Brampton Registry No. 1908/04

DATE: 2012·I·09

CITATION: Simon v. March, 2012 ONCJ 11

ONTARIO COURT OF JUSTICE

BETWEEN:

REBECCA COLOMBE SIMON,

Applicant

— AND —

GERALD JOSEPH MARCH,

Respondent

Before Justice June A. Maresca

Heard on 2-3 and 7-9 November 2011

Reasons for Judgment released on 9 January 2012

David A. Weisman ..................................................................................... counsel for the applicant

Rochelle S. Greene ................................................................................. counsel for the respondent

JUSTICE J.A. MARESCA:—

1: HISTORY OF PROCEEDINGS

[1] On June 1, 2006, Justice Jane Kerrigan-Brownridge made a final order granting custody of the child Isiah Joseph Simon-March, born December 14, 2001, to the respondent father in these proceedings, Gerald March. The applicant mother was granted access to the child on a fairly liberal basis. On April 30, 2009, Justice Manjusha B. Pawagi varied that order, inter alia decreasing the applicant mother’s access on consent. On October 22, 2009, the applicant mother filed a motion seeking to hold the respondent father in contempt of the April 30, 2009 order, alleging that he had denied access, failed to keep her informed about the child’s activities and failed to provide his contact information. She requested increased access. That motion was adjourned and the applicant mother brought a motion to change the orders of June 1, 2006 and April 30, 2009, seeking custody of Isiah. The respondent father responded to the motion with a claim for support for Isiah from the applicant mother. The motion to change and the contempt motion were scheduled to be heard together.

[2] A trial of the issues was heard on November 2, 3, 7, 8, and 9, 2011. The contempt motion was not addressed by either party, and is deemed abandoned. The issues at trial were custody of and access to Isiah, and support for him.

2: BRIEF PRECIS OF THE FACTS

[3] Seven witnesses were called to give evidence at trial: Ms. Simon testified and called Mr. Challu, her current partner. Mr. March testified and called Crystal March (his sister), Alice Blanchard (the paternal grandmother) and Charlene Simon( Ms. Simon’s sister). Ms. Wendy McKenzie, a clinician retained by the Office of the Children’s Lawyer, was called as the court’s witness to give evidence about the assessment under section 112 of the Courts of Justice Act, R.S.O. 1990, c. C-43, as amended, that she completed.

[4] Mr. March and Ms. Simon met and began a relationship in 2001, when she was 15 and Mr. March was 26. Ms. Simon became pregnant very soon thereafter and gave birth to Isiah on December 14, 2001. At the time of Isiah’s birth, she and Mr. March were living in the home of Alice Blanchard, Mr. March’s mother. They resided there until 2003, when Ms. Simon obtained an apartment. According to her evidence, she permitted Mr. March to stay there briefly; in fact, he remained there until he was arrested for assaulting her in 2005.

[5] It is clear that, while Isiah was very young, Ms. Blanchard played a significant role in his life. When the parents moved out of her home, she continued to care for Isiah often, particularly when Ms. Simon was working outside of day-care hours. It is common ground that, during this period of time, Mr. March was not working and Ms. Simon supported them. Ms. Simon was still a teenager at the time.

[6] The relationship between the parents was volatile and I accept Ms. Simon’s evidence that Mr. March was verbally and physically abusive to her. In 2005, Mr. March was charged with assaulting Ms. Simon with a weapon and was released on bail. One of the bail conditions was that he have no contact with Ms. Simon. He breached that condition and spent about five months in jail. He was eventually convicted of the assault, which Isiah witnessed. In his evidence, Mr. March stated that Ms. Simon tricked him into breaching his bail by calling him and asking him to watch Isiah; Ms. Simon denies this. Mr. March’s reluctance to accept responsibility for his behaviour and his blame of Ms. Simon, became a recurring pattern in the evidence. For example, Mr. March was convicted of assaulting a driver with a weapon on the side of the highway in 2007. The incident, which occurred in 2006, was described during the trial as “road rage”. Mr. March was sentenced to 90 days incarceration on this charge. When questioned about this incident, Mr. March laid the responsibility for the altercation on the other driver; he referred to his own conduct as “a mistake”. What is also concerning is that Isiah was present in the car during the incident.

[7] Neither Mr. March nor his family told Ms. Simon that he was in jail in 2005. Ms. Simon continued to send Isiah to his paternal grandmother’s home and assumed that Mr. March was seeing the child during those time periods. Isiah was having difficulty in his day-care setting at that point, often acting out aggressively with other children. Had Ms. Simon been aware that, from Isiah’s perspective, Mr. March had simply dropped out of his life, she may have been able to reassure Isiah and assist him. As it was, Isiah simply did not see his father for many months. According to Mr. March, when he was released from jail, Isiah was anxious about leaving his care. This is not surprising given what had happened.

[8] Some time in 2006, Ms. Simon formed a relationship with David Challu. The two moved in together in 2009 or thereabouts and eventually had a child together, Stryker, who was born August 3, 2008. They continue to reside together and Mr. Challu expressed his desire to parent Isiah with Ms. Simon.

[9] Much was made in Mr. March’s evidence of an incident that Isiah apparently disclosed to him shortly after Mr. March was released from jail. Isiah, while in the care of Mr. Challu, apparently tripped and cut his chin. He was taken to hospital but did not require any significant medical treatment. Mr. March testified that Isiah told him that Mr. Challu hit him and that he was scared of him. Mr. March did not discuss these allegations with Ms. Simon or Mr. Challu; rather, he accepted Isiah’s account of the incident and saw it as confirmation that Mr. Challu presented a danger to Isiah. It was not until Mr. Challu testified at trial, some 5 years after this incident, that Mr. March was prepared to contemplate the possibility that Mr. Challu had not been responsible for Isiah’s hurting himself. This is very unfortunate, as his erroneous belief attributing malicious conduct to Mr. Challu has contributed to a significant degree to the hostility between the parents. Had Mr. March talked to Ms. Simon and Mr. Challu about the incident, much ill may have been avoided. Based upon the evidence of Mr. Challu, Mr. March and Ms. Simon, I am satisfied that Mr. Challu did not in fact injure Isiah.

[10] Ms. Simon testified that, throughout 2005 and into 2006, Isiah became increasingly hostile towards her and very difficult to handle. The matter came before the courts in 2005 and, in 2006, Ms. Simon consented to Mr. March’s having custody of Isiah. She was granted access on a fairly liberal basis. When questioned about this decision, Ms. Simon advised that she found Isiah very difficult to manage and became depressed. She also wished to complete her high school education and in fact received her diploma in 2007. It is important to note that, in 2006, Ms. Simon was still only 20 years old. While each parent blames the other for the fact that Ms. Simon saw relatively little of Isiah once the child began living with his father, I find that he was effectively estranged from his mother for a significant period of time. After the birth of Stryker, Ms. Simon brought the matter back before the court. Isiah’s behaviour again deteriorated and the child began telling his mother that he hated her and did not want to see her. By 2009, Ms. Simon consented to an order reducing her access, hoping that Isiah would come around if she gave him some distance. This was despite the fact that Ms. McKenzie, a clinical investigator for the Office of the Children’s Lawyer, felt that Ms. Simon should have custody. The decrease in Ms. Simon’s access was not supported by Ms. McKenzie, although a full report was not filed with the court, given the consent reached by the parties.

[11] It is the evidence of Ms. Simon that Mr. March sabotaged the little access to which she and Isiah were entitled after the order was made in 2009. Mr. March testified that he consistently offered Ms. Simon access and that she failed to take advantage of it. While I suspect that Ms. Simon was not as diligent as she might have been in demanding access, I find that Mr. March made exercising access very difficult. He was convinced that Mr. Challu posed a danger to Isiah, with scant evidence to support this view. Both parents made several referrals to the children’s aid society about the other parent’s behaviour, none of which resulted in protection concerns. In the result, Isiah again had relatively little opportunity to reconnect with his mother.

[12] In October of 2009, Ms. Simon brought a motion for a finding of contempt against Mr. March for denial of access. Shortly thereafter, she brought a motion to change custody; Mr. March responded by claiming child support. Ms. McKenzie was re-involved and this time conducted a full custody and access assessment. Her report contains a number of troubling observations, for example:

Two observation visits were done with Isiah. One in the home of his mother and one in the home of his father. During both visits, Isiah appeared to have positive interactions with his parents. Isiah also appeared to have positive interactions with his half-brother Stryker and his mother’s partner, Mr. Challu. During the visit with Ms. Simon, Isiah actively played with Mr. Challu and sought his assistance with a video game he was playing. They both laughed throughout. In both homes, Isiah had to be reminded by his parents to calm down as he was easily excitable and at times with talk back to them. Isiah at one point during his visit with his mother was outright defiant when asked to stop playing hockey in the bedroom. Isiah slammed his hockey stick and pouted and refused to come down stairs. Isiah appeared comfortable in the homes and moved about with ease in both homes.

When interviewed privately, Isiah reported that his father told him that, when he was three, Mr. Challu threw him into a balcony door and he required stitches. Isiah stated that he did not remember the details of that. Isiah stated that he no longer had problems with Mr. Challu, but that he wanted to continue to reside with his father because he wanted “to be safe”. Isiah reported that his father gives him rules about visits with his mother, including being good and calling his father’s cell phone if there is an emergency. Isiah stated that he has never slept over at his mother’s house, but would if Mr. Challu was not there. Isiah stated that he is concerned Mr. Challu might “hurt” him again. Isiah stated that access with his mother was going well and he was seeing her “enough”.

Isiah reported that his father yells sometimes at him and the cat. He said that his father can get pretty mad and will scream. Isiah reported that his father and mother also scream at each other, but that his father screams the most and is pretty loud.

[13] Ms. McKenzie perceived Isiah to have a positive relationship with all of the adults in his life: Mr. March, Ms. Simon, and Mr. Challu. She observed him to be comfortable with Mr. Challu in her observations of them, noting that Isiah laughed and played with him.

[14] On the other hand, she noted on pages 13 and 14 of her report:

Isiah is a friendly nine-year-old boy that has watched the conflict of his parents for pretty much his entire life. Parental conflict is a major source of harm to children and Isiah has been subjected to it for a substantially prolonged period of time. Isiah appears upon observation, to have a positive relationship with each of his parents. When initially interviewed in 2009 Isiah stated that he was happy interacting with both his mother, father and Mr. Challu. He said that he was not fearful of any of them and wanted to see his mother more frequently, but he did not think that his father liked his mother, but was unsure why. During recent interviews with Isiah he again stated that he enjoyed spending time with his mother. Isiah was more focused on the potential of harm by Mr. Challu as he was told by his father that Mr. Challu had hurt him in the past.

Isiah is beginning to have behavioural issues and anger out bursts. He initially received services through the Peel Children’s Centre in 2008. Both Ms. Simon and Mr. March have indicated that there have been times that they have had difficulty managing Isiah’s behaviour.

It is concerning that Mr. March is repeatedly advising service providers such as the school, counselling services and the family doctor that Isiah has been physically abused by Mr. Challu. This has never been verified and remains an allegation of Mr. March’s. Advising service providers of this impacts the type of service Isiah receives.

Mr. March is so consumed by the belief that Mr. Challu has harmed his son that he has made it clear that he will do whatever it takes to ensure his safety.

[15] Mr. March testified that he talked to Isiah about a “safety plan” when he was at his mother’s home, should anything bad happen. Mr. March saw nothing inappropriate about this and Isiah seems to have internalized Mr. March’s fears regarding Mr. Challu.

[16] It is Ms. McKenzie’s recommendation that Ms. Simon have custody of Isiah, with supervised access to Mr. March.

[17] Two more incidents formed a significant part of the evidence of each parent. One occurred in the spring of 2011. Isiah was at his mother’s home with Stryker, Ms. Simon and Mr. Challu. His mother and Mr. Challu were attempting to help Isiah with his homework. He became frustrated and stormed upstairs. He hit his brother and his behaviour escalated. He demanded to talk to his father and Ms. Simon called Mr. March, who came over to her home. Mr. Challu testified that he was frustrated and referred to Mr. March as an “idiot”. Isiah apparently overheard the comment and thought it was directed at him. This is what he told his father when he arrived and Mr. March was very willing to believe this without discussion. In spite of this, it is important to note that Mr. March admonished Isiah “not to speak that way to his mother” when the child spoke rudely to her.

[18] Later in the school year, Isiah was involved in an altercation at school. His parents were called and both attended together at the school to meet with the principal. They were able to speak calmly to the principal and each other in that meeting and strategized about how they would deal with the situation. This was a significant step forward.

[19] Three other family members gave evidence at trial. As is so often the case in hotly contested custody cases, each of these three witnesses, related to either the mother or the father, gave evidence that was in the nature of advocacy for one parent or the other. I did not find their evidence helpful in making a decision in this case.

3: ANALYSIS

[20] Both parents have much to offer Isiah and both have parenting deficits. These are summarized below.

[21] Mr. March has consistently been in Isiah’s life since he was born. In 2006, he assumed custody of Isiah and, with the exception of the period of time that he spent in custody, he has continued to be the primary caregiver for Isiah, along with his own mother. He has provided for Isiah in the last few years and has enrolled him in appropriate activities, such as hockey and lacrosse. He has a stable income from a disability benefit and in addition works as a building superintendent, earning between $300 and $600 per month.

[22] Mr. March was involved briefly with Peel Children’s Centre in 2009. He attended sessions at that facility to learn how to be a better parent and how to handle Isiah’s difficult behaviour. It was apparent in his testimony that he internalized a great deal of the information he learned, particularly in terms of implementing strategies for managing Isiah’s behaviour. He is to be given much credit for taking the initiative to attend counselling to improve his ability to parent Isiah. It is clear from the reports from Peel Children’s Centre, contained in exhibit 3, document disclosure, that the therapist saw him as a committed father and eager to participate in the program. The final report is very positive, as seen in this comment in the final April 24, 2009 report:

Gerald presented as very insightful and working hard to prioritize the needs of his son. He appears to be a loving and dedicated father who wants what is best for his son and is open about the challenges that he has experienced.

[23] There were signs in Mr. March’s evidence that he has begun to appreciate the role Isiah’s mother plays in the child’s life. After hearing Mr. Challu’s evidence, he seemed prepared to accept that Mr. Challu did not in fact harm Isiah and that Mr. March was wrong in his previous belief that he had. He indicated that he was prepared to have Isiah visit with his mother and Mr. Challu overnight and said that in fact that has happened a few times recently. Lately, as noted above, when Isiah became involved in an altercation at school with another child, Mr. March attended at the principal’s office with Ms. Simon and dealt with the problem in co-operation with her. This appears to be a positive movement on his part. In the spring of 2011, when Isiah spoke back to his mother in Mr. March’s presence, he was able to say to him “Don’t talk to your mother that way.”

[24] It is clear that Mr. March is committed to Isiah and is working hard to be the best parent that he can be to him.

[25] There are, however, a number of concerning aspects to Mr. March’s background, behaviour and attitudes that negatively affect his parenting of Isiah. First, he entered into a relationship with Ms. Simon when he was 26 and she was 15. While he accepted responsibility for Isiah from the beginning, he was less able to appreciate the strain that the pregnancy, birth and parenting of an infant undoubtedly placed on Ms. Simon. At 26, he was an adult; Ms. Simon was still a child herself.

[26] I accept the evidence of Ms. Simon that Mr. March was abusive to her in the course of the relationship, both emotionally and physically. What is concerning about Mr. March’s response to questions about his assault and breach of bail charges is that he both minimizes the seriousness of these convictions and lays the blame for his behaviour primarily on Ms. Simon. This concern is reinforced by his evidence with respect to the “road rage” incident and subsequent criminal charge, in which he again downplays his actions and responsibility for his behaviour. The worry is that, in failing to take responsibility for his conduct, he may not have learned much from his mistakes. This pattern of response is evident in his attitude toward Ms. Simon: Mr. March feels that Isiah’s problems, particularly behaviourally, are largely the fault of Ms. Simon and Mr. Challu.

[27] In addition, Mr. March has downplayed concerns about Isiah’s issues at school, both behaviourally and academically, and at day care. It was difficult for him to understand that the emphasis on Isiah’s sports participation may have negatively impacted on his school performance. He was also unwilling or unable to understand that his parenting behaviour and the conflict between him and Ms. Simon may be negatively affecting Isiah. This is worrisome.

[28] I accept Ms. Simon’s evidence that Mr. March has not made it easy for her to have access to Isiah over the last few years. To be sure, Ms. Simon’s work schedule and her difficulties managing Isiah’s behaviour also contributed to the unreasonably small amount of access time she spent with Isiah; but the clear impression from Mr. March’s evidence is that he seized on any excuse to limit or deny access. This impression is reinforced by the report from Ms. McKenzie, which states on page 14 of that report:

It appears that Mr. March is intentionally undermining Ms. Simon’s role as a mother and negatively impacting her relationship with Isiah. Mr. March has stated that he does not want anything to do with Ms. Simon. It is important for a child’s identity to be able to love and accept love from each of their parents. It is apparent that Isiah is not being permitted to do this unconditionally. Continuing the current arrangement would be a risk of continued interference by Mr. March.

[29] Mr. March has exhibited verbally aggressive behaviour with Ms. Simon, Mr. Challu and Ms. McKenzie. This is a problem. As Ms. McKenzie states on page 14 of her report

Mr. March’s continued aggressive behaviour is giving Isiah the message that this behaviour is okay and, if it continues, Isiah’s behaviour will be unmanageable as a teen and adult.

[30] Mr. March experienced abuse himself as a child at the hands of his own father, who was an alcoholic. It is concerning that he does not relate his own experiences to his behaviour in front of and with Isiah.

[31] Finally, Mr. March has a number of health issues. He is a diabetic, has been diagnosed with bipolar issues and has suffered from depression. These problems do not mean that he is unable to parent; the evidence, however, suggests that he minimizes these issues much as he minimizes the issues with Isiah’s behaviour. What is worrisome is that he is not or may not seek appropriate help to manage them, particularly the mental health concerns.

[32] Ms. Simon has had a difficult time in life, starting with the abuse that she suffered as a child. To have a child at 15 is difficult with the best of supports; one can imagine how difficult it would be without such assistance. Faced with these difficulties, Ms. Simon has acted responsibly for the most part. She worked and supported Mr. March and Isiah when they lived together in an apartment, in addition to caring for Isiah, taking him to and from day care. She was still a teenager at the time.

[33] While it must have been very difficult for her, she recognized in 2006, when Isiah was five, that she was not able to parent him on a full-time basis. She was 20 years old at the time and had been experiencing difficulty with Isiah’s behaviour. She was depressed and indeed, attempted suicide. She consented to Mr. March’s having custody of Isiah and returned to school, earning her high school diploma in 2007. She entered into what appears to be a healthy relationship with Mr. Challu and had a second child, Stryker, born August 3, 2008. That family system seems to be functioning well, and is stable.

[34] In both of her dealings with Ms. Simon, Ms. McKenzie has felt that Isiah would thrive in her custody. She states in her most recent report: “Ms. Simon and Mr. Challu appear to be appropriate in their interactions with Isiah”. She described Isiah as being comfortable in Ms. Simon’s home and with Mr. Challu, and as having positive interactions with his step-brother Stryker.

[35] Ms. Simon, in her testimony and in her discussions with Ms. McKenzie, seemed to have a good grasp on Isiah’s needs, both behaviourally and academically. She recognized that he needs assistance both within the school system and emotionally. I accept her evidence that she has advocated for Isiah with Mr. March to ensure that Isiah receives the help he needs, with little success. She understands Isiah’s need to have a stable environment, without anger or aggression.

[36] I am satisfied that, once Ms. Simon got her high school diploma, was settled in her relationship with Mr. Challu and felt she had a stable home environment to offer Isiah, she took timely steps to negotiate more access, and when that was not fruitful, brought the matter back before the court. More importantly, I am satisfied that Ms. Simon recognizes the importance to Isiah of having a strong and positive relationship with both parents. I am not concerned, as I am with Mr. March, that access would be a problem if Isiah were in her care.

[37] Ms. Simon also has parenting deficits. While she was very young at the time that she had Isiah, I find that she was overwhelmed with his care when he was a toddler, and felt unable to cope with his negative outbursts directed at her while in his father’s care. Ms. Simon did eventually form a relationship with Mr. Challu and began to attempt to see Isiah more often, but her absence from his life for periods of time has undoubtedly caused emotional difficulty for Isiah. I am concerned that Ms. Simon may not recognize how her absence from Isiah’s life contributed to his difficulties.

[38] Ms. Simon also has had mental health difficulties, including depression and a suicide attempt. It is unclear whether and how much therapy she has been involved in to deal with these issues.

[39] Isiah is a child who has been in the middle of intense hostility and disruption between his parents since he was a toddler. I accept as a fact that he has witnessed an inordinate amount of aggression, both physical and verbal, between his mother and father, over a long period of time. He faces significant challenges managing his own emotional regulation and requires a specialized learning environment in school. He enjoys a positive emotional bond with his brother Stryker, and with his stepfather, Mr. Challu. I further accept that his father has discouraged his relationship with Ms. Simon and his stepfamily.

[40] While I am hesitant to disrupt the status quo that has developed in terms of Isiah’s living arrangements, I am of the view that the current situation is not workable. Isiah must be able to develop and nurture a positive relationship with his mother and with Mr. Challu. I am not convinced that Mr. March will permit that to happen, based upon his behaviour up to this point. In addition, Isiah needs a calm, supportive environment, with support around his learning, behavioural and emotional issues. I find that Ms. Simon does not have the tendency to minimize these concerns as Mr. March does. I believe that she will be more diligent in obtaining help for Isiah than his father has been.

[41] In applying the factors set out in section 24 of the Children’s Law Reform Act, R.S.O. 1990, c. C-12, as amended, I find the following:

(a) Isiah has close ties to all of the adults in life — his mother, his father, his grandmother — and to his brother Stryker;

(b) Isiah loves both his parents and wants to spend overnight time with each of them;

(c) Isiah has not lived in a stable environment for much of his life, whether with his mother or his father. While he has lived in his father’s home for the past 5 years, his father was in jail for 6 months of that time in 2006, and a further 90 days in 2007. During that time, Isiah lived with his grandmother. His father moved out of the grandmother’s home after his release from jail, and currently lives on his own with Isiah. Isiah has not lived with his mother since he was very young.

(d) While both parents testified that they were aware of and planned to provide for Isiah’s special needs, I find that Mr. March has fallen short in that goal. I find that he is less able than Ms. Simon to recognize the seriousness of Isiah’s difficult behaviour and his academic struggles.

(e) Neither parent presented a detailed plan for parenting Isiah. Both acknowledged the need for special education for him, as well as some form of counselling.

(f) Mr. March has been living on his own with Isiah for several years. He receives a disability pension and a small amount of employment income. Ms. Simon has been in a stable relationship with Mr. Challu for about four years, and has a three year old son with him. There is nothing to suggest that this relationship is tenuous or unstable. Mr. Challu presented at trial as a concerned parent. There was nothing to suggest that he has difficulty with anger, and he is committed to Isiah.

(g) The ability of each party to parent Isiah is compromised to some degree by their history. Both have had abusive upbringings, and both have had mental health issues. Neither is able to recognize the serious negative consequences to Isiah as a result of their ongoing struggle and hostility towards each other.

(h) Mr. Challu is the only non-parent involved in a plan to parent Isiah. He appears to be genuinely concerned about him, and is committed to raising him with Ms. Simon.

(i) I find as a fact that Mr. March has been physically and emotionally abusive to Ms. Simon, and that Isiah has been present for and aware of much of this behaviour. This is a very concerning negative factor.

[42] I want to make it clear that Mr. March has worked very hard to provide the best parenting he can for Isiah. I have no hesitation in stating that he is committed to his son, and has developed a strong bond with him. I do, however, have serious concerns about his ability to manage his own anger, which impacts negatively on Isiah. Further, I worry that his conduct in failing to nurture and encourage the relationship between Isiah and his mother, and with Mr. Challu and Stryker, places Isiah in an untenable position of being torn between his parents.

4: RULING

[43] I am satisfied that Ms. Simon has proven a material change in circumstances since the order of June 1, 2006. I accept her evidence that Mr. March has not been able to support her connection with Isiah and that Mr. March has been unwilling to accept Mr. Challu’s place in Isiah’s life. Isiah now has a sibling to whom he is reportedly close; without ongoing significant contact between the boys, that relationship may be lost. I find that in the past five and one half years, Mr. March has not been able to effectively deal with his own anger, and that he has been reluctant in providing supports for Isiah to deal with the child’s emotional and behavioural issues. I am concerned that. if the status quo is left to continue, Isiah will lose his relationship with his mother, Mr. Challu and his brother Stryker and that he will not get the help he needs. This view is supported by the report of Ms. McKenzie.

[44] After taking into account the factors listed in section 24 of the Children’s Law Reform Act as outlined above, I find it to be in Isiah’s best interest to be placed in the custody of Ms. Simon, subject to the requirement that she consult meaningfully with Mr. March about all major issues affecting Isiah. If they cannot come to agreement about a particular issue, Ms. Simon is to make the final decision. Mr. March will have unfettered access to information pertaining to Isiah and shall have the right to contact directly anyone providing service to Isiah. Ms. Simon shall ensure that Mr. March has up to date information, on an ongoing basis, about the names and contact information for all of those people.

[45] After giving significant thought to the recommendation of Ms. McKenzie that Mr. March have no access to Isiah for a period of one month, I find I am unable to agree with it. It is my hope and my belief that Mr. March will not make the transition from his home to that of Ms. Simon difficult for Isiah. I expect that he will support her care of Isiah, and will encourage his son to feel safe and nurtured in his mother’s home. If I am wrong in that expectation, a change in the order may be required.

[46] The following order is therefore made:

1. Ms. Simon shall have custody of Isiah, commencing today after school, subject to paragraph 3 of this order.

2. Mr. March may have telephone contact with Isiah on January 8, 13 and 17, at 6 pm on each of those days. Ms. Simon shall assist Isiah in placing the calls to his father.

3. Ms. Simon shall consult meaningfully with Mr. March with respect to all major decisions affecting Isiah.

4. Mr. March shall have unfettered access to information about Isiah, and may contact directly any person providing service to Isiah. Ms. Simon is to keep Mr. March advised as to the name and contact information of all such service providers.

5. Ms. Simon shall not change Isiah’s school or residence without first giving Mr. March 60 days notice of such change.

6. Mr. March shall have access to Isiah as follows:

(a) Commencing January 19, 2012, on alternate weekends from Thursday after school or day care to return to school or daycare on the following Monday or Tuesday if Monday is a holiday;

(b) Commencing January 26, in alternate weeks from Thursday after school or day care to return to school or day care on Friday morning;

(c) Two weeks in July, and two weeks in August, not to be taken in more than two week blocks, with the right to have first pick of the July weeks each year;

(d) One half of March break and Christmas break each year;

(e) If Easter or Thanksgiving do not fall on his regularly scheduled week, on the holiday Monday from 10 a.m. until return to school on Tuesday following;

(f) In odd-numbered years, from Christmas Eve at 5 p.m. until Christmas Day at 5 p.m., and in even-numbered years, from Christmas Day at 5 pm until Boxing Day at 5 p.m.

7. Ms. Simon is to ensure that Isiah is enrolled in supportive counselling forthwith, and shall keep Mr. March apprised of same.

8. Both parents shall participate in Isiah’s counselling as recommended by his counsellor.

9. Mr. March shall pay to Ms. Simon for the support of Isiah the sum of $200 per month, based upon an income of $25,000 per year, commencing January 1, 2012.

[47] Paragraph 5 of this order, relating to access, will not become final until the parties appear before me again in two months time to review their progress. It is the court’s expectation that Mr. March and Ms. Simon will work together to make the transition for Isiah as smooth as possible and that access will not be problematic. If the parties are unable to work together to ensure that this arrangement functions well, and particularly, if Mr. March is not able to actively support Isiah’s relationship with his mother and Mr. Challu, the court may change the access terms of the order to best meet Isiah’s needs. The matter is adjourned to a date to be fixed by the court.

Released: 9 January 2012

Justice June A. Maresca