Court File and Parties

COURT FILE NO.: FS-19-110 DATE: 2023March2

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

A.P. Applicant – and – J.G. Respondent

COUNSEL: Derek Janzen, for the Applicant Margaret McCarthy, for the Respondent

HEARD: January 9, 10, 11, 12, 13, 16, 17, 18, 19 and 20, 2023

Justice D.A. Broad

Background

(a) Parties and basic history of the parties’ relationship

[1] The trial of this proceeding concerned decision-making and parenting-time respecting the parties’ child J.P. age 7.

[2] For the sake of clarity, the applicant will be referred to in these Reasons as the “father” and the respondent referred to as the “mother.” The names of the parties and the child are initialized in these Reasons to protect the privacy of the child.

[3] The parties have settled the issues of arrears of child support to be paid by the father to the mother and have agreed that child support going forward will flow from the decision of the court respecting parenting-time in accordance with the Federal Child Support Guidelines. All property issues have been resolved between the parties by means of the Separation Agreement referred to below.

[4] The parties commenced living together on January 1 2013, married on January 28 2017 and separated on April 29 2018.

[5] The mother has a child from a prior relationship “Jn.” This proceeding does not concern the parenting of Jn.

[6] The father has been employed as a crane operator for 22 years. The mother has been employed as a receptionist for a water treatment company since March 2022.

(b) Separation Agreement

[7] The parties entered into a separation agreement dated October 3 2018 which provided as follows respecting parenting of the child:

i. the parties shall have shared joint custody (decision-making) in respect of the child;

ii. the child shall remain in the parties’ shared custody based upon each other’s work schedules and availability and both parties shall remain cooperative and flexible concerning a regular schedule. It is intended that each parent shall have equal time with the child with specifics to be determined between the parties from time to time;

iii. a detailed holiday residence schedule in addition to the regular residency schedule which overrides the regular residence schedule in the event of conflict;

iv. both parties will provide each other with their email addresses, current addresses and phone number where they can be reached at all times;

v. the child shall be picked up or dropped off directly at school. When the child is not in school, the party with the child should be responsible for dropping off the child at the other party’s home at the commencement of the other party’s time with the child;

vi. neither party will arrange activities for the child during the other party’s residency time without the other party’s consent;

vii. both parties may attend extracurricular activities and scheduled school events regardless of the schedule;

viii. the child would be permitted to take any personal item, toy, gift or article of clothing between the parties’ homes, without restriction;

ix. the child’s health card will travel with the child between the homes of the parties;

x. if the child will be in the care of a third party who is not a grandparent overnight or in another’s care for over three hours during a party’s scheduled residency time, that party will advise the other party by email or text message and provide the other parent with a right of first refusal to exercise access (parenting-time) in preference to the third-party and the resident parent shall provide the name, address and phone number of the third-party;

xi. each party shall inform the other of all issues and information concerning the child’s welfare and will make important decisions about the child’s welfare together, including decisions about the child’s education, major non-emergency healthcare, major recreational activities, and religious activities;

xii. if the child needs emergency medical care while with one parent, that parent will promptly notify the other of the emergency;

xiii. with respect to the child’s education, the parties agree that both parties may attend all school functions regardless of the schedule, the parties will attend parent-teacher meetings preferably together, but if that is not practical, then individually, and each shall notify the other of the date and time once they are aware of same, each party will obtain his or her own school calendar and school notices, and each party will notify the other once they are aware of school field trips or classroom events;

xiv. if a party proposes to change their home or residence within 30 km of Brantford, the moving party will give particulars of their new address and telephone number to the other. If either party wishes to move their residence beyond this territorial radius, they must inform the other parent and assume full responsibility for transportation for both pickups and drop-offs, which will need to remain within the city limits of Brantford;

xv. the restriction on moving is not intended to limit the parties’ ability to take the child out of the jurisdiction for the purposes of travel;

xvi. the father will apply for or renew the Canadian passport for the child and the mother will sign the passport application or renewal. The father will keep the passport and will give it to the mother when she needs it for travel;

xvii. if either party plans a vacation without the child, that party will give the other a telephone number where he or she can be reached in case of emergency or if the child wishes to contact that parent; and

xviii. if the mother or the father dies, the other will have decision-making of the child, and the mother and the father will make wills consistent with this provision.

(c) Father’s Application

[8] The father commenced his Application on May 30, 2019. In his Application the father sought the following relief in relation to parenting of the child:

i. an order that the father shall have custody (decision-making) of the child;

ii. an order that the mother shall have access (parenting-time) with the child supervised by the child’s maternal grandparents on Wednesdays from after school or daycare or from 3:30 PM until 7:30 PM at the father’s residence, and on alternate weekends from Friday after school or daycare or from 3:30 PM until Sunday at 7:30 PM;

iii. parenting-time for the parties on specified holiday and vacation times;

iv. the parties shall limit communications between them to the child’s well-being and refrain from making any disparaging comments in the presence of the child;

v. all access exchanges shall occur at the father’s residence or at the child’s daycare provider or school.

[9] The father pleaded in the Application that a material change in circumstances has occurred affecting the child’s interests which requires an order varying the terms of custody (decision-making) and access (parenting-time) in the Separation Agreement so that the father has sole custody (decision-making).

(d) Mother’s Answer

[10] The mother delivered an Answer on July 8 2019 in which she sought the following relief in respect of the child:

i. sole custody (decision-making) and primary care of the child;

ii. in the alternative, an order that the father’s application be dismissed due to no material change in circumstances;

iii. an order that exchanges take place at Dalhousie Place.

(e) Existing consent temporary without-prejudice order

[11] On September 22 2021 I made an order, in accordance with the temporary, without-prejudice written consent of the parties, providing for the following in respect of parenting of the child:

i. the father shall have sole decision-making responsibility for the child;

ii. the parties shall share parenting time on a “2-2-3” rotating schedule with drop-offs and pick-ups to be at the child’s school on school days;

iii. when parenting exchanges do not occur at school, they shall occur at the Brantford police station, unless otherwise agreed in writing;

iv. parenting time during special occasions and holidays shall occur pursuant to the holiday schedule contained in the separation agreement;

v. the father shall retain the child’s passport, health card, and any government documentation concerning the child and provided to the mother when necessary for purposes which have been consented to, provided that the mother shall forthwith return such documentation to the applicant forthwith at the conclusion of the intended particular use.

(f) Relief sought by the father

[12] According to his draft Order filed at the conclusion of the trial the father now seeks the following relief respecting parenting of the child:

i. sole parental decision-making responsibility to the father;

ii. subject to school P.A. days and the holiday schedule each addressed separately, parenting time for the child shall be with the father, subject to the mother having parenting time every Friday from 6 PM until Sunday at 7 PM;

iii. if a school P.A.day occurs on a Friday or Monday, the father shall have parenting time for the entire duration of the P.A.day and the adjacent Saturday or Sunday;

iv. parenting time to the father and the mother in accordance with a detailed special occasion and holiday schedule;

v. both parties shall advise the other of their address of residence, telephone number and email address in writing and disclose any changes to this information on an ongoing basis;

vi. unless otherwise agreed, parenting exchanges shall occur in the driveway of the father’s residence and neither party shall enter the other’s residence without written consent;

vii. the father shall have the child’s passport, birth certificate, health card, social insurance and government identification and related documentation for safekeeping, and shall be provided to the mother when necessary for purposes that have been agreed to by the parties;

viii. a police enforcement clause pursuant to section 36 of the Children’s Law Reform Act.

(g) Relief sought by the mother

[13] According to her filed draft order the mother now seeks the following relief respecting parenting of the child:

(a) the mother and the father shall have joint parental decision-making responsibility for the child;

(b) the child shall reside with the father and the mother on a 2-2-3 alternating schedule;

(c) whenever a school P.A.day arises, whichever parent has the child in their care according to the 2-2-3 time-sharing schedule shall have the child in their care during that P.A.day until the child’s return to school the following day;

(d) a right of first refusal to care for the child to each party if the child would be in the care of a third party who is not a grandparent for over three hours;

(e) unless otherwise agreed, the child shall be dropped off directly at school by the parent who has the child in their care and shall be picked up from the school by the parent who was taking the child into their care. When the child is not in school, the mother shall pick up and drop off a child at the father’s residence or make other arrangements in writing;

(f) the child’s OHIP card shall travel with the child to either party’s residence;

(g) either the father or the mother may apply for or renew the child’s passport and shall make the child’s passport available to the other parent in accordance with that parent’s intentions to travel according to the travel terms set out in the Order;

(h) in the event of an injury or healthcare emergency respecting the child, the parent who has the child in their care shall immediately notify the other parent;

(i) a detailed special occasion and holiday schedule;

(j) the child’s current family physician and pediatrician shall not be changed unless otherwise agreed by the parties in writing;

(k) child support provisions as agreed by the parties.

(h) Divorce

[14] By Order made at the Case Conference the divorce was severed from the corollary relief. It is therefore not necessary to deal with the father’s claim for divorce at this trial.

(i) Issues in dispute

[15] It can be seen that the fundamental differences between the parties’ respective positions are the following:

(i) Parental decision-making – the mother proposes joint decision-making while the father proposes that he have sole decision-making responsibility. In submissions counsel for the father signified that he is amendable to inclusion of a duty on him to meaningfully consult with the mother on all major decisions affecting the child;

(ii) Parenting-time schedule – the mother proposes that the 2-2-3 rotating schedule in the existing temporary without prejudice Order be retained, while the father proposes that he have parenting time with the child from Sunday evening to Friday evening and the mother have parenting time each weekend from Friday evening to Sunday evening.

(i) Factual background arising from the evidence

Preliminary observations respecting the evidence

[16] By way of preliminary comment, at the trial management conference counsel agreed that all of the affidavits previously filed by the parties in reference to motions brought in the proceeding would constitute the evidence in chief of each of the parties at trial, rather than the parties preparing fresh affidavits for trial or giving their evidence in chief viva voce. The prior affidavits were both numerous and voluminous and contained many examples of editorial comment and inadmissible hearsay. The prior affidavits did not focus exclusively on the two discrete issues for trial namely parental decision-making and parenting time, but rather devolved frequently into complaints about the parties’ inter-personal relationship and the airing of historical grievances.

[17] At the commencement at trial, I expressed concern respecting the agreement concerning the use of affidavits previously filed on motions at trial and directed that, to form part of the evidence at trial, passages from the affidavits and exhibits thereto would have to be referred to by a witness. Each of the parties testified in chief. As directed by the court and agreed by the parties, the evidence in chief of each party was to remain within the scope of the previously filed affidavits.

[18] I echo the observations of Justice D.J. Gordon in the recent case of S.K. v. D.P., 2022 ONSC 2359 where he stated at para. 68: “affidavits are prepared by lawyers. While helpful on a motion, I have long been of the view affidavits are of little assistance at trial. Here it made evidentiary review more difficult.”

[19] In the case at bar, because of the nature and number of the allegations made by each of the parties against the other in their respective affidavits, each counsel deemed it necessary to cross-examine the opposing party at considerable length in order to avoid leaving allegations made against their client in the affidavit material unchallenged. Many of the allegations which were cross-examined upon at length lacked materiality to the issues to be determined. This process was not helpful to the completion of the child-centred task of the court and only served to lengthen the trial. The trial was scheduled for 5 days and went for 10 days. At the midpoint I encouraged counsel to focus on evidence which would be helpful to the court for what it needed to decide, namely what is in the child’s best interest going forward in respect of parental decision-making for him and the time that he will spend with each parent.

[20] In these reasons I do not propose to carry out an exhaustive review of the evidence and to make findings of fact on disputed areas which do not bear materially on the issues to be decided, namely parental decision-making and parenting time for the child going forward.

[21] What follows is a summary of the evidence led by the parties which is relevant to parenting issues which must be resolved by the court in the best interests of the child.

Mother’s addiction issues and failure to provide timely disclosure of drug tests

[22] On October 27, 2018, approximately three weeks following execution of the Separation Agreement, the father was summoned by the child’s paternal grandfather to the mother’s apartment as he was concerned about the mother’s psychological well-being. The maternal grandmother, the mother’s brother and Jn (then age 8) were in attendance. The mother admitted that she was addicted to illicit drugs and needed professional help. The maternal grandmother took the mother to the Brant General Hospital for treatment. Following her discharge from hospital the mother entered a drug treatment program at the Brant Haldimand Norfolk Rapid Access Addiction Medicine (RAAM) Clinic on October 30, 2018. She was prescribed suboxone to assist her in dealing with withdrawal symptoms and has continued in treatment at the RAAM clinic with prescribed suboxone through to the trial.

[23] At the Case Conference on January 20 2020 the mother was ordered to provide disclosure of the results of drug testing commencing January 2019.

[24] Notwithstanding numerous requests from the father’s counsel to the mother’s counsel, the mother failed to provide any disclosure of drug testing as ordered until delivery of her Settlement Conference brief on February 5 2021 when she produced positive but incomplete results from five separate dates. The mother blamed her previous counsel for the failure to complete the required disclosure. Disclosure from for the period commencing January 2020 was not completed until March 2 2021 and disclosure of the 2019 test results was not provided until July 2021.

[25] The mother’s drug testing results showed regular positive readings for opiates and/or cocaine from early 2019 to August 2020. The mother testified that the positive tests for opiates in August 2020 were related to her use of Tylenol #1. This claim was not independently verified. The parties agree that continued drug testing has disclosed no further positive tests for illicit substances since August 2020. The mother continues to test positive for prescribed suboxone.

[26] On February 16 2022 Dr. Preeti Popuri of the RAAM clinic provided a report stating that the mother “has been following up closely with Brantford RAAM clinic every month and has been very compliant with treatment and has been stable for substance use with urine samples which have been clear of all substances for many months now.” Similar reports were made by RAAM physicians on July 20 and Dec 20, 2022.

[27] There is no evidence from any material change in the mother’s addiction status and treatment subsequent to Dr. Popuri’s assessment on February 16, 2022. She remains under continuous treatment with the RAAM clinic on suboxone with no positive tests for illicit substance use.

The mother’s failure to disclose criminal charges

[28] In October 2018 the mother was charged with six counts of theft under $5000 for using the debit card of a patient she was caring for as a personal support worker to make unauthorized and surreptitious withdrawals of cash. She did not disclose these charges to the father. On January 24 2019 the mother requested the father to pick up the child from daycare as she had to attend court to provide an “affidavit” related to an employment issue. This was untrue. The father attended the Ontario Court of Justice where he observed that the mother was listed on the docket as having been charged with the offences referred to above. When challenged, the mother misrepresented to the father that the charges had been “dropped.” The mother subsequently admitted by affidavit that she had hid her criminal charges from the applicant as she was ashamed of them.

[29] The mother did not seek to justify her actions which led to the charges but explained that she was under great financial strain at the time. This claim was challenged by the father as the theft took place when an equalization payment to her of $18,850 under the separation agreement was pending.

[30] The mother was convicted of the offences and received a conditional sentence providing for 6 months incarceration to be served in the community.

Mother’s frequent changes of residence in 2018 and 2019 and failure to disclose her residence address

[31] The mother made frequent changes of her residence between October 2018 and September 2019. Following her release from hospital on October 30 2018 she resided with her brother. In February 2019 she moved in with a friend “Tanya” which the mother maintained she did to help Tanya with personal difficulties she was experiencing. Following a dispute with Tanya the mother was forced to leave. She moved into the residence of her former partner and father of her older child Jn. When that arrangement broke down, the mother moved to a women’s shelter Nova Vita in June 2019 and remained there until September 2019. The mother did not inform the father of these changes of residence as required by the separation agreement. The father testified that the mother had told him that she had moved to her parents’ residence which was untrue and that he was unaware that she was residing at Nova Vita. The mother stated that she did not disclose her changes of residence because she feared the father due what she characterized as his repeated harassing behaviour. The father denied all of the mother’s allegations of harassment.

[32] The father testified at trial that he still does not know where the mother resides. The mother maintained that the father is not entitled to know her place of residence. This is despite the provision in the separation agreement requiring each party to keep the other informed of all changes of address and contact information.

Educational decision-making

[33] The evidence disclosed a number of disputes between the parties involving educational issues affecting the child.

[34] The child became enrolled in Creative Minds Daycare in mid-July 2017. The parties took the child to daycare on their respective days with the child. While at Creative Minds the child became enrolled in the Early Integration Program run by Lansdowne Children’s Program due to concerns with language, social interaction and challenges with transition in daily routines.

[35] The mother testified that the child was enrolled in speech therapy by the father without involving her. Although she was very supportive of it, she says she was excluded from involvement in arranging it.

[36] In June 2019 the parties had an exchange of text messages in which they agreed that the child would not be ready for junior kindergarten in September of that year. Notwithstanding this agreement the mother enrolled the child in junior kindergarten at Centennial-Grand Woodlands School (“Centennial”) on a modified schedule involving two days per week commencing September 2019 without informing the father. The child was removed from Centennial at the end of October due to concerns expressed by the child’s teachers. The mother returned the child to Centennial in January 2020. The mother did not inform the father of the child’s enrolment, removal and re-enrollment at Centennial notwithstanding the separation agreement. It was the father’s position during this period that the child was not ready for junior kindergarten.

[37] In February 2020 the father enrolled the child for kindergarten at Holy Cross School (within the Catholic system) to start in September 2020 without informing the mother. He justified this by saying that he had to initiate the enrolment process in February due to the pending cut-off date to do so but was of the view that the child should stay enrolled full-time at Creative Minds and receive services from Lansdowne until the start of school in September.

[38] The mother testified that when the father enrolled the child at Holy Cross School he did not place her name as a parent and emergency contact, but rather listed himself and his mother (the paternal grandmother) as the emergency contacts. The mother was required to attend at the school to show the separation agreement to the principal in order to be listed as an emergency contact for the child.

[39] With the shut-down due to COVID-19 in March 2020 the child was unable to attend either Creative Minds or Centennial.

[40] The mother ultimately agreed to the child attending Holy Cross School in September 2020 and testified that the child’s enrolment in that school has been beneficial to him. It is noted that the child was primarily in the father’s care during the period from September 2020 when the child entered full-time kindergarten to December 2020 when the mother resumed co-parenting with the father.

[41] The parties have agreed that the child should remain in the Catholic system at Assumption High School when it is time for him to attend high school.

[42] Although the parties have each attended parent-teacher interviews at Holy Cross School, they have not done so together. The mother testified that there were numerous school meetings that the father attended that she was not informed of. She would welcome joint-parent teacher interviews. She is prepared to be in the company of the father as long as there are third parties present.

[43] The mother pointed to a very concerning and misleading e-mail concerning her that the father sent to the Holy Cross School on February 6 2022 in which he stated:

“It has recently come to my attention that [the child’s] mother has been sentenced to 6 months incarceration. She has been aloud (sic) to serve this sentence under house arrest. She is permitted to leave her home to go to work and pick up [the child] from school. I am only alerting you to this matter, in the event she does not show up at the school to pick [the child] up on her days, or if there is an emergency pertaining to [the child] to contact me at [tel. no.] or [the child’s] aunt (my sister) at [tel no.] If you have any questions or concerns please feel free to contact me.”

[44] The father obviously either misunderstood or misrepresented to the school the effect of the Conditional Discharge sentence which the mother received She was to serve the full 6 months in the community with only the first 90 days under home confinement subject to conditions. At the time of the father’s email the 90 days had already elapsed. The father did not notify the mother before sending the email nor did he consult with her about his plan to do so. She did not find out about it until September 2022. In the meantime, her relationship with school personnel may have been adversely affected, as she stated that she experienced difficulty obtaining responses to her emails to the school.

[45] The mother also testified that on the Labour Day weekend prior to the commencement of school in September 2022 the father removed the child from the list for morning bus transportation to school without consulting her. The father stated that the child no longer needed such transportation. This irritated the mother as it interfered with her plans for transporting the child to school. She had to make special arrangements with her employer to ensure that the child arrived at school on time.

Medical and dental decision-making

[46] The father testified that the mother arranged for a new family doctor for the child, Dr. Akinbiyi, without consulting with him. The father stated that it is his intention to change the child’s family doctor to a group practice at Shellington Place in Brantford. He maintained that Dr. Akinbiyi’s office is in an area where people with addictions get their prescriptions filled and is not a good environment for the child. He also says that communication is an issue as he has difficulty understanding Dr. Akinbiyi in conversation.

[47] The mother testified that the previous family doctor was located in Burlington. She was able to get her two children accepted into Dr. Akinbiyi’s practice in 2016-2017. Prior to separation it was her responsibility to take the children to him. She had no recollection of the father attending at Dr. Akinbiyi’s office with the children prior to separation and believes that he might have attended only once post-separation

[48] The mother denies that there is anything of concern respecting the environment around of Dr. Akinbiyi’s office location. It is some distance away from the RAAM clinic. Although Dr. Akinbiyi speaks with an accent she has no difficulty understanding him. The mother is opposed to a change in the child’s family doctor as Dr. Akinbiyi has been the child’s physician for some time and is acquainted with his needs and history.

[49] A change in the child’s paediatrician to Dr. Salim took place in May 2022 due to the retirement of his previous paediatrician. The father is content with continuing with Dr. Salim and does not seek a change to the child’s paediatrician. The parties have attended an appointment with Dr. Salim together.

[50] The mother complained in her testimony that the father has made dental appointments for the child without always informing her. She stated that the father has informed her in advance of some of them, but she frequently finds out about the results of the appointments afterwards.

[51] The mother testified to an incident in the spring of 2021 when she was required by the school to have the child tested for COVID-19. To access the results online she needed the child’s OHIP number. As the father had always retained possession of his OHIP card she requested the number from him. The father declined or refused to provide the number, notwithstanding the provision in the separation agreement requiring the child’s OHIP card to be shared by the parties. The mother had to arrange for the police to attend at the father’s home to obtain a photograph of the OHIP card.

[52] On December 21 2021 the child broke his arm while in the care of the father. The father and his sister took the child to Brantford General Hospital. Although the child arrived at the hospital at 5 PM, the father did not contact the mother until 10 PM, notwithstanding the term of the separation agreement requiring the parent having the care of the child to promptly notify the other of a situation requiring emergency medical care. The father maintained that he contacted the mother at his earliest opportunity.

[53] Mother testified that commencing in March 2022 she was actively searching for counselling programs for the child because of his emotional problems at school. She contacted Stuart Shaw, the resources coordinator for “Contact Brant,” about Woodview Counselling. She arranged to put the father in touch with Mr. Shaw. She subsequently received an email from Mr. Shaw, indicating that the father had declined to consent to any Woodview referral at that time.

[54] For his part the father testified that when he was contacted by Mr. Shaw he indicated that he needed to know more about the proposed counselling and he confirmed that the child would be eligible to enter counselling after an assessment. He testified that he had one meeting with Woodview and has agreed to an assessment of whether the child would benefit from counselling. He is agreeable to that child engage in counselling at Woodview if it is recommended following an assessment.

Extra-curricular activities

[55] Relatively little time was spent at trial on the issue of decision-making making in relation to the child’s involvement in extra-curricular activities. It is evident that this issue has not been a major source of conflict between the parties to date. The parties cooperated in enrolling child in the literacy camp “Camp Blast” offered through Holy Cross School in the summer of 2022. The father learned of the camp from the school principal and delivered the literature package and consent form to the mother for her signature.

[56] The mother signed the child up for soccer during the summer. The child is heavy for his age and his paediatrician recommended that he lose weight through adjustments to his diet and exercise. Although the father testified that he would not have signed the child up for soccer due to his social anxiety, he did not stand in the way of his participation in it.

[57] The mother also signed the child up for cubs, which the father did not oppose.

Ability to communicate for joint decision-making

[58] The mother testified that, since the making of the temporary without prejudice order on September 22 2021 she has been “cut out being the child’s parent.” The parents are divided, and she would like to cooperate with the father. She expressed “hope” that joint decision-making would work and that she wishes that decision-making would be a “team effort.”

[59] Balanced against the mother’s expression of hope for cooperative decision-making was her repeated reference in her testimony to “a lot of mind games” that went on in the past and continue to go on in the parties’ relationship. Her perception in this respect is problematic for effective communication.

Governing Statutory Provisions

[60] The parenting issues between the parties arise within a divorce proceeding. The applicable legislation is therefore the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.). Amendments to the Act came into force on March 1, 2021. As observed by Gordon, J. in S.K. v D.P., 2022 ONSC 2359, at para. 59, the amendments change the terminology, expand on the matters to be considered and otherwise codify the legal principles developed over time in the case law.

[61] The following are the statutory provisions in the Act dealing with parenting orders which may be pertinent to the issues to be determined in the case at bar.

Definitions S. 2(1)

"decision-making responsibility" means the responsibility for making significant decisions about a child's wellbeing, including in respect of

(a) health;

(b) education;

(c) culture, language, religion and spirituality; and

(d) significant extra-curricular activities;

"parenting time" means the time that a child of the marriage spends in the care of a person referred to in subsection 16.1(1), whether or not the child is physically with that person during that entire time;

16.

16(1) Best interests of child

The court shall take into consideration only the best interests of the child of the marriage in making a parenting order or a contact order.

16(2) Primary consideration

When considering the factors referred to in subsection (3), the court shall give primary consideration to the child's physical, emotional and psychological safety, security and well-being.

16(3) Factors to be considered

In determining the best interests of the child, the court shall consider all factors related to the circumstances of the child, including

(a) the child's needs, given the child's age and stage of development, such as the child's need for stability;

(b) the nature and strength of the child's relationship with each spouse, each of the child's siblings and grandparents and any other person who plays an important role in the child's life;

(c) each spouse's willingness to support the development and maintenance of the child's relationship with the other spouse;

(d) the history of care of the child;

(e) the child's views and preferences, giving due weight to the child's age and maturity, unless they cannot be ascertained;

(f) the child's cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;

(g) any plans for the child's care;

(h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;

(i) the ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child;

(j) any family violence and its impact on, among other things,

(i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and

(ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child; and

(k) any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child.

16(4) Factors relating to family violence

In considering the impact of any family violence under paragraph (3)(j), the court shall take the following into account:

(a) the nature, seriousness and frequency of the family violence and when it occurred;

(b) whether there is a pattern of coercive and controlling behaviour in relation to a family member;

(c) whether the family violence is directed toward the child or whether the child is directly or indirectly exposed to the family violence;

(d) the physical, emotional and psychological harm or risk of harm to the child;

(e) any compromise to the safety of the child or other family member;

(f) whether the family violence causes the child or other family member to fear for their own safety or for that of another person;

(g) any steps taken by the person engaging in the family violence to prevent further family violence from occurring and improve their ability to care for and meet the needs of the child; and

(h) any other relevant factor.

16(5) Past conduct

In determining what is in the best interests of the child, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the exercise of their parenting time, decision-making responsibility or contact with the child under a contact order.

16(6) Maximum parenting time

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.

16.1

16.1(1) Parenting order

A court of competent jurisdiction may make an order providing for the exercise of parenting time or decision-making responsibility in respect of any child of the marriage, on application by

(a) either or both spouses; or

(b) a person, other than a spouse, who is a parent of the child, stands in the place of a parent or intends to stand in the place of a parent.

16.1(2) Interim order

The court may, on application by a person described in subsection (1), make an interim parenting order in respect of the child, pending the determination of an application made under that subsection.

16.1(3) Application by person other than spouse

A person described in paragraph (1)(b) may make an application under subsection (1) or (2) only with leave of the court.

16.1(4) Contents of parenting order

The court may, in the order,

(a) allocate parenting time in accordance with section 16.2;

(b) allocate decision-making responsibility in accordance with section 16.3;

(c) include requirements with respect to any means of communication, that is to occur during the parenting time allocated to a person, between a child and another person to whom parenting time or decision-making responsibility is allocated; and

(d) provide for any other matter that the court considers appropriate.

16.1(5) Terms and conditions

The court may make an order for a definite or indefinite period or until a specified event occurs, and may impose any terms, conditions and restrictions that it considers appropriate.

16.1(6) Family dispute resolution process

Subject to provincial law, the order may direct the parties to attend a family dispute resolution process.

16.1(7) Relocation

The order may authorize or prohibit the relocation of the child.

16.1(8) Supervision

The order may require that parenting time or the transfer of the child from one person to another be supervised.

16.1(9) Prohibition on removal of child

The order may prohibit the removal of a child from a specified geographic area without the written consent of any specified person or without a court order authorizing the removal.

16.2

16.2(1) Parenting time — schedule

Parenting time may be allocated by way of a schedule.

16.2(2) Day-to-day decisions

Unless the court orders otherwise, a person to whom parenting time is allocated under paragraph 16.1(4)(a) has exclusive authority to make, during that time, day-to-day decisions affecting the child.

16.3 Allocation of decision-making responsibility

Decision-making responsibility in respect of a child, or any aspect of that responsibility, may be allocated to either spouse, to both spouses, to a person described in paragraph 16.1(1)(b), or to any combination of those persons.

16.4 Entitlement to information

Unless the court orders otherwise, any person to whom parenting time or decision-making responsibility has been allocated is entitled to request from another person to whom parenting time or decision-making responsibility has been allocated information about the child's well-being, including in respect of their health and education, or from any other person who is likely to have such information, and to be given such information by those persons subject to any applicable laws.

16.7 Non-application

Section 16.8 does not apply to a change in the place of residence that is a relocation.

16.8

16.8(1) Notice

A person who has parenting time or decision-making responsibility in respect of a child of the marriage and who intends to change their place of residence or that of the child shall notify any other person who has parenting time, decision-making responsibility or contact under a contact order in respect of that child of their intention.

16.8(2) Form and content of notice

The notice shall be given in writing and shall set out

(a) the date on which the change is expected to occur; and

(b) the address of the new place of residence and contact information of the person or child, as the case may be.

16.8(3) Exception

Despite subsections (1) and (2), the court may, on application, provide that the requirements in those subsections do not apply or may modify them, including where there is a risk of family violence.

16.8(4) Application without notice

An application referred to in subsection (3) may be made without notice to any other party.

Must a material change in circumstances be shown to vary the parenting terms in the separation agreement?

[62] As indicated previously, the father pleaded in the Application that a material change in circumstances had occurred affecting the child’s interests which requires an order varying the terms of decision-making and parenting-time in the Separation Agreement. In her Answer the mother advanced an alternative claim that the father’s application should be dismissed due to no material change in circumstances having occurred.

[63] Minimal attention was paid in the evidence at trial or by counsel in submissions to the issue of whether a material change in circumstances had occurred since the parties entered into the separation agreement.

[64] It is clear from the jurisprudence that parenting terms in separation agreements are not binding on the court because it is the interests of the child rather than those of the parents which are at issue. In making a change to a separation agreement it is not necessary that the court find a material change in circumstances. (see Askalan v Taleb, 2012 ONSC 4746 per Spies, J. at para. 28, citing Woodhouse v Woodhouse, [1996] O.J. No. 1975 (C.A.) at para. 32).

[65] Although parenting terms in a separation agreement are not binding on the analysis, they may be considered in a best interests analysis for two factors: first, as a reflection of the parties' intention at the time that they signed the agreement; and second, as evidence of the status quo, which is pertinent to the best interests analysis (see B.C.J.B. v. E.-R.R.R., 2021 ONSC 6294, per Sanfillipo, J. at para. 27).

Legal Principles

[66] The starting point in reference to the resolution of parenting issues is that, as stipulated in subsection 16(1) of the Act, the sole consideration is best interests of the child. The focus is therefore on the child not on the parents.

[67] As observed by Gordon J. in S.K. v. D.P. at para. 62, past conduct and family violence, specifically addressed in section 16 of the Act as pertaining to the best interests of the child primarily focus on the child. Parental conduct, however meritorious or reprehensible, does not enter into the analysis unless it relates to the ability of the parent to meet the needs of the child. Misconduct, however, that results in the parents having a negative view or attitude towards each other may necessitate consideration when it affects the emotional well-being of the child. Family violence may be a relevant consideration, particularly when considering a shared parenting regime, as the victim might be unable to co-parent due to the trauma and ongoing fear of the perpetrator.

[68] Gordon J. noted that what is known as the maximum contact principle has traditionally emphasized that children shall have as much contact with each parent as is consistent with their best interests. A corollary to this is sometimes referred to as the "friendly parent rule", which instructs courts to consider the willingness of a parent to foster and support the child's relationship with the other parent, where appropriate. Both of these considerations are recognized by the Act at ss.16(6) and 16(3)(c). What is known as the maximum contact principle is only significant to the extent that it is in the child's best interests; it must not be used to detract from this inquiry. The amended Divorce Act recasts the "maximum contact principle" as "[p]arenting time consistent with best interests of child": s. 16(6). This shift in language is more neutral and affirms the child-centric nature of the inquiry. Indeed, going forward, the "maximum contact principle" is better referred to as the "parenting time factor" (see Barendregt v. Grebliunas 2022 SCC 22 para. 131-135).

[69] Chappel, J. provided a very useful summary of factors to be considered by the court in determining decision-making issues in the case of McBennett v. Danis, 2021 ONSC 3610 at para. 97. What follows is an abbreviated list of the pertinent factors with the citations omitted:

1. There is no presumption in favour of granting joint decision-making responsibility to both parties in some or all areas;
2. Joint decision-making in some or all areas should only be considered as an option if the court is satisfied as a threshold matter that both parties are fit parents and able to meet the general needs of the children;
3. In order to grant joint decision-making in some or all areas, there must be some evidence before the court that despite their differences, the parties are able to communicate effectively in the areas under consideration for the sake of the child;
4. The fact that there is some evidence of communication and cooperation does not, however, dictate in and of itself that joint decision-making must be ordered. The trial judge must carefully assess in each case whether the parties' ability to cooperate and communicate about issues relating to the child is sufficiently functional to support an order for joint decision-making;
5. The court is not required to apply a standard of perfection in assessing the parties' ability to cooperate and communicate with each other on matters relating to the children. The existence of occasional conflict does not necessarily preclude an order that involves elements of joint decision-making, and the court should consider the entire record of the parties' communication to obtain a clear sense of the nature and extent of the discord;
6. The fact that one party insists that the parties are unable to communicate with each other is not in and of itself sufficient to rule out the possibility of a joint decision-making order in some or all areas. The issue for the court's determination is whether a reasonable measure of communication and cooperation is in place, and is achievable in the future, so that the best interests of the child can be ensured on an ongoing basis;
7. In analyzing the ability of the parties to communicate, the court must delve below the surface and consider the source of the conflict. One parent cannot create conflict and problems with the other parent by engaging in unreasonable conduct, impeding access, marginalizing the other parent, or by any other means and then justify a claim for sole decision-making in their favour on the basis of lack of cooperation and communication;
8. However, where an objective review of the historical and more recent evidence clearly indicates that there has never been an ability to cooperate or communicate effectively, and that both parties are responsible for this dynamic, joint decision-making is not an appropriate order;
9. The quality of each party's past parenting and decision-making, both during the parties' relationship and post-separation, is a critical factor in determining whether an order for joint decision-making in some or all areas is appropriate;
10. However, the mere fact that both parents acknowledge that the other is a "fit" parent does not mean that it is in the best interests of the child for a joint decision-making order to issue. The determination of the appropriate decision-making arrangement must take into consideration all factors relevant to the child's best interests;
11. In some cases, the parties are clearly able to cooperate and jointly support the best interests of the child in some areas of decision-making but have a pattern of conflict and lack of collaboration in other specified areas. In these circumstances, a hybrid type of decision-making structure that provides for joint decision-making in the areas that have never been problematic but that allocates the remaining areas out to each party for sole decision-making may be the most appropriate outcome;
12. Evidence as to how an interim parenting order has worked, and in particular, whether the parties have been able to set aside their personal differences and work together in the best interests of the child, will be highly relevant to the ultimate decision regarding the appropriate decision-making regime;

[70] The child’s views and preferences, insofar as they can be ascertained, are a factor for the best interest analysis. In the case at bar no evidence respecting the child’s views and preferences was made available to the court.

Discussion and findings

(a) Parenting time

[71] As noted previously the mother proposes that the existing alternating 2-2-3 equal parenting schedule under the temporary without prejudice order of September 22 2021 continue, whereas the father seeks an unequal schedule limiting the mother’s parenting time to weekends from Friday evening to Sunday evening.

[72] As Gordon, J. rightly observed in S.K. v. D.P. at para. 90 “parenting time and the responsibility it entails, involves more than just overnight visits. It includes responsibility for school -related matters and extracurricular activities and other events.”

[73] In the separation agreement the parties clearly expressed their joint aspiration that their parenting times with the child be shared fully.

[74] The parties confirmed this aspiration in their consent to the temporary without prejudice order which has remained in place for 16 months leading to the trial. Although the order was made without prejudice, meaning that a material change in circumstances need not be shown for it to be varied, the 2-2-3 equal parenting schedule represents the routine that the child is used to and is his status quo.

[75] The father led no concrete evidence showing that continuation of the existing parenting schedule would not be in the child’s best interests. He simply expressed the conclusory opinion that it does not promote stability.

[76] In my view a change in the existing parenting schedule which would relegate the mother to the role of a “weekend parent” would not be in the best interests of the child particularly at his young age. I agree with Gordon J.’s observation in S.K. v. D.P. at para. 97 that generally young children need to spend time with each parent on a frequent basis. I also agree with his comment at para. 93 that a sibling relationship is an important consideration. The mother testified that the child “adores” his older brother Jn. The boys’ sibling relationship would be better fostered by more frequent contact. Moreover, it is important that the mother have midweek time with the child so that she may participate as fully as possible in his education, including helping him with homework, especially as he gets older, and with morning, afternoon and evening routines. It is in the child’s best interest that he perceives his mother as fully involved in all aspects of his life, including his education, extra-curricular activities and daily guidance and discipline, and not just as the “leisure time” parent on weekends.

[77] The mother’s draft order provides for a right of first refusal to the other parent to provide care to the child if one of the parents proposes to have a third party, who is not a grandparent, care for the child for over three hours. The father’s draft order does not provide for this.

[78] At the time of the separation agreement the parents aspired to maximize their respective parenting-time with the child in preference to third parties who are not grandparents by the inclusion of a right of first refusal provision in their agreement. I am not persuaded that there is any reason to dispense with this provision that the parties freely agreed to.

[79] Given my decision to continue the alternating 2-2-3 parenting schedule there is no requirement to make specific provision for school professional development days. On such days the child shall be in the care of the parent scheduled to have parenting time with the child.

[80] The parties are not far apart respecting arrangements for parenting time exchanges. Unless otherwise agreed in writing, the child shall be dropped off directly at school by the parent who has the child in their care and after school the parent taking the child into their care will pick him up. When the child is not in school, exchanges shall occur in the driveway of the father’s residence, and neither party shall enter the other’s residence without written consent.

[81] I see no reason to change the provision in the separation agreement that the child’s OHIP card travel with the child between the parents’ respective homes.

[82] The existing holiday schedule set out in the separation agreement was not addressed either in evidence or in submissions at trial. There was no evidence that the holiday schedule has been problematic for the child or for the parties. Given this, I find that there is no reason to change the existing holiday schedule, with the caveat that the holiday schedule in the agreement does not address the school March break.

[83] The mother proposes that the parties share parenting time during each March break according to whatever flows according to the alternating 2-2-3 schedule from year to year. The father proposes that the child reside with the mother during the March break in odd numbered years from Saturday at 9 AM until 7 PM (the day not specified) with the father to have this time in even-numbered years.

[84] In my view it would be in the child’s best interests to have the opportunity to enjoy extended time with each parent in alternating March breaks, as the father proposes, from the first Saturday of the March break at 9 AM until 7 PM on the second Saturday of the break, unless otherwise agreed.

[85] The separation agreement provides that the child may travel with each party outside the Province of Ontario for not more than 10 consecutive days at a time, twice per year provided that it does not result in the child being absent for more than two days of school.

[86] In my view this provision for the child to be taken on extended trips outside of the province up to four times per year for periods of up to 10 days is excessive and unnecessary and not in the child’s best interests. The reason requiring the 10-day trips to be outside of the province is not apparent.

[87] In his draft order the father proposes that each party shall have the right to schedule a vacation with the child for up to 10 consecutive days during the child’s summer vacation from school and addresses the details at paragraphs 9 to 11 of his draft. The mother has signified in her draft order that she agrees with these paragraphs in the father’s draft order.

[88] The father proposes that he be the custodian of the child’s passport, birth certificate, social insurance and government identification and related documentation for safekeeping, with an obligation to provide it to the mother when necessary for purposes that have been agreed to by the parties. In my view it is appropriate that the father be the custodian of the child’s documentation for safekeeping, with the exception of his OHIP card which shall travel with the child between the parties’ homes.

[89] The father proposes inclusion of a police enforcement provision in the order pursuant to section 36 of the Children’s Law Reform Act. I agree with the mother that police involvement should only be ordered as a last resort. Despite the parties’ antagonism towards each other, there have been no incidents of withholding of the child in the past three years. Police intervention can be traumatic to a child and, in my view, it is not in the child’s best interests to include a police enforcement provision in the order.

[90] The parties agree that each of them should be required to provide the other with their current email address, current municipal address and current cell phone number where they can be reached at all times and shall disclose any changes to this information on an ongoing basis in writing.

[91] I am not satisfied that it is necessary for a party who proposes to change their home residence to give the other parent 60 days’ notice of their intention to move. 30 days notice of such a change would be sufficient. I find that it is in the child’s best interests to order that a parent not be permitted to remove him beyond a 30 km radius from the municipal boundary of the City of Brantford without the written consent of the other parent or without a court order authorizing the removal.

[92] The mother has given notice of her intention to change her residence to 63 Sheridan Street, Brantford and she shall be permitted to do so.

[93] I am not satisfied, as suggested by the mother, that it is necessary that the order stipulate that the child have his own separate sleeping bedroom apart from any adult in each home. In my view a provision of this nature is unduly prescriptive and would not take account of possible future changes in the parties’ circumstances.

(b) Decision-making for the child

[94] Based upon the evidence disclosed the trial, the following observations may be made respecting responsibility for making significant decisions about the child's wellbeing:

(a) it is clear that there is significant mistrust and antagonism between the parties which the parties have been either unwilling or unable to let go of. The father does not trust the mother due to her history of hiding her drug addiction and the seriousness of it from him, hiding her criminal charges from him and when they came to light, lying to him about them, failing to disclose that she had removed the child from Creative Minds daycare and had enrolled the child in school, and failing to obey a court order for disclosure of the results of her drug testing for over a year. The mother does not trust the father due to what she perceives to be his harassing behaviour towards her, in making unilateral decisions respecting the child while discounting any value to her involvement, and failing to keep her informed respecting child’s welfare;

(b) this discord has adversely affected the parties’ ability to communicate constructively respecting the well-being of the child. The parties can only communicate in writing and when they do, the discourse is sometimes rancorous. The mother cannot bring herself to be in the company of the father without a third-party being present;

(c) the mother has acted in a way that has put her interest above the interests of the child, a prime example being her stealing money from a vulnerable individual in her care which resulted in her becoming involved in the criminal justice system, exposing herself to criminal sanctions including possible incarceration;

(d) the mother’s refusal to keep the father informed respecting changes to her place of residence, contrary to the separation agreement, is not in the child’s best interests. It is imperative that each parent be aware of where the child is residing while in the care of the other parent;

(e) the father has taken unilateral decisions respecting the child without consulting the mother. Examples include the enrolling the child for kindergarten at Holy Cross School, cancelling bus transportation for the child on the eve of his return to school, and taking the child to dental appointments without informing the mother in advance;

(f) most concerningly, the father unilaterally and without consultation with the mother, wrote to Holy Cross School and misrepresented the outcome of her criminal proceeding. Although the father’s misinterpretation of the Conditional Discharge document may perhaps be understandable, the fact that he took it upon himself to relay sensitive personal information respecting the mother to the child’s school administration without consulting her was indicative of his dismissive attitude towards the value of her involvement in decisions concerning the child’s education. There was no need to make the communication, as the school already had a record of the father as an emergency contact, and moreover, he simply could have requested the school to be in contact with him or his sister in the event that the mother failed to attend to pick up the child, without disclosing the sensitive and misleading information about the mother. Risking damage to the mother’s relationships with school personnel by this unwarranted disclosure was not in the child’s best interests;

(g) the father’s refusal to provide the mother with the child’s OHIP number to allow her to retrieve the results of the child’s COVID-19 testing required by the school is also indicative of his dismissive attitude towards her involvement and was not in the child’s best interests;

(h) despite the difficulties in free and full communication between the parties concerning the child’s welfare, there have been some examples of the parties’ ability to reach consensus on decisions for the child. Despite the father’s unilateral enrolment of the child at Holy Cross School, the mother went along with his choice and remains supportive of the child remaining in the Catholic school system;

(i) although the parties initially were working at cross-purposes respecting initiating counselling for the child at Woodview, within a relatively short time they were able to reach consensus, with the father agreeing to proceed with counselling if an assessment indicated that it was warranted;

(j) the parties have agreed to the selection of Dr. Salim as the child’s pediatrician. However, of concern is the father’s stated intention to seek to change the child’s family doctor. I am not satisfied that his reasons for such a change are warranted and his plan to change physicians does not take account of the value of continuity in the child’s medical care;

(k) the parties have not experienced any significant difficulties in making decisions respecting child’s extracurricular activities;

(l) the father, who seeks sole decision-making, indicated through his counsel’s submissions that he is prepared to consent to a stipulation requiring meaningful consultation with the mother prior to making major decisions on behalf of the child. However, given the father’s history in acting unilaterally in making decisions for the child, the court has to consider whether such a stipulation is sufficient to prevent the mother from becoming marginalized, recognizing that it is in generally in a child’s best interests that both of his parents be involved in decision-making for him/her;

(m) the mother’s lifestyle, conduct and choices in the period following separation until August 2020 demonstrated considerable instability which would ordinarily militate against involving her in major decision-making for the child. However, she has shown commendable progress in turning her life around with a determination to play a significant role in the upbringing of her two children. Her drug testing has been clear of illicit substances since August 2020, she has been fully compliant with her drug treatment program, her living arrangements have largely but not completely stabilized, and she has steady employment in a position she loves with a supportive employer;

(n) despite the parties’ obvious difficulties in communicating effectively, there is some evidence that, despite their differences, the parties are able to communicate effectively for the sake of the child. A standard of perfection in assessing the parties’ ability to cooperate and communicate is not required;

(o) I find that a reasonable measure of communication and cooperation is in place that would support a finding of joint decision-making with final decision-making authority to one or other of the parties with respect to certain major issues, namely education and health, following full consultation with the other parent;

(p) In the case of Lamont-Daneault v. Daneault, 2003 MBCA 111 (Man. C.A.) the Manitoba Court of Appeal addressed the considerations which apply when considering whether to confer final decision-making authority in a joint decision-making situation. Twaddle, J.A. explaining as follows at para. 18:

The sharing of custody works well in the case of mature parents who are able to recognize that, as parents, their role is to make decisions which are in the best interest of the child. Unfortunately, not all separated parents are able to do this. It is therefore not uncommon for a judge, seeing a potential for future discord, to designate one of the parties as the one with the final decision-making authority with respect to the child generally or with respect to certain major issues, e.g. schooling, medical treatment.

(q) I find that on balance the father has been the more involved and informed parent in respect of the child’s education, and it is appropriate to confer on him final decision-making authority in making decisions in this area following fulsome and timely consultation with the mother. This would include the child’s involvement in programs organized or recommended by the child’s school as well as tutoring;

(r) I find on balance that the mother has been the more involved and informed parent in respect of the child’s health, and it is appropriate to confer on her final decision-making authority in the area of health following fulsome and timely consultation with the father. This would include dental treatment and treatment by other health professionals such as optometrists and therapists;

(s) There was no evidence of any major difficulties between the parties respecting the child’s extracurricular activities and it is therefore not necessary to confer on either parent final decision-making authority in this area;

(t) culture, language, religion and spirituality have not been areas of controversy between the parties. They have jointly selected Catholic education for the child, and it is not apparent that the child has any other religious involvements.

Child Support

[95] The parties have settled the issue of arrears of child support owing by the father to the mother. Pursuant to the parties’ agreement the father shall pay set-off child support going forward in accordance with the Federal Child Support Guidelines.

Divorce

[96] As indicated above, the father’s claim for divorce has been severed from the corollary relief by Order dated January 20, 2020. The applicant may proceed to obtain a divorce on an uncontested basis.

Disposition

[97] In accordance with the foregoing, it is ordered as follows:

1. the parties shall share decision-making responsibility for [full name and date of birth to be set out in the formal order] (the “child”) in accordance with the provisions hereinafter stated.

2. the respondent (mother) shall have final decision-making responsibility for the healthcare of the child, including physical and mental health, non-emergency medical care, vaccinations, eye care, hearing care and dental care after meaningful and timely consultation with the applicant (father) as follows: (a) she shall notify him of a particular health issue, including disclosure of any relevant documents, and the proposed decision she intends to consider; (b) he will respond within three business days as to his views and the decision he supports; (c) if the parties are unable to reach an agreement within five business days after the time permitted for his response, she shall make the final decision; (d) she will notify him of the decision made; (e) during the consultation process, each party may consult with any third-party service providers pertaining to the decision required to be made.

3. in the event of a medical emergency involving the child, the parent who has care of him may make any necessary decision but shall first notify the other parent, time permitted, and certainly after as to the decision made;

4. the respondent shall keep the applicant informed as to the names and contact information of all third-party service providers, including the child’s family physician, paediatrician, specialist, counsellor and dentist. She will also inform him as to all regularly scheduled appointments in advance and as to the results of same. The applicant may attend on any such appointments;

5. the applicant may consult with any third-party service provider and is entitled to receive information and documentation concerning the child’s well-being directly from that service provider;

6. if the child is being prescribed medication, such medication shall travel with him and each party shall ensure the child takes the medication as directed by the physician;

7. the applicant (father) shall have final decision-making responsibility for the education of the child, including school enrolment, enrolment in programs organized by or recommended by the child’s school outside of regular school hours that have an educational focus, and tutoring, after meaningful and timely consultation with the respondent (mother) as follows: (f) he shall notify her of a particular education issue, including disclosure of any relevant documents, and the proposed decision he intends to consider; (g) she will respond within three business days as to her views and the decision she supports; (h) if the parties are unable to reach an agreement within five business days after the time permitted for her response, he shall make the final decision; (i) he will notify her of the decision made; (j) during the consultation process, each party may consult with any third-party service providers pertaining to the decision required to be made.

8. the applicant shall keep the respondent informed as to the names and contact information of all third-party educational service providers, including the child’s teachers, principal, and tutors, if any. Each party shall be listed as an emergency contact with the child’s school, or other organization involving the child, and each party shall arrange with the school or other organization officials to receive copies of the child’s report cards and school communications and to schedule and attend parent-teacher meetings, either together or separately. Both parties may attend all school functions and field trips;

9. the respondent may consult with any third-party educational service provider and is entitled to receive information and documentation concerning the child’s education and progress, including report cards, directly from that service provider;

10. the applicant and respondent shall jointly share decision-making responsibility in respect of significant extra-curricular activities for the child;

11. The applicant and respondent shall jointly share decision-making responsibility for culture, language, religion and spirituality pertaining to the child;

12. day-to-day decisions affecting the child shall be made by the parent who has care of him when the decision is required to be made, informing the other parent of any such decision promptly;

13. the applicant shall be the custodian of the child’s documents, including birth certificate, health card, social insurance card and passport, provided that the child’s health card shall travel with the child between the parties’ respective homes. The applicant shall provide notarial copies of the health card and birth certificate to the respondent. The applicant shall be responsible for renewing all of the child’s documents. He shall deliver renewal applications to the respondent at least 30 days prior to expiry. She will return the signed renewal applications to him within 10 days. The applicant shall deliver the child’s passport to the respondent at least 10 days prior to any scheduled trip. The respondent will return the child’s passport to him on the next parenting time exchange following return from the trip;

Parenting time

14. the parties shall continue to share parenting time with the child according to the regular alternating 2-2-3 schedule set forth at paragraph 2 of the Order dated September 22 2021;

15. unless otherwise agreed in writing, the child shall be dropped off directly at school by the parent who has the child in their care and after school the parent taking the child into their care will pick him up. When the child is not in school, exchanges shall occur in the driveway of the applicant’s residence. Neither party shall enter into the other’s residence without written consent;

16. the regular parenting time schedule shall be suspended for the holidays, vacations and other special days, during which the parenting time schedule shall be: (a) in accordance with paragraph 4.2 of the separation agreement between the parties dated October 3, 2018 (excepting sub-paragraph 4.2(g)); (b) the child shall reside with the respondent during the week of the child’s spring break in odd-numbered years from the first Saturday at 9 AM and ending the following Saturday at 7 PM or as otherwise agreed by the parties in writing, with the applicant to have this time in even-numbered years; (c) Each party shall have the right to schedule a vacation with the child for up to 10 consecutive days during the child’s summer vacation from school and shall inform the other parent of their chosen dates in writing at least 45 days in advance. In the event of a conflict of chosen dates, the respondent shall have first choice in even-numbered years and the applicant shall have first choice of dates in odd-numbered years.

17. if either party plans to travel with the child outside of the province, they shall notify the other parent not less than 30 days prior to planned departure and provide a detailed travel itinerary which includes all locations, transportation and contact information for the duration of travel inclusive of accommodations, flight numbers and times. Proposed travel shall not occur during any of the days the child is in school or on days the child is with the other parent in the holidays schedule without the other parties’ consent or order of the court. If permitted, the party whose consent to travel is required shall provide a travel consent letter to the travelling parent unless there are valid grounds to withhold consent. Neither party may travel for more than 10 consecutive days or travel more than once a year without other’s written consent.

18. the parenting terms in this order are predicated upon the expectation that the respondent abstains from use of illicit drugs.

19. if the child will be in the care of a third party who is not a grandparent for over 3 hours during a parent’s scheduled residency time, then such party shall advise the other parent by email or text message of that and shall each provide the other parent with the right of first refusal to exercise parenting time in preference to the third party. The resident parent shall provide the name, address and phone number of any third party caring for the child;

20. the applicant and the respondent shall not harass each other, or speak ill of each other in the presence of, or in the vicinity of the child, nor shall they permit any other person to do so.

21. the applicant and the respondent will provide each other with their current email addresses, current municipal addresses and a current cell phone number where they can be reached at all times and shall immediately inform the other of any changes to this information.

22. the respondent shall be permitted to move to and reside at 63 Sheridan Street in Brantford, Ontario with the child;

23. if either party proposes to change their home residence, they shall give the other parent 30 days notice of their intention to move. Either party may move with the child as long as their new residence is within 30 kilometers of the municipal boundary of City of Brantford, Ontario, except with the consent of the other parent or court order;

24. the applicant and the respondent shall not attend at or approach the other’s residence, unless for the purposes of parenting time exchanges of the child, or with the other’s written consent.

Child Support

25. the parties have agreed that child support arrears are only calculated at trial for the period of January 1 2019 until October 31, 2019 (10 months). The respondent’s income for 2019 shall be imputed to $40,694.00 based on her 2017 wages from Participation House. Arrears calculated as follows: (i) The Applicant shall pay to the respondent set-off $367 per month for 10 months for January to the end of October in 2019, $3,670 (ii) The respondent shall pay to the applicant agreed credit of $1,547.00 for fall 2020 parenting time with Applicant (iii) The respondent shall pay applicant $752.62 for her proportionate share of day care costs in 2019 and 2020. (iii) therefore, after setting off the above amounts, the applicant shall pay to the respondent $1,345 for all child support arrears to December 31, 2022. This amount that shall be paid within 45 days hereof.

26. commencing January 1 2023 the parties shall, by May 31, 2023, use their 2022 income tax assessments to calculate a set-off of child support. In the event of difficulty in settling the amount of set-off support to be paid commencing January 1, 2023 I may be spoken to.

27. this order bears interest at the post-judgment interest rate set out in the Courts of Justice Act, of 2 % per year effective from the date of this order. A payment in default bears interest only from the date of default.

28. for as long as child support is to be paid, the Applicant and the Respondent shall provide updated income disclosure to the other each year within 30 days of the anniversary of this order in accordance with section 24.1 of the Federal Child Support Guidelines.

29. unless the support order is withdrawn from the Family Responsibility Office, it shall be enforced by the Director and amounts owing under the order shall be paid to the Director, who shall pay them to the person to whom they are owed. A support deduction order will be issued.

Generally

30. the terms of this order shall govern in the event of a conflict between any term or terms of this order and any term or terms of the separation agreement between the parties referred to above.

Costs

[98] The parties are strongly encouraged to agree upon costs.

[99] Failing agreement, the respondent may deliver submissions on costs within 14 days of the release of these Reasons. The applicant shall have 10 days thereafter to deliver responding submissions. There shall be no reply submissions unless requested by the court. The written submissions on each side shall not exceed four double-spaced typewritten pages, exclusive of Costs Outlines or Bills of Costs and Offers to Settle.

[100] The cost submissions shall be delivered to the Trial Coordinator at Brantford at the email address utilized for the release of these Reasons.

[101] If the parties are able to resolve the issue of costs, they are directed to advise the court accordingly. Any party choosing not to deliver costs submissions shall similarly advise the court.

[102] If no submissions are received within the times set forth above, the parties shall be deemed to have settled the issue of costs.

D.A. Broad, J.

Released: March 02, 2023

COURT FILE NO.: FS-19-110 DATE: 2023March ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: A.P. Applicant – and – J.G. Respondent REASONS FOR JUDGMENT Justice D. A. Broad

Released: March , 2023