Reasons for Judgment

Court File No.: FS-17-21786 Date: 2018-11-01 Ontario Superior Court of Justice

Between: Karinna Margaret Gerda Petersoo, Applicant/Respondent in Appeal – and – Tonu Elmar Petersoo, Respondent/Appellant in Appeal

Counsel: Karen Ballantyne, for the Applicant/Respondent in Appeal Michael Stangarone and Stephen Kirby, for the Respondent/Appellant in Appeal

Heard: October 22, 2018

Before: Akbarali J.

Overview

[1] The respondent/appellant in appeal, Tonu Petersoo, appeals from the arbitration award of Arbitrator Gregory Cooper dated August 21, 2017, and the costs award of Arbitrator Cooper dated November 1, 2017. Among other things, Arbitrator Cooper awarded sole custody of the parties’ three children to the applicant/respondent in appeal, Karinna Petersoo (who now goes by Karinna Neumann and to whom I will refer as Ms. Neumann), permitted her to relocate with the children from Toronto to Guelph, and imputed Mr. Petersoo’s income at $250,000 for support purposes.

[2] Mr. Petersoo argues that the arbitration was unfair, because he only received notice that mobility was an issue for the arbitration the day before it commenced. He argues that the arbitrator misapprehended the evidence, relied on inadmissible hearsay evidence, relied on Ms. Neumann’s inadmissible opinion evidence, failed to attach appropriate weight to the children’s views and preferences and to the maximum contact principle, and determined the financial issues without adequate evidence. He seeks to set aside the arbitration award in its entirety.

[3] Ms. Neumann has brought a motion to admit fresh evidence on appeal, relating principally to the children’s current circumstances, which Mr. Petersoo resists. However, he argues that if the motion is granted, the fresh evidence that he has filed on the motion also ought to be admitted.

Background

[4] The parties married on May 24, 2003 and separated on January 1, 2011. They have three children: K, a girl who is almost 11 years old, and U and J, twin boys who are almost 9 years old.

[5] In 2013 the parties signed a Mediation-Arbitration agreement with Gregory Cooper. It identified the issues that were submitted for the determination as custody, access, spousal support, child support, s. 7 expenses, equalization of net family property and costs.

[6] Later in 2013, the parties negotiated a separation agreement that provided for joint custody, and primary residence of the children with Ms. Neumann. Mr. Petersoo had significant parenting time on alternate weekends, Tuesdays overnight, and alternating Thursday evenings, plus holiday and vacation time. The separation agreement reflected a negotiated income of $150,000 for Mr. Petersoo for support purposes, and set child support at $3,000 per month (with some temporary reduction for overpayments) – an amount that was supposed to include all special and extraordinary expenses except certain medical and dental expenses.

[7] The separation agreement provided that the parenting plan and child support would be reviewed on or before September 1, 2015. In fact, the review process began in late 2015 or early 2016.

[8] Unfortunately the mediation arising out of the review was unsuccessful, requiring the parties to proceed to arbitration.

The Arbitration

[9] The Mediation-Arbitration agreement provided that the procedure for the arbitration would be determined by Arbitrator Cooper in consultation with the parties, that Arbitrator Cooper may determine a timetable for the delivery of briefs, financial disclosure and “other documents”, and that if a hearing was held, all usual rules for the admissibility of evidence in court proceedings shall apply.

[10] The Mediation-Arbitration agreement also provided that Arbitrator Cooper “may convene a pre-arbitration conference” to determine various matters, including the issues for arbitration.

[11] The parties did not exchange pleadings in the arbitration.

[12] The parties held a pre-arbitration meeting on May 26, 2017, as contemplated by their Mediation-Arbitration agreement. The only written record arising out of this arbitration is a brief email sent by the arbitrator confirming dates for the arbitration which was scheduled to begin on June 26, 2017, and confirming a few other procedural items. Notably absent from the email was any documentation or itemization of the issues to be determined on arbitration.

[13] Subsequently, on June 16, 2017, Mr. Petersoo brought a motion seeking a six to eight week adjournment of the arbitration on two bases: first, he provided a non-specific medical note indicating he had a medical issue that warranted an adjournment of the length sought; second, he sought additional time to ensure the financial experts were able to complete their work. The adjournment was opposed by Ms. Neumann, who argued that the medical information was not specific enough to warrant an adjournment, and any shortcomings in the financial evidence were a direct result of Mr. Petersoo’s disclosure failings. She also argued that the children were in crisis, and it was not in their best interest to wait to determine the issues.

[14] The arbitrator vacated the first three days of the arbitration which, due to the scheduling of the arbitration, moved the start date from June 26, 2017 to July 7, 2017, thus granting an adjournment of about a week and a half. He made the date for the commencement of the arbitration peremptory to Mr. Petersoo. He reasoned that both parties had had ample time to complete disclosure and obtain whatever expert reports they considered necessary. He found it important to resolve the parenting issues before the children returned to school in September, and concluded that the best interests of the children took precedence. There was no appeal taken from this decision.

[15] The day before the arbitration commenced, Ms. Neumann delivered her opening statement to Mr. Petersoo. There, for the first time, she raised her desire to relocate with the children to Guelph in order that the children could attend St. Jude’s/Scholars Hall, a private school in Kitchener that she felt would be able to address their particular educational needs. This was the first meaningful notice Mr. Petersoo had that mobility was in issue in the arbitration.

[16] The arbitration commenced on July 7, 2017 as ordered. Mr. Petersoo made no request for an adjournment of the arbitration. He states that in view of the order making the arbitration dates peremptory to him, he was precluded from seeking an adjournment.

Issues

[17] Mr. Petersoo’s Notice of Appeal raises many grounds of appeal, but at oral argument, his counsel identified five which relate in significant measure to the parenting award of the arbitrator. Mr. Petersoo describes these as errors of law, which is critical because the Mediation-Arbitration agreement provides for appeals from the arbitral awards on questions of law only. Mr. Petersoo also identifies a question about the appropriate remedy if the appeal is successful on the merits.

[18] The issues Mr. Petersoo raises on appeal can be described as follows:

a. Did the arbitrator err in law by failing to consider the whole of the evidence and drawing inferences that did not flow from established facts? Mr. Petersoo relies in particular on recommendations from Dr. Raymond Morris, the parties’ s. 30 assessor, whose evidence and recommendations Mr. Petersoo states the arbitrator did not properly understand or consider.

b. Did the arbitrator err in law by failing to consider the views and preferences of the children as those had been articulated to Dr. Morris and explained in his report and evidence?

c. Did the arbitrator err in law by failing to attach appropriate weight to the maximum contact principle?

d. Did the arbitrator err in law by making findings based on an incomplete record, hearsay evidence, and inadmissible opinion evidence given by Ms. Neumann?

e. Did the arbitrator err in law by failing to treat the parties with equality and fairness pursuant to s. 19 of the Arbitration Act, S.O. 1991, c. 17?

f. If the arbitral award is set aside, in whole or in part, what is the next appropriate step?

[19] Mr. Petersoo also seeks leave to appeal the arbitrator’s costs decision, in which he awarded $75,000 in costs against Mr. Petersoo in respect of the financial issues raised in the arbitration, and made no order as to costs in respect of the parenting issues.

[20] In addition, I have before me Ms. Neumann’s motion to admit fresh evidence for determination.

[21] I begin with the analysis of whether the arbitral award should be set aside. In my view, this issue must be determined separately with respect to the arbitral award as it relates to the parenting issues, and the arbitral award as it relates to the financial issues.

Should the arbitral award be set aside?

The Arbitral Award – Parenting Issues

[22] In my view, the arbitral award as it relates to the parenting issues must be set aside. The arbitration process was fundamentally unfair to Mr. Petersoo and does not comply with s. 19(2) of the Arbitration Act which requires that “[e]ach party shall be given an opportunity to present a case and to respond to the other parties’ cases”.

[23] In [Hercus v. Hercus, 2001 CarswellOnt 452 at para. 75 (S.C.J.)], the court held that the right to a fair hearing in an arbitration is “an independent and unqualified right”. It wrote that “[a]rbitrators must listen fairly to both sides, give parties a fair opportunity to contradict or correct prejudicial statements, not receive evidence from one party behind the back of the other and ensure that the parties know the case they have to meet”.

[24] In order to meaningfully present a case and respond to the other party’s case, a party must know what issues are in dispute. This is elemental.

[25] In this case, there were no pleadings exchanged to define the issues. Even if pleadings are not, strictly speaking, mandatory in an arbitration, in my view it does no service to a proper process to fail to require them. Pleadings provide notice and certainty about the case to meet. Any fair dispute resolution process requires that notice and certainty. Pleadings are an obvious and effective way of ensuring that notice and certainty exist.

[26] The parties’ Mediation-Arbitration agreement provided for a pre-arbitration meeting at which, among other things, the issues for arbitration could be defined. There is no evidence before me as to what issues were defined, and without a written record or other evidence, I cannot know the issues that were discussed. However, Ms. Neumann admits that mobility was not among those.

[27] Certain parenting issues were understood to be encompassed in the arbitration. For example, it was clear that custody and access were live issues. The parties engaged Dr. Morris to undertake a s. 30 assessment. Dr. Morris’s lengthy report, dated January 20, 2017, makes clear that Ms. Neumann was seeking sole custody and primary care of the children, and an award that Mr. Petersoo’s midweek parenting time be terminated. Mr. Petersoo, for his part, sought a continuation of the parties’ joint custody arrangement and sought equal parenting time. Among his recommendations, Dr. Morris suggested that the parties reside close together to make transitions more convenient and that the children not be away from either parent for more than three days at a time. Dr. Morris was not advised that Ms. Neumann was contemplating a move, and so his report does not address the impact on the children that relocating to Guelph might have [1].

[28] The children’s education was also a live issue in the arbitration. All three children had individual education plans at their public school and, to differing degrees, were experiencing challenges at school. Ms. Neumann obtained a report from Dr. Mark Handley-Derry, a developmental pediatrician to whom the Petersoo children’s regular pediatrician had referred them. Dr. Handley-Derry expressed grave concerns about the ability of the children’s then-current public school to meet their educational needs. Dr. Handley-Derry was not advised that Ms. Neumann was considering St. Jude’s/Scholars Hall, so he could not opine on whether the private school would provide a suitable educational environment for the children. [2]

[29] Ms. Neumann argues that Mr. Petersoo had some idea that mobility would be raised before the arbitration. In this regards she points to four factors, each of which I address below:

a. Ms. Neumann states that the Arbitration Exhibit Briefs delivered by Ms. Neumann prior to arbitration included a budget for attendance at St. Jude’s/Scholars Hall. That may be, however, I do not know how many Arbitration Exhibit Briefs were delivered. I note there are 17 exhibit books filed on this appeal. I do not know when the Arbitration Exhibit Books were delivered. I have no evidence as to how, if at all, the budget was drawn to Mr. Petersoo’s attention, or how easy it would have been for him to find it and understand its import in the context of the materials delivered. I cannot find this to be meaningful notice.

b. In an affidavit filed in support of Mr. Petersoo’s request for an adjournment of the arbitration, a law clerk in Mr. Petersoo’s lawyer’s office deposed that Ms. Neumann had recently sold her home and Mr. Petersoo believed that Ms. Neumann is wishing to leave Toronto to be closer to her family. This affidavit was sworn on June 20, 2017, shortly before the arbitration commenced, and details nothing more than a suspicion. Mr. Petersoo cannot be expected to have prepared a case on mobility based on his unconfirmed suspicion. To the contrary, without proper notice, he was entitled to assume mobility was not an issue in the arbitration.

c. Ms. Neumann delivered an offer to settle on July 4, 2017, three days before the commencement of the arbitration, that included a term that she relocate with the children so they could attend St. Jude’s/Scholars Hall. This offer came three days before the arbitration and still, there was no statement from Ms. Neumann that she sought to address mobility at the arbitration.

d. K “raised the issue of moving to Guelph/Kitchener” with Mr. Petersoo “well in advance of the arbitration”. This argument is based on Mr. Petersoo’s evidence at the arbitration that during the time Ms. Neumann was selling the house, K raised the possibility of moving in conversation with Mr. Petersoo. It is unclear when this conversation would have occurred, but in any event, it should not need saying that proper notice in arbitration proceedings does not come through casual conversations a parent may have with a young child.

[30] While the arbitration process was unfolding, Ms. Neumann was considering changes to the children’s education. The day before the pre-arbitration meeting, Ms. Neumann took the children for their second assessment visit to St. Jude’s/Scholars Hall. This may not mean she had decided by that time it was the best option for the children, but she was serious enough about it to undergo the assessment process – in two visits – and still she said nothing at the pre-arbitration meeting about mobility being an emerging issue. She did not identify mobility as an issue for the arbitration to Mr. Petersoo until she delivered her opening statement the day before the arbitration was scheduled to begin. Such late-breaking notice of a critically important issue requires an adjournment if the process is to remain fair.

[31] Ms. Neumann notes that Mr. Petersoo did not seek an adjournment. That is problematic. I do not accept the argument that, because the date had been made peremptory to him, he was precluded from doing so. By raising mobility at the doorstep of the arbitration, Ms. Neumann had fundamentally shifted the landscape. Mr. Petersoo could have, and should have, sought an adjournment.

[32] However, in my view, when a critically important issue like mobility is raised for the first time before the arbitrator at the arbitration, in view of the obligation in s. 19(2) of the Arbitration Act, it was incumbent on the arbitrator to enquire about the issue to ensure proper notice has been given. The arbitrator could not have learned of the issue any earlier than Mr. Petersoo did. It was not discussed at the pre-arbitration meeting. The arbitrator should have recognized the issue as a new one and made enquiries as to when it arose.

[33] I note that in his costs reasons, the arbitrator himself acknowledges the problem that Mr. Petersoo faced. In determining not to award costs against Mr. Petersoo in respect of the parenting issues, the arbitrator stated that it was not unreasonable for Mr. Petersoo to oppose the plan put forward by Ms. Neumann, and gave several reasons for this, including:

The mobility issue, which arose as a result of Ms. Neumann wishing to enroll the children in a private school in Kitchener, came to Mr. Petersoo’s attention only very shortly prior to the commencement of the hearing, and thus, arguably, Mr. Petersoo had insufficient time to fully prepare for and respond to this aspect of Ms. Neumann’s case.

[34] The lack of notice of the mobility issue caused a fundamental procedural unfairness to Mr. Petersoo. Mr. Petersoo was unable to seek evidence from Dr. Morris about the effect a move may have on the children, or through Dr. Morris, obtain evidence about the children’s views and preferences regarding the move. He was unable to obtain an educational report of his own addressing whether St. Jude’s/Scholars Hall was a good choice for the children in view of their educational needs. He was unable to develop the record to properly address the mobility request.

[35] The failure to ensure procedural fairness in the process is a denial of natural justice. This denial amounts to an error of law that requires intervention. It is necessary to set aside the arbitral award as it relates to parenting issues. Given this conclusion, it is not necessary for me to address whether the evidentiary and other issues Mr. Petersoo raises are errors of law that warrant setting aside the arbitral award as it relates to parenting.

Arbitral Award – Financial Issues

[36] Mr. Petersoo also seeks to set aside the arbitral award as it relates to the financial issues.

[37] The level of support that ought to be paid was squarely engaged in the arbitration. There is no argument that Mr. Petersoo did not have adequate notice of the case he had to meet, or an opportunity to prepare his case.

[38] The determination of the proper level of support hinged on a determination of Mr. Petersoo’s income. Mr. Petersoo engaged a valuator who produced a report on Mr. Petersoo’s income from 2013-2015. Ms. Neumann states that her expert was unable to critique the report because the disclosure, which her expert had begun asking for in February 2016, was not forthcoming. Mr. Petersoo’s own expert was unable to produce a report detailing his 2016 income, having been retained four days prior to the scheduled commencement of the arbitration. Ms. Neumann states that her expert was also unable to produce a report on Mr. Petersoo’s 2016 income because of the missing disclosure.

[39] Mr. Petersoo sought to address the lack of evidence on the financial issues by way of his motion for an adjournment. As I have noted, the arbitrator found that there had been ample time to obtain the evidence and any reports that were necessary. Mr. Petersoo did not appeal this ruling.

[40] The ruling does not form part of the grounds for the appeal before me. It is raised by way of background only. Rather, Mr. Petersoo’s argument in support of setting aside the arbitral award as it relates to financial issues is that the arbitrator erred in law by making determinations based on an inadequate record.

[41] The record discloses failings in the disclosure. Among other things, information that had been promised to Ms. Neumann’s valuator in June 2017 was never provided. Mr. Petersoo’s own expert was not retained to produce a report on his 2016 income until four days before the start of the arbitration. If the evidentiary record was incomplete, Mr. Petersoo has only himself to blame.

[42] The arbitrator acknowledged that the evidence was less than satisfactory, but the issue was before him, and he had to make a determination based on the evidence he had. He found that he could not make a reasonable determination of Mr. Petersoo’s income based on the expert evidence because neither expert had the appropriate documentation to make a calculation. The arbitrator noted the obligation of a payor to disclose all of the financial information reasonably necessary for a determination to be made regarding their income for support purposes. He noted that where a payor fails to do so, the court may draw an adverse inference and impute an income.

[43] The arbitrator then had regard to evidence that Mr. Petersoo had $183,000 in expenses in a year he claimed to have income of $60,000, and in which his debt did not increase and he did not dispose of any significant assets. He noted that Mr. Petersoo was “unable to offer any cogent explanation” for the inconsistency between his alleged income and his documented spending. He referred to other indications that Mr. Petersoo has more available income than he professed, including significant expenditures on Blue Jays tickets, and on wine and beer purchases.

[44] In the result the arbitrator concluded that that, taking income tax considerations into account, Mr. Petersoo’s income is at least $250,000 per year and determined child support on that basis.

[45] I see no error of law in the arbitrator’s approach to the issue. Parties cannot manufacture an error of law by failing to provide sufficient financial disclosure, and then criticizing the decision-maker for making a determination based on an insufficient record.

[46] There is no basis to interfere with the arbitrator’s determination of the financial issues.

Should leave be granted to appeal costs?

[47] In his costs award, the arbitrator ordered that Mr. Petersoo pay Ms. Neumann $75,000 in respect of the financial issues, and made no award as to costs in respect of the parenting issues.

[48] Mr. Petersoo seeks leave to appeal the costs award. His Notice of Appeal states that the arbitrator erred in finding that the costs incurred were reasonable, and erred in concluding that Ms. Neumann had acted reasonably while Mr. Petersoo had acted unreasonably.

[49] Mr. Petersoo’s factum contains no argument with respect to costs in Mr. Petersoo’s factum. He made no oral argument on the issue.

[50] I have upheld the arbitrator’s award on the financial issues. In his reasons on costs, the arbitrator correctly directed himself to the governing principles. He noted Ms. Neumann was successful and had bested her offer to settle. He considered relevant factors. To the extent Mr. Petersoo disagrees with his finding that Mr. Petersoo behaved unreasonably, or that the amount of costs was reasonable, that is a question of fact, and not reviewable under the Mediation-Arbitration agreement.

[51] As a result, leave to appeal costs is denied.

Remedy

Next Steps

[52] Mr. Petersoo suggests that, if the arbitration (or part of it) is set aside, the matter should be remitted for a fresh determination before a new arbitrator, or that I should provide an opportunity for updated expert reports to be prepared and I should then determine the matter based on new evidence in a second, remedy, stage of the appeal. Ms. Neumann states that I should either determine the issues based on the evidence in the record and the fresh evidence she seeks to admit, or the matter must be returned for a new arbitration.

[53] Unfortunately, I have concluded that a new arbitration is required to address the parenting issues. A determination of the parenting issues based on the existing record, even if including the fresh evidence Ms. Neumann seeks to admit and Mr. Petersoo’s response, is not a record sufficient to cure the defects in the record below. Expert evidence Mr. Petersoo would have sought is not available on this record.

[54] Moreover, the record as it exists includes significant hearsay and other evidence to which Mr. Petersoo has objected. Of particular note is that much of the evidence about the program at St. Jude’s/Scholars Hall was led by Ms. Neumann. No one from St. Jude/Scholar’s Hall testified as to how their program meets the educational needs of the children as identified by Dr. Handley-Derry or anyone else.

[55] Were I to adjourn this appeal to a second stage hearing on remedy and receive additional information I would, in effect, be undertaking a trial of the parenting issues de novo which is neither my role as an appellate judge, nor a permitted exercise of my jurisdiction in view of the parties’ Mediation-Arbitration agreement which puts the primary jurisdiction for these issues in the hands of an arbitrator.

[56] As a result, I direct the parties to attend a further arbitration on parenting issues. The parties agree that the further arbitration must take place before a different arbitrator. The parties’ Mediation-Arbitration agreement governs the next steps for the parties.

[57] It is unfortunate that this family will have to go through yet another process in the conflict between the parties. It is particularly unfortunate that the children must live through further conflict, when the record before me clearly demonstrates that the conflict is harmful to them. In the circumstances, however, there is no other option that cures the fundamental unfairness of the proceeding below.

[58] I understand that parties choose arbitration because they seek a streamlined, faster process, with greater finality. Those are laudable goals, and particularly so in family law. However, shortcuts in the fundamental procedural fairness of the process do not assist the parties, but rather do them a disservice, by burdening them and their children with more costs, delay, uncertainty and stress. The perceived efficiencies and cost savings from shortcuts that affect procedural fairness are a mirage only.

Interim Parenting Arrangements Pending the Arbitration

[59] There remains the question of the parenting arrangements pending the next arbitration. The parties agree that the current status quo for the children should continue – that is, that they should continue to reside primarily with Ms. Neumann and attend school at St. Jude’s/Scholars Hall.

[60] The parties disagree about the interim arrangements with respect to Mr. Petersoo’s parenting time. Mr. Petersoo seeks an increase in his parenting time, which Ms. Neumann resists.

(i) The Fresh Evidence Motion

[61] For the purposes of determining this issue, in my view it is necessary to allow in part Ms. Neumann’s motion to admit fresh evidence, and admit both, the affidavit she filed in the motion, and the responding affidavit of Mr. Petersoo.

[62] I admit this fresh evidence because the question of the parenting arrangements going forward is a matter that involves the best interests of the children, and it is important for the court to have the most up-to-date information available about the children’s circumstances when assessing their best interests: Catholic Children’s Aid Society of Metropolitan Toronto v. M.(C.), [1994] 2 S.C.R. 165 at para. 20; E.(H.) v. M.(M.), 2015 ONCA 813 at para. 71.

[63] It is not necessary for purposes of this appeal to admit the affidavit of Dr. Handley-Derry filed on the motion since the parties agree that the children’s status quo with respect to the children’s education will remain undisturbed pending the arbitration.

(ii) What interim parenting arrangements are in the best interests of the children?

[64] The legal framework within which a request for custody or access, whether temporary or permanent, should be made is set out in ss. 72 and 24 of the Children’s Law Reform Act [3].

Section 24 of the Children’s Law Reform Act provides, in part:

Merits of application for custody or access

24 (1) The merits of an application under this Part in respect of custody of or access to a child shall be determined on the basis of the best interests of the child, in accordance with subsections (2), (3) and (4). 2006, c. 1, s. 3 (1).

Best interests of child

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

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

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

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

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

(b) the child’s views and preferences, if they can 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) any familial relationship between the child and each person who is a party to the application. 2006, c. 1, s. 3 (1); 2009, c. 11, s. 10; 2016, c. 23, s. 7 (1, 2); 2016, c. 28, s. 2.

[65] With respect to this issue, I note that prior to the arbitration, Mr. Petersoo had significant parenting time with the children, including two visits mid-week, one of which was overnight. Ms. Neumann sought to eliminate the mid-week access in the arbitration.

[66] The arbitrator, in granting Ms. Neumann permission to relocate to Kitchener, recognized that Mr. Petersoo’s mid-week parenting time would be terminated. He made an order for parenting time which he records as being on consent. That order provides for every other weekend access for Mr. Petersoo, an equal sharing of the days between December 24-26, an equal sharing of March break, two weeks of non-consecutive summer vacation with the children for each party, and certain other holiday access. Notably, Thanksgiving is not shared, but Mr. Petersoo is granted every Easter weekend with the children “in view of the fact that [he] is “losing” his mid-week time with the children and that they will be spending the bulk of their Christmas vacation with Ms. Neumann”.

[67] Mr. Petersoo states that he in fact requested different parenting time if the children were allowed to relocate to Guelph. Ms. Neumann did not recall this, however she did not submit that the holiday schedule ordered was ordered on consent, notwithstanding the arbitrator’s reasons.

[68] Ms. Neumann does not oppose Mr. Petersoo’s request for additional holiday access time, but she opposes Mr. Petersoo’s request for a third weekend with the children each month, arguing that the transitions are difficult for the children. This was part of the basis on which she sought to terminate mid-week access in the arbitration. In her affidavit which I have admitted as fresh evidence, she maintains that the children’s behaviour starts to change a day or two before their time with Mr. Petersoo is set to begin. She states that they come home angry and anxious, and it takes a day or two for them to settle down. She states that the situation is more tolerable because exchanges occur once every two weeks rather than multiple times a week, as they did before the move to Guelph.

[69] In contrast, Mr. Petersoo states that the decrease in contact between him and the children has been difficult for the children, who have shown stress and hesitation over rejoining their mother when their time with Mr. Petersoo comes to an end. He agrees they return to Ms. Neumann anxious and upset, but states that this is a consequence of having too little time with Mr. Petersoo. He says they are not upset while they are in his care.

[70] The evidence before the arbitrator, including that of Dr. Morris, established that both parents are loving and well-bonded to the children. There are no significant concerns about either party’s ability to parent the children [4].

[71] However, the evidence raised concerns about the harm the parties’ conflict was causing to the children. Among other things, Dr. Morris (who did not know about Ms. Neumann’s intention to relocate) recommended an adjusted parenting schedule whereby Mr. Petersoo would have the children five nights out of fourteen, transitions would be minimized, and the children would not go more than three nights without seeing either parent. Although the arbitrator indicated that Dr. Morris had offered no discernible rationale for his recommendation of no more than three nights apart from either parent, in my view Dr. Morris’s report makes clear the recommendation stems from his concern that the children should not feel like they were losing either parent while they mourned the dissolution of the family unit.

[72] In my view, there is nothing in the record that suggests that the principle of maximum contact should not be applied, at least in the context of the current status quo.

[73] The parties agree that the children return from parenting time with Mr. Petersoo anxious and upset. They disagree on the cause. However, it is clear that there was stress during transitions prior to the children’s move, and notwithstanding that stress, Dr. Morris supported ongoing significant parenting time for Mr. Petersoo with transitions to take place at least every three days. On some level, the conflict between the parties is responsible for the stress the children face at transitions. The answer to the problem is not to limit the children’s time with Mr. Petersoo; it is for Mr. Petersoo and Ms. Neumann to figure out how to calm down their conflict so that the children can be protected from it.

[74] In my view, on an interim without prejudice basis, an increase in Mr. Petersoo’s parenting time is required. I therefore order the following schedule which shall govern unless and until varied by agreement, in the arbitral process, or by further court order:

a. Mr. Petersoo shall have parenting time with the children three weekends a month. Drop off to take place at a mutually agreeable public location near Hwy 401 and Hurontario at 5 pm on Fridays, with return at a mutually agreeable public place in Milton at 5 pm on Sundays.

b. In even years, Mr. Petersoo shall have the children from December 24 at noon to December 25 at noon, and Ms. Neumann shall have the children from December 25 at noon to December 26 at 5 pm. In odd years, the schedule shall be reversed. The rest of the Christmas break shall be equally shared between the parties.

c. The parties shall equally share the children’s March break holiday.

d. The parties shall equally share the children’s summer holiday.

e. The parties shall equally share Thanksgiving weekend.

f. Mr. Petersoo shall have the children for the entirety of the Easter weekend.

g. If Mother’s Day falls on Mr. Petersoo’s scheduled weekend, the children will be returned at 10 am on Sunday morning.

h. If Father’s Day falls on Ms. Neumann’s scheduled weekend, Mr. Petersoo shall spend time with the children from Saturday at 5 pm to Sunday at 5 pm.

i. Any other long weekends shall be spent with the parent who has the children in their care that weekend.

Motion to Admit Fresh Evidence

[75] As noted above at paras. 61-63, I have allowed Ms. Neumann’s motion to admit fresh evidence in part. I have admitted her affidavit and Mr. Petersoo’s responding affidavit. The affidavit of Dr. Handley-Derry is not admitted. To the extent fresh evidence from him is required, it can be led at the arbitration. It is not necessary for the purposes of determining this appeal, or the remedy that flows therefrom, or the interim parenting arrangements in place pending the arbitration.

Costs

[76] If the parties cannot resolve the issue of costs, they may each deliver written submissions of no more than three pages by November 8, 2018, together with any relevant offers to settle. They may deliver responding submissions of no more than a page by November 15, 2018. Materials may be delivered to my attention at Judges’ Administration, 361 University Avenue.

J.T. Akbarali J.

Released: November 01, 2018

[1] Ms. Neumann may not have yet been considering a move to Kitchener when Dr. Morris prepared his report. I raise Dr. Morris’s lack of knowledge about the potential move not to suggest Ms. Neumann concealed something relevant and important from Dr. Morris, but rather to point out that Dr. Morris had been unable to opine on how the proposed move might affect the children, thus limiting the utility of his report and evidence at arbitration.

[2] Again, Ms. Neumann may not have yet decided she wanted to enroll the children in St. Jude’s/Scholars Hall when Dr. Handley-Derry was completing his report (although she had been looking at it seriously by that time). I note Dr. Handley-Derry’s lack of knowledge not to suggest that Ms. Neumann deliberately withheld relevant and important information from Dr. Handley-Derry, but again to point out the limits to the utility of Dr. Handley-Derry’s report and evidence in the arbitration.

[3] I make no reference to the Divorce Act, R.S.C. 1985, c.3 (2nd Supp.). because the parties have already divorced.

[4] Ms. Neumann raises an issue about Mr. Petersoo’s alcohol consumption, but it appears to be under control at this time.