified that the children were doing well in her care. Danica has friends at school and is doing well in her school work. She is able to help her with her French at this stage based on her own high school French and feels she will continue to be able to help her by brushing up on her own and with other aids. She agreed that Danica had missed more school than she should have as she kept vomiting or saying she was not feeling well as she wanted to spend time with her grandfather but this seems to now be under control. Danica's report card indicates she is doing well and no concerns were expressed regarding her school work, behaviour or attendance.

[115] The mother works regular hours from Monday to Friday, alternate Saturdays and one Sunday a month. She is hoping to be able to move closer to her work and the children's daycare and school but currently her financial circumstances prevent her from moving.

[116] If the father is unable to pick the children up at daycare or school then she is requesting that the exchange occur at a location closer to her home. She is not agreeable to the father picking the children up at the lobby of her apartment as based on the past she is afraid of conflict.

[117] She testified the twins will be commencing junior kindergarten in September 2015 and she has been told that even though she does not live in the school district they can also attend Rawlinson school as they attend in the daycare at the school. Danica will be able to attend daycare at the school once a spot becomes available and in the meantime Danica will continue for before and after daycare with her current provider.

[118] She has the support of her father and step-mother who see the children regularly and help her as needed.

[119] She is not seeking the father's financial assistance for daycare costs as it is subsidized and currently only costs about $40.00 per month. Currently the children are not enrolled in any extra-curricular activities, but she will be able to arrange for activities at no cost or a small cost in the future as she qualifies for assistance based on her income. She has extended medical and dental benefits through her employment. She is seeking the father contribute to any large dental or medical expenditures that are not covered by the plan or for any other unforeseen special and extraordinary expenses.

[120] The mother has agreed to a final order for child support based on the father's income of $30,000 and child support of $591.00 per month but testified and provided proof that as of September 24, 2014 the father was in arrears of $3,650.54. As a consequent she is sometimes unable to buy the children things and sometimes needs to work overtime.

9. The father's plan

[121] The father's plan is to exercise the current access until September 2015 and then have the children in his care for half of the time either on an alternate week arrangement or some other equal time sharing schedule.

[122] The father testified that this July he obtained a new job as a driver with regular hours from 5:30 a.m. to 5:00 p.m. He testified that his employer was flexible with his hours but he was not able to pick up the children by 6:00 p.m. He is hoping to begin to exercise his mid-week overnight access but was not clear about how he would be able to arrange his work schedule to do so.

[123] Although he was still on probation he expected this job to be permanent. He testified that he expected his income would increase as he was currently not working Fridays and he would shortly be eligible to be in the union which would also increase his income. He expected to earn about $55,000 to $60,000 from this job in the next year and then within 5 years to earn close to $80,000.00.

[124] However, he testified that he was considering a possible job with Brink's Security as he could he earn the same income but work less hours. He testified that for a job in the security industry he needs a license to carry a gun and that the existence of a restraining order would prevent him from obtaining such a license.

[125] The father's plan is to move closer to the area where the children attend school and daycare. He provided a map of the general area where he was planning to move and that indicated the various schools in the area. He testified that he had no plans to remove Danica from Rawlinson school but if she was not doing well in school then there were other schools with better standards in the area. He also testified that the mother had not provided any proof that the twins would be allowed to attend Rawlinson school next September.

[126] The father testified that he had a new partner whose name was Liza but he could not spell her last name. He confirmed that they had only been dating for a few weeks, that she had already met the children and they planned to obtain an apartment together. She was a nanny who already worked in the area where the children attend daycare and school and she would be able to take the children to school in the morning.

[127] If the father had the children for half of the time, he planned to hire his own daycare provider that would help the children with their homework, prepare meals and drop the children off at their activities. In his view the current group daycare does not afford this type of help. When asked by the court, why he had not already hired someone to help him on his access days so he could exercise the mid-week access and keep the children until Mondays on his week-ends, he had no response.

[128] The father also proposed that if he had the children full time then he would apply for a daycare subsidy or hire a nanny but his preference was for a shared parenting arrangement.

[129] The father testified that he considered himself to be the better parent and that if he had the children for half of the time he could compensate for the mother. If the children were in his care for half of the time he could ensure that they ate healthy meals and learnt good nutrition from him. He believed that he was the parent most able to discipline the children and the parent that put more effort into the children's education than the mother. He testified that in the mother's care "the children are just existing and not advancing" and this was frustrating to him.

[130] The father testified that he felt the children had special needs. Both Danica and Chloe had some health issues that required close monitoring and a healthy diet and that Brianna has a motor skill deficiency and has trouble swallowing that could cause her to choke. He confirmed that he felt he was the parent best able to monitor the children's health issues, ensure that they acquired necessary skills and made sure that they performed well at school.

[131] The father confirmed that it was his opinion that it was the mother who was the problem and who had no ability to communicate. He testified that with a parallel parenting arrangement the parties would not need to communicate but if there was a major dispute then they could come to court to resolve the issue. He mentioned several times that a contempt motion could be brought if either party was not complying with the court order.

[132] With respect to travel, the father changed his position about the children not travelling outside of North America until they were older and testified that he agreed the children could travel in any Hague country but that in his view both parents should be required to obtain the consent of the other parent for travel.

[133] Both parties confirmed that they were no longer worried that other parent would abscond with the children.

10.1 Statutory Framework and applicable legal principles regarding custody and access

[134] In determining the issues of custody and access the sole consideration is what is in the best interests of a child. Each case must be decided with a careful consideration of the unique circumstances and needs of the individual child. In determining what custodial orders are in a child's best interest, a court is guided by section 24 of the Children's Law Reform Act and the factors set out in section 24(2). Section 24 provides as follows:

Merits of application for custody or access

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

Best interests of child

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

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

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

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

(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.

Past conduct

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

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

(b) if the court is satisfied that the conduct is otherwise relevant to the person's ability to act as a parent.

Violence and abuse

(4) In assessing a person's ability to act as a parent, the court shall consider whether the person has at any time committed violence or abuse against,

(a) his or her spouse;

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

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

(d) any child.

[135] I have considered all of these factors in reaching my decision.

[136] I have also considered the principle that children should have as much contact with both parents, provided that such an order is consistent with their best interests.

10.2 Legal principles regarding sole, joint and parallel parenting

[137] In this case it is necessary to review these terms as both the mother and father seek sole custody and the father in the alternative, seeks joint custody but in the form of a parallel parenting order.

[138] The term custody refers to decision-making and authority over a child's upbringing. An order of sole custody permits one parent to be responsible for the care and upbringing of a child including making decisions regarding the education, religion, health and well-being of the child. The parent is able to make decisions generally to the exclusion of the other parent.

[139] An order of joint custody requires both parents to be equally responsible for the care and upbringing of a child including jointly making decisions about all aspects of a child's life. This is regardless of where the child resides. Ideally, a child benefits if both parents, despite not being able to get along as partners are still able to get along as co-parents and discuss and agree upon issues that affect the upbringing and care of their child.

[140] The ability of parents to communicate or the inability of parents to communicate is generally the pivotal issue in determining if there should be an order of sole or joint custody. The case law has established that in order for a court to order joint custody there must be some evidence before the court that, despite their differences, the parties can still communicate effectively with each other.

[141] However, the cases have also recognized that just because one party states that the parties cannot communicate does not preclude a court from ordering joint custody where an examination of the past and present relationship indicates that the parties have the ability to behave appropriately with each other in the presence of the child and put their conflict aside for the sake of their child.

[142] On the other hand, 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. There must be some evidence before the court that, despite their differences, the parents are able to communicate effectively with one another.

[143] Parallel parenting is a parenting arrangement that has evolved to deal with high conflict cases where neither a sole custody order to one parent nor a cooperative joint custody order will meet a child's best interests. Some cases have used this form of joint custody as a mechanism to protect the relationship between a child and parent in circumstances where its absence may give license that to the primary parent to marginalize the other parent's role in the child's life. Parallel-parenting orders can take two different forms. A "divided parallel parenting" regime where each parent is given separate areas of parental decision–making, independent of the other parent or a "full parallel parenting" regime where parents are given the right to make major decisions regarding the child while the child is with them without the consent of the other parent.

[144] In V.K. v. T.S., Justice D. Chappel thoroughly reviewed the case law and set out in paragraph 96 of her judgment factors the court should consider in determining whether a parallel parenting regime, rather than sole custody, is appropriate: as follows:

a) The strength of the parties' ties to the child, and the general level of involvement of each parent in the child's parenting and life. In almost all cases where parallel parenting has been ordered, both parents have consistently played a significant role in the child's life on all levels.

b) The relative parenting abilities of each parent, and their capacity to make decisions that are in the child's best interests. Where one parent is clearly more competent, responsible and attentive than the other, this may support a sole custody arrangement. On the other hand, where there is extensive conflict between the parties, but both are equally competent and loving parents and are able at times to focus jointly on the best interests of the child, a parallel parenting regime may be ordered.

c) Evidence of alienation by one parent. If the alienating parent is an otherwise loving, attentive, involved, competent and very important to the child, a parallel parenting arrangement may be considered appropriate as a means of safeguarding the other party's role in the child's life. On the other hand, if the level of alienation is so significant that a parallel parenting order will not be effective in achieving a balance of parental involvement and will be contrary to the child's best interests, a sole custody order may be more appropriate.

d) Where both parties have engaged in alienating behaviour, but the evidence indicates that one of them is more likely to foster an ongoing relationship between the child and the other parent, this finding may tip the scale in favour of a sole custody order.

e) The extent to which each parent is able to place the needs of the child above their own needs and interests. If one of the parties is unable to focus on the child's needs above their own, this may result in a sole custody order, even if that parent is very involved with the child and otherwise able to meet the child's day to day needs.

f) The existence of any form of abuse, including emotional abuse or undermining behaviour, which could impede the objective of achieving a balance of roles and influence through parallel parenting.

[145] In K.H. v. T.K.R. Justice S. Sherr adopted the above-noted factors and added the following further considerations:

1. The likelihood of one category of decision-making conflicting with another (the spillover effect) and the ability of the parents to navigate those conflicts. For instance, it might appear on the surface that there is a clear delineation between medical and educational decisions. However, that might not be the case with two parents determined to fight and perpetuate conflict. If a school recommends speech-language therapy or therapeutic counseling to take place at school, high-conflict parents will likely fight over whether these are medical or educational decisions.

2. Whether the parents have the ability to navigate scheduling conflicts between activities and appointments. Since they are each acting independently in their own sphere of decision making, what happens when both soccer practice and math tutoring are scheduled for the same time?

3. The geographical distance between the parties. Decisions by the non-residential parent are easier to implement if the parties reside close to one another. If the parties live far apart, the residential parent may not be able to take the children to a doctor, tutor, counselor, school or activity (depending on the area of decision-making) chosen by the non-residential parent. If the parents cannot communicate well, the geographic distance between them can create significant conflict and adversely affect the children.

4. The family dynamics. The court must evaluate if a parallel parenting order is more likely to de-escalate or inflame the parents' conflict.

11. Analysis

11.1 Custody

[146] I have reviewed in considerable detail the facts of this case as any decision regarding what parenting arrangements are in a child's best interests are dependent on the factual circumstances and background of the children and the parties. In view of the high conflict between the parties I find that it is important that the father in particular appreciate that the court has considered all of the evidence and his submissions in coming to this decision and in the hope that this trial will end the need for any further litigation between these parties.

[147] Both parents love the children and the children love both of their parents. Further, both parents are doing what they consider best for the children. The children have been described by all of the witnesses as sweet girls who love spending time with each of their parents.

[148] The children's health and educational needs are being met and they are meeting all of their milestones. I find that the children have no special needs despite the father's evidence and concerns about their health and that they are not performing various tasks to his expectations.

[149] However, children require more than love and affection from two caring parents, they have the right not to be subjected to or caught in the middle of conflict between their parents. As the children become older it is inevitable that they will become more aware of the lack of co-operation, the lack of trust and lack of respect between their parents. It is in their long term best interests that they be protected as much as possible from the level of conflict between their parents that has occurred since their birth. Any parenting arrangement must consider these issues and any arrangement must attempt to shield these young children from further conflict between their parents.

[150] In any analysis of what parenting arrangements are in a child's best interest, it is important to initially consider each parent's claim to custody based on the factors as set out in section 24 of the Children's Law Reform Act. If both parents are equally competent and both parents have a strong claim to custody then the next consideration should be whether or not they can jointly make decisions and co-operate. However, if one parent has a stronger claim to custody then it would generally be in a child's best interests to be in that parent's care and have that parent be responsible for decision-making.

[151] In this case, I find that the parents are not equally competent and it is the mother who is the parent best able to meet all of the needs of the children for the following reasons:

a. The mother has been the primary parent since the birth of the children; the father has been involved but not to the extent of the mother and the father was content to leave the children with the mother after each of their separations;

b. The children have remained in the mother's primary care pursuant to the temporary custodial court order and have done well in her care;

c. The mother has provided the children with a stable home, stable and consistent childcare and financially security; whereas the father has changed his residence at least three times since the court proceedings began and has been evicted from two residences, he has not financially provided for the children on a consistent basis since their birth, he has had at least six changes in employment since the court proceedings began, he has not be able to manage his finances and has had to declare bankruptcy;

d. The mother has encouraged and fostered the children's relationship with the father and agreed to changes in the access schedules to accommodate his employment schedule; despite these changes the father has been unable to utilize his court ordered access, requested his week-end access be reduced, and has not been able to pick up the children from daycare or school and has not exercised his mid-week access;

e. The mother has historically made all of the decisions regarding the children's medical care, choice of daycare and choice of school; the father has been critical of all of these decisions but he has not taken any initiative to make decisions and there is no evidence that the decisions made by the mother have not been in the children's best interests;

f. The father has put his own interests above the interests of the children by interfering with the mother's eligibility for daycare subsidy and child tax benefits;

g. The father has caused unnecessary stress and anxiety to the mother by making baseless reports to the children's aid society;

h. The father has introduced the children to his partners even after just dating them for a short time without any consideration of the effect on the children when the relationship ends;

i. The father's parenting style is authoritarian and by his own admission he finds caring for children even on alternate week-ends to be frustrating and difficult;

j. The parents have no history of any ability to communicate; the father is the source of conflict between the parents;

k. The mother is respectful of the father's role in the children's lives; whereas the father is disrespectful and critical of the mother; and

l. The mother's plan for the future care of the children is realistic, child focused and based on a proven record; whereas the father's plan is unrealistic, vague and inconsistent with his past abilities to provide a stable plan for care of the children.

[152] It is necessary to further comment on the father's past conduct. I find that the father has been verbally and emotionally abusive to the mother and that his conduct is a relevant consideration in determining what custodial arrangements are in the best interests of the children. An examination of his text and email messages is sufficient evidence in and of itself of his threatening, mean spirited and demeaning conduct towards the mother.

[153] However, I also rely on the mother's evidence and where it conflicts with the father I accept her version of events. The mother testified in a straightforward manner and did not embellish or contradict herself. She did not respond to some questions that the father asked as they were clearly irrelevant and insensitive and in my view asked to embarrass the mother. The father's evidence was contradictory, self-aggrandizing and misleading. His recollection or interpretation of events was inconsistent and he often mischaracterized events and situations that were not supported by the very documents he relied upon.

[154] I also find this is precisely the type of case where any order that provided the father an opportunity to be involved in decision making would exacerbate the conflict between the parties. The father has shown that he is never content with the mother's responses to his inquiries and that he is relentless in pursuing what he believes to be the proper medical treatment for the children. He is critical of everything the mother does including the food the children eat, what clothes they wear, when they go to bed, their routines, the mother's lack of discipline and her inattentiveness to their education.

[155] Based on this history, I do not accept the father's evidence that he is content that the mother should be responsible for making the decisions regarding the children's medical needs as it is clear that he would always find something to disagree with and an excuse to interfere.

[156] I find that he has asked for the ability to make decisions regarding the children's education as a means of changing the current school that he clearly believes is an inferior school. I find that if he thought one of the children was performing below his standards that it would be a reason to move the children from that school.

[157] As outlined I find that the mother is the parent best able and best suited to continue to make any future decisions for the children and that she will make those decisions focused on the children's best interests. The mother has shown herself to be the parent that is attuned to the children's needs whereas the father has an unnerving obsession with the children's health that is quite concerning and not clearly understandable. The mother accepts the children and is proud of their achievements whereas, the father seems to be more focused on their shortcomings. The father believes that his approach is in the children's long term best interests as it will encourage them to achieve more. However, I have concerns that his approach, as exemplified by his power struggle with the mother to only do things his way will inevitably lead to conflict with his children. The Thanksgiving dinner where the father put so much pressure on Danica to eat to the point where he caused her to cry is just such an example.

[158] I also have concerns that the father throughout his evidence and in his submissions suggested that if there was conflict between the parties that either a contempt motion or further court proceedings was a solution to any impasse in decision making or any non-compliance with court orders. The father also suggested that further court proceedings might be necessary in September 2015 when the twins will be beginning school and when he foresees moving to a shared parenting arrangement. I find that the threat of even further court proceedings and the resultant financial costs to the mother is yet another example of the father's attempts to control the mother and put pressure on her to accede to his wishes.

[159] I have considered in this trial and given both parties the opportunity to present evidence as to what parenting arrangements will be in the children's best interests in September 2015 in order to avoid yet another court proceeding in the near future. I find that it will continue to be in the children's best interests to remain in the sole custody of the mother and that the current access order remain in place even if the father does move closer to the children's current daycare and school, or even if the father is able to make better arrangements to pick up and return the children to their school or daycare or even if the father does have a new partner. Any of these circumstances will only improve the father's ability to utilize the full extent of the current access order and would not be a change in circumstances that would warrant a reconsideration of the orders made at this trial.

[160] Based on the prior history of litigation and in order to attempt to control needless further court proceedings, I find that this is a case that should require the father to seek prior court approval before he should be permitted to initiate any further court proceedings.

11.2 Other parenting issues

[161] I find that with respect to the passports, it is consistent with my finding that the mother be the sole custodial parent that she also be the parent that can apply for and be the custodian of the children's passports. In view of the inability of the parties to communicate and the history of the father's insistence on things being done his way, I find that any such request by the mother would inevitably be met with demands and then the father would not be satisfied with the mother's responses and then the mother would need to turn to the court for assistance.

[162] The father's position that one parent hold one of the children's passports and the other parent hold the other children's passports makes no logical sense and one can foresee situation where the mother wished the release of the passport and the father would put conditions and stipulations in place for the release of the passport as he has done with respect to other situations. For example, despite the mother returning the father's company documents and resigning any control over the company within four days of being requested to do so, the father was not content with the form of the documents and even at the trial in face of the evidence of compliance by the mother he continued to insist the mother had not done what he wanted or not done it properly.

[163] I also find that the mother should not have to obtain the father's consent to travel with the children. There is no evidence to substantiate any concerns that the mother would abscond with the children. There are many examples in the text messages of the father not been content with the form of consent that the mother prepared to permit him to take the children out of the jurisdiction, of the father not been content with the information the mother provided and of him being dissatisfied with her responses to his inquiries. It is easy to envision the countless questions the father will have and stipulations the father will require and the ensuing disagreements regarding any travel arrangements that the mother may wish to make with the children. On the other hand, as the custodial parent, I find that it is appropriate for the father to require the mother's consent to travel with the children so that she can be assured that the father's travel plans are consistent with the best interests of the children. There is no history of the mother being un-cooperative or unreasonable with any of the father's requests.

[164] Both parents will of course be required to provide the other parent with the usual details of their itinerary and contact information.

[165] With respect to the Skype access by the father I agree with the mother that if the father is seeing the children mid-week that such contact should be reduced to once a week. The arrangements for the calls must be focused on the convenience of the children and their schedule and not the father's schedule. The father will need to arrange his schedule accordingly or forfeit the calls.

[166] There have also been continual issues regarding the father's access to the children when one of them is ill. These situations have resulted in numerous email and text messages between the parties. To avoid further conflict regarding such situations, I find that the mother is in the best position to determine if a child is too ill to attend for access. I find that the mother has never unnecessarily curtailed the father's access with the children.

11.3 Restraining Order

[167] The law with respect to the obtaining of a restraining order is set out in section 35 of the Children's Law Reform Act and section 46 of the Family Law Act as follows:

Restraining order

35. (1) On application, the court may make an interim or final restraining order against any person if the applicant has reasonable grounds to fear for his or her own safety or for the safety of any child in his or her lawful custody. 2009, c. 11, s. 15.

Provisions of order

(2) A restraining order made under subsection (1) shall be in the form prescribed by the rules of court and may contain one or more of the following provisions, as the court considers appropriate:

1. Restraining the respondent, in whole or in part, from directly or indirectly contacting or communicating with the applicant or any child in the applicant's lawful custody.

2. Restraining the respondent from coming within a specified distance of one or more locations.

3. Specifying one or more exceptions to the provisions described in paragraphs 1 and 2.

4. Any other provision that the court considers appropriate. 2009, c. 11, s. 15.

Section 46 of the FLA provides:

Restraining order

46. (1) On application, the court may make an interim or final restraining order against a person described in subsection (2) if the applicant has reasonable grounds to fear for his or her own safety or for the safety of any child in his or her lawful custody. 2009, c. 11, s. 35.

Same

(2) A restraining order under subsection (1) may be made against,

(a) a spouse or former spouse of the applicant; or

(b) a person other than a spouse or former spouse of the applicant, if the person is cohabiting with the applicant or has cohabited with the applicant for any period of time. 2009, c. 11, s. 35.

Provisions of order

(3) A restraining order made under subsection (1) shall be in the form prescribed by the rules of court and may contain one or more of the following provisions, as the court considers appropriate:

1. Restraining the respondent, in whole or in part, from directly or indirectly contacting or communicating with the applicant or any child in the applicant's lawful custody.

2. Restraining the respondent from coming within a specified distance of one or more locations.

3. Specifying one or more exceptions to the provisions described in paragraphs 1 and 2.

4. Any other provision that the court considers appropriate. 2009, c. 11, s. 35.

[168] Although much of the case law is focused on concerns about physical safety, the provisions are not limited to only fear of physical safety and can include fear of emotional and verbal abuse and intimidation.

[169] Justice R. Spence in the case of McCall and Res summarized the case law and held that the relevant factors for a court to consider in granting a restraining order are:

− The fear must be reasonable

− The fear may be entirely subjective so long as it is legitimate

− The fear may be equally for psychological safety, as well as for physical safety

[170] I find that when the mother commenced this proceeding and obtained the temporary restraining order she reasonably and legitimately feared for her physical safety. The terms of that restraining order were varied as the father continued to inundate the mother with text and email messages that were harassing and intimidating but because of the broad wording of the restraining order it was not enforceable.

[171] Since the change in the terms of the initial restraining order, the father has complied with the terms and there has been no further police involvement. After some initial problems, the father has used the communication book appropriately.

[172] The mother agreed that she no longer feared for her physical safety but she submits that it is because of the threat and knowledge of the existence of the restraining order that the father has controlled his anger and threatening behaviours. The mother testified that she is worried that without a restraining order the father will revert to his past ways and that she is intimidated by his behaviour and by his physical presence. Many times while the father was cross-examining the mother her fear and anxiety were palpable.

[173] The father has submitted that the existence of the restraining order will interfere with him obtaining a permit to carry a gun for the possibility of then obtaining a job in the security industry. But the father did not provide any evidence that a restraining order would interfere with his application. In his application the father was required to admit that he had filed bankruptcy and had a criminal conviction and he also was required to outline the circumstances of his criminal conviction and ongoing custodial disputes. The only response he received, that was produced at trial, was a request that he submit another reference. Accordingly, I find that there is no basis to conclude that the continuation of the restraining order would interfere with the father's ability to obtain any future employment.

[174] More importantly, I am not convinced that the father would control his behaviour and the means of communicating with the mother if the restraining order was not in place. His long standing history of bullying, intimidating and threatening he mother is still too recent and too concerning to trust that he has changed. I also am concerned that the father has no insight into the impact of his conduct and his messages to the mother and without such insight I find that he is unlikely to be able to self-regulate either his conduct or method of communicating. I find that the restraining order has been effective in curtailing the father's previous harassing and threatening behaviours.

[175] I have also considered if an order pursuant to section 28 of the Children's Law Reform Act would be a sufficient control the father. But I find that such an order would not be a sufficient incentive to prevent the father from reverting to his past pattern of behaviours.

[176] The mother testified that she was not aware that the terms of the existing restraining order prevented the father from attending the children's school for concerts or other events or in the future could prevent him from attending the children's extra-curricular events. The mother was agreeable to changing the terms of the restraining order to permit the father to attend such events.

[177] I find that the mother has a reasonable and legitimate fear for her psychological safety that should be protected by means of a restraining order. The father's direct and indirect communication and his contact with the mother will be limited to the terms of this order.

12. Order

[178] Both parties agreed that in view of the several pre-existing final orders that it would be helpful for the parties if all of the orders including the order made at this trial be consolidated into one order.

[179] Therefore, all outstanding orders shall be terminated and the following final order shall issue:

Children's Lawyer

1. The Applicant shall have sole custody of the children, namely Danica Ferrera Collins, born December 13, 2008, Chloe Leona Collins, born October 1, 2011, and Breanna Leigh Collins, born October 1, 2011;

2. Neither party shall speak negatively about the other party in front of the children, and shall discourage others from doing so when the children are present.

3. The communication between the parties whether by text message, email or in the communication book shall be brief, respectful and related solely to the children with no reference to either of the parties and their activities. Absent an emergency, the parties will not text or email each other more than once a day.

4. In the event that the Respondent is unable to pick up or drop off the children at school or daycare directly, he shall provide notice to the Applicant at least 72 hours in advance either by means of one text message or one email or by writing in the communication book. If the Applicant is able to facilitate the transfer, she shall advise the Respondent within 12 hours by text or email failing which the Respondent shall be responsible for making alternate childcare arrangements with a responsible caregiver to ensure the children are picked up or dropped off at school or daycare.

5. If a child is sick and unable to attend at school or daycare on the Respondent's access days, the sick child is not required to attend at the access visit and may stay in the Applicant's care, at the Applicant's sole discretion. The non-sick children will continue to attend at the access visit. The Applicant shall provide notice to the Respondent as soon as possible about the missed visit including details regarding the diagnosis and treatment plan for the sick child.

6. Any access transfers which do not take place at the children's school or daycare shall take place at the Tim Horton's located at the intersection of Burnhamthorpe and the West Mall in Toronto, Ontario, with the children to be picked up by the Respondent at the beginning of his access period at 6:30 p.m. and returned to the Applicant's care at the end of his access period at 7:00 a.m., or such times as the parties may otherwise agree in writing, including text and email.

7. Should the Applicant move her permanent residence, the access transfer location shall be changed to the McDonald's or Tim Horton's (or other similar location, at the Applicant's sole option) which is conveniently located and geographically close to the Applicant's new residence.

8. On notice to the Applicant, the Respondent may have reasonable Skype or telephone access to the children on Tuesday of each week, to also include Thursday if the Respondent does not exercise access on Wednesday. The Applicant will facilitate such Skype or telephone access by placing the call at 7:30 p.m., with the communications to take place for a reasonable length of time taking into account the ages of the children. The Respondent will contact the Applicant by sending one text or one email on Tuesday and applicable Thursday if he will be available to receive the telephone call or Skype call that day, such notice to be provided no later than 4 p.m. that day.

9. Any intended cancellation of the Respondent's access shall be communicated via the communication notebook, by no later than the preceding access visit. In the event of an emergency, or should an unexpected event arise making such advance notice impossible, the party cancelling the access shall provide as much notice as possible of the cancellation, to be provided by text message or email.

10. There shall be no make-up time for any missed access visit unless the parties otherwise agree in writing.

11. The Respondent shall be permitted to attend any scheduled school event and any extracurricular activities that the children are enrolled in. If both parties attend such events, the parties will remain civil to each other, refrain from conflict, remain focused on the children's activity and not discuss any matter not related to the children.

12. The Applicant shall have authority to travel with the children outside of Canada, or designate another adult to travel with the children to accommodate holiday travel outside of Canada. For greater clarity, the Respondent's authorization for the children to travel outside of Canada is dispensed with.

13. If the Applicant is travelling outside of Ontario with the children, she shall provide the Respondent with written notice of same at least 14 days before the travel commences. The written notice shall include information regarding the travel itinerary, duration, location and emergency contact information for the travel period.

14. If the Respondent wishes to travel outside of Ontario with the children, he shall provide the Applicant with written notice of same at least 14 days before the travel commences. The written notice shall include information regarding the travel itinerary, duration, location and emergency contact information for the travel period. The Applicant shall not unreasonably withhold her consent to the travel, and if the travel is agreed to, the Applicant shall provide the Respondent with a signed travel consent letter.

15. The Applicant shall have sole authority to acquire passports and other government issued identification for the children. The Respondent's consent is dispensed with.

16. The Applicant shall retain possession of all passports for the children. The Respondent shall provide the children's passports to the Applicant if needed for travel purposes, after which the passports shall be immediately returned to the Applicant.

17. If either party wishes to enroll the children in an extracurricular activity which occurs during the other party's parenting time, or seeks financial contribution from the other party for an extracurricular activity for the children, they will seek the other party's consent, such consent not to be unreasonably withheld.

18. The Respondent shall contribute his proportionate share to the prospective section 7 expenses for the children, including but not limited to any uninsured medical and dental expenses and expenses for extracurricular activities for the children for which a financial contribution has been sought and agreed to. The Applicant shall provide the Respondent with a receipt, invoice or proof of payment of these expenses. The Respondent shall then pay the Applicant his proportionate share of these expenses within 7 days if his share of the expense is under $200.00 or within 30 if his share is over $200.00, failing which it shall be enforced by the Family Responsibility Office.

19. The respondent shall not file any further motions to change this order or any new court proceeding in this case, without prior leave of the court, obtained on a 14B motion forwarded to myself, if I am available, through the trial co-ordinator's office. The 14B motion should set out the nature of the proposed motion or court proceeding and the relief sought, the rule or statutory authority relied upon as the basis for such relief, and a concise statement of the merits and any urgency involved. The Form14B motion shall be limited to two pages in length for any proposed motion or court proceeding. I shall remain seized of this matter.

20. A separate order for a restraining order shall issue.

21. Support Deduction Order to issue.

From June 6, 2014 Order:

22. Commencing June 1, 2014, the Respondent shall pay child support to the Applicant in the amount of $591.00 per month for the children, namely Danica Ferrera Collins, born December 13, 2008, Chloe Leona Collins, born October 1, 2011, and Breanna Leigh Collins, born October 1, 2011, in accordance with the Table Amount of child support for three children based upon an attributed annual income for the Respondent for child support purposes of $30,000.00 per year, notwithstanding that his line 150 income is less than this.

23. Arrears of child support shall be fixed in an amount as determined by the Family Responsibility Office as of June 1, 2014. The arrears owed shall be paid to the Applicant Mother at the rate of $59.00 per month, beginning June 1, 2014, until paid in full.

24. Considering that the Applicant receives a subsidy for the children's childcare which covers a substantial amount of the cost, the Applicant shall be solely responsible for the out of pocket childcare expenses for the children, which are incurred in the normal course of the children's necessary daycare or before and after school care, effective January 1, 2014. This order does not contemplate any additional expenses which are incurred by either party picking the child up late from daycare or before or after school care, which shall be borne by the person who incurred the cost. This order is without prejudice to the Applicant's ability to bring this issue back before the court to seek the Respondent's proportionate contribution, without needing to show a material change in circumstances.

25. Child support for each child shall end when that child is no longer a "child" as defined in the Child Support Guidelines.

26. Beginning in the year 2015 and for as long as support is payable, the Respondent shall by June 1st of each year provide to the Applicant a copy of his Income Tax Returns and Notices of Assessment and Reassessment for the previous year.

27. Once a year, if either party asks in writing, the parties may review the quantum of child support in order to readjust the child support payable by the Respondent, in accordance with his income. However, child support for the children shall never be based on an income for the Respondent of less than $30,000.00 per year regardless of whether the Respondent earns less than this amount or is unemployed. Until the parties reach an agreement in writing, the child support payable under this Order shall continue.

From August 15, 2014 Order:

28. The Applicant and the Respondent shall each have parenting time with the children, in accordance with the holiday access schedule which follows. The holiday access schedule shall override the regular access schedule.

a) On an annual basis, the children shall spend Mother's Day Sunday with the Applicant from 10:00 a.m. until the following day Monday when the children are returned to school or daycare.

b) On an annual basis, the children shall spend Father's Day Sunday with the Respondent from 10:00 a.m. until the following day Monday when the children are returned to school or daycare.

c) The children's birthdays and the parents' birthdays shall not require special arrangements and the children will remain with the parent who is caring for them in accordance with the regular access schedule.

d) The regular access schedule shall be extended to include the extra day for the long weekends in February (Family Day), May (Victoria Day), August (Simcoe Day) and September (Labour Day), with the parent who is caring for the children on the relevant weekend to return the children to school or daycare on the Tuesday morning.

e) In 2014 and all even-numbered years thereafter, the children shall be in the Respondent's care from December 23rd at 2:00 p.m. until December 25th at 2:00 p.m. The children shall then be in the Applicant's care from December 25th at 2:00 p.m. until December 28th at 2:00 p.m. In 2015 and all odd-numbered years thereafter, the children shall be in the Applicant's care from December 23rd at 2:00 p.m. until December 25th at 2:00 p.m. The children shall then be in the Respondent's care from December 25th at 2:00 p.m. until December 28th at 2:00 p.m. Should any of the Applicant's Christmas access times with the children coincide with the Respondent's regular access weekend in a given year, make-up time for the Respondent and the children will be arranged between December 28th and December 30th. The balance of the children's Christmas vacation will be in accordance with the regular access schedule, except as provided for in subparagraph f, below.

f) In 2014 and all even-numbered years thereafter, the children shall be with Respondent from December 31st at 4:00 p.m. until January 2nd at 7:00 a.m. In 2015 and all odd-numbered years thereafter, the children shall be with Applicant from December 31st at 4:00 p.m. until January 2nd at 7:00 a.m.

g) In 2015 and all odd-numbered years thereafter, the children shall be with Applicant the duration of the March Break (Monday – Friday). In 2016 and all even - numbered years thereafter, the children shall be with Respondent for the duration of the March Break (Monday – Friday). The regular access schedule will continue to apply to the weekends proceeding and following March Break, such that the parent who is caring for the children over March Break has a total of 7 days (Friday to Friday or Monday to Monday), with the access transfer taking place at school or daycare as the case may be, or such times as agreed between the parties in writing.

h) In 2015 and all odd-numbered years thereafter, the children shall be with Applicant at Easter from Saturday at 7:00 p.m. until Monday at 7:00 a.m. In 2016 and all even-numbered years thereafter, the children shall be with Respondent at Easter from Saturday at 7:00 p.m. until Monday at 7:00 a.m.

i) In 2014 and all even-numbered years thereafter, the children shall be with Respondent at Thanksgiving from Sunday at 2:00 p.m. until Tuesday morning, return to school or daycare. In 2015 and all odd-numbered years thereafter, the children shall be with Applicant at Thanksgiving from Sunday at 2:00 p.m. until Tuesday morning, return to school or daycare.

j) In 2014 and all even-numbered years thereafter, the children shall be with Respondent for Halloween, from after school or daycare until 7:00 a.m. the next day if Halloween falls on a school day, or if a weekend day from 2:00 p.m. until the following day at 7:00 a.m. In 2015 and all odd-numbered years thereafter, the children shall be with Applicant for Halloween, from after school or daycare until 7:00 a.m. the next day if Halloween falls on a school day, or if a weekend day from 2:00 p.m. until the following day at 7:00 a.m. The parent having the children at Halloween will be responsible for supplying their Halloween costumes.

k) Each parent shall have the opportunity to spend two weeks with the children each year, in accordance with the following:

i) The children shall not miss any school without the written consent of the other parent.

ii) Each party shall provide the other with advance written notice of their intention to utilize holiday time in July or August during the children's summer school holidays, with the Applicant to provide notice by April 1st, and the Respondent to provide notice by April 15th.

iii) Each party shall provide the other with advance written notice of their intention to utilize holiday time in December during the children's Christmas school holidays, with the Applicant to provide notice by October 1st, and the Respondent to provide notice by October 15th.

iv) Each party shall provide the other with at least 6 weeks advance written notice of their intention to utilize holiday time at any other time of year than during the children's summer and Christmas school holidays.

v) The holiday time shall be from the Monday to Friday, and shall combine with the parents' weekend as per the regular access schedule, such that the parent who is caring for the children has a total of 7 days (Friday to Friday or Monday to Monday), with the access transfer taking place at school or daycare on the Friday or Monday, as the case may be, or such times as agreed between the parties in writing.

vi) In addition to subparagraph v, once per year, in odd years for the Applicant and even years for the Respondent, the parties have the option to extend their holiday time to include both surrounding weekends (including a long weekend), such that the parent who is caring for the children has at least 10 days (Friday to a week Monday, extended to Tuesday if Monday is a holiday), with the access transfer taking place at the children's school or daycare on the Friday or Monday/ Tuesday, as the case may be, or such times as agreed between the parties in writing. No make-up time will be provided to the non-travelling parent.

From October 7, 2014 Partial Minutes of Settlement:

29. The Applicant and the Respondent may each make inquiries and be given information by the children's teachers, school officials, doctors, dentists, health care providers, summer camp counsellors or others involved with the children. The parties intend this clause to provide each of them with access to any information or documentation to which a parent of a child would otherwise have a right of access. If, for whatever reason, this clause itself is not sufficient (although both parties intend it to be sufficient authority for either of them), the parties will cooperate and execute any required authorization or direction necessary to enforce the intent of this clause.

30. Important information concerning the health, education or welfare of the children or any necessary communication between the parties concerning the children shall occur using a communication notebook to travel back and forth with the children to and from access visits.

31. In an event of a medical emergency involving any of the children, communication between the parties shall be by text message or email to the other parent, to include the nature of the medical issue, whether medical treatment is required, and the name, address, and contact details of the medical professional providing such treatment.

32. Each party shall provide to the other sixty days advance written notice of any intended change to his or her address, with complete new address to be provided as soon as possible, but prior to the move. Any change to either party's telephone number or email address is to be communicated by him or her to the other immediately following such change. This information shall be provided by way of the communication notebook.

33. Neither party shall plan travel with the children during the other party's scheduled time with the children, unless that other party consents in advance, in writing, with such communications to take place in the communication book.

34. The Respondent shall have access to the children as follows (the "regular access schedule"):

a) Alternating weekends from Friday, with the children to be picked up from their daycare or school in the afternoon, following the school dismissal bell but prior to the close of the daycare, until Monday morning, to be returned to their respective daycare or school prior to the commencement of the morning classes or programs.

b) Every Wednesday, with the children to be picked up from their daycare or school in the afternoon following the school dismissal bell prior to the close of the daycare, until Thursday morning, with the children to be returned to their respective daycare or school prior to the commencement of the morning classes or programs.

35. Any intended cancellation of the Respondent's access shall be communicated via the communication notebook, by no later than the preceding access visit. In the event of an emergency, or should an unexpected event arise making such advance notice impossible, the party cancelling the access shall provide as much notice as possible of the cancellation, to be provided by email or text message.

36. Either party may register the child(ren) in extracurricular activities without the consent of the other parent provided that:

a) The activity takes place during their own parenting time and does not interfere with the other parent's parenting time; and

b) They are not seeking the financial contribution of the other party.

37. The proportionate sharing of the children's other section 7 expenses is 60% to the Applicant and 40% to the Respondent, based on the Applicant's income of approximately $40,000.00 and the Respondent's imputed income for child support purposes of $30,000.00.

[180] As the Applicant mother is the successful party, she is presumed to be entitled to costs. If the issue of costs cannot be settled, counsel for the Applicant shall within 14 days serve and file a brief written outline of her costs submissions not to exceed 3 pages with a Bill of Costs and any Offer to Settle to be attached. The Respondent father shall within 14 days, after being served with the Applicant's costs submissions, serve and file a brief written outline of his response, not to exceed 3 pages and to include any claim for costs due to the Applicant's withdrawal of her claim for retroactive child support. Applicant's counsel can submit, within 7 days of receiving the Respondent's cost submissions, serve and file a brief reply, not to exceed one page, with respect to the Respondent's claim, if any, for costs against the Applicant.

Released: October 29, 2014

Signed: "Justice Roselyn Zisman"