Court File and Parties

COURT FILE NO.: F1817/13 DATE: 2016-08-17 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

TRACEY CHOMOS Applicant – and – SELWYN HAMILTON Respondent

COUNSEL: Michael P. Clarke, for the Applicant Self-Represented Respondent

HEARD: August 2, 3, 4, 5, 9, 10, 2016

THE HONOURABLE MR. JUSTICE PAZARATZ

[1] If only he’d been nice to Fluffy.

[2] Sometimes in custody trials it’s the little things – literally – that help judges figure out what’s really going on.

[3] Because believe it or not, judges realize that how people present themselves in affidavits and on the witness stand, is not necessarily how they behave when no one is looking.

[4] Sometimes the little things can speak volumes.

Introduction

[5] This six day custody trial could have been much longer if the parties hadn’t settled many important issues on the first and second days of the hearing.

[6] The people: a. The Applicant mother is 47 years old. She has twin 19 year old daughters Amy and Sarah from a previous relationship. The Applicant and their father Jeff are divorced. b. The Respondent is 50. c. The parties have a three and a half year old daughter Grace. d. The Respondent has never been married and has no other children.

[7] The chronology: a. The Applicant and the Respondent became friends through their mutual employment as flight attendants in 1989. b. In June 2012 they developed a personal relationship. At the time the Respondent was living alone in a home he owns in Campbellville, near Milton, Ontario. The mother was living with her two daughters in a condominium townhouse she owns in Waterdown. c. Quite unexpectedly, at age 43 the Applicant became pregnant with the Respondent’s child. As a result the parties decided to start living together. d. The Respondent didn’t want to move to the Applicant’s home. So the Applicant agreed she and her daughters would move into the Respondent’s residence. But his rural home was in a state of partial renovation (it didn’t even have hot water) and needed a lot of work before the Applicant could move in. e. So the Applicant advanced the Respondent approximately $63,000.00 from her line of credit and from some RRSP’s. The Respondent used the money to fix up his home. f. On March 20, 2013 the Applicant and her daughters moved into the Respondent’s home. It didn’t last long. g. On March 30, 2013 Grace was born. h. On May 16, 2013 the Applicant moved out of the Respondent’s home with Grace and her two older daughters. i. But the Applicant couldn’t move back to her Waterdown townhouse because she had rented it out to her former husband (they still get along). j. So the Applicant and her three daughters ended up renting an apartment in Dundas for about a year, until they were finally able to move back into her Waterdown home, where they continue to reside.

Narrowing the Issues

[8] Initially, everything was in dispute.

[9] In her Application dated November 6, 2013 the Applicant made an unjust enrichment and constructive trust claim in relation to the Respondent’s home, relating to her $63,000.00 which went into the property. After the Applicant filed a certificate of pending litigation, in December 2013 the Respondent re-paid the monies owing and the property claim was resolved.

[10] When this trial began on August 2, 2016 most issues were still in dispute: a. Each party claimed sole custody of Grace, including primary residence. b. Each party claimed child support. c. Each party made related claims such has health care coverage, life insurance coverage, etc.

[11] By the beginning of the second day of trial however, the parties signed and filed two separate “Partial Final Minutes of Settlement”. a. The first Minutes finalized child support: The Respondent is to pay to the Applicant $500.00 per month child support plus 60% of pre-approved section 7 expenses. This is based on the Applicant’s income of $60,000.00; the Respondent’s income of $90,000.00; and the fact that the Respondent will have the child in his care at least 40% of the time. b. The second Minutes finalized timesharing: A detailed four week rotating schedule was agreed to, based on the Respondent’s employment schedule. Grace will be in his care 11 overnights out of a 28 day cycle.

[12] The timesharing settlement stemmed from a factual resolution the parties agreed to on the first day of trial, when I tried to narrow down how many witnesses we would really need, and what topics actually needed to be discussed. The parties agreed: a. They are both equally able to meet this young child’s instrumental needs. b. They are both good parents. c. They both love the child equally. d. The child loves and needs each of them equally.

[13] These were important mutual acknowledgements which eliminated the need for multiple “character witnesses” and reduced the potential for needlessly provocative testimony.

[14] The trial then proceeded on two basic issues: a. Each party sought a sole custody designation in their favour. Neither party proposed any compromise arrangement like joint custody or parallel parenting. Each party took the position that they are the one who needs to have sole decision making authority in Grace’s life, quite apart from the mother having primary residence. b. Related to this custody issue – and likely the real reason the trial couldn’t be avoided – is the determination of which school Grace should attend when she starts junior kindergarten in September 2017. The Applicant proposes the child attend a French immersion (French and English) school next door to her townhouse in Waterdown. The Respondent proposes the child attend a French-only school in Milton.

[15] With the issues so narrowly focussed, the parties were able to pare down the witness list to three people: a. The Applicant (represented by counsel). b. The Respondent (who represented himself at trial, although he was previously represented by two successive lawyers). c. Karen Bridgman-Acker, a clinical investigator who was cross-examined by both sides in relation to a custody/access report dated December 1, 2015 which she prepared for the Office of the Children’s Lawyer (OCL) pursuant to section 112 of the Courts of Justice Act.

The Applicant

[16] Some background information about the Applicant: a. She has a high school education with some college courses. She took courses in Early Childhood Education. More recently she obtained certification as a mortgage broker. b. Since age 20 she has been working as a flight attendant, initially with Air Canada and now part-time with Jazz Air. Her seniority allows her to control her schedule. She flies four to five days per month, on days when Grace is with the Respondent. c. She previously worked extensively in banking. d. Since January 2014 she has also been a broker with Mortgage Alliance. She is basically self-employed, sets her own hours when Grace is with the Respondent, and often works from home. Her income is commission-based. e. Her daughter Sarah is currently in second year at Fanshawe College in London, Ontario and returns home on weekends and holidays. f. Her daughter Amy is in second year at Mohawk College in Hamilton and resides with the Applicant full-time.

The Respondent

[17] Some background information about the Respondent: a. He has a Bachelor of Arts degree, with a primary focus on psychology. b. He has a strong interest and qualifications in relation to the French language and culture. c. The Respondent worked part-time as a flight attendant for 25 years until he retired in 2014. d. For 20 years he worked as a child and youth therapist. e. For the past 15 years he has been a full-time firefighter with the City of Milton, working shifts. f. He is also a certified car seat technician.

Children’s Lawyer Report

[18] The OCL’s 15 page report included the following recommendations: a. The child should reside in the primary care and custody of the Applicant mother. b. Timesharing between the Respondent father and the child should continue as per the current plan, based on his work schedule, which includes three or four overnights in each period (approximately nine to 12 per month). c. Each parent will pick the child up at the beginning of their time with the child. d. The parents should have a co-parenting arrangement in so far as both parents are entitled to information, participation in, and to be consulted on decisions affecting the child’s education, health, and religion. e. The mother should consult with the father and inform him about the child’s education and regular medical appointments, progress and/or concerns; she should make major decisions in these areas concerning the child. f. On an emergency basis the parent with whom the child is staying shall seek required medical attention and advise the other parent as soon as is reasonable. g. Day to day decisions about the child’s welfare shall be made by the parent with whom she is residing at the time. h. Both parents should advise each other when registering the child in extra-curricular activities on their own time; such activities should not be scheduled on the other parent’s time with the child unless agreed to by the parties. i. All religious or school holidays shall be divided 50/50 or as agreed by the parties. j. When it is time for the child to be registered in school she should be enrolled in a French Immersion program for as long as it meets her developmental and educational needs. k. Each parent should spend time with the child on her birthday, with the exchange taking place at 3:00 p.m. until the next scheduled exchange time. l. The child shall spend Mother’s Day with the mother and Father’s Day with the father, regardless of any weekend access schedule. m. Any changes to the access schedule are to be negotiated and agreed to by both parents with make-up time arranged in advance. n. If either parent is to be unavailable to care for the child for more than 24 hours during their time with the child, the other parent should be offered first right of refusal to provide care for the child. o. If either parent will be taking the child out of the province during their time with the child, he or she will notify the other parent in writing at least 24 hours in advance and provide contact information. p. Each parent to list the other as an emergency contact where needed. q. When the child is of age to use a telephone and or electronic device, the child should be permitted contact with the other parent when spending time with the residential parent. r. None of the caregivers should, or allow anyone else to, expose the child to adult conflict, discussion of adult issues, or disparaging comments about the other. s. Neither parent should communicate with the other parent through the child or ask the child to deliver messages or make requests on their behalf. t. The parents should communicate via e-mail about the child’s routines and activities upon exchange of the child in order to keep each other informed and to help foster consistency in her care. u. In the alternative, the parents should consider utilizing the “Family Wizard” or “2 Houses” online communication tool to communicate with each other about the child to avoid contact and conflict with each other.

[19] The Applicant accepted all of the OCL’s recommendations, except she proposed that at exchange times transportation should be provided by the party ending their time with the child rather than the party beginning their time with the child. She said this would ensure more strict compliance with exchange times. (I will deal more fully with this issue, below.)

[20] The Respondent challenged many of the clinical investigators conclusions and recommendations.

[21] Clinical investigator Karen Bridgman-Acker was a good and helpful witness: a. She has been a clinician for the Children’s Lawyer since 2000. b. She has prepared five to 10 section 112 reports per year since then. c. She has previously assessed the needs of children of Grace’s age. d. During questioning she was thoughtful, well-spoken, and completely child-focussed. e. Both her report and her evidence were – for the most part – balanced. f. She was equally responsive and co-operative during cross-examination by each side. g. She had many good things to say about each party’s instrumental parenting skills. h. Although the Respondent criticized the social worker for leaving many details out of her report, I am satisfied that she fairly considered all of the issues raised by the parties. And she fairly summarized her observations.

[22] But during cross-examination, the Respondent raised a serious issue which causes me to conclude that while some of the OCL’s recommendations are worthy of consideration – other OCL recommendations must be disregarded. It all comes down to language. a. The Applicant was born and raised in Burlington, Ontario. She speaks only English. b. The Respondent was born in British Guyana. He came to Canada in 1968. He speaks perfect English without an accent. But he also speaks perfect French, which he uses with his family. c. As part of her investigation Bridgman-Acker attended one observation visit involving the Applicant and then two-year-old Grace; and one observation visit involving the Respondent and the child. d. In the Applicant’s home, mother and daughter communicated with one another entirely in English. The Applicant’s older daughters were also present and also conversed in English. e. But in the Respondent’s home, father and daughter communicated with one another entirely in French. This was easy for Grace because she is being raised to be bilingual. Although her language skills were still those of a two-year old, she is equally conversant in both English and French. f. However, the clinical investigator does not speak a word of French. So she understood everything mother and daughter said to one another during the first observation visit. And she understood nothing father and daughter said to one another during the second observation visit.

[23] During cross-examination, Bridgman-Acker acknowledged that when the Respondent submitted an intake form to the OCL he specifically asked for French language services. a. She didn’t know why the OCL ignored that request when they assigned the file to her. b. She admitted the Respondent raised the issue at their very first meeting. He questioned how she would be able to assess the importance of French in his life and in Grace’s life if the worker doesn’t speak French. She advised him that her job was not to assess their French language skills, but to assess the father’s interactions with the child. c. She testified the Respondent never expressed any difficulty communicating in English. He simply preferred to communicate with and about his daughter in French. d. The social worker testified that at one point she reviewed the issue with her supervisor at the OCL. It was agreed she would proceed with the section 112 investigation, and ask for help if the language issue became a problem. e. She acknowledged that after her report was issued, and after the Respondent filed a dispute, the OCL apologized to the Respondent for not providing French language services. f. But the OCL stuck by its recommendations.

[24] Bridgman-Acker testified that her inability to understand what the Respondent and Grace were saying to one another never became a problem. a. The purpose of the observation visit was not to ascertain the child’s “views and preferences.” Grace was too young to be interviewed. b. The worker’s main objective was simply to observe the interaction between father and daughter. To see how they got along. c. She testified that even though she didn’t understand what they were saying to one another, it was clear to her that the Respondent and the young child have a very close, loving relationship. d. She said her favourable observation came as no surprise, because the Applicant had never alleged there was any problem in the father-daughter relationship. The Applicant had previously acknowledged to the clinical investigator that the Respondent is a good father and that Grace loves him and enjoys her time with him. The issue was not how the Respondent treats the child -- but how he treats the Applicant. e. Bridgman-Acker insisted that if she had noticed anything unusual or troubling during the observation visit, she would have arranged for a French speaking worker to become involved. f. She felt her observations and recommendations were valid. She questioned why the Respondent would complain when she had described his observation visit so favourably.

[25] This unusual dynamic created a fundamental issue as to the extent to which the court could rely on the section 112 report.

[26] On the one hand, despite the methodological irregularity, there is absolutely no dispute that Bridgman-Acker got many things right: a. She concluded that both parties have excellent parenting skills, and that Grace is equally attached to both of them. This was never really disputed as the litigation evolved. And as stated, this is precisely what the parties acknowledged at the commencement of trial. b. She concluded that the child should reside primarily in the Applicant mother’s care. Again, this is exactly what the parties agreed to in their partial minutes of settlement. c. She recommended that the Respondent should have regular timesharing, working around his employment schedule. She recommended he have between nine and 12 overnights per month. The partial minutes of settlement provide that he will have 11 overnights in a 28 day cycle. Again, that’s pretty close. d. Many of her other recommendations about special occasions, information sharing, etc., were also accepted by the parties.

[27] Nonetheless, it seems both counter-intuitive – and just plain unfair – that a custody investigator would have the benefit of understanding the mother’s conversation with a child, but not the father’s. a. Observation visits are about more than just physical observations. b. Parent-child interaction – particularly with a two year old – is complex and nuanced. There are many things going on all at once. c. While non-verbal communication may tell much of the story, any words spoken can reveal so much more. d. The selection of words. The interplay between statements. Reactions and tonal changes. The child’s level of sophistication. Age-appropriate language. Compliance or responsiveness to requests or instruction. Manipulation. The adult’s ability to direct or re-direct conversation. Unanswered questions and non-sequiturs. These are among the subtle dynamics which can provide important context and elaboration. e. Words obviously matter. That’s why foreign movies have subtitles.

[28] I wish to emphasize that none of this is intended to be a criticism of Bridgman-Acker. a. She was assigned to the file by the OCL. b. After specifically addressing the language issue, she was instructed by her supervisor to proceed. c. As stated, apart from this one deficiency with respect to the father’s observation visit, in every other respect her investigation was thorough. d. And given the fact that the quality of the father’s relationship with the child was never disputed, it might have seemed unnecessary to understand their French conversations.

[29] Fairness dictates that an assessor or clinical investigator should consider all of the information a parent deems relevant. a. From the Respondent’s perspective, his French-only communication with his daughter was something he wanted the social worker to appreciate. b. It doesn’t matter whether the information would have changed the outcome. It was important to him as a parent. So the father should have confidence his information was at least being considered. c. From the Respondent’s perspective, the system wasn’t paying attention to an important part of his argument. That sense of frustration undermines the integrity of the process. d. As a result I am not prepared to consider the OCL’s recommendations in relation to custody or the schooling issue.

[30] But it’s equally important to remember that beyond recommendations, a section 112 report is a fact-finding exercise. Ganie v Ganie 2015 ONSC 6330; Heuer v. Heuer 2016 ONCJ 201. Bridgman-Acker assembled and testified about a great deal of information she gathered – much of it from the parties themselves. As I consider the evidence and review the themes advanced by each of the parties, I find that many of the clinical investigator’s factual observations are most helpful to my analysis.

Competing Themes

[31] The Applicant mother’s theme at this trial: a. She is an experienced mother, having successfully raised twin daughters who have turned out very well. b. She entered her relationship with the Respondent with the best of intentions, giving up the security of her Waterdown townhouse; moving herself and her teenaged daughters into his home, because he insisted that’s the way it had to be. c. It didn’t take long to realize moving in together was a terrible mistake. The Respondent was domineering and inflexible with her, and rude to her children. He is controlling and always insists things have to be his way. He is incapable of compromise. d. She and her teenage daughters had to move out after six weeks because the Respondent was a bully and the tension was intolerable. e. From the very outset, the Applicant assumed primary responsibility for the care of the baby. She took a one-year maternity leave. The Respondent took much less time off, and soon had to return to work. f. It was in Grace’s best interest to remain in the Applicant mother’s care upon separation. g. From the very moment the Applicant moved out, she was generous and cooperative in scheduling liberal timesharing for the Respondent, whenever his shift-work as a firefighter permitted. h. Despite her attempts to co-parent, the Respondent continued to be domineering and arbitrary in making arrangements for Grace. i. By October 2013 health and safety concerns needed to be addressed, which resulted in some temporary restrictions on the Respondent’s timesharing. j. The Respondent’s confrontational and uncooperative attitude worsened. k. The timesharing issue settled down once they obtained a series of temporary orders. The Applicant continued to promote liberal access, and was always prepared to work around the Respondent’s work schedule. l. But many specific conflicts arose. The Respondent repeatedly took unilateral actions and even defied a court order, because he is convinced he is smarter; knows better – and no one is going to tell him what to do. m. The Respondent has such a sense of animosity and superiority that he continues to make bad and insensitive decisions in relation to Grace. His efforts to punish the Applicant are actually hurting the child. n. The Applicant respects the Respondent’s role as a parent. She respects his desire to ensure that Grace is raised fluently bilingual, and that she receive French language education. o. But the Respondent’s insistence that Grace attend an all-French school in Milton – even though the child will be residing primarily with the English-speaking mother in Waterdown – reflects another effort on his part to monopolize the child and exclude the Applicant from Grace’s life. In the mother’s view, it makes much more sense for the child to attend a mixed French-English program, right next door to her primary residence. That way both parents can participate and help the child with schooling. p. The Applicant has always made good, child-focussed decisions for Grace. The child has always resided primarily in the Applicant’s care. She is doing well and has a close sibling relationship with the Applicant’s older daughters. q. It is best for Grace that the Applicant have sole custody and decision making authority. The Applicant has consistently demonstrated that she will be fair and inclusive with the Respondent. r. In contrast, the Respondent has consistently demonstrated that he has absolutely no respect for the Applicant. If the Respondent is given decision making authority he will abuse it. He will seize every opportunity to exclude the Applicant from Grace’s life. And the child will suffer.

[32] The Respondent father’s theme can be summarized a bit more concisely – largely because he was very clear in emphasizing the points he wanted to make. But during cross-examination and in giving his evidence, he did not deny or even comment on many of the allegations and issues raised by the Applicant. His theme: a. The Respondent is a well-educated, cultured, and accomplished man who has much to offer this young child. More to offer than the Applicant. He has a proven work ethic and is best able to provide moral leadership and guidance for his daughter. b. His education, with an emphasis on psychology, gives him good insight and understanding of people. c. His extensive experience as a child and youth therapist has taught him much about how to structure and organize children’s lives. How to be attentive to detail and record information. “If I can do this for other people’s children, I can do this for my own child.” d. His certification as a car seat technician, and his experience as a firefighter mean that he is more aware and dedicated to child safety issues. The Applicant has been negligent and shown poor judgment in relation to health and safety. e. From the very outset he has devoted himself to his young daughter. He has always been there equally for Grace. f. It was unfair and unnecessary for the Applicant to steal his daughter away by moving out and leaving a note while he was at work. From that moment on he has lived in constant fear that he will never see his daughter again. g. The Applicant has unfairly portrayed him as a bully or someone to fear. She has exaggerated his aggression, and understated her own. The Applicant proposed access exchanges at a police station without any justification. She just wants to make him look bad. h. In contrast, the Respondent has always been fair with the Applicant. i. The Applicant complains the Respondent won’t communicate – but he’s been trying hard, and she is the one who won’t communicate. j. He disagrees that the Applicant has been generous or consistent with timesharing. She has been arbitrary in selecting times. At one point she denied him access for two whole months, forcing him to go to court. There have been many occasions when he has been available to care for Grace while the Applicant was working, but she has refused to give him that opportunity. k. The Applicant is more interested in her own convenience than what’s best for Grace. l. He denies being “heavy handed”, or usurping parental authority. He has simply taken the initiative to do things to benefit Grace – just as the Applicant could have taken the initiative if she had wanted to. m. He admits he has made unilateral decisions and excluded the Applicant from activities and special occasions in Grace’s life. But he has been governed by a lingering – and justified – sense of fear and suspicion. Fear that the Applicant will take Grace away and he will never see her again. Suspicion about why the Applicant wants to attend Grace’s activities, and whether the Applicant’s true intention is to spoil things for the Respondent. n. The Applicant boasts about her parenting experience raising two older daughters. But she hasn’t done such a great job raising those children, and he fears she will make the same mistakes with Grace. o. Similarly, the Applicant emphasizes Grace’s sibling connection to the Applicant’s twin daughters. But they are 19 years old so they really won’t be around much to interact with Grace. p. The Respondent has better judgment on important issues, so he should be allowed to decide. He is disappointed by the Applicant’s lack of attentiveness and awareness with respect to Grace’s medical and dietary issues. The Respondent needs to be involved to make sure these important areas are properly addressed. q. The French schooling issue is number one on his list of priorities. He has a deep appreciation of the French language and the opportunities which Grace will have in life if she is fluently bilingual. r. The Applicant doesn’t seem to grasp the education issue. The school next door to the Applicant’s home may be conveniently located, but its curriculum is inferior. The Applicant’s proposal of a mixed English-French program won’t give Grace the kind of foundation in French which she needs. The English-speaking mother can find ways to participate in Grace’s French-only education. But the Respondent should be permitted to take the lead in this important area. s. The Respondent has a strong sense of community and of family. He wants to have the ability to give Grace an enriched life with the love and support of his extended family. t. Children need routine and structure. The Respondent is better able to maintain that routine.

[33] Some of the Respondent’s themes and closing submissions were a bit puzzling: a. At the outset of the trial, he unequivocally acknowledged both parents are pretty much equal, and Grace loves them both equally. But during his evidence he kept mentioning the ways he thought he was the better parent. b. Early in the trial the parties signed Minutes of Settlement finalizing that Grace’s primary residence would be with the Applicant in Waterdown, and that the child would spend 11 overnights with the father in a 28 day cycle. But as the trial progressed, and particularly during closing submissions, the Respondent kept talking about how Grace would be better off spending more time with the Respondent. Ultimately, he confirmed he was not seeking to reopen the timesharing issue. But there were repeated instances of the Respondent giving evidence or making suggestions about topics which had already been settled.

[34] As I embark upon a review and analysis of the evidence at trial, I offer some general comments: a. The OCL social worker’s evidence set out facts and observations which are consistent with the Applicant’s aforementioned theme and inconsistent with the Respondent’s theme. Bridgman-Acker described a number of situations and discussions illustrating that the Applicant maintained a positive and inclusive attitude toward the Respondent. In contrast, the father displayed negative and excluding behaviour in relation to the mother. The Applicant showed more sensitivity to the child’s emotional needs. b. From my own observation of the parties and consideration of their evidence, I also conclude that the Applicant’s narrative and proposal in relation to Grace is more compelling and reassuring than the Respondent’s. c. The bottom line: Despite unquestioning love, incredible passion, and impressive credentials – the Respondent has given us every reason to worry that if he is granted decision making authority, he will not promote the Applicant in Grace’s life. There is a real danger he will shut the mother out. d. In contrast, the Applicant has provided overwhelming reassurance that she has always made good and fair decisions for Grace, and she will continue to co-parent with the Respondent. e. Family Court Judges don’t have a crystal ball. We can only go on the basis of how parents have behaved so far.

[35] I will briefly review the evidence:

6 Week Cohabitation

[36] The Applicant testified the parties’ six weeks of cohabitation did not go well. a. She said her daughters did not get along with the Respondent, and in the Applicant’s view the Respondent did nothing make her children feel welcome. The Respondent did not deny he had conflict with Amy and Sarah. He felt they were spoiled. b. The Applicant said after one argument the Respondent commented to her about Amy: “I don’t like her and I don’t care if she lives here.” The Respondent did not deny making this statement. c. The Applicant said she and the Respondent had many arguments and there was a lot of tension in the home. The Respondent did not deny this. d. She said on two occasions during their six weeks together the Respondent went on two-hour rants proclaiming that it was his house, and people were going to have to do things his way. Again, the Respondent did not deny this, although he said the Applicant’s description of the “rants” was exaggerated. He said the Applicant also shouted and used foul language. e. The Applicant said the home environment was deteriorating so quickly, her daughters were refusing to stay at the home. The Respondent didn’t think they were that upset, and felt the teenagers liked staying at their father’s home anyway. f. The Applicant said all of this conflict arose at the same time she was caring for her newborn baby and dealing with her own child birth-related health problems including hemorrhaging. The Respondent insisted he was also caring for the newborn. He did not deny the Applicant was experiencing health complications.

[37] The Applicant testified about a prolonged dispute concerning hockey teams. a. Her daughters are Toronto Maple Leaf fans. b. When the Applicant’s cousin gifted a “Toronto Maple Leaf” dress for the baby, the Respondent took it away and hid it because he is a Montreal Canadiens fan. He stated at the time that he was insulted by the gift. c. Later, when the Applicant and her daughters were watching a Leafs game on TV, she texted the Respondent who was at work asking where the baby’s Maple Leafs dress was. He didn’t respond immediately. d. The Respondent later brought the Maple Leaf dress home from work and threw it. He complained it was “mean and cruel for (her daughters) to dress my baby in a dress for a hockey team I don’t like.” He added “when the girls have their own baby they can dress her”. e. The Applicant testified she and her daughters were upset the Respondent could create so much tension over something as innocent as a dress gifted to a newborn baby. f. The Respondent did not deny or comment on any of these allegations.

[38] The Applicant described the argument which finally led to separation. a. The Applicant’s daughter Sarah had suffered a concussion at school. On medical advice, the Applicant had to sleep beside Sarah to wake her every two hours, because of the head injury. b. When the Respondent returned home from work he became irate and created a big commotion because Sarah was in their bed. c. The Applicant said there was a very unpleasant scene witnessed by Sarah who eventually told the Respondent “Don’t speak to my mother that way.” d. The Applicant said she was worried about the senseless conflict which was upsetting her daughters so much. She felt she had to take immediate steps to de-escalate the volatile situation. e. So the next day after the Respondent went to work she moved out with her twins and the baby.

Fear & Mistrust

[39] The Respondent didn’t really deny any of the Applicant’s allegations about how bad things were going those six weeks of cohabitation. a. But throughout his testimony he kept repeating how unfair it was that he came home from work in May 2013 to find a note advising him that the Applicant and Grace were gone. b. He testified that for at least the following year he lived in constant fear that he would never see his daughter again. c. He said at first his fear stemmed from not knowing his legal rights. But even after he got comprehensive legal advice from the first of his two lawyers, he said he continued to be in constant fear that any visit might be his last. d. He testified he still can’t trust her for what she’s done.

[40] I cannot help but conclude that the Respondent’s shock and moral outrage that the Applicant left him is a bit overblown and self-serving. a. The circumstances surrounding separation are always difficult (although the Respondent doesn’t appear to have had any awareness that anyone in his household was unhappy during the six weeks of cohabitation). b. Without question, coming home to an empty house and a note saying goodbye can be devastating. c. And if the Respondent says that as of that moment he worried whether he would ever see his baby daughter again, I accept that.

[41] But thereafter, there appears to be no basis for the Respondent’s consuming fear that he was never going to see his daughter again. a. There is no evidence the Applicant denied access or threatened to deny access. At every stage in this litigation she has proposed that he have generous access. b. Under cross-examination, the Respondent acknowledged he actually ended up seeing his daughter quite regularly. Commencing the day after separation, for a period of time the Applicant brought Grace to the Respondent daily. c. From the outset she agreed to flexible, regular timesharing based entirely on the Respondent’s shift work. Overnight visits started in July. Whenever the father was available, he could have the child. d. While there was a brief complication in October 2013 – which I will discuss below – there is absolutely no basis for the Respondent’s stated fear that every time he saw Grace it might be the last time he ever saw his daughter. e. By December 6, 2013 the Respondent had a court order specifying access. The Applicant consented to that order and complied with it. f. There was a second temporary access order on February 25, 2014. Again, it was on consent and the Applicant complied with it. Again, the parties had agreed to generous access based on the Respondent’s work schedule. g. The February 25, 2014 order specified access dates for a 12 month period. Even after that year elapsed, the Applicant continued to provide generous access without any operative order. As soon as the Respondent disclosed his work schedule, he got the times he wanted.

[42] I mention all of this because the Respondent testified the possibility of never seeing his child again was more than just a nagging fear in the back of his mind. He said it was a constant preoccupation during literally every visit. And during his evidence he referred to that fear to justify his ongoing hostility and exclusionary behaviour toward the Applicant. a. Starting with his first visit the day after separation, the Respondent began maintaining typed notes about how things had gone, and how Grace was doing. He didn’t share those notes or observations with the Applicant. He testified he wanted to keep them just in case Grace never came back. b. By the third visit after separation the Applicant initiated a communication book to travel back and forth between the parties, in the child’s diaper bag. The purpose of the book was to outline the child’s daily routine so the parents could ensure consistency and share information. The Applicant made entries every visit. The Respondent refused to make any entries until the first court date December 6, 2013. For a while he used the communication book. Eventually he unilaterally stopped using the book. He said the Applicant could e-mail him if she had or wanted information. c. But at the same time that the Respondent was refusing to make entries in the communication book and share information, he started maintaining a personal “Day of Grace” diary. He customized a chart in which he routinely listed every possible detail about how Grace was doing, what she had eaten, how she was feeling, etc. This was important information – exactly the stuff the Applicant was proposing they share. d. He testified that he prepared over 100 pages of “Day of Grace” memos during a 10 month period up to April 2014. But he never shared any of those detailed notes with the Applicant – even though she was constantly writing to him about how Grace was doing. e. Somewhat bizarrely, he testified that he diligently prepared those notes so they could be included with his last will and testament. He explained that he was certain Grace would be taken away. He wanted to leave her something to read when she grew up, proving that he really had tried to be a father. f. Even at trial three years after separation – by which time it should have been clear to him that no one’s trying to take his daughter away – the Respondent kept justifying his very uncooperative behaviour by saying it’s the Applicant’s fault. She took his daughter away. He can’t trust her. When she asks to be involved in Grace’s life, he can’t be sure what she’s really up to.

[43] Bridgman-Acker testified about the lack of trust between the parents. a. The Respondent reported to her that he didn’t find the communication book useful and didn’t trust that the Applicant would be honest. b. He stated outright that he was distrustful and suspicious of the Applicant as a mother and as a person. c. Generally his attitude toward the Applicant was fairly negative. He didn’t have very much good to say about the Applicant or her parenting skills. d. He was critical of how she raised her daughters. He was critical of her work, her availability, and the way she brings Grace to him during access exchanges. e. Bridgman-Acker said from the Respondent’s own statements it was clear that he felt he was the better parent, and more competent to provide long term care for the child.

[44] Bridgman-Acker testified that in contrast the Applicant expressed no distrust of the Respondent. The mother was actually quite complimentary about the father’s parenting skills and his positive role in Grace’s life.

[45] The OCL investigator testified that in her investigation she saw no sign that there was any basis for the Respondent’s mistrustful and accusatory attitude toward the Applicant. a. She saw no sign of false allegations by the Applicant. b. She detected no inclination by the Applicant to make false allegations or get the Respondent in trouble.

[46] I find that the Respondent’s paranoia and self-righteousness about how badly he has been treated by the Applicant – and his purported fear of losing Grace forever -- is completely without justification. It reflects poorly on his ability to prioritize this young child’s needs over his own emotional vulnerabilities.

[47] Bridgman-Acker said her main concern was not how the parents relate to the child, but the difference in how they relate to one another. a. The Applicant respects the Respondent as a parent and has consistently shown an inclination and commitment to include the father in the child’s life. She acknowledges his strengths as a parent. b. In contrast the Respondent does not respect the Applicant as a parent, and has repeatedly demonstrated a desire to exclude the mother from the child’s life. He does not appear to acknowledge her strengths as a parent. c. The Applicant acknowledges the Respondent is equally capable. The Respondent insists he is superior and that in fact the Applicant is deficient in her parenting skills. d. The Applicant is willing to share parenting and include the Respondent in activities and decision making. The Respondent tends to make unilateral decisions and not even tell the Applicant about things he has arranged for the child. e. The Applicant respects the Respondent’s desire to ensure that Grace is raised and educated in a fluently bilingual environment. The Respondent dismisses the Applicant’s compromise on this issue, and insists the education issue has to be decided 100% in his favour.

[48] Bridgman-Acker testified the differing attitudes of the parties toward one another might have serious consequences depending on which parent gets custody and decision making authority. a. Based on the Applicant’s statements and behaviour thus far, Bridgman-Acker expressed confidence that if the mother is granted decision-making authority she will want to encourage communication and consultation with the Respondent, and include him in any decision-making and activities. b. In contrast, the social worker expressed concern that – based on his statements and behaviour thus far – if the Respondent is granted decision-making authority there is real concern that he will make decisions without the mother’s input, and that in fact he will shut the Applicant out of the child’s life.

Spider Bites

[49] A simple issue which emerged about five months after separation is illustrative of how badly parenting can go when there’s no trust or communication between parents.

[50] The Applicant testified that in October 2013 Grace started returning from the Respondent’s home with spider bites on her head and body. She testified: a. It became a recurring problem which the Respondent acknowledged but was unable to resolve. b. On two occasions the baby was taken to a doctor as a result of the bites. c. Eventually the Applicant asked – and then insisted – that overnight visits be suspended until the spider bite issue was resolved. That’s when relations between the parties hit bottom. d. By November 2013 the spider bites were gone. But by then, communication and cooperation had completely broken down, and the parties were heading to court.

[51] The Applicant was cross-examined about the spider bites: a. She acknowledged that when she took Grace to a specialist the doctor wasn’t sure if the child had experienced insect bites or an unrelated dermatological condition. b. She acknowledged the doctor recommended that as a precaution both parties should have their homes exterminated, but that neither parent actually did this. c. She acknowledged the Respondent acted appropriately in having a pest control firm attend at his home. The Respondent produced a report indicating that there was no sign of a spider infestation in his home. d. She acknowledged the Respondent acted appropriately in having his house ducts cleaned. e. But the Applicant insisted the bite markings on the child were a continuing problem which arose whenever Grace visited the Respondent’s home. And the bite markings disappeared during the period when Grace wasn’t attending at the Respondent’s home.

[52] The Respondent testified about this issue: a. He recalled the Applicant was alleging that Grace was returning from visits with spider bites on her head. He denied there were spider bites or that Grace was experiencing any such problems while in his care. b. He alleged the Applicant fabricated the spider bite allegations as an excuse to deny access. But under cross-examination he acknowledged some photographs showing some sort of bites or marks on the child’s head. c. He also admitted his own lawyer sent a letter dated October 29, 2013 which acknowledged that “Grace was bitten twice in the last five months while in my client’s care” and that “the bites appeared to be consistent with a spider.” d. But at trial the Respondent insisted his lawyer’s statement was wrong. He denied there was ever a determination that Grace was bitten by spiders in his home. He said investigation of the marks was inconclusive.

[53] I reject the Respondent’s allegation that the Applicant fabricated the spider bite complaint, or that she used the issue as an excuse to limit access. a. It is clear from the photographs that there were troubling markings on the child’s scalp. The Applicant wasn’t making it up. She was correct to insist that the recurring medical issue be addressed. b. A specialist confirmed Grace was experiencing a problem. The doctor simply wasn’t sure about the cause. c. It is curious that the Respondent would allege the Applicant was making the whole thing up – when the Respondent’s own lawyer sent a letter confirming that Grace had experienced spider bites in the father’s home.

[54] But the spider bite issue mushroomed into a recurring allegation by the Respondent that the Applicant had denied him access for two full months. a. He testified that being denied access for two months convinced him the Applicant wanted to take Grace away from him. b. He said two months without his daughter motivated him to take a hard line with the Applicant. It was his excuse for not cooperating on other issues. c. He also said he became so upset not seeing his daughter that he had to go on stress leave from his flight attendant position with Jazz. (He had refused repeated requests from the Applicant’s lawyer for medical disclosure with respect to his stress leave.)

[55] Except, under cross-examination the Respondent begrudgingly acknowledged that really it wasn’t a two month denial of access. Indeed, from reviewing the evidence, it didn’t seem like much of a denial of access at all. a. Firstly, the Respondent acknowledged that the period in question was October 20, 2013 to December 6, 2013 (the first court date). More like six weeks. b. He then acknowledged that within days of October 20, 2013, the Applicant texted the Respondent offering him access on October 23, 24, 27 and 28. He testified he wasn’t sure if he took advantage of those offers of access. c. The Respondent admitted that on October 31, 2016 the Applicant’s lawyer sent a letter proposing access on October 31, November 1, and November 2 nd. But he claimed it wasn’t a sincere offer. He said he twice went to the police station exchange location proposed by the Applicant, but she wasn’t there. But he admitted there may have been some mix-up about access arrangements. d. He admitted that the Applicant’s lawyer wrote to his lawyer on three occasions – October 31; November 1; and November 6 proposing that the parties immediately have a four-way meeting to try to work out timesharing arrangements. He rejected each request for a four-way meeting. He testified at that point he was tired of chasing the Applicant around for access.

[56] I accept the Applicant’s evidence that there was never an intention to deny access. a. There was a brief period when she proposed a suspension of overnight visits until the spider bite issue was resolved. b. Thereafter, it appears the Applicant made repeated efforts to set up access. c. It is difficult to understand why the Respondent ignored repeated requests for a four-way meeting to work out timesharing.

Financial Issues

[57] During the months following separation in May 2013, financial issues added to the strain between the parties. a. As stated, before she moved in with him, the Applicant gave the Respondent $63,000.00 to renovate his home. b. When the parties separated in May 2013 the Applicant was in serious financial difficulty. She was on maternity leave with limited income. She had rented out her home, so she couldn’t go back. She had given the Respondent all her savings. c. The Respondent repaid her $10,000.00 within days after she moved out. d. But the Applicant said the Respondent didn’t pay her the balance until December 2013 when she started this court action and registered a certificate of pending litigation against his property. e. In the meantime, the Applicant had to work cleaning houses and waiting tables just to support herself and the three children in her care.

[58] The Applicant’s lawyer submitted the Respondent’s decision to delay paying the $53,000.00 – despite repeated requests – was another example of the Respondent’s effort to control and punish the Applicant, and make things as difficult as possible for her. a. The Respondent denied seeking to punish the Applicant. b. He testified that he was “made to understand” that if he didn’t pay the money he wouldn’t get to see his child. c. He admitted he had the obtained the $53,000.00 in August but didn’t give it to the Applicant until December. d. He was vague about why he delayed payment of the monies the Applicant said she desperately needed. e. He said he was acting on advice of his former lawyer.

[59] By early 2014 the Respondent’s access schedule was clearly set out in a two successive temporary orders. Scheduling was no longer a problem. But many other issues emerged.

Communication

[60] The Applicant testified the Respondent refused to communicate with her during access exchanges. a. She said if she tried to say something he would cut her off and tell her to put it in an e-mail. But she said he would also ignore some of her e-mails. b. The Respondent did not deny refusing to talk to the Applicant during exchanges. But he didn’t think communication problems were his fault. c. Bridgman-Acker testified good communication between parents is essential when they are separated. She said it is important for a child to witness spontaneous, civil, respectful communication when parents interact.

Changing Grace’s Clothes

[61] The Applicant testified the Respondent insisted on changing Grace’s clothing at the beginning of each visit. She explained: a. From about the time Grace was nine months old until she was two, whenever the Respondent attended the Applicant’s home to pick the child up he would immediately change her clothes before or as he was putting the child in the car seat. b. He did this all year round, even during winter, needlessly exposing the child to the cold. c. Eventually the Applicant concluded there was no point dressing Grace nicely for visits, because the Respondent would immediately replace the Applicant’s clothes with his own clothes. So she started sending Grace in pyjamas. d. She testified that on one occasion she heard Grace screaming in the car seat for a long time, fussing while being changed. She said the Respondent refused to speak to her and refused to allow her to console the child. So she later sent him an e-mail asking if Grace was ok. The Respondent replied by e-mail saying that crying was what 18 month old children do, and he was checking her teeth because they hadn’t been brushed. He e-mailed the Applicant a picture of a tube of toothpaste. e. The Applicant said the Respondent suddenly stopped changing Grace’s clothes when the issue was mentioned during a court attendance. f. During his evidence, the Respondent did not deny or explain any of this. g. I find that the Respondent’s refusal to communicate during exchanges, and his insistence on changing Grace’s clothes at the beginning of each visit created needless stress for everyone at exchange times – including most importantly, the child. h. As this court noted in Jackson v Mayerle 2016 ONSC 72, children who are the subject of high conflict custody disputes often have a heightened awareness and sensitivity to the moods and behaviours of parents, particularly during access exchanges. Parents have an obligation to ensure that they do not convey inappropriate or destructive messages to children, even in non-verbal ways. Dramatically rejecting the other parent’s clothing at each access exchange conveys a very negative and destructive message to a child.

Exchange Delays

[62] The Applicant testified she always has Grace ready to be picked up on time. But when she goes to the Respondent’s home to retrieve the child at the end of the visit, he frequently keeps her waiting. She explained the routine: a. They generally e-mail or text one another when they are on their way to pick up the child. b. When the Applicant receives confirmation the Respondent is coming, she gets Grace ready in time for his arrival. c. But even though the Applicant gives the Respondent ample notice that she is on her way, about 70% of the time when she arrives he will still make her wait 20 to 30 minutes before bringing Grace out to her car. d. The Respondent forbids the Applicant from coming to his door. (She doesn’t object if he comes to her door.) So on arrival she has to e-mail or text the Respondent that she has arrived. That’s when he starts getting Grace ready to leave. e. The Respondent testified that sometimes the Applicant also keeps him waiting – although he did not dispute her estimate that he is late 70% of the time. f. He didn’t think either parent keeping the other waiting a few minutes is a big problem. He said it’s preferable for parents to wait, rather than have Grace ready too early and have the child waiting at the door. g. I find that it is reasonable for the Applicant to expect the child should be ready at the specified exchange time. There is merit to her suggestion that the parent ending their time with the child should deliver Grace to the other parent. On time.

Travel

[63] The Applicant testified about the Respondent’s refusal to co-ordinate travel arrangements involving Grace. a. In August 2014 the Respondent advised the Applicant he was taking Grace on a trip to Prince Edward Island to visit friends and relatives. The Applicant voiced no opposition to the trip even though she had received no prior notice. He only notified her on the day they were flying to P.E.I. He provided no itinerary or contact information. b. The Applicant testified that as a result of this last minute trip, she proposed that in future they should each provide advance notice to one another of any travel plans involving the child, including contact information and itineraries. c. However, one year later – in August 2015 – the Respondent e-mailed the Applicant that he and Grace were travelling to P.E.I. for another vacation. Again, there had been no discussion ahead of time and no contact information or travel particulars were provided. d. The Applicant immediately responded by e-mail and text advising that there had been no discussion, and she did not consent to the trip without receiving travel information, a contact number, etc. e. However, it was too late: When the Respondent sent his e-mail notifying her of the trip, the plane was already taxiing down the runway, departing for P.E.I.

[64] The Respondent did not deny any of these allegations. a. He testified that travel is a big part of his life, and he wants to be able to take Grace many places. b. He did not acknowledge the need to share any travel information with the Applicant.

[65] Bridgman-Acker testified about the PEI travel issue. a. The Respondent told her he felt notification to the Applicant wasn’t important because he wasn’t taking Grace out of the country. b. He also worried that if he gave the Applicant advance notice she might express concern or opposition to the trip. c. Bridgman-Acker agreed with the Applicant that any out of province travel with the child should be communicated to the other parent in advance, and in a timely manner.

[66] I find that the travel issue is illustrative of different approaches by the parties, in terms of respecting the other parent’s right to information and involvement in Grace’s life. a. There was nothing inappropriate about the Respondent’s travel plans. The Applicant didn’t disapprove of trips to P.E.I. b. But the Respondent should have known to discuss travel plans with the Applicant prior to the August 2014 trip. c. And his failure to provide notification in August 2015 demonstrated a contemptuous attitude toward the mother, completely inconsistent with the custodial authority he seeks. d. The Applicant attempted to handle this issue in a fair-minded and pro-active manner. The Respondent demonstrated he really doesn’t care what the Applicant thinks; he’ll do whatever he wants.

Fluffy

[67] But perhaps the most mind-boggling expression of the Respondent’s hostility and defiance toward the Applicant relates to Fluffy: a small, white, stuffed animal Grace became attached to when she was about seven months old. The Applicant testified at length about this – and the Respondent didn’t deny any of her allegations.

[68] The first incident occurred in March 2015: a. Grace was experiencing separation anxiety when she went on visits with the Respondent. b. So the Applicant said she “negotiated” with Grace that she could take Fluffy with her when she went on visits. c. When the Respondent arrived at the front of her home to pick Grace up for a visit he immediately pulled Fluffy from Grace’s arm, pushed Fluffy into the Applicant’s face, and told her “I have my own stuffed animals.” d. The Applicant testified Grace became hysterical, but the Respondent simply left with the child. Fluffy stayed behind.

[69] The second incident occurred in April 2015: a. The Applicant sent the Respondent an e-mail explaining that Grace was still experiencing separation anxiety and that the child would be bringing Fluffy with her because she found the stuffed animal emotionally reassuring. b. However, when the Respondent attended at the front of her home to pick Grace up, he again removed Fluffy from the child’s arms, this time throwing Fluffy onto the driveway. c. Once again Grace became hysterical. The Respondent took her for the visit. The Applicant retrieved Fluffy and went back in her house.

[70] The Applicant testified that later in 2015 they went to court and negotiated a resolution of the Fluffy issue. (Pause for a moment to let that sink in: They went to court to negotiate a Fluffy resolution.) The Respondent finally agreed that Fluffy could accompany Grace during visits.

[71] But it turned out to be a pyrrhic victory for common sense. a. The Respondent developed a new routine: b. At the beginning of each visit, when he came to pick up Grace, she was allowed to bring Fluffy with her. c. But as soon as they got to his car, the Respondent tossed Fluffy into his trunk and closed it. They then drove away. d. To the Applicant’s knowledge, Fluffy remained in the trunk during the entire visit. e. At the end of visits, the Respondent retrieved Fluffy from his trunk, and handed the doll back to Grace. f. I suppose technically Fluffy got to come along for the ride.

[72] But things got even worse for Fluffy. a. The Applicant testified that after a while, whenever Fluffy came out of the Respondent’s trunk, the little stuffed animal smelled terrible. Fluffy gave off a noxious odor, as if dipped in Vicks VapoRub or camphor oil. b. The Applicant said on three occasions she had to wash Fluffy because Grace couldn’t possibly play with a toy which had apparently been doused in an offensive and potentially dangerous substance. c. The Applicant e-mailed the Respondent asking why he was damaging the child’s prized possession. d. The Respondent accused her of fabricating a complaint. e. The Applicant said she finally gave up and stopped sending Fluffy.

[73] Even though the Respondent was conspicuously silent about Fluffy during his testimony, OCL investigator Bridgman-Acker had lots to say on the subject. a. She said a special toy or belonging can be very important to a young child, particularly during transitions from one parent to the other. Holding on to a special possession can alleviate a child’s stress. b. She said it would be in the Grace’s best interest for parents to allow the child to take a special item like Fluffy with her, if she expressed a desire to do so. c. Bridgman-Acker said the basis of the Respondent’s opposition to Fluffy was unclear to her. He appeared not to believe Grace had a special attachment to the doll, and he didn’t think she needed Fluffy at his house. d. Under cross-examination by the Respondent Bridgman-Acker acknowledged that some children can have more than one toy that they are attached to, and that Grace had many toys at the Respondent’s home as well. e. But she also commented that some children will develop a strong attachment to one particular toy, and if that happens it is important for parents to respect the child’s emotional need to have that special toy with them wherever they go.

[74] I have no idea why the Respondent allowed Fluffy to turn into such a major and unwinnable competition. a. He doesn’t like the Applicant. I get it. b. He doesn’t like Grace wearing the Applicant’s clothes. So the child has to change into his clothes as soon as she gets into his car. I get that too. c. It’s quite apparent that at every step in this parental turf war, the father sought to imprint his “brand” on the child, and eradicate any reminder of the mother. d. But Fluffy was just…. Fluffy. e. Just a harmless little toy of no consequence to anyone….except a vulnerable two year old caught in the middle of a bitter custody dispute. f. Would it have killed him to just let the child hang on to her toy? g. Was it really necessary to make his daughter cry, just to flex his need for control? h. In Coe v Tope 2014 ONSC 4002 this court offered some very simple advice for situations like this: Stop acting like you hate your ex more than you love your child.

Activities

[75] The Applicant testified about the Respondent refusing to communicate and co-ordinate with her concerning Grace’s involvement in activities. a. On May 17, 2016 the Respondent e-mailed the Applicant advising that “Grace has a dance recital coming up” and offering to provide details if the Applicant and/or her family wanted to attend. b. The Applicant testified she had never been informed Grace had been placed in dance. She e-mailed the same day requesting particulars because she would like to attend. The Respondent didn’t reply so she e-mailed again May 20, 2016. On June 3 and June 9, 2016 the Applicant’s lawyer wrote asking for details about Grace’s involvement in dance, and the date of the recital. c. On June 6, 2016 the Applicant allowed the Respondent extra time with Grace so he could take her to a rehearsal for the dance recital. d. But the Respondent never provided any information about dance or the recital. Even as she testified during the August trial, the Applicant was unaware if the recital had taken place. e. Similarly, just before the trial, the Applicant discovered the Respondent has also been taking Grace to soccer and swimming. He never discussed these activities with her, and never notified her of dates and locations of games and practices. f. The Applicant testified if she’d known about these activities she would have taken Grace during the 60% of the time the child was with her. By monopolizing information, the Respondent prevented the child from attending any of these activities on a consistent basis.

[76] The Respondent was cross-examined about enrolling Grace in dance. a. He registered her in September 2015, without telling the Applicant or discussing it with her ahead of time. b. He said he was unaware of his obligation to share that type of information with the Applicant. He admitted he went through two lawyers while Grace was in dance. But he said he was never informed he had to share information. c. He acknowledged that even if he didn’t have a legal obligation, it would have been respectful to tell the Applicant. But he said he wasn’t really thinking about the Applicant or how she felt. He was thinking about what was best for Grace. d. He admitted that on May 17, 2016 he sent an e-mail to the Applicant advising her for the very first time that Grace was in dance, and offering information about a recital if she or her family wanted to attend. He said at the time his offer of information was sincere. e. He admitted the Applicant and her lawyer then kept e-mailing and writing asking for information about the recital, but he ignored them. f. He said the dance recital was held in June 2016 but he never told the Applicant, so she wasn’t able to attend. g. He said he changed his mind about allowing the Applicant to participate in dance because Grace was very excited about dance and he was concerned the Applicant might interfere. He offered no evidence that she had ever previously interfered with anything. h. Ironically, he was worried because of the Applicant’s reaction when he arranged Grace’s first dental appointment without telling her. i. The Respondent admitted he never communicated to the Applicant that he was concerned that her involvement might affect Grace’s enjoyment of dance. j. He said dance was very important for Grace. He said he took her to dance whenever the child was with him. He admitted there would have been many occasions when the Applicant could have taken Grace to dance during her time with the child, if she had only known about dance. k. But he disagreed that Grace was prejudiced in any way by his decision to completely shut the Applicant out of their daughter’s dance.

[77] The Respondent’s evidence about Grace’s involvement in swimming and soccer was similar. a. He enrolled Grace in swimming when she was 18 months old. As with dance, he didn’t discuss swimming with the Applicant ahead of time, and didn’t tell her until after swimming lessons were underway. b. He kept soccer a secret too. c. During his examination in chief, he presented certificates of achievement, boasting about how well Grace had been doing in swimming. d. He acknowledged that many parents came to observe their children in swimming classes, and that often parents attended together. e. He acknowledged that Grace would probably have enjoyed having the Applicant present during activities like swimming. He agreed she might like seeing both of her parents present at the same time to watch her. He said “That’s the ultimate goal. I’m hoping that we get there one day. But we’re not there yet.” f. As with dance, the Respondent acknowledged Grace ended up missing out on swimming and soccer on those days that she was with the Applicant – because the Applicant didn’t know anything about the activities. g. Nonetheless he felt justified in keeping swimming and soccer a secret from the Applicant, because he feared she would do something to disrupt his plans. h. He said they were having communication issues on more important issues like food intake, so he didn’t think dance and swimming needed to be talked about.

[78] Bridgman-Acker testified it was important for Grace to have both parents present for important events and activities in her life. She felt all information about the child’s activities should be shared.

Religion

[79] For the most part, whenever the Respondent explained why he repeatedly shut the Applicant out of Grace’s life, he couched it in terms of not really knowing the rules and doing what he thought was right.

[80] But on one recent issue, by his own admission the Respondent knew exactly what a court order required him to do. He just decided to ignore the court order.

[81] The Applicant and the Respondent are both Catholic. One of the few things they agreed to from the outset was that Grace would be raised Catholic. They consented to the order of Justice McLaren dated February 25, 2014 which included the following terms, on a final basis, in paragraph 3: “(Grace) shall be raised in the Catholic faith. Both parties will be involved in organizing and attending Grace’s religious sacraments, and may take her to church on his or her time with the child.”

[82] The Applicant testified that despite this very specific – and important – court order, she recently learned that the Respondent had arranged for Grace to be baptized without ever telling the mother about it.

[83] The Respondent was cross-examined about this: a. He admitted he knew all about the court order. He had a copy of it. He read it. He had a lawyer at the time who explained it. The Respondent actually consented to these terms. b. He admitted that even though the court order specified the Applicant was to be equally involved with Grace’s religious sacraments – he went ahead and arranged Grace’s baptism without discussing it or ever letting her know about it. c. He admitted this was not just a snap decision. The baptism involved a lot of planning. Selecting a date. Making arrangements at the church. Inviting family and friends. For an extended period of time the Respondent acted in deliberate disregard of the court order. d. The Respondent acknowledged it was an important, once in a lifetime event. Grace was excited and enjoyed herself. They had a reception afterwards. Family photographs were taken. He named his sister as the godmother. e. He admitted it was a very special time for everyone – everyone except the Applicant and her family. They missed out on all of it. f. The Respondent admitted he deliberately and knowingly contravened the court order. He didn’t really have much of an explanation – or any sense of remorse. g. He testified that as a result of unspecified “events leading up to the baptism” he just couldn’t bring himself to comply with the order and involve the Applicant. h. On this -- and many topics during questioning – he was vague and evasive.

[84] Bridgman-Acker testified the baptism, which took place after the OCL’s disclosure meeting and the s.112 report was issued. a. She said she understood the existing order specified that both parents were to be involved in religious decisions and activities. In that context, she understood that the Respondent was going to take the lead in organizing religious celebrations, but that he was not going to assume exclusive control and shut the Applicant out. b. She said a baptism is a pretty critical part of a child’s life, particularly if – as here – both parents are Catholic. She said it was an event which both parents should have participated in. c. She disapproved of the Respondent’s decision to arrange the baptism without even telling the Applicant about it. “It doesn’t demonstrate good co-parenting.” d. She said it caused her to have doubts about the Respondent’s willingness to include the Applicant in future aspects of the child’s life.

[85] While listening to the Respondent’s explanation of his wilful disobedience of a court order, I was struck by his nonchalant manner. a. He knew what the Judge ordered. b. But he felt he knew better. c. So he just went ahead and did what he wanted. d. I heard a lot in this trial about the Respondent knowing better than everyone. And doing what he wants.

Catholic Children’s Aid Society

[86] For his part, the Respondent had his own complaints about the Applicant. So much so that in the spring of 2014 he called the Catholic Children’s Aid Society (CCAS) to file a complaint about the mother’s handling of three separate issues.

[87] The Applicant testified that she received a single telephone call from a CCAS worker. After the Applicant explained her position in relation to the Respondent’s complaints, the CCAS worker advised that the matter was concluded and no file would be opened.

[88] The Respondent complained to CCAS about the Applicant’s improper and unsafe use of a car seat. a. I heard a disproportionate amount of evidence about the car seat issue. The Respondent probably mentioned close to 100 times during the six day trial that he was a certified car seat technician. b. The Applicant’s position: She is well aware of car seat regulations and has always complied. She had issues adjusting a car seat during a brief period she had to drive a rental car, but even then she was in compliance with regulations. Grace’s safety was never jeopardized. c. The Respondent’s position: The Applicant installed Grace’s car seat facing frontwards when it should have been facing backwards. She also didn’t replace the car seat quickly enough after her vehicle was in a collision (Grace wasn’t in the car at the time). The Applicant was jeopardizing Grace’s safety. d. No judge will ever criticize a parent for being too worried about their child’s safety. e. Having said that, I am satisfied that at all times the Applicant took proper steps to ensure that Grace was safely transported in a car seat, and that she always complied with the law.

[89] The Respondent complained to CCAS about Grace being bitten by the Applicant’s dog Macey, a cockapoo. a. The Applicant acknowledged the dog didn’t like children. While the Applicant was pregnant, the dog “nipped” a visiting child. In the spring of 2014 Macey bit Grace on the hand. The Applicant immediately took the child to Joseph Brant Hospital where the hand was cleaned and bandaged (no stitches were required). The Applicant then got rid of Macey. b. The Respondent accused the Applicant of needlessly endangering the child, and trivializing the incident. c. The Applicant countered that the bite itself was minor, but she fully acknowledged the fact that Grace was bitten was a serious issue.

[90] I agree with the Respondent: This was a safety issue and Grace never should have been bitten by a dog. a. But the incident also reflects how parents should work together when problems arise. b. In this case, the Applicant telephoned the Respondent immediately after the dog bite, to advise she was taking Grace to the hospital. As it happens, the Respondent did not attend at the hospital. c. A serious problem arose. The parents discussed it. The Applicant immediately took steps to prevent a reoccurrence. d. I would not characterize this as negligent or deficient parenting.

[91] The third issue the Respondent told the CCAS about was a diaper rash. Except the parties couldn’t even agree on whether it was a diaper rash, a yeast infection, or something else. a. Again, I heard a lot of evidence about this. b. I was even presented with a picture of a dirty diaper. c. I can only conclude that both parents were equally diligent in addressing this issue.

[92] Bridgman-Acker testified she couldn’t really comment on whether it was reasonable for the Respondent to contact CCAS if he had what he felt to be legitimate safety concerns.

[93] I am inclined to think the call was unnecessary and strategic.

French School

[94] Both parties testified at length about the most contentious issue in the trial: the choice of schooling for three year old Grace who will start senior kindergarten in September 2017.

[95] The Applicant’s proposal: a. Grace should attend Guy Brown School in Waterdown. b. The Applicant’s backyard is literally adjacent to the school property. So no school bus would be required, and Grace wouldn’t have to get up early to get to school. c. Grace has many neighbourhood friends who attend or will be attending Guy Brown. d. The parties have already agreed Grace’s primary residence is going to be with the Applicant. It makes sense for her to attend school in the district where she will be residing most of the time. e. Even though the Applicant does not speak French, she agrees with the Respondent that Grace would benefit from an education in French. She proposes a French Immersion program which involves a mix of both French and English instruction. f. Guy Brown also offers an English program. The Applicant says this creates future options. If Grace does not find the French program suitable she can switch to the English stream without changing her environment or friends. g. The Applicant wants to be actively involved in Grace’s education. But she only speaks English. If Grace goes to a French-only school, the Applicant will not be able to participate in her education. And with the Respondent being so uncooperative, she can’t count on him to share information if Grace goes to a French school in his district.

[96] The Respondent’s proposal was less specific. a. He said Milton offers a fully French elementary school, which is Catholic (so it would fulfill the child’s religious needs as well). b. He didn’t provide any specific information about the school; its location in relation to his home; or details about its academic program. c. He didn’t address transportation or scheduling considerations. He didn’t dispute the Applicant’s understanding that Grace would have to take a school bus.

[97] The Respondent testified about the importance of French in Grace’s life: a. He said Grace is fluently bilingual because he has been teaching her French since she was born. He described her fluency in French as excellent and above her age level. b. He said there’s no shortage of opportunities for her to develop her English language skills. She speaks English with the Applicant, and all of her play activities with other children are in English. c. But he said she needs more exposure to French, beyond just speaking it in his household. She needs to play in French and have instruction in French. d. He said the only way this could be accomplished would be for Grace to attend a fully French school. e. He said learning French is not just a “brain builder” for the child. Knowing the language will be an important asset in her life, creating many opportunities for her. f. He said Grace also has friends near his home. He didn’t specify whether those children would be attending the French school.

[98] Bridgman-Acker testified about the school and French immersion issue. a. She felt that as a non-French speaking parent, it was reasonable for the Applicant to propose that Grace’s education be in both English and French. b. She expressed concern the Applicant would not be able to participate in Grace’s education if the child’s schooling was 100% in French. c. She said it was important that both parents are able to participate in such a fundamental aspect of a child’s life, whether the parent has custody or access.

Pre-School

[99] The Applicant also testified she wishes to enroll Grace in Creative Beginnings Pre-School in September 2016. a. It is situated in Carlisle, Ontario which is between the parties respective residences – although closer to the Applicant’s. b. The purpose would be to help Grace socialize, prepare for Junior Kindergarten, and create structure and routine in her life between 9 a.m. and 2 p.m. c. She said consistent routine is important. For example, the Respondent currently allows Grace to nap whereas the Applicant finds that without naps Grace goes to bed at a reasonable time in the evening. d. Creative Beginnings is a co-op program, meaning parents are expected to participate on assigned days. The Applicant intends to volunteer at the co-op and hopes the Respondent will as well.

[100] The Respondent did not really comment on this pre-school proposal. a. He said Milton offers a full French daycare program. Again he provided no particulars. b. He did not indicate whether he would be prepared or able to volunteer at a co-op pre-school program.

[101] I will discuss the education issue in more detail below. a. But I note that the Applicant provided very specific information about her school and pre-school proposals. b. In contrast, the Respondent simply stated Milton has a 100% French daycare and a 100% French elementary school.

Siblings

[102] Bridgman-Acker also testified about the Applicant’s older daughters Amy and Sarah: a. The Applicant has an excellent relationship with the older girls. b. Amy and Sarah have a very strong relationship with Grace. They spoke positively about having their younger sister in the home. c. There is a great deal of love and affection between Grace and her older half-siblings. d. The social worker said it is very positive for Grace that she have and maintain a strong relationship with Amy and Sarah.

Legal Analysis

[103] These parties were never married. Their parenting issues must be determined pursuant to the Children’s Law Reform Act.

[104] Section 21 of the Act provides that a parent or any other person may apply for an order respecting custody of or access to a child, or determining any aspect of the incidents of custody of the child.

[105] Section 24(1) directs that the merits of an application dealing with these issues must be determined based on the best interests of the child. All of the caselaw confirms that “best interests of the child” is the determining factor with respect to all parenting issues.

[106] The factors which the court is required to consider in carrying out the best interests analysis are set out in section 24(2): 24(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 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 up-bringing; (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.

[107] Custody has been described as a "bundle of rights and obligations" including the right to physical care and control of the child; to determine the child's residence; to discipline the child; and to make decisions about the child's education, religion, medical care and general health and activities. Young v. Young, (1993), 49 R.F.L. (3d) 117 (S.C.C.); Chou v. Chou, [2005] O.J. No. 1374 (Ont. S.C.J.); Harsant v. Portnoi, [1990] O.J. No. 1144, 74 O.R. (2d) 33 (Ont. H.C.)); Izyuk v. Langley, 2015 ONSC 2409; Jackson v Mayerle (supra).

[108] An award of sole custody to one parent grants decision-making rights to that parent, generally to the exclusion of the other parent's ability to interfere or impose their own preferences. Kruger v. Kruger (1979), 11 R.F.L. (2d) 52 (Ont. C.A.).

[109] While neither parent proposed either joint custody or parallel parenting, the “best interests” analysis requires that I consider all possible options – and not just those proposed by the parents. Similarly, the court is not required to make any custody designation. M. v. F. 2015 ONCA 277.

[110] However, in this case I agree with the parents as to the realistic options: a. Neither joint custody nor parallel parenting would be appropriate given the level of conflict; the poor communication; and the inability to co-parent. b. A sole custody order is definitely required for exactly the same reasons: the level of conflict; the poor communication; and the inability to co-parent.

[111] I also note that while a custody designation typically entails a combination of both "decision-making authority" and "primary residence", in some cases it is in the best interests of the child to treat decision-making and timesharing as separate issues. I mention this to clarify that simply because the parties reached agreement that primary residence would be with the mother, it does not necessarily mean that custody to the mother automatically follows.

[112] Applying the section 24(2) best interests factors, I have considered the following: a. Grace has a strong, equally loving bond with both parents. In addition she has a close sibling relationship with the Applicant’s twin 19 year old daughters. There are no other persons living in the Respondent’s home. Grace also has a positive relationship with extended family on both sides. Section 24(2)(a) b. She is too young for views and preferences to be a relevant consideration. But she appears happy and comfortable while in the care of each parent. Section 24(2)(b) c. Since the date of separation, just weeks after her birth, Grace has resided primarily in the care of the Applicant who has consistently demonstrated excellent, enlightened and beneficial parenting skills. The parties have already agreed the status quo is to continue in relation to timesharing. Beyond that, the status quo is that the Applicant’s assumption of day to day decision making has been carried out in an enlightened and fair manner. In contrast, to the extent that the Respondent has unilaterally taken on decision making responsibility, he has made some very poor and unfair decisions. Section 24(2)(c) d. There is no issue as to the ability and willingness of either party to provide for Grace’s instrumental needs. Section 24(2)(d) e. The plan in relation to timesharing has already been agreed to. As for the plans in relation to schooling, the Applicant’s proposal appears to be more specific, more comprehensive, more realistic, and more beneficial for the child. Section 24(2)(e) f. Both parties can offer permanence and stability in the child’s life. Section 24(2)(f)

[113] That leaves us with section 24(2)(g) – the ability of each person to act as a parent. And really, this is the issue which causes the court the most concern.

[114] The Respondent is a wonderful father but a terrible separated parent. a. The evidence is overwhelming that he doesn’t trust the Applicant. b. He doesn’t respect her as a mother or person. c. He doesn’t regard her as an equal in Grace’s life. d. He doesn’t acknowledge the importance of the mother-daughter relationship. He certainly has no interest in promoting it. e. He boasts of a background in psychology, and yet he seems to have very little insight into human dynamics or relationships. f. He emphasizes past employment credentials as a child therapist. And yet he has repeatedly shown astonishing indifference to his own daughter’s emotional wellbeing. g. The Respondent’s undeniable personal strengths are blunted by his overwhelming sense of superiority and entitlement. Even on the witness stand he made it clear that he knows better than anyone. Certainly better than the Applicant. h. He persisted in defending every bad parenting decision as a good decision. He gave no indication that in the future his self-centered behaviour would change. Or could change. i. The Respondent’s narrative – his heavy handed behaviour – is largely based on a self-serving fixation that somehow he is the victim in all of this. More than three years after separation, he’s still using the “she moved out and left me a note” excuse as a licence to pretty much do whatever he wants with Grace. It’s an excuse that’s wearing thin. j. In truth, the Respondent is no victim. He’s a bully. A very sophisticated, well-spoken control freak with a grudge. k. None of his personal failings would matter a bit, if they didn’t impact on Grace. But they do. l. The inability to compromise. The total lack of empathy. The selfishness and deception. The thinly veiled vindictiveness toward the Applicant. Giving any amount of decision making authority to a parent with these destructive predispositions would be a recipe for disaster.

[115] In contrast, the evidence about the mother has been uniformly reassuring. a. She has consistently made good decisions for Grace. b. She has facilitated and encouraged timesharing and meaningful involvement by the Respondent. c. She was child-focussed in her actions and in her testimony. d. She is a skilled parent with excellent insight and a strong commitment to safeguarding her daughter’s emotional needs. e. In short, the Applicant has what the Respondent lacks. A sense of fairness and equality.

[116] Without hesitation I find that it is in the best interests of the child that the Applicant be granted sole custody of Grace. I am confident she will make good decisions and won’t abuse her authority.

[117] That still leaves the issue of education.

[118] In Perron v. Perron, 2012 ONCA 811 the Ontario Court of Appeal dealt with the issue of French-language schooling as an essential element of the broader determination of custody. The following principles emerge: a. It is exceptional to include a condition concerning the choice of schooling in a custody order. Ordinarily the parent awarded custody is presumed to have authority to make decisions in relation to education. b. But the language of children’s education is important in considering their best interests. c. The French language has special status in both Canada and Ontario. For example, access to homogeneous French-language schools is guaranteed by s. 23 of the Charter. d. As a result trial judges should be particularly sensitive to the language of education in circumstances where there is only one Francophone parent and the English-speaking parent has been granted custody. e. In appropriate circumstances, it may be in the best interests of the child for the court to consider a separate determination of schooling, distinct from the custodial parent’s overall decision-making authority – and not necessarily reflective of the custodial parent’s preferences. f. Education in a homogeneous French-language school is quite distinct from a French immersion program. It offers many advantages relating to language skills, cultural understanding and maintaining a bond between children and their French-speaking parents. In contrast, a French immersion program is designed for English speakers in an English-language majority environment and provides bilingual instruction — usually 50 per cent in French and 50 per cent in English. g. In a linguistic minority environment, homogeneous French-language schools are generally preferable to French immersion programs for ensuring that both languages -- French and English -- are maintained at the highest level. h. Sharing the language and culture of both parents accords with the “maximum contact” principle set out in the Divorce Act, and inherent in the Children’s Law Reform Act. i. A parent’s request for homogeneous French-language schooling need not automatically prevail. But the cultural significance of the issue requires that the option be fully considered as an important part of the “best interests” analysis. j. The question of a child’s language of education must take into account all the factors set out in s. 24(2) of the Children's Law Reform Act as a whole. Linguistic and cultural considerations alone cannot dictate the result

[119] In Perron the appellant father had presented at trial a significant amount of evidence on the challenges faced by the French-speaking linguistic minority in an English-language environment such as Hamilton. That evidence spoke to the risk of linguistic assimilation and cultural alienation in a minority linguistic setting, as well as to the essential role played by homogeneous French-language schools in maintaining French language and culture. The Court of Appeal noted that the whole of this evidence would have equipped the trial judge to properly assess what language of education would be in the children's best interests -- and that analysis should have been undertaken.

[120] During this trial the Respondent provided relatively little evidence as to the specific advantages of a homogenous French language education, and how it would be in the best interests of Grace in all the circumstances. a. He spoke emotionally, but not factually. Indeed, his evidence on this topic was relatively brief. In his testimony he spent more time talking about car seats than schools. b. He focussed exclusively and generically on language, without fleshing out necessary details in relation to either Grace or the Milton French school he proposes. He didn’t even touch upon what sort of daily routine the child would experience, or any challenges which might foreseeably arise. c. He failed to address or refute the many obvious advantages inherent in the Applicant’s choice of school.

[121] In contrast, the Applicant’s proposal was balanced, child-focussed, and well thought out. a. Her unconditional support for French immersion acknowledges & reasonably addresses the relevant linguistic, cultural and developmental concerns for a young child yet to start school. The schooling issue must be determined in the context of the child’s overall best interests. b. The Respondent did not challenge the academic credentials of Guy Brown School or its French immersion program. The Applicant gave us specifics. The Respondent did not. c. The Applicant lives literally next door to Guy Brown school. It’s a two minute walk from the house Grace will be living in 60% of the time. Geographic convenience isn’t everything, but by the same token practicality cannot be ignored when it comes to young children. d. Grace has many neighbourhood friends who would be attending the same school with her. This is also an important consideration in assessing the nature and quality of the child’s daily experience. e. Perhaps most importantly, the Applicant is an excellent, dedicated parent with much to offer Grace – including a vital role as both the custodial parent and the primary resident parent, to participate in the child’s day to day educational issues. Quite simply, the Respondent’s French-only proposal will completely exclude the Applicant from meaningful involvement in her daughter’s education – forever. In comparison, with the Respondent being fluently bilingual, he will be equally capable of fully participating in educational matters whether Grace’s schooling is in French, English or both.

[122] Notably, in Perron the Court of Appeal confirmed that the father’s worthy submissions on the French schooling issue did not nearly overcome his shortcomings on the broader issue of which parent should be granted custody. a. Those same considerations apply here. b. Perhaps my biggest concern about the Respondent is his exclusionary and monopolizing approach toward Grace’s important activities, and his absolute refusal to share important information or facilitate co-parenting. c. If Grace attends a French-only school in the Respondent’s city, there is significant danger that the father will exploit this dynamic to systematically isolate the Applicant. The destructive power struggle will continue.

[123] The Respondent referred to Bandas v Demirdache 2013 ONCJ 679 in support of his position. But the facts were entirely different. Bandas was a motion to change. A father sought to transfer a child from a French-only school into a French immersion program. Apart from referring to the Perron decision – which I have already thoroughly considered – Bandas is of little assistance.

[124] In the final analysis, while education in the French language brings many advantages, judges must ultimately decide schooling based on the facts of each particular case. The focus must be on the best interests of the particular child, as opposed to children in general. Bamford v Peckham 2013 ONSC 5241.

[125] I find that it is in the best interests of Grace that the Applicant be permitted to enroll her in the French Immersion program in Guy Brown school in September 2017.

The Order

ON CONSENT:

[126] Timesharing in relation to the child Grace Rowan Hamilton born March 30, 2013 shall be divided between the parties such that the child shall be in the Respondent father’s care during the times set out below in a repeating 28 day cycle. The child shall be in the Applicant mother’s care during the remaining times. a. Week 1: Friday 10 a.m. to Wednesday 7 p.m. b. Week 2: Monday 10 a.m. to Thursday 7:00 p.m. c. Week 3: (Child with Applicant) d. Week 4: Thursday 10 a.m. to Sunday 5 p.m.

[127] The Respondent shall pay to the Applicant $500.00 per month as support for the child, commencing September 1, 2016.

[128] The $500.00 amount is based upon the following considerations: a. The Applicant’s income is $60,000.00 b. The Respondent’s income is $90,000.00 c. The added expenses of the aforementioned timesharing arrangement have been considered, pursuant to section 9 of the Ontario Child Support Guidelines.

[129] The parties shall share section 7 expenses, with the Respondent paying 60% and the Applicant paying 40%.

[130] Neither party shall be entitled to contribution towards a section 7 expense unless the other party consents to such expense being incurred. Such consent shall not be unreasonably withheld. In the event of disagreement the matter may be returned to court.

NOT ON CONSENT:

[131] The Applicant mother shall have sole custody and day to day decision making authority in relation to the child Grace. She shall have sole and final decision making authority with respect to all issues in the child’s life.

[132] The Applicant shall consult with the Respondent prior to implementing any non-emergency decisions in the child's life. The consultation shall occur as soon as the Applicant becomes aware of the issue and if possible at least 30 days prior to the date on which a decision has to be made. The Respondent shall be entitled to make inquiries and provide feedback and suggestions. However, after consultation has occurred, the Applicant shall have the final decision making authority.

[133] The Applicant shall have the authority to select a daycare or pre-school program prior to September 2017.

[134] The Applicant shall have the authority to enroll Grace in the French Immersion program at Guy Brown School in Waterdown, Ontario, effective September 2017.

[135] The Applicant shall have the authority to select any professionals or service providers to be involved in the child's life including her doctor, dentist, and any counsellors, tutors, etc. She shall have sole authority to determine the need for such professional involvement. Except for emergency medical treatment, the Respondent shall not be permitted to take the child to any other health care provider or counsellor, without the prior consent of the Applicant.

[136] The Applicant shall keep the Respondent informed in writing as to the particulars of any professionals, educational institutions, or recreational associations involved in the child's life.

[137] Both parents shall be listed as contact persons with all medical, educational, recreational and social agencies involved with Grace.

[138] The Applicant shall notify the Respondent in writing prior to any medical or professional appointment for Grace (as soon as the appointment is booked) and provide full particulars immediately after the child has attended for the appointment.

[139] Both parties shall be entitled to receive copies of all medical, dental, school and other reports related to the child. Both parties shall be entitled to communicate directly with the child's teachers, caregivers, physicians, dentists, and other health care providers concerning the general well-being of the child. Both parties shall be listed on all documents pertaining to the child and shall be entitled to attend any of the child's scheduled appointments. Both parties shall execute consents or authorizations to all persons, including teachers, doctors, dentists and others involved with the child to speak fully and openly with both parties.

[140] In the event of a serious illness, accident or other misfortune involving the child, the party then having the child in their care shall immediately and promptly notify the other party.

[141] The Applicant and the Respondent shall each have authority to arrange emergency medical treatment for the child. If such an emergency situation arises, the party with care of Grace shall make all reasonable efforts to contact the other party immediately, to allow that party to attend the emergency medical treatment facility.

[142] During any period of illness by Grace or recovery, each party shall have generous and reasonable contact with the child, consistent with the conditions of this order and the welfare and happiness of the child.

[143] If the child is sick, the transition from one parent's care to the other parent's care is to proceed unless the child is too sick to travel between the parties' homes as per the determination of the child's doctor.

[144] The parties shall keep one another informed of their residential telephone numbers, their residential address, and their e-mail address.

[145] The parties shall provide one another with 90 days advance notice of any intention to relocate their ordinary residence outside of the City of Hamilton (in the Applicant’s case) or the Region of Halton (in the Respondent’s case).

[146] The parties shall communicate primarily by way of e-mail. For anything of a time sensitive or urgent nature, the parties shall call or text and a response shall be provided as soon as the parent receives that communication. Each party shall check their e-mail account at least once a day. Each party shall respond to e-mailed inquiries within 24 hours of receipt (except during vacations). E-mail communications shall be brief, civil and relate only to parenting or financial issues. Neither party shall allow the child to see any e-mails or written communications exchanged between the parties.

[147] Neither party shall allow any person to make negative or disparaging comments to Grace about the other parent or members of their family or household. They shall at all times encourage the child to have a positive and respectful relationship with the other parent and members of the other parent’s family and household.

[148] The parents shall not communicate about issues or non-emergency arrangements when Grace is present or nearby. They shall not convey messages or documents using Grace as an intermediary. They shall not encourage the child to make requests or proposals on their behalf.

[149] The parties shall not question Grace (or comment to the child) about the other parent's personal life and activities.

[150] The core timesharing schedule set out above shall be subject to modification to allow each parent to share time with Grace for vacations, special occasions, statutory holidays, and school breaks at Christmas and in the spring. In the absence of any other advance agreement in writing, the following deviation from the regular timesharing schedule shall occur: a. Grace’s birthday period shall be defined as March 29 at 8:00 p.m. to March 30 at 8:00 p.m. In even numbered years Grace shall be with the Applicant. In odd numbered years Grace shall be with the Respondent. b. Grace shall be with the Applicant each Mother’s Day from 10 a.m. to 6 p.m. if it is not otherwise the Applicant’s day; and with the Respondent each Father’s Day from 10 a.m. to 6 p.m. if it is not otherwise the Respondent’s day. c. At March break, in even numbered years the Applicant shall have the child from the last day of school Friday 3:00 p.m. to the following Saturday at noon (ie, eight days) and the Respondent shall have the child from Saturday noon to Monday at 9:00 a.m. In odd numbered years this pattern shall be reversed, with the Respondent having the first eight day block of time. d. At Christmas, the total number of days in the school break shall be divided equally between the parties and this shall commence in 2016 even though Grace will not yet be in school until 2017. (For Christmas 2016 the dates of the ordinary public school break shall be adopted for purposes of scheduling.) As part of the even division of the annual school break, in even numbered years Grace shall be with the Applicant from December 24 at 9:00 p.m. until December 26 at noon, and she will be with the Respondent from December 26 at noon until December 28 at 9 p.m. In odd numbered years those core times shall be reversed. Whichever parent is not scheduled to have the child overnight on Christmas Eve shall have their first choice as to how the remaining days of the Christmas school holiday are divided, provided that the overall division of time shall be equal, and provided that the selection of times is communicated in writing no later than December 1 st. e. At Easter, in even numbered years the child shall be with the Applicant from Thursday after school until Saturday at 8:00 p.m. and the child shall be with the Respondent from Saturday at 8:00 p.m. until Tuesday at 9:00 a.m. In odd numbered years this shall be reversed. f. At Thanksgiving, in even numbered years the child shall be with the Applicant from Sunday 8:00 p.m. to Tuesday 9:00 a.m., and in odd numbered years this shall be reversed. g. At Halloween, in even numbered years the Applicant shall have the child from after school October 31 st (or 3 p.m. if it is not a school day) until 9:00 a.m. the following morning, and the Applicant shall assume responsibility for organizing Halloween activities including costumes and trick or treating. In odd numbered years the reverse shall apply with the Respondent. Whichever parent has Grace for Halloween shall allow the other parent a brief opportunity to see the child in costume. h. Commencing in the summer of 2017 each party shall have the child for a seven day period in July and a seven day period in August (not to be combined with any adjacent block of time the party would otherwise be entitled to). In even numbered years the Applicant shall have first choice of their weeks, provided they communicate that choice in writing by April 1 st, failing which the other party shall have their first choice of weeks. In odd numbered years this formula shall be reversed.

[151] The provision for vacation and special occasion timesharing herein is intended to provide a basic structure. Insofar as the Respondent has less scheduling flexibility as a result of his shift work, there is an expectation that the parties will make such accommodations as may be necessary to maximize the Respondent’s availability in relation to holidays and special occasions. Flexibility on the part of the Applicant is expected, but the Applicant shall not be expected to surrender any statutory holidays she would otherwise be entitled to.

[152] Grace may travel within Canada for vacation purposes with either parent, which travel will not require the consent of the other party. However, the parents shall notify one another in advance, in writing, whenever Grace will be sleeping away from that party's ordinary residence for more than two nights in a row. The notification shall be made as soon as the travel plan is identified, and full particulars of the trip shall be provided prior to departure, including contact information. Travel outside of Ontario but within Canada shall require at least 14 days advance notice.

[153] Either party proposing international travel involving the child shall provide the other party with full particulars at least 30 days prior to the intended travel, including the exact itinerary, destinations, accommodations, methods of communication, and proof of out of Province health care coverage for the child.

[154] The parent travelling with the child shall ensure that Grace initiates a telephone call (or Skype call) to the non-travelling parent at a pre-arranged time, at least once every three days of the trip.

[155] If either parent plans to take a vacation not involving Grace, that parent will give the other parent a telephone number where he or she can be reached in case of emergency or if Grace wishes to contact the travelling parent.

[156] Both parties shall cooperate in obtaining a passport and any other documents required by Grace.

[157] The parties shall provide one another with copies of all relevant child related documents such as the OHIP card, birth certificate, SIN documents, passport etc. In even numbered years the Applicant shall retain physical possession of the original documents. In odd numbered years the Respondent shall retain physical possession of the original documents. However, any party travelling out of Canada with the child (as provided for herein) shall be entitled to have the child's original documents (including her passport) for the duration of the trip.

[158] Neither parent shall make any permanent or long-lasting change to the child's physical appearance (such as piercings; tattoos; hair dying) without the prior written consent of the other parent. If the parties cannot agree in advance with respect to ordinary cosmetic and grooming issues such as haircuts, in even numbered years non-permanent issues shall be determined by the Applicant, and in odd numbered years non-permanent issues shall be determined by the Respondent.

[159] At access exchange times, it shall be the responsibility of the party ending their time with the child to deliver the child to the other party (or to the school, if applicable). Exchange times shall be strictly adhered to.

[160] Grace shall be allowed to take her preferred belongings between households.

[161] During access exchanges the parties shall have minimal interaction with one another. They shall not use the occasion to communicate about parenting issues. They shall facilitate the exchange quickly and in a positive manner. They shall respect one another's privacy. The party delivering the child shall leave as soon as the exchange has taken place.

[162] Each party shall encourage and facilitate the child to initiate regular contact with the other parent, by telephone or electronically. As a minimum (and not including vacations spent away from home) if one of the parties will have Grace in their care for two or more overnights in a row, that parent shall ensure that Grace initiates a telephone call to the other parent on the evening of every second overnight at 7:00 p.m.

[163] In the event that a school or daycare facility needs to contact a parent during daytime hours, the Applicant is to be contacted first, but if she cannot be reached the Respondent is to be the second contact person. If either parent is contacted, they shall make their best efforts to immediately notify the other about any issue which has arisen.

[164] The parties shall share selection of extra-curricular activities for Grace in the following manner. a. Each year they will take turns selecting activities. b. In even numbered years the Applicant shall select first, and make a selection by January 30th. The Respondent shall select second by March 31. The Applicant third by May 31. And the Respondent fourth by July 31. If a party misses a deadline for selection of an activity, the other party may proceed with their selection (but unless the parties agree otherwise, neither party shall be entitled to select more than two activities per year). c. In odd numbered years the pattern shall be reversed. d. Selections may be for an activity which takes place during any portion of the year. A selection may not overlap or conflict with the schedule for a previously selected activity. e. Only the parent who has physical care of the child during the extracurricular activity shall attend the event. However, for school or religious events, playoffs or final competitions and presentations, both parents may attend. The parent who has Grace in their physical care shall be responsible for preparation of the child for the activity. f. Both parents shall make their best efforts to ensure that the child attends most activity commitments during the time the child is in their care. If the parent has difficulty arranging transportation in relation to the event, but does not otherwise have plans involving the child, that parent shall offer the other parent the opportunity to transport the child to the activity. g. These terms set out a basic framework for extracurricular activities. The parties may agree to make other arrangements. h. Apart from these provisions, neither party shall make any scheduling commitments for the child which encroaches on the other party's time with the child.

[165] The parties shall exchange by June 30 th annually, copies of their tax returns and notices of assessment. If either party is self-employed, their disclosure shall include business financial statements including records for any corporations they control.

[166] Both parties shall maintain for the child such health care coverage as may be available to them through any employment. Each party shall execute any documentation which may allow the other party to interact directly with the health insurance provider. A party who is reimbursed for medical expenses paid by the other will immediately forward the reimbursed payment to the other.

[167] Each party shall designate the child as beneficiary of the first $250,000.00 of insurance on their life, with the other party and a nominee designated by the insured to be named as joint trustees. This obligation shall continue for so long as Grace remains a dependant child. The amount of life insurance may be subject to redetermination as the child gets older.

[168] The parties shall provide one another with corroboration of compliance with the health care and life insurance provisions herein, on an annual basis, by June 30 th.

[169] Support deduction order to issue.

[170] If any issues or corrections (other than costs) need to be addressed, the parties should contact the trial co-ordinator within 15 days to arrange a mutually convenient time to see me.

[171] If costs are the only issue to be addressed, the parties shall file written submissions on the following timetable. a. The Applicant shall serve and file her written submissions within 30 days. b. The Respondent shall serve and file his responding submissions within 20 days of being served. c. The Applicant shall serve and file any reply submissions within 10 days of being served. d. The parties may not consent among themselves to extend these timelines.

Postscript

[172] If only he’d been nice to Fluffy.

[173] If only he’d been nice to the Applicant.

[174] If only the Respondent had remembered the two magic words of custody cases.

[175] “Be nice.”

Pazaratz, J. Released: August 17, 2016