COURT FILE NO.: FS-19-0026-00 DATE: 2023-01-04

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

D. F. R. Culpeper & A. Khan for the Applicant Applicant

- and -

T.F. S. Filipovic, for the Respondent Respondent

HEARD: January 17, 18, 19, 20, 21, 24, 2022, March 8, 2022, April 12, 13, 2022 at Thunder Bay, Ontario

Madam Justice T. J. Nieckarz

Reasons For Judgment

OVERVIEW:

[1] This Application originally pertained to four children:

a. the two children of the relationship, F.F. (12 years old at the time of trial), and D.F. (10 years old at the time of trial); and b. the Respondent’s (“Mother”) two children from a previous relationship, namely F.D. (22 years old), and J.D. (17 years old).

[2] The primary issues between the parties pertain to decision-making authority and parenting time for F.F. and D.F. Support is also an issue but will largely flow from a determination of the parenting arrangements.

[3] With respect to F.D. and J.D., the Mother alleges that the Applicant (“Father”) acted as a parent to these children. Parenting orders for F.D. and J.D. are not in dispute. Child support for these children was in dispute at the commencement of the trial, with the Mother seeking child support for both children. By the close of the trial the Mother sought child support for J.D. only.

[4] While the Father initially contested having acted as a parent to F.D. and J.D., in his final proposed draft order he conceded that the evidence supported him having acted as a parent to these children. This was an appropriate concession in my view. The Father conceded child support payable for J.D.

[5] With respect to F.F. and D.F., at the commencement of trial the Father sought an order for sole decision-making authority and primary care of the children. The Father’s draft proposed order filed for the conclusion of trial sought joint decision-making, or in the alternative a division of decision-making responsibility between both parents, with parenting time divided equally. Ultimately by closing submissions the Father took the position that given the inability of the parties to communicate and the hostility between them, an allocation of decision-making akin to a parallel parenting order was more appropriate. The Father sought the following allocation of decision-making authority:

Father: Education and Extra-curricular activities Mother: Physical and mental health (well-being) of the children.

[6] The Mother takes the position that the best interests of the children warrant an order for sole decision-making authority to be granted to her and changing the parenting time arrangements to place the children in her primary care. She argues that the Father has demonstrated a pattern of abusive, coercive and controlling behaviour towards the Mother and all four children both during the relationship and after the parties separated, such that it is impossible for the parties to co-parent. She further argues that his unilateral actions taken with respect to the children, propensity for conflict, and his refusal to communicate in a respectful fashion (or sometimes at all), render any form of shared parenting unworkable and contrary to the interests of the children.

[7] The Father takes the position that the Mother cannot be trusted to make decisions in the best interests of the children. He argues that she has unilaterally, and contrary to the wishes and interests of the children, terminated their involvement in activities important to them, has been restrictive and overly difficult with respect to changes to parenting time, and that her current relationship is harmful to the children. He argues that the actions of the Mother have unnecessarily escalated conflict between the parties, contrary to the interests of the children. He further argues that although there are some concerns with respect to the children, the children have, and continue to do well in his care, and that maintaining the status quo of shared parenting is consistent not only with the best interests of the children but also their wishes. He fears that if the Mother is granted sole decision-making authority and primary care, that his meaningful role in the children’s lives will be negatively impacted and he will be marginalized as a Father.

[8] The issues to be determined by me are decision-making and parenting time for F.F. and D.F. There are some peripheral issues that I will also address. Child support will be determined based on my other findings.

BACKGROUND:

[9] The parties began their relationship in 2007 while living in Victoria, British Columbia. They began living together in 2008. They married July 1, 2009, 18 months after they had met.

[10] The Mother brought to the relationship her two children from her previous marriage. F.D. was 7-years old and J.D. was 2-years old.

[11] Both parties described a very good relationship with each other early in their courtship. The Father also developed a good relationship with the Mother’s children. The Mother recalled that the Father initially treated her children well, and the children began calling him “papa”. The children had minimal contact with their biological father, whose parents often exercised his parenting time. She recalled fondly how the Father would cook for the children and take an interest in them, and she felt that he was a real partner to her in the running of the household and care of the children.

[12] From the Father’s perspective, the relationship began to develop cracks as a result of stress associated with interference from the Mother’s ex-partner. The Father believes that this interference from F.D. and J.D.’s biological father and his family caused tension in his relationship with those children.

[13] The Father also feels that the Mother grew increasingly resentful of him for providing for his two children by purchasing items for them and opening education savings accounts, because he did not do the same for her other two children. He testified that he always wanted to “do more” for his children, but it became a “money power struggle”, with the Mother adopting the position that if they could not afford to do it for all four of the children, they could not do it at all. The Father feels that his desire to give his children as much as he could was frequently at odds with the Mother’s desire to balance the needs of all four children.

[14] The Father testified that the Mother’s inflexible attitude and the ‘her way or the highway’ attitude she frequently demonstrated, combined with her volatility, contributed meaningfully to the conflict between them.

[15] From the Mother’s perspective, the Father began exhibiting strange and controlling behaviour after the birth of their first child. She felt that he had unrealistic expectations of her with respect to household chores and meals and began treating her older two children poorly.

[16] In or about 2014, the entire family of six relocated to Thunder Bay, Ontario, where the Father’s family lived. The Father testified that the marriage was so bad at this point that he contemplated moving to Ontario with the children alone. The Mother testified that she looked forward to the move. She had a good relationship with the Father’s family and felt that the family needed the support they could offer.

[17] The Father testified that the Mother’s older children were unhappy with the move. While the parties disagree as to the cause, suffice it to say that considerable conflict developed within the family over the Father’s relationship with the Mother’s children.

[18] The Mother testified that the Father treated her older children cruelly, mocking F.D.’s sexual orientation and the children’s Metis ethnicity, demonstrating little empathy and compassion for J.D.’s ADHD and learning disabilities, calling them derogatory names, and generally treating them with distain. Often this would occur in the presence of their siblings, F.F. and D.F., and impacted their view of their siblings. When the Mother would attempt to intervene, screaming matches and volatile arguments would ensue.

[19] In June 2018, F.D. returned to British Columbia, where she now lives with grandparents and attends university. The Mother’s son, J.D. remained with the parties in Thunder Bay.

[20] The Father testified that following F.D.’s return to British Columbia, the Mother became very resentful towards him, to the point that he felt like a punching bag. Her behaviour was bizarre such as barging into a room and threatening to throw coffee at him. She constantly threatened to leave. He became distressed and confused. They tried counselling but it did not work. He felt that he was being blamed for everything. He alleges the Mother was physically violent with him, and that had it not been for the children he would have ended the marriage in 2013 before relocating.

[21] Conflict between the Father and the Mother’s son continued to escalate. Arguments would frequently take place in the presence of the younger children, causing them distress. The Mother and Father disagreed frequently with respect to J.D. By October 2018, J.D. was suicidal. The situation was so bad that on November 27, 2018, the Mother left the home with J.D. for the night.

[22] The Father testified that this was not the only time. He stated that the Mother had left the home on various occasions, “abandoning” the children. The Mother says she left to de-escalate the situation and avoid further exposure to the conflict by the children. She also suffers from PTSD related to her employment and becomes anxious, and needs to remove herself from these types of situations. The Father alleges it was the Mother who was the aggressor in disputes between them, often initiating arguments and coming after him if he tried to walk away if the children were present. He alleges he was the victim of ongoing verbal abuse, often subjecting him to yelling and screaming, demeaning and belittling comments that made him feel worthless, then storming out of the home and leaving him with distressed children to deal with.

[23] While the Mother returned to the home on November 27, 2018, she began preparing to leave the marriage. She met with her doctor and explained she wanted to leave the marriage but was feeling scared. She obtained a medical note so that she could take time off work to deal with the issue. She sought support services from a local women’s shelter to develop a plan to leave after Christmas.

[24] A heated argument occurred on December 9, 2018, that caused the separation to occur earlier than the Mother had planned. The parties have different accounts of the argument. They agree it pertained to conflict that occurred that evening between the Father and J.D. The Mother contacted the women’s shelter crisis line, reporting feeling scared. The shelter contacted police, who attended at the home. Ultimately the Father left the home voluntarily.

[25] Since shortly after separation, the parties have had shared parenting time with the children equally, with various schedules. Initially the schedule revolved around the Father’s work schedule, but this provided for multiple transitions in a two week period. A change to this schedule was litigated and determined in favour of an alternating weekly schedule.

[26] The conflict between the parties has continued throughout the separation. The parties have different perspectives on each individual conflict that arose. The trial was replete with allegations of misdeeds made by each party against the other. They are too numerous to repeat in this decision, but I have reviewed and considered all the trial evidence in making my decision.

[27] The Father was employed as a transit driver with the City of Thunder Bay, although at the time of trial was in receipt of disability benefits due to an accident. The Mother is a social worker with a local child protection agency.

[28] The Mother has been in a new relationship at least since mid-2019 with an individual who has a child of his own. The Mother alleges that this relationship has been subject to stress caused by the Father’s actions, including calling the police alleging that her partner’s young son assaulted D.F. The Father believes that the Mother’s partner (who she does not live with) is emotionally abusive to his children. He testified that his son has told him that the Mother’s partner has swore at him, made derogatory remarks about Italians, and has grabbed him.

Relevant Orders Made:

[29] A number of orders have been made throughout this proceeding. Most significantly, the July 15, 2019, temporary order of Newton J., for:

i. Sole decision-making authority to the Mother; ii. Shared parenting time with the children on an alternating weekly basis, with transitions to occur Sundays at 4:00 p.m. in a parking lot, with the assistance of a third party; iii. A continuation of the restraining order of Shaw, J., dated May 17, 2019; iv. Communication between the parties shall occur through the Our Family Wizard (OFW) program, or counsel; v. Child support; and vi. Costs of $10,000 against the Father (order dated September 12, 2019).

The Involvement of the Office of the Children’s Lawyer

[30] On consent of the parties, the Order of Pierce J., dated March 18, 2019, requested the involvement of the Office of the Children’s Lawyer (OCL) with respect to all four children. The order was later amended to request the OCL involvement only with respect to F.F. and D.F.

[31] The OCL agreed to provide services pursuant to s. 112 of the Courts of Justice Act, R.S.O. 1990, c. C-43, and Darlene Niemi was appointed as a clinical agent to investigate and deliver a report.

[32] Ms. Niemi testified at trial, and her final report dated October 11, 2019, was entered into evidence. Unfortunately, an updated report was not prepared prior to trial and Ms. Niemi’s report and involvement with the family was dated by the time of trial. Having said this, some of the issues raised by the parties during Ms. Niemi’s period of involvement, and certain themes, continued to be concerns at trial.

[33] In his discussions with Ms. Niemi, the Father identified the following concerns:

a. Lack of effective communication with the Mother, largely as a result of the restraining order in place, which did not allow for open discussion and communication; b. The parenting schedule ordered by Newton J., does not allow him to maximize his time with the children. A different parenting schedule would be preferable, provided it continued to be on an equal time sharing basis; c. The Mother is not taking the children to church when they are in her care; d. Exchanges are problematic given the various individuals the Mother sends as her designate pursuant to the terms of the order of Newton J.; e. The Mother uses babysitters to provide childcare for the children even though he is available. The Father expressed concern over the children’s brother, J.D. providing after school care, as he believes J.D. to be aggressive with the children and to have “serious issues”; f. The Mother’s overall functioning and mental health is concerning. She has had two “breakdowns” requiring time off work. He does not believe she is capable of effective, child-focused decision-making. For example, she has exposed the children to her new relationship.

[34] In her discussions with Ms. Niemi, the Mother identified concerns with respect to the Father’s mental health which cause her to feel unsafe, emotional and verbal abuse against her and her older children, and the Father’s negative influence on F.F. and D.F. in involving them in the legal process and adult matters.

[35] Ms. Niemi’s interviews of the children confirmed that they were very aware of the conflict between their parents. F.F. reported having been woken by her parents’ arguments, and that she would lay in bed at night and cry because she was sad. She remembers waking up on December 9th and hearing the police in the home. She was very aware of discussions between her father and police, stating “my dad informed me of everything”. She alleged her mother makes up “stuff” about her Father and that “my dad has been informing me, not my mom, about what is happening”. She reported that her dad sometimes asks her which parent she would rather live with. She reported that her dad had her type an email to her mom through OFW. She stated that the only way her dad will get back together with her mom is if J.D. leaves. She stated that J.D. has hurt the family. Her dad told her to write down everything that concerned her about J.D. and give it to Ms. Niemi. She further reported that her dad “doesn’t want secrets so he tells us things, like what people have said that isn’t true”, whereas her mom does not tell her anything. She was 9 years old at the time of the interviews. F.F. also made numerous positive comments about her relationship with her dad and how close she is to him.

[36] D.F., who was 7 years old at the time, also reported having been told by his dad that he does not like the weekly parenting rotation and prefers to alternate every three days. He told the clinician “dad wants us to be with him all the time” and explained that his dad has talked to him about this. He further described how his dad tells them “I want to stay with you” when it is time to go back to his mom’s. Similar to F.F., he expressed a preference for staying with the Father. He advised Ms. Niemi that his dad told him his mother “said a lie”. He said that his mother was not nice to him but could not given an example. He could not tell Ms. Niemi anything nice about his mother, but this was incongruent with Ms. Niemi’s observation of the relationship between mother and son. He told Ms. Niemi that he did not like his mother’s boyfriend but could not say why. He described a sad memory of his father yelling at his mother at Christmas and saying he’s “not gonna live with us unless Jesse goes away”.

[37] Ms. Niemi also interviewed J.D. He described the Father as “mean” to him and his older sister. He alleged the Father would call him a “fag”. He worries about his mother who seems worried and “grumpy”, although that does not happen much anymore. He described a very stressful home environment prior to separation and having felt anxious and angry when the Mother and Father had been together. Ms. Niemi describe him as a sweet, cooperative and polite child who was genuine and forthcoming.

[38] After meeting with the parties, meeting with the children, observational visits of each party and the children, and discussions with collaterals, Ms. Niemi concluded:

a. From her observational visits, both parties are engaged with the children, and the children are very comfortable with each of their parents. Each parent has been actively involved in raising the children and making decisions about their care. The children love both their parents. b. F.F., D.F. and J.D. have good sibling relationships. There was nothing unusual observed. At times there was conflict, but it was normal sibling interactions. c. The Father, throughout the investigation, appeared to be manipulating her and others with inaccurate information or the use of language in a way intended to give a certain impression. He attempts to manipulate the facts to portray himself in a better light. At times he chose not to follow the rules, while at others he was outright dishonest. Examples were detailed in Ms. Niemi’s report. This behaviour extended not only to Ms. Niemi’s involvement, but the children’s school principal expressed concern that the Father has violated their rules, and had to be spoken to. d. The Mother’s concern about the Father’s involvement of the children in the legal process and adult matters is valid. The children had information that a child should not have. They each said a number of times that their dad had told them something. Ms. Niemi had the impression that the children had been told to say certain things. Ms. Niemi expressed concern that the Father’s actions appeared designed to encourage the children to view him in a positive light while placing the Mother or the Mother’s older children in a negative light. She was quite concerned that F.F. told her that the Father had asked them who they wanted to be with. She testified that there is no more difficult or distressing question for a child to have to answer. Her overall impression was that the children had clearly been influenced by the Father in a negative way, and for this reason, her recommendations were not consistent with their express wishes. This causes her concern for the ongoing emotional well-being of the children. e. The Father’s capacity to manage his strong emotions and to maintain appropriate boundaries is lacking. While not related to F.F. and D.F., Ms. Niemi expressed that she was “highly concerned” that the Father thought it appropriate to send a letter to his step-daughter in January 2019, that was laden with disparaging remarks about her, her father, her grandparents and her brother, J.D., and asking her to forward it to her father and paternal grandparents. f. There are verified child protection concerns related to the Father’s behaviour and conflict with J.D. There are no verified child welfare concerns with respect to the Mother or her partner. It was concerning to Ms. Niemi that the Father has expressed clearly that he wants nothing to do with either of his step-children. In her view, this demonstrated a capacity to act in a way that can cause emotional harm to another person, including a child. g. Her most significant concern was the Father’s dysfunctional pattern of behaviour and negative influence on the children. She testified that there was a lot of unnecessary conflict created. The children’s exposure to this conflict and adult issues was concerning to their overall physical and emotional well-being. She concluded there are “very serious concerns about the potential emotional impact” on the children, even though they are functioning well. She concluded that should the Father’s behaviour continue, there are serious concerns that it will interfere with the children’s ability to continue a loving relationship with both parents and create significant loyalty binds for them, which could compromise their emotional well-being. She expressed concern for the potential for the Father to be suffering from a personality disorder. She was concerned that the Father lacked insight or any understanding of the destructive nature of his behaviours. She questioned the ability of the parties to achieve an amicable parenting arrangement in light of some of these concerns, and recommended a full psychological assessment, including an evaluation of a personality disorder, with respect to the Father. She concluded it was critical that the Father fully understand the destructive nature of his behaviour in order to facilitate the best possible outcome for the children. It was recommended that he participate in therapeutic intervention, and that the children should also if they begin to demonstrate any concerning behaviours. h. The Mother should have sole decision-making authority. The parties have demonstrated an inability to share in decision-making both prior to the separation and after. Contrasted with the Father, the Mother demonstrates the ability to place the children’s needs ahead of her own, and has made sound decisions with respect to their care. She has demonstrated clear thinking, an ability to promote a positive relationship between the children and their father, she is conscientious, insightful and has many positive parenting skills. Importantly, there is no indication that she has involved the children in the conflict between the parties. The Mother is addressing her mental health concerns, unlike the Father. i. Despite the Father’s dysfunctional pattern of behaviour and negative influence on the children, they love him very much and want to spend time with him. The Mother supports shared parenting. While the clinician struggled in formulating recommendations with respect to parenting time, ultimately she recommended an alternating weekly schedule, provided that if the Father’s destructive behaviour continues and he refuses to participate in a psychological assessment and therapeutic process, serious consideration should be given to implementing a dramatic decrease in his parenting time. Because she had not been involved with the family for some time, Ms. Niemi was reluctant to opine on what this would look like if the evidence supported a conclusion that these concerns persist. j. Given the high level of conflict and parents’ inability to communicate, a simple schedule is preferable for parenting time, with minimal transitions. k. Other recommendations included exchanges at school to minimize contact between the parents, that the parents not attend extra-curricular activities when it is the other parent’s time with the children, that holidays be rotated, that phone contact be limited, that communication occur through OFW with guidelines surrounding communication.

[39] Ms. Niemi’s report, while dated, is the only objective insight I have into the views, preferences and experiences of the children.

The Trial:

[40] This matter was scheduled for trial January 17 – 21 and January 24. The Father’s counsel had not complied with pre-trial orders in preparation for the trial. He struggled with the technology to facilitate a virtual hearing with the loading of documents into Caselines and using this platform during the trial. He acknowledged being under-prepared for trial. The Father emailed the court clerk directly with various documents, many of which were not referred to, or entered into evidence. There were various brief delays required during the trial to address such issues.

[41] At the conclusion of the day on the 24th counsel for the parties indicated they needed one further day. They scheduled March 8th, 2022, with the trial coordinator to conclude the following:

a. The examination-in-chief and cross-examination of the Mother; b. Any Reply evidence of the Father; and c. Closing submissions

[42] At the commencement of court on March 8th, the Father sought an adjournment to retain new counsel. He said he had consulted with counsel in Toronto, who are reviewing his file and ordering transcripts to be able to represent him. He gave the impression that counsel was in place. He indicated he was not made aware of the March 8th appearance until last night at 8:00 p.m. by email. His trial counsel adamantly denied this to be the case and stated that the Father was made aware of the trial well in advance. The Mother’s counsel was not made aware in advance that the Father was seeking new counsel and an adjournment, and prepared to proceed. She noted that trial counsel was the Father’s third lawyer on record, with various other lawyers also having been involved at various points that did not go on record. She notes significant delays had already been suffered as a result of this. The adjournment request was contested. The Mother wanted the trial completed.

[43] For written reasons released on March 8th the trial was adjourned. It was evident that there was a significant breakdown in the relationship between the Father and his counsel. In those circumstances, and based on the first few days of trial, it would have been unfair to force the Father and former counsel to continue. Based on the Father’s representations made in court, an adjournment was granted to April 12, 2022, peremptory on him. Two days were scheduled.

[44] On April 6th, 2022, Ms. Khan forwarded correspondence to my attention confirming she was retained and was seeking an adjournment of the trial. She also requested access to the digital recordings for the trial. I was out of the country and unable to address her request for a brief conference to canvass the issue. I did remotely, approve the request for access to the recordings on April 7th.

[45] The correspondence from Ms. Khan indicated that she became lawyer of record for the Father on April 4, 2022. This is despite his representations on March 8th that he had lost confidence in his counsel following the trial dates in January, and his representations on that date that he had secured counsel who was in the process of reviewing the file. A name was provided by the Father for counsel in March that was not Ms. Khan.

[46] On April 4th, counsel for the Mother brought to Ms. Khan’s attention my March 8th endorsement, which the Father had failed to do. Ms. Khan had less than 48 hours to comply with the requirements of my order to deliver a draft proposed order and book of authorities by April 5th. She nonetheless complied. The draft order was comprehensive. She required a brief adjournment to properly prepare for the trial continuation. The Mother contested the adjournment.

[47] I denied the adjournment request. The matter had previously been ordered to be peremptory on the Father. It had been made peremptory for a reason. The Mother’s counsel had prepared to proceed and was entitled to rely on this order. While I was sympathetic to Ms. Khan’s situation, the Father had dragged his feet in retaining new counsel (who was different than counsel he suggested on March 8th), and had not advised his new counsel of my prior order. Ms. Khan was granted access to the digital recordings to prepare the balance of the case as of April 7th. It was clear that Ms. Khan had done a fair bit of preparation to ensure compliance with my March 8th order, but further dates were not available for months and given the court schedule, it would be months later before a decision could be rendered.

[48] The trial, which had commenced in January, needed to conclude. This proceeding was started in January 2019 and had been ongoing for far too long. While the issues are important to the parties, they are not complex from a legal perspective. The court needed to try to strike a difficult balance between procedural fairness to each of the parties and the interests of the children.

[49] The case was stood down to the afternoon to give Ms. Khan more time to consider her cross-examination of the Mother. Upon the close of the Mother’s case, a further break was taken to allow Father’s counsel to consider Reply. Submissions were scheduled for the following day to give the Father’s counsel some more time to prepare. Unfortunately, my Reasons were subsequently delayed due to workload and health related matters arising post-trial. As my decision became evident, I intentionally did not deliver the decision late Fall and risk injecting chaos into the lives of the children in the time leading up to F.F.’s birthday and the holiday season.

[50] As will be seen in these Reasons, my decision is based largely on the Father’s own evidence given in-chief, Ms. Niemi’s evidence, and the OFW message reports, such that a further delay of this trial for lengthier cross-examination of the Mother or Reply evidence would have added very little to my analysis.

THE LAW

[51] Section 16(1) of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), as am. directs the court to consider only the best interests of the children of the marriage in making a parenting order. The rights of the parents are not the focus of the inquiry.

[52] Section 16(3) sets out a list of non-exhaustive facts in determining the best interests of the children, including:

a. the children’s needs, given the children’s age and stage of development, such as the children’s need for stability; b. the nature and strength of the children’s relationship with each spouse, each of the children’s siblings and grandparents and any other person who plays an important role in the children’s lives; c. each spouse’s willingness to support the development and maintenance of the children’s relationship with the other spouse; d. the history of care of the children; e. the children’s views and preferences, giving due weight to the children’s age and maturity, unless they cannot be ascertained; f. the children’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage; g. any plans for the children’s care; h. the ability and willingness of each parent to communicate and cooperate with each other on matters affecting the children; i. any family violence and its impact on the ability to meet the needs of the children and cooperate on decisions affecting the children, taking into consideration the factors listed in s. 16(4) of the Divorce Act; and j. any civil or criminal proceeding, order, condition or measure that is relevant to the safety, security and well-being of the children.

[53] Pursuant to s. 16(2) of the Divorce Act, the court is required, when considering these factors, to give primary consideration to the children’s physical, emotional and psychological safety, security and well-being.

[54] Also instructive are:

a. Section 16(5) directs the court to consider the past conduct of a parent only if it is relevant to the exercise of their parenting time or decision-making responsibility; b. Section 16(6) provides that in allocating parenting time, the court shall give effect to the principle that a child should have as much time with each spouse as is consistent with the best interests of the child; c. Section 7.1 requires a person to whom parenting time or decision-making responsibility has been allocated to exercise that time or responsibility in a manner consistent with the best interests of the children; d. Section 7.2 imposes a duty on parties to a court proceeding to, the best of their ability, protect the children from conflict arising from the proceeding; and e. Section 7.5 confirms the expectation of the courts and creates a statutory obligation on a party who is the subject of an order made under the Act to comply with the order until it is no longer in effect.

[55] These are the principles that I have considered and applied in reaching my decision.

ANALYSIS

Parenting:

[56] Upon consideration of the legal principles mentioned above, and their application to the evidence in this case, I find that the best interests of the children necessitate an order for sole decision-making and primary care in favour of the Mother. Both parties acknowledge there are concerns with the children. Shared parenting has been tried for 3-years (as at the commencement of the trial), 4-years as of the date of this decision, and is not working. I am satisfied that the Mother has truly tried to make it work, and that the position she adopted at trial was not taken lightly. The court has concern for the physical and emotional well-being of the children should something not change drastically. The level of conflict is this case is not conducive to continuing any form of shared parenting.

[57] Both parties acknowledge that they are incapable of making decisions affecting the children together. Each of them testified as to the difficulties they had in this regard both prior to separation and following. The Father testified that even when they were still together, the differences between he and the Mother often resulted in a decision not getting made. Each parent alleges they have suffered incidents of domestic violence at the hands of the other. In these circumstances, the law is clear that joint decision-making responsibility is not appropriate. In this case, there is significant likelihood that any such order will result in frequent stalemates, the need to resort to yet further protracted legal proceedings, and exposure by the children to ongoing conflict between their parents. The best interests of the children are more likely to become lost in the conflict.

[58] I have rejected the Father’s suggestion that a parallel parenting order is in the best interests of the children, with each parent allocated areas of responsibility for important decisions affecting the children. While I agree with the Father’s counsel that there are circumstances in high conflict parenting disputes when such an order is preferable, this is not one of them. I have also rejected the Father’s suggestion that he is the parent who should have sole decision-making authority. I am not confident that the Father has the ability to make decisions in the best interests of the children, as opposed to based on his own views, preferences, interests and emotions. I am confident, based on the evidence before me, that the Mother is the parent best able to make decisions in the best interests of the children. She has demonstrated responsible, thoughtful decision-making, cooperation with the Father to the extent possible (with some exceptions), and she has the greatest ability to put the interests of the children ahead of her own.

[59] In arriving at this decision, the following evidence and factors are significant to me:

a. Both parties have been actively involved in the care of the children since birth. Each parent has been an engaged parent, responsible for all aspects of the children’s care. The status quo has been shared parenting for 4-years now. But for the concerns identified by Ms. Niemi, which I share, and which I find persist, a status quo of this length combined with an active role pre-separation by both parents would normally warrant a continuation of shared parenting time, and an active role in decision-making by both parties. Unfortunately I must find that the status quo has not, and will not continue to be in the best interests of the children. b. With respect to the physical health of the children, the evidence of both parents is that obesity is a concern for the children. The children experience periods of high blood pressure and are at risk for type 2 diabetes. D.F. has some other physical ailments. The Mother has engaged the Healthy Living Program and the George Jeffrey Children’s Treatment Centre. The Healthy Living Program has a dietician, psychologist, nurse practitioner, and kinesiologist all working together with parents and children to help address the children’s weight issues. These professionals work with the children and parents to teach the family healthy lifestyle habits and help parents support the children in healthy living. The Father has not engaged with the program. Rather than working with the Mother and the professionals involved with the children, his evidence was that he had engaged his own nutritionist. No further details were provided. There is no evidence he has shared any information about recommendations made by his nutritionist with the Mother. The Father’s inability to at least work with the Mother on this issue and engage with the professionals she has chosen, in the face of potentially serious health concerns facing the children, is concerning. It is illustrative of the Father’s inability to put aside the conflict for the benefit and well-being of the children. c. The Father, in his attempts to align the children with him, has involved the children unnecessarily in adult issues not appropriate to their age or emotional well-being. I shared Ms. Niemi’s concern with respect to comments made to her by the Father in the presence of the children. The comments made by F.D. and J.D. to Ms. Niemi as to conversations they have had with their father are more concerning. In engaging the children with these comments and discussions, not only has the Father failed in his duty under s. 7.2 of the Divorce Act, to protect the children from the conflict associated with the legal proceedings (by virtue of discussing issues arising it that proceeding), he has demonstrated little regard for a court order that prohibits the discussion of adult issues with the children (Order of Shaw, J., May 17, 2019 as continued by the Order of Newton, J., July 15, 2019). More significantly he had demonstrated little regard for the emotional well-being of the children, and at times their relationship with their Mother and siblings. There is no doubt that the Father has a strong relationship with the children, who love him and care about his well-being. Unfortunately, I am left with the impression that the Father has used the strength of this relationship to try to align the children to his cause against the Mother, to the detriment of the children. The Father does not strike me as having any appreciation as to the impact on his children of derogatory remarks about their Mother, siblings, their Mother’s partner, or conflict in general. I do not have the impression that his actions are demonstrative of a malicious intent, but rather that they are misguided.

Mr. Beebe, a counsellor who saw the Father for five or six counselling sessions in late 2019, early 2020, testified that the Father had a strong attachment to his children and that he engaged in some problematic behaviour as a result of feeling that this attachment was threatened. Mr. Beebe testified that he felt the Father was vulnerable, and that he was blinded by his attachment to his children, acting out of fear as opposed to anger. He further testified that the Father was experiencing a significant level of distress.

The court recognizes that parents may experience a range of emotions on marriage breakdown, including grief over the loss of the family unit, their role as a parent, fear over the uncertainty of parenting arrangements, sadness, distress, anger, and many other things. It is understandable that, at times, these emotions may cause parents to act in an uncharacteristic manner for them, and one that may not always be child-focused. Parents should get some latitude, depending on the circumstances. Even the most reasonable people can act unreasonably at times when processing strong emotions. But in this case, the Father’s actions in involving the children in adult conversations and the conflict between the parties, and his inability to put their interests ahead of his own emotions, remains a concern 4 years later and is one that I am not confident will resolve upon the delivery of this decision and completion of the court process. I accept it is a pattern of behaviour consistent with how the Father acted and interacted with the children and the Mother’s older children even long before separation. While I have no doubt that the Father is an extremely devoted and loving parent, I fear he continues to be blinded by his own emotions to the point that he has lost sight of the best interests of the children. Refusing to meaningfully engage the Healthy Living Program, his stubborn approach to activities for the children (including piano, despite D.F.’s upset), and his unilateral actions with respect to everything from activities to F.F.’s schooling, are but some examples. I find that the Father’s actions are not reflective of temporary behaviour, but rather a pattern of behaviour more focused on his needs than those of the children.

In contrast, while some of the Mother’s actions or complaints were not child-focused, overall she has acted in their best interests despite the resistance and unrelenting conflict she has faced from the Father. On those odd occasions when perhaps she could have shown more restraint in her approach to dealing with the Father, I accept that she was feeling worn down and frustrated by the constant conflict perpetuated in every interaction by him. Despite this, the evidence supports the conclusion that she has resisted involving the children in the conflict.

d. I find that the Father places little value on the importance of the children’s relationships with their Mother, her partner, and importantly their older siblings. I share Ms. Niemi’s concerns that the Father attempts to portray the Mother in a negative light to the children. Some of the comments made by the children to Ms. Niemi support this. Similarly with respect to the children’s relationship with their siblings, the Father telling the children that he will not return home unless their older brother leaves, suggests to them incorrectly and inappropriately that their brother is the cause of their parents’ separation.

I share Ms. Niemi’s concern with respect to the email sent by the Father on January 3rd, 2019 to the child, F.D. It is disturbing to say the least. Not only does it demonstrate an inability to protect children from conflict, it makes derogatory statements about F.D. and her brother J.D. that when combined with other evidence in the trial as to the nature of the Father’s relationship with these children, call into question his ability to support a relationship between F.F. and D.F. and their siblings. F.D. was only 18 years old when it was sent. J.D. was in British Columbia visiting his father’s family and his sister at the time it was sent and the Father would have known this. These children were raised by the Father, but his actions have not been considerate of their emotional well-being. Once again, this correspondence was sent for his own purpose without any appreciation of the impact on the two older children. It is further evidence of the extent to which the Father’s emotions cloud his judgment.

The Father’s communications to the Mother and his evidence at trial demonstrated that he is not supportive of the Mother’s current relationship. At times in his OFW communications to the Mother, the Father would inject comments about her new partner that were out of place. His evidence at trial was that he does not support this relationship. Again, there is no objective evidence that the children are at any risk of harm (emotional or physical) from the Mother’s partner. His inability to support other relationships that the children have, except for his own family, is further evidence of the Father’s inability to act in the best interests of the children. The Father does not appreciate the importance of these other relationships to the children, and will denigrate other important individuals to the children in an effort to curry sympathy and support from the children.

e. Various actions of the Father have unnecessarily increased the conflict between the parties. His inflexible attitude towards extra-curricular activities in the face of valid reasons for the Mother’s decisions (discussed more below). The call to police to do a welfare check on the children when he learned the Mother was using a babysitter he was unfamiliar with. His refusal to allow the children to go with “Natasha” at a parenting exchange, and insistence on contacting the police when it was clear this was an arrangement made by the Mother and she was known to the children. He ultimately relented, seeing the children were comfortable with her, but caused exposure to unnecessary conflict in the meantime. The Father’s allegations made to police about the Mother’s partner and his 11-year old son (S.R.) arising out of a conflict between D.F. and S.R. Rather than asking the Mother what had happened when D.F. reported an incident to him, the Father reported a dispute between two children to police. Based on the evidence of the parties at trial, this was not a criminal matter or a matter that even remotely necessitated involvement of the police. It was an argument between two boys over an electronic, with D.F. hitting the other child first, and with both children deserving of some attribution of blame. These are but a few examples. f. The Father has also interfered with the Mother’s parenting time and created anxiety for the children in the process. He created unnecessary anxiety for D.F. by insisting he meet him in the morning, prior to school on the Mother’s parenting time so that he could get him to school, and by telling the child not to tell his Mother. I do not accept the Father’s explanation that all he did was encourage the child to get out for school earlier. The Mother has also had to establish boundaries surrounding telephone calls between the Father and children because of the frequent and interfering nature in her parenting time. g. I find that the Mother is the parent more likely to encourage a positive relationship between the children and the Father, than the Father is with respect to the Mother. I did not hear evidence from which I am able to conclude that the Mother has been difficult or inflexible with changes to parenting time. The Mother has attempted to support shared parenting, even in the face of challenging behaviour from the Father. There is no evidence of her being derogatory about the Father or his family to, or in the presence of the children. She has attempted to involve him and engage in discussion about important matters affecting the children. Even once she was awarded sole-decision making authority she respected his views sufficiently to provide him with options and ask him to choose. She has not attempted to interfere with the choices he makes during his parenting time (such as with activities) and encouraged him to engage with the children in activities important to him during his time. This is in stark contrast to the actions of the Father as referenced throughout this decision. h. In his evidence the Father described the Mother as an “unfit mother”, as someone who puts the needs of the children ahead of her own because of her new relationship, makes poor decisions for them, is rude and impatient with “his” children, is someone from whom his children need to be protected. He stated he was ‘sick and tired of how the Mother was mistreating the children’. He blames her for his financial difficulties, including his consumer proposal because she ‘stole the furniture from the matrimonial home. The objective evidence and even the Father’s own recitation of events do not support these conclusions, but while the Father feels this way, particularly given his inability to protect the children from his own emotions, it is unlikely he will be able to foster a positive relationship between the children and their mother. Such an attitude is not conductive to shared decision-making, or even shared time with the children. i. The Father’s evidence was replete with examples of his distain for the Mother, too numerous to recite. I was struck by the Father’s vivid recital of the events of November 17, 2013 when D.F. was 1-year old and his perception that all of his views of the Mother are justified because of this event. He testified that on this day he was busy preparing a bath while the Mother was with the child. She left the room and the child fell, but the Father did not know if he fell from his crib or had been left elsewhere. An argument ensued, seemingly over who was at fault. The Mother became emotional and left the home. The Father’s evidence was that ‘she didn’t cuddle or say sorry to D.’ and in that moment she became an unfit mother to him. Despite this conclusion (which is, in of itself unreasonable), the Father continued in a relationship with the Mother and presumably to leave the children in her care.

Evidence of something as simple as the Father refusing to allow the children to take their piano music books home to their Mother’s home so they can practice, demonstrates the pettiness that characterizes the Father’s attitude towards the Mother and is conduct not consistent with a co-operative shared parenting arrangement or demonstrative of an ability to make decisions with the overriding consideration being what is best for the children. The Father’s grief and/or anger overwhelms and impairs his judgment.

j. The Father was not able to point me to any important decisions made by the Mother that were contrary to the best interests of the children. The Father’s stated fear that if he does not have decision-making authority with respect to activities the children will be ‘sitting in front of the tv or going to the Mother’s boyfriend’s home’ is misplaced. I am satisfied that the decisions she has made with respect to extra-curricular activities for the children are child-focused, and appropriate in the circumstances of the family. The children may not be participating in the level of activities they enjoyed prior to separation, but this is a combination of factors such as changing interests and needs of the children and availability of funds in a post-separation family. The Mother has continued to support activities the children have expressed an interest in, and to find others that are available at little or no cost. The children are also involved in counselling that is not covered by a plan that the Mother has had to budget for, but the Father has not supported. As a responsible parent she has made the choice to prioritize the children’s mental and emotional well-being over additional recreational activities. If the Father wishes for the children to take Italian lessons, snowboard or ski, he is free to arrange for these activities to occur during his own time with the children, provided they still allow the children sufficient opportunity to engage in formal activities enrolled in by the Mother as the parent with decision-making authority. I am satisfied that the Mother sufficiently supports the children’s Catholic upbringing by continuing to ensure they attend a Catholic school. The Mother is not a practicing Catholic and her decision not to attend church is not reflective of a lack of support for the children’s faith. There was no evidence that she does not support the Father engaging in his faith with the children. k. In the face of the Order of Newton J., granting decision-making authority to the Mother, there are examples of the Father disregarding that order and making unilateral decisions for the children. These include (but are not limited to) signing the children up for activities either without consultation or knowing the Mother disagrees, changing their piano instructor because of his perception of her, registering F.F. for a middle school that was contrary to the school the Mother intended to explore, and vaccinating the children against COVID-19. While the Mother did not disagree with the vaccination decision, she was unaware the Father had even done this and had scheduled her own appointment for the children.

The Father’s actions are illustrative of the Mother and Ms. Niemi’s concern that the Father simply does as he wishes. Not only did his evidence and OFW communications demonstrate little respect for the views of the Mother, they demonstrate a lack of respect for court orders. The Father has done as he sees fit, even in the face of a court order saying otherwise. Even at trial when the Father was asked by me not to disconnect from the Zoom call during breaks to avoid delays in recommencing proceedings following those breaks, he continued to do it often and without explanation or reason to do so. But more importantly, he disregards the interests of the children. The Mother has expressed concern as to whether D.F. should continue piano. D.F.’s current piano teacher confirmed the Mother’s concerns with how overwhelmed D.F. has been during lessons, whether related to piano or otherwise, but the Father insists he continue. The Mother raised concerns about F.F. continuing with swimming. I accept the Mother’s evidence that due to F.F.’s body image issues she no longer felt comfortable being in a bathing suit at the pool. Rather than working with the Mother to address F.F.’s underlying body image concerns through the Healthy Living Program, the Father blamed the Mother, accusing her of not purchasing an appropriate swimsuit. I also accept the Mother’s evidence that the Father’s unilateral decision with respect to F.F.’s middle school was not in accordance with the child’s wishes, for which she had valid reasons.

l. Of significance to my decision with respect to decision-making authority and shared parenting time is the Father’s conduct with respect to communication with the Mother. The Father’s communication with the Mother prior to March 2021 as revealed in the OFW message report, leaves the impression that he is confrontational and inflexible. His focus is more on sparring with the Mother than engaging in meaningful co-parenting dialogue about the children.

Message 32 of the OFW message report is demonstrative of the Father’s confrontational attitude towards the Mother; an attitude that discourages effective communication. The Mother messaged the Father to inform him of behaviour concerns with F.F. F.F. had taken to slapping her younger brother and the Mother in the face. The Mother advised that she disciplined her by sending her to bed. The Father responded to the Mother’s effort to share a behavioural concern as follows:

“F. has never slapped anyone ever. The living environment there maybe unsafe and unhealthy there with what’s happened there the past couple weeks. I will notify Darlene Niemi with the Office of the Children’s Lawyer.

F. and D. always show affection, kindness and love when they are with me and my family.”

The Father gave a similar response to information communicated by the Mother on September 16, 2020 about the children’s weight, issues with their blood pressure and the program the Mother had sought out to address these concerns. The Father’s response was to the effect that he does not know what the Mother feeds them, but they eat healthy at his home all ready. Darlene Niemi’s observation was that the Father uses food to nuture the children. The Father lacks insight into how this is contributing to the weight issues of the children.

m. The Father has also outright refused to engage in communication with the Mother about important issues affecting the children. The July 15, 2019, order of Newton J., provides for an exception to the restraining order to allow communication about the children through the OFW program. The Father, for a reason he failed to explain at trial, had not viewed or responded to any of the Mother’s entries in OFW from March 2021 to the date the entries were all printed on November 11, 2021. The Father did argue that the Mother does not communicate effectively, but rather engages in frequent “jabs” at him. I did not find this to be the case in the extensive messages in evidence before the court. The issues communicated by the Mother during that period of time were appropriate, often time-sensitive, and important issues to be shared in a co-parenting relationship. They were addressed in an appropriate manner and tone. A number of messages demonstrated disagreement between the parties, but respect on the Mother’s part. This cannot be said for the Father’s communications and lack thereof. There are also various other examples prior to March 2021 of the Mother attempting to communicate important issues affecting the children to the Father, but him not even reading the messages for lengthy periods of time. For example, message 297 sent April 29, 2020, but not viewed by the Father until June 14, 2020, expressed the Mother’s concern that F.F. may be feeling depressed. Even when the Father finally viewed the message he did not respond. The Father’s refusal to communicate with the Mother is a further indicator of his inability to place the best interests of the children ahead of his own emotions and feelings about the Mother.

[60] Overall, the Father has demonstrated that he has a propensity to become so overwhelmed and caught up in his own emotions that he loses sight of what is best for the children. In his desire to hurt the Mother, he fails to appreciate the lasting emotional and psychological harm that is inflicted on his children who are constantly embroiled in or subjected to conflict between their parents.

[61] The Father acknowledges that he was not coping well upon separation, that he has said inappropriate things and acted out of character. He acknowledges that his words and actions have hurt the Mother, her older children and his children. The problem is that despite this insight, he continues in this behaviour.

[62] The Father testified that he acknowledges the conclusions of Ms. Niemi with respect to him are a direct result of him being in a “bad head space”. He testified that he had his first interview with Ms. Niemi the day he went to the former matrimonial home to collect his belongings, and discovering they had been removed, presumably by the Mother. He repeatedly stated he had been robbed and was very upset. He acknowledges that his emotions with respect to his belongings resulted in an interview that was “not productive” and he “blew it”. His second meeting with Ms. Niemi followed a court appearance. He gave evidence to the effect that ‘he was not in the state of mind that he could do what is best for his children’. He feels that he has better insight into this behaviour now that he has had counselling. I have not seen this in the evidence, and despite Ms. Niemi’s recommendations for an assessment by the Father, he stubbornly refuses to do so. He argues he had three counselling sessions in late December 2019, early 2019, and that this counsellor did not feel he needed any type of assessment. This counsellor did not testify at trial, and there is no indication that any formal assessment was conducted. This counselling pre-dated Ms. Niemi’s report and recommendations and was specifically addressed by her.

[63] The greatest challenge for me in this case was in determining whether the shared time status quo should continue, or whether the children should be placed in the primary care of the Mother.

[64] As indicated above, I accept that both parents were equally involved in the day-to-day care of the children prior to separation, and since. I accept that the Father loves his children and that they are “his world”. I accept that they love him and are protective of him. I accept that he has a lot to offer his children. But for the reasons I have identified, the Father’s actions have made co-parenting in a shared time arrangement unworkable and detrimental to the children at this time. The evidence of both parties is that F.F. has depression (even though the Father believes she only has it when with her mother), D.F. has been breaking down at piano lessons and both children have physical health issues that need to be addressed. The children are not doing well overall.

[65] In making my decision I have taken into consideration Darlene Niemi’s representations as to the expressed wishes of the children. While usually the wishes of children this age would be important to my decision, I find that the children’s wishes have been significantly influenced by their Father’s perspective and the children’s desire to help him or at least not upset him. I also find that their wishes are inconsistent with their best interests.

[66] I find that it is in the best interests of the children to have more time in the care of their mother so that she may focus on addressing their physical and mental health concerns. Having consistent time each week during which the Mother may schedule appointments, and more time to implement food and exercise recommendations of health care practitioners will be important. I also find that it is in the best interests of the children to have less exposure to the conflict perpetuated by the Father and his toxic attitude towards their mother, their siblings and other individuals important to the Mother. I find that maximum level of contact consistent with the best interests of the children is not equal time, but something lesser than this.

[67] While the foregoing is important, the challenge is in striking a balance that addresses these concerns while still allowing meaningful time between the Father and the children. I find that extended weekends strike this balance. The Mother has proposed Wednesday after school until Monday morning. This will allow her Monday and Tuesday of each week to gain some consistency in appointments and activities and will afford the children a greater length of time in a conflict-free environment.

[68] If the concerns I have identified in this decision persist, with evidence a court may be prepared to reduce the Father’s time even more. I may have been willing to do it following this trial but have appreciated the balanced approach of the Mother.

[69] Conversely, if the Father is later able to demonstrate a period of co-operation with the Mother, effective communication, an ability to protect his children from conflict and an ability to put aside his own emotions and act in the children’s best interests, combined with evidence of the views and preferences of the children, it is possible that a shared time arrangement could be re-instated at a later date. It is my sincere hope that this decision will incentivize the Father to follow the recommendations of Ms. Niemi and address the concerns identified by her and by the court in this decision.

Restraining Order:

[70] I agree with the Father that there is no evidence to support the conclusion that he poses a physical risk to the Mother. Having said this, after hearing the evidence at trial, and particularly the Father’s own evidence and OFW communications, I agree with the conclusions of Shaw J. as follows:

“The respondent’s affidavit and exhibits indicate that the applicant has communicated inappropriately with the respondent, in person, by email, text and telephone calls such that they constitute, on their face…reasonable grounds for Mrs. F. to fear for her psychological safety…”

[71] I further find that based on the Father’s prior disregard of court orders that a term in this order requiring non-harassment without the strength of a restraining order will not suffice to address the risk to the Mother. I also find that the Father’s conduct in this regard in perpetuating psychological harm against the Mother is a factor in my decision with respect to parenting. Once again it demonstrates a lack of regard for the interests of the children who need two emotionally healthy parents.

[72] Having said this, while breaches of court orders and restraining orders are not to be taken lightly, I would urge restraint with reporting of perceived breaches, keeping in mind that the intent of this decision is to attempt to inject some greater level of peace into the lives of the children than they have enjoyed in the period prior to and post-separation.

Child Support:

[73] The children shall be in the primary care of the Mother. The Father shall pay child support in accordance with his income for 2022 (unless there is expected to be a significant change in that income for 2023). He shall also pay child support for J.D. given his acknowledgment that he acted as a parent to this child.

[74] With respect to retroactive support, commencing January 1, 2019 up to and including December 1, 2022, each party shall pay child support to the other on a set-off, shared parenting basis for F.F. and D.F. based on their actual income for each year (and not the previous year’s income). The Father shall pay table support, without set-off, to the Mother for J.D.

Property:

[75] There is approximately $11,400 being held in trust by the lawyer for the parties from the sale of their matrimonial home. The Father has received his share. The balance represents the Mother’s share.

[76] The Father argues that the funds need to continue to be held in trust pending a resolution of the property issues. He claims he is owed an equalization payment. The Father has entered into a consumer proposal, impacting his ability to deal with his property.

[77] Nonetheless, he has failed to adduce the evidence necessary to satisfy me that such an order is necessary. The lawyer holding the funds should not continue to be responsible for doing so. If the Father has claims against the Mother that he later becomes able to advance, he will have to attempt to collect in the usual course.

ORDER:

[78] In light of the foregoing, it is ordered and declared that:

a. The Father stands as a parent to his non-biological children, F.D., and J.D. b. The Mother shall have sole decision-making responsibility for the children, J.D. (subject to the B.C. orders), F.F., and D.F. c. The Mother shall inform the Father of all important decisions affecting the children. d. The Mother shall not relocate more than 50 km from the City of Thunder Bay with the children without either a court order or the Father’s written consent. This provision does not affect the notice responsibilities of a relocating parent as provided in the Divorce Act. e. Commencing January 12, 2022, the Father shall have parenting time with F.F. and D.F. alternating weeks from Wednesday after school (or 3:30 p.m. if there is no school) until the following Monday morning when the children return to school (or 8:30 a.m. if there is no school). f. The Mother shall have the children in her care at all other times, subject to the holiday parenting schedule. g. On school days, the exchange of the children shall occur at school. h. On non-school days, or if the children are unable to attend school due to illness, the exchange of the children shall take place by the parent who has care of the children delivering the children to the other parent. They shall park outside the home of the other parent to drop-off the children and shall not exit their vehicle. They shall leave as soon as the children are safely inside the home and shall not engage in any communication with the other parent at exchanges of the children. i. Unless the parties otherwise agree in writing, the regular parenting schedule shall be adjusted for the following holidays as follows:

A. The children shall be in the Mother’s care for Mother’s Day from Saturday at 5:00 p.m. until Monday morning when they are delivered to school, and in the Father’s care during the same time for Father’s Day. B. Each parent shall have two weeks (or two, one-week periods) of uninterrupted time during the summer school months of July and August. In odd-numbered years commencing in 2023 the Father shall have his first choice of weeks and shall notify the Mother of those weeks no later than April 1st, while the Mother shall notify the Father of her weeks by May 1st. The parties shall alternate in even-numbered years so that the Mother has her first choice of weeks. C. The Christmas school holiday shall be shared equally between the parties, with Christmas Eve and Christmas Day being shared. Commencing in December 2023 and each odd-numbered year thereafter, the Father shall have the children in his care from December 24th at 12:00 p.m. until December 25th at 12:00 p.m., with the Mother having the children from 12:00 p.m. on December 25th until December 26th at 12:00 p.m. The parties shall alternate in even-numbered years so that the Mother has Christmas Eve at 12:00 p.m. until Christmas Day at 12:00 p.m., and the Father has 12:00 p.m. on Christmas Day until 12:00 p.m. on December 26th. D. If a parent does not have the children in their care for the child’s birthday or the parent’s birthday, they shall be permitted to speak with the child by telephone or videocall at a reasonable time. E. There shall be no special arrangements for Easter, Thanksgiving or other holidays unless the parties agree otherwise.

j. The children shall be free to communicate with a parent at all reasonable times when they are in the care of the other parent, up to a maximum of three calls, no longer than 20 minutes each during each care period. k. If there is a medical emergency pertaining to the children, or an otherwise urgent situation arises while a parent is caring for the children, they will immediately contact the other parent through OFW. l. All communications between the parties shall be in writing through OFW and shall be limited solely to matters pertaining to the children. Each party shall be responsible for their individual cost to use the OFW program. m. The parties shall apply the following to their communications:

A. They shall use factual information only. B. Except in urgent situations pertaining to the children, they shall limit their communication to twice weekly. C. They shall respond to communications within 24 hours. D. Communications shall be child-focused. E. They shall not make derogatory or disparaging remarks or comments about the other parent, their parenting of the children, the other parent’s family members, partners or friends. F. They shall not use the children to act as messengers to convey information between the parents or to make requests on behalf of either parent. G. Neither the children nor any other third parties shall be provided with accounts to access the OFW program for the parties. The children will also not be read, or allowed to read messages sent between the parents.

n. Neither party shall discuss the within proceedings or any adult issues in the presence of the children and/or allow third parties to discuss the within proceedings or communicate any adult information through the children. Neither party shall discuss any changes in scheduling or any attendance at activities or special occasions during the other party’s care without first discussing same with the other party in writing and that party agreeing to the change in writing. o. Neither parent shall attend the children’s activities when they are in the care of the other, unless it is an important event such as school assembly, recital, award ceremony or graduation. p. Neither parent shall attend the children’s school when they are in the care of the other unless they are contacted by, and requested by the school to do so (i.e. children are ill and the other parent or designate cannot be reached). q. Neither parent shall interfere in the parenting time of the other, which includes making arrangements to see or transport the children without first obtaining the express written permission of the other parent. r. Each parent shall have the right to obtain extra-curricular activity, medical (physical, emotional and psychological), educational and religious information about the children (but not the other parent) directly from the relevant person or institution and the other parent shall sign any consents necessary to facilitate this. s. The Mother shall retain the birth certificates, health cards, passports and travel documents for the children and shall provide necessary documents such as passports to the Father as required. The Father shall promptly return them once his care period has ended. t. I may be spoken to if the parties are unable to agree on ongoing and retroactive child support, or orders incidental to child support such as s. 7 expenses, disclosure of income information, insurance and dependent health care coverage. u. A restraining order shall issue, restraining in the form previously ordered by Shaw J., with the exceptions provided for in this order (attendance at each other’s home to return the children, at important events, and communication with respect to the children) and provided that the Father may be at his parents’ home located at 411 Brittany Drive, in the City of Thunder Bay during times when the Mother is attending the children’s school, provided he is not using such attendance to otherwise harass or annoy the Mother. v. The balance of the funds being held by John McDonald in trust, from the sale of the matrimonial home known municipally as 443 Jameson Street, Thunder Bay, Ontario shall be paid to the Mother, care of Filipovic, Conway and Associates in trust for the Mother. w. If the parties are unable to agree on costs:

A. The party claiming costs shall deliver written costs submissions within 30 days of release of this decision, failing which costs shall be deemed to be resolved. B. The responding party shall deliver their written response within 30 days of receipt of the claimant’s submissions. C. Any reply to the response shall be delivered within 15 days of receipt of the response. D. No submissions shall exceed 5-pages double-spaced, not including bills of costs and other important attachments (caselaw and copies of offers and important correspondence).

“Original signed by” The Honourable Madam Justice T.J. Nieckarz

DATE: January 4, 2023