Court File and Parties

COURT FILE NO.: FC-12-FS005094 DATE: 2020/04/21 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

Justin Lee Norris Applicant

Karen Dosanjh for the Applicant

• and -

Lisa Anne Morocco Respondent

Fay Ann Guilbeault for the Respondent

HEARD AT WELLAND: November 21, 22, 25 to 29, 2019 and February 24 to 26, 2020

The Honourable Justice N. Gregson

REASONS FOR JUDGMENT

SUMMARY OF EVIDENCE

[1] The parties, Justin Lee Norris and Lisa Anne Morocco are the biological parents of Sophia Anne Morocco-Norris (“Sophia”), born on November 18, 2010 and Gabriel Obrey Anthony Morocco-Norris (“Gabriel”), born March 5, 2012.

[2] The couple initially dated from 2006 to 2007. They resumed their relationship on or about November 2009 and began briefly cohabiting in June 2010. Their relationship was high conflict. Their daughter Sophia was born on November 18, 2010. Despite trying to make their relationship work, the parties were unable to salvage their relationship and separated on a final basis on or about June 11, 2011 eight months prior to their son Gabriel’s birth.

[3] Upon the parties final separation, the mother resided with the children at her parents’ residence in Niagara Falls, Ontario, where they currently reside. The father began to live with his parents in Newmarket, Ontario and he continues to reside with them.

[4] Subsequently, the father commenced a court application in Newmarket seeking that the children reside primarily with him in the Regional Municipality of York. The matter ultimately went to trial and Justice K. Carpenter-Gunn granted a final order in 2015. The mother was granted sole custody of the children subject to the father enjoying access three weekends per month and during holidays.

[5] The mother is employed with the Ontario Provincial Police and had been working shiftwork. Prior to the trial in 2015, the mother’s employer adjusted her work hours permitting her to work Monday to Friday from 7:00 a.m. to 3:00 p.m. At the time of trial, it was anticipated the mother would be returning to shiftwork. Presumably for this reason, Justice Carpenter-Gunn ordered parenting time for the mother during one weekend per month with an obligation for her to provide the father an advance copy of her yearly work schedule. Depending on her work schedule, the mother would have one weekend a month with the children when she was not working while the father would enjoy his three weekends per month. Unfortunately, the final order does not specify how the parties were to determine when the mother’s weekend of access would take place or what should occur if there was a fifth weekend during the month.

[6] Unbeknownst to the father, the mother never returned to shiftwork. The mother never told the father. She never provided him with her work schedule. In turn, she provided the father with a yearly calendar and marked the monthly weekends she intended to take. Based on her reading of the terms of the court order, she outlined the holidays indicating what days she and the father would each enjoy.

[7] Despite the fact the mother provided evidence she had been equitable in choosing her monthly weekends, it was clear having reviewed the yearly schedule for 2015-2017 the mother took most of the weekends which had a P.D. day or statutory holiday which fell adjacent to her weekend.

[8] In the meantime, when the father received the yearly calendar from the mother, he rarely provided immediate comments to what she had proposed and there was little to no input between the couple about the schedule. It was usually only when a particular weekend or holiday was about to occur the father would complain to the mother about what she had chosen and discord would ensue between the couple. The father or mother would contact the police authorities to have the children either returned or provided to them. This led to difficulties for the police as without having a defined schedule, they had a difficult time determining who had care of the children. Police enforcement became so untenable for the York Regional Police, the Chief of Police through Legal Services brought a notice of motion to have the police enforcement clause removed from the final order. A final order in this regard was granted by Justice J. Ramsay on November 29, 2017.

[9] Since each parent interpreted the terms of the final order to their advantage and could not agree on the interpretation of a number of paragraphs, this led to the children on occasion not visiting their father and on occasion the father withholding the children from their mother after visits. Clearly, this was an untenable situation for the parties, the children and even police authorities.

[10] In the Fall of 2017, legal counsel became involved and the mother commenced her motion to change the final order. Despite legal counsel becoming involved and interim judicial intervention, the parties have continued to experience conflict and cannot agree on new parenting terms.

MOTION TO CHANGE

[11] On October 25, 2017, the mother commenced a motion to change the final order of Justice K. Carpenter-Gunn dated July 31, 2015. The father responded to the motion to change.

[12] Both parents sought some changes to the terms of the final Order and sought further or amended changes at the time of trial.

[13] The mother seeks to have the father’s parenting time with the children reduced to alternating weekends from Friday at 5:00 p.m. to Sunday at 5:00 p.m. If there is a statutory holiday or a Professional Development Day at the commencement of the weekend or after the weekend, access would be extended for whomever the children are with on that weekend.

[14] In the alternative, the mother suggests the father continue to have his three weekends per month however, from Friday at 5:00 p.m. to Sunday at 5:00 p.m. while she herself would continue to have parenting time once per month to be specified as the second weekend of each month. If there is a fifth weekend in the month, the children would be with her.

[15] The mother seeks some minor amendments to the holiday schedule which includes summer vacation and March Break and greater clarity of the access schedule when it interferes with holidays. The mother also seeks to include a term to deal with Thanksgiving as it was not included in the final order.

[16] The mother further seeks changes to the terms dealing with exchanges of access, make-up time, child support and annual disclosure of income. She also wishes to ensure the children are with her for Gabriel’s communion the weekend of April 26, 2020.

RESPONSE TO MOTION TO CHANGE

[17] On February 13, 2018, the father filed his Response and he is asking the court to make changes of his own. He now seeks specified parenting time with the children during the first three consecutive weekends of each month from after school at 3:00 p.m. to Sunday at 6:00 p.m. The first weekend of the month is the weekend where the first Saturday of the month falls. His weekends of access would be extended to include the statutory holiday or Professional Development Day which falls adjacent to his weekend.

[18] The mother would enjoy one weekend per month only after regular access for the father has been fulfilled.

[19] The father also seeks to have clarification regarding when the regular access schedule interferes with holiday time.

[20] The father seeks changes or clarifications to Mother’s Day and Father’s Day, holidays including March Break, summer vacation, Thanksgiving, Christmas as well as make-up time and police enforcement.

[21] The father wishes further changes to terms dealing with child support, section 7 expenses, annual reporting and communication.

LAW

Has A Material Change In Circumstances Been Established?

Access

[22] The starting point of the court to determine whether to change a final order for custody or access is s. 29 of the Children’s Law Reform Act, R.S.O. 1990 c. C.12, as amended.

[23] The law has been clear about the test to be applied when the court is asked to vary custody and/or access issues. The Supreme Court of Canada established in Gordon v. Goertz, [1996] 2 SCR 27 at paragraph 12 a two-stage inquiry:

12. The change in circumstances must not have been foreseen or reasonably contemplated by the judge who made the original order. The change must be to the condition, means, needs or circumstances of the child and/or the ability of the parents to meet the needs of the child. Change is not enough. The change must have altered the child’s needs or ability of the parents to meet the child’s needs in a fundamental way. Further, the change should represent a distinct departure from what the courts could have reasonably anticipated in making the previous order.

[24] In L.M.P. v. L.S., 2011 SCC 64, [2011] 3 SCR 775, the Supreme Court of Canada reaffirmed the change must be substantial, continuing and that “if known at the time, would likely have resulted in a different order.”

[25] A material change in the situation of the child should not serve as an indirect route of appeal from the original custody and/or access order. The court cannot retry the case, substituting its discretion for that of the original judge. The court must assume the correctness of the decision and consider only the change in circumstances since the order was issued.

[26] In determining what constitutes a material change in circumstances, I refer to Zolaturiuk v. Johansen. Justice A. Pazaratz determined that if the order is not working and needs to be clarified or fine-tuned (as in this case) to meet this child’s best interests, this can be material. This was a broad and liberal approach taken by the court.

[27] Justice R.J. Spence found that worsening conflict can constitute a material change in circumstances. See Hackett v. Sever, O.J. No. 1510 (OCJ).

[28] Moreover, a party’s extensive non-compliance with an existing court order can amount to a material change in circumstances for the purposes of the variation analysis if the breaches have a harmful effect on the child. In Roloson v. Clyde, 2017 ONSC 3642, Justice D.L. Chappel made the following comments at paragraph 51:

51. Both parties also base their custody and access claims to a large extent on the conflict that has developed between them since the April 2, 2007 order was made. The Ontario Court of Appeal has held that incidents of conflict between parties will not meet the threshold material change in circumstances test if the same level of conflict existed by the parties when the existing order was made (Litman v. Sherman, 2008 ONCA 485 (C.A.); Goldman v. Kudelya, 2017 ONCA 300 (C.A.)). However, the development of discord between the parties where none existed at the time of the order, or a significant increase in the level of conflict since the order was made, resulting in an outright failure of the existing plan, may meet the threshold test if it had a negative impact on the child or has affected the parents’ ability to meet the child’s needs.

[29] I can only assume Justice Carpenter-Gunn anticipated there may be future conflict between the parties and as a result attempted to resolve these issues by providing a fifty-nine paragraph order. Despite same, it appears to me there has been worsening conflict between the couple and fine tuning and clarification is required to the order. These need to be addressed to ensure the best interests of the children. The parties’ behaviour and actions since the date of the final order has led to non-compliance of the terms which may have a harmful effect on Sophia and Gabriel. For these reasons, I believe the parties have established a material change in circumstances to permit a review of some portions of the final order which have caused the parties increased conflict.

[30] It is not my intention to vary the entirety of the final order or to agree to all of the parties’ requested changes. The court, in my view, should restrict the changing of the existing order to address specific issues to minimize conflict while maintaining its integrity. I intend to do so.

Child Support

[31] Every parent has an obligation to provide support, to the extent that the parent is capable of doing so, for his or her unmarried child as per section 31 of the Family Law Act, R.S.O. 1990, c. F.3, as amended.

[32] In 2015, Justice Carpenter-Gunn ordered the father to provide support for his children and determined the amount of child support based on his gross annual income at the time and the table amount of the Child Support Guidelines.

[33] In accordance with section 37 of the Family Law Act, the father seeks a variation of his child support obligations. Section 37 (2.1) of the Family Law Act states that:

37 (2.1) If the court is satisfied that there has been a change in circumstances within the meaning of the Child Support Guidelines or that evidence not available on the previous hearing has become available, the court may: (a) discharge, vary or suspend a term of the order, prospectively or retroactively.

[34] Section 37 (2.2) stipulates that a court making an order under subsection (2.1) shall do so in accordance with the Child Support Guidelines.

[35] Section 14 of the of the Child Support Guidelines (Ontario) O. Reg. 391/92, as amended, stipulates the following:

14. CIRCUMSTANCES FOR VARIATION – For the purposes of subsection 37 (2.2) of the Act and subsection 17(4) of the Divorce Act (Canada), any one of the following constitutes a change of circumstances that gives rise to the making of a variation order: (a) in the case where the amount of child support includes a determination made in accordance with the table, any change in circumstances that would result in a different order for the support of a child or any provision thereof.

[36] Since the father lost his employment in November 2018 and is no longer earning the same income, there has been a material change in his employment and financial circumstances which permits the court to review and vary his prior child support obligation.

[37] To determine the father’s new child support obligation, the court will consider s. 15 of the Child Support Guidelines which states the following:

15. DETERMINATION OF ANNUAL INCOME – (1) Subject to subsection (2), a parent’s or spouse’s annual income is determined by the court in accordance with sections 16 to 20.

[38] In most cases, the court will calculate a parent’s income by using their line 150 income on their income tax return pursuant to s. 16 of the Child Support Guidelines. However, in this case, the father has no defined source of income. As such, counsel for the mother wishes to impute the father a gross annual income.

[39] Section 19 of the Child Support Guidelines states the following:

19. IMPUTING INCOME – (1) The court may impute such amount of income to a parent of spouse as it considers appropriate in the circumstances, which circumstances include the following: (a) the parent of spouse is intentionally under-employed or unemployed, other than were the under-employment or unemployment is required by the needs of any child or by the reasonable educational or health needs of the parents or spouse.

[40] The leading case on whether income should be imputed –either intentional unemployment or underemployment is Drygala v. Pauli, [2002] O.J. No. 3731 (ONCA). The onus is on the person requesting an imputation of income to establish an evidentiary basis for such a finding.

[41] Both counsel agree there should be an imputation of income to the father. I agree. Although the father is applying for employment in his profession he is voluntarily choosing not to work elsewhere to generate an income. His unemployment is not required by virtue of his reasonable educational needs, the needs of the children or reasonable health needs. He is therefore intentionally unemployed.

[42] The father acknowledges his obligation to support his children and for this reason he agrees he should be imputed a gross annual income and pay child support for his children.

ANALYSIS

[43] This court proceeding is as a result of continuous difficulties between the parents in interpreting their final order which was granted after a multi-day trial. In fact, the original court application commenced in 2012. Accordingly, the parents have been in conflict over the parenting of their children for over seven years. The parties’ children are currently eight and nine years of age.

[44] I heard trial evidence in this matter over a period of 10 days. The parents are hopeful that I can rectify the ambiguity in the final order and make some changes to the terms to reduce their conflict. Unfortunately, regardless of what I order, I expect one of the parents will find fault with the new parenting terms. These parents have not been able to set aside their differences for the sake and best interests of their children. In my view, both these parents have acted unreasonably at different periods of time over the years. In many ways, their behaviour is quite similar. Each has attempted to manipulate the terms of the final order to increase their parenting time with the children to the detriment of the other parent and the children. They have both actively and knowingly participated in the chaos which has ensued since the final order. Some examples of their misguided behaviour is as follows:

• The mother not providing her work schedule;
• The mother misleading the father and not advising him that she was not working shiftwork;
• The mother creating the yearly access schedule for the years 2015 to 2017 and choosing her monthly weekends associated with P.D. days and statutory holidays;
• The father’s belief he was entitled to all P.D. days and statutory holidays;
• The father not providing advance notice to the mother that he was unhappy with her proposed schedule and on occasion contacting police to enforce what he believed to be the terms of the final order;
• Both parties regularly contacting police (both the York and Niagara detachments) to enforce the terms of the final order;
• Both parties speaking negatively about the other to the children;
• The mother or someone in her household speaking to the children about finances;
• The father not returning the children after access forcing the mother to attend to pick them up on the basis he had no funds for gas;
• The father withholding the children after access;
• The mother not providing the children for access;
• The father not providing annual financial disclosure;
• Difficulties with telephone calls; and
• Difficulties with communication.

[45] The trial evidence suggested the children are busy in both households. When they are with their mother and maternal grandparents they are busy with school, friends and attend for reading and karate classes during the week. When they are with their father and paternal grandparents they are busy with friends in the neighbourhood and activities such as swimming classes. The children are closely bonded to both their parents and their grandparents. It is undeniable the children love their parents and receive love from both parents and extended families.

[46] The evidence suggested these children have adjusted to their parenting routine despite the mayhem and chaos between their parents. They are achieving all developmental and educational milestones. They are doing well in school and have no special needs. The children did attend for some counselling however no evidence as to the nature of the counselling was provided during the trial. The children are not currently attending counselling.

[47] In my opinion, the final order was well drafted. Reasonable parents would have had no difficulties in interpreting same. Unfortunately, each party interprets the terms of the order through their own lens, in a manner which benefits themselves.

[48] The evidence was voluminous, including 71 exhibits. The parties relied on their handwritten communication books they have been using since 2015. These notes contained in eight separate journals, were used extensively for the purpose of examining and cross-examining the parties. The only third party witnesses who testified were the mother’s parents, namely Robert John Morocco and Joyce Anne Morocco. Their evidence was limited to mainly one issue which supported the mother’s testimony. I did not doubt their credibility.

Final Order Dated July 31, 2015 by Justice K. Carpenter-Gunn

[49] Pursuant to the final order which incorporated fifty-nine paragraphs, the following are the terms of the order which one or both parties wish to amend, their respective positions on the issue, the evidence and my comments.

Communication

[50] 3. Neither party shall speak negatively about the other or allow others to speak negatively about the other in the presence of, or vicinity of, the children.

4. Neither party shall discuss adult issues in the presence of, or vicinity of, the children.

[51] Both parties suggested these terms were breached by the other but agree these clauses should remain in the final order.

[52] The evidence suggested that either both parents or grandparents may have made inappropriate comments about the other parent in front of the children. A voir dire was conducted as the father wished to introduce a cellular telephone video recording from October 2016 into evidence when Gabriel was 4½ years old. It was agreed a voir dire would be held in order to determine whether Gabriel’s out of court hearsay statement met the twin test of necessity and reliability. Obviously the issue of necessity was met due to Gabriel’s young age. The recording suddenly begins with Gabriel stating to his father his mother told him he (referring to his father) had stolen her money. When Gabriel was asked by his father who had told him this, he responded his mother had. When the father told Gabriel his mother would not have made such a comment to him, Gabriel repeatedly called his father a liar.

[53] Considering the circumstances, in the end I do not feel the recording satisfies substantial reliability. Gabriel was of a very young age at the time of the video. The entire conversation was not recorded and only a portion of what Gabriel told his father was captured. I have no idea whether the father began discussing this topic with Gabriel prior to his comments or whether this was spontaneous. The father testified Gabriel had made similar comments to him back in August 2016 although this recording was made in October, 2016. Nevertheless, there was evidence the mother had told the father Gabriel had been making similar comments to her and for him to cease having adult discussions with the children. There were no sufficient guarantees of trustworthiness. For these reasons, I am not admitting the hearsay statement for its truth.

[54] I do believe Gabriel must have overheard someone in the mother’s household speaking about finances as a 4 ½ year old would not have randomly made such comments. The statements were of a negative nature vis-à-vis the father and not the mother. Conversely, the mother also testified as to comments made by the children especially Gabriel which were negative towards her which would have presumably come from the father’s household.

[55] Luckily, there was no evidence of recent negative or disparaging comments made by the parents to the children. I would encourage the parents to ensure that adult discussions not take place in front of the children. Accordingly, the prior communication terms in the Final Order shall remain.

[56] As a result of the father not being able to exercise access to the children for a number of weeks in September and October 2018, he seeks a further term to be incorporated in the final order as follows:

The Respondent mother shall not interfere, frustrate, or engage in behaviour that is detrimental to the well-being and safety of the children at any time, while they are in her care or the Applicant father’s care.

[57] The above term was incorporated in the temporary order of Justice T. Maddalena dated October 11, 2018. At that time, the father had no choice but to bring a notice of motion against the mother as he was not receiving his court ordered access. Although the mother was delivering the children to the father in Newmarket she argued the children did not wish to visit with their father. The children’s behaviour during the mother’s transport to Newmarket was something the mother had never previously witnessed. Both of her parents each testified they had also observed the children’s uncontrollable behaviour as they had each accompanied the mother to the exchange location. No party could identify a cause for why the children were refusing to see their father.

[58] The mother testified she encouraged the children to visit with their father and for this reason, she was still driving them to Newmarket. She was frustrated the father was not coming out to her vehicle to assist her in delivering the children to him (although he did so on one occasion and after speaking with the children he could not convince them to leave with him). The father testified they had been exchanging the children inside the York Regional Police Station and he felt the mother should be bringing the children inside to him where their attendance was being monitored and recorded.

[59] Based on the affidavit evidence and oral submissions on the motion, Justice Maddalena reinstated the police enforcement clause directing the York Regional Police to apprehend and deliver the children for the father’s access. She provided the father with make-up access and included the above-noted clause to ensure the mother did not interfere with the father’s parenting time with the children. Costs were also ordered against the mother which have been paid to the father.

[60] The mother feels there is no need to have this term included but would agree to have this term be a mutual obligation.

[61] Although I do not condone the mother’s behaviour in the Fall of 2018, in my view there have been various times when each of the parents have interfered with the other’s parenting time since 2015. This includes times when the father simply decided to withhold the children from the mother after he completed his access, without even providing her with advance notice of same.

[62] Justice Carpenter-Gunn fixed trial costs against the father in the amount of $58,000.00 to be paid within 30 days. The mother had to initiate enforcement proceedings in 2016 to have the father’s wages garnished to recover some of her costs. At the time of the final order, the father was employed full-time and earned approximately $80,000.00 per year. However, his wages were garnished more than 50% as his child support, child support arrears and garnishment were being deducted. As a result, on one occasion when the father had access to the children, he advised the mother he could not return them as he did not have money for gas. The mother had no choice but to travel back to Newmarket to pick up the children.

[63] Neither parent’s relationship with the children should be interfered with. Accordingly, the term requested by the father will be mutual.

[64] 5. All communication between the parties, save and except for an emergency, shall be by way of a written communication log that shall travel with the children for access. Such communication log shall be placed in a sealed envelope with the sender’s signature across the seal.

[65] As a result of this term, the parties have accumulated at least eight journals and thousands of pages of written communication between them since 2015. The parties document what they have done during their time with the children and pass along any required communication within this format. In fact, prior to exchanging the children, each parent documents the time they have arrived at the exchange location prior to delivering the communication log to the other.

[66] The father seeks to streamline the communication and suggests the use of Our Family Wizard or a free alternative App, Talking Parents, with all communication to be child focused. The father noted it would be more feasible to receive information from the other parent when necessary, rather than waiting a week to receive the journal as the information by then could be dated.

[67] The mother testified she did not own a personal computer and due to her location, she does not have the internet. She prefers to continue the communication via journals.

[68] Although I personally agree that using an App would be a much more efficient mode of communication which would also provide for instant communication, there was no evidence presented to suggest the journals are impeding communication. In my view there is no material change in circumstances which would permit me to amend this term. There is no ambiguity. There was evidence the parties have from time to time used text messaging. They can certainly continue to use this format if urgent information needs to be exchanged prior to an access visit or in the event of an emergency.

[69] 6. Both parties shall have access, within reason, to the children while they are in the care of the other party appropriate to their age and stage, being at least once a day.

[70] The mother wishes to maintain this term while the father wishes to reduce the daily contact for both of them.

[71] The evidence is clear that daily telephone calls are causing both stress and aggravation for the couple. Both parents complained the children were not always made available when they called. There were times when calls appeared to be cut off and there were times when no calls were answered. The calls were a source of frustration.

[72] The daily calls simply add to the conflict between the couple which needs to be minimized. The calls also appear to be interfering with each parent’s parenting time. The children were much younger when the daily telephone calls were granted, hence why Justice Carpenter-Gunn referred to the children’s age and stage of development as a consideration.

[73] As such, I feel the mother no longer requires a call with the children during a regular weekend when they are with the father. The mother does speak with the children the day they leave and arrive from an access weekend. However, in the event the father’s weekend is extended as a result of a P.D. day or statutory holiday, I believe it is feasible to permit the mother one call during such an extended weekend. The father should have only one call during the week when they are with their mother and one call when the children are with their mother on weekends. In the event the children are in the care of the other parent for one full week for holiday purposes, they should each be entitled to two calls during one seven-day period to maintain contact. Telephone calls should be just prior to the children’s bedtime to avoid conflict and calls should be kept reasonably short.

Access to Information

[74] 10. The parties shall both have direct access to all information and professionals involved with the children. The parties shall sign any consent forms required and presented to them to allow either to access the information and professionals directly.

[75] There was evidence to suggest the mother did not always produce the children’s report cards to the father. The mother believed she had produced this information and regardless, it was up to the father to seek out this information of his own accord. The father testified he was initially refused the information from the school (presumably as the mother had not executed the required consents). The father did not follow up with the mother to have her execute the required consents when he was denied information from the school. During his cross-examination when he was questioned as to why he did not follow up with the mother, he replied it was up to her to have signed the consents as per the final order.

[76] In the end, during the course of this litigation, the mother did execute the necessary school consents and the father was able to obtain his own school records.

Regular Access Schedule

[77] 13. The Applicant shall have access to the children as follows:

a. Three weekends per month from Friday at 5:00 p.m. to Sunday at 5:00 p.m.;

b. If Friday is a statutory holiday or a professional development day at school on the Applicant’s designated access weekend, then he shall have his weekend extended to begin Thursday at 5:00 p.m. to Sunday at 5:00 p.m.;

c. If Monday is a statutory holiday or a professional development day at school on the Applicant’s designated access weekend, then he shall have his weekend extended to being Friday at 5:00 p.m. to Monday at 5:00 p.m.;

d. If both Friday and Monday are statutory holidays or professional development days on the Applicant’s designated access weekend, then he shall have his weekend access extended to include Thursday at 5:00 p.m. and continue to Monday at 5:00 p.m.

[78] The evidence suggested that although the final order had exchanges taking place at 5:00 p.m. the parents began of their own accord exchanging the children at 6:00 p.m.

[79] On March 20, 2018 on consent of the parties, Justice J. Ramsay granted on a temporary basis, the three weekends of access per month given to the father be specified as the first three weekends of the month. The first weekend of the month is the weekend on which the first Saturday of the month falls.

[80] As previously noted the father had not been receiving his access in September 2018 which resulted in the father bringing a notice of motion. Until the motion could be fully heard by Justice T. Maddalena in October 2018, Justice R. Lococo granted a temporary order on September 19, 2018 to have the father pick up the children directly from their school on Fridays. The mother was to retrieve the children from the father’s care on Sundays at the York Regional Police Detachment. The parties eventually mutually agreed the mother could retrieve the children directly from the father’s residence in Newmarket. As such, the mother has continued to pick up the children at 6:00 p.m. on Sundays.

[81] The father seeks to continue to have the first three consecutive weekends of each month with the mother having the children with her for one weekend per month, only after his monthly weekend access has been fulfilled (in the event that holidays might interfere with his monthly visits).

[82] The father wishes to continue picking up the children at their school at 3:00 p.m. He feels this pick-up time allows him more communication with the children’s teachers and less like an absentee parent. He also feels this minimizes any issues for him upon pick up and provides for an early start to get onto a busy highway on a Friday afternoon. Since he wants maximum access time, he feels the mother can continue to pick up the children from his residence on Sunday at 6:00 p.m.

[83] The father continues to agree with the extension of his weekend time if same falls adjacent to either a P.D. day or statutory holiday provided that the pick-up time be 3:00 p.m. for him and 6:00 p.m. for the mother.

[84] The mother feels the children should only attend at their father’s residence on alternate weekends. The mother testified that such a schedule would minimize the conflict. It would also allow the children to spend more time at their primary residence. The mother noted the children are getting older and have friends and activities they are missing out on as they are away most weekends. The mother noted she herself does not get much time with the children during the week. She works 7:00 a.m. to 3:00 p.m. Monday to Friday. The children usually attend daycare prior to school however for the past few months her father has been able to provide care before school. Thereafter, she gets the children when they finish their school day but the evening is shortened as the children attend for reading classes and karate.

[85] The father testified that he and his parents are quite active with the children on weekends. He noted a number of activities he does with the children and for most of the year the children attend swimming lessons. The children have also made friends in the community and were not lonely.

[86] The mother prefers to have the father attend at her residence at 5:00 p.m. and to pick up the children at his residence at 5:00 p.m. The mother maintained the children preferred to attend her residence after school which permits them to attend the washroom, eat a snack and to get their bags to go to their father’s. During his evidence, the father testified he often stops somewhere with the children to permit a washroom break and to pick up some food during their transit to Newmarket.

[87] During her evidence, the mother testified that she usually went to the children’s school on Fridays. She takes the children out for lunch and retrieves their school bags and brings them home with her. The school bags do not follow the children to their father’s home and as such he would not have access to any homework or school information sent home on that day. When the mother was pressed about this issue she indicated she took the school bags as she did not want anything to go missing. She also wanted to ensure she had the children’s school lunch kits to clean and pack them prior to getting home from Newmarket at it would be late in the evening.

[88] In the event the court does not grant her request to amend the father’s access to alternate weekends, she seeks to have the children on the second weekend of each month and on the fifth weekend of the month when they occur. In the event there is a P.D. day or statutory holiday adjacent to her weekend, she would enjoy those extra days. The mother seeks the second weekend of each month as she noted most P.D. days or statutory holidays fall during the first and second weekend of each month. Therefore, if she were to have the fourth weekend of the month as proposed by the father, she would never have her weekend extended by an extra day.

[89] For the past two years, the father has now enjoyed the first three weekends of each month and for about eighteen months, he has been picking up the children directly from their school. These changes which were made temporarily by the court has minimized the conflict between the parties. Despite the fact the mother does not like the earlier pick up time on Fridays and for the father to have the first three weekends of each month, she herself testified there has been less difficulties between her and the father once these amendments were made.

[90] I realize the mother may not always get the extra P.D. day or statutory holiday as a result of her receiving the fourth weekend of each month however, the prior final order was drafted in such a way to provide maximum contact between the father and the children. As a result of the new access schedule, the mother may still receive some extra days during the year. I therefore do not feel compelled to change something that has been working. There may be years in which either the mother or the father have a few extra days with the children. I do agree if there is a fifth weekend during the month, the mother should have the extra weekend to permit the children some further time in their primary residence, possibly twice per year. This will also avoid extra driving for the parties during these specific months.

[91] 14. The mother shall have the children with her the one weekend per month that she is not working. The mother shall give her work schedule to the father as soon as same is available so the mother’s weekends may be for the time when she is not working. The regular access schedule will not apply for the summer, Christmas, Father’s Day, Mother’s Day, Easter and March Break schedules.

[92] A main dispute between the parties was whether it was the intention of the final order to have holidays override the regular access schedule. It was the position of the father that it did not while it was the position of the mother that it did. The final order states: The regular access schedule above does not apply to the following: summer, Christmas, Father’s Day, Mother’s Day, Easter and March Break schedules.

[93] My interpretation of the final order is in line with that of the mother’s interpretation. The usual annual access terms no longer continue to apply during summer, Christmas, Father’s Day, Mother’s Day, Easter and March Break as they are dealt with specifically. Accordingly, in the event these impede with the regular parenting schedule, so be it (my emphasis). To be clear, the usual access schedule only resumes after these special times have been exercised. There is no make-up time if a parent has lost time during the usual annual access times as a result of the holiday.

[94] I disagree with the father that if the holiday schedule impedes with the regular weekend schedule he should always be guaranteed three weekends per month. If this was the intent of the final order, Justice Carpenter-Gunn would have stated as much. Although the court wishes to maximize time between the father and the children it should not impede on the mother’s time with the children. Children should have maximum contact with both parents if it is consistent with the children’s best interests. See Gordon v. Goertz, [1996] 2 S.C.R. 27. There will be years where perhaps the schedule will allow the father more time while other years the mother will receive more time. It should not be a counting of the days or hours but equitably maximizing time for both family units bearing in mind what is best for the children, not the parents.

Summer Vacation

[95] 15. Both parties shall be entitled to four (4) weeks of vacation time with the children during the months of July and August.

16. The vacation time shall not be more than two (2) weeks at a time.

17. Each week shall be a total of seven (7) days only and include the parties’ regular weekend access days.

18. The parties must notify the other before May 30th of each year of the vacation time they wish to take with the children. The party notifying the other first shall have first choice.

[96] The difficulty which arose with the terms of the final order is the fact the months of July and August have more than 28 days in the month. As such if each parent took two weeks of holidays each, there were extra days.

[97] Not surprisingly, this led to conflict between the parties. As an example, the second summer after the final order was granted the father decided to withhold the children at the end of the summer and into the Labour Day weekend as the mother had received more time with the children over the course of the summer. This led to police involvement.

[98] As usual in the lives of these parents, it is “tit” for “tat” when it comes to parenting time. It is remarkable that despite the parties’ acrimony the evidence suggested Sophia and Gabriel are happy, well-adjusted children. I am concerned about their future well-being if the parents do not change their behavior.

[99] The mother proposes to solve the issue of summer vacation by having the same terms however amending them to state the Applicant would have fifteen days in one month and sixteen days in the other and vice versa. Each would be able to choose the preferred weeks in alternate years with notice being done by May 30th.

[100] The father prefers to follow the children’s school calendar and feels each parent should be entitled to an equal sharing of the summer vacation which would start from the last day of school in the month of June and end the day before school begins in September. Summer vacation would be divided in alternating blocks of time of approximately two weeks (fourteen days) which can be extended to ensure an equal sharing of time. Each would select their preference of weeks in alternate years and would provide notice by May of each year.

[101] In my view, if it was the intent of Justice Carpenter-Gunn to have the parents equally share the children’s entire summer school vacation as suggested by the father, she would have stated so. She specifically court ordered that each parent share the months of “July” and “August” (my emphasis). Unfortunately, it was noted that each would have no more than fourteen days per month when there are thirty-one days during these months. I therefore believe the order should simply specify that one party will have from July 1st at 5:00 p.m. to July 15th at 5:00 p.m. and August 1st at 5:00 p.m. to August 15th at 5:00 p.m. in even numbered years and from July 15th at 5:00 p.m. to August 1st at 5:00 p.m. and again from August 15th at 5:00 p.m. to August 31st at 5:00 p.m. in odd-numbered years. As of August 31st at 5:00 p.m., the usual parenting schedule resumes in full force and effect, regardless of the summer vacation schedule. I prefer to set the weeks to avoid future conflict between the parents considering this has been an issue every summer.

Christmas

[102] 20. The Applicant shall have the children with him in even years from 5:00 p.m. of the final day of school to December 25th at 5:00 p.m. and the Respondent shall have the children with her for the balance of the Christmas school vacation.

21. The Respondent shall have the children with her in odd years from 5:00 p.m. on the final day of school to December 25th at 5:00 p.m. and the Applicant shall have the children with him for the balance of the Christmas school vacation until 5:00 p.m. the day before school commences.

[103] The mother feels this term of the final order should not be disturbed.

[104] The evidence suggested that the above schedule evenly split the Christmas holiday between the parents the first year after the final order was granted. However, thereafter, there was not an equal split of time between the parents over the Christmas holidays due to how the children’s school break fell. For example, during one Christmas holiday the father only had a few days with the children while the mother had the entire balance of the holiday.

[105] This issue once again led to discord between the parties. For this reason, the father seeks to amend this provision such that both parties would be entitled to 50% of the vacation time with the children during the Christmas holidays as stated by the school calendar. The Christmas holiday would start from the final day of school and end the day before school commences.

[106] The father suggested he have the children in even years from 3:00 p.m. on the final day of school to the end of the first half of the Christmas holiday at 6:00 p.m. and the mother will have the children for the balance of the Christmas school vacation. This would alternate yearly with the mother having the children with her in odd years from the final day of school to the end of the first half of the Christmas holidays at 6:00 p.m. and the father having the children for the balance of the Christmas school vacation until 6:00 p.m. the day before school commences.

[107] I believe common sense suggests it was Justice Carpenter-Gunn’s intention to have the parties equally share the children’s Christmas school vacation as she began same on the final day of school through to the day before school commences. In fact, the way she outlined the division of the holiday in her order did provide for a 50/50 split between the parents and there was no conflict. Unfortunately, the terms as stated do not permit this yearly intention. I also note Justice Carpenter-Gunn had specifically made the exchange of access on December 25th to permit both parents to enjoy time with the children on Christmas Day and I intend to continue same while allowing both parents to share the children on an equal basis.

Father’s Day and Mother’s Day

[108] 22. The Applicant shall have the children with him on Father’s Day from 9:00 a.m. to 5:00 p.m. if it is not his regular access weekend.

23. The Respondent shall have the children with her on Mother’s Day from 9:00 a.m. to 5:00 p.m. if it is not her regular weekend with the children.

[109] It is difficult to imagine that parents would not, at the very least, agree that each parent is entitled to Mother’s Day and Father’s Day. However, not surprisingly, this issue has caused conflict between the parties. The father has not always returned the children to the mother by 9:00 a.m.

[110] The mother wishes to maintain this term in the final order.

[111] It was the father’s testimony that he felt during the month of May the mother should have her sole weekend of access be on the Mother’s Day weekend. He essentially believed that it was unfair the mother had the extra day during the month as Father’s Day always fell on his weekend and he did not receive an extra day. He later claimed it was also an issue as it led to more driving during the month.

[112] As of the end of the trial, the father agreed the mother would have the children for the entire Mother’s Day weekend and he would have the children with him for the entire Father’s Day weekend, regardless of the usual access schedule. However, because the father wants a guarantee of receiving three weekends per month, providing the mother with this particular weekend would mean she would have to forego her usual weekend of access and would not receive the extra day which was the father’s initial position.

[113] In my view, the intent of Justice Carpenter-Gunn’s order on this issue was crystal clear. The father will always have Father’s Day regardless of the usual access schedule and the mother will always be guaranteed Mother’s Day, regardless of the usual access schedule even if it impedes on the father’s weekend of access. There will be no changes to these terms.

Holiday Access Schedule

March Break

[114] 27. The parties shall share March Break each year. The Applicant shall have the children with him in the even years from 5:00 p.m. of the final day of school to the midpoint of March Break, and the Respondent shall have the children from the midpoint of the March Break to the conclusion of it.

28. The Respondent shall have the children with her in the odd years from 5:00 p.m. on the final day of school to the midpoint of the March Break, and the Applicant shall have the children with him from the midpoint of the March Break to the conclusion of it.

[115] This has been yet another issue of conflict between the parties. The parties agree the exchange of the children over the March Break should be on Wednesday but cannot agree to the definition of the word “midpoint” (my emphasis).

[116] The mother feels the midpoint is 5:00 p.m. based on the fact all exchanges in the final order were for 5:00 p.m. She also testified she works from 7:00 a.m. to 3:00 p.m. and is not able to exchange the children during work hours.

[117] The father feels “midpoint” is the midpoint of the day or 12:00 p.m. The father suggested the mother had a number of supports in town including her parents who could assist with the exchange if she was working. The mother simply suggested this was not possible.

[118] The father’s counsel also suggested that a new option which could be considered is to have each party enjoy the entirety of March Break in alternating years. There was no evidence led on this subject with either party.

[119] Although I feel the mother could make the necessary arrangements to exchange the children with the father during midday, my view is that “midpoint” is 5:00 p.m. I agree with the mother it was likely the time of exchange would remain the same as per the other regular access exchanges. Regardless, when I consider the children were being picked up at 5:00 p.m. and being delivered at 5:00 p.m. as per the final order, the “midpoint” for the exchange between the first half and the last half of March Break would indeed be on Wednesday at 5:00 p.m. Once again, had Justice Carpenter-Gunn wanted to have the parents exchange the children during the midday she would have specified same. For these reasons, I am not making amendments to the terms dealing with March Break other than specifying for clarity sake the exchange will be on Wednesday at 5:00 p.m.

Driving for Access

[120] 29. The parties are to share in the transportation for access on an equal basis. The parents or his/her designate should transport all of the way, one way. The designate should be known to the children. The Respondent or her designate shall do the picking up at the beginning of access and the Applicant or his designate shall do the pick up at the end of the access.

[121] The mother is seeking to have the father pick up the children at her residence on Fridays at 5:00 p.m. and she would pick up the children on Sundays from the father’s residence at 5:00 p.m.

[122] The father is content with the current arrangement. He wishes to pick up the children directly from school at 3:00 p.m. and wishes to have the mother retrieve the children on Sunday at 6:00 p.m.

[123] To ensure the father can exercise his access to the children without difficulty during weekends, he should pick them up directly from school. I agree with the father that by doing so, it permits him, when he is in town, to engage with the children’s teachers and principal. The evidence demonstrated pick up directly from school minimized conflict.

[124] Despite the mother testifying the children were hungry at that time of day, the father’s evidence suggested they often stopped to pick up food on their way to Newmarket. Considering Friday at 5:00 p.m. is an extremely busy time on the highway, it makes sense to have the father leave earlier for the safety of the children and permitting him to get a head start on his weekend time with the children.

[125] Although the parents had been initially exchanging the children on both Friday and Sunday at 6:00 p.m. (rather than 5:00 p.m. as court ordered), considering the father now has the children as of 3:00 p.m. on Friday, I see no reason not to follow the original intent of the final order. As such, considering the lengthy drive from Newmarket to Niagara Falls, the mother should be permitted to pick up the children from the father’s residence at 5:00 p.m. This will allow the children to get back home and have time to decompress and get themselves ready for their school week.

Police Enforcement of Access

[126] 30. Upon request, and receipt of an original court order or certified copy of the order, pursuant to s. 36 of the Children’s Law Reform Act, the police having jurisdiction in any area where it appears that the child or children, Sophia Anne Morocco-Norris born November 18, 2010 and Gabriel Obrey Anthony Morocco-Norris born March 5, 2012, may be found, shall locate, apprehend and deliver the child or children to the Applicant for access or to the Respondent for primary residence or access to enforce the terms of this order.

[127] Both parents appear to want to include the police enforcement clause. It was initially removed by the court and reinstated by Justice Maddalena in September 2018.

[128] Police enforcement clauses are orders of last resort. However, I am prepared to maintain the police enforcement clause since it was initially court ordered. I caution the parents to use this enforcement sparingly and preferably not at all. I was pleased to learn the parents have not had to contact police since September 2018 which coincides with the changes made to weekend access and transportation.

Child Support

[129] 32. The Applicant shall pay to the Respondent child support for the children the sum of $1,162.00 per month commencing July 1, 2015 and on the 1st day of each month thereafter pursuant to his gross income for 2014 of $79,148.01.

[130] According to the mother, she has sought to obtain annual disclosure from the father in order to review child support. He has refused to comply. Once the motion to change was initiated, the father produced his court ordered annual disclosure and adjustments were made for child support purposes. The calculated arrears of child support were paid by the father to the mother. There are no arrears currently owing.

[131] Over the course of this litigation, the father lost his employment in November 2018. At the time, the father had roughly earned about $80,000.00 gross per year. As the father received a severance package, he continued to receive a similar income into 2019. Since that time, the father has had no other source of income and presumably is supported by his parents. His skill set and previous employment experience is quite unique. Although he has applied for some similar employment positions in his field, the father testified he has told prospective employers he is not willing to accept employment which interferes with his ongoing schedule of access. This may limit his employment prospects.

[132] The mother is seeking to have the father pay child support in the amount of $839.00 per month commencing March 1, 2019 based on an imputed income of $55,000.00 until such time that his income is over $55,000.00. There was no evidence led to outline why or how the father had the capacity to earn new employment at this level of income.

[133] The father is content to pay child support based on an imputed gross annual income of $30,000.00 and provide monthly child support in the amount of $459.00 commencing March 1, 2019 until such time as his income is over $30,000.00.

[134] Considering the father’s field of employment, I anticipate it may take some time for him to secure similar employment. He has made some efforts to look for employment especially once his income ceased in 2019. In the meantime, he was ordered to temporarily pay child support as of March 1, 2019 based on imputed minimum wage of $30,000.00.

[135] I am concerned the father may choose not to accept better employment providing him with more income on the basis that his work schedule cannot interfere with his parenting time. He has an obligation to look for and secure employment to meet his child support obligations.

[136] I am prepared to accept child support based on $30,000.00 per year considering the father involuntarily lost his employment and the current state of affairs (Covid-19). The father should be entitled to a further grace period and an imputed income of $30,000.00 appears to be reasonable considering the father’s circumstances.

[137] The annual disclosure provision will therefore remain with the proviso the father will notify the mother within 10 days of him earning more than $30,000.00 and will cooperate in preparing a consent motion to change to adjust his child support payments.

[138] Although the father indicated in his draft final order he was prepared to do all of the transportation if the mother was prepared to forego child support, this proposal was never put to the mother in evidence. If this is something the parents wish to agree to, they can pursue a consent motion to change on this issue.

Section 7 Special and Extraordinary Expenses

[139] 34. The Applicant and the Respondent shall share in the s. 7 special and extraordinary expenses, other than daycare expenses, on a proportionate basis based on their incomes.

35. Neither party shall incur any expense, other than daycare expenses, education and medical expenses, without the express written consent of the other party. Such consent shall not be withheld unreasonably. Education expenses in this paragraph does not include private school fees.

36. The receipts for the s. 7 expenses, other than daycare expenses, shall be photocopies into the communication log and the other party shall pay their proportionate share within 14 days of receiving the receipt in the communication log.

[140] There is no reason to amend the provisions dealing with s. 7 expenses. The mother at one point noted in her evidence that perhaps this provision be amended to read the parties should equally pay these expenses. There is no reason to make such a change.

[141] The father suggested any reference to daycare costs should be removed as the parties are not currently using daycare services. There is no guarantee the maternal grandfather will be able to continue providing before school care for the foreseeable future. I am therefore not removing the daycare provision in the event the mother requires same in the future for employment purposes.

Documents

[142] 52. The children’s health cards shall travel with the children between the homes of the Applicant and the Respondent. The Respondent will keep the passports issued in the children’s names, SIN cards, birth certificates and any other relevant documents at her home and they will be made available to the Applicant as needed.

[143] The mother had not provided the father with the children’s health cards. On the last day of the trial, the mother’s counsel provided the father with notarized copies of the health cards. I agree that notarized copies should be used by the father to ensure the original cards are not lost. However, in the event he experiences any difficulties with health care practitioners, the expectation of this court is for the health cards to travel back and forth with the children for access purposes as noted in the final order. These can be stored in a Ziploc bag and kept in the same safe pouch located in one of the children’s bags.

[144] I am making no change to this term.

Further Requested Terms

Thanksgiving

[145] Both parties consent to equally share Thanksgiving weekend. The father suggests he have the children with him in even years from 3:00 p.m. on the Thursday at the commencement of the Thanksgiving weekend until 6:00 p.m. on the Saturday and the mother would have the children for the remainder of the Thanksgiving weekend. During odd years, the mother would have the children with her at the commencement of the Thanksgiving weekend until 3:00 p.m. on the Saturday and the father would have the children for the remainder of Thanksgiving until Monday at 6:00 p.m.

[146] The mother agrees to the above suggestions however she proposes to have the exchange take place at 5:00 p.m. on all days.

[147] As this specific holiday is an addition on consent, I am willing to include a term to deal with Thanksgiving. The exchange time will follow the usual calendar year exchange times to provide some consistency.

Gabriel’s First Communion

[148] The mother wishes to have the children for the weekend of Gabriel’s first communion. The father disputes this request but presumably would return Gabriel to his mother for the communion.

[149] This was requested by the mother as Sophia’s first communion led to a fiasco. The father had the children for the weekend of Sophia’s first communion. The father was advised of the communion and was asked to return the children early to the mother. The father was also invited to attend the ceremony. The father was prepared to return the children earlier to the mother but not for the time the mother had requested and then failed to respond further to the mother. As a result, the mother had her legal counsel send an email to the father’s counsel at the end of the work day on Friday. As the mother had not received a response by the time she had to take the children to Newmarket, she chose not to deliver the children to the father for his weekend to ensure Sophia could attend her communion. The father did arrive to see his daughter’s ceremony and attend a family dinner.

[150] There is no reason for the father to miss an entire weekend with the children as a result of Gabriel’s first communion. Considering the current Covid-19 restrictions, I will assume Gabriel’s communion will be postponed. The mother testified there is some pre-activity time prior to the ceremony and as such the father cannot simply return Gabriel for the ceremony per se. As religion is incredibly important to the mother and perhaps the children, I will be including a term the father’s access will be cut short to Saturday at 7:00 p.m. to ensure there are no hiccups for Gabriel’s special day, whenever this may occur.

Make-Up Time

[151] The mother seeks a term stipulating there shall be no make-up time if a parent changes their regular or holiday parenting time with the children unless agreed to in advance by both the parties in writing.

[152] The father is seeking a term that if a parent is faced with an unexpected situation like a wedding, the other parent will make every effort to accommodate a request for a change in schedule. The other parent will provide reasonable “make-up time”.

[153] I am not inclined to agree with the mother’s recommendation as there may be unforeseen times when parenting time must be cancelled and agreeing to the change in advance would be moot.

[154] I am agreeable to the suggested term put forth by the father provided these events are for immediate family only to ensure minimum disruption to the access schedule.

Other Holidays

[155] The father wishes to have noted the following months have statutory holidays or school defined holidays and requires accommodations according to the holiday access schedule (January: Christmas vacation; February: Family Day; March: March Break if not alternating years this to be deleted if alternating years; April: Easter; May: Victoria Day; July: Canada Day; August: Civic Holiday; September: Labour Day; October: Thanksgiving; December: Christmas).

[156] The mother wants no changes to holidays save and except with the addition of Thanksgiving.

[157] I am not prepared to deal with each and every holiday as noted by the father. Most important holidays are specifically defined as per the final Order and if they are not, they are subsumed in the usual regular calendar of access.

ORDER

[158] For ease of reference for the parties and police authorities, paragraphs 3 to 31 of the final order of Justice K. Carpenter-Gunn dated July 31, 2015 shall be replaced with the following terms:

COMMUNICATION

1. Neither party shall speak negatively about the other or allow others to speak negatively about the other in the presence of, or vicinity of, the children.

2. Neither party shall discuss adult issues in the presence of, or vicinity of, the children.

3. Neither party shall interfere, frustrate, or engage in behaviour that is detrimental to the well-being and safety of the children at any time, while they are in their care or the other parent’s care.

4. All communication between the parties, save and except for an emergency, shall be by way of a written communication log that shall travel with the children for access. Such communication log shall be placed in a sealed envelope with the sender’s signature across the seal.

TELEPHONE CALLS

5. In the event the father’s weekend of access is extended by either a P.D. Day or statutory holiday or both, the mother will be permitted one telephone call with the children during the extended weekend.

6. The father will be permitted one telephone call with the children each week (between Monday and Thursday) and one call during the weekends when the mother has the children in her care.

7. In the event the children are with a parent during a holiday lasting seven consecutive days, the other parent shall be entitled to two phone calls during that week. Obviously, if a parent has the children for fourteen consecutive days, the other parent would be entitled to four calls during that time frame.

8. The parties are to mutually agree on the best days for telephone calls in an effort to provide consistency. The calls should take place in the evening, approximately 30 minutes prior to the children’s bedtimes (unless the parties mutually agree to another time) and should be reasonably short in duration as to not interfere with the other’s parenting time.

DECISION MAKING

9. The Respondent shall make the day to day decisions regarding the children.

10. The Respondent shall consult with the Applicant on major decisions regarding the health, education and religion for the children in the communication log. If the parties are unable to reach a decision with all parties acting reasonably, the Respondent shall be entitled to make the final decision.

11. In the case of a medical emergency, the parent with the child at the time shall make the decision and promptly notify the other. If one party disagrees with the physician’s recommendations they may obtain a second opinion promptly, if it does not jeopardize the immediate care of the child or children.

ACCESS TO INFORMATION

12. The parties shall both have direct access to all information and professionals involved with the children. The parties shall sign any consent forms required and presented to them to allow either to access the information and professionals directly.

NAME CHANGE

13. The children’s names shall not be changed without the express written consent of the other party. They shall remain Sophia Anne Morocco-Norris and Gabriel Obrey Anthony Morocco-Norris.

BAPTISM

14. The Respondent shall be permitted to baptize Gabriel Obrey Anthony Morocco-Norris.

15. In the event the scheduled baptism occurs on the father’s weekend of access, both Sophia and Gabriel shall be returned to the care of the mother the night prior to the baptismal by no later than 7:00 p.m. to ensure no disruption the day of the ceremony and to permit pre-baptismal activities.

REGULAR ACCESS SCHEDULE

16. The Applicant shall have access to the children as follows:

a. The first three weekends of each month from Friday at approximately 3:00 p.m. when he picks up the children directly from their school in the Niagara Region to Sunday at 5:00 p.m. when the mother picks up the children from the father’s residence located at 908 College Manor Drive in Newmarket, Ontario. The first weekend of the month is the weekend where the first Saturday of the month falls.

b. In the event the children are not in school during the father’s regular pick up time for his weekend or holiday access, he shall pick up the children directly from the mother’s residence located at 4740 Lyon’s Parkway, Niagara Falls, Ontario.

c. If Friday is a statutory holiday or a Professional Development Day at school on the Applicant’s designated access weekend, then he shall have his weekend extended to begin Thursday at 3:00 p.m. to Sunday at 5:00 p.m.

d. If Monday is a statutory holiday or a Professional Development Day at school on the Applicant’s designated access weekend, then he shall have his weekend extended to being Friday at 3:00 p.m. to Monday at 5:00 p.m.

e. If both Friday and Monday are statutory holidays or Professional Developments Days on the Applicant’s designated access weekend, then he shall have his weekend access extended to include Thursday at 3:00 p.m. and continue to Monday at 5:00 p.m.

f. The Respondent mother will enjoy access one weekend per month and shall have the children in her care on the fourth weekend of every month.

g. In the event there is a fifth weekend during the month, the children will remain with their mother for that weekend.

h. To be clear, if there is a statutory holiday or Professional Development Day which falls adjacent to the mother’s weekend of access (the fourth and fifth weekend of the month), she shall have the care of the children on those extra days.

i. The above regular access does not apply to the months of July and August, Christmas school vacation, Father’s Day, Mother’s Day, Easter, Thanksgiving and March Break as these special times are treated differently than the regular access schedule. In the event the above-noted holidays interfere with the regular access schedule, so be it. There will be no make-up time if the holiday time overlaps or interferes with the regular access schedule. The regular access schedule resumes as usual as soon as the holiday has been exercised.

SUMMER VACATION

17. Both parties shall be entitled to vacation time of approximately two week blocks to share time with the children during the months of July and August.

18. In even numbered years, the father shall enjoy the children from July 1st at 5:00 p.m. to July 15th at 5:00 p.m. and from August 1st at 5:00 p.m. to August 15th at 5:00 p.m. while the mother will enjoy the children from July 15th at 5:00 p.m. to August 1st at 5:00 p.m. and August 15th at 5:00 p.m. to August 31st at 5:00 p.m.

19. In odd numbered years, the mother shall enjoy the children from July 1st at 5:00 p.m. to July 15th at 5:00 p.m. and from August 1st at 5:00 p.m. to August 15th at 5:00 p.m. while the father will enjoy the children from July 15th at 5:00 p.m. to August 1st at 5:00 p.m. and from August 15th at 5:00 p.m. to August 31st at 5:00 p.m.

20. For clarity sake, the children will be with the designated parent as per the regular access schedule until July 1st at 5:00 p.m. Likewise, the children will be with the designated parent as per the regular access schedule as of August 31st at 5:00 p.m. This is regardless of whether a parent gets less or more time with the children as a result of the above summer holidays.

CHRISTMAS

21. The parents will enjoy an equal sharing of the children during the children’s Christmas school vacation which will commence on the final day of school at 3:00 p.m. to the day before school commences at 5:00 p.m.

22. During even numbered years, the father will have the children from 3:00 p.m. on the final day of school until December 25th at 5:00 p.m. The mother will have the children thereafter as of December 25th at 5:00 p.m. for an approximate equal amount of time as the father. If there are remaining holiday days thereafter, the parties shall equally share time with the children such that the father will have the first half of the remaining days with the exchange being at 5:00 p.m. and the mother will have the second half until the children resume school.

23. During odd numbered years, the mother will have the children in her care from the final day of school until December 25th at 5:00 pm. The father will have the children thereafter as of December 25th at 5:00 pm for an approximate equal amount of time as the mother. If there are remaining holiday days thereafter, the parties shall equally share time with the children such that the mother will have the first half of the remaining days with the exchange being at 5:00 p.m. and the father will have the second half with the exchange being at 5:00 p.m. on the last day before school resumes.

24. The parties shall confirm with one another in writing by December 1st their proposed dates for the Christmas holidays bearing in mind the children’s Christmas school vacation for that particular year.

FATHER’S DAY AND MOTHER’S DAY

25. The Applicant shall have the children with him on Father’s Day from 9:00 a.m. to 5:00 p.m. if it is not his regular access weekend.

26. The Respondent shall have the children with her on Mother’s Day from 9:00 a.m. to 5:00 p.m. if it is not her regular access weekend.

EASTER WEEKEND

27. For religious reasons, the Respondent shall have the children with her for Easter Sunday and Easter Monday from 5:00 p.m. the Saturday before Easter Sunday every year for the balance of the Easter weekend.

28. The Applicant shall have the children with him from Thursday at 3:00 p.m. at the commencement of Easter weekend until 5:00 p.m. Saturday of the Easter weekend every year.

MARCH BREAK

29. The March Break will be deemed to be from the Friday at 3:00 p.m. (regardless if the Friday is a P.D. day) prior to the children being off school for the week until the Sunday at 5:00 p.m. prior to the children returning to school on the Monday.

30. The parties shall share March Break each year (Friday at 3:00 p.m. to Sunday at 5:00 p.m.). The Applicant shall have the children with him in the even years from 3:00 p.m. on Friday until the Wednesday at 5:00 p.m. and the Respondent shall have the children from Wednesday at 5:00 p.m. for the remainder of the March Break.

31. The Respondent shall have the children with her in odd years on Friday to the Wednesday of the March Break at 5:00 p.m. and the Applicant shall have the children with him from the Wednesday at 5:00 p.m. to the Sunday at 5:00 p.m.

THANKSGIVING WEEKEND

32. The parties shall share the Thanksgiving weekend each year. The Applicant shall have the children with him in even years from approximately 3:00 p.m. on the Thursday of the Thanksgiving weekend until 5:00 p.m. on the Saturday and the Respondent shall have the children from Saturday at 5:00 p.m. for the remainder of the Thanksgiving weekend.

33. The Respondent shall have the children with her in odd years starting at the commencement of the Thanksgiving weekend until 5:00 p.m. on the Saturday and the Applicant shall have the children with him from Saturday at 5:00 p.m. for the remainder of the Thanksgiving weekend until Monday at 5:00 P.M.

OTHER UNSPECIFIED HOLIDAYS

34. For all other holidays not mentioned, the parties shall follow the regular access schedule set out above.

DRIVING FOR ACCESS

35. The parties are to share in the transportation for access on an equal basis. The parent or his/her designate should transport all the way, one-way. The designate should be known to the children. The Applicant or his designate shall do the pick up at the beginning of access and the Respondent or her designate shall do the pick up at the end of the access.

POLICE ENFORCEMENT

36. Upon request and receipt of an original order or certified copy of the order, pursuant to s. 36 of the Children’s Law Reform Act, the police force having jurisdiction in any area where it appears that the child or children namely, Sophia Anne Morocco-Norris, born November 18, 2010 and Gabriel Obrey Anthony Morocco-Norris, born March 5, 2012, may be found, shall locate, apprehend and deliver the child or children to the Applicant for access or to the Respondent for primary residence or access to enforce the terms of this order.

RESCHEDULING AND MAKE-UP TIME

37. If a parent is faced with an unexpected situation such as a grave illness or a death in their immediate family, or an irregular event like a family wedding for immediate family, the other parent will make every effort to accommodate a request for a change in the schedule. The other parent will provide reasonable “make-up” time. It is anticipated these events will occur infrequently to minimize disruption to the parties’ parenting time.

38. In the event one party is seeking a change of their access for purposes not mentioned above and seeks make-up time, the parties may agree to do so by mutual consent, in advance, in writing.

CHILD SUPPORT

39. The Applicant shall pay to the Respondent child support for the children namely, Sophia Anne Morocco-Norris, born November 18, 2010 and Gabriel Obrey Anthony Morocco-Norris, born March 5, 2012 the sum of $459.00 per month commencing March 1, 2019 and continuing on the first of each subsequent month thereafter based on an imputed gross annual income of $30,000.00 (full-time minimum wage) and the table amount of the Child Support Guidelines.

10 DAY REPORTING TO CHANGES OF FATHER’S INCOME

40. The Applicant shall report to the Respondent within 10 days of receiving an income over $30,000.00 and shall cooperate in doing a consent motion to change child support with the Respondent.

OTHER

41. All other issues raised in the motion to change and response motion to change are hereby dismissed.

42. All other paragraphs as contained in the final order of Justice Carpenter-Gunn dated July 31, 2015, specifically, paragraphs 1, 2 and 32-59 shall remain in full force and effect.

ENFORCEMENT

43. Unless the support order is withdrawn from the Office of the Director of the Family Responsibility Office, it shall be enforced by the Director and amounts owing under the support order shall be paid to the Director, who shall pay them to the person to whom they are owed.

COSTS

[159] If the parties are unable to resolve the issue of costs, they may make written submissions to the court. The party seeking costs is to serve and file their submissions no later than 20 days from the date of this order and the responding party’s submissions are to be served and filed no later than 20 days thereafter. Any reply submissions are to be served and submitted in writing within 10 days thereafter. All costs submissions are to be forwarded to my attention by email to: Welland.Superior.Court@Ontario.ca.

“Justice N. Gregson”

Gregson J.

Date: April 21, 2020

COURT FILE NO.: FC-12-FS005094 DATE: 2020/04/21 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: Justin Lee Norris Applicant - and - Lisa Anne Morocco Respondent reasons for judgment Gregson, J. Released: April 21, 2020