Court File and Parties

Court File No.: Toronto D46596/08

Date: 2012-03-12

Ontario Court of Justice

Between:

MOREIRA, Laura

Applicant

— AND —

GARCIA DOMINGUEZ, Eduardo

Respondent

Before the Honourable Mr. Justice M. Zuker

Heard on: December 12, 2011; January 17, 19 and 20, 2012

Reasons for Judgment released on: March 12, 2012

Counsel:

A. Crossley, for the applicant

C. Bird, for the respondent

ZUKER J.:

Introduction and Background

[1] On December 30, 2008, the applicant, Laura Moreira Berkowitz, commenced an application for sole custody of the child of the marriage, David Garcia, born November 28, 2003, and child support, inter alia. She also sought a restraint order against the respondent, Eduardo Angel Garcia Dominguez.

[2] At the first court appearance, the applicant voluntarily entered into a consent with the respondent for specified access to the child. A support order was also entered into, at the first appearance.

[3] The trial was conducted over four days: December 12, 2011, and January 17, 19 and 20, 2012.

[4] The applicant testified on her behalf, and called two witnesses: her mother, Alma Moreira, and a friend, Colin West.

[5] The respondent testified and he called on Angela Dominguez Gonzalez and a friend of the family, Maria Alery Escobar.

Positions of the Parties

[6] The applicant submits that the only appropriate order in the child's best interest is an order for sole custody to her, with regular access to the respondent.

[7] The respondent seeks an order of joint custody, with the child's primary residence with the applicant. He seeks the joint custody order, within a parallel parenting regime; a regime where he would have exclusive decision-making authority over the child's education, while decision-making authority of David's extracurricular activities would go to the Applicant.

Factual Background

[8] This trial is a rather difficult one. Both parties are of modest means and both love their son, David Garcia, who is eight years old. The parties, met and married in Cuba, on October 16, 1993.

[9] They both made an application while in Cuba to immigrate to the United States. They arrived in Canada on March 28, 2003, as permanent residents. At the time of entry, they knew no one to Canada. They survived financially with the help of the applicant's parents, who were living Miami, Florida at the time. The applicant's parents helped them get settled and established in Canada. The applicant gave birth to their only child, David, on November 23, 2003. The applicant's parents assumed much of the responsibility for the caring for the family, both physically and financially.

[10] The marriage seriously deteriorated in 2003.

[11] At best there was a limited conjugal relationship from 2003 onwards. They remained married and lived together. The respondent decided to leave the home in 2008. In September 2008, he moved out the marital home, and took up residence across the street from the applicant. Prior to leaving the home, the applicant submits, the respondent was actively spying on her. She submits he secretly installed spy software on her computer and taped her conversations.

[12] While there was no physical violence in the marriage, there was extreme control, emotional punishment, verbal abuse and extreme financial control of the applicant, according to her. The applicant submits she has always been the primary caregiver of the child, during the marriage and after separation. It is alleged that the applicant was the person who attended doctor's appointments with David most of the time. She attended school and daycare and she submits that she did the bulk of the child-care and homework with David. She and her parents also shouldered the bulk of the financial responsibility of raising David

[13] As a child, David was very sickly; he was prone to ear infections. Whenever he was off sick from school or daycare, it was the applicant who missed work and who stayed home caring for David. The applicant submits that she, not the respondent, despite her being a university graduate, sacrificed her career and took a low-paying but flexible job.

[14] The applicant commenced an application in 2008, seeking, inter alia, child support, custody, a restraining order and relocation to Miami, Florida. She later abandoned the relocation claim and also abandoned the claim for a restraining order, once specified access was ordered by the court.

[15] The applicant seeks an order for sole custody of David. She wishes his primary residence to be with her.

[16] Should the court deem this a case for parallel parenting, the applicant seeks that it occur within a sole-custody regime, and that she have sole authority over the child's activities and his education. While she would consult the respondent on issues relating to activities and education, and respect his input, she seeks the right to have the final authority in case of disagreement over these two areas. It is not anticipated that other issues of custody, such as religion, would be a source of conflict as both parties are Catholic.

[17] The applicant submits that the respondent has always put his job ahead of the best interest of the child and that he is inflexible, controlling and seeks to fit the child into his schedule.

[18] The applicant submits that David is a lovely child. She says he has had periods of low self-esteem and he continues to experience low self-esteem. He has told her repeatedly that he wants to enrol in tae kwon do classes and later in karate classes. The respondent, she submits, vehemently denied these requests of David and allowed the marital conflict to come in the way of his best interest.

[19] The respondent has enrolled the child in piano lessons, one hour per week, during the lunch hour. The child attends Spanish in which the applicant enrolled him.

[20] The applicant has dual citizenship in Canada and the United States.

[21] The respondent believes that joint custody is appropriate in this case.

[22] The respondent feels that the applicant is overly dependent on her family's opinion. Despite a rift in the family, it is submitted by the respondent that they continued to live as husband and wife until 2008. According to the respondent, they had conjugal relations during this time. They were a family, they attended events together with their child, and participated in all aspects of life as family together. The rift did not heal, however, and over time grew worse.

[23] The respondent submits that he is a caring and loving parent, a responsible parent. He has taken great strides to make sure that his son is successful at school and in life. He participates in school activities, he participates in assisting the child with his homework. The respondent does, however, work inflexible hours. The nature of his work demands inflexible hours. The respondent thinks it is extremely important not to jeopardize a position that pays well. Since the separation, he says he has tried to co-parent with the applicant as contently as possible. He does not claim that he and the applicant get along in a friendly and amicable manner. They do not. They fight a little and they take issue with one another as separated spouses tend to do.

[24] Can they continue, according to the father, to co-parent David successfully? The respondent says they do and they can. From the time of the separation until the time that the respondent delivered his answer, the applicant and the respondent co-parented David very amicably, he submits. The respondent moved out slowly. He submits that he did not spend every night at his new apartment and, even when he did spend the night at his new apartment, he visited David every night. He took care not to leave the apartment until David was asleep, in order to create a transition to a new reality of their being separated parents.

[25] The parties agreed on an access arrangement, Wednesday nights and Sundays.

[26] Further to a court order, they got the schedule that they are currently work under. Under that schedule, the respondent will have David on Mondays, Wednesdays and Fridays from 3:30 until 7:00 p.m., on Tuesdays and Thursdays from 3:30 until 6:00 p.m., and on alternate weekends from Friday until Sunday at 7:00 p.m. He picks David up from school every day. When they get they get home, he says he gives David a snack. They read together. In summer, they go out and play baseball. In winter, they play video games together. They always do his homework. When they have a day going until 7:00 p.m., as opposed to 6:00 p.m., the respondent makes David his dinner. According to the respondent, he and the applicant attend all of David's special events together, his plays, his school concerts, his parties and his doctor's appointments. They both set up these appointments. They share information via e-mail. Both of them help prepare for school plays. They prepare David's birthday parties together, coordinating their efforts to avoid duplication of plans. In other words, they do all these things together.

[27] David is thriving. His school records show improvement every year. He is especially strong at French and music.

[28] The respondent says he helps David with Spanish homework, he goes on school trips with David whenever he is allowed to go. David excels at piano.

[29] With respect to tae kwon do and karate, it was the applicant's idea to enrol David in these classes, it was not David's idea, submits the respondent. These classes conflicted with David's Spanish lessons. David tried out the tae kwon do classes and, according to the respondent, did not like them.

[30] The respondent submits that joint custody is appropriate in this instance.

Testimony of Alma Moreira (Applicant's Mother)

ALMA MOREIRA: SWORN

"I think David loves his father very much. The same the thing that he loves his mom very much, but he is between two persons with different characters, different way of being to manage him. Maybe he is softly with him maybe she is strict because he has… strict with him. And when he was in Miami with us, he wanted, he was when he called the father we spoke. The same thing happened when it is the same, when he is with the father, and he calls the mother, so I can't tell to that, that the relations with them are different. The way of doing things, are different, totally different, especially in education, especially in how to get this child correct."

[41] CROSS EXAMINATION BY MR. BIRD:

MS. DOMINGUEZ:

Q. Thank you. Could you tell me about David, are you two close?

A. Yes he's my grandson.

Q. Could you tell me about your relationship?

A. Yes of course, it is a great relationship. We get along very together, he is a very good child, very loving. He will share new things together. We play together, conversations. He asks, for example, how did I spend my day? And I ask him the same. I have interest in these things at school at school he speaks a lot to me about his father. He great affinity with his parents. His grandfather helps a lot with his homework from school, he talks a lot, and plays a lot with him. And may… also, I enjoy the company.

Testimony of Eduardo Garcia Dominguez (Respondent)

[42] According to the respondent:

"… less than two weeks after the child was born, a very unfortunate situation happened between Laura's parents, specifically, her dad and myself. Her father offended me in a very rude manner and he said, 'I have invested an X-amount of money to get you out of Cuba and you should do as I say, as my will, as I am telling you to.'

"In my opinion, Laura is a very insecure person. Her parents are very dominant people and they impose on us.

"Laura never allowed David to go to Cuba and I let her know that under these circumstances we were not going on to the United States as we had planned because this was a very unfortunate situation.

"On the first of October, I moved to live in my own apartment. It's just across the street from the building, just across in front. I just took my own clothes and my computer and I started all over again as I if I had just arrived in Canada. And every day since October 1, 2008 until February 1, 2009, I attended their home regularly. So that means it was across the street after the meal and I remained there until the child went to sleep.

"If I am not mistaken, it's February the first. At that moment, on that day as they was [sic] leaving their home, because David had already fallen asleep, Laura engaged me in a conversation and she told me, 'From now on, I don't want you to come over to my house any more, I don't want you to see David anymore, I don't want you to pick him up at his school anymore.' And to make sure that I understood, 'I'll let you see him on Sundays for a little brief time.' Immediately after this occurred, we would have to attend court for the first time, March 13, I think.

"Okay, now I have David Mondays and Wednesdays every week from 3:30 to 4:00, I'm sorry, from 3:30 or 4:00 until 7:00 at night. During those days, David has supper at home every day; he takes a bath and then he eats and then he does his homework. On Tuesdays and Thursdays and Fridays, one week, I have him from 3:30, 4:00 until 6:00 in the afternoon. And whenever I have him for the weekend, I have him from 3:30 or 4:00 when I pick him up from school until Sunday, 7:00 at night. If the next day is a holiday, then I keep him until Monday. The routine that I have with David is the same routine that I kept with David since David started attending daycare when he was one year old. This is why I am worried that this routine will be mostly destroyed. And why, because the child has consistently, finds consistency, rather, in routine and in his meals and in doing his homework and in the activities he does with me, like reading or other types of activities.

"And also, the end of day meals and his bath, everything established. In the same way that my work, because of my work schedule I am not able to go and drop him off at the daycare during the morning; I am willing to and I'm able to pick up David early at his school and I am able to maintain such routine and I don't consider how this could affect the kid to have some established or something consistent to do his homework every day at the same time. And to send him back to his mother, he's already taken a bath, he has already eaten and he is ready.

"He excels in reading. When David was in grade one, during a parent-teacher interview, his teacher, Ms. Calder (ph), she said, "Although David has some difficulty in concentrating during certain activities, I am very proud of him because he has grade-three reading levels."

Q. And, looking at his grades, with the exception of the writing grade, well, how would you characterize it?

A. Medium, fair.

Q. And then I would like to go forward and have you look at his final report card from grade two. If you could just look at the letter grades with regards to David's writing and show how they have changed over the year or just explain it.

A. It went from C to B+.

Q. And finally, looking at the most recent report card that we have, which is part way through grade three, how is David doing in independent work?

A. He is doing very well in everything. Okay. At this moment David continues with Spanish lessons. He has been enrolled in the Spanish classes for three consecutive years. And so, he has taken two courses of piano at the same school. And, so his mother has spoken to me recently relating to having David register for chess classes on Tuesdays, provided that there would not be conflict of schedule relating to his regular courses at school or his piano lessons at school. It was this Tuesday, the first time that he had a chess class and our child is actually excited for his chess classes.

A. When David had already been two years attending Spanish classes, his mother spoke with me about tae kwon do classes about which we have all ready spoken here. So between the two of us, we searched for two days trying to find schools with various schedules. Because unfortunately, tae kwon do classes for children the age of David's, not only that, when it a[sic] conflict with the schedule I had with him those days, but also we would have, we had to remove him from his Spanish lessons because the tae kwon do schedule was at the same time as his Spanish lessons.

A. My employer is Kelly Services. At this moment I am doing technical support for all of America; subject matter expert. I am a subject matter expert for that account, for that particular account.

Q. Okay. What are your hours at this job?

A. Usually I work from half past six in the morning to three in the afternoon or from seven in the morning to half past three in the afternoon. The reason for this schedule is that I am the person that receives not only North America but also South America and they are on different times.

Q. Okay. And you're, the fact that you speak Spanish is a large reason why you have this job, correct?

A. Exactly.

A. Her persistent intention, instead of promoting the child's relationship with me, it is actually to make him alien to me. My opinion, or rather, my position, and I have let her know that very clearly, my position towards her is one of tolerance and cooperation for the child's and everybody's sake. And the only thing that I expect from her, in return, is to behave as an adult and to maintain a degree of communication and parenting with David that would be favourable to David. This is actually the only thing that I am expecting from her.

A. I think that David is at an age in which he needs both parents. He needs the guidance, the advice, and the education that both parents can provide.

A. I think that there are two important things to solve conflict: One, the willingness of both parties to maintain a tolerant and cooperative relationship for the sake of the child. And the other thing is, that I think that both of us, we have each one independently, the ability the skills to educate David. There are only a few specific conflict points and I think that we, with an agreement in writing, where it should be determined who is going to have the final word in these specific areas. That would reduce, in a significant way, the possible conflicts. This doesn't mean, "Oh, I'm going to do this because this is what pertains to me and I'm going to do that because that is what pertains to me to that."

A. We were all witnesses to the absolute loss of control on the part of Laura.

A. For me, the most important thing is that David grows up being a happy child, healthy achieving good results at school, and for him to count on the concern and the dedication of both parents.

Q. Now in order to reduce conflict, how would you go about dividing up areas of responsibility between yourself and Laura, the decision making powers?

A. Okay. I think that what we have spoken about previously here, for me, it's very important it's most important the area of David's education, and as one wants to get something, one also has to give something. I think that she could have the final word relating to activities, while I could have the final word in connection with education. That doesn't mean that we should not exchange ideas before reaching a decision. But in connection with religious and health matters there isn't a conflict.

Cross-Examination of Respondent

[43] MS. CROSSLEY:

Q. Okay. So, Eduardo, when would you say, when you were living with Laura, that the two of you stopped living together as a couple, like husband and wife?

A. A few days or a month before I left our home.

Q. Okay.

A. Yeah, before I moved out.

Q. So, a few days before you moved out is what you're saying and you moved out in October 2008; correct?

A. Yes.

Q. Okay. But is it not true that the two of you did not have any kind of marital relations after David was born, from 2003 onwards?

A. No.

Q. It's not true?

A. No.

Q. And is it true that you slept in the living room in a bed for five years before you left the home in October of 2008?

A. No. We had no sofa in the living room.

Q. Okay. And perhaps, sir, you would be so good as to read what it says here?

A. (In English) "Every Monday and Wednesday from 4:00 p.m. to 6:00 p.m. and Saturdays…" well, Saturday, Sunday, I don't know why this is there. "…10:00 a.m. to 4:00 p.m."

Q. What evidence, sir? Like what kind of communication? Tell me.

A. Okay, I showed you a considerable number of e-mails that show the real communication between the two of us.

Q. And that's the extent of your communication, sir, e-mails?

A. Well, if you still want further evidence, then I can refer to that, that I come to give back the child to Laura every day at the building, and the building has a security camera that then records that we meet and that we speak.

Q. And that's your communication, the extent of your communication, sir?

A. Okay, no, we also speak when there are school or church activities. Each time that I give David back to Laura, she asks me, "Did you pick up David all right at school?" If there was anything that happened at the school, if there was any event, I explain to that. The same applies when there is an activity at the church, with his medical appointment.

Q. So, sir, did you ever once say to Laura, "How are things doing? How are things with you financially? Are you able to take care of David financially and well?"

A. Yeah, sometime, but what period of time are you referring to?

Q. Anytime, sir, since you left the home in 2008, October.

A. No.

[44] EXHIBIT NUMBER 9: Letter – produced and marked.

[45] MS. CROSSLEY:

Q. Did you ever comply, sir?

A. No.

Q. No, okay. Thank you, sir. Sir, I also want to show you another letter. And I also would like to pass, give this to the court and have it made an exhibit.

[46] THE COURT: Exhibit 10.

[47] MS. CROSSLEY: Yes, please, Your Honour.

[48] EXHIBIT NUMBER 10: Document – produced and marked.

[49] MS. CROSSLEY:

Q. Sir, I'll show this to you. Do you recall this letter, sir?

A. This letter I don't recall.

Q. Okay.

A. Can I clarify something about the first letter?

Q. Yes.

A. The first letter shown to me by madam, if you notice the date this was sent to me exactly one day prior to my retaining Ms. Agrella. And the information requested of this was not asked to me by Ms. Agrella, but instead she asked me for pay stubs.

Q. But you did receive the letter, sir, because I sent it to you; is that not correct?

A. Yes, I did receive that and from the next day on, Ms. Agrella took carriage of the case.

Q. Okay, but, sir, you receive it and you knew what it requested.

A. (In English) Yes.

[50] EXHIBIT NUMBER 11: Letter dated March 24, 2009 – produced and marked.

[51] MS. CROSSLEY:

Q. And obviously, your lawyer received communication from me respecting the fact that my client had not received any child support as of that date. And this would have been March 24, 2009 (sic).

Q. We're not talking about anything and we're talking about the enforcement of FRO, just to be clear.

A. I, again, am telling you I'm not aware as to the mechanism used by the court to enforce or execute court orders. Secondly, all of the letter that you have shown, except the first one, is only proof of correspondence between you and my lawyer, which does not mean that I was aware of that information. You have not shown any document with my signature that's confirming that I was aware of this. This is exclusively correspondence between my former lawyer and you.

Q. Okay. So what are you seeking from the court in terms of David's education, just to be clear?

A. What I said yesterday is that since we have very specific points on which this agreement, such activities or education because, although it is clear that in any aspects of religion, any religious or health aspects, we don't have that type of disagreement or conflict....

Q. We're not talking about education and religion....

A. Since his mother has highlighted so much about the activities, I believe that an order for joint or shared custody, sorry, an order that would set out very specific points as to who would have the final word on activities will not only reduce any possible conflicts, that is having to return to court for any points on that. But it also will grant the mother the power to, the power to the mother to involve the child for planning or any – and it would give me the final word on any education issues. This does not mean that we are going to act in an independent manner, we will keep trying to reach a consensus in a common....

[52] MS. CROSSLEY:

Q. Okay. Suppose the mother, Laura, felt that David really needed something to do with education and would benefit from it and she approached you and you don't think it's necessary; would you want to have the final say in that?

A. Depend on what need the child may have about that and whether it's reasonable or not. For example, let's say tomorrow the mother might think, "I want to put my child in a private costly school." This has not happened yet. We will have to assess whether the child needs to be in such....

A. But from my personal point of view, the Catholic school that David attends has an excellent education level and on my opinion the school covers all the needs that a child might have in this country.

Q. Okay. Sir, suppose you in charge of education and having the final say decided that David was going to be enrolled in a specific school and Laura relocating where that school is not close to her home and she wants to change David's school to be one that is more convenient for David; what would be your position in that?

A. It depends.

Q. On what, sir?

Q. So sir, when you heard Laura testify that the child wanted to do it, are you saying that she made that up?

A. Of course.

Q. Sir, have you consulted with Laura before you take David to see specialists and doctors? Have you always consulted with her and kept her informed?

A. Depending.

Q. So you haven't always.

A. Depending. I'm telling you, if it is a consultation with a specialist, yes, we consult each other about it and usually all consultations with the specialists, we have spoken about them. Yeah, but if it is a consultation with a family doctor owing to a situation that has arisen whether one or the other takes him to the appointment and then one of the two tells the other about it.

[53] MS. CROSSLEY:

Q. Do you believe, sir, that it is in David's best interests to keep this schedule?

A. Yeah, I think that, my opinion, the best thing for the child that I keep consistently is the routine that he has kept for years, even before separation. The child has specific times allotted to have food, have a bath, play, do homework and for me it is the most important thing for a child his age that he has a consistent theme.

Q. Sir, David is growing and does he have any of these skills, and I'll give you some examples that many of the children his age do, like swimming? Could he swim?

[54] MS. CROSSLEY:

Q. Is it not true when Laura has approached you to sign David up in anything or to have – you've said that it interrupts your parenting time and you only agree to things like piano that actually happens in the classroom and that the piano was your idea, that's why David is in it? And the chess that you mentioned that David is doing is also in the classroom during school time?

A. Oh, you're – things in one single question.

Q. Okay, well, answer.

A. …true that I don't allow David to be involved in certain activities because that interrupts the schedule that I have with him....

Q. Okay. And his mother wanted him to continue. Anyway, sir, I'm not going to belabour that point, let's move on.

Q. You said that, you know, David has this very consistent routine with you, you give him meals, you give him a bath and that you do all these domestic chores for him, but isn't it true that it's only on Monday and Wednesday that you actually do those things for him?

A. No, these are Monday and Wednesday – when David takes a bath. I don't think he takes a bath himself and he eats at my home, but during the rest of the week, David has every day a snack and every day I give his mother back his uniform and I wash every day his inner garments, his shorts, his socks. This is daily.

Court's Analysis of Custody Issues

[55] The applicant submits that the parents cannot agree on basic things, such as whether the child should wear a school uniform or what constitutes an extracurricular activity (versus an educational activity), for the purposes of special expenses.

[56] The father submits that this is a case where simple joint custody is appropriate for the child. David is thriving, healthy and doing well in school. In the alternative, the Father submits that joint custody with a parallel parenting regime where the father would have final decision-making authority over education and the mother would have final decision-making authority over activities will serve to prevent conflict while still allowing both parties to parent David to the best of their ability.

[57] The father believes that David is thriving. David's grades have steadily improved over the last two years. He is enjoying his activities (Spanish, piano and chess). He is healthy, and is generally a fun-loving, active, good-willed young boy. The father believes that David's continued good health (both physical and mental) is evidence that the current joint custody regime is suitable to take care of David's needs.

[58] David's grades have improved over the last three years, due in part to what the father submits is his attention to his study. The activities in which David is enrolled (Spanish, piano and chess) have contributed to these improved grades: David's best subjects are, consistently, French (where his Spanish lessons have likely helped him to master languages better) and music (where his piano classes have likely assisted him in the assignments).

[59] The respondent acknowledges that there is conflict between himself and the mother, but submits that the two of them have been able to make decisions together for David when necessary and that when they attend shared activities for David together they do so without conflict.

[60] He believes that, although simple joint custody is workable between the parties, if the mother truly believes that agreement is impossible, a custody regime where the parties continue to have joint custody but each parent shall have final deciding power in certain circumstances is the fairest and best solution. Under such a regime, the parties would still be expected to consult one another and make decisions together; this regime would merely provide a resolution to disagreements where necessary.

[61] The respondent submits that, when considering the evidence as presented by both parties, the mother has failed to demonstrate that sole custody is warranted in this situation or in David's best interests and that, therefore, joint custody is appropriate. He requests an order that neither party be allowed to move from Toronto without the consent of the other, as the mother's insistence at trial on rigorously explaining how David would be best served by moving to Florida has caused him to worry that she may now be a flight risk.

[62] The applicant gave evidence that, with a view to ending the litigation, she withdrew her claim to relocate David to the United States. She stated that she offered the respondent more overnight access.

[63] The respondent's work schedule has clearly prohibited him from having overnight access to the child during the week, and from being able to take the child to school and meet with the child's teachers before school. This is clearly a conscious choice the respondent has made.

[64] I find that David has always lived with his mother since separation and that the applicant has been the primary caregiver of David, who appears to be thriving. I find that David has enjoyed stability, consistency and nurturing in his mother's home.

[65] I find that the respondent's inflexibility has resulted in his refusal to allow David to have uninterrupted time during the week with his mother. I find that the respondent takes the position that activities initiated by the applicant, for example, tae kwon do classes, affect his "parenting time."

[66] David's piano classes are offered during lunch hour at his school, thus, arguably, not affecting the respondent's schedule.

[67] I further find that the respondent blaming the applicant for not disclosing that she was forced to rely on food banks is, at the very least, harsh and inexcusable.

[68] The respondent is willing to give the applicant mother final decision-making power over David's activities in a divided custody regime.

[69] He assures the court that he would not seek to use educational decision-making power to restrict the mother's mobility or insist that David go to a school that would be inconvenient for her. I do not agree.

[70] The respondent gave evidence that he taught David to ride a bike, they took trips and did other activities together. David's paternal grandmother, who spent almost half of every year in Canada for the last three years, has had ample opportunity to observe how David is cared for by her son. He took David to Cuba over Christmas break, with the consent of the applicant.

[71] The respondent asks that the access regime to remain unchanged or, in the alternative, he have access as follows:

Weekly access: on a rotating three-week schedule:

Weeks One and Two: Every Tuesday and Thursday, from pickup at the daycare centre between 3:30 and 4:00 p.m. to drop-off at the Applicant's home at 8:00 p.m., and from Friday, with pickup at the daycare centre between 3:30 and 4:00 p.m. to drop-off at the Applicant's home on Sunday at 8:00 p.m.;

Week Three: Every Tuesday and Thursday, from pickup at the daycare centre between 3:30 and 4:00 p.m. to drop-off at the Applicant's home at 8:00 p.m.

Holidays: Access will be varied during holidays as follows:

March Break: The Applicant shall have March Break with David in even-numbered years and the Respondent shall have March Break with David in odd-numbered years, commencing in 2012. March Break access will encompass the Monday to Friday of March Break week and shall not include either surrounding weekend without the consent of the other parent.

Easter Weekend: David shall reside with the Applicant on Easter weekend in odd-numbered years and with the Respondent in even-numbered years, commencing in 2012. When the Respondent has David for Easter weekend, pickup shall be on Good Friday at 9:00 a.m. and drop-off on Easter Monday at 8:00 p.m., both at the Applicant's home.

Father's Day: David shall reside with the Respondent on Father's Day from Sunday at 9:00 a.m. to 8:00 p.m., with pickup (if necessary) and drop-off to be at the Applicant's home.

Mother's Day: David shall reside with the Applicant on Mother's Day from Sunday at 9:00 a.m. to 8:00 p.m., with pickup (if necessary) and drop-off to be at the Applicant's home.

Summer vacation: David shall spend two weeks with each parent in July and two weeks with each parent in August of each year. The parents are to notify each other of their proposed two weeks with David by June 1. If a conflict arises in the weeks chosen, then the Applicant's choice shall take precedence in odd-numbered years and the Respondent's choice shall take precedence in even-numbered years. The regular access schedule shall resume thereafter.

Christmas: The parties will share time with David during Christmas break. In odd-numbered years, David will reside with the Applicant from the last day of school until December 25 at noon. The Respondent shall pick up David at noon and David will then reside with the Respondent until January 1 at 12:00 noon. Thereafter, the regular access schedule shall resume. In even-numbered years, the Applicant and Respondent's respective parenting times during Christmas break shall be reversed.

Other holidays and school holidays: If any other statutory or school holiday falls on a Tuesday, Thursday, or Friday or Monday of the Respondent's access weekend, then the Respondent shall have access with David for the entire day, with pickup at 9:00 a.m. and drop-off at 8:00 p.m. at the Applicant's home.

Telephone access: Free and liberal telephone access at reasonable hours; and

Other access: As agreed upon by the parties.

Mobility: Neither party to move more than 25 km from their current residence without the written consent of the other party.

Child support: The Respondent shall pay child support to the Applicant for David as follows:

From 1May 2009 to 31 December 2009, the sum of $385.00 per month based on his income of $41,882.82 for 2009;

From 1 January 2010 to 31 December 2010, the sum of $372.00 per month, based on his income of $40,543 for 2010;

From 1 January 2011 to 31 December 2011, the sum of $378.00 per month, based on his income of $41,100 for 2011; and

From 1 January 2012 to 31 December 2012, the sum of $371.00 per month, based on his income of $41,100 for 2011.

THE LAW

[72] Family law is largely about distributing loss. In separation and divorce, there are no winners. When it is not possible for children to live in the same household with both parents, neither parent will usually have as much time with the children as he or she had during the intact marriage.

[73] The greatest conflict often concerns parenting arrangements after separation.

[74] June Carbone has provided a good summary of the competing claims of these interest groups:

[T]he battle lines in the custody wars at divorce are so well drawn that they can better be described as opposing trenches. On one side are those who would identify children's wellbeing with continuing contact with both parents. They favour joint custody, liberal visitation, and limitations on custodial parent's autonomy that secure the involvement of the other parent. In the other camp are those who argue that genuinely shared custody approaching an equal division of responsibility for the child is rare, and that children's interests lie with the well-being of the parent who assumes the major responsibility for their care. This group favours primary caretaker provisions to govern custody, greater respect for the custodial parent's autonomy (including greater freedom to move), and greater concern for both the physical and psychological aspects of domestic violence. See June Carbone, From Partners to Parents: The Second Revolution in Family Law.

[75] Arguably, a change took place relating to the future of custody law after initial proposals for reform were made by a Parliamentary committee in 1998. See Parliament of Canada, For the Sake of the Children: Report of the Special Joint Committee on Child Custody and Access (1998).

[76] Bill C22 sought to remove the terms "custody" and "access" in favour of the term "parenting time," with neither parent seen to be reduced to the role of a visitor in their children's lives. It was not enacted before the government of the day went to an election in 2003. See Susan Boyd, Walking the Line: Canada's Response to Child Custody Law Reform Discourses, 21 Can. Fam. L. Q. 397 (2004).

[77] Following a change of government, it was shelved. See Helen Rhoades & Susan Boyd, Reforming Custody Laws: A Comparative Study, 18 Int. J. L. Pol'y & Fam. 119, 121, 123 (2004).

[78] The ties that bind parents together are only as strong as the bond between each parent and their children.

[79] Historically, children needed continuity of relationships with at least one parent, and if that continuity was assured, children would survive the divorce experience well. See Goldstein, Freud, and Solnit in their influential book, Beyond the Best Interests of the Child (1973), which, while again highly influential, attracted considerable criticism.

[80] Courts and legislatures began to respond to a shift in emphasis from the need of the child to have an attachment to one "psychological parent" to a need for children to maintain relationships with both parents.

[I]n practice "joint custody" is not a single, unitary category…. Joint custody sometimes refers to sole legal custody in one parent combined with some form of shared residence. This arrangement allows parents to "share access to children and child-rearing responsibilities," and, depending on the time-sharing provisions, may permit frequent and prolonged contact.

See Ann Estin, Bonding after Divorce: Comments on Joint Custody: Bonding and Monitoring Theories, 73 Ind. L. J. 441, 442 (1998).

[81] Increasingly, the term joint custody has been used to describe joint physical custody. Joint physical custody does not necessarily, of course, mean equal time.

[82] The trend in favour of mandatory parenting plans recognizes not only the advantages of advance planning for children, but also the changing demographics of the family.

[83] Laws that encourage the meaningful involvement of both parents may be described as aspirational.

[84] There are numerous barriers to the creation of good-enough co-parenting relationships and multiple reasons why, despite significant involvement of a parent while the relationship was continuing, this does not translate into successful post-separation involvement.

[85] Encouraging the greater involvement of fathers in children's lives after separation, at least in the absence of violence, abuse or high conflict, is supported by a large body of research on outcomes of divorce for children.

[86] Frequency of contact in itself does not appear to be associated with better outcomes for children. See Paul Amato & Joan Gilbreth, Nonresident Fathers and Children's Well-Being: a Meta-analysis, 61 J. Marriage & Fam. 557 (1999).

[87] However, emotional closeness and, particularly, "authoritative parenting," are highly beneficial to children. Authoritative parenting includes helping with homework, talking about problems, providing emotional support to children, praising children's accomplishments and disciplining children for misbehaviour. The researchers concluded that "how often fathers see children is less important than what fathers do when they are with their children."

[88] Measures to encourage a continuing relationship between non-resident parents and their children should be seen as highly desirable in the absence of high levels of ongoing conflict between the parents, irrespective of the division of roles between the parents when the marriage was intact.

[89] When children are caught up as messengers or spies in these conflicts, contact may impact negatively on children's well-being. See Christy Buchanan, Eleanor Maccoby & Sanford Dornbusch, Caught between Parents: Adolescents' Experiences in Divorced Homes, 62 Child Div. 1008 (1991).

[90] Primary caregivers have long been favoured in terms of allocating custody, that is, in choosing whether the mother or father will have the child living with them most of the time. In most cases, this means that children continue to be cared for by the parent who was the primary caregiver while the parents were living together, and who has continued in that role since separation.

[91] Should the patterns of parenting before separation be determinative of the amount of time the non-resident parent has with the children after separation? Should we assume that the co-parenting arrangement after separation can mirror the patterns of caregiving within an intact relationship?

[92] Shared care arrangements do not necessarily last. Shared care is dependent on the parents living in relatively close proximity to one another and, for school-age children, to the child's school. New partnerships or job opportunities for one or the other parent, or the need for one or both parents to move, may necessitate some adjustment to the shared care arrangements.

[93] In Australia, there have also been significant legislative reforms to encourage shared parenting, through the Family Law Amendment (Shared Parental Responsibility) Act 2006.

[94] There is a presumption in favour of equal shared parental responsibility. This can be rebutted in cases where there is a history of violence or abuse.

[95] This court has a duty to consider whether an equal time arrangement is in the best interests of the child and reasonably practicable. If equal time is not appropriate then the court must consider what is termed "substantial and significant time."

[96] The High Court of Australia has indicated that, unless the court makes a finding of fact that the arrangement for equal time or substantial and significant time is reasonably practicable, the court has no power to make such an order. See MRR v. GR (2010) 42 Fam. L. R. 531.

[97] The Full Court of the Family Court of Australia has summarized the legislative intent as follows:

In our view, it can be fairly said there is a legislative intent evinced in favour of substantial involvement of both parents in their children's lives, both as to parental responsibility and as to time spent with the children, subject to the need to protect children from harm, from abuse and family violence, and provided it is in their best interests and reasonably practicable. See Goode & Goode (2006) F.L.C. 93-286 para, 72.

[98] It may be that where shared care is imposed as a compromise in cases that are litigated through to trial, children are exposed to higher levels of conflict than would have been the case if a clearer choice between maternal and paternal care had been made. Writing in the Australian context, Jennifer McIntosh, a clinical psychologist, observes:

The attributes that increase the likelihood of shared arrangements working smoothly … are not typically characteristic of parents who litigate or who otherwise require significant support to determine and administer their post-separation parenting plans.

See Jennifer McIntosh, Legislating for Shared Parenting: Exploring Some Underlying Assumptions, 47 Fam. Ct Rev. 389, 393 (2009).

[99] Shared care is a risk factor for poor mental health where there is high, ongoing conflict between parents. Conversely, children seem most likely to benefit from shared care arrangements where there are low levels of hostility.

[100] Where there are destructive patterns of conflict, there are often dynamics that ought to indicate that children are not the focus of the arrangement. The desire of one parent for an equal time arrangement may be driven by concerns about fairness to that parent, or equality, rather than the needs or interests of the children. It may also be motivated by a desire to control or punish the other parent.

[101] As long as the parents live within a reasonable proximity to one another, there is a range of options for structuring parent-child contact, from limited involvement by the non-resident parent through to shared care.

[102] It is in the best interests of children to try to reduce their exposure to conflict between their parents. This requires a focus on how the best interests of children could be served by the processes of adjudication, as well as using the best interests test to determine the appropriate outcome of the dispute.

[103] The notion of a "final" order in children's cases, subject to an application for "custody modification" is problematic. While there are good reasons to ensure that decisions on primary residence are not lightly reopened, the idea that once-for-all adjudications can be made in children's cases is unrealistic given the dynamic, rather than static, nature of family life. Adjudication on parenting matters involve making decisions at a moment in time, based on the circumstances of that time. Those circumstances change constantly as children grow older.

[104] Of significance may be changes in the level of acrimony in the relationship with the other parent as time begins to heal the wounds of the separation and the initial grief, anger and resentment associated with relationship breakdown has subsided. What may be the best available option for a child when parents are in very high conflict may not be the best at a later time when the parents are capable of a more civil and cooperative relationship.

[105] The level of change that in fact occurs in parenting arrangements after separation is borne out by longitudinal research with parents. See Bruce Smyth & Lawrie Moloney, Changes in Patterns of Post-Separation Parenting Over Time: A Brief Review, 14 J. Fam. Studies 7 (2008).

[106] The applicant's principal submission is that joint custody is inappropriate. There is no realistic hope that these parties will be able to work together for the benefit of their child and without the difficulties of rules and demands. The applicant relies upon decisions such as Kaplanis v. Kaplanis, (2005), 10 R.F.L. (6th) 373, at para. 11, holding that joint custody is inappropriate where there is merely a "hope" that communication between the parties will improve. These cases indicate that there must be an evidentiary basis for belief that joint custody will be feasible.

[107] Is there an evidentiary basis in this case for a joint custody order?

[108] Small matters, idiosyncrasies and immature conduct at trial, are arguably large and destructive or, after all the evidence is considered, is the picture of this couple [that they are] relatively balanced ... emotionally and quite capable of working this matter through on a joint custody with equally shared access? See, e.g., Ursie v. Ursie, (2006), 32 R.F.L. (6th) 23 (Ont. C.A.), at paras. 18 and 19.

[109] Should these parties have joint decision-making in the important issues like health, education, extracurricular activities etc. and, in the event that the parties disagree, as most parents do from time to time, should they have to work it through like others do or alternatively hire a mediator?

[110] Does the court have the necessary evidence or information to impose any kind of mechanism?

[111] Public policy suggests that we: (1) assure that children will have frequent and continuing contact with parents who have shown the ability to act in the best interest of the child; (2) provide a safe, stable and non-violent environment for the child; and (3) encourage parents to share in the rights and duties of raising their child after the parents have separated or dissolved their marriage.

[112] Nothing constrains the court's broad discretion to determine, in light of all the circumstances, what custody arrangements serve the best interest of children. Each case must be evaluated on its own unique facts. Identified factors to consider are the nature of the child's existing contact with both parents, the child's age, community ties, and health and educational needs.

[113] The child's best interests may be best served by preserving the custodial relationship, by avoiding re-litigation of custody decisions, and by recognizing the close link between the best interests of the custodial parent and the best interests of the child.

[114] The child's best interest trumps that of either parent. However, to disavow the custodial parent's influence on his or her child ignores the fundamental relationship between parent and child.

[115] No bright-line test can be formulated. Cases affecting the parent-child relationship are intensely fact-driven, which is why courts have developed best-interest tests that consider and balance numerous factors. Unless one is to apply a fixed but arbitrary rule, the issue can be resolved only on a case-by-case basis. Because they are fact-sensitive, no two cases are the same and it is therefore essential that the court have the flexibility to deal with unforeseen fact patterns. Given the many relevant factors, courts have explicitly rejected formulaic tests.

[116] That the interests of the child are closely interwoven with those of the custodial parent is consistent with psychological studies of children of divorced or separated parents. Social science research has uniformly confirmed the simple principle that, in general, what is good for the custodial parent is good for the child.

[117] A child's best interests may be inextricably interwoven with the quality of life of the custodial parent, with whom the child lives and upon whom the child relies emotionally.

[118] The determination of the child's best interests cannot be made in a vacuum, but requires that the interests of the custodial parent also be taken into account.

[119] The United States Supreme Court has recognized that parents have a liberty interest in the care, custody and control of their children. Troxel v. Granville, 530 U.S. 57, 120 S. Ct. 2054, 2060-2061, 147 L. Ed. 2d 49 (2000). These parental interests are a fundamental right protected by the Due Process Clause of the Fourteenth Amendment to the United States Constitution. 120 S. Ct. at 2060.

[120] The liberty interest is the interest of the parents in the care, custody and control of their children and it is perhaps one of the oldest fundamental liberty interests recognized by the court. Troxel, 120 S. Ct. at 2060.

[121] More than 75 years ago, in Meyer v. Nebraska, 262 U.S. 390, 399, 401, 43 S. Ct. 625, 67 L. Ed. 1042 (1923), the court held that the "liberty" protected by the Due Process Clause includes the right of parents to "establish a home and bring up children" and "to control the education of their own." Two years later, in Pierce v. Society of Sisters, 268 U.S. 510, 534-535, 45 S. Ct. 571, 69 L. Ed. 1070 (1925), the court again held that the "liberty of parents and guardians" includes the right "to direct the upbringing and education of children under their control." The court explained in Pierce that "the child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations." Troxel, 120 S. Ct. at 2060; citing Pierce 268 U.S. at 535, 45 S. Ct. 571.

[122] The court returned to the subject in Prince v. Massachusetts, 321 U.S. 158, 64 S. Ct. 438, 88 L. Ed. 645 (1944), and again confirmed that there is a constitutional dimension to the right of parents to direct the upbringing of their children. "It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder." Id. at 166, 64 S. Ct. 442.

[123] These decisions have reflected Western civilization concepts of the family as a unit with broad parental authority over minor children. Santosky v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982) (discussing "the fundamental liberty interest of natural parents in the care, custody and management of their child"); Troxel, 120 S. Ct. at 2060, citing Glucksberg, 521 U.S. at 720, 117 S. Ct. 2258.

[124] In K. (V.) v S. (T.), 2011 ONSC 4305, 2011 ONSC 4305 (SCJ), Chappel J. described the various forms of custody orders:

68 The term "custody" refers to parental decision-making and authority respecting a child. As the Supreme Court of Canada stated in Young v. Young, (1993) 49 R.F.L. (3d) 117, "the custodial parent is responsible for the care and upbringing of the child, including decisions concerning the education, religion, health and well-being of the child. Traditionally, the options respecting custody which the courts have considered have been sole custody or joint custody, which accords both parents full equal parental control over and responsibility for all aspects the care, upbringing and education of the child. In more recent years, a third option has evolved, referred to as "parallel parenting."....

69 An award of sole custody to one parent grants decision-making rights to that parent, generally to the exclusion of the other parent to interfere in carrying out these rights and responsibilities. (Kruger v. Kruger (1979), 11 R.F.L. (2d) 52 (Ont. C.A.)) Where one parent is granted sole custody, the use of terms such as "physical custody" "shared custody" and "shared parenting" are often used to describe timesharing arrangements between the parties. These terms are some examples of terminology that can be confusing to litigants. If the intention is to grant the non-custodial parent visitation rights as well as the right to make inquiries and be given information about the child, the proper term to use is "access" as this term includes "the right to make inquiries, and to be given information, as to the health, education and welfare of the child." (Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) as amended, section 16(5)). The phrases "residence sharing" "parenting time" or "timesharing," or variations on those terms are more appropriate if the intention is for the non-custodial parent to simply have time with the child, without the more expanded consultation and information sharing rights that access encompasses.

[125] From a child's perspective, joint custody has an inherent appeal. It allows each parent to be actively involved in the child's life, and to have meaningful input with respect to important decisions. It may help ameliorate a child's sense of loss, and provide ongoing emotional reassurance that both parents still care – and care equally. Where separated parents can make joint custody work, the child – and the entire family unit – are likely to benefit.

[126] But joint custody will only work if the parents have the desire and the capacity to make it work. It is not a risk-free option. In the wrong family circumstances, a joint custody order can perpetuate hostilities, indecision, and power struggles. Children, particularly children already exposed to the upset of family breakdown, look to their parents for love, guidance, stability, protection, and consistency. They need to have confidence that adult decisions will be made quickly, properly and uneventfully.

[127] In Growen v. MacKenzie, 2008 ONCJ 170, [2008] O.J. No. 1439 (Ont C.J.), McSorley J. provided a helpful summary:

9 In Habel v. Hagedorn, 2005 ONCJ 242, [2005] O.J. No. 3556, I reviewed the law of Ontario on the issue of joint custody as set out by the Ontario Court of Appeal in Kaplanis v. Kaplanis, 10 R.F.L. (6th) 373 (Ont. C.A.), and Ladisa v. Ladisa, 11 R.F.L. (6th) 50 (Ont. C.A.). Although the Ontario Court of Appeal had reached different conclusions with respect to the issue of joint custody in each of these cases, the same legal analysis was applied to both. Several important guidelines can be taken from Appeal Justice Karen M. Weiler's reasons in Kaplanis v. Kaplanis, supra, and Ladisa v. Ladisa, supra. They are as follows:

(a) there is no default position in favour of joint custody in Ontario;

(b) each case is fact-based and discretion-driven; (c) past parenting experience both during cohabitation and after separation is of critical importance to a court's decision on whether to order shared parenting in any form; (d) the fact that one parent professes an inability to communicate with the other parent does not in and of itself mean that a joint custody order cannot be considered, but hoping that communication between the parties will improve once the litigation is over does not provide a sufficient basis for the making of an order for joint custody; (e) where there is no evidence of historical co-operation and appropriate communication between the parents, joint custody may be inappropriate.

10 In Kaplanis v. Kaplanis, supra, Appeal Justice Weiler found that there was no history of co-operative parenting or effective communication between the parents. Rather, she found there was evidence to the contrary on these points. Accordingly, she held that the trial judge erred in ordering joint custody and granted sole custody of the child to the mother who had been the child's primary caregiver. In Ladisa v. Ladisa, supra, on the other hand, Justice Weiler found that the trial judge had taken into account the history of co-parenting by the parties while they were married and the ties that the children had to both their parents in reaching the conclusion that joint custody was appropriate in the circumstances. Justice Weiler found that the trial judge was satisfied that, notwithstanding their differences, the parents could co-operate and had communicated effectively putting the interests of the children ahead of their own when it was necessary to do so. As a result, the Court of Appeal was not persuaded that the trial judge had erred in ordering joint custody.

11 In Habel v. Hagedorn, supra, the parties had disagreed on every fundamental issue concerning their child, including how the child was to be born and what his name should be. After the child's birth, the parties only lived together for a period of four months. During that four-month period, the father had not participated in any way in the care of the child, leaving it entirely to the mother. On one occasion when the mother asked the father to care for the child at night, he removed the child from the home, travelled to his mother's home where he handed the child over and promptly went to sleep.

12 According to the principles in Ladisa v. Ladisa, supra, and Kaplanis v. Kaplanis, supra, joint custody may be appropriate in three main types of cases. An order for joint custody works best when the parents agree to it, although such agreement is not a prerequisite to ordering joint custody. Joint custody may also be appropriate where neither parent has disentitled themselves to custody and where there is a positive history of co-operative parenting and effective, appropriate communication between the parents with respect to their child or children. Finally, joint custody may be ordered to preserve a parent's relationship with the child or children in cases where the parent who is the primary caregiver objects to joint custody without just cause, particularly where there is a risk that the objecting parent will try to marginalize and to limit the other parent's involvement with the child.

[128] More recently, in Hsiung v. Tsioutsioulas, 2011 ONCJ 517, 2011 ONCJ 517 (Ont. C. J.), Brownstone J. provided a very succinct summary at paragraph 17:

[17] I am acutely aware that an order for joint custody should not be made in cases where the parents have been unable or unwilling to demonstrate the capacity and willingness to communicate and to co-operate with each other and make decisions together in a civilized, child-focussed way: see Kaplanis v. Kaplanis, [supra]; Lawson v. Lawson, 81 O.R. (3d) 321 (Ont. C.A.); Graham v. Bruto, 2008 ONCA 260, 2008 ONCA 260, 165 A.C.W.S. (3d) 103, [2008] O.J. No. 1306 (Ont. C.A.). However, courts are increasingly prepared to order joint custody, even in high conflict cases, where satisfied that the parents have insulated the children from the conflict and sufficient protective factors are in place to ensure that the joint parental authority will be workable: see Ursic v. Ursic, [supra]; Cook v. Sacco, 217 O.A.C. 90, 32 R.F.L. (6th) 1, [2006] O.J. No. 4379 (Ont. C.A.); Andrade v. Kennelly, 2007 ONCA 898, 2007 ONCA 898, 46 R.F.L. (6th) 235, [2007] O.J. No. 5004 (Ont. C.A.); Bilopavlovic v. Bilopavlovic, 2008 ONCA 380, 2008 ONCA 380, 167 A.C.W.S. (3d) 931, [2008] O.J. No. 1854 (Ont. C.A.). Moreover, in recent years, there has been more willingness to grant joint custody where such an order is necessary to preserve the balance of power between the parents, especially where one parent has been primarily responsible for the conflictual relationship: see Garrow v. Woycheshen, 2008 ONCJ 686, 2008 ONCJ 686, 64 R.F.L. (6th) 459, [2008] O.J. No. 5422 (Ont. C.J.); Bromley v. Bromley, 2009 ONCA 355, 2009 ONCA 355, 176 A.C.W.S. (3d) 747, [2009] O.J. No. 1733 (Ont. C.A.); R.K.K. v. B.M.M. and R.S., 2009 YKSC 33, 2009 YKSC 33, 66 R.F.L. (6th) 281, [2009] Y.J. No. 54 (Yuk. S.C.)...

[129] Parallel parenting is a form or sub-category of joint custody where the court attempts to carve out the incidents of custody, providing each parent with an exclusive domain of responsibility so that one parent has the final say in the case of conflict. Despite the Court of Appeal's judgment in Kaplanis (supra), some courts have made parallel parenting orders even in high-conflict cases in circumstances, for example, where a sole custody order might facilitate parental alienation. The court must still be satisfied that that it is dealing with equally competent parents whose lack of cooperation does not affect the best interests of the child.

[130] In K. (V.) v S. (T.) (supra), Chappel J. discussed the concept of parallel parenting:

77 As noted previously, in recent years, the concept of "parallel parenting" has developed in Family Law practice and in the case-law. This phrase has been used to describe various types of parenting arrangements, and in fact there is some dispute in the academic literature about the precise definition of parallel parenting. (Hensel v. Hensel, 2007 CarswellOnt 7010 (Ont. S.C.J.)). In some circumstances, parties and the courts have used the phrase "parallel parenting" to describe what is essentially a joint custody regime with additional, more specific terms to address particular areas of decision-making. In other cases, parallel parenting is described as a "sub-category of joint custody" which involves granting each party separate, defined areas of parental decision-making authority independent of each other. For ease of reference, I will refer to this latter concept as "divided parallel parenting." This form of parallel parenting has been described by Rachel Birnbaum and Barbara J. Fidler, as quoted by Smith, J. in Hensel, in the following terms:

Parallel parenting as defined in the social science literature is not a manifestation of joint legal custody in the sense of the parents making major decisions jointly, but rather; parallel parenting involves each parent making the final decision about a different domain. In other words, each parent has sole custody, only over a different domain of decision-making. (Rachel Birnbaum and Barbara Jo Fidler, "Commentary on Epstein and Madsen's Joint Custody with a Vengeance: The Emergency of Parallel Parenting Orders".).

[131] In other cases, parallel parenting has taken the form of both parents being independently granted the right to make major decisions respecting the child in all major areas of parental authority while the child is with them, without consent from the other parent. (See Mol v. Mol, 1997 CarswellOnt 3693 (Ont. Gen. Div.); Ursic v. Ursic, supra, (2006) 32 R.F.L. (6th) 23 (Ont C.A.).)

[132] Parallel parenting arrangements have been resorted to in practice and by trial courts to resolve situations where both parents have been involved with the child and wish to retain decision-making rights, but the conflict between them is such that a joint custody order is not feasible or in the child's best interests. See (M. (T.J.) v. M. (P.G.), 2002 CarswellOnt 356 (Ont. S.C.J.)). There are many merits to a parallel parenting regime, in appropriate cases. It gives both the child and the parents the benefit of maintaining each parent as a meaningful player in the child's life, over and above timesharing with the child. The importance of this factor from an emotional standpoint cannot be underestimated where a family is in turmoil because of a breakdown in the parents' relationship. In addition, by delineating clear areas of decision-making between the parties, parallel parenting has the potential in appropriate cases to disengage the parties and reduce parental conflict.

[133] In Ursic v. Ursic (supra) the Ontario Court of Appeal upheld a "joint custody order in the parallel parenting mode" which granted both parties full decision-making rights in the areas of health, dental care, education and religious instruction, with this decision-making to be exercised by the parties independently of each other. The court concluded that despite conflict, both parents were loving, competent and beneficially involved in the child's life. The court was concerned that if the mother was awarded sole custody she would unreasonably and deliberately cut the father and his family out of the child's life which was against the child's best interests. At paragraph 24 the court stated:

"Also, importantly, the trial judge did not merely order joint custody. He included with it a parallel parenting order. Many trial courts have recognized that joint custody under a parallel parenting regime may be suitable where both parents love the child and should play an active role in the child's life, yet have difficulty communicating or reaching a consensus on the child's upbringing. See T.J.M. v. P.G.M. (Ont. S.C.J.) [supra] and Mol v. Mol, [1997] O.J. No. 4060) (Ont S.C.J.). The trial judge viewed parallel parenting to be suitable in this case, and I am not persuaded that he erred in ordering it."

[134] On the other hand, in Roy v. Roy, 2006 CarswellOnt 2898 the Ontario Court of Appeal overturned a trial judge's parallel parenting order which did not entail a dispute resolution formula for major decisions. The court held that as with traditional joint custody, parallel parenting also requires a basic level of co-operation and effective communication between the parties.

[135] In Andrade v. Kennelly, 2007 Carswell 8271 the Court of Appeal affirmed a trial judge's parallel parenting order which granted the mother decision-making authority in relation to education, and the father decision-making in relation to medical care. Following their separation, the mother limited the father's access to the children to visits inside her home until the father brought a motion for unsupervised access. The mother's interim motion for sole custody was dismissed, and the trial judge ordered parallel parenting with the children residing primarily with the father, setting out a detailed list of ground rules for the imposed parenting regime. Despite the highly conflictual nature of the parental relationship, the court held that both parents loved the child and should play an active role. Giving each parent distinct decision-making authority was viewed as a practical way of keeping them both involved, while reducing opportunities for conflict.

[136] In Cox v. Down, [2003] O.J. No. 4371, the Ontario Court of Appeal upheld the appeal judgment of Templeton J. which had overturned a trial judge's sole custody order, and imposed parallel parenting. Justice Templeton held that parallel parenting did not require a cooperative working relationship or even good communication. The objective of parallel parenting was to give the parents equal status, each with distinct rights and responsibilities in relation to specific topics.

[137] In Moyer v. Douglas [2006] OJ No 5124 (Ont. S.C.J.) Perell J. ordered parallel parenting despite finding that joint custody was not an option since the parents could not work together in their children's best interests. Both parents were perceived as being motivated to parent in the best interests of the children, but they had difficulty cooperating with one another. Justice Perell found that parallel parenting (with a detailed parenting schedule) was a viable solution as it did not require the same co-operation that joint custody demanded. Each parent was given an exclusive domain of responsibility, and in the case of a conflict, one parent had the final say.

[138] More recently in Hajkova v Romany, 2011 ONSC 2850, 2011 ONSC 2850, 2011 CarswellOnt 3237 (SCJ) Hambly J. awarded parallel parenting where the parents were incompatible with each other but there was no evidence of conflict over important decisions.

[139] In the recent decision of Scervino v Scervino, 2011 ONSC 4246, 2011 ONSC 4246 (SCJ) Walters J. awarded parallel parenting where two separated parents were capable and did not disagree with respect to important decisions about their children's lives. The Court found some evidence of alienating behavior by the father, and warned that if this behavior continued, the mother's relationship with the children would continue to deteriorate. However, since the parents agreed on schooling, religious practice, extra-curricular activities, and medical care, parallel parenting was seen as viable.

[140] Courts have declined to order parallel parenting where the parents were unable to agree on important decisions and their lack of cooperation meant that parallel parenting would cause conflict for the children. In Graham v Bruto, [2007] OJ No 656 (Ont. S.C.J.) aff'd at 2008 ONCA 260, 2008 ONCA 260 (ON CA) the trial judge found that a joint custody and parallel parenting regime made little sense since it would put the "children in the middle of conflict every few days" and "the parents' inability to cooperate in such cases may result in frequent visits to court which would present a greater opportunity for conflict. Both parties sought sole custody of their two young children. They were unable to agree on many important decisions such as school, health and dental care, religious training, method of communication, summer scheduling and use of a parenting coordinator, and they required frequent court intervention.

[141] In Perron v. Perron, 2010 ONSC 1482 (Ont S.C.J.) Whitten J. declined to consider parallel parenting as an option where two separated parents were unable to agree on the language of their children's education. Justice Whitten found that it is impossible to separate out the fulfillment of language rights from what is in the best interests of the children, and that those interests have to be respected by the parents. Although both parents were capable, the children's father demonstrated a tendency to isolate the mother by means of his portrayal of himself to the children as the "victim" in the separation situation and by making disparaging remarks. The Court did not trust the father to be balanced and objective with respect to the parental and cultural rights of the mother, and so the mother was granted custody.

[142] In Madott v Macorig, 2010 ONSC 5458, [2010] OJ No 4371 (SCJ) Blishen J. held that in situations where parents have been distrustful, hostile and uncooperative, joint custody can still be an appropriate disposition if crafted as "parallel parenting" instead of "cooperative parenting." The parents' relationship lacked trust and the mother had tried to marginalize the father and prevent access to the child. Despite this conduct, both father and mother had an ability to communicate with each other through text messaging and would place the child's needs and interests first.

[143] In Garrow v Woycheshen, 2008 ONCJ 686, 2008 ONCJ 686 (SCJ) McKay J. held that the best interests of the child required a parallel parenting regime to ensure the father remained involved in the child's life. In rejecting an award of sole custody the Court noted that while both parties were motivated and capable parents, there was a real risk the mother would minimize or eliminate the father's involvement with the child.

[144] In Gordon v. Goertz, [1996] 2 S.C.R. 27, [1996] S.C.J. No. 52 (QL), McLachlin J., as she then was, sets out a two-stage inquiry for varying custody orders (see para. 9).

[145] The first step is establishing a material change of circumstances of the child since the last custody order was made:

Before the court can consider the merits of the application for variation, it must be satisfied there has been a material change in the circumstances of the child since the last custody order was made. Section 17(5) provides that the court shall not vary a custody or access order absent a change in the "condition, means, needs or other circumstances of the child". Accordingly, if the applicant is unable to show the existence of a material change, the inquiry can go no farther: Wilson v. Grassick, (1994), 2 R.F.L. (4th) 291 (Sask. C.A.). [para.10]

[146] Next, McLachlin J. touches upon the factual foundation required to establish a material change:

What suffices to establish a material change in the circumstances of the child? Change alone is not enough; the change must have altered the child's needs or the ability of the parents to meet those needs in a fundamental way: See Watson v. Watson, (1991), 35 R.F.L. (3d) 169 (B.C.S.C.).

[147] The question is whether the previous order might have been different had the circumstances now existing prevailed earlier: MacCallum v. MacCallum (1976), 30 R.F.L. 32 (P.E.I.S.C.). Moreover, the change should represent a distinct departure from what the court could reasonably have anticipated in making the previous order. "What the court is seeking to isolate are those factors which were not likely to occur at the time the proceedings took place": J. G. McLeod, Child Custody Law and Practice (1992), at p. 11-5.

[148] It follows that before entering on the merits of an application to vary a custody order the judge must be satisfied of: (1) a change in the condition, means, needs or circumstances of the child and/or the ability of the parents to meet the needs of the child; (2) which materially affects the child; and (3) which was either not foreseen or could not have been reasonably contemplated by the judge who made the initial order. [paras. 12-13]

[149] The second step of McLachlin J.'s test is that of the best interests of the child. In C.M.B.E. v. D.J.E., 2006 NBCA 88, 2006 NBCA 88, 304 N.B.R. (2d) 191, the Court made the following related observations:

The analysis to be employed when determining the best interests of the child in custody and access matters is addressed by McLachlin J., as she then was, in Young v. Young, [1993] 4 S.C.R. 3, [1993] S.C.J. No. 112 (QL):

First, the "best interests of the child" test is the only test. The express wording of s. 16(8) of the Divorce Act requires the court to look only at the best interests of the child in making orders of custody and access. This means that parental preferences and "rights" play no role.

Second, the test is broad. Parliament has recognized that the variety of circumstances which may arise in disputes over custody and access is so diverse that predetermined rules, designed to resolve certain types of disputes in advance, may not be useful. Rather, it has been left to the judge to decide what is in the "best interests of the child", by reference to the "condition, means, needs and other circumstances" of the child.

The judicial task is not one of pure discretion. By embodying the "best interests" test in legislation and by setting out general factors to be considered, Parliament has established a legal test, albeit a flexible one. Like all legal tests, it is to be applied according to the evidence in the case, viewed objectively. There is no room for the judge's personal predilections and prejudices. The judge's duty is to apply the law.

Third, s. 16(10) provides that in making an order, the court shall give effect "to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child." This is significant. It stands as the only specific factor which Parliament has seen fit to single out as being something which the judge must consider. By mentioning this factor, Parliament has expressed its opinion that contact with each parent is valuable, and that the judge should ensure that this contact is maximized. The modifying phrase "as is consistent with the best interests of the child" means that the goal of maximum contact of each parent with the child is not absolute. To the extent that contact conflicts with the best interests of the child, it may be restricted. But only to that extent. Parliament's decision to maintain maximum contact between the child and both parents is amply supported by the literature, which suggests that children benefit from continued access: Michael Rutter, Maternal Deprivation Reassessed (1981), Robin Benians, "Preserving Parental Contact: a Factor in Promoting Healthy Growth and Development in Children", in Jo Tunnard, ed., Fostering Parental Contact: Arguments in Favour of Preserving Contact Between Children in Care and Their Families (1982). [paras. 202-204]

[150] McLachlin J. then goes on to make the following observation on the issue of access:

I would summarize the effect of the provisions of the Divorce Act on matters of access as follows. The ultimate test in all cases is the best interests of the child. This is a positive test, encompassing a wide variety of factors. One of the factors which the judge seeking to determine what is in the best interests of the child must have regard to is the desirability of maximizing contact between the child and each parent. But in the final analysis, decisions on access must reflect what is in the best interests of the child. [para. 206]

[151] For joint custody to function properly for the benefit of a child, the parties must both be involved in the child's life.

[152] There is no authority for a Justice to order a party to involuntarily submit to parental coordination, or to dispense with one's consent to such an agreement M.(C.A.) v. M.(D.), (2003), CarswellOnt 3606 (Ont. C.A.).

Statutory Authority

[153] I have considered the evidence and the options within the context of section 24 of the Children's Law Reform Act, R.S.O 1990, c. C.12 ("CLRA") which sets out the considerations relevant to the determination of custody or access:

Absent concern about such issues as abuse, each parent is expected to support their child's relationship with the other parent, and to take steps to ensure that children have a positive attitude about that relationship. See Ayotte v. Bishop, [1996] O.J. 4810 (OCJ). Where there are equally qualified parents, who would best facilitate access is a major factor. Huisman v. Stafaniw, (1997), 26 RFL (4th) 406.

[154] "For most children, fundamental to their identity is an ability to love and accept love from each available parent." See R. Getliffe-Grant 1 2006 CarswellBC 3233 (BCSC). Cox v. Stephen, (2003) 2004 SCC 22, 47 RFL 5th (C.A.). A determination of what is in a child's best interests is specific to the needs and circumstances of that child. It would be wrong to decide how best to address the problem on the basis of general evidence as to what works in cases of parental alienation.

[155] In terms of the best interests, useful questions to ask were addressed in C. (J.R.) v. C. (S.J.), 2010 CarswellNS 126 (N.S. S.C.):

What does the parent know about child development and is there evidence indicating what is suggested to be known has been or will be put into practice?

Is there a good temperamental match between the child and the parent?

Can the parent set boundaries for the child and does the child accept those restrictions without the need for the parent to resort to harsh discipline?

Does the child respond to the parent's attempt to comfort or guide the child when the child is unhappy, hurt, lonely, anxious or afraid?

Is the parent empathetic toward the child? Does the parent enjoy and understand the child as an individual or is the parent primarily seeking gratification for his or her own personal needs?

Can the parent examine the proposed parenting plan through the child's eyes and reflect what aspects of that plan may cause problems for, or be resisted by, the child?

Has the parent made changes in his or her life or behaviour to meet the child's needs or is he or she prepared to do so for the welfare of the child?

[156] Custody and access decisions are inherently an exercise in discretion. Case-by-case consideration of the unique circumstances of each child is the hallmark of the process. This discretion vested in the trial judge enables a balanced evaluation of the best interests of the child and permits courts to respond to the spectrum of factors which can both positively and negatively affect a child. Van de Perre v. Edwards, 2001 SCC 60, 19 R.F.L. (5th) 396 (S.C.C.).

[157] Parents are in conflict who argue a lot or need to disengage in their parenting. Even if you can sometimes parent cooperatively, you find it to be difficult and are in conflict too much of the time. Conflicted parenting is the worst for children, who are often in the middle of the conflicts.

[158] Whatever the specific source, parents' inability to separate their parental roles from prior conflict in the marriage is often a significant contribution to the conflict after separation. This conflict is perhaps the most important variable in determining how the child adjusts. The first step in this process is to learn to disengage from the other parent. Disengagement is one of the possible styles of parenting after separation. If you disengage, it is as if you have developed a "demilitarized zone" around your children and have little or no contact with the other parent. When you disengage, you will avoid contact with the other parent so that conflict cannot develop. You must do this first to reduce the conflict and before you can move on to the next style of parenting.

[159] David comes from a highly disruptive family environment, although he has two parents who individually love him. His parents continually find fault with one another and have been engaged in ongoing conflicts since day one, which must impact negatively on David. It is obvious that David is very attached to both his mother and father and there is a clear bond between him and each of them. I find that both parties have demonstrated very poor judgment in exposing David to their adult conflicts and in failing appropriately to communicate or collaborate on her care.

[160] Sole custody is the only sensible option for David. History does not justify joint parenting. Their inability to effectively communicate and collaborate in David's best interest leads me to the conclusion that they are unlikely, in the near future, without great effort, to achieve a sufficient level of co-operation between them on issues surrounding his parenting. David cannot wait. While I have considered some form of parallel parenting, in my view that is not a viable here. There is simply no justification for shared or parallel parenting. Ms. Moreira and Mr. Garcia Dominguez have not yet demonstrated the individual and collective maturity and flexibility consistently to speak and focus effectively with one another in a non-confrontational manner to develop and achieve common parental goals in David's life. They do not now have a co-operative mutual commitment to communicate fully, freely and easily with one another. I have no confidence in their current collective ability to change without counselling.

[161] It is my clear impression that Mr. Garcia Dominguez sees himself as a victim. His focus was often on what things were done to him, rather than dealing with information relating to David and his best interests. He selected incidents involving conflict and focused an inordinate amount of attention on those events, perhaps magnifying them out of all reasonable proportion.

[162] There is little dispute that Mr. Garcia Dominguez pays a great deal of attention to David.

[163] That, however, does not mean that it is in the best interests of David that the parties have joint custody. Such an arrangement would require the parties to cooperate with each other on issues such as parenting techniques, discipline and educational issues. It would require trust, respect for each other as parents, and it would require a flexible attitude. It would require each of the parents to be supportive of the other's efforts to best provide for David. None of these, I must find, exists between these parties.

[164] Not only are the parties unable to co-operate, they are unable to properly communicate with each other.

[165] Another major contra-indicator is Mr. Garcia Dominguez's attitude toward the applicant. He disrespects her. He undermines her parenting and her authority, and I find that he does this in a flagrant manner.

[166] In High-conflict Separation and Divorce: Options for Consideration, a paper prepared for the Department of Justice, Canada, by Glenn A. Gilmour, Mr. Gilmour summarizes the factors which contribute to impasse and conflict. These factors were identified by Johnston, Campbell and Tall (1985) using data on 80 divorcing families with 100 children, to develop a typology of factors contributing to impasse in divorce. Mr. Gilmour's summary of these factors is worth quoting in full:

At the external level are unholy alliances and coalitions – the dispute can be solidified by the support of friends, kin and helping professionals. These unholy alliances and coalitions include extended kin involvement and tribal warfare, when the extended family (such as the spouse's parents) took it upon themselves to right the wrongs of the separation; coalitions with helping professionals, in which alliances with therapists and counsellors fuelled the fight; and involvement with the legal process where, for example, adversarial attorneys take on the case and engage in tactical warfare with each other. Interactional elements include the legacy of a destructive marital relationship, in which each spouse, while married, had come to view the other in limited, negative terms; and traumatic or ambivalent separations in which the ex-spouses view each other in a polarized negative light or seem to maintain an idealized image of the other and are engaged in a never-ending search for ways of holding together their shattered dreams. Intrapsychic elements include the conflict as a defence against a narcissistic insult, where the central reason for the dispute is to salvage injured self-esteem or more primitive narcissistic grandiosity; a defence against experiencing a sense of loss, to ward off the emptiness that came from relinquishing each other, a need to ward off the helplessness brought about by the desertion of the other spouse; and disputes that were a defence against the parents' guilt over feeling that they could have tried harder to save the marriage. The majority of parents in this study presented traits of character pathology, some clearly having personality disorders. In these cases, the motivation for the dispute derived more from their enduring personality characteristics, such as a need to fight, than from the experience of separation or the needs of the child. The children in these families took on a magnified importance because their parents got a great deal of emotional support and companionship from them.

[167] Some of these factors are visible at the tip of the iceberg of this conflict-laden dispute.

[168] Too many parents in high-conflict matrimonial disputes are or appear to be totally oblivious to the potential adverse impact on children of high conflict. Too many parents in high-conflict matrimonial disputes are so self-absorbed and so absorbed in conflict that the best interests of their children are effectively ignored. Of course, they do not always perceive that this is the case. Sometimes, they simply may not care.

[169] Often the war between the parents is waged in the name of the children and – according to the parents – war is waged for the best interests of their children. Winning is said to be equated with the children's best interest. But since "winning" is about the parents winning against each other, usually winning is not the same as the children's best interests. Winning is the objective of war. It is the war that is the most hurtful to children.

[170] The amount of research in this area is remarkable. It is neither possible nor practical for most of us to endeavour to acquire the knowledge and expertise of professional counsellors, psychiatrists and psychologists and other family and childcare professionals who are best suited to give advice in a particular case. However, as members of the judicial system, we can attempt to help parents see the potential adverse impact on children of their often selfish, self-indulgent, unbridled, hurtful and relentless parental conflict. Then we might be more successful in having such parents become more aware of the implications of their conduct and in having them understand the benefits of seeking trained, professional help.

[171] Children exposed to violence and high conflict bear an acutely heightened risk of repeating the cycle of conflicted and abusive relationships as they grow up and try to form families of their own. These children often are afraid of intimate relationships and lack the abilities to manage conflict themselves. In many high-conflict families, this case being an example, there may be a multitude of problems. The parties are angry, distrustful, often contemptuous of the other parent.

[172] The best-interest standard represents a willingness on the part of the court and the law to consider children on a case-by-case basis rather than adjudicating children as a class or a homogeneous grouping with identical needs and situations.

[173] Courts can only go so far in making parents communicate about their children. See Barton v. Hirshberg, 767 A.2d 874 (Md. Ct. Spec. App. 2001). Equal contact does not resolve conflict. If the parents are in conflict, children often suffer more in joint custody arrangements. Inappropriate use of joint custody may "cement rather than resolve chronic hostility and condemn the child to living with two tense, angry parents indefinitely."

[174] Even without a preference or presumption, courts must value stability and continuity of care and often award primary custody to the parent who has provided the most consistent parenting.

[175] Several important guidelines can be taken from Justice Weiler's reasons in Kaplanis v. Kaplanis, supra, and Ladisa v. Ladisa, supra. They are as follows:

(a) there is no default position in favour of joint custody in Ontario;

(b) each case is fact-based and discretion-driven;

(c) past parenting experience both during cohabitation and after separation is of critical importance to a court's decision on whether to order shared parenting in any form;

(d) the fact that one parent professes an inability to communicate with the other parent does not in and of itself mean that a joint custody order cannot be considered, but hoping that communication between the parties will improve once the litigation is hoping that communication between the parties will improve once the litigation is over does not provide a sufficient basis for the making of an order for joint custody;

(e) where there is no evidence of historical co-operation and appropriate communication between the parents, joint custody may be inappropriate.

[176] In both of the decisions in Baker v. Baker, (1979), 23 O.R. (2d) 391, 8 R.F.L. (2d) 236, and Kruger v. Kruger, (1979), 25 O.R. (2d) 673, [1979] O.J. No. 4343, some 30 years ago, the court had taken the position that joint custody was an "exceptional" order, requiring circumstances where the court had evidence that the parents could an would co-operate on childcare matters. What has diminished over time is the court's language of "exceptionality."

[177] What has not diminished over time is the court's attention to the importance of not casting a child adrift in a sea of parental discord throughout childhood and adolescence, in the name of "shared" parenting.

[178] With respect to subsection 24(3), having regard to the evidence of the parents, they both spent an inordinate amount of time outlining past conduct and each other's past shortcomings. I find very little to be relevant with respect to the other parent's present ability to parent. I find that I must primarily focus on the respective parties' present conduct, their present lifestyles, their present parenting capabilities, their present ability to provide a stable home environment and their present ability to meet David's physical, educational and emotional needs.

[179] The factors to be considered in custody claims between a parent were considered in the seminal case of King v. Low and Low, [1985] 1 S.C.R. 87, 57 N.R. 17, [1985] N.W.T.R. 101, 58 A.R. 275, [1985] 3 W.W.R. 1, 16 D.L.R. (4th) 576, 44 R.F.L. (2d) 113, as follows:

I would therefore hold that in the case at bar the dominant consideration to which all other considerations must remain subordinate must be the welfare of the child. This is not to say that the question of custody will be determined by weighing the economic circumstances of the contending parties. The matter will not be determined solely on the basis of the physical comfort and material advantages that may be available in the home of one contender or the other. The welfare of the child must be decided on a consideration of these and all other relevant factors, including the general psychological, spiritual and emotional welfare of the child. It must be the aim of the court, when resolving disputes between rival claimants for the custody of a child, to choose the course which will best provide for the healthy growth, development and education of the child so that he will be equipped to face the problems of life as a mature adult. Parental claims must not be lightly set aside, and they are entitled to serious consideration in reaching any conclusion. Where it is clear that the welfare of the child requires it, however, they must be set aside.

[180] With respect to s. 24(2)(a), on the evidence, I am persuaded that the love, affection and emotional ties between David and both his parents are equally strong. Both these parents love her deeply and wish the best for him. He is attached to both parents and looks to them to meet his needs. It was clear from all of the evidence that he needs both his parents emotionally.

[181] With respect to s. 24(2)(b), it is clear that David has been caught in the middle of his parents' conflict. On the evidence, I am convinced that neither parent has been particularly good at protecting him from the conflict. Both sets of grandparents have either directly or indirectly been exposed to the conflict involving David.

[182] With respect to s. 24(2)(c), David has lived with his mother since separation. The matter is now being decided on its merits for the first time. Homsi v. Zaya, 2009 ONCA 322, 248 O.A.C., 168, 65 R.F.L. (6th) 17, [2009], O.J. No. 1552 stands for the proposition that status quo is only one factor among many. Preserving the status quo may be less important in final determination of custody than in interim custodial determinations. See Lim v. Mullin, (1997), 69 A.C.W.S. (3d) 313, [1997] O.J. No. 561, 24 O.T.C. 352.

[183] Applying those principles to this case, I find that the applicant mother has always been David's primary caretaker. The applicant has always been in David's life and has made all of the decisions concerning him. There will be, therefore, an order of sole custody to the applicant.

[184] With respect to s. 24(2)(d), I was persuaded on the evidence that both parents are able and willing to provide David with the guidance, education, and necessities of life to meet his needs. There is no credible evidence that the applicant is not or has not been able or willing to meet David's needs.

[185] All of the evidence supports the finding that the mother has ensured that David's medical and educational needs have been met and that she has the understanding, ability and willingness to ensure these needs are met in the future.

[186] There is no evidence that David has, in any way, suffered or been deprived of the necessities of life while residing with his mother.

[187] The issue of the ability and willingness of the parties to meet David's emotional needs is concerning. Both the mother and father have failed to control the present conflict in David's presence and to protect him from that conflict.

[188] David's emotional needs will not be met until the current conflict between the people he loves is resolved.

[189] I am confident that once this litigation is, hopefully, completed and the mother is secure in her role, she will be able to even better appreciate and meet David's emotional needs. David could arguably benefit from counselling to assist him in dealing with the emotional upheaval in his life and with the conflict he has had to witness.

[190] Throughout their testimony, both the applicant and the respondent attempted to denigrate the other in one way or another and to minimize the parental contribution and involvement of the other parent. Despite that, and based on the more objective evidence, I must conclude that both of them have been responsive parents.

[191] At the trial, both parents verbalized many complaints they harbour against the other.

[192] After examining all of the evidence, in the final analysis, I am convinced that David needs the resources and help that both these parents can provide him.

[193] With respect to s. 24 (2)(e), the future plans for the care of David have been presented by both parents. David's needs seemed almost an afterthought. The respondent's lack of respect for the applicant is best articulated in his evidence.

[194] Based on the above considerations and facts as brought out in the evidence, I am convinced, on a balance of probabilities, that it is in the best interests of David to spend as much time with the respondent as is reasonable.

[195] All major decision-making authority, relating to the health, schooling, religion, residence and well-being of David, is to reside with the applicant after the exchange of complete information and consultation. All communication between the parents shall be in writing, by way of a communication book or by e-mail, except in an emergency. The parents shall not use David for communication between them. The communication between the parents shall be limited to matters relating to the health and well-being of David, the arrangements for events and activities for him, and details surrounding access changeovers. The parents may, and it is strongly encouraged, choose to pursue mediation in their decision-making process.

ACCESS

[196] The respondent, Eduardo Garcia Dominguez, shall have access with David as follows:

Weekly Access

On a rotating three-week schedule:

a. Weeks One and Two: Every Tuesday and Thursday from pick-up at the daycare centre between 3:30 and 4:00 p.m. to drop-off at the applicant's home at 7:30 p.m., and on Friday from pick-up at the daycare centre between 3:30 and 4:00 p.m. to drop-off at the applicant's home on Sunday at 7:30 p.m.

b. Week Three: Every Tuesday and Thursday from pick-up at the daycare centre between 3:30 and 4:00 p.m. to drop-off at the applicant's home at 7:30 p.m.

c. PA days/Statutory holidays: When access falls on a professional development (PA) day or a long weekend, then access with each respective parent is to be extended to include the statutory holiday or PA day. The respondent shall return David to the lobby of the applicant's building at 7:30 p.m.

d. Such other and further access as may be agreed upon between the parties.

Holiday Schedule

a. March Break: The applicant shall have March Break with David in even-numbered years, commencing in 2012, and the respondent in odd-numbered years, commencing 2013. March Break access will encompass the Monday to Friday of the March Break and the surrounding weekends will be according to the Weekly Access regime. If the parent who has access with David during March Break wishes to go on vacation out of Toronto with David, the parent shall be able to leave on vacation with David on the Friday after school. The other parent shall not unreasonably withhold consent to such travel.

b. Easter weekend: David shall reside with the applicant in odd-numbered years, commencing in 2013, and the respondent in even-numbered years, commencing 2012. When the respondent has David for Easter weekend, pick-up shall be on Good Friday at 9:00 a.m. and drop-off at Easter Monday at 7:30 p.m. to the lobby of the applicant's building. Thereafter, the regular access schedule shall resume.

c. Father's Day: David shall reside with the respondent on Father's Day from Sunday at 9:00 a.m. to 7:30 p.m. with pick-up, if necessary, and drop-off to the lobby of the applicant's building.

d. Mother's Day: David shall reside with the applicant on Mother's Day. If this is the respondent's weekend, he shall drop David off in the lobby of the applicant's building on Sunday at 9:00 a.m.

e. Summer vacation: David shall spend two weeks with each parent in July and two weeks with each parent in August of each year. The parents are to notify each other of their proposed two weeks with David by June 1. If a conflict arises in the weeks chosen, then the applicant's choice shall take precedence in odd-numbered years and the respondent's choice shall take precedence in even-numbered years, the regular access schedule to resume thereafter. The two weeks chosen by each parent must be consecutive weeks.

f. Thanksgiving Day: David shall be with the applicant in even-numbered years and with the respondent in odd-numbered years on Thanksgiving Monday from 9:00 a.m. to 7:30 p.m. If this is the respondent's Thanksgiving, he shall drop David off in the lobby of the applicant's building at 7:30 p.m. that day. Thereafter, the regular access schedule shall resume.

g. Christmas Break: The parties shall share time with David during Christmas Break. David shall reside with the applicant in odd-numbered years and with the respondent in even-numbered years. The total number of vacation days shall be divided by two in order that each party enjoy one-half of the vacation. The child shall be with the applicant in odd-numbered years from the last day of school, for the first half of the Christmas Break. David shall be picked up by the respondent on the first day of the second half at 9:00 a.m. in the lobby of the applicant's building and returned to the same place the day before classes start at 7:30 p.m. Thereafter, the regular access schedule shall resume.

Telephone Access

The parties shall allow each other telephone access at reasonable hours and no later than 7:30 p.m. during their parenting time.

All other holidays to be shared between the parties with a view to sharing them on an equitable basis with David. Thereafter, the regular access schedule shall resume.

Mobility

Each party shall be free to relocate within 4 km of their current address without the consent of the other party. The child shall attend school in the area where he resides with the applicant.

Travel

The parties shall be free to travel with David during their time with him. The applicant shall be allowed to travel with the child out of the jurisdiction without the consent of the respondent as long as it is her time to spend with David. The respondent shall likewise be allowed to travel outside the jurisdiction with David during his time with him. If either party decides to travel outside the jurisdiction, the parent who is travelling with David shall provide to the other parent, at least 14 days in advance, a complete travel itinerary including dates, telephone numbers and addresses, and other contact information where the child can be reached.

Passport

The applicant shall be allowed to obtain a passport for the child without the consent of the respondent. The applicant will hold David's passport.

Travel Alone

If either parent wishes to travel alone when it is their time with the child and they are not available to exercise their access, then that parent shall provide to the other party at least 14 days' notice of this. This does not apply to sudden emergency situations.

Right of First Refusal

If the parent who is scheduled to have David in his or her care and control is unable to care for him for a period of forty-eight (48) hours or more, the other parent will be given the opportunity to care for David. If the notified parent cannot care for him, the notifying parent will make appropriate child care arrangements at his or her own expense.

Urgent Communications

For anything of a truly time-sensitive or urgent nature, the parties shall call or text and a response shall be provided as soon as the parent receives that communication.

Responding to Communications

The parties shall check for text or e-mails at least once a day. The parties shall respond to written inquiries within 24 hours. If a reply to a question and/or a request for change requires more time than the agreed-to response time, an e-mail shall be sent advising that the requested information cannot reasonably be ascertained by then and advising when a response can be expected.

Dealing with Third Parties

Both parties shall be equally entitled to communicate with all educational, medical, dental, recreational and social service providers for the child. Each party shall keep the other fully informed of any communications they have with such service providers and the particulars of any new providers. Both parties shall be entitled to attend all meetings with such providers. Both parties shall execute consents or authorizations which any professionals or service providers may require, to facilitate equal communication and access to information by both parents.

Non-Encroachment on Time

Neither parent shall make plans for the child when he is scheduled to be with the other parent, without first having the written consent of the other parent. In addition, the parents shall canvass proposed and/or potential changes to the schedule first with the other parent and prior to mentioning anything to David about a change and/or a social activity.

No Make-Up Time

There shall be no make-up time for missed parenting time (regular or holiday time) unless both parents agree to this in advance and it is confirmed in writing.

Attendance at Events

Each parent may attend any extracurricular activities open to the public, including sports practices, games, competitions, concerts, performances, recitals, etc. The parents shall remain cordial during these occasions and not use them as an opportunity to discuss child-related arrangements and issues. The parent who would normally have David at the time shall assume responsibility and control over the child. The other parent may briefly greet or encourage the child, but otherwise observe from a reasonable distance.

Scheduling Changes

If a change in the regular and/or holiday schedule is requested due to a special event, celebration or unforeseen circumstances (e.g., family celebration, work demand or emergency, etc.), a written request shall be provided to the other parent in order to permit that parent to make a reasonable effort to accommodate the request. A response shall be provided within 48 hours of receiving the request. The request and change shall be confirmed in writing.

Contact Names

Both parents shall be listed as contact persons with all medical, educational, recreational and social agencies involved with David.

Clothing

To minimize what David must travel with, both parents shall have sufficient clothing for him and these items shall not travel back and forth. However, outer wear, such as winter coat and boots, shall travel back and forth between households.

Child's Name

Neither party shall change the child's name, either formally or informally, without the written consent of the other party or further court order.

Emergency Contact Person

Each parent shall designate a contact person of his or her choice should the other parent not be able to be contacted in case of emergency.

Documents

The parties shall provide one another with copies of all relevant child-related documents, such as OHIP care, birth certificate, SIN documents etc. In even-numbered years, the applicant shall retain physical possession of the original documents. In odd-numbered years, the respondent shall retain physical possession of the original documents. Either party travelling outside of Canada with the child, as provided herein, shall be entitled to have the child's original documents for the duration of the trip.

Personal Disclosure

The parties shall notify one another immediately upon experiencing any change in their employment status. They shall keep one another fully informed of any changes to their residential address or telephone number. While telephone contact directly between the parties shall only be utilized in the event of urgent situations, this restriction shall not impede the ability of the parties to facilitate telephone access between parent and child, as described above.

CHILD SUPPORT

[197] The respondent shall pay child support to the applicant for David as follows:

a. From January 1 to December 31, 2009, the sum of $385.00 per month based on his income of $41,882.82 for 2009;

b. From January 1 to December 31, 2010, the sum of $372.00 per month based on his income of $40,543 for 2010;

c. From January 1 to December 31, 2011, the sum of $378.00 per month based on his income of $41,100 for 2011; and

d. From January 1, 2012, going forward, the sum of $371.00 per month based on his income of $41,100 for 2011.

Arrears

The respondent shall pay all outstanding child support arrears, once calculated, at the rate of $200.00 per month commencing May 1, 2012.

Tax Returns

Each party shall provide to the other his or her Income Tax Return and Notice of Assessment and/or Re-Assessment on an annual basis, by June 1 of each year, commencing 2012. Any change in the amount of child support shall commence July 1 and it shall be adjusted by the Family Responsibility Office (FRO) accordingly, to prevent the parties from going to court to have adjustments made, on an annual basis.

SECTION 7 SPECIAL EXPENSES CHILD SUPPORT

[198] The mother's claim for special expenses is brought under section 7 of the Child Support Guidelines:

[199] The mother's claim for special expenses is brought under section 7 of the Child Support Guidelines:

7. Special or extraordinary expenses.— (1) In an order for the support of a child, the court may, on the request of either parent or spouse or of an applicant under section 33 of the Act, provide for an amount to cover all or any portion of the following expenses, which expenses may be estimated, taking into account the necessity of the expense in relation to the child's best interests and the reasonableness of the expense in relation to the means of the parents or spouses and those of the child and to the spending pattern of the parents or spouses in respect of the child during cohabitation:

(a) child care expenses incurred as a result of the custodial parent's employment, illness, disability or education or training for employment;

(b) that portion of the medical and dental insurance premiums attributable to the child;

(c) health-related expenses that exceed insurance reimbursement by at least $100 annually, including orthodontic treatment, professional counselling provided by a psychologist, social worker, psychiatrist or any other person, physiotherapy, occupational therapy, speech therapy, prescription drugs, hearing aids, glasses and contact lenses;

(d) extraordinary expenses for primary or secondary school education or for any other educational programs that meet the child's particular needs;

(e) expenses for post-secondary education; and

(f) extraordinary expenses for extracurricular activities.

(1.1) Definition, "extraordinary expenses".— For the purposes of clauses (1)(d) and (f),

"extraordinary expenses" means

(a) expenses that exceed those that the parent or spouse requesting an amount for the extraordinary expenses can reasonably cover, taking into account that parent's or spouse's income and the amount that the parent or spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate, or

(b) where clause (a) is not applicable, expenses that the court considers are extraordinary taking into account,

(i) the amount of the expense in relation to the income of the parent or spouse requesting the amount, including the amount that the parent or spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate,

(ii) the nature and number of the educational programs and extracurricular activities,

(iii) any special needs and talents of the child,

(iv) the overall cost of the programs and activities, and

(v) any other similar factors that the court considers relevant.

(2) Sharing of expense.— The guiding principle in determining the amount of an expense referred to in subsection (1) is that the expense is shared by the parents or spouses in proportion to their respective incomes after deducting from the expense, the contribution, if any, from the child.

(3) Subsidies, tax deductions, etc.— Subject to subsection (4), in determining the amount of an expense referred to in subsection (1), the court must take into account any subsidies, benefits or income tax deductions or credits relating to the expense, and any eligibility to claim a subsidy, benefit or income tax deduction or credit relating to the expense.

(3) Subsidies, tax deductions, etc.— Subject to subsection (4), in determining the amount of an expense referred to in subsection (1), the court must take into account any subsidies, benefits or income tax deductions or credits relating to the expense, and any eligibility to claim a subsidy, benefit or income tax deduction or credit relating to the expense.

[200] All special expenses must meet the tests of necessity and reasonableness set out in subsection 7(1) of the guidelines. The onus falls on the applicant who seeks special or extraordinary expenses under section 7 of the guidelines to prove that the claimed expenses fall within one of the categories and that the expenses are necessary in relation to the child's best interests and reasonable having regard to the parental financial circumstances. See Park v. Thompson, 77 O.R. (3d) 601, 197 O.A.C. 158, 252 D.L.R. (4th) 730, 13 R.F.L. (6th) 415, [2005] O.J. No. 1695.

LEGAL ISSUES REGARDING THE MOTHER'S SECTION 7 CLAIMS

[201] These are the issues to be determined regarding the section 7 expenses claimed by the mother:

(a) Is the mother entitled to claim section 7 expenses on a retroactive basis, and if so, starting when?

(b) Do all the expenses claimed properly qualify as section 7 expenses?

(c) Is the mother entitled to re-imbursement for the full amounts she has claimed? and

(d) What is the father's proper proportionate share of those amounts?

[202] What is the Proper Start Date for Adjusting Child Support?

[203] Retroactive child support must be considered in the framework of the principles set out by the Supreme Court of Canada in D.B.S. v. S.R.G.; Laura Jean W. v. Tracy Alfred R.; Henry v. Henry; Hiemstra v. Hiemstra, 2006 SCC 37, 2006 SCC 37, [2006] 2 S.C.R. 231, 351 N.R. 201, 391 A.R. 297, 61 Alta. L.R. (4th) 1, 377 W.A.C. 297, [2006] 10 W.W.R. 379, 270 D.L.R. (4th) 297, 31 R.F.L. (6th) 1, [2006] S.C.J. No. 37 (referred to as "D.B.S.", or "the D.B.S. cases").

[204] The umbrella determination in the D.B.S. cases is this: courts have the jurisdiction to award retroactive child support and, in appropriate cases, they should do so.

[205] In the leading case on retroactive child support, D.B.S. v. S.R.G., 2006 SCC 37, [2006] 2 S.C.R. 231, the Supreme Court of Canada confirmed a set of core principles that apply to child support obligations: child support is the right of the child; the right to support survives the breakdown of a child's parents' marriage; child support should, as much as possible, provide the children with the same standard of living they enjoyed when their parents were together; and the specific amounts of child support owed will vary based upon the income of the payor parent. [paragraph 38] These principles must also be observed when a court is asked to consider the issue of retroactive support.

[206] D.B.S. also sets out a number of factors, no one of which is decisive, that a court should consider before awarding retroactive child support. They are: unreasonable delay in seeking child support; conduct of the payor parent; circumstances of the children; and hardship occasioned by a retroactive award. [paragraph 133].

[207] In this case, there is no evidence that David's standard of living has deteriorated from what it was when the parties lived together. The factors addressed by counsel are whether there was unreasonable delay on the part of the applicant in seeking section 7 expenses and the conduct of the respondent as the payor parent.

[208] In my view the applicant's delay in addressing the matter of these expenses has not been satisfactorily explained. This, however, is not determinative. The respondent had a good income. In contrast, the applicant was unlikely to earn an income comparable to the respondent's. Therefore, even with the shared custody regime, the Petitioner should reasonably have expected that he would have to pay child support on an ongoing basis. He could simply have made payments based on an estimate of what his obligation would be. Delay on the part of the applicant spouse should not necessarily excuse non-payment on the part of the spouse who knows that in all likelihood he will have to pay these expenses.

[209] Justice Bastarache, in the majority decision in D.B.S., recognized that amounts paid by a payor parent by way of expenses may be taken into account when retroactive child support is considered:

Finally, I should also mention that the conduct of the payor parent could militate against a retroactive award. A court should thus consider whether conduct by the payor parent has had the effect of fulfilling his/her support obligation. For instance, a payor parent who contributes for expenses beyond his/her statutory obligations may have met his/her increased support obligation indirectly. I am not suggesting that the payor parent has the right to choose how the money that should be going to child support is to be spent; it is not for the payor parent to decide that his/her support obligation can be acquitted by buying his/her child a new bicycle: see Haisman v. Haisman, 1994 ABCA 249, 22 Alta. L.R. (3d) 56 (C.A.), at paras. 79-80. But having regard to all the circumstances, where it appears to a court that the payor parent has contributed to his/her child's support in a way that satisfied his/her obligation, no retroactive support award should be ordered.

[210] The federal Child Support Guidelines provide, in s. 3(1)(a) and (b), that the amount of a child support order for children under the age of majority is the amount set out in the applicable table based on the number of children and the payor spouse's income and the amount, if any, determined under s. 7 of the Guidelines. Section 7 provides that the court may order an amount to cover various expenses, including child care expenses and that the amount ordered is to reflect the parents' shared responsibility for that expense in proportion to their respective incomes.

[211] Arguably, s.7 orders should be the exception and not the rule and these expenses become 'special or extraordinary' only when they exceed what would have been the norm for a family at that particular income level or alternatively when they involve unusual expenditures such as those required by a child with a disability.

[212] Turning to considerations embodied in s.9, the first being reasonableness and necessity, the court is mindful of the obligations of both parents to support their child. Where the applicant does this outside the home, as here, of necessity child care costs will be incurred where the child is of young or tender years. I find that it is well within the means of the parties to bear this expense. It is noted that, in Scott v. Scott, BCSC 844, the court allowed the child care expenses noting that they were clearly "necessary" to allow the mother to work.

[213] The court in D.B.S. identified four choices for the date to which the award should be retroactive:

(a) the date when an application was made to a court;

(b) the date when formal notice was given to the payor parent;

(c) the date when effective notice was given to the payor parent; or,

(d) the date when the amount of child support should have increased.

[214] The court adopted the date of effective notice as a general rule for the commencement date of retroactive support awards: D.B.S., paragraph [118].

[215] The principles set out in the D.B.S. cases regarding retroactive child support apply to the table amount and to section 7 expenses.

[216] Expenses for usual or ordinary extracurricular activities for a particular family are included in the table amount of support. See D'Urzo v. D'Urzo, 30 R.F.L. (5th) 277, [2002] O.J. No. 2415; Zimmerman v. Doe, 159 A.C.W.S. (3d) 407, [2007] O.J. No. 2896.

[217] An order for contribution to special and extraordinary expenses under section 7 of the Guidelines is discretionary as to both entitlement and amount. See Julien D. Payne and Marilyn A. Payne: Child Support Guidelines in Canada, (Toronto: Irwin Law, 2009), at pages 227and 231.

[218] Therefore, the court must first determine the issue of entitlement for a particular expense. A review of the cases reveals that judges have differing views of what constitutes reasonable and necessary extracurricular expenses — even in the case of the same type of expense and with parents with incomes in the same range. Sometimes they are allowed and sometimes they are not. See Smola v. Roger, [2002] O.J. No. 1254, [2002] O.T.C. 207.

[219] A custodial parent does not have carte blanche to enrol a child in any number of extra-curricular activities and then to look to the non-custodial parent to share all of the costs. See Forrester v. Forrester, 73 A.C.W.S. (3d) 479, 11 O.F.L.R. 61, [1997] O.J. No. 3437.

[220] The list of special and extraordinary expenses under clauses 7(1)(a) to (f) is exhaustive; if a claim does not fall within any of the listed categories, it must be dismissed. See Kilrea v. Kilrea, (1998), 82 A.C.W.S. (3d) 952, [1998] O.J. No. 3677, 75 O.T.C. 269.

[221] There is no question that day-care expenses for the child are reasonable and necessary special expenses as follows:

7. Special or extraordinary expenses.— (1) In an order for the support of a child, the court may, on the request of either parent or spouse or of an applicant under section 33 of the Act, provide for an amount to cover all or any portion of the following expenses, which expenses may be estimated, taking into account the necessity of the expense in relation to the child's best interests and the reasonableness of the expense in relation to the means of the parents or spouses and those of the child and to the spending pattern of the parents or spouses in respect of the child during cohabitation:

(a) child care expenses incurred as a result of the custodial parent's employment, illness, disability or education or training for employment;

[222] The gross day-care expenses for David on an annual basis are not easily determinable.

[223] Subsection 7(3) of the Child Support Guidelines directs the court to take into account any subsidies, benefits or income tax deductions or credits relating to the expense in determining the expense. Presumably, the applicant receives tax relief for the day-care expense. How do we take this into account?

[224] Divorce-mate software would assist the court in determining the day-care expense and respective contributions of the parties. That was not provided.

[225] D.B.S. v. S.R.G.; Laura Jean W. v. Tracy Alfred R.; Henry v. Henry; Hiemstra v. Hiemstra, 2006 SCC 37, 2006 SCC 37, [2006] 2 S.C.R. 231, 351 N.R. 201, 391 A.R. 297, 61 Alta. L.R. (4th) 1, 377 W.A.C. 297, [2006] 10 W.W.R. 379, 270 D.L.R. (4th) 297, 31 R.F.L. (6th) 1, [2006] S.C.J. No. 37, such as requiring a reasonable explanation for delay in seeking relief (or in this case, delay in seeking an order for the father to contribute to the special expenses), the conduct of the payor, the circumstances of the child and undue hardship to the payor occasioned by the requested order, provide guidance to the court in exercising its discretion.

[226] The father's failure to pay day-care expenses when requested is blameworthy conduct. The mother and David had to use food banks without this support. There will be no undue hardship created by ordering him to pay support effective from the time indicated in this order.

FAILURE TO INCLUDE CLAIM IN PLEADINGS

[227] The failure to claim a particular form of relief in the pleadings ties the hands of the court. It normally cannot and probably should not grant relief that was never sought in the first place. Some cases maintain that there is some element of discretion in a court to entertain issues raised during argument but not raised in the pleadings, but that will depend on the circumstances of the case.

[228] In cases that raise the issue of a child's best interests, courts are more likely to forgive a void in the pleadings. See, for example, Sleiman v. Slieman, 28 R.F.L. (5th) 447, [2002] O.J. No. 1887; and see also Hubbard v. Bailey, (2002), 112 A.C.W.S. (3d) 523, [2002] O.J. No. 1077, per Justice James D. Karswick.

[229] On support matters, should a court exercise its discretion to entertain issues not raised in pleadings? Where relief is sought in broad or imprecise language, a court may be prepared to accept the notion that a specific form of the relief is subsumed in the pleadings. See paragraph [26] of Desramaux v. Desramaux, 162 O.A.C. 338, 28 R.F.L. (5th) 25, 216 D.L R. (4th) 613, [2002] O.J. No. 3251; and Ross (Gedcke) v. Gedcke (No. 2), 25 R.F.L. (6th) 201, [2006] O.J. No. 656, per Justice Grant A. Campbell.

[230] But see also Gabriel v. Robinson, 2005 ONCJ 327, 23 R.F.L. (6th) 132, [2005] O.J. No. 5566, per Justice Juliet C. Baldock; Hesketh v. Wright, 2007 ONCJ 54, [2007] O.J. No. 584, per Justice Theo Wolder; and Children's Aid Society of Haldimand and Norfolk v. J.H. and D.C., 2007 ONCJ 582, 170 A.C.W.S. (3d) 544, [2007] O.J. No. 4755, per Justice Lawrence P. Thibideau.

[231] I am satisfied that the applicant's pleadings were worded generally and that Justice Dunn's reasoning is appropriate in these circumstances.

[232] Having regard to Exhibit #2 in these proceedings, the applicant's Book of Exhibits, more particularly Tab 6, a letter dated November 9, 2011, relates to "receipts…" and to "requests in the past for reimbursement for medical expenses, such as the cost of keeping David on Ms. Moreira's medical plan…". Tab 11, dated November 15, 2011, sets out the applicant's claim for special or extraordinary expenses for 2009, 2010 and 2011. Reference is further made to the applicant's employer health benefits and costs. Daycare services are similarly addressed.

[233] I find that the applicant is entitled to her proportionate share of medical insurance and daycare fees to be paid by the respondent and to be agreed upon between the parties within 30 days.

[234] The mother did not categorize the expenses claimed according to the section 7 list argument, nor her pleadings. These are the entitlement findings regarding these various expenses:

(a) Orthodontist: The orthodontist expense is a health-related expense being claimed under clause 7(1)(c). The parents shall proportionately share the amount of this expense that cannot be reimbursed under the father's plan.

[235] Claims for section 7 expenses must be supported by relevant evidence. But the court has the discretion to make an order based on estimates; see subsection 7(1) of the Child Support Guidelines. The court also has discretion to order a contribution for all or any portion of a proper section 7 expense; see subsection 7(1) of the guidelines.

[236] Although the mother produced a large package of material in support of her claim for retroactive section 7 expenses, the quality of the materials produced was generally inadequate and varied widely. The mother produced documented proof for some, but not all, of the various special expenses claimed.

[237] The court should not have to struggle to be able to determine whether the amounts claimed are properly proven, whether the amounts claimed fall properly under special expenses and whether the amounts are reasonable. That, however, is required in this case. The onus is on her to prove these expenses.

[238] Inferentially, then, the mother relied on subsection 7(1) of the Child Support Guidelines, permitting a parent to estimate the amount of the expense claimed and permitting a court to make an order based on such an estimate, and an order for all or any portion of the expenses.

[239] To be allowed as section 7 expense, the amounts claimed must be necessary in relation to the child's best interests and reasonable in relation to the means of the parents.

[240] The applicant shall continue to take David to his dental appointments and she shall be reimbursed her share of dental expenses.

[241] By April 1 and October 1 each year, the parties will provide receipts or cancelled cheques or bank drafts of the amounts they incurred for David's special or extraordinary expenses for the previous six-month period. A party who has not contributed his or her proportionate share of the special or extraordinary expenses will immediately reimburse the other within seven days of the receipts being provided.

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

[243] A support deduction order shall issue in accordance with section 11 of the Family Responsibility and Support Arrears Enforcement Act, 1996, S.O. 1996, c. 31, as amended.

[244] The respondent shall be required to provide to the applicant all of the information described in Subsection 21(1) of the Child Support Guidelines, on or before July 1st of every year, commencing in 2012, without the necessity of the applicant making a request for same.

COSTS

[245] If the parties are not able to agree on the issue of costs, they can, within 30 days from the issuance of these Reasons, submit a Bill of Costs together with written argument.

Released: March 12, 2012

Signed: "Justice Zuker"

Schedule "A" attached here applies to both the applicant mother and respondent father.

SCHEDULE "A"

Parenting Guidelines

1. This court orders that David's needs shall be paramount in relation to any parental conflict or concern regarding his interest and general welfare.

2. This court orders that the parents shall make all possible efforts actively to foster and facilitate a healthy and happy relationship between David and the other of them, and also between that other parent's spouse where applicable, and members of that other parent's extended family.

3. This court orders that the parents shall refrain from any subtle or open negative influence that might undermine David's relationship with the other parent, and/or the other spouse or extended family.

4. This court orders that the parents shall not put David in the middle of any dispute by using him to convey information regarding residential arrangements, extracurricular activities and finances.

5. This court orders that each parent shall respect the privacy of the other parent and refrain from any discussion or questioning of David about the other parent's personal life or activities.

6. This court orders that each parent shall not interfere in the life of the other parent. In this regard, neither parent shall arrange activities, educational or recreational, that might affect that other parent's time with David according to this order, without the other parent's written consent. Should the other parent consent, in the interest of David, then that other parent shall have the opportunity to participate in David's activity or event by providing transportation and/or attendance during that parent's time with David.

7. This court orders that the parents shall make all practical efforts to ensure that David attends any and all structured activities or special occasions involving peers or extended family. In this regard, the parents shall be obliged to negotiate arrangements such that both parents can participate in David's special occasions by either jointly attending such or alternating such occasions. This shall include, but is not limited to, school and extracurricular activities.

8. This court orders that the parents shall facilitate a happy and healthy relationship between David and the other parent by preparing David for an easy and comfortable transport to the other parent, and by refraining from any obstructions or unnecessary, non-essential modification of the terms of this order.

9. This court orders that both parents shall accept David's right to love and be loved by the other of them. The parents are not to make David feel he has to choose one parent over the other.

10. This court orders that each parent shall give the other of them the first option to have David with them in the event that work schedules, vacations or other events make a parent unavailable during a period that David is otherwise scheduled to be with that parent.

11. This court orders that neither parent shall criticize, demean or denigrate the other of them in David's presence, or permit or encourage anyone else to do so.

Communication and Information Flow

12. This court orders that the applicant shall sign authorizations to be given to the school and other health-care professionals for the purpose of ensuring provision of duplicate reports to the respondent when such may be provided, as well as the right to consultation for each or both parents.

13. This court orders that, in the case of an emergency, the other parent should be the first individual notified whenever possible, prior to the implementation of necessary remediation, or as soon as possible after such remediation is implemented.

14. Each party shall promptly inform the other of any and all medical appointments to which they have taken David while he was in their care, and share all the information relating to the visit(s), including but not restricted to any medication that David may have been given, follow-up appointments with medical doctors, etc. If David is, on the specific advice of a physician required to remain at home for a period of time and such period conflicts with a scheduled period with the respondent, the applicant shall, at her discretion, delay the period with the respondent until David is sufficiently recovered.

15. Each party shall care for David during their access time with him. If David becomes ill and cannot attend school or daycare, then the respondent shall assist the applicant by taking time off his work, if asked by the applicant, to care for David at his home.

16. The applicant shall provide to the respondent any changes to David's school, address etc. at least 14 days prior to the change taking place.

17. The respondent shall inform the applicant of any changes to his address, telephone number, etc., at least 14 days prior to any such change.

18. This court orders that both parents shall communicate with one another in as direct a fashion as possible and in a civil and non-offensive way.

19. It is in David's best interest to have a meaningful relationship with both his parents. Accordingly, the court orders that both parents shall communicate proposed changes to the schedule in a timely manner and seek and make compromises with regards to same as many reasonably meet David's needs.

20. The applicant shall not make any decision affecting David's long-term development without collaborating with the respondent. No decision shall be taken on these issues by the applicant unless full, timely, and reasonable disclosure about the relevant facts surrounding the decision is made to the respondent. In this judgment, the applicant has ultimate decision-making power but she shall exercise that power in consultation with the respondent and with David's best interests uppermost in her mind. At no time shall such exercise of her decision-making power be capricious or unreasonable either as to the nature of the decision or the timing of it.

Parties to be notified.

Dated at Toronto, Ontario this 12th day of March 2012.

Justice M. A. Zuker