Court File and Parties

Court File No.: F472/11

Date: June 19, 2014

Amended: July 2, 2014

Ontario Court of Justice

Between:

Jacqui Potter Applicant

— And —

Luis Filipe Neves Da Silva Respondent

Before: Justice Roselyn Zisman

Heard on: January 20, 21, 22, March 24, 25 and 31 and April 29, 2014

Reasons for Judgment released on: June 19, 2014

Counsel:

• Steven McCutcheon, for the Applicant
• Peter M. Callaghan, for the Respondent

ZISMAN, J.:

1. INTRODUCTION

[1] This trial was with respect to child support and the parenting arrangements for the child of the parties, Jordan David Da Silva Potter ("Jordan" or "the child") born June 3, 2006.

[2] The applicant ("mother") seeks sole custody and a continuation of the respondent's ("father") current access schedule. The mother alleges that she has been the primary parent, that she has in the past been responsible for meeting all of the child's needs and should be permitted to continue to do so. It is her position that Jordan is happy and well settled in his routine and there is no reason to substantially change the outstanding arrangements. She alleges that the father is only attempting to now obtain joint custody and equal time with the child as a control and power issue and to reduce his child support obligations.

[3] The mother also seeks ongoing child support and retroactive child support to the date of Jordan's birth, extraordinary section 7 expenses to be paid in proportion to the parties' respective incomes and a police enforcement clause. The mother did not pursue a request for a restraining order at trial.

[4] At trial, the father sought joint custody with an alternate week residential schedule as has been recommended by the Office of the Children's Lawyer. The father alleges that the mother has blocked his access and his involvement in the child's life, that the maternal grandparents have cared for the child 45% of the time and if the mother is not able to care for the child, there is no reason he should not be permitted to do so. The father submitted that he loves Jordan, Jordan wants to spend more time with him and he is just as capable or more capable than the mother of meeting the child's needs.

[5] The father seeks to pay child support in accordance with section 9 of the Child Support Guidelines on a set-off basis and is agreeably to pay his proportionate share of the section 7 extraordinary expenses.

[6] Both parties seek a specified access order for holidays and further provisions to address parenting issues that have in the past caused strife between the parties.

[7] The mother testified on her own behalf and her parents and her partner also testified. The father testified on his own behalf and called no other witnesses. Krystal Dorian, the clinical investigator for the Office of the Children's Lawyer testified and was examined by both parties. Numerous documents were entered as exhibits.

2. BACKGROUND

[8] The mother is currently 33 years old. She is employed full time as a salesperson at a car dealership. She is residing in a home in Burlington with her partner Chris Blinston.

[9] The father is currently 36 years old. He is employed as a project manager for a refrigeration company. He resides alone in a home in Burlington. The father has been involved with his partner for several years but they do not reside together.

[10] The parties met through a social website in 2003 or 2004 and never lived together. On October 7, 2005, after the relationship had ended, the applicant advised the father she was pregnant.

[11] The father was not initially supportive of the pregnancy. However, several months later, the mother contacted the father told the father she wanted him involved in the child's life and that if he did not advise his family of the pregnancy she would. The father agreed to advise his family and confirmed that he also wished to be part of the child's life.

[12] After the birth, the mother and child lived with the maternal grandparents.

[13] Over the years the father's time with the child evolved to alternate week-ends from Thursday after school/daycare to Sunday and on Thursday after school/daycare to Friday morning return to school/daycare.

[14] The parties agree that Jordan is a happy, well-adjusted child and loves and is comfortable with both of his parents.

[15] Other than these very basic facts outlined above, there is little agreement about anything else. The parties do not agree about when they met, how long they dated, the nature of the relationship, the father's involvement prior to the birth of their child or thereafter, how much of the time the maternal grandparents cared for the child or how much child support the father paid. They do not even agree as to whether or not they knew the gender of the child before birth, whether or not they picked out the child's name jointly or who drove the mother home form the hospital.

[16] Initially, the parties agreed that they have been unable to communicate. However, during the trial the father changed his position and testified that they could communicate and co-operate.

3. ISSUES TO BE DETERMINED

[17] The issues to be determined are as follows:

1. What custody and access arrangements are in the child's best interests? If joint custody is ordered, how is decision making to be determined? What ancillary orders are necessary and appropriate?

2. Should the court order the police enforce the terms of the order?

3. What amount of child support is payable? Should the amount of child support be based on the father's annual income or should income be imputed to him for the years he was self-employed in addition to being a salaried employee? What business expenses are proper deductions?

4. Should the order for child support be retroactive?

[18] Crucial to the determination of these issues is the overlaying issue of the credibility of the parties due to their divergent evidence on almost every facet of this case.

4. RELATIONSHIP BETWEEN THE PARTIES PRIOR TO JORDAN'S BIRTH AND THEIR RESPECTIVE INVOLVEMENT IN HIS LIFE

[19] The parties did not agree on the nature of their relationship prior to the birth of Jordan or even when they met. The mother testified that the parties met at the end of 2003 and their relationship developed quickly. According to the mother, they dated until the summer of 2005, broke up for a couple of weeks, reconciled and then broke up again. The mother did not disparage the father or the nature of their relationship.

[20] The father testified that the parties met in December 2004 and dated until June 2005. The father spent a great deal of time testifying about how the mother was "crazy" and "would keep getting thrown out of her house by her father" and "she would just show up outside my mother's home at all hours of the night". He testified that these visits were "unwanted" but he never reported them to the police.

[21] The mother denied these allegations and both her parents also confirmed that the mother was never kicked out of their home. This was the first of many examples of the father's tendency to disparage the mother whenever he could and his vague memory for dates.

[22] The mother testified that she found out she was five weeks pregnant on October 7, 2005 which was just before the Thanksgiving weekend and told the father the same day. He told the mother "we would get through it" which she understood to mean that he wanted the baby. As she had not heard from the father during the weekend, she contacted him and told him that she was keeping the child. The father told her to, "Go fuck yourself and die". The father did not deny these remarks.

[23] The mother testified that she did not have any contact from the father for about the next seven months except for a few telephone calls when she advised him of her medical and ultrasound appointments and encouraged him to be a part of the pregnancy and a part of his child's life. The mother insisted the father tell his family about the pregnancy and invited him to be present at the birth but as a perquisite insisted that he attend a weekend pre-natal class. The father attended the pre-natal class and the birth. According to the mother, her parents drove her home from the hospital to their home and she and Jordan resided with her parents in their home.

[24] The father agreed that the mother wanted him to be part of the child's life and did not dispute that the mother kept him advised and encouraged him to be part of the pregnancy.

[25] The father testified that he was "very involved" in the pregnancy and that he went to every ultrasound, participated in pre-natal classes, was involved in choosing the child's name and drove the mother home from the hospital. But in cross-examination, he admitted that he only went to one or two ultra-sound appointments, he had not attended any medical appointments, that the pre-natal class was only a weekend and since his car did not have a car seat it was unlikely that he could have driven the mother home from the hospital. He also agreed that he did not take any time off after the birth.

[26] The father also implied that he generously financially contributed to the child's needs. However, he only bought a chest of drawers, a baby bag and gave the mother $300 towards the cost of a rocking chair she wished to purchase that cost $600. He testified that he thought the rocking chair was too expensive and gratuitously stated that the mother never sat in the rocking chair and used it to throw clothes over.

[27] Based on these facts, I find that the mother attempted and encouraged the father to be part of the pregnancy and subsequent birth and that the father was only minimally involved and exaggerated his involvement and financial contributions.

5. THE PARTIES' ROLES IN JORDAN'S LIFE UP TO THE COMMENCEMENT OF THE COURT PROCEEDINGS

[28] It was the mother's position that the father was not very involved in Jordan's life and it was only with the urging and encouragement of her and her parents that the father played a role. The father, on the other hand, testified that he was very involved in Jordan's life.

[29] Both the mother and her parents testified that for the first few months after Jordan's birth, the father would drop in fairly regularly after work to see him. But there was no set schedule.

[30] The father, on the other hand, testified that he lived at the maternal grandparents' home for a few months after Jordan was born. The mother and her parents denied this occurred except perhaps for a few times when the father may have fallen asleep at their home.

[31] The father testified that sometime in September, October or November 2006 the mother and the child went to stay with him at his mother's home for one and half to two months. He then changed the dates to August and September. He then testified that sometimes the mother would go back to her parents' home with Jordan. At another time, he testified that the maternal grandparents were going on holidays so the mother and Jordan moved to his home to give them a break.

[32] He testified that he told the mother to leave his house because he was concerned that they were getting too close and he did not want her to get the idea they were a couple. He also testified that he told her to leave because he was about to return to school in January 2007.

[33] In the father's direct examination he introduced many photographs that purported to show the mother and Jordan at his home during these first few months of Jordan's life. These photos were never shown to the mother in cross-examination. Although the mother and the maternal grandparents denied the mother and child ever lived with the father at the paternal grandmother's home, I advised counsel that in my view, the rule in Browne and Dunn applied and these photos should have been shown to the mother in cross-examination and she should have been given an opportunity to respond directly to them. I requested that counsel for the father address this issue in his closing argument.

[34] Counsel for the father submitted that the mother testified in reply and her counsel could have questioned her about the photos and there was no obligation on the father to show them to the mother in cross-examination. Although I agree that mother's counsel could have asked the mother in reply to explain the photos, I do not agree that the father was not obligated to directly show the mother these photos.

[35] I put no weight on the photographs as proof that the mother resided at the father's home with Jordan. Both the mother and her parents denied this ever happened. The father in his Answer never stated that the mother and Jordan lived in his home. The father also did not call his mother as a witness to corroborate that the mother and child lived in her home during any period of time. As a result, I prefer the evidence of the mother and her parents.

[36] The father alleged that the first time he cared for Jordan overnight was on December 31st, 2006, when Jordan would have only been six months old, as the mother went back to work at a bar that night. The mother denied this and said she was in no physical shape and had no desire to return to work as a cocktail waitress at a nightclub. I prefer the evidence of the mother as given the lack of involvement of the father up to that time it is extremely unlikely that the mother would have trusted the father to care for Jordan overnight. This is yet another example of the father exaggerating his role in the child's life. Further, thorough out his evidence the father was vague regarding dates and continually spoke disparagingly about the mother "moonlighting" as a cocktail waitress and working at bars.

[37] The father agreed that he returned to an intensive school program in the months of January and February 2007 as part of his apprenticeship program and did not have a great deal of time to see Jordan. But then he testified he would go to the maternal grandparents' home on the weekends and have Jordan in his care Friday to Saturdays overnight. He then changed the timeframe to having Jordan overnight in March or April as the mother was working. He then testified that he had sporadic weekend access. He then tried to clarify that he had Jordan in his care about two weekends a month and also that "definitely" he stopped by the maternal grandparents' home three times a week. The father continued to testify in this fashion regarding the time he spent with Jordan changing the timeframes, the amount of time he spent with Jordan and stating several times that it was the maternal grandparents who were caring for Jordan and not the mother.

[38] According to the mother and her parents the father hardly saw Jordan at all during January and February 2007 and then saw him whenever it suited him. Based on the father's own evidence regarding his intensive school schedule and the fact that he was commuting from Mississauga to Toronto and then returned to work full-time, I accept the evidence of the mother and her parents regarding the father's time with Jordan in early 2007. Also in addition to working full-time, sometime in 2009 the father began a business and worked on week-ends and in the evenings and this would have further limited the time he had with Jordan.

[39] The maternal grandfather testified that the father's access continued to be sporadic before Jordan started school. He felt obligated to speak to the father about the need to be involved in his son's life. He assisted in putting together the access schedule as the parties did not speak to each other. He also spoke to the father about his obligations to pay child support after Jordan was born.

[40] I find that from January 2007 to October 2010, the father spent a limited amount of time with Jordan based on his school and work schedule. I also find that the mother did not in any way interfere or curtail the father's time with Jordan but rather encouraged it.

[41] The mother testified that in November 2010 she changed jobs and began to work at a restaurant and asked the father to care for Jordan overnights on Thursdays which he agreed to do.

[42] By August 2011, a general schedule had evolved to alternate weekends from Thursday to Sunday and on Thursdays overnight to Friday. However, according to the mother there were no set times and missed visits and this caused arguments and confrontations between the parties.

[43] The mother arranged for and attended all of Jordan's medical appointments and arranged for daycare initially with in a private home daycare and then when she qualified for a subsidy with a daycare. The father was not involved in the daycare until after the court proceedings began.

[44] The maternal grandmother was responsible for picking up Jordan from daycare. The father would pick him up and drop off Jordan either from the maternal grandparents' home or the mother's condominium after she moved.

[45] The mother arranged for Jordan's first year of hockey in 2010 and for his first year of soccer in May 2011. In September 2011 the mother signed up Jordan for his second year of hockey. Up to this point in time, the mother or her parents paid for the registration fees and equipment. The father did not attend any of these activities.

[46] As a result of these facts I find that the mother was the primary caregiver. I find that the father was involved in Jordan's early years on a sporadic basis that suited his schedule. Wherever there is a discrepancy between the father's recollection and the mother's I accept the mother's version of events. The father's evidence was vague, inconsistent and not corroborated by any third party or by any documentation. I find that he exaggerated his role in Jordan's life during these formative years.

6. ABILITY OF THE PARTIES TO COMMUNICATE AND CO-OPERATE PRIOR TO THE COURT PROCEEDINGS

[47] The history of parents' ability to co-operate and communicate is a central issue to be examined in determining what custodial arrangements are in a child's best interests. In this case, there are several instances where it appears that the parties were able to co-operate and then several other instances where they were not able to do so.

[48] The father is Catholic and the mother is not. The mother agreed to baptise Jordan in the Catholic faith. The father arranged the baptism through the church affiliated with the Catholic high school he attended. The mother and the father were able to agree on the godparents.

[49] In July 2009, the mother was able to obtain subsidized daycare and Jordan began to attend Zac's Childcare and Montessori. The mother testified she chose this daycare as it was convenient for her mother who picked up Jordan after work and also convenient for the father who she thought was still living in Mississauga in his mother's home. The mother kept Jordan at Zac's for junior kindergarten. Although there was no evidence that the father disagreed with this decision at the time, during his testimony he was critical of this decision and alleged that Jordan had fallen behind in his reading because he did not attend junior kindergarten.

[50] The father also produced a copy of an attendance sheet from Zac's, that he requested the daycare provide, to prove that the mother brought Jordan in late as she kept him home when she was not working. The father testified that the morning was the time that the teaching was done. I agree with the submissions of mother's counsel that no weight should be put on this document as it is unsigned and there is no proof that in fact this is the time that teaching was done. Further, this document was never shown to the mother during her cross-examination. More importantly, it is indicative of the father's distrust and disrespect for the mother's parenting and his need to prove that he is the better parent.

[51] In the summer of 2011, the mother began to investigate sending Jordan to a Catholic school but there was a wait list for before and after care at the closest school. The father suggested that Jordan be enrolled in a new public school that was being built that backed onto his backyard and that did not have a wait list for before and after daycare. It was only as a result of the decision being made about school that the father advised the mother that he lived in Burlington and told her his address. He also told the mother that if Jordan was enrolled in this school he would be more available to help out. It was on this basis that the mother agreed to enroll Jordan in the school.

[52] The father had bought a house in Burlington in January 2008 and moved into the home in April 2008. When questioned about why he did not tell the mother he moved until the summer of 2011, he offered several explanations. He testified that he did not want the mother turning up at all hours of the night, as she had done during their relationship and that there was no reason for her to know where he lived as he did all of the pick-ups and drop-offs and further she never asked where he lived.

[53] The mother did agree that the father could take Jordan to Cuba in the winter of 2011. She testified that she did so after he threatened her. The mother obtained Jordan's passport and co-operated with the travel arrangements.

[54] The maternal grandparents testified about various incidents when the father calling the mother derogatory names, swore at her and yanked Jordan out of the mother's arms. The maternal grandfather testified that he overheard conversations where the mother asked the father to help out and he would tell the mother that he was not her babysitter. The maternal grandfather also testified that the father swore at his wife and assaulted him and that after August 2011 he just gave up on the father.

[55] Chris Blinston, the mother's partner testified that he would accompany the mother at times to pick up Jordan and he witnessed the father slam the door in the mother's face and told her to "Fuck off" when she asked for some of Jordan's things and that this took place in front of Jordan.

[56] I find that there is little historical evidence of the ability of these parties to co-operate or communicate. The mother made the important decisions regarding Jordan and was the parent responsible for his day to day care, for arranging his medical care, his daycare and his extra-curricular activities. The only instances of joint decision making or co-operation occurred when the mother agreed to arrangements that suited the father such as agreeing to baptise the child into the Catholic faith, to permit the father to take Jordan on a trip and for him to attend the school near the father's home. The fact that father did not tell the mother such a basic fact that he moved for over three years I find an extremely significant example of his lack of communication with the mother.

[57] Both parties agreed during the investigation of the Office of the Children's Lawyer that they had been unable to communicate with each other. Both agreed that they had different philosophies with respect to the child's upbringing. The lack of ability to communicate and co-operate was the basis for each parent asserting during the investigation by the Office of the Children's Lawyer that they should have sole custody.

7. COURT PROCEEDINGS

[58] The mother commenced this application in October 2011 seeking sole custody and alleged that Jordan needed a regular schedule. She testified that she commenced the application because the father would do what he wanted and would keep Jordan whenever he wanted and threatened to continue to do so. She alleged that they could not communicate; he was verbally abusive and was providing their son with inappropriate information about her. She also sought disclosure of his income. The mother who was initially unrepresented subsequently amended her application to clarify her request for retroactive support.

[59] The father in his answer sought joint custody and agreed that he had regular access. He sought an order for expanded access, the right of first refusal if the mother was unable to care for the child and the ability to travel with the child outside of Canada. He sought to pay child support on a shared custodial arrangement basis. Although during the investigation of the Office of the Children's Lawyer he stated that he was seeking sole custody he then reverted to requesting joint custody and shared parenting time in accordance with the recommendations of the Office of the Children's Lawyer.

8. OFFICE OF THE CHILDREN'S LAWYER REPORT AND EVIDENCE OF THE CLINICAL INVESTIGATOR

[60] The case management judge requested the appointment of the Office of the Children's Lawyer at the first case conference held on February 29, 2012 based on the different views of the parties on custody and access and what is in Jordan's best interests. When the appointment was refused, the case management judge asked the Office of the Children's Lawyer to reconsider and in the endorsement of May 7, 2012 notes that:

"It is clear to the Court that there are some serious clinical issues that require the Children's Lawyer's intervention given the conflict between the parties regarding their six-year-old boy and the very disparate views regarding the current custody and access arrangements."

[61] Krystal Dorian an experienced investigator with a Master's degree in social work was the investigator assigned to the file and she prepared a report dated November 22, 2012 that was filed with the court and she testified in this trial.

[62] She based her recommendations that the parties have joint custody and an alternating week schedule on the following:

(a) both parties were good parents and that she truly believed that on important decisions they will be able to agree and make the best decisions for Jordan;

(b) the mother was devastated by her recommendations, but she felt that the mother would see the benefit to Jordan and one day be okay with the schedule;

(c) most of the conflict was over "tupperware" or insignificant matters;

(d) this was not a case where there were any special medical concerns or learning disabilities and that very few "big" decisions would need to be made on a consistent going forward schedule;

(e) she recommended joint custody based upon her conclusions as to the recommended residence schedule;

(f) as the father was very involved in the child's extra-curricular activities it just made sense for there to be an alternate week-schedule;

(g) that the parent who has Jordan in their care needs to be able to make decisions for Jordan while he is in their care;

(h) it was clear to her that both the mother's and the father's home were home to Jordan;

(i) Jordan had expressed a desire to spend more time with his father, that the week about schedule would accomplish this; that she had interviewed Jordan twice and both times he said he wanted to spend more time with his father and that she believed that his feelings were genuine and he did not appear to be coached;

(j) she understood that the current access schedule had been in place for several years and that there was no indication that this schedule was creating conflict and therefore she had no worries with this schedule;

(k) in her opinion the week about residence schedule would reduce conflict as there would be less exchanges; the report recommended the exchange take place on Sundays but in her testimony Ms. Dorian suggested that perhaps a Monday return would even further eliminate conflict but recognized that was an issue with belongings and sport equipment being also exchanged;

(l) the father had indicated to her that he wanted increased access to Jordan;

(m) the father told her that he felt that he was being shut out of special events, holidays etc.;

(n) the father told her that he made changes to his work schedule to ensure that he could be available to care for Jordan;

(o) she believed that the father would ensure that Jordan does his homework when he is in his care;

(p) she recommended that each party have the right of first refusal but the mother was not agreeable to this provision; the mother had explained that in the past she had asked the father to care for Jordan but he had refused and so she was not now willing to agree to this recommendation;

(q) any current conflict would be reduced if the father had more time with Jordan and if the parties had a detailed parenting plan which minimized grey areas and specifically set out the rights and obligations of each party; she recommended a parent co-ordinator be utilized to assist them in making decisions pertaining to the Jordan;

(r) Jordan was doing well and there were no indications that he was having any problems or any indications that the occasional conflict between the parties was having any effect on Jordan although he was aware that there was conflict between his parents;

(s) it was her opinion that although the week about schedule would be a big change for Jordan, he is a resilient child and would be able to adapt and it would be for the best; and

(t) she felt this was a money driven case as the mother told her that the father was not paying consistent child support.

[63] Although generally a report from an investigator for the Office of the Children's Lawyer is given considerable weight, I have concluded that in this case I decline to do so, as I find that it was not a thorough report and lacks any in depth analysis. Ms. Dorian either ignored or neglected to investigate relevant information regarding the parties' relationship, applied the wrong legal considerations, placed undue weight on the views of a six-year-old and events subsequent to her report make it clear that these parties cannot co-operate.

[64] Specifically I note the following shortcomings of the investigation and report:

(a) Ms Dorian accepted the father's statement that he moved to Burlington to be closer to his son whereas the facts are that he purchased his home in January 2008 before the mother moved from her parents' home in Oakville to Burlington;

(b) Ms Dorian was either unaware or ignored the fact that the father kept hidden from the mother for over three years that he had moved until it suited his purpose to tell her; she does not discuss the impact of this basic lack of information sharing on the ability of the parties to communicate;

(c) During the investigation the father disclosed that he had hired a private investigator to follow the mother because he was convinced that the maternal grandparents were caring for Jordan at least 45% of the time; the father had the report with him and read portions to Ms. Dorian and did not want the mother to be told about it; the report was never produced at trial; even though Ms. Dorian testified that this was the first time she had ever had a case where a parent had hired a private investigator she did not consider the impact of this kind of distrust could or would have on the ability of the parties to jointly parent;

(d) Ms. Dorian accepted the father's statement to her that he was actively involved in Jordan's life for the first two years and then the mother altered access and cut him out of Jordan's life; but she did not reconcile or corroborate this statement with the facts or consider that the father's pleadings stated that he was enjoying regular access; if it was true that the mother interfered with his time with Jordan then she neglected to consider why the father would not then have proceeded to court for four years; the father's explanation that he was told by a lawyer to wait until the child was older makes no common sense but was accepted at face value by Ms. Dorian;

(e) There is no consideration of the parties ability to co-parent based on the father's attitude and accusations he made about the mother; during the investigation the father took the position that he should have sole custody as the mother had numerous boyfriends, was living out of her car, returned to working at bars, her parents were parenting Jordan, she refused to increase access, she omits him from information and participation in important decisions and that she does not provide Jordan with the consistency, structure and attention he needs; there was no investigation by Ms. Dorian to determine the truth of any of these allegations with any collaterals; the only example she gave of the mother refusing access was the fact the mother refused to allow the father to take Jordan on a holiday; the only examples she gave of the mother not providing information to the father were that she did not tell the father about a spring school concert or ensure that he obtained information about school photos; when asked about the ability of the father to obtain this type of information from the school's website she responded that it was her experience that the websites of schools were not that reliable but she admitted that she had no knowledge or information about this particular school's website; further, she then recommends that the father be responsible for obtaining information on his own whereas in her report she is critical of the mother for not providing the father with information directly;

(f) She ignored the implications of the reports she obtained from the school principal and daycare provider that the father was very demanding and aggressive with them and how this might be indicative of his present and future interactions with the mother; when questioned about these reports by the court, she agreed that maybe the father's approach was not appropriate but it depended on how you looked at it that is, as either aggressive or desperate; she justified his behaviour because the father wanted to get information and be involved;

(g) She did not comment on the implications on the ability of the parents to co-operate based on the fact that the mother alleged the father was verbally abusive and called her derogatory names and the father agreed he did this but added that the mother did the same; she ignored third party information that corroborated the father's inappropriate behaviour towards the mother in front of Jordan;

(h) She placed weight on the fact the father took the child to the dentist and arranged extra-curricular activities for him such as power skating and taekwondo but did not know or ignored the fact he did this without consulting the mother;

(i) She accepted at face value the father's assertion that he altered his life by taking a pay decrease so he could work at home without any verification from his employer;

(j) She did not consider the father's exaggerated statements about fighting "tooth and nail" to be involved and obtain more time with Jordan when there was no objective evidence that he did so; on the contrary the facts supported the opposite conclusion that the mother encouraged the father to spend time and be involved with Jordan;

(k) In assessing the a parents' respect for each other's parenting abilities, she does not address the impact of the father's relentless criticism of the mother's lack of meeting Jordan's needs including not reading to him, not caring for his medical and dental needs and generally not being available to care for him;

(l) She did not read any of the emails between the parties which would have given her a clear indication of the level of conflict and lack of any meaningful communication between the parties; for example, in January 2012, the mother emailed the father the details of the appointment she made to have Jordan's eyes checked, he told her to cancel as he was at the appointment and when the mother asked the address so she could meet him there he turned off his phone; February 2012 the mother asked the father to care for Jordan because he was ill and she did not get paid for sick days and he said he would think about "possible helping her" and then turned off his cellphone; in March 2012, he refused to let the mother take Jordan to an ultrasound appointment because it was "his day";

(m) She ignored or was unaware of the fact that until the court proceedings began the father was not involved, did not attend and did not contribute to the cost of any of Jordan's extra-curricular activities;

(n) She did not analyse the context of Jordan's comments about wishing to spend more time with his father because they have fun and do things together; she did not consider or analyse the fact that Jordan could not find anything positive to say about spending time with his mother despite the clear evidence that they have a close relationship, that they spend time at a cottage together and that he has a good relationship with the mother's partner; she accepted at face value the child's statements;

(o) She ignored the fact that these parents had never made even the most basic decisions together except to the extent that the mother was prepared to do something the father wished such as the baptism or the choice of schools;

(p) She ignored the lack of co-operation between the parties on making access arrangements and only refers to this as a minor disagreement without considering the long term implications. For example, in July 2012 the father refused to allow the maternal grandmother to pick up Jordan as the mother had to work late; the mother had to attend court to obtain a court order to clarify that the mother or a third party designate "such as Jordan's grandmother" could pick up Jordan. The next month when the mother emailed the father that her partner would be picking up Jordan, the father refused to permit this and the mother had to obtain a further court order;

(q) She relied on the lack of any major decisions that would have to be made and ignored or downplayed the numerous small decisions that have to be made for children that were causing major sources of conflict such as the parties' disagreements regarding taking Jordan out of school for a holiday with his father and retention and transporting of his hockey equipment; she did not consider the long term and cumulative impact of such minor disagreements between the parties on the child; further, she did not consider that this is a very young child and there is no guarantee that there may very well be major decisions that will have to made in the future;

(r) Despite agreeing the parties distrusted each other, she did not consider how their distrust would impact on their ability to jointly parent; and

(s) She seemed to imply that the only reason the mother was not agreeable to expanding time with the father was related to support but did not refer to the father's financial benefit if he had more time with Jordan and his desire to pay less child support; she testified that she did not get involved in support issues but clearly only considered the mother's possible financial motivation and not the father's motivation.

[65] Ultimately, I find that Ms. Dorian based her recommendations for joint custody on the hope the parties would be able to get along in the future, based on a six-year old child's wish to spend more time with his father and based on the father's desire to spend more time with Jordan. She made a recommendation for joint custody that ignored the facts and proceeded on an incorrect understanding of the legal principles.

9. EVENTS SUBSEQUENT TO THE OFFICE OF THE CHILDREN'S LAWYER'S REPORT

[66] On November 29, 2012 just a few days after the Office of the Children's Lawyer report was released, Jordan was in trouble at school for picking on another child. As the principal could not reach the mother who was in a business meeting, he called the father. The father attended at the school and testified that the principal told him to take Jordan out of school and so he took him to his home. When confronted with a letter from the principal that stated the father volunteered to take him home, the father testified the principal was lying. After the mother's meeting when she received the message from the school she was worried about what happened and advised the father she would attend at his home to pick up Jordan. The father refused to let her come to his home. The mother testified that she was worried about Jordan and wanted to speak to him about the incident. The mother testified that when she attended at the father's home he told her Jordan was sleeping and the father refused to let her into the house to see or speak to Jordan. The mother testified that she saw Jordan sitting on the stairs, the father pushed her out of the house and she fell. The father swore at her and told her to get "the Fuck off my property". The police were called but no charges were laid. The father described that the mother "tends to exaggerate and is a drama queen". Although there are different versions as to what happened, it is clear that a struggle ensured that Jordan witnessed.

[67] The parties had a scheduled court date the next day and as a result of this incident all the exchanges when not at Jordan's school were ordered to be at a neutral public place.

[68] The Children's Aid Society was also involved as a result of this incident. A letter from the society verified that Jordan was being exposed to adult conflict and both parents were cautioned about the risk of emotional harm.

[69] There are a series of emails in the fall of 2013 where the father informs the mother that he signed Jordan up for indoor winter soccer without consulting the mother but then when he finds out that her partner, Chris Blinston is the coach, he refuses to take Jordan and demands Chris step down as coach and threatens to find a new team.

[70] There is an email exchange wherein the mother reminds the father to do Jordan's reading assignment with him, the father responds by telling the mother that she will have to do it as he does not have the time.

[71] In another email exchange the mother asks the father if he is planning Jordan's first communion since Jordan told her it was a secret. The father does not respond. Further, when the mother also testified about this during the trial and the father did not deny it.

[72] The father alleged the mother did not tell him about the soccer and hockey schedule and did not respond to his requests for this information. However, in my review of the emails I noted that the mother emailed the father telling him she just saw the request and asking why he had sent his request to her "yahoo" account when she had told him to use her work email. I further noted that the father had used the mother's work email in all other email exchanges with her. The father used this incident to allege that the mother kept important information from him but I find that the father was at fault and I draw the inference that he set this up purposely to bolster his case.

[73] I further note that despite the recommendations of Ms. Dorian that the child's belongings including sports equipment travel with the child, the father persisted in keeping the equipment causing ongoing conflict between the parties that is evident in the numerous emails regarding the exchange of the hockey equipment. By the time of trial, the situation had deteriorated to the point the mother was not taking Jordan to hockey on her weekends and the maternal grandparents were not attending any of the hockey games as they did not want any further confrontations with the father after an incident that occurred in February 2013.

[74] The emails are filled with examples of an inability of the parties to make mutual decisions and although some of these were as characterized by Ms. Dorian about small insignificant things the level of mistrust and the tone of the communications is concerning. I was struck by the number of times the father's decisions were based on his needs rather than Jordan's. Beside the jealousy over Chris being chosen as a volunteer coach over him, he refused to allow Jordan to attend a NFL hockey game with a friend's parents as he wanted to take him to his first game. He told Jordan his mother would not allow him to go to Portugal or Disney world.

[75] There are further incidents indicating the father and mother could not agree. There was a confrontation at Jordan's hockey game on the Family Day weekend when the mother wanted to take Jordan home and the father insisted that he had the right to keep him for long weekends. The father who kept every little receipt insisted there was an email confirming this arrangement and yet could not produce the proof of any such agreement.

[76] The parties continued to disagree on the father's ability to take Jordan on holidays. The mother objected to the father taking Jordan out of school to accommodate his vacation plans. Nevertheless in November 2012, she consented to taking Jordan out of school for a trip as he had already told Jordan about the trip and shown him pictures on the internet and she did not want to disappoint him. She was also worried that as the father was threatening to take her to court that she might have to pay court costs.

[77] Again in the fall of 2013, the father wished to take Jordan on a trip to Cuba. On October 23, 2013, the mother executed a letter consenting to the father travelling with Jordan from November 26 to December 3, 2013. The father then unilaterally and without consent changed the date to the week before Christmas from December 12 to 19th and booked the ticket to Jamaica. In a letter dated October 28, 2013 he alleges he had to change dates because of the mother's delay in responding to his request. When the mother disagreed with the new dates as this would have interfered with her Christmas plans and result in the father having two consecutive weeks of Christmas access, the father initiated a motion that ended in a settlement. When the mother was cross-examined about this as an example of the parties' ability to co-operate, she testified that it took the parties and counsel six hours in court to reach an agreement. Despite the fact the mother had offered a compromise to make up for her lost weekend access and a schedule for Christmas access and the father accepted her offer, the father then again tried to change the arrangements and threatened to bring another motion.

[78] The father had an opportunity after the release of the Office of the Children's Lawyer report to show the mother that they could get along and co-operate, instead I find that he used every opportunity to control the situation and try to get his own way. He showed his petty jealousy over the mother's partner's relationship with Jordan and his need for control by refusing to release Jordan's hockey equipment. He continued to insist on planning his holidays to suit his schedule and not respect the mother's position that Jordan should not be removed from school.

10. STATUTORY FRAMEWORK AND APPLICABLE LEGAL PRINCIPLES REGARDING CUSTODY AND ACCESS

[79] In determining the issues of custody and access the sole consideration is what is in the best interests of a child. Each case must be decided by a careful consideration of the unique circumstances and needs of the individual child. In determining what custodial orders are in a child's best interest, a court is guided by section 24 of the Children's Law Reform Act and the factors set out in section 24(2). Section 24 provides as follows:

Merits of application for custody or access

24. (1) The merits of an application under this Part in respect of custody of or access to a child shall be determined on the basis of the best interests of the child, in accordance with subsections (2), (3) and (4).

Best interests of child

(2) The court shall consider all the child's needs and circumstances, including,

(a) the love, affection and emotional ties between the child and,

(i) each person entitled to or claiming custody of or access to the child,

(ii) other members of the child's family who reside with the child, and

(iii) persons involved in the child's care and upbringing;

(b) the child's views and preferences, if they can reasonably be ascertained;

(c) the length of time the child has lived in a stable home environment;

(d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;

(e) the plan proposed by each person applying for custody of or access to the child for the child's care and upbringing;

(f) the permanence and stability of the family unit with which it is proposed that the child will live;

(g) the ability of each person applying for custody of or access to the child to act as a parent; and

(h) the relationship by blood or through an adoption order between the child and each person who is a party to the application.

Past conduct

(3) A person's past conduct shall be considered only,

(a) in accordance with subsection (4); or

(b) if the court is satisfied that the conduct is otherwise relevant to the person's ability to act as a parent.

Violence and abuse

(4) In assessing a person's ability to act as a parent, the court shall consider whether the person has at any time committed violence or abuse against,

(a) his or her spouse;

(b) a parent of the child to whom the application relates;

(c) a member of the person's household; or

(d) any child.

[80] I have considered all of these factors in reaching my decision.

[81] I have also considered the principle that children should have as much contact with both parents, provided that such an order is consistent with their best interests.

[82] I have considered that there have been a few incidents of physical altercations between the parties. I accept the mother's evidence and her witnesses where it conflicts with that of the father's. I find that if the father did not get his own way he was both verbally and physically abusive to the mother. However, I find that the incidents have occurred in the context of the uncertainty of the access arrangements, the power struggle between the parents and the stress of the ongoing conflict and the stress of the court proceedings. Once a specific court order is in place, I do not find that the father's past conduct will impact on his ability to parent Jordan.

10.1 Sole custody, joint custody and parallel parenting

[83] The term custody refers to decision-making and authority over a child's upbringing. An order of sole custody permits one parent to be responsible for the care and upbringing of a child including making decisions regarding the education, religion, health and well-being of the child. The parent is able to make decisions generally to the exclusion of the other parent.

[84] An order of joint custody requires both parents to be equally responsible for the care and upbringing of a child including jointly making decisions about all aspects of a child's life. This is regardless of where the child resides. Ideally, a child benefits if both parents, despite not being able to get along as partners are still able to get along as co-parents and discuss and agree upon issues that affect the upbringing and care of their child.

[85] The ability of parents to communicate or the inability of parents to communicate is generally the pivotal issue in determining if there should be an order of sole or joint custody. The case law has established that in order for a court to order joint custody there must be some evidence before the court that, despite their differences, the parties can still communicate effectively with each other.

[86] However, the cases have also recognized that just because one party states that the parties cannot communicate does not preclude a court from ordering joint custody where an examination of the past and present relationship indicates that the parties have the ability to behave appropriately with each other in the presence of the child and put their conflict aside for the sake of their child.

[87] On the other hand, 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. There must be some evidence before the court that, despite their differences, the parents are able to communicate effectively with one another.

[88] Parallel parenting is a parenting arrangement that has evolved to deal with high conflict cases where neither a sole custody order to one parent nor a cooperative joint custody order will meet a child's best interests. Some cases have used this form of joint custody as a mechanism to protect the relationship between a child and parent in circumstances where its absence may give license that to the primary parent to marginalize the other parent's role in the child's life. Parallel-parenting orders can take two different forms. A "divided parallel parenting" regime where each parent is given separate areas of parental decision–making, independent of the other parent or a "full parallel parenting" regime where parents are given the right to make major decisions regarding the child while the child is with them without the consent of the other parent.

[89] In V.K. v. T.S., Justice D. Chappel thoroughly reviewed the case law and set out in paragraph 96 of her judgment factors the court should consider in determining whether a parallel parenting regime, rather than sole custody, is appropriate: as follows:

a) The strength of the parties' ties to the child, and the general level of involvement of each parent in the child's parenting and life. In almost all cases where parallel parenting has been ordered, both parents have consistently played a significant role in the child's life on all levels.

b) The relative parenting abilities of each parent, and their capacity to make decisions that are in the child's best interests. Where one parent is clearly more competent, responsible and attentive than the other, this may support a sole custody arrangement. On the other hand, where there is extensive conflict between the parties, but both are equally competent and loving parents and are able at times to focus jointly on the best interests of the child, a parallel parenting regime may be ordered.

c) Evidence of alienation by one parent. If the alienating parent is an otherwise loving, attentive, involved, competent and very important to the child, a parallel parenting arrangement may be considered appropriate as a means of safeguarding the other party's role in the child's life. On the other hand, if the level of alienation is so significant that a parallel parenting order will not be effective in achieving a balance of parental involvement and will be contrary to the child's best interests, a sole custody order may be more appropriate.

d) Where both parties have engaged in alienating behaviour, but the evidence indicates that one of them is more likely to foster an ongoing relationship between the child and the other parent, this finding may tip the scale in favour of a sole custody order.

e) The extent to which each parent is able to place the needs of the child above their own needs and interests. If one of the parties is unable to focus on the child's needs above their own, this may result in a sole custody order, even if that parent is very involved with the child and otherwise able to meet the child's day to day needs.

f) The existence of any form of abuse, including emotional abuse or undermining behaviour, which could impede the objective of achieving a balance of roles and influence through parallel parenting.

[90] In K.H. v. T.K.R., Justice S. Sherr adopted the above-noted factors and added the following further considerations:

1. The likelihood of one category of decision-making conflicting with another (the spillover effect) and the ability of the parents to navigate those conflicts. For instance, it might appear on the surface that there is a clear delineation between medical and educational decisions. However, that might not be the case with two parents determined to fight and perpetuate conflict. If a school recommends speech-language therapy or therapeutic counseling to take place at school, high-conflict parents will likely fight over whether these are medical or educational decisions.

2. Whether the parents have the ability to navigate scheduling conflicts between activities and appointments. Since they are each acting independently in their own sphere of decision making, what happens when both soccer practice and math tutoring are scheduled for the same time?

3. The geographical distance between the parties. Decisions by the non-residential parent are easier to implement if the parties reside close to one another. If the parties live far apart, the residential parent may not be able to take the children to a doctor, tutor, counselor, school or activity (depending on the area of decision-making) chosen by the non-residential parent. If the parents cannot communicate well, the geographic distance between them can create significant conflict and adversely affect the children.

4. The family dynamics. The court must evaluate if a parallel parenting order is more likely to de-escalate or inflame the parents' conflict.

10.2 Analysis

[91] In this case it is necessary to consider all of these possibilities of a regime parenting as the mother seeks an order for sole custody whereas the father seeks joint custody and relies on the recommendations of the Office of the Children's Lawyer but with significant variation to deal with the issues that have caused conflict. For example, to deal with the problems regarding the transportation of hockey equipment he seeks an order that he be the parent that keeps all of the equipment and take Jordan to all of his practices and games regardless in whose care he is. He suggests that the mother take Jordan to all of his soccer games.

[92] Although not specifically requested, I have also considered a variation of joint custody being a parallel parenting plan that specifies the decision making as the father alleges the mother has deliberately attempted to curtail his time with Jordan and has interfered with his ability to be involved in Jordan's life. I have also considered this option as the Office of the Children's Lawyer report does not discuss how decisions are to be made other than hoping the parties in the future will be able to do so, opining that there are no major decisions to be made and suggesting a parent co-ordinator be appointed if the parties cannot agree.

[93] Both parents love Jordan and he loves them. Jordan has a very close relationship with his maternal grandparents and also with the mother's partner.

[94] Jordan has lived in a stable relationship initially with his mother and the maternal grandparents and now with his mother and her partner.

[95] I find that both parents are able to meet Jordan's educational needs. I reject the father's evidence that Jordan was falling behind academically. The father spent a great deal of time outlining and providing proof of how he read to Jordan and followed an online reading program for him, that the mother did not do this and that by implication it was only as a result of him that Jordan was able to meet his required reading abilities. There was no evidence that Jordan was not meeting his academic milestones as confirmed by his principal. Although I find that the father on occasion has not ensured Jordan's homework was done, I find that this has more to do with asserting "his time" with Jordan than his inability to ensure that the homework was done.

[96] I also find that the mother is able to meet all of Jordan's medical and dental needs. The mother has been the parent responsible for arrange for all of Jordan's general medical appointments. I find that there was no need for the father to take Jordan out of school and arrange an immediate appointment with an optometrist. Although the father took Jordan to the dentist, as this is covered by his employment health plan, he could not resist testifying that the mother was not flossing his teeth. I find that if the father had not taken it upon himself to arrange these appointments without consulting or informing the mother, the mother was more than capable of doing so based on her historical ability to meet all of Jordan's needs.

[97] I find that the mother and her parents have tried to ensure that the father was involved in Jordan's life from conception. I find there is no evidentiary basis to find that the mother has alienated or done anything to interfere with the father's ability to be part of Jordan's life and involved in decision making. I reject the father's evidence that he had to fight "tooth and nail" to be involved or that he was "left out in the cold".

[98] Although the father has played an important and significant role in Jordan's life especially the last few years, I find that the mother has been the primary caregiver.

[99] I find that the mother has generally placed the child's needs above her own needs and interests. However, the mother's refusal to take Jordan to his hockey games on her weekends because of the confrontations with the father and his refusal to give her Jordan's equipment has not been in Jordan's best interests. I find the father has continually needed to assert his power and control over the mother and as a result has not made decisions that place Jordan's needs above his own.

[100] I find that a regime for joint custody would not be workable in this case. I find there is no history of any ability of these parties to co-operate. I do not accept the findings of the Office of the Children's Lawyer that the parties only disagree about minor matters and that this is somehow not an impediment to a joint custody order. Based on the evidence at trial including the email communication between the parties, I find that the father has been demanding and confrontational and there is no realistic prospect of these parties engaging in a co-operative parenting arrangement.

[101] Based on the evidence I have accepted in this trial, I find there are fundamental differences and disagreements between the parties, such as whether or not the child should be taken out of school for a holiday or the number of extra-curricular activities that are appropriate. I find that these differences will not diminish if the parties are required to make joint decisions. The father's fundamental disrespect of the mother and of her parenting abilities is inconsistent with an order of joint custody.

[102] I find that the recommendations of the Office of the Children's Lawyer are contrary to the legal principles for an order of joint custody order. The Ontario Court of Appeal has made it clear that joint custody should only be ordered where there is a history of communication and co-operation and not a hope that in the future the parties will co-operate. Ms. Dorion's recommendations for joint custody are based on the hope the parties will be able to get along in the future and if not, that any disputes be delegated to a parent co-ordinator which the Ontario Court of Appeal in Kaplanis, was clear was not permissible. Ms. Dorion also engages in circular reasoning in that as she was recommending a shared alternate week schedule she therefore also recommended the parties would have to also have shared decision making. She fails to consider the legal basis for an order of shared or joint decision making. Further, she fails to distinguish between the different legal considerations for recommending shared decision making as opposed to shared parenting time.

[103] Counsel for the father submitted that this case was similar to the case of Ladisa released on the same day as the decision in Kaplanis, by the same panel, where the court upheld the trial judge's order for joint custody. However, in that case there was a finding that the parties who had been married for sixteen years had a history of co-parenting and co-operating. The trial judge found that despite their intense conflict the parents had been able to behave properly in front of the children and third parties. They had been able to work co-operatively to deal with medical emergencies and in arranging to fetch items or sports equipment that one of the children had forgotten at the home of the other parent. Ironically this is precisely what these parents have been unable to do with respect to the hockey equipment and other items belonging to the child. Also, these parties have no history of living together or co-parenting and have not behaved properly in front of Jordan.

[104] I also find that an order for joint decision making in any kind of parallel parenting arrangement is unworkable. There are numerous examples of the inability of these parents to communicate about scheduling and access arrangements that make it easy to predict that if there was an order for joint decision making, in any kind of parallel parenting arrangement, that there would be ongoing conflicts about the exact meaning of the category of the decision making. Any such order based on the history of the parties' relationship would merely escalate and not de-escalate the conflict.

[105] A parallel parenting order is also not required to ensure the father is involved in the child's life as I find that there is no evidence to substantiate the mother has excluded the father from being involved in the child's life on the contrary I find that the mother has made decisions that ensure and encourage the father's involvement. I note that in Ms. Dorian's report she refers to her "concerns" that the mother would not involve the father in decisions regarding Jordan or restrict his time with Jordan, however, I find that there is no basis for that concern on any evidence before this court.

[106] Based on these findings, I find that the mother should be granted sole custody of Jordan. The mother has shown that she has the ability to make decisions in the best interests of the child, that she will consider the father's views in making such decisions and she has encouraged the father's relationship with the child.

[107] With respect to the father's access with the child, I have considered the findings of the Office of the Children's Lawyer that Jordan is doing well in the current access arrangement but that both the father and Jordan wish to spend more time with each other.

[108] Although the court should consider a child's views and preferences, less if any reliance should be placed in the wishes of children under nine years of age. As recently expressed by the Ontario Court of Appeal, in Decaen v. Decaen:

It is thought that the expressed preferences of young children are most likely fleeting, subject to external influence, and inconsistent with their actual best interests. A child's request to dine on candy alone is likely inconsistent with her best interests.

[109] I find there is no basis for changing the current arrangements that have been in place for several years, that are working well and that provide the father with meaningful contact with the child. I agree that the Sunday evening return should be changed to a return to Monday at school as this will further minimized the contact between the parties and provide the father with one more evening with the child.

10.4 Other access terms and parenting arrangements

[110] Both counsel have provided the court with an outline of the terms of the order they seek which is very useful and contains many provisions upon which they agree. I will only address the major disagreements.

[111] The father has adopted the proposal in the Office of the Children's Lawyer recommendations that all of the holidays, except Christmas, are rotated yearly so that one parent has the child in his or her care for March break, Easter, Thanksgiving, Family Day, Halloween and Jordan's birthday in one year and in the next year the other parent has all of these holidays. I do not find that this proposal is in the child's best interests. The explanation given for this recommendation was that it was easier. Surely, it is better for children to spend some holidays each year with both parents. I have also rejected the mother's proposal that would divide most of these holidays as it requires too many exchanges between the parties.

[112] The Office of the Children's Lawyer recommended that the child's belongings including his sports equipment travel with him. This issue has caused considerable disagreement between the parties and interfered with Jordan's ability to fully participate in his activities. I do not accept the father's explanations as to why he is unable to give the mother Jordan's hockey equipment and why it is necessary for him to be in control of it. If the father is unable to ensure that the equipment travels with the child and returns the equipment at the end of each visit to the school or drops it off at the mother's home, the equipment will simply have to remain in the mother's possession at all times and the father will have to buy duplicate equipment, if necessary.

[113] I have also considered the father's request and recommendation of Ms. Dorion that if either parent is unable to care for the child that the other parent should be given the right of first refusal. In view of the parties' inability to communicate and the level of conflict I find that such an arrangement will simply lead to more conflict. Neither party currently has employment that interferes on a regular basis with their ability to care for Jordan and if there are isolated occasions when they are unable to care for Jordan each parent should be responsible for making appropriate arrangements.

[114] The mother has requested a police enforcement clause as it is submitted that in the past there were instances where the father refused to return Jordan or threatened to do so. Although I agree that the mother has provided proof that the father did over-hold Jordan and the mother was forced to obtain court orders to clarify who could pick Jordan up, I find that if the court order clarifies who can pick up Jordan and specifies holiday access the previous disagreements should be avoided.

[115] I adopt the thorough reasons of Justice Pazaratz in Patterson v. Patterson about the negative impact on young children of the involvement of the police in conflict between their parents and the court's obligation to consider less destructive and more creative alternatives. In this case, Jordan has already been exposed to the police being involved in a dispute between his parents and his aware of their conflict. Although he is presently not showing any signs of emotional harm or distress, if his parents have the ability to involve the police in any time-sharing dispute, I am concerned his future emotional stability will be impacted. I find that at this time, more harm than good would be accomplished by including a police enforcement provision.

11. EVIDENCE REGARDING FINANCIAL ISSUES

[116] The mother seeks child support retroactive to the date Jordan's birth. Although she is not seeking any retroactive contribution to her section 7 expenses namely daycare expenses, she testified regarding these expenses and counsel submitted they are relevant to the claim for retroactive child support. The father submits that he has always met his financial obligations and there is no basis for a claim for retroactive support.

11.1 The father's financial contributions

[117] Although the father agreed that he did not pay any child support for the first six months of Jordan's life, the father alleged that he bought all kinds of food and clothing for Jordan from his birth to January 2007 and provided a document brief of receipts for what appears to be every single cent he ever spent. The mother alleges the father did not contribute and when she asked him for money he told her he was in school and couldn't afford to pay anything and if she took him to court he would be forced to pay and would not be there for Jordan growing up.

[118] I find that the father's small contributions for the first few months of Jordan's life do not compensate for his obligation to pay child support. In closing submissions the mother's counsel also raised concerns about the legitimacy of these receipts but as the father was not cross-examined about the receipts and therefore did not have an opportunity to explain them, I put no weight on that submission.

[119] I agree with the submission of mother's counsel that the father's evidence that the mother and Jordan living with him for several months after the child's birth was his attempt to justify his lack of paying child support. The father chose not to call his mother and her partner, who were available and sat through the court proceedings to corroborate his evidence.

[120] Although there is some dispute as to the circumstances under which the father began to pay child support, nevertheless it is agreed that as of January 2007, the father began to pay child support. The father testified that he looked up the child support guidelines and based on his 2005 income he gave the mother post-dated cheques. The father never explained why he would not have used his 2006 income. He never explained why over the next several years he never provided the mother with proof of his income or why he never changed child support in accordance with his income. He did from time to time increase the amount of child support. He testified that he provided the mother with extra money for what he assumed were added expenses. He even kept track of small amounts of extra money he gave the mother, $15 in 2008, $30 in each 2009 and 2010 and $60 in 2011. But he was not clear what these amounts were for. However, it was clear the father was aware of the child support guidelines and he testified that his mother worked in his counsel's law office. I draw the inference that if the father had wanted to make his child support payments in accordance with the guidelines he could have. Instead he chose to pay whant he wanted.

[121] Both parties presented evidence about the amounts of money the father paid prior to the court order for child support. From January 2007 to and including December 2011, the mother provided proof the father paid $30,174 and the father provided proof he paid $31,777. A difference therefore of only $1,603.00. As previously indicated, the father testified that he sometimes gave the mother some extra money for special expenses I would attribute these extra funds as the father's very small contribution to Jordan's section 7 expenses during these years. It should be noted that other than this small amount of extra funds he never contributed to any of Jordan's daycare expenses which were $35 a day for almost two years until the mother was able to obtain subsidized daycare.

11.2 Evidence regarding the father's income

[122] During the court proceedings, the father was evasive regarding his income. On February 29, 2012, the father advised the court he earned $70,000 and on consent he began to pay child support of $650 per month. Although the father would have received his year-end paystub, in cross-examination he stated that he never opens his paystubs. On May 7, 2012 there is further endorsement indicating the father's income for 2011 was $89,591.15 and his child support was then increased to $798 per month as of May 1, 2012.

[123] In addition to working full-time in the refrigeration business, in 2009 the father began a small business servicing and installing garage doors. He also began an air conditioner business in about 2010. The father was vague with respect to when he started both businesses. He stopped all of these businesses when he was made a project manager for his company as there would have been a conflict of interests.

[124] The father submitted hundreds of pages of receipts for his business expenses. When cross-examined about some of these expenses such as bills for purchases of liquor, restaurants and so forth he replied that these were legitimate expenses and stated that he submitted the expenses to his accountant who prepared his tax return and the expenses were accepted by Revenue Canada.

[125] However, I have reviewed the expenses and found that there are many expenses that cannot be considered legitimate business expenses. For example, purchases of liquor exceeding $700 for several years, many restaurant and bar bills, one bill that even included a child's meal, patio furniture, play sand and patio stones, pot lights, a vanity, drywall, furniture from the Pottery Barn, a hotel bill and deductions for use of his home. I find that the father used his business as a means of writing off his personal expenses.

[126] The father also submitted each year with his tax returns a form signed by an administrator from his employment indicating that he was responsible for paying for his 407 ETR expenses and tools. He therefore also deducted from his employment income these expenses. However, when it was pointed out in cross-examination that the 407 ETR statements were in his mother's name and used her address, the father gave some convoluted explanations about not changing the account into his own name. But for some years there were receipts in both his name and his mother's name for two separate accounts. Also the tax form just states "tools" with no list attached. In view of the fact the father kept every receipt for every purchase he seems to have ever made for the last seven or eight years, I find it surprising and draw an adverse inference from the fact that he did not attach a detailed list of the tools to this tax form for his employer to review of the tools that he purportedly purchased and used for his employment.

[127] The father produced into evidence a letter of employment outlining the terms of his employment but the letter does not mention the requirement that he buy tools. I noted that the father also claimed expenses for the cost of renting and buying tools for his business. In view of the illegitimate claims for his business expenses and without any other corroboration that these expenses were in fact for business tools as opposed to being used for his own personal purposes, I find that these claims should not be permitted to artificially reduce the father's income for child support purposes. For the same reason, I would not permit the deductions for the use of the 407 ETR as I do not accept the father's explanation regarding for this deduction and it appears his account was also used by his mother. The father chose not to call his mother as a witness who could have corroborated his explanation of the use of the 407. He could also have called his employer to provide an explanation of his employment expenses but chose not to do so.

[128] The father's employment income and gross and net business income is as follows:

Year	Employment income	Gross business income	Net business income	Line 150	Explanation
2006	$53,879			$53,879	Includes EI
2007	$61,092			$61,092	Includes EI
2008	$101,506	$92,109		$25,000 deduction for tax shelter
2009	$97,334	$5,226	$-7,716	$89,617
2010	$97,615	$5,8995	$-16,899	$97,612
2012	$104,530
2013	$110,380				T4 for 2013 produced

11.3 The mother's financial circumstances and income

[129] The mother was employed at a car dealership and worked as a waitress before Jordan was born. During her maternity leave she only received employment insurance. She returned to work at a car dealership when Jordan was about 10 months old. She also supplemented her income by working at a restaurant and bar at night. She began to work full-time as a waitress and eventually become a manger at a restaurant in 2001 but then returned to the car dealership.

[130] When she returned to work in 2007, she hired and paid $35 a day for a private daycare provider. She applied for a daycare subsidy and obtained it in July 2009.

[131] The mother's income is as follows:

Year	Line 150 income	Employment income	UCC	Explanation
2007	$50,833	$41,275	$1,200	Includes EI maternity benefit
2008	$23,922	$21,214	$1,200	Includes $1,508 RRSP
2009	$44,132	$42,932	$1,200
2010	$15,826	$14,512	$1,200	Includes workman's comp
2011	$14,650	$13,450	$1,200
2012	$44,017	$44,017	$600	Father claimed $600
2013	$70,377			T4 for 2013

[132] The mother testified that without the financial assistance of her parents she would not have been able to meet Jordan's needs and specifically would not have been able to afford to pay for enrollment in extra-curricular activities and for the necessary equipment.

12. DETERMINATION OF FATHER'S INCOME FOR CHILD SUPPORT PURPOSES

[133] It is submitted by mother's counsel that the father should not be permitted to deduct his employment and business expenses as he has failed to meet the onus on him to prove these are legitimate expenses. Therefore in calculating the father's income counsel had used the father's line 150 employment income and his gross business income. In the year the father had a tax shelter and artificially reduced his taxable income he urges the court to consider the father's actual income.

[134] It is submitted by father's counsel that the father's tax return was prepared by his accountant and the expense deductions were permitted by the Canada Customs Revenue Agency and therefore should be allowed. It is also submitted that for several years the father paid union fees that should be deducted as well as the amount the father paid for his extended health benefit plan.

12.1 Applicable law regarding income determination

[135] Section 2(3) of the Child Support Guidelines requires a court to determine income based on the most current income information available.

[136] Section 15 provides that a court is required to determine income for child support purposes in accordance with sections 16 to 20 and Schedule III of the Child Support Guidelines.

[137] Section 16 provides the annual income is determined using the sources of income set out under "Total income" in the T 1 General tax return (that is, line 150 of a taxpayer's tax return), subject to sections 17 to 20 and Schedule III.

[138] However, where a payor's annual income, determined in accordance with section 16, would not be the fairest determination of that income, the above-noted provisions provide the factors a court should consider in order to determine the payor's annual income for the purposes of child support.

[139] The Guidelines expressly provide in s.19 (2) that the determination as to whether an expense is reasonably deducted from a payor's income is not governed by whether it is properly deducted for income tax purposes. A support payor bears the onus of justifying that any deduction for business expenses is, indeed, for legitimate business purposes.

[140] The law is clear that it is not necessary for the court to find a parent payor acted in "bad faith" before it has the discretion to impute income that is, a court does not need to find that there was a deliberate attempt to evade child support obligations before it can impute income.

12.2 Analysis regarding father's income determination

[141] In this case, I find that father has not met the onus of proving on a balance of probabilities that his business and employment deductions are reasonable or necessary to earn income. Even the most cursory review of his expenses raises serious issues regarding the legitimacy of those expenses.

[142] I also adopt the reasoning of several cases that the mother's entitlement to child support should not be reduced to help finance a support payor's sideline business. I have also considered that although a loss may be reasonable in the first year of starting a business to continue a business for several years without incurring a profit should not be used to the detriment of the support a child would otherwise be entitled to.

[143] I would also not permit the tax shelter the father used in 2008 to artificially reduce his income for that year.

[144] Although union fees are proper deductions and are documented on the father's tax return for several years from 2007 to 2011 and range from annual dues of $212 to $520. I have calculated the difference in child support if these amounts are deducted from the father's income and the difference is from between $1 to $4 a month. In total the difference for all of the years in question is about $180.00. As the father is no longer a member if the union this deduction is only relevant if an order for retroactive support is made.

[145] The father is also seeking to deduct his taxable health benefits as he submits these unfairly increase his income. But benefits are considered income for child support purposes. The father could request a sharing of the portion of medical and dental insurance premiums which are attributable to the child in accordance with section 7 (1)(b) of the Guidelines. However, the onus is on the father to provide proof as to the amount of the premium attributable to the child. As he has failed to do so, I would not permit this deduction.

[146] I find that the fairest method of calculating the father's income for child support purposes is to rely on his line 150 income. I am not prepared to add to his income his gross business income as it is logical to assume that he must have incurred some expenses but in view of the inflated and generally improper expenses that were deducted I have no basis to determine what his legitimate expenses would have been. The actual amounts earned are not great and would not greatly affect the amount of child support.

13. RETROACTIVE CHILD SUPPORT

13.1 Applicable law relating to a claim for retroactive child support

[147] The law with respect to a claim for retroactive child support is set out in the seminal case of D.B.S. v. S.R.G. et.al. The court held that generally a claim for an increase in support should be calculated as of the date of "effective notice" that is, when the recipient indicated that an increase in child support was requested and that unless the payor demonstrated bad faith or blameworthy conduct, the award should not be more than three years before formal notice.

[148] The court further held that the decision to order retroactive support should be based on a consideration of factors and that none of the factors is decisive. The court should strive for a holistic approach and strive to balance the payor's need for certainty with the need for fairness and flexibility. The factors to be considered areas follows:

(a) The reasonable excuse for the delay in seeking an increase in support;

(b) The conduct of the payor;

(c) The circumstances of the child, both past and present;

(d) Any undue hardship.

13.2 Analysis regarding retroactive support

[149] Both counsel have relied on various passages from the DBS, supra, decision to support their respective client's position which I have considered.

[150] Applying the above-noted criteria and the principles in the DBS decision, I find the following to be relevant factors:

[151] Reasonable excuse for delay: I accept the mother's evidence that she was in a precarious financial situation after Jordan's birth, wanted the father to be involved and was intimidated by his threats if she forced him to pay child support he would have nothing to do with the child. I further accept that the paternal grandfather was able to pressure or embarrass the father into paying some child support and that the mother had no idea if it was the correct amount or not but continued to be afraid of the father and therefore did not proceed to court. The mother did not seek support in accordance with the Child Support Guidelines and disclosure of the father's income until she commenced her application in October 2011. I agree with the father's submissions that it was not until she amended her claim that it became clear she was seeking retroactive support.

[152] Conduct of payor parent: The father did not disclose to the mother his increase in income although he was aware that he was obligated to pay child support in accordance with his income pursuant to the Child Support Guidelines. I do not accept the father's evidence that the parties had an agreement as to what he would pay as there is nothing in writing to confirm such an agreement. I do not accept the father's evidence that the parties agreed he would contribute to a RESP as part of his child support obligation as again this is not confirmed in writing. In view of the meticulous records the father kept it is inconceivable that if such an agreement existed that he would not have documented it. Also, the father did not start contributing to the RESP until two years after he alleges there was such an agreement. I also note that in an email to the mother after this litigation commenced, he threatened to cash in this RESP. Further, the father will benefit from his contribution to the RESP as he will use it to meet his obligation to contribute to the child's post-secondary expenses. I also find that the father throughout the court proceedings has been less than forthright with respect to his actual income in an attempt to reduce his child support obligations. I find that the father engaged in blameworthy conduct by not keeping the mother advised of his increases in income and not adjusting his child support payments accordingly.

[153] Child's present and past circumstances: There is ample evidence to substantiate the mother's financial circumstances and how she had to work multiple jobs to make ends meet. It is correct as submitted by the father that Jordan did not suffer but that was only as a result of the financial assistance of the maternal grandparents who helped support Jordan. The father was able to accumulate assets while not meeting his child support obligations including purchasing a home and a substantial amount of RRSPs. The mother has not been able to accumulate any savings for Jordan as the father has been able to do.

[154] Whether or not a retroactive order would cause hardship: The father earns an income of over $100,000 and has assets and the ability to borrow money if necessary to pay an order for retroactive support. Any financial hardship can be alleviated by periodic payments.

[155] In determining whether a retroactive order should be made, a court should strive for a holistic approach and strive for a balance between the payor's interest in certainty with the need for fairness to the child and for flexibility.

[156] I find that balancing all of the factors, the mother is entitled to retroactive child support to the date of the birth of the child. The father was aware of his child support obligations and chose to pay what he wanted and as a result he benefited his own interests over those of the child. I find the mother was afraid and intimidated by the father and as a result did not earlier pursue the correct amount of child support. I find that father has, since Jordan was born, chosen to conceal or diminish his income to the detriment of the child. The mother is only seeking retroactive table child support and not pursuing a claim for retroactive contribution by the father to the child's special expenses. The father has the ability to pay a retroactive order.

[157] Accordingly there will be an order that the father pay child support retroactive to the date of birth of the child based on his line 150 income as set out in his tax return. He is entitled to credit for the amounts of support he has paid directly to the mother prior to the court order requiring support be paid through the Family Responsibility Office as of March 1, 2012. Any funds paid by the father pursuant to the court orders will be adjusted by the Family Responsibility Office in accordance with the order made in this proceeding.

[158] The calculations as to his child support obligations are as follows:

Year	Line 150 income	CSG	Number of months	Amounts due	Amounts paid	Arrears
2006	$53,879	$499	7	$3,493	$0	$3,493
2007	$61,092	$567	12	$6,804	$4,824	$1,980
2008	$101,506	$888	12	$10,656	$5,500	$5,156
2009	$97,210	$855	12	$10,260	$6,700	$3,560
2010	$97,612	$858	12	$10,296	$6,550	$3,746
2011	$89,591	$795	12	$9,540	$6,600	$2,940
2012	$104,530	$915	2	$10,980	$1,250	$610

The total arrears owing from June 3, 2006 to and including February 1, 2012 is $21,185.00.

14. CONCLUSION

Order as follows:

1. The Applicant shall have sole custody of the child, Jordan DaSilva-Potter, born June 3, 2006. The primary residence of the child shall be with the Applicant.

2. The Respondent shall have access with the child on the following alternating week Regular Schedule:

a. In Week 1, from Thursday after school until return to school on Friday morning. If Friday is a school holiday, the Respondent shall deliver the child to the Applicant's home at 8:00 a.m.; and

b. In Week 2, from Thursday after school until return to school on Monday morning. If Monday is a school holiday or long weekend, then the Respondent shall deliver the child to school on Tuesday morning unless the day is specifically dealt with under the Holiday Schedule below; and

c. During the school summer vacation or any other time that the child cannot be dropped off at school, daycare or summer camp, all drop offs and pick-up shall be at the same times at the Applicant's home.

3. The following Holiday Schedule shall override the Regular Schedule out above:

a. The child shall be with the Respondent every Father's Day from 10:00 a.m. until the start of school the following day or 8:00 a.m. whether or not it is his week for access.

b. The child shall be with the Applicant every Mother's Day from 10:00 a.m. until the start of school or 8:00 a.m. the following day whether or not it is her week for access.

c. School Summer Vacation: Each party shall have two one-week uninterrupted summer vacation periods with Jordan. Commencing in the summer of 2016, each party can have the child for two consecutive uninterrupted weeks. In even numbered years the Respondent shall have first choice and in odd numbered years the applicant will have first choice. Parties to notify each other by April 15th of their choice of weeks in writing. If the party having first pick fails to notify the other party by April 15th, then they shall forgo their opportunity to first pick of summer vacation in that year. The party having second pick of summer vacation shall advise the other party of their choice by April 30th. The regular residential schedule shall resume at the beginning of the first day of school following the summer vacation.

d. Easter: In even numbered years the child shall reside with the Applicant commencing from Thursday after school until return to school Tuesday morning. In odd numbered years, the child shall reside with the Respondent from Thursday after school until return to school Tuesday morning.

e. Thanksgiving: In even numbered years the child shall reside with the Respondent from Friday after school until return to school Tuesday morning. In odd numbered years, the child shall reside with the Applicant from Friday after school until return to school Tuesday morning.

f. Christmas: The child shall equally share the Christmas vacation with the child. In even numbered years, the Applicant shall have the child in her care from the last day of school until Christmas Day at 1:00 p.m. If this time equals less than seven days, then the Applicant shall have make-up time after New Year's Day. The Respondent shall have the child in his care from Christmas Day at 1:00 p.m. to until New Year's Day at 1:00 p.m. In odd numbered years, the Respondent shall have the child in his care from the last day of school until Christmas Day at 1:00 p.m. If this time equals less than seven days, then the Respondent shall have make-up time after New Year's Day. The Applicant shall have the child in her care from Christmas Day at 1:00 p.m. to until New Year's Day at 1:00 p.m. The regular residential schedule shall resume at the beginning of the first day of school following the Christmas vacation.

g. March school break: In even years, the child shall reside with the Respondent from Friday after school for the week and return to school on the following Monday morning; in odd years, the child shall reside with the mother from Friday after school for the week and return to school on the following Monday morning.

h. Child's birthday: The child shall spend his birthday with the party who has care of him in accordance with the regular residency schedule. The party who is not parenting on the child's birthday shall have two hour access during that day having regard to the parties' work schedules. The party in whose care the child is shall be responsible for arranging any birthday celebration.

i. All other holidays and special occasions including but not limited to Family Day, Victoria Day, Canada Day, August civic holiday, the parties birthdays and Halloween shall follow the regular residential schedule. The party in whose care the child is for Halloween shall be responsible for purchasing his costume.

4. The residential and holiday schedule shall only be altered on the prior written consent of both parties or by further court order. There shall be no make-up time for missed parenting time, unless the parties mutually agree in writing otherwise.

5. If the child is sick, the transition from one parent's care to the other parent's care is to proceed unless the child is too sick to travel between the parties' homes as per the determination of the child's doctor. A written, signed and dated letter, from the child's doctor listing his/her recommendations must be provided to the parent whose care the child would normally be in, within 24 hours of the doctor's visit.

6. There shall be no restrictions placed on the child with respect to personal items, toys and gifts he wishes to take with him between the residences of the parents. Should the child wish to take a gift, toy or article of clothing, he shall be permitted to do so, without the intervention of the other parent. The child shall be returned in the same set of clothing that he travelled in and the clothing shall be laundered prior to leaving. Any belongings travelling between homes shall be treated with care and respect.

7. The child shall be permitted to be registered in one winter activity (such as hockey), and one summer activity (such as soccer). The Applicant shall consult with the Respondent before registering the child in any activity. If the parties cannot agree the Applicant's choice shall prevail. The costs of the activities and equipment are to be shared proportionally in accordance with their incomes. The child's equipment for these activities shall travel with the child and shall be left either at the child's school or if that is not feasible the equipment shall be delivered to the Applicant's home at the end of the Respondent's parenting time with the child and shall be picked up by the Respondent at the commencement of his next scheduled parenting time. If the Respondent fails to comply with this provision, the equipment shall remain in the Applicant's possession.

8. Neither party will arrange activities for the child when the child is scheduled to be with the other parent without the other's parent's prior written consent. This includes suggesting or discussing the possibilities of activities with the child when the child is scheduled to be with the other parent, without that parent's prior written consent.

9. The Applicant and the Respondent may enrol the child in additional activities at their own expense and on their own time.

10. Each party is responsible for ensuring the child's attendance at his extracurricular activities during his or her scheduled time. The party responsible for the child may use third party assistance where he or she deems it to be appropriate. The other party may attend the child's activities to support the child but shall not in any way interfere with the other party. The party shall attend only to observe the event and shall refrain from making any derogatory comments or gestures towards the other party or any third party in attendance such as a new partner or family member.

11. The Applicant shall consult with the Respondent regarding any major decisions regarding the child's religious training or educational program and any medical or dental decisions including but not limited to decisions regarding medications or treatment. If the parties cannot agree the Applicant's decision shall prevail. For clarity, the Applicant shall be entitled to make all medical and dental appointments but at her discretion can permit the Respondent to continue to arrange the child's dental care.

12. Each party shall be entitled to attend the child's school events and parent-child meetings regardless of the residential schedule.

13. Each party shall ensure that any homework or class projects assigned to the child are completed while the child is in their care.

14. Neither party shall remove the child from school for the purpose of personal vacations during the school unless with the prior written consent of the other party. Neither parent is to discuss with the child any vacation plans that would involve the child missing school prior to receiving written consent from the other party.

15. The child shall be allowed to travel abroad for the purposes of a vacation with either party during their scheduled time with the travelling party. The travelling party shall obtain the written consent of the other party; such consent shall not be unreasonably withheld. The vacationing party is to provide the non-travelling party with an itinerary which shall include the flight numbers and departure/arrival times, as well as address(es) and telephone number(s) where the child can reached, three weeks prior to the trip. The non-travelling parent must sign and notarize any travel documents to make travel outside North America possible for the child, at the cost of the travelling party.

16. The Applicant shall ensure that the child has a valid passport. The cost will be shared by the parties equally.

17. The child's passport and other documents (i.e. birth certificate) shall be kept in the Applicant's care. In the event that the Respondent plans to travel with the child, he shall provide the Applicant with the notice set out above, and the Applicant shall provide the Respondent the child's passport at least 10 days prior to the planned trip. Upon the return from the trip, the Respondent shall return the child's passport to the Applicant at the next transfer of the child.

18. The Applicant shall keep the child's health card in her possession, and she shall provide the Respondent with a copy of the same with the version code and provide it to him if it is required. After use, the Respondent shall return the card promptly.

19. At this time, both the Applicant and Respondent live in close proximity to each other and the child's school. In the event that a party relocates, he or she will be responsible for ensuring that the child is transported to and from school, unless both parents are in agreement to the child transferring to a different school.

20. Neither party shall make any derogatory comment about the other or their partners in the presence of the child. They should ensure that their friends, partners or family members follow this requirement. The party shall not engage in any verbal or physical aggression in the presence of the child anytime.

21. The parties shall facilitate regular phone and email access with the child when they are with the other parent. The parties shall utilize an email system for communication about issues relating to the child. Emails shall be used strictly for the sharing of information pertaining to the child. If the parties agree they may use the Family Wizard where extracurricular activity schedules can to be posted and so that the child may have access to email each parent when it is not their access time. The cost shall be equally divided.

22. Although neither party should rely on the other parent to provide information about the child's school and sporting events, they should use their best efforts to keep the other party informed of all matters relating to the well-being of the child and they should not deliberately withhold information. The Respondent shall not remove any school letters addressed to "Mom" from Jordan's school bag and the Applicant shall not remove any school letters addressed to "Dad" from Jordan's school bag.

23. The child's names shall not be changed in any respect.

24. The Respondent shall pay to the Applicant arrears of child support from June 3, 2006 up to and including February 1, 2012, fixed in the amount of $21,185.00 at a minimum of $500.00 per month commencing on August 1, 2014.

25. The Respondent shall pay to the Applicant as child support for the child Jordan Da Silva-Potter, born June 3, 2006:

a. Based on his 2012 income of $104,530.00, $915.00 per month from March 1, 2012 up to and including December 1, 2012 with credit for any payments received by the Family Responsibility Office;

b. Based on his 2013 income of $110,380.00, $961.00 per month as of January 1, 2013 with credit for any payments received by the Family Responsibility Office;

c. Based on the Respondent's 2013 income of $110,380.00 and the Applicant's 2013 income of $70,377.00, the Respondent's proportionate share, which is currently 61% of the child's special or extraordinary expenses. The Applicant shall submit proof that she paid any special or extraordinary expenses to the Respondent. The Respondent shall within 14 days of receipt of such proof provide the Applicant with his proportionate share of this expense. Such proportionate payments may be made directly to the third party or organization, if the parties agree and this is acceptable to the third party or organization.

26. Each party shall maintain full health care and medical coverage for the child available to them through their employment, for so long as such coverage is available to them. Such coverage includes but is not limited to health, hospital, vision care, dental, drug plan etc.

27. For as long as child support is to be paid, the payor and recipient shall provide each other with a copy of his or her income tax return with all attachments and a copy of their Notice of Assessment and any Notice of Re-assessment as of June 30th, 2014 and each year thereafter. The child support payable for the preceding year shall be adjusted accordingly.

28. Support Deduction Order to issue.

29. The Applicant shall have 30 days from the release of this order to serve and file written submissions as to costs with a bill of costs and any offers to settle to be attached. The Respondent shall have an additional 30 days to serve and file his written submissions in response as to costs. Written submissions shall be limited to 3 pages.

Released: June 19, 2014

Signed: Justice Roselyn Zisman