Court File and Parties
Ontario Court of Justice
Date: 2014-07-08
Court File No.: Brampton 1488/11
Between:
Soymer Goire Martinez Applicant
— And —
Kevin Gerald Osborne Respondent
Before: Justice Philip J. Clay
Heard on: June 16, 2014
Reasons for Judgment released on: July 8, 2014
Representation:
- Soymer Goire Martinez: on her own behalf
- Anita K. Kania: counsel for the respondent
CLAY J.:
PROCEDURAL BACKGROUND
[1] This was an Application brought by the Applicant mother for custody of the child Katherine Orla Goire Osborne born January 15, 2010. The Applicant also sought child support and authority to travel with the child without notice to or consent of the Respondent father.
[2] The Respondent father filed an Answer in which he sought custody and child support. He claimed joint custody as alternative relief.
[3] At the time of the Application the child was only 23 months old.
[4] No temporary custody order was made during the case management process. The parties attended mediation and a detailed order was made by the Honourable Justice J.C. Baldock on July 23, 2012 with respect to time sharing and the obligations of each parent towards the child and towards each other.
[5] That order also provided that the Respondent was to pay a fixed amount towards arrears of support and child care expenses but it did not provide for ongoing child support.
[6] On January 4, 2013 the Honourable Justice Nevins made an order that the child shall be in the temporary care of the Applicant for what amounted to 5 days one week and 4 days the next. He ordered the Respondent to pay child support of $566.00 per month.
[7] By March 11, 2013 the time share had changed and the parties filed a consent to a change in the temporary order. My order of the said date required the Respondent to pay child support of $178.00 per month.
[8] Ultimately on January 13, 2014 the matter which had by then been before the court for 748 days was scheduled for a summary trial on June 16, 2014.
[9] Neither party had counsel when the matter began. Both parties had counsel at the time of the March 11, 2013 order. The Applicant filed a Notice of Change of Representation in September 2013 and as she did not yet have new counsel by January 13, 2014 the matter was put over to May 14, 2014.
[10] On May 14, 2014 the Applicant was represented by Ms. S. Khan and the Respondent was still represented by Ms. A. Kania. Timelines were set for the filing of affidavits as it was agreed that each party's evidence would go in by affidavit subject to cross-examination.
[11] On May 27, 2014 Ms. Khan brought a motion for the production of Children's Aid Society records. I denied the motion as the records sought were from 2011 and earlier and pre-dated five consent temporary court orders. There had never been an independent Society investigation as the involvement of the CAS had been initiated by calls from the Applicant.
[12] Following the motion Ms. Khan brought her motion to be released from the record. The Applicant consented to the motion. Ms. Khan was released but not before she had prepared the Applicant's affidavit evidence in a comprehensive affidavit of May 23, 2014.
[13] At the summary trial both Ms. Kania and the Applicant filed Factums. The Applicant filed the affidavit of her friend from work Mr. Sousa and the Respondent filed the affidavits of his parents Ms. Marie Osborne and Mr. Anthony Osborne and the affidavit of the child's dance teacher Ms. Paula Doherty. All witnesses with the exception of Ms. Doherty were cross-examined.
FACTUAL BACKGROUND
[14] The parties met in the Applicant's home country of Cuba. They were married on May 24, 2006 and separated on May 1, 2011.
[15] The parties moved in with the Respondent's parents in Mansfield which is approximately an hour's drive north of Brampton. The Respondent and his father both worked at the Chrysler plant in Brampton. The Respondent's father was instrumental in getting the Applicant a job there as a night time custodian.
[16] The child Katherine was born on January 15, 2010. The child was cared for by the Respondent's parents when both parties were at work. However the parties' shifts were such that the Respondent was often home when the Applicant was working and vice versa.
[17] On May 1, 2011 the Applicant left the family home in Mansfield. She went to a shelter initially in Orangeville and ultimately in Brampton. There was some conflict between the parties at the time of the separation but given the history of shared parenting over the last 3 years it is not necessary to make any findings on exactly what happened and when. I also note that as the Applicant had no family members or friends in the area that she may have gone to a shelter in circumstances in which other young mothers might have gone to family or friends.
[18] It appeared from the evidence that there was a brief attempt at reconciliation when the parties obtained a basement apartment together for a few months. They then moved back in briefly with the Respondent's parents before splitting up for the final time soon after. The Applicant moved to her own place in Brampton and the Respondent remained with his parents.
[19] The Application was commenced in December 2011. The parties both continued to work at Chrysler and day care was arranged. They attended mediation and were able to work out a time sharing schedule that led to the court orders referred to above.
[20] The evidence was that there was friction between the parties which was often caused by pick up and drop off issues. The Applicant lived about twenty minutes from the Brampton plant. On some exchanges they agreed to meet in Orangeville which was about a half-way point. The Respondent had a car but the Applicant's car broke down which required her to find friends to drive her to exchange the child in Orangeville.
[21] In September of 2013 the Respondent decided to take a leave of absence from her custodian's job at Chrysler to take an early childhood education course offered by Everest College in Brampton. The approximately equal time sharing arrangement continued.
[22] The Respondent completed that program but during the course of it became aware that the course would not give her a year's credit towards the Sheridan college two year program. It would allow her to assist in a day care only. To be able to be responsible for a day care class she needed to take the Sheridan course. As the Applicant's formal education had been in Cuba she needed to write a general proficiency test to be able to apply. She was confident that she would easily pass that test and that the Everest course would ensure that she would be accepted.
[23] In May 2014 the Applicant formally resigned from her job at Chrysler and at the time of trial she was supporting herself on her O.S.A.P. funds.
[24] At the time of trial the Respondent continued to reside with his parents in Mansfield. His father was now retired from Chrysler and drove a school bus in the Shelburne area. His mother was still working but had very flexible hours. The Respondent worked a shift schedule of four weeks on days and then two weeks on afternoons but he had the assistance of his parents to ensure that the child could always be looked after when at his home in Mansfield.
[25] The parties agreed that the current time sharing arrangement needed to change as the child was now 4.5 years old and would start junior kindergarten in September 2014 and a decision needed to be made as to the school that she would attend.
ISSUES BEFORE THE COURT
Should the Applicant be granted sole custody of the child or should a joint custody order be made?
Should the child live primarily with the Applicant in Brampton or with the Respondent in Mansfield?
Should the child attend the Catholic school in Alliston or one in Brampton?
What should the regular time sharing schedule be?
What should the special occasion and holiday time sharing be?
Who should transport the child between exchanges?
What should the child support payments be given the time sharing schedule and the costs of travel between the two homes?
Applicant's Position on the Issues
[26] The Applicant sought an order that Katherine reside with her in her apartment in Brampton.
[27] She said that she had left her job at Chrysler as she could not take care of her daughter if she was always working afternoon shifts. She admitted that she earned approximately $40,000 per year and that she did not know when or if she would be able to get employment. She was confident that she would be accepted into the Sheridan College program.
[28] She could take the bus to Sheridan which was 20 minutes from her home. She said that she could arrange subsidized child care for Katherine if her college hours were longer than the child's school hours. She said that her mother had been visiting from Cuba for the past 6 months and she could also help with child care when needed. While her mother had to return to Cuba in August she hoped that in the future her mother would be able to spend 6 months a year in Canada.
[29] The Applicant had already registered Katherine in St. Leonard's Catholic school which was only a few minutes from her home. She admitted that she had not told the Respondent that she had done. She had told Katherine about her new school even though she knew that the court had yet to make a decision about custody.
[30] The Applicant stated she had not had a car since March 2013 and she had relied upon friends to drive her to Orangeville to exchange the child. There had been problems sometimes and she felt that the Respondent did not understand how difficult it was for her to arrange transportation.
[31] The Applicant stated that she had sought employment as a day care assistant so that she could do part time work during her school term. She noted that the Sheridan College documents that she filed showed that she had the ability to choose her timetable. She must complete 23 hours a week between the hours of 8 a.m. to 10 p.m. There was no guarantee that she could set her hours when Katherine was in school but she expected that it could work out. She said that she should be able to both drop Katherine off to school and pick her up.
[32] With respect to the Respondent's access the Applicant stated that he could have his daughter with him:
a) weeks 1 to 4 day shifts - every Tuesday and Thursday from 4 to 5 p.m.
b) week 2 - from Friday after school until Sunday at 4 p.m. and week 3 from Friday after school until Saturday at 4 p.m. (the child would spend the weekends in weeks 1 and 4 with the Applicant)
c) weeks 5 and 6 – afternoon shifts - the Respondent would not be able to have mid-week access. However as he finished work at 1:30 a.m. Friday morning and did not work on Fridays he could have Katherine with him from after school on Fridays until Sunday at 4 p.m. in both weeks.
[33] In response to cross-examination the Applicant conceded that on her proposed schedule Katherine would only be with the Respondent overnight 7 times in a 6 week period.
[34] The Applicant proposed that the Respondent or his parents do the driving of the child back and forth for access. She noted that her friend Jason Sousa had driven about 24 times from his home in Mississauga to Brampton to pick her up and then to Orangeville for the exchange of the child. She said that when she got a car again she would be prepared to share in the driving but at this time it was too much to ask her friend to do it.
[35] There was some evidence about the November 2013 exchange when the Applicant claimed the Respondent's father drove away as she was standing right beside the car. There was evidence about the April 16, 2014 incident when the Respondent's father was left waiting outside her apartment so long that he had to leave without the child because his son needed the car to get to work. I find that given the distance between the parties and the natural stress of exchanges together with what appeared to be some tension between the paternal grandparents and the Applicant that the incidents related were relatively minor in nature. They do not persuade me that the parties are unable to work out the exchanges of the child. They simply point to the need to have an arrangement that is less likely to go wrong.
[36] The Applicant's material spoke to her close relationship with her daughter. However both the Applicant and her friend Mr. Sousa were careful to note that Katherine loved her father and spoke very positively about him.
Respondent's Position on the Issues
[37] The Respondent essentially took the position that the Applicant's life was somewhat unstable and uncertain and that the child required the stability that a life with him and his parents in Mansfield could provide.
[38] The Respondent noted that the Applicant had lived in 3 shelters and two apartments. (The Applicant had said two shelters and each one for a short period of time). She had required a babysitter when she had to work or go to school. He lives with his parents and either his father or mother could care for the child when he is working.
[39] The Respondent was quite critical of the Applicant's decision to take a leave of absence from her job to pursue the early childhood assistant course. He was even more critical about her decision to quit her well paying job to take another course at Sheridan College—a course into which she had yet to be accepted. He said she did not even know her course hours and did not have a secure source of income.
[40] The Respondent expressed concern that the Applicant and the child would live in poverty and may be forced to move yet again.
[41] The Respondent stated that it was not known if the Applicant could take the child to and from school in Brampton.
[42] His plan was to have the child attend Holy Family School in Alliston, the closest Catholic school to his Mansfield residence. His mother who is self-employed could drop off and pick up Katherine at that school which is at least 15 minutes one way from the family home. The Respondent said he could pick up after school when on his four weeks of day shifts if the child were placed in the after school programme. He could also drop off when on his two weeks of afternoon shifts although Alliston is 15 minutes east of his home whereas his employment is nearly an hour south of it.
[43] The Respondent proposed that the time share be as follows during the school year:
a) The child to primarily reside with him from Sunday night to Friday at 4 p.m. during the school year.
b) The child to be with the Applicant for three out of four weekends (or 4 out of 5).
c) The child to be with the Applicant from Tuesdays after school to Wednesday morning return to school in the weeks when the Respondent has the weekend, or every Tuesday to Wednesday morning provided that the Applicant picks up and drops off at the child's school in Alliston.
[44] The Respondent, like the Applicant, proposed a week about arrangement for the summer months.
The Law
[45] This custody issue is to be determined by reference to the provisions of the Children's Law Reform Act. The relevant section reads 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). 2006, c. 1, s. 3 (1).
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. 2006, c. 1, s. 3 (1); 2009, c. 11, s. 10.
[46] In reviewing the facts of this matter there is no doubt that both parents love their daughter and are quite capable of meeting all of her emotional needs. Despite some friction between them, generally related to issues of exchanges of the child, they both understand that the child has a strong bond with each of them and views both parents in a very positive way. The s. 24 factors that must be considered then are really found within s. 24(e) and (f).
[47] The Respondent emphasized the permanence and stability of his family unit and contrasted it with the Applicant's moves, unemployment and lack of a stable support system.
[48] I have considered the Respondent's submissions in that regard but I find that this matter really comes down to a comparison of the two plans proposed for the child's care and upbringing. In my decision I want to ensure that both parents play a significant role in the child's life. I also want to ensure that the practicalities of each plan are examined through the lens of the child.
ANALYSIS
Sole or Joint Custody
[49] In determining whether joint custody is an appropriate order in the circumstances of this matter I began with a review of the factors set out in the Court of Appeal's decision in Kaplanis v. Kaplanis, 10 R.F.L. (6th) 373. The court stated that joint custody was not to be awarded where the parties had no ability to communicate effectively about their children or to placate parties who both wanted sole custody of a child. The court identified three situations in which joint custody could be granted.
[50] The first situation is that of consent and that does not exist here as the Applicant sought sole custody. The Respondent's alternate position was that of joint custody and that was the position that his counsel advanced at the hearing.
[51] The second area is where neither party has disentitled themselves to custody and there is a positive history of co-operative parenting and effective and appropriate communication between the parties with respect to the child.
[52] In this matter there are some factors that militate against joint custody. There was conflict at the time of separation and the Applicant attended at a shelter and sought advice from the C.A.S. The exchange of messages between the parents, generally about access exchanges, demonstrates a level of tension.
[53] However I take into consideration that when the parties separated the Applicant was only 22 years old. She had no family or friends in the village of Mansfield where she lived with her in-laws. Seeking advice and assistance from a shelter at that time might have been her only option. After the Applicant issued her application the parties went to mediation and they managed to work out a time share that met their needs. They subsequently consented to a number of other court orders.
[54] Despite being young parents who lived in different communities the parties were generally able to make their time sharing arrangement work. There were some problems at botched exchanges and considerable tension caused by the unavailability of transportation at times but there were no serious issues that impacted upon the child's welfare. I find that the parties do have a history of co-operative parenting. They certainly respect each other's abilities as parents.
[55] Finally Kaplanis and some of the cases that have followed it, stated that joint custody can be ordered to preserve a parent's relationship with a child in cases where the parent who is to have primary residence may object to joint custody without just cause. In this way joint custody can be used to prevent a parent limiting the other parent's involvement in the child's life.
[56] In this case the Respondent noted that the Applicant registered the child in the Brampton school without notifying him and she quit her job without discussing with him her plans for the child's care when she was in school. A joint custody order will ensure that each parent must be part of all major decisions concerning the child. This is particularly important in cases like this where the parents live some distance from the other parent and therefore from the child's school and extra-curricular activities. The non-residential parent needs to be assured that there can be no significant changes in the child's life without their consent.
Primary Residence
[57] There is no doubt that the Respondent's plan has the benefit of stability. He has worked at his job for over 17 years. He has lived in Mansfield with his parents for years and the loving grandparents are well bonded with the child and are available to help with her care whenever needed.
[58] The Applicant's plan is less certain. I am confident however that the Applicant will be accepted into Sheridan College and will succeed in her efforts to work in a day care centre or in some other way find fulfilling work with young children.
[59] I do not think that the Applicant should be criticized for leaving her employment. As she stated her job was always going to be evening work (her shift was from 2 p.m. to 10:30 p.m.). It is one thing to work such a job when in a stable relationship where the other parent can care for the child after school, make dinner and put the child to bed. It is another for a single parent to work every weekday night with no possibility of having their child with them during the week.
[60] The Applicant has a plan for employment. She has shown the ability to be diligent with her studies and to succeed. She emigrated from Cuba and now speaks excellent English and in this litigation has shown herself to be intelligent and organized. She did not quit her job initially. She obtained a leave of absence and was able to prove to herself that she had made the right choice in pursuing early childhood education. She will have challenges ahead. Her economic position is much less certain than that of the Respondent. However she has managed to make the existing time share work, she has found care givers where necessary and she also has the help of her mother albeit for a maximum of six months a year.
[61] I find that while the Respondent has a more stable living and working arrangement the Applicant's plan does not disentitle her from consideration as a primary residential parent.
[62] The Applicant plans to live and work in Brampton. The Respondent lives in Mansfield, works shifts in Brampton and plans for the child to attend school in Alliston.
The Choice of School
[63] The child's primary residence needs to be determined at this time because she is starting school in September.
[64] The Applicant may have been required to register the child earlier in the year in Brampton than the Respondent was required to do in Alliston. However she should not have taken this step without informing the Respondent and she should not have told the child about it. Having said that, the early registration does not give the Applicant an advantage. The child can just as easily start school in Alliston or Brampton this September.
[65] The school arrangements do factor heavily into my decision with respect to the child's primary residence. The determination of the child's school will impact many other significant aspects of her life. Her friends will to a large degree be friends made at school. Her extra-curricular activities are likely to be at or near her school. She will benefit from both of her parents being actively involved in her school community.
[66] Both the Applicant and the Respondent will study or work in Brampton. The Applicant is a 20 minute bus ride from the proposed Brampton school. When the Respondent is on day shift (four out of six weeks) he is finished work in Brampton at 2:45 p.m. and therefore he could have mid-week time with the child after school and even pick her up from her school. When the Respondent is on afternoon shifts he does not work on Fridays so he can either pick her up in Brampton that day or his mother can do so directly after school so the child is with the Respondent for dinner on Fridays of his weekends.
[67] The Respondent's school plan has his mother taking the child to and from school by car every day. While it is true that the Respondent could pick her up after day shifts if an after school program was used I find it unlikely that he would do so. The Respondent's mother is available to get the child right after school. The Respondent would need to pay for an after school plan just so that he could go quite some distance out of his way to pick up his daughter in Alliston. This would be immediately after coming off a shift that he starts at 6:30 a.m. which presumably means that he must have arisen for the day at around 5 a.m.
[68] Similarly I find that the Respondent's mother would likely take the child to school when he is on afternoon shifts. The Respondent states that he could take Katherine to school then and he may be able to do that. However, as his shift ends at 1 a.m. he would not be home until 2 a.m. and I find it unlikely that he would be able to drive his daughter to Alliston at about 8:30 a.m. and then go home to Mansfield just to leave for work in Brampton before 2 p.m.
[69] The Respondent's proposed schedule has the Applicant picking up the child from school on Tuesdays and keeping her overnight. This plan is totally impractical. Firstly the Applicant does not have a vehicle and would need to find someone who could drive her from Brampton to Alliston every Tuesday and then back again Wednesday morning. Even if she could find someone to do this the child would have a car ride of well over an hour each way in order to spend a few hours at her mother's home on Tuesday evenings.
[70] I find that if the child were to attend school in Brampton it is likely that the Applicant would be able to take her to school and perhaps pick her up after school. Furthermore the Respondent could have mid-week access with her and could be involved in after school activities.
[71] I find that if the child were to attend school in Alliston that neither parent would likely be involved directly with her school. The Applicant would not be able to have any mid-week access and would not be able to attend at the school.
The Regular Time Sharing Schedule
[72] Both parties accept that the regular schedule needs to be built around the Respondent's shift schedule. On the four weeks when he is on day shifts the Respondent should have mid-week access. The Applicant has proposed Tuesdays and Thursdays from 4 to 5 p.m. I find that the access that occurs on those days should be from after school until 7 p.m. The Respondent is finished work at 2:45 p.m. He should be able to drive to the child's school in Brampton and spend a few hours with her. He can return her home to her mother after dinner on those evenings.
[73] To their credit both parents recognize that if the other parent has the child during the week that the other should have more of the weekend time. I generally accept the Applicant's weekend proposal but find that the Respondent should have the full weekend for four out of the six weekends in his six week schedule. The weekend time should start after school Friday and continue until Sunday at 7 p.m.
[74] As noted above Katherine will be with her mother during the week so that she can attend school in Brampton. On the weekends when everyone is less pressed for time she will be able to spend time with her father and her grandparents in the home she is familiar with in Mansfield.
Holiday Time Sharing
[75] The parties mediated their holiday time sharing and it was incorporated into paragraph 25 of the temporary order of July 23, 2012. That schedule shall now become a final order.
[76] Both parties had proposed a week about arrangement for the summers. I find that is an appropriate order. I was not provided with any information as to when the arrangement would begin. If the parties have not already worked it out between them to accord with the Respondent's holiday schedule I find that in 2014 and even numbered years thereafter Katherine should be with the Respondent on the first full week of the summer vacation and the parties shall alternate from there. Conversely in 2015 and odd numbered years Katherine shall be with the Applicant in the first full week.
Transportation and Exchanges
[77] As noted above much of the tension between the parties was as a result of transportation and exchange issues. There is a significant distance between Brampton and Mansfield. The Applicant did agree to share in the transportation. However problems develop when the Applicant cannot arrange rides.
[78] The simple reality is that the Respondent chooses to live in Mansfield although he works in Brampton. Long drives in a car are part of his life. The Applicant has not had a car for over a year. She is now a student and realistically she will not be able to afford a car for at least two years and probably longer. It makes practical sense for the Respondent to do all of the driving. When the Applicant has a car or lives with someone who has a car, then it might be appropriate for her to share in the exchange on Sunday nights in the summer. Until then the Respondent or his parents should pick up and drop off the child.
[79] As there is some cost involved in driving the child from Mansfield to Brampton and back there will be a modest adjustment to the child support for the drives being made when the Respondent is not otherwise in Brampton.
Child Support
[80] The existing child support order of $178.00 per month shall continue until June 30, 2014. It is recognized that this order was a set-off amount based upon a shared parenting arrangement when the Applicant was still employed at Chrysler. The Applicant took a leave of absence from Chrysler in September 2013 and has not returned. She has been unemployed and attending school.
[81] The Applicant was given an opportunity to bring a motion to change the parenting arrangement after she began her courses at Everest College. She chose not to do so and the shared parenting arrangement continued. The Applicant was not very forthcoming with the Respondent about her educational plans and her decision to not return to work. Unfortunately it appears that she was misinformed when she started at Everest as completing that course did not shorten her Sheridan program. Perhaps she could have kept working and then entered the Sheridan programme (though it is not clear what impact completing the Everest course might have on her acceptance). In the end result I find that it is not appropriate to make a retroactive increase in the child support order prior to June 30, 2014.
[82] With respect to ongoing child support the Respondent argues that any new amount should not begin until September 1 as an equal time share will be in place for the summer. I am not persuaded to make such an order. It is known that the Applicant currently has no income until her OSAP application is approved for her new studies. Therefore there is no set-off based upon the parties' current incomes and the support should be based upon the Respondent's income.
[83] The Respondent's 2013 Notice of Assessment shows that he earned $59,121.00. That income generates a table child support payment of $537.00 per month.
[84] I find that there should be a reduction in table support for the costs of access. I note that the parties were living in Mansfield prior to the separation. This is not a case where the non-residential parent moved away and then sought a reduction in support to visit his child. In determining the amount of the reduction I discount the mid-week access on the day shifts as the Respondent will already be in Brampton on those days. The costs of access really relate to the requirement to both pick up and drop off every week in the summer and four out of every six weekends in the regular schedule.
[85] I have referred to Google Maps which shows that it is 58.3 km. between the party's homes. The Respondent will be making the round trip of 107.6 km. four out of every 6 weekends. On the other hand if the Applicant had a vehicle at most she would be ordered to travel to Orangeville to exchange or alternatively to travel to Mansfield one half of the time. The access costs that should be credited to the Respondent are the costs that the Applicant would otherwise incur that he is incurring because she cannot assist. I find that the Respondent should be credited for two round trips which is 215.2 km every six weeks. At 40 cents per km. that amounts to $86.08 every six weeks which when divided by 6 and multiplied by 4.33 works out to $62.12 a month. Therefore $62.00 per month will be deducted from the $537.00 leaving a net amount of child support per month of $475.00 which will begin on July 1, 2014.
Section 7 Costs
[86] Neither party made any submissions on the contribution to the costs of special and extraordinary activities. However as this is a final judgment there should be a paragraph pertaining to the sharing of those costs.
[87] The only activity mentioned was Katherine's Irish dance classes. It is clear that she enjoys the activity and it would be beneficial for her to continue with it if the new time share arrangement permits that. I assume that the Respondent and/or his parents have paid for the costs and given the Applicant's current financial situation she cannot afford to contribute at this time.
[88] As for future s. 7 costs the provisions of that section for proportional sharing shall apply.
Costs
[89] Both parties presented their respective plans in good faith.
[90] To their credit both parties acknowledged the importance of the other in the child's life.
[91] This summary trial was required because of the need for a decision as to the child's schooling. Given the distance between the homes the options for settlement were quite limited.
[92] This is not an appropriate case for costs.
Order
The parties shall share joint custody of the child Katherine Orla Goire Osborne born January 15, 2010.
The said child shall primarily reside with the Applicant.
The said child shall spend time with the Respondent throughout his six week rotating employment schedule as follows:
a) weeks 1 to 4 day shifts - every Tuesday and Thursday from after school to 7 p.m.
b) weeks 2, 3, 5 and 6 from Friday after school until Sunday at 7 p.m.
c) the Respondent shall be responsible for picking up the child from school or the Applicant's home and dropping off the child to the Applicant's home.
Neither party shall schedule activities for the said child during the other party's time with the said child, without that party's consent.
The parties may make inquiries of and be given information by the said child's teachers, school officials, doctors, dentists, health care providers, summer camp counsellors or others involved with the said child.
The parties shall keep each other advised of:
a) his/her addresses and telephone numbers
b) The names, addresses and telephone numbers for all those referred to in paragraph 5
The parties shall communicate regularly with the said child, by:
a) Text
b) Telephone call
c) Email
A photocopy of the said child's health card and updated contact information shall be kept in the said child's backpack and travel back and forth with the said child.
The parties shall not move the said child's residence from the Greater Toronto Area, Brampton or Mansfield without first providing 60 days' written notice to the other party, reviewing the implications of the parenting plan, and obtaining the other's written consent or court order.
If either party plans a vacation with the said child, then that party shall give the other party a detailed itinerary at least 30 days in advance, including the name of any flight carrier and flight time, accommodation, including address and telephone numbers, and details as to how to contact the said child during the trip.
Neither party shall remove the child from Canada without the written consent of the other party, such consent not to be unreasonably withheld.
Upon reasonable request, each party shall provide the other party with written authorization to travel with the said child outside Canada. Written authorization not to be unreasonably withheld.
Both parties may attend all the said child's school functions and extracurricular activities.
The parties may attend parent-teacher meetings together or separately.
The holiday access schedule overrides the regular access schedule:
(a) On Easter weekend the said child shall reside with the Applicant mother in even-numbered years and with the Respondent in odd-numbered years from Friday at 4:00 p.m. until Monday at 8:30 p.m.
(b) If the said child is not otherwise with the Applicant on Mother's Day weekend she shall reside with the Applicant from Saturday at 8:30 p.m. until Sunday at 8:30 p.m.
(c) If the said child is not otherwise with the Respondent on Father's Day weekend she shall reside with the Respondent from Saturday at 8:30 p.m. until Sunday at 8:30 p.m.
(d) On Thanksgiving weekend the said child shall reside with the Applicant in odd-numbered years and with the Respondent in even-numbered years from Friday at 4:00 p.m. until Monday at 8:30 p.m.
(e) Each year the said child shall reside with the Applicant on December 24th from 4:00 p.m. until December 25th at 10:00 a.m. and with the Respondent on December 25th at 10:00 a.m. until December 26th at 8:30 p.m.
(f) Any weekend with a specified party shall include the Monday, if that Monday is a statutory holiday, unless specified otherwise.
During the school summer vacation the child shall be with each parent on alternating weeks. If the parties do not agree otherwise the child shall be with the Respondent on the first full week of the summer school vacation in 2014 and the parties shall alternate from there. Conversely in 2015 and odd numbered years the child shall be with the Applicant in the first full week of the school summer vacation.
a) The Respondent shall pay to the Applicant for the support of the said child the sum of $475.00 per month beginning July 1, 2014 and payable on the first day of each and every month thereafter.
b) The said support is based upon the Respondent's 2013 income of $59,121.00 which is a table amount of $537.00 per month less the sum of $62.00 per month as a credit for the Respondent's travel costs to exercise his time with the child.
The parties shall pay their proportionate share of any special and extraordinary expenses incurred for the child pursuant to s.7 of the Child Support Guidelines. Provided that if the Respondent is able to maintain the said child in her Irish dance classes the Applicant shall not be required to contribute to the costs of same.
Released: July 8, 2014
Justice Philip J. Clay