Court File and Parties

Court File No.: FO-16-91598 Date: June 9, 2020 Ontario Court of Justice

Between:

THOMAS JAMES TARKOWSKI Applicant

— AND —

LINDSEY VICTORIA LEMIEUX Respondent

Before: Justice Penny J. Jones

Heard on: December 16, 17, 18, 19, 20, 2019 and January 8, 14, 17, 28, and 31, 2020

Released on: June 9, 2020

Counsel:

• Glenda Perry, for the Applicant
• Lisa Hayes, for the Respondent

Judgment

JONES, P. J., J.:

Introduction

[1] This is a custody and access dispute between the two parents of Avery Mae Lemieux-Tarkowski (Avery), born […], 2013, both of whom are seeking an order for sole custody with sole decision-making power on all incidents of custody and access.

[2] Initially, the Applicant (father) requested, in the alternative, an order for joint custody or joint custody in the form of a parallel parenting arrangement in his pleadings and in his opening submissions, but in his written closing submissions he abandoned such a claim, presumably because he felt that such an arrangement would be unworkable given the evidence, and as such, would not be in the child's best interests. The Applicant father, in his reply factum asserted that, "Neither Lindsey nor Thomas is seeking a joint custody order or a parallel parenting order." Further, although the father's draft order was written using the term custody, the father indicated that he would prefer that any order I make be in the language of parenting arrangements and decision-making, rather than in the language of custody and access – language, which he says, has become associated with winners and losers.

[3] The trial evidence was heard over a ten-day period. When the evidence portion of the trial ended, the court requested that the parties serve and file written closing submissions and a memorandum of fact and law; time lines for the serving and filing of the closing submissions and each party's memorandum of fact and law were agreed to by the parties.

[4] Between the ending of the evidence portion of the trial, and the dates set for the receipt of the submissions, a state of emergency was declared in Canada due to the Covid-19 pandemic. When I received the initial closing submissions, I noted, that although both parties had extensively canvassed the facts, neither party had provided a memorandum of fact and law. As well, it was unclear to me whether the father was still seeking a joint custody or parallel parenting arrangement as no mention of such a proposal was contained in the submissions received. Given the state of emergency and concerns raised by the pandemic as to public safety and the need to restrict public gatherings, I communicated with the parties in writing seeking clarification as to the father's position on the custody issue, and repeating my earlier request that the parties provide the memoranda of fact and law. Having received clarification from the father as to his position and the memoranda of fact and law requested, I am now in a position to decide the issues outstanding between the parties.

Position of the Parties and Orders Sought

The Applicant Father's Position

[5] The father is seeking an order that Avery be in his custody and that she have her primary residence with him and his wife Shannon Sunega and their daughter (Avery's half-sister) Tasia Faye Tarkowski, born […], 2018. The father and his family currently reside in Orangeville, Ontario, having moved from Toronto in April 2018.

[6] The father proposes:

"that he will have custody of Avery. He seeks an order that he be allowed to make major decisions about Avery's education, health care, and religion, culture, language, spirituality and/or cultural events and any other major decisions, and keep Lindsey informed of those decisions. At least 45 days before making a major decision, he will advise Lindsey of the nature of the decision to be made. This will be done in writing (by email or by Our Family Wizard). Lindsey shall respond in writing within 15 days and provide her input/suggestions. After considering Lindsey's input, he shall make the decision and advise Linsey (in writing by email) of the decision that he has made."

[7] As Avery is currently in the temporary custody of her mother who resides in the west end of Toronto, his plan would require the child to change schools and move from the neighbourhood in which she has lived, and in which she has attended day care and school since 2016. The father asserts that Avery currently spends alternate weekends, and holidays in Orangeville, and would not be significantly impacted by such a move, given her familiarity with his current home.

[8] The father proposes that the mother share parenting time on alternate weekends, from Friday evening to Sunday evening and three evenings over a two-week period on fixed days agreed by the parties from 4 p.m. to 7 p.m., with the father being responsible for all transportation. The father would be agreeable to the mother delivering the child to school on Monday morning but is not proposing this arrangement given the fact that the mother does not currently own a vehicle. As well, the father is prepared to consent to an order that would divide all statutory holidays equally between the parties on an even/odd year arrangement, and to an equal division of the school summer vacation, on an alternating week schedule.

[9] He is prepared to consent to an order that would require him to pay to the mother $360 per month to be applied to an Uber account that could be used by her to come to Orangeville twice per month so that she might attend parent-teacher meetings or extra-curricular activities, or simply to spend time with Avery after school or for an entire day on PD days.

[10] If the child is in his primary care, he will not be seeking any monthly child support payments from the mother at this time.

[11] As well, his proposal is quite detailed as to travel, and medical and other decision-making issues. I do not intend to reproduce the entire proposal at this time but may make mention of particular sections of the proposal, as needed.

Respondent Mother's Position

[12] The mother is seeking that the temporary custody order in her favour be made final. She proposes that the father have access to the child on a two-week rotating basis, with the father having access to the child from Thursday after school until Sunday evening in one week, and for one overnight in the second week, preferably Thursday, with drop off at school the following morning, or at her home, if there is no school. (This proposal was adjusted as the trial unfolded.) As well, she is agreeable to a sharing of statutory, and school holidays equally, on terms similar to the father's proposal.

[13] As was the case with the father's proposal, the mother's proposal is quite detailed as to how such issues as communication between the parties, mobility, child's medical care and treatment, travel, and extra-curricular activities etc. should be resolved. I do not intend to reproduce the exact terms she proposes, but may do so, when and if the need arises.

[14] The issue of child support was settled part way through the trial. The father agreed to quantify the arrears of child support owing (as past monthly child support payments had not always been made in accordance with the child support guidelines), to set a repayment schedule, and to fix on-going child support in accordance with the child support guidelines.

Procedural History

[15] The Applicant father began this proceeding by application dated September 22, 2016. In that application, he sought an order for joint custody, child support, access, an order for a declaration of parentage to Avery Mae Lemieux and for an order to be added as a parent to the registration of birth and to have his last name added to the child's full legal name as it appears on the registration of birth.

[16] Justice Carolyn Jones was assigned as the judicial case manager.

[17] On January 4, 2017, the court made the following temporary without prejudice orders on consent:

1. that the father pay child support based on the father's annual income for guideline purposes of $60,000; included in the order was an order for section 7 expenses.

2. that the mother shall put the father on the birth certificate for the child.

3. that, pending further order of the court, Avery's primary residence shall remain with the mother.

4. that the matter be referred to the Office of the Children's Lawyer (OCL) requesting a section 112 report under the Courts of Justice Act (R.S.O. 1990, c.C.43 as am.)

[18] The referral was accepted by the OCL, and Mr. Jared Norton was assigned to prepare a report. On May 24, 2017, a report was forwarded to the Court. In that report, Mr. Norton reviewed his findings, and he recommended that the mother be granted custody. He also recommended two possible access regimes, one of which was ultimately adopted by Justice C. Jones and incorporated into her interim order. The option she selected provided that the father have access on alternate weeks from Thursday after daycare/school to Sunday evening on a bi-weekly schedule, with access in week two of the schedule for one overnight midweek, if it could be accommodated. The report also made other detailed recommendations as to communication between the parties, decision making and transitions, some of which were incorporated by Justice C. Jones into her temporary order.

[19] Upon receipt of the report, the father filed a dispute, and, in that dispute, he made a number of claims, including the claim that the clinician, in making the recommendations he did, did not properly consider the impact on the child's best interests of the mother's mistrust of the medical system, which had resulted in her failure to take the child to a doctor for three years and in her refusal to have the child immunized.

[20] The Office of the Children's Lawyer investigated. In the Addendum subsequently filed, the original recommendation as to custody and access was maintained, however, the report was amended to include a clear admonition to the mother that she must find a suitable paediatrician or family doctor and take the child to the doctor for regularly scheduled well checks as recommended by the doctor, and that she must generally follow the doctor's recommendation to ensure that Avery receives proper medical care. The Addendum contains a caution to the mother that if she does not follow through on providing medical care to Avery, the court may step in in the future to grant the father decision-making authority over the child's medical care, which "would result in changing the custody arrangement from sole custody to the mother to a parallel parenting custody arrangement."

[21] Two contested motions were heard. On August 28, 2017, Justice C. Jones decided a contested temporary custody and access motion granting temporary sole custody to the Respondent mother with specified access to the Applicant father. This order included provisions relating to issues of decision making on medical, and dental issues on terms similar to the recommendations contained in the OCL report.

[22] The second argued contested motion related to the father's right to access on the first week of school in 2019. The mother brought this motion returnable September 4, 2019 seeking to limit the father's access on the first week of school. Avery had just returned from a two-week access period at her father's home, and the mother sought some uninterrupted time with the child to help her settle Avery into grade one. The mother was successful in obtaining an order that the father, who had picked up the child from school the day before the motion, return the child to the mother, and for him to forgo access for one week before regular access would resume. The balance of the motion relating to child support, (which had not been adjusted since January 2017), was adjourned to September 26, 2019 for continuation.

[23] On September 26, 2019, the parties presented the court with a draft order resolving the child support issues in accordance with the Child Support Guidelines.

[24] A trial management conference was held. Disclosure orders were made and the matter was set for trial.

[25] The trial commenced before me on December 16, 2019. Both parties were represented at this point, although, at times during the litigation process, one or both of the parents had been self-represented, a fact which may help to explain why the matter took so long to become trial ready.

Background and Findings of Fact

[26] The Applicant father is 38 years old and the Respondent mother is 37 years old. They met in 2012 at a drug rehabilitation centre, and shortly after they met, the mother became pregnant with their child.

[27] They started living together in June 2013, just before Avery's birth, and separated on a final basis on November 24, 2015.

[28] The parties are the natural parents of Avery Mae Lemieux-Tarkowski (Avery), born […], 2013. Avery is the first child of both parents. Other than for a short period starting in July 2014, the child lived with both parents until the parties separated. After the parties separated, the child has lived primarily with her mother.

[29] In November 2015, the mother left the father, taking Avery with her to a women's shelter. It is her position that the Applicant was physically, verbally, financially, and emotionally abusive and controlling towards her, which was the cause of the breakup.

[30] The Applicant agrees that his relationship with the Respondent was toxic. He acknowledged to Jaren Norton, the clinician engaged by the Office of the Children's Lawyer, that "bad thing happened." He told the Mr. Norton that, "both he and Ms. Lemieux struggled with addiction issues which contributed to conflict, and that both he and Ms. Lemieux were responsible for the conflict." He further expressed that, "Ms. Lemieux was also abusive and controlling at times."

[31] Neither party currently is alleged to be abusing drugs or alcohol.

[32] The father admitted to Mr. Norton that be "began using alcohol and marijuana as a teenager, and then began to use other substances." He acknowledged that there was a time where 'he used cocaine and opiates, as well as rave and designer drugs, and then ketamine." He credits becoming a father as the reason he finally succeeded in achieving sobriety in April 2015. I accept his evidence that he has been sober for five years.

[33] The mother discussed her drug use with Mr. Norton. She acknowledged to him that she began smoking marijuana and consuming alcohol when she was 15 years old. However, her problem with drug addiction began after a near-fatal car accident in 2005 in which she suffered serious physical injuries requiring multiple surgeries; it was at this time that she became addicted to her pain medications, namely, Oxycotin and Percocet. It is as a result of this accident, and the serious injuries she suffered, that the mother receives a pension from the Ontario Disability Support Program (ODSP). The mother testified that she is no longer addicted to Oxycotin and Percocet medication, and has successfully completed a 12-step program. I accept her evidence that she has been sober for approximately five years.

[34] After the mother moved to a women's shelter in November 2015, the father began to exercise access to the child every weekend. According to the mother, she agreed to this temporary access arrangement for a number of reasons, including the following: it was not completely clear that she and the father would not reconcile; she had many tasks to complete and she needed the time to complete them on the weekend; she did not want Avery to have to spend her weekends at the shelter, which was a chaotic place on the weekend, when she could spend time with her father and his family.

[35] In April 2016, the mother was successful in obtaining subsidized housing for herself and Avery. They moved to a two-bedroom apartment located at […] in Toronto where they still call home.

[36] Avery began attending the Dandelion Daycare Cooperative one day per week in January 2016 and continued with that program until September 2017 when she commenced school. This daycare is a parent run daycare located close to the mother's home. The mother testified that she chose this daycare because it espoused a philosophy that was consistent with her values. She said that the focus of the daycare was on social justice and diversity/inclusivity. As a requirement for acceptance, the mother agreed to do one duty day per month. For his part, the father agreed to pay, first all of the monthly fee, then, after the support order dated January 4, 2017, he paid most of the monthly fee, calculated on a pro-rated basis.

[37] Since September 2017, Avery has been attending Grove Community School, which is an alternative school run by the Toronto Public School Board. Described by Ms. Ronda Rindone, Avery's grade one teacher, as an "incredible place, dedicated to community-building, with amazing indigenous families. The pillars are social justice…. the creation of green practises for the world … and world sustainability." The mother chose this school on the basis that it fit with her world philosophy. The father testified that he was not consulted, however, I note that the temporary order of Justice C. Jones dated August 28, 2017 provided that Avery "shall be enrolled in a school selected by the Respondent Mother for the school year commencing September 1, 2017" so I can only assume that this was an issue that needed to be settled by the court just days before the child was set to commence junior kindergarten.

[38] The Respondent mother is currently unemployed, supported on ODSP. The mother would like to return to the workforce. She is attending, as a part time student, the Ontario College of Art and Design. She has been involved in volunteer work at the YMCA running Cyclefit classes there. She has also taken training courses to become a Reiki practitioner and a yoga instructor to children (in this regard, the mother indicated that she has taught yoga classes at Avery's daycare and school). She testified that she volunteered at Avery's school on a regular basis, and went on field trips with Avery's class, when needed.

[39] The mother advised the court that she has had some recent health challenges that have slowed down her return to the workforce. She said that she had been involved in two bicycle accidents, one in 2017 and another in 2018 which activated her previous injuries from her accident in 2005 and which has required regular physiotherapy sessions. As well, in 2018, she underwent surgery to remove a stage 2 melanoma. She indicated that she hopes to return to the workforce once this litigation has concluded.

[40] The Respondent mother reported that she suffers from anxiety which she attributes to past trauma and to this litigation and is currently in therapy since 2019 with a medical doctor who is also a psychotherapist.

[41] Avery enjoys her time with both her mother and her father.

[42] Avery has a close attachment to her mother as noted by Mr. Norton, her teacher Ms. Rindone and Dr. Radivojevic, Avery's doctor, all of whom testified to this fact. Avery has many friends from school and in the community with whom she spends time when she is with her mother. According to her mother, she is a popular child who is frequently invited to birthday parties and play dates. She and her mother have attended a number of activities through the school, such as climate change marches, LGBTQ2S events, fundraiser, Black Lives Matter events, gender diversity week, and indigenous community events. She attends an art and drawing class at the local community centre and is involved with a number of clubs at school. She has a hamster that she loves.

[43] When Avery is with her father, she spends her weekends in Orangeville with her step mother and her half-sister, Tasia. Their home in Orangeville is a single-family home with a separate bedroom for Avery located in a family friendly neighbourhood. Avery, according to her father, has made many friends in Orangeville with whom she spends time. She attends a number of extra-curricular activities there, such as gymnastic classes, and dance classes. She likes to bike and fish. She shares a love of horses with her step mother, and is attached to the family dog, Daisy. She has gone on a number of trips with her father, her step mother and her sister, including trips to her grandmother's cottage. When the father exercises access on the Monday nights and Thursday nights, she and her father, with her step mother and baby sister, sleep at her grandmother's home in Toronto, and occasionally at her grandfather's home in Toronto, in order to avoid the one hour plus drive each way to and from Orangeville. When with her father in Toronto, she attends Sparks and swimming classes. If Avery is not placed with her father in Orangeville, I was advised that, once Shannon returns to work in September, Shannon and Tasia will remain in Orangeville on the school day overnight access periods, and she and her father will continue overnights at her grandparents' homes. By all accounts, Avery shares a close relationship with her step mother, her sister, her father and his extended family.

[44] The Applicant father is employed as an aircraft mechanic and currently earns $100,000 per annum. Shannon is a grade school teacher, currently on maternity leave, who is scheduled to return to work at a local public school in Orangeville in September 2020. The Applicant proposes that Avery be enrolled in his wife's school in September. Tasia is scheduled to attend the daycare attached to the school and, if Avery comes to live with her father, Ms. Sunega would be able to drive both children to and from school/daycare. As the Applicant's shift ends at 2:15 p.m. and it takes him about one hour to travel from Mississauga to Orangeville, he would be at home about the same time that school is let out and would therefore be available to assist Shannon with parenting duties.

Avery

[45] By all accounts, Avery is a happy, beautiful, engaging six-year-old, who is developing well in all areas of her life. She enjoys her time with her mother and with her father and appears to be well bonded to both. She has a rich and varied experience with each parent and appears to be benefiting from exposure to both sides of her family. Avery's teacher, Ms. Ronda Rindone described her as a child with no academic issues, and who is now performing in the excellent range. She identified no concerns relating to Avery's emotional well-being, or with her self-regulation. She described Avery as very positive and confident, who is prepared to take academic risks, and who loves learning, art and singing. She said that Avery is well liked, has friends and is generally very steady and happy every day. Both her mother and her father told the court that Avery has many friends and enjoys extra-curricular activities in both their homes. Dr. Radivojevic, Avery's doctor, testified that she is seeing Avery grow into a beautiful girl who is, "very pleasant, very nice and one who shares a caring, supportive relationship with her mother." She testified that she observed nothing that would concern her about Avery's emotional health.

[46] Both the mother and the father testified that they were somewhat concerned that their separation and their conflictual relationship may be negatively affecting the child. The mother testified that as the trial drew near, the child has commented that she "hated herself" and has begun to exhibit perfectionist thinking. (She gave an example of Avery ripping up her art work because she felt it was not perfect.) She testified that whenever she noticed that Avery was in one of these moods, she would sit her down and talk it out, and the mood would pass. The father expressed concern that, on occasion, the child would take some time to warm up to him when he first picked her up for access but testified that he had never heard the child say that she "hated" herself or seen her rip up her art work. The father noted that Avery appeared to have some problems with self-esteem and with night incontinence.

[47] On this last point, there was some evidence from the teacher about Avery asking to be excused to visit the washroom on an unusually frequent basis. The mother testified that she had taken Avery to the doctor who looked into this issue. When the doctor testified, she told the court that she had been consulted about the teacher's concerns, but, as there appeared to be no physiological reason for this problem, she suggested that it may be stress related. As well, I heard that Avery had exhibited some stress around transitions from one home to the other, especially when she was in senior kindergarten as reflected in her senior kindergarten report card. However, I concluded that the weight of the evidence supported a finding that Avery was generally doing well at school, in the community, and in both her parents' homes, and that these concerns should be reviewed once the litigation is over, and the situation between her parents will have hopefully settled down.

Issues

1. Each parent has proposed a custody and access regime for Avery. Which proposal is in Avery's best interests?

2. Is this an appropriate case to use the language of parenting time/decision making rather than custody/access in any order I may make?

Legal Considerations

[48] Custody and access orders are important to the parties and to the welfare of their children. Custody and access orders define rights and responsibilities, dictate how decisions will be made, determine where a child will live, and when that child will see his or her other parent, to name but a few of the issues commonly dealt with in such orders. These orders are especially important in high conflict situations, as it is often the case that the parties involved in conflictual separations are unable to agree how even the smallest issue should be decided, let alone agree on a comprehensive parenting plan going forward. When parents can not agree on these important issues, it falls to the court to impose a parenting regime that is clear, detailed and understandable, and that will hopefully bring some closure to, what must seem to the parties, an endless dispute. Justice A. Pazaratz in M.A.L. v. R.H.M., 2018 ONSC 1597 para. 114, put it succinctly when he wrote, "Family court cases create a huge drain, not only financially but emotionally. They sap the joy out of family life for every member of the household."

[49] This contested application for custody is brought under the Children's Law Reform Act, which is an act intended to be a comprehensive scheme for dealing with parenting rights and obligations, including enforcement of those rights and obligations post separation. This parenting scheme begins with the proposition that, except as provided in the Act, both parents are equally entitled to custody of a child. When parties separate, a parent's entitlement to custody, but not access, is suspended if he or she consents or acquiesces to the child residing with the other parent. If there is no consent nor acquiescence to the child residing with one parent or the other, an application to the court may be made to determine this issue.

[50] The Act provides that a person "entitled to custody of a child has the rights and responsibilities of a parent in respect of the person of the child and must exercise those rights and responsibilities in the best interests of the child." (section 20(2)). The Act provides that, "the entitlement to access to a child includes the right to visit and be visited by the child and the same right as a parent to make inquiries and to be given information as to the health, education and welfare of the child." (section 20(5))

[51] The terms custody and access have been judicially considered in many reported decisions. Justice D. Chappel, in V.K. v T.S., 2011 ONSC 4305 on p. 16, wrote,

"The term "custody" refers to parental decision-making and authority respecting a child. As the Supreme Court of Canada stated in Young v Young (1993), 49 R.F.L.(3d) 117 (S.C.C.), para. 243 "the custodial parent is responsible for the care and upbringing of the child, including decisions concerning the education, religion, health and well-being of the child."

[52] Justice L'Heureux-Dube discussed the more limited role of the access parent in Young v. Young, [1993] 4 S.C.R. 3 p.7, when she wrote,

"The right of access is limited in scope and is conditioned and governed by the best interests of the child. The legislation makes it quite explicit that only the best interests of the child as it is comprehensively understood should be considered in custody and access orders. The role of the access parent is that of a very interested observer, giving love and support to the child in the background. He or she has the right to know but not the right to be consulted. Access rights recognize that the best interests of the child normally require that the relationship developed with both parents prior to the divorce or separation be continued and fostered. The right of access and circumstances in which it takes place must be perceived from the vantage point of the child. ….."

[53] The rights and responsibilities of the custody and access parent reflected in a court order are rarely as clear cut as these definitions would suggest. Section 20(7) provides that "Any entitlement to custody or access or incidents of custody under this section is subject to alteration by an order of the court or by separation agreement." This section has been interpreted by the courts as providing clear authority to deal separately and specifically with "incidents of custody" beyond a mere residential schedule for where children will reside on a day to day basis. See Cox v. Stephen, [2002] O.J. No. 2762 (Ont. S.C.J.), aff'd , [2003] O.J. No. 4371 (Ont. C.A.). A custodial parent's power to make a final decision on an issue affecting the child is not absolute and can still be challenged by the access parent under section 21 and section 28 of the CLRA. If the court is satisfied that the decision challenged is not in the child's best interests, the court can substitute its decision for the decision made by the custodial parent.

[54] Section 24 of the Children's Law Reform Act, (R.S.O. 1990, c. C. 12, as am.) (the CLRA) instructs the court to determine custody and access in accordance with a child's best interests. As well, section 24 provides a non-exhaustive list of decision-making criteria to be considered in making a custody and access order. Section 24 of the Act reads as follows:

24. (1) MERITS OF APPLICATION FOR CUSTODY OR ACCESS

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).

(2) BEST INTERESTS OF CHILD

The court shall consider all the child's needs and circumstances, including:

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

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

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

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

(b) the child's views and preferences, if they can reasonable 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) any familial relationship between the child and each person who is a party to the application.

(3) PAST CONDUCT

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.

(4) VIOLENCE AND ABUSE

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.

(5) SAME

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

[55] This non-exhaustive list of criteria is helpful in reminding the court of factors that should be considered in reaching a decision, however, custody and access decisions are, by definition, fact driven and particular to the individual child and, as such, will involve an exercise in judicial discretion in each case. As Justice Bastarache wrote In Van de Perre v. Edwards, 2001 SCC 60, [2001] 2 S.C.R. 1014 at para. 13,

"Custody and access decisions are inherently exercises in discretion. Case-by-case consideration of the unique circumstances of each child is the hallmark of the process. This discretion vested in the trial judge enables a balanced evaluation of the best interests of the child and permits courts to respond to the spectrum of factors which can both positively and negatively affect a child."

[56] Counsel for the Applicant father urged the court to consider the maximum contact principle and to find that the Respondent mother should not be granted custody as she is unwilling or unable to abide by this important principle so as to foster his relationship with the child. Although this is a case to be decided under the CLRA and not the Divorce Act (R.S.C. 1985, c. 3 as am) where the maximum contact principle is set out in section 16(10), this principle has been held to apply in custody and access disputes under the CLRA. see A.C.W. v T.M.P., 2014 ONSC 6275 (Ont.Div.Ct.) at para. 30.

[57] Section 16(10) reads as follows:

(10) In making an order under this section, the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact.

[58] In para. 35 of Lemon v. Lemon, [2018] O.J. No. 4306 (O.C.A), the court ruled that it is not an error in law to not specifically refer to the maximum contact principle in deciding a custody case because,

"the CLRA's best interest analysis already contemplates the importance of the parental bond and maximum contact through the best interests lens. That is, s. 24(2) of the CLRA explicitly requires the court to consider familial relationships—s. 24(2)(h)—as well as love, affection and emotional ties—s. 24(2)(a)—in making custody and access orders that are in the children's best interests."

[59] Neither party is currently seeking joint custody or a parallel parenting order. In this case, both parties are seeking full custody and sole decision-making power, no doubt on the basis that any sharing of decision making between the parties would be unworkable given the high conflict nature of the relationship – with the mother blaming the father for this state of affairs and the father blaming the mother. Accordingly, I have not considered the case law on joint parenting and parallel parenting as I agree with the parties that given their history and their inability to communicate effectively, joint custody would not be recommended or appropriate. As well, neither parent is seeking an order for a parallel parenting order. Both parents are of the opinion that only one parent should be entitled to make decisions, and each is urging the court to decide in his or her favour. I do agree that, given their level of conflict, their poor communication history and the distance between their respective homes, it would be almost impossible to vest in the non-residential parent decision making power over matters such as medical, dental, and education where the doctor, dentist or school would, of necessity, be located in the residential parent's neighbourhood. I think they both recognize that in this case, a parallel parenting arrangement would only make matters worse. Justice Sherr in K.H. v. T.K.R., 2013 ONCJ 418, reviewed the law on full parallel parenting and divided parallel parenting and applied the law to the facts of his case and wrote in para 58,

"All of these considerations lead this court to the conclusion that courts should be very careful before granting parallel-parenting orders in high-conflict cases. They are rife with potential complications that could have the inadvertent effect of escalating conflict and destabilizing children. There is also the risk that important decisions regarding children will not be made in a timely manner if there is a conflict over who is entitled to make that decision. It is not in the best interests of children to paralyze the decision-making process about them."

Language of Parenting/Decision Making

[60] The Respondent father urged me to use the words "parenting time and decision making" instead of employing the terms "custody and access" to describe the parenting arrangements in this case. He noted that this description would be in line with the wording in the Divorce Act pursuant to the amendments that are scheduled to take effect July 1, 2020. He argued that the terms "custody and access" suggest that there are winners and losers in court ordered parenting arrangements established post separation, and that categorizing one parent as a winner and one parent as a loser is not helpful in fostering cooperative parenting going forward.

[61] Without weighing the merits of his position, I am not prepared to use the terms "parenting time/decision making" in the order I will make in this case. I say this for a number of reasons, most importantly because this application is being heard under the CLRA, and the CLRA, unlike the Divorce Act, has not been amended to delete the terms custody and access, nor has it been extensively redrafted to give effect to the new regime adopted under the Divorce Act.

[62] In order to insure clarity and enforceability of any order I make, I intend to use the language of the statute. Enforceability of this order may become an issue in the future.

Discussion

[63] This was a ten-day trial. Fourteen witnesses were called including two doctors, two dentists, the child's teacher and the OCL clinician, as well as the parties. At the end of the trial, lengthy written submissions were filed.

[64] I have reviewed all the evidence adduced and the arguments made by the parties relating to these matters. I do not intend to make reference to all the evidence, nor all the arguments. I want to assure the parties that, just because I do not refer to a specific piece of evidence or to a particular argument, does not mean that I have not weighed that piece of evidence, nor considered that argument.

[65] In all the circumstances and for the following reasons, I have decided to grant the mother sole custody of the child, with specified access to the father as set out in the draft order attached. With one exception, I am granting the mother sole parental decision-making authority on all issues respecting the child, including the power to make decisions concerning the education, religion, health, and well-being of the child. The one exception I am making relates to the power to decide on whether Avery receives on-going vaccinations, including whether Avery will be vaccinated against Covid-19 when and if such a vaccination becomes available. This, I am vesting in the father.

[66] In reaching my decision, I have accepted the following evidence:

1. Stable Home Environment

Avery has been living in a stable home with her mother for the last four years. She is well settled in her school and in her community and is thriving according to the evidence I accept. If the child's primary residence were to be moved to Orangeville, given the distance between the two homes, her parenting time with her mother would be dramatically reduced. Instead of spending twenty plus nights each month with her mother, as is currently the case during the school year, under the father's proposal she would be spending only four nights per month. I am satisfied that such a reduction in this child's contact with her mother would be very traumatic to her. I heard evidence from her doctor, her teacher, Mr. Norton and the mother about the special relationship Avery shares with her mother, and I am not prepared to disrupt this relationship.

2. Continuity of Contact with Father

If Avery remains in her mother's care, contact with her father and his family will remain substantially the same, as the access order I will make is substantially the same as the one currently in existence. At present, Avery spends eight nights each month during the school year with her father (twice as many nights as she would spend with her mother if Avery were to move to Orangeville). I am satisfied that the mother, who has not interfered, or limited court ordered access in the past, will continue to comply with court ordered access in the future. Avery is used to this level of contact with her father and his family, and although the father may want more time with Avery, given the distance between the parental homes and the need for the child to attend school, the current access regime, although not ideal from the perspective of the father, is sufficient to maintain and foster the child's bonds with her father. She loves her father, her sister and his extended family, and he and his family enrich her life. A continuation of the current parenting regime will provide her with stability and continuity in her young life. Although I feel that the father would be able to provide a loving home for the child if the mother were not available to do so, as the mother is available, I am not prepared to move the child out of a situation that is working in her best interests.

3. Quality of Parenting Decisions

I am satisfied with the quality of the parenting decisions the mother has been making around the care of Avery. From the evidence I heard, Avery attended an excellent day care and is currently attending a fine public school. I am satisfied with the mother's choice of a doctor for Avery, and I accept the evidence of Dr. Radivojevic that the mother is providing good care to Avery and is following her recommendations, including her recommendations concerning vaccinations.

4. Compliance with Court Orders

Each party is alleging that the other is not complying with the terms of Justice C. Jones's temporary custody and access order as it relates to consultation and information sharing, and the provision of medical and dental care. The order contains the following relevant clauses:

2. The Respondent Mother shall consult with the Applicant Father, Mr. Thomas Tarkowski on all non-emergency major decisions affecting the child and will consider his input, prior to her making such decisions.

3. The Respondent Mother and the Applicant Father shall share with one another any important information pertaining to the child's health, education or welfare, with such information to be shared in a timely manner.

4. Both parents shall be entitled to obtain information and records from any third party professionals involved with the child, such as the child's doctors, dentists, teachers, or other school personnel without the written consent of the other parent.

5. The Respondent Mother shall keep the Applicant Father advised of the name, address and contact details of the child's family doctor as well as her pediatrician if applicable. In the event the child requires non-emergency medical treatment or regular medical care, such treatment or medical care shall be provided by her family doctor or pediatrician, if available.

6. The Respondent Mother shall ensure that the child receives regular medical and dental wellness checkups, as recommended by the child's family doctor or pediatrician, and dentist. The Respondent Mother shall advise the Applicant father, in advance, of any such appointment, with such notice to be provided by text or e-mail promptly following the scheduling of the appointment. The Applicant Father may attend such appointments for the child.

7. The parents shall generally follow the recommendations of the child's family doctor or pediatrician for medical care. If the child requires medical or dental treatment while she is in the Father's care, he shall advise the Respondent Mother, in advance, of any such appointment schedule for the child, with such notice to be provided by text or e-mail promptly following the scheduling of the appointment. The Respondent Mother may attend any such appointment for the child as are scheduled during any times the child is in his care.

I have reviewed the evidence and I am satisfied that both parties are not complying with these terms.

I am satisfied that the mother did not consult with the father and consider his input before engaging Dr. Radivojevic as the child's doctor. The selection of a family doctor for the child I view as a major decision affecting the child, although I am satisfied that it was ultimately her decision to make. Similarly, I view the selection by the father of a dentist as a major decision affecting the child. The father, on the other hand, not only engaged the services of the Headwaters Dental Centre without advising the mother in a non-emergency situation in August 2018, he did so without the authority to do so as he is not the custodial parent.

I find that both parents took the child for medical and dental appointments without advising the other in advance, and often without advising the other of the outcome of such appointments. Sometimes the father told the mother about the appointment after the fact, but not always. For approximately the last year, the mother has been generally refusing to communicate with the father because she said that he would twist her words and she did not trust him.

The father ignored the provision of the order that required that the child's family doctor, if available, be the one providing non-emergency medical care. Dr. Radivojevic has been the child's doctor since January 2018. Not once has the father phoned the doctor, let alone arranged an appointment to meet with her. Rather, he routinely has taken Avery to walk-in clinics convenient to him. While I accept the father's evidence that he only took the child to medical appointments when he felt she needed to see a doctor, I am concerned that he never once contacted Dr. Radivojevic to see if she was available, nor did he ever request from any of the doctors that examined Avery, that they send a report to Dr. Radivojevic so Avery's chart might be kept up to date, although the order clearly required that he do so.

5. Trust and Communication Between Parties

Trust and communication between the parties at this time is very poor. I do not intend to repeat all the reasons given by each party as to why this might be the case. A couple examples from each party's perspective should be sufficient to provide some context:

A. Allegations of Abuse

The mother alleges that the father was abusive to her during cohabitation. Since separation she testified that the father has generally bullied and harassed her. She testified that although the Applicant father had been physically and emotionally abusive to her during their time together, there was only one occasion when the police were involved. She told the court that in July 2014, after an argument, he locked her out on the balcony and went off to work. At the time, Avery was asleep in the apartment. He denied this and suggested that she may have tripped the lock herself. On this occasion police were called by members of the public who noticed a woman on a balcony wildly gesturing for assistance. The investigating officer testified that when he arrived, he saw people pointing to a figure on a high balcony, who appeared to be gesturing for assistance. He said that he went into the lobby of that building and was directed to the parties' apartment. When he entered the apartment, he saw the Respondent mother with two other people he identified as the building superintendent and a security guard. At the time, he noted that mother was upset, crying and angry, cradling an infant. She told him that the father of the baby had left for work two hours previously and had locked her on the balcony. On this occasion, although the father was charged, the charges were ultimately withdrawn as the mother was not prepared to cooperate with the prosecution and the parties attempted to reconcile. On the balance of probabilities, I accept that this incident happened. The parties separated in November 2015. Since separation no further physical assaults have been alleged.

B. Canada Child Benefit Dispute

She related how the father, without her knowledge, successfully applied for a division of the Canada Child Benefit (CCB) by falsely convincing the Canada Revenue Agency (CRA) that he was a shared (i.e. more or less equal time parent) custody parent. When she received a letter in July, 2019 from the CRA advising her that she owed the Canada Revenue Agency $6,528.43 in an overpayment, and that her regular monthly payment would be reduced from $658.24 per month to $168.19, she felt threatened and betrayed by him, and testified that her household's financial security had been seriously compromised by his actions. She asked the court to note the clear income disparity between the two households. The mother testified that the monies she received from the CCB represent a significant portion of her total income as she supports herself and Avery on ODSP, CCB and child support payments. On the other hand, the added income to the father's household (approximately $119 per month with a $4000 lump sum payment) would no doubt be welcome but would not make a significant difference. At the time he was earning approximately $100,000 per annum; his wife is a public school teacher, on maternity leave, who is scheduled to return to work in the fall of 2020. The father testified that it was not about the money, but only about his desire to be recognized as the father of Avery, and that he was not aware that if he obtained an award the mother's monthly award would be reduced. I do not believe this denial by the father. If, as he said, it was not about the money, and he did not know how his application would affect the mother's entitlement, he could have voluntary withdrawn his application once he learned the facts. This he did not do. The mother had to appeal the decision on the merits to have this award reversed in part. Because the parents share equal time with Avery for the months of July and August, the CRA decided to divide the CCB payment between the parents for these two months, and for July and August the mother's payments remain halved. There was another reason I do not believe the father when he said that it was not about the money. It is notable that when the mother's CCB payment was halved and a sizable overpayment was assessed, the father was paying much less than the current guideline amount. He should have been paying $910 per month rather than the $546 per month he was paying pursuant to the January 4, 2017 temporary order. In order to have the child support payment increased, the mother was required to bring a motion before he consented to increasing his support in accordance with the child support guidelines.

C. Misrepresentations About Medical Care

She said that the father often lied to make her appear to be a poor mother. I heard evidence about a broken OHIP card. Initially the father testified that he had discovered that the card was broken on April 12, 2019, the day before he went off to the local Service Ontario Centre and replaced it (an email to this effect was produced.) When confronted with a statement that he made in his case conference brief in May, 2019 that he had discovered the card broken three months prior and that he had asked the mother to replace it and she had done nothing, he changed his testimony and said that he had told her about the card three months before by email although he was unable to produce the email notwithstanding that he had produced many other emails and had told the court that all communications on health related issues were in writing. His only explanation was that the first email had been produced in error and had been intended for his lawyer.

D. Interference with Information Sharing

The father testified that the mother was interfering with his ability to obtain information and records from third party professionals involved with the child including the child's doctors. He gave, as an example, his attempts to receive copies of Avery's medical chart from Cadence Health Centre. It was his evidence that, notwithstanding that he had the mother's consent and a copy of Justice C. Jones's court order, he experienced difficulties obtaining copies of the child's medical chart in 2018 and again in December 2019. The office manager explained that she was only following protocol when she initially delayed producing a copy of the child's records in order to seek direction from the child's doctor, however, she admitted under cross-examination, that when the child's health card was swiped, a message appeared on her screen which said, " Mother has sole custody of the child, just basic information to father about appointment dates, nothing else." The mother denied that she had given this instruction to the clinic, and the child's doctor denied that the mother had made such a request to her. The office manager said that she did not know how this message had found itself onto the system but said that she did recall the mother mentioning that she was going through a difficult break-up when she first came to the clinic. This evidence did raise some questions in my mind as to whether the mother may have been interfering with the free flow of information from third party professionals to the father.

E. Marginalization of Father's Role

The father believes that the mother, if granted sole custody, will continue to marginalize his role as a parent to Avery. For example, he testified that the mother initially refused to put his name on the child's birth registration or to include his name in the child's surname, and that these changes which recognized his important role in the life of the child were only made after Justice C. Jones made orders to that effect. Even after the orders were made, the mother did not file the necessary documentation. It was only when he filed the application for a new birth certificate and for a change to the child's surname, that these changes were made. The mother testified that she had been relying on her lawyer to make the necessary applications, and the delay may have occurred during the time she was without a lawyer. Another example cited by the father related to the fact that the mother admitted to discussing their break up with the child's doctor and her office staff, with the child's teacher and with other parents at the child's school with whom she was friendly, thereby isolating him, and causing these significant people in Avery's life to have a negative and false impression of him. When asked in court to say something positive about the father, the only positive thing the mother had to say was that the father paid his support regularly. The father was concerned that this negativity would ultimately affect his positive relationship with Avery. I did note, however, that the mother has never once refused court ordered access.

F. Medical Care and Vaccination Issues

The father testified that he did not trust the mother to provide good medical care to Avery because of her distrust of western medicine. He testified that the mother would often rely on alternative treatments, like oregano, to treat common childhood complainants, and that he would be the one to take the child to a doctor to deal with coughs, eczema, pink eye, etc. as he had little faith in how she was handling Avery's health needs.

He argued that the mother has been negligent in her handling of the child's health issues, particularly with respect to the child's vaccination schedule. The father testified that the mother has been against vaccinations from the very beginning, and only had the child vaccinated after the OCL and then the case management judge weighed in on the issue, and even then, the mother was hesitant in getting the child vaccinated, and only completed the child's vaccinations the night before the doctor testified at trial. The father was concerned that once the court was no longer there to encourage the mother to vaccinate the child and follow a doctor's recommendations, she will once again neglect the child's medical needs.

He demonstrated, using the OHIP billing records, how the mother had misrepresented to him in emails her efforts in 2017 and 2018 to have the child vaccinated, and how the mother would confirm medical appointments with him that either never existed or had been cancelled.

The mother testified that she was working cooperatively with the child's doctor, Dr. Radivojevic, and that she was following the doctor's recommendations on medical issues generally, and on vaccination issues in particular.

Dr. Radivojevic testified that she found the mother responsive to Avery and her medical needs. The doctor indicated that she was satisfied with the mother's level of cooperation and the speed with which the vaccination schedule had been completed. The doctor did indicate that the time to completion of the delayed vaccination schedule for children who were not vaccinated as infants was impacted in this case by the fact that the mother had requested that only one vaccine be injected at any one time in order to limit any possible negative effects on the child's immune system, although the doctor testified that Avery seemed to tolerate vaccines very well. The doctor confirmed that there were some lengthy gaps between vaccinations, but that none of the gaps were such that the immunization schedule had to be redone. She admitted that the final delay in completing the vaccination schedule arose from some confusion around what vaccines had been administered. Dr. Radivojevic testified that Avery is now up to date with her vaccinations and that the next time she would be expected to be immunized would be when she is in grade seven.

I tend to agree with the father that the mother took a long time to get Avery vaccinated. Although the mother agreed with Justice C. Jones in mid 2017 to have Avery vaccinated, it took her until January 13, 2020 to complete this task. To anyone's way of thinking, this was too long.

[67] Over four years have passed since the parties separated. The trial has now taken place and each party has had an opportunity to fully air their grievances. It is arguable that each party has some legitimate reasons for blaming the other for this poor state of affairs.

[68] Now is the time for the parties to decide whether they wish to make changes to improve the situation. It goes without saying that Avery deserves parents who respect each other's differences, parenting styles and practices. I would recommend that the parents consider co-parenting counselling if they are prepared to make an effort to improve the situation between them, as Avery deserves no less.

Vaccination Issue

[69] Since the trial ended, a world health pandemic has been declared relating to the COVID-19 virus.

[70] Many people have tested positive for the virus, many people have become very ill with the virus, and many people have died. There is a rush by medical researchers world-wide to develop a vaccine given the fact that this pandemic is caused by a novel corona virus to which there is no community immunity. To compound the problem posed by the virus, this virus is frequently spread by infected persons who are asymptomatic.

[71] It is generally accepted that the pandemic will only end when the population achieves "herd immunity", either through wide exposure of the virus in the population or by the introduction of an effective vaccine which is accepted by the population. The societal value of vaccines was canvassed in C.M.G. v. D.W.S., 2015 ONSC 2201, [2015] O.J. No. 1840, by Justice Harper, (S.C.O.). In para. 98 of that decision, he quotes Dr. Salvadori, a professor at the Department of Pediatrics, Infections Diseases at the Schulich School of Medicine and Dentistry at the University of Western Ontario and a consultant at the London Health Sciences Centre Paediatrics, London, Ontario as follows:

98. Dr. Salvadori states at paragraph 25 of her affidavit:

There are no veritable scientific studies that have shown vaccinations to be harmful. The control and eradication of certain infectious diseases throughout the world is simply beyond dispute. The rationalization by those who are against vaccinations that such phenomena would have developed without the use of vaccinations is indefensible and illogical.

And in para. 105, Justice Harper, after hearing expert medical evidence and after reviewing the relevant legislation, wrote,

"I find there is sufficient evidence on the balance of probabilities that the child in this case should be vaccinated in her best interests. Public policy as expressed by the Ontario and Canadian governments supports vaccination as essential to the health of children and the public in general. The World Health Organization promotes vaccinations for the same purposes as a matter of public health and safety."

[72] I am quoting this case as an example of how the courts have treated the vaccination issue as an incident of custody and access which is reviewable by a court on expert evidence. This ruling is instructive but is also case specific.

[73] In deciding to grant the father final decision-making power on the issue of whether Avery should receive vaccinations, I have considered the history of this mother and this father on the vaccine issue, including:

1. The mother's initial refusal to consent to Avery being immunized as an infant,

2. The fact that, in the past, the mother has expressed concerns that vaccinations might be linked to autism (a theory universally debunked) or might cause serious immune system problems, and that she refused to accept the recommendation of Avery's first doctor that the benefits of a vaccination far outweighed any potential risk from a vaccination to Avery.

3. The fact that the mother claimed a religious exemption which allowed her to register Avery in daycare and in school without having her vaccinated and without telling the father that she had done so,

4. The mother's decision to have the child vaccinated with one vaccine at a time that delayed the child achieving immunity from common childhood diseases even when her current doctor assured her that Avery was tolerating vaccines well.

5. The fact that the mother showed some hesitancy even after she agreed to take the child for vaccinations, and that it took her from mid 2017 to January 2020 before the child's vaccination schedule was completed.

6. The father may have initially had some reservations about immunization, but he is now clearly in favour of vaccinations. He understands the risks to the child and to others if the child is not vaccinated. I credit him with pursuing this issue and ensuring that Avery received her childhood vaccinations.

[74] Should a vaccine against Covid-19 become available, these parents will have to decide whether Avery should be vaccinated against it. Since children and young people often show little or no reaction to the virus, a decision to vaccinate a child may be informed by a public health concern that COVID-19 is a virus that is easily spread and which disproportionately harms older people, and people with challenged immune systems. Ultimately, a decision to vaccinate Avery may be a decision to protect other vulnerable people against Avery spreading the disease. As any vaccine may pose some risk, and a new vaccine may pose unknown risks, it is imperative that Avery's parents receive the same advice on this issue from a medical health professional.

[75] When and if such a vaccine becomes available, both parents should meet with the child's doctor to discuss vaccination for Avery against COVID-19. In the event that the mother refuses to attend this meeting with the father and the doctor, or, at the meeting, refuses to consent to the child being vaccinated, I am granting the father, as an incident of custody and access, the unilateral power to consent to Avery being vaccinated against COVID-19. I am satisfied that he has no bias against vaccinations in general, and will be able to decide this issue on the advice he receives. If the father decides that the child should be vaccinated, and if the child's regular doctor is prepared to administer the vaccination to the child, the father shall arrange with the child's regular doctor, currently Dr. Radivojevic, to administer the vaccination.

[76] This same procedure should be adopted generally as the need for regularly scheduled vaccinations arise during Avery's childhood.

Order

[77] Attached to my judgment, as a schedule, is the draft order I propose to make in this regard. In drafting this order, I have considered the draft orders prepared by the parties and the issues they included therein. If either party wishes to address any clarifications or if there are any remaining issues I have not dealt with, please contact the judicial secretary to arrange a conference call at a mutually agreeable time.

Costs

[78] The issue of costs shall be dealt with by written submissions limited to 10 pages excluding any bill of costs or case law that may be appended and those submissions shall be provided on the following time lines:

(a) The party seeking costs shall serve and file their written submissions within 30 days of the date of this judgment,

(b) The other party shall serve and file their written submissions within 21 days of receiving the costs claimant's submissions,

(c) Any reply submissions shall be served and filed within 10 days of receiving the reply.

(d) These timelines may only be extended by order of the court.

Released on: June 9, 2020

Justice Penny J. Jones

Draft Order

Custody

1. The Respondent mother, Lindsey Lemieux, shall have sole custody of the child, Avery Mae Lemieux-Tarkowski, born […], 2013 (the "child").

2. The child's primary residence shall be with the Respondent mother, Lindsey Lemieux.

Regular Access

3. The Applicant father shall have access to Avery on a two-week rotating basis as follows:

Week one: The Applicant father shall have the child from Thursday after school until Sunday evening at 6:30 p.m. with drop off at the Respondent mother's home.

Week two: The Applicant father shall have the child from Thursday after school until drop off at school on Friday morning. In the event there is no school on the Friday, the Applicant father shall drop off the child at the mother's home at 9 a.m.

4. In the event that the Monday following the Applicant father's access weekend is a statutory holiday, the Applicant father's access weekend shall extend to include the holiday Monday (unless this conflicts with a Holiday included in the Holiday Access schedule), with the Applicant father to return the child to the Respondent mother's residence on the holiday Monday at 6:30 p.m.

5. The child shall be in the care of the Respondent mother at all other times, subject to the holiday access schedule which shall take precedence over the regular access schedule where there is any conflict.

6. Both parties shall facilitate a phone call for the child to the other party or to a sibling upon Avery's request for contact.

7. The Applicant father shall be responsible for facilitating all transitions. He will arrange to pick up Avery from school, drive her to the Respondent mother's residence, pick up Avery from the Respondent's residence and drive her to his home. He will be responsible for all transportation costs. In the event the Respondent mother moves, this shall be reviewable.

Summer Access Alternate Weeks for Summer Break

8. In even numbered years the Respondent mother will have Avery from the last day of school at 3:00 p.m. after school at the start of the summer break until the next Friday of the break at 6:30 p.m. The Applicant father will have Avery for one week from the second Friday of the break until the following Friday at 6:30 p.m. The parents will continue to alternate week on week off for the remainder of the break until the Friday of Labour Day Weekend at 6:30 p.m. This will be reversed in odd numbered years.

9. If the summer holiday access schedule ends with the Applicant father, the regular access will commence on Week 2 afterwards and this will include the Labour Day Weekend. If the summer holiday schedule ends with the Respondent mother, then the regular access schedule will commence on Week 1 afterwards with the Applicant father also having the full Labour Day Weekend.

Christmas Break

10. The Christmas school break will be treated as a block of 16 days that will be divided evenly between the parties. In odd numbered years, the child shall be in the care of the Respondent mother during the school Christmas break from the Friday of the last day of school at the start of the school Christmas Break until the following Saturday at 6:30 p.m. The child will then be in the care of the Applicant father from Saturday at 6:30 p.m. until the following Sunday at 6:30 p.m.

11. If the Christmas break parenting schedule ends with the Applicant father, then the regular access will commence on Week 2 afterwards beginning Monday on the return to school. If the Christmas break parenting schedule ends with the Respondent mother, then the regular schedule will commence on Week 1 afterwards beginning Monday on the return to school.

March Break

12. The Respondent mother shall have the March break with the child in even numbered years and the Applicant father shall have the March break with the child in odd numbered years. The March break shall encompass only the (5) five days from Monday through Friday.

(a) In the event that the parent exercising March break access has the regular access weekend following the (5) days of the March break, pick up to start March break access shall take place on Sunday at 6:30 p.m.

(b) In the event that the parent exercising March break access has the regular access weekend before the 5 days of the March break, drop off to finish March break access will take place on Friday at 6:30 p.m.

Mother's/Father's Day

13. The child shall reside with the Respondent Mother on Mother's Day weekend from Sunday at 9:00 a.m. until her return to school on Monday if the child is not otherwise with the Respondent mother on this weekend.

14. The child shall reside with the Applicant Father on Father's Day weekend from Sunday at 9:00 a.m. until return to school on Monday if the child is not otherwise with the Applicant father on this weekend.

Child's Birthday

15. For Avery's birthday, she will remain with the parent with whom she is residing for the week, but that parent shall arrange a call to the other parent at 9:00 a.m. on August 12 each year, or at such other time as the parties may agree in writing.

Flexibility Clause

16. The parties may make changes to the access/parenting schedule that are agreed upon in writing through email.

Decision Making Generally

17. The Respondent mother will make major decisions about Avery's education, health care (except on the issue of vaccinations as provided for in para. 25 of this order), and religion, culture, language, spirituality and/or cultural event and any other major decision, and keep the Applicant father informed of those decisions. At least 45 days before making a major decision, the Respondent mother will advise the Respondent father of the nature of the decision to be made. This will be done in writing (by email or by Our Family Wizard). The Applicant father shall respond in writing within 15 days and provide his input/suggestions. After considering the Applicant father's input, the Respondent mother shall make the decision and advise the Applicant father (in writing by email) of the decision that she has made.

Day to Day Decisions

18. During the period when Avery is living or in the care of a parent, that parent can make day-to-day decisions about Avery, for example about, doing homework, meals, visiting with her friends, use of computer, etc.

Emergency Decisions

19. In the event that Avery requires emergency care or suffers an allergic reaction while in the care of either parent, that parent shall arrange for emergency care, if required, and shall immediately notify the other parent of all details (including the nature of the emergency and care, the allergic reaction symptoms and what is suspected, the name and address of the person or centre where Avery was taken or is being taken for care). This shall be done in writing by email, and in addition, by immediate phone call and text message. In the event that Avery requires hospital care or emergency medical treatment, both parties may attend, regardless of the parenting schedule.

20. Neither parent shall make negative comments about the other parent or their family members in Avery's presence or hearing. Each parent shall discourage family members and friends from speaking negatively about the other in the presence of Avery.

21. The parties shall encourage Avery to respect the other parent and shall promote Avery's relationship with the other.

Medical Decisions

22. The Respondent mother shall ensure that the child receives regular medical and dental wellness checkups, as recommended by the child's family doctor or pediatrician, or dentist.

23. The parents shall generally follow the recommendations of the child's family doctor or pediatrician for medical care. If the child requires medical or dental treatment while she is in the Father's care, he shall advise the Respondent mother, in advance, of an such appointment schedule for the child, with such notice to be provided by text or email promptly following the scheduling of the appointment. The Respondent mother may attend such appointment for the child as are scheduled during any times the child is in his care.

24. Except as provided in para. 25, the Respondent mother will make decisions about medical and dental care, and will have primary responsibility for making medical and dental appointments and taking Avery to these appointments, and will keep the Applicant father informed of all diagnosis and treatment in writing (by email or Our Family Wizard).

25. If the Respondent mother refuses to consent to the Avery being vaccinated according to the recommended vaccination schedule for children in Ontario, or refuses to consent to Avery receiving a vaccination against COVID-19 (if such a vaccine becomes available), the Applicant father shall seek a meeting with the Respondent mother and the child's doctor to discuss the issue. If the mother refuses to attend the joint meeting, or, at the meeting refuses to consent to the child being vaccinated, the Applicant father will have the right to decide. If the Applicant father decides that the child should be vaccinated, he will use his best efforts to have the child vaccinated by her own doctor, and his consent alone will be sufficient to authorize the administering of the vaccine. If the child's doctor is unable or unwilling to administer the vaccine, the Applicant father may make such other arrangements as he sees fit for this purpose, and the Respondent mother will cooperate with the arrangements made by the Applicant father.

Information Sharing

26. Both parties shall keep the other parent updated in writing (by email or by Our Family Wizard) with their respective addresses, and email addresses, and current cell phone number. This shall be done immediately when there is change.

27. On an ongoing basis, the Respondent mother shall keep the Applicant father updated with contact information for all service providers involved with Avery, including but not limited to the school/daycare, doctors/medicals professionals, dentist, and other professionals who are involved with her. This shall be done by email or by Our Family Wizard.

28. The Respondent mother and the Applicant father shall share with one another any important information in writing (by email or Our Family Wizard) pertaining to the child's health, education or welfare with the other parent in a timely fashion. The parties have expressed a desire to utilize Our Family Wizard as a means of communication. The Applicant father shall pay the entire annual cost of maintaining the Our Family Wizard program for both parties so long as the Respondent mother is prepared to utilize this service.

29. Each parent has the right to consult with and obtain information directly from the teachers, daycare, doctors, dentists, or other professionals about the health, education, and welfare of Avery.

30. Each parent may arrange their own parent-teacher meetings.

31. Both parents may attend school events and extra-curricular activities.

32. The Applicant father may arrange his own meetings with the child's doctor to obtain up-dates relating to the child's health and is encouraged to do so.

Extra-Curricular Activities

33. Each party shall pay the full cost for any extra-curricular activities chosen by him/her while the child is in his or her care.

34. Neither parent shall schedule extra-curricular activities during the time Avery is to be living with or in the care of the other parent, unless that parent agrees.

Child's Name

35. Both parents shall use the name, "Avery Mae Lemieux-Tarkowski" for Avery. Under no circumstances shall a parent use only their surname as Avery's surname.

Passports and Other Government Issued Documents

36. The Respondent mother may apply for passports, renewals of passports, health cards, birth certificates, and other government documentation for Avery, without the Applicant father's consent. The Respondent mother shall be the parent who holds all documents.

37. The passport for Avery will be provided to the Applicant father upon request for travel purposes. The Applicant father will not withhold this document. He shall return it to the Respondent mother when Avery returns from travel.

38. Both parents will have copies of all of the important documents.

39. Both parties shall ensure that the child's health card travels with the child between the parties' homes.

Travel

40. Either parent may travel with Avery outside of Canada for vacation purposes for a period of 15 days or less, without the consent of the other.

41. If such travel will involve the child remaining out of the country (Canada) for more than 3 overnights, the travelling parent shall provide 30 days advance written notice and an itinerary to the other parent to include an emergency contact number, the destination, departure and return date, flight numbers and air carrier, if applicable.

Mobility

42. In the event that either party wishes to change his/her residence, he/she will provide 90 days written notice to the other party with such notice to include the move date and the new address.

Costs

43. The issue of costs is reserved.