Court File and Parties

Court File No.: D48617-09 Date: 2015-04-21

Ontario Court of Justice

Between:

V.S. MARY KODRIC, for the APPLICANT

APPLICANT

- and –

I.M.B. ACTING IN PERSON

RESPONDENT

Heard: April 13-15 and 17, 2015

Justice: S.B. Sherr

Reasons for Decision

Part One – Introduction

[1] The parties have engaged in custody litigation regarding their son (referred to as the child or N.) since just before his first birthday. The child will turn seven years old this summer.

[2] The applicant (the father) seeks an order for sole custody of the child, or in the alternative, an order for joint custody of the child, with the right to make final medical decisions for him. He asks that the child rotate spending one week with each parent. He proposes to pay child support, starting on May 1, 2015, of $526 per month, being a straight set-off of the parties' table support obligations in a shared parenting arrangement, pursuant to section 9 of the Child Support Guidelines (the guidelines).

[3] The respondent (the mother) seeks an order for joint custody of the child, with the right to make final medical and schooling decisions for him. In the alternative (in the event that the court finds a joint custody is not in the child's best interests), she seeks sole custody of the child. She asks the court to make an order that the father have access to the child on alternate weekends (from Thursday after school until a Monday morning return to school), with a sharing of holidays. She seeks ongoing child support of $700 per month, which is less than the guideline table amount based on the father's income.

[4] Although there have been many court orders over the years, this is still an original application. The existing temporary orders provide that the parties have joint custody of the child, with the father having the authority to make final medical decisions for him; the child is with the father each week from Sunday at 10 a.m., until he takes the child to school on Wednesday morning and the father pays the mother child support of $730 per month.

[5] The court must determine what parenting orders are in the child's best interests. It must also determine if there is a shared parenting arrangement, as defined in section 9 of the guidelines, and if so, determine the appropriate amount of child support that the father should pay to the mother.

Part Two – Background Facts

[6] The father is 44 years old. The mother is 47 years old.

[7] The parties were both born in Romania. The father has lived in Canada since 2002. The mother has lived in Canada since 2003.

[8] The parties were never married. They started living together in the fall of 2007 and separated on April 23, 2009. The child is the only child they had together.

[9] The father has been married and divorced twice. He has a 21-year-old daughter from his first marriage. She came to Canada to live with him two years ago. She presently attends school full-time at the University of Toronto. The father also has an 11-year-old son (the son) from his second marriage. There is an order that the father and his ex-wife have joint custody of the son. The son rotates spending one week with each parent.

[10] The father is engaged to be married. His fiancée and her daughter live with him. The father's mother also lives with him.

[11] The mother was married and divorced once. She has a 19-year-old daughter from this relationship. Her daughter has had mental health issues and divides her time between a residential placement and the mother's home. She is completing high school at an alternative school.

[12] Both parties are university educated. The father graduated as an electromechanical maritime engineer. He is steadily employed as a Production Mechanic and earns about $89,200 per annum. The mother is employed as a property manager and earns about $32,000 per annum.

[13] The parties agree that their relationship was volatile with frequent arguments – many of them in front of the child.

[14] The parties' conflict has not abated, despite the passage of many years.

[15] The parties retained counsel shortly after their separation. The mother proposed that the father have access in her presence. The father did not agree with this and sought unsupervised access on alternate days. Access did not occur.

[16] On June 11, 2009, the father was charged with assaulting the mother. The father's Recognizance of Bail required that his access to the child take place pursuant to a family court order.

[17] The mother asked the father to consent to a temporary court order for supervised access. The father would not agree to this. This stalemate was a precursor for the conflict that would evolve over the years. No access took place.

[18] The father issued his application on August 12, 2009. The mother's Answer/Claim is dated October 9, 2009.

[19] The Catholic Children's Aid Society of Toronto (the society) became involved with the family in October of 2009, due to the high level of conflict between the parties. They kept an open file until about April of 2013.

[20] In December of 2009, the criminal charges against the father were withdrawn.

[21] On January 12, 2010, the case management judge (the CMJ) made a temporary access order, providing that the father have access supervised by a third party, for three weeks. After three weeks, the access was to take place on Saturdays for six hours, unsupervised. The father had had only one short visit with the child from the date of separation until he started exercising the court-ordered access in January of 2010.

[22] The CMJ heard motions brought by both parties on May 4, 2010. He ordered that the father have three supervised visits at the offices of the society, the visits to then revert to the times set out in the January 12, 2010 order, with exchanges to take place at the society office. An order was made pursuant to section 28 of the Children's Law Reform Act (the Act) prohibiting the father from communicating with the mother except in writing through legal counsel, the society or a mutually agreed upon adult. The CMJ urged the society to continue its involvement with the parents, to ensure that the child is not emotionally harmed by the parental high conflict.

[23] On June 21, 2010, the CMJ ordered the father's access to continue as directed by the society.

[24] On May 3, 2011, the CMJ made temporary orders providing that:

a) The parties have joint custody of the child.

b) The father was to have day access two days per week, with structured exchanges.

c) The father pay child support to the mother of $730 per month, starting on January 1, 2010, based on an annual income of $81,346.

d) The father pay spousal support to the mother of $500 per month, starting on May 1, 2011 and ending on November 1, 2011.

e) The parties only communicate through legal counsel, a society worker, a police officer or any other mutually agreed upon third party. All communications to be in writing.

f) The mother pay the father's costs of $500.

[25] On September 2, 2011, the CMJ ordered that the father shall have temporary access each Wednesday from 3:30 to 6:30 p.m. and each Saturday from 4 p.m. until Sunday at 4 p.m. He also ordered the father to pay the mother 50% of the child's Montessori costs. The mother was ordered to pay the father's costs, fixed at $500.

[26] An important court event took place on December 5, 2011. The father deposed that the mother had not advised him the child had a possible allergy or sensitivity to Tylenol and had not provided him with medication for the child's wart condition. On this basis, the CMJ made a temporary order that all medical decisions were to be made by the father. The order specified that the mother could participate in medical appointments, but restricted her from taking the child to a doctor unless there was a medical emergency.

[27] It became very clear at trial that this order emotionally devastated the mother and has affected her subsequent actions.

[28] This order also increased the father's access to alternate weekends from Friday at 3:30 p.m. to Monday at 8:30 a.m. The CMJ also ordered that the child was to attend Montessori school full-time.

[29] On March 5, 2012, the CMJ dismissed the mother's request for the Office of the Children's Lawyer to become involved in the case, ordered the father to provide the mother's counsel at the time with the child's health card and required that the child's dermatologist, family doctor and other doctors, who were treating him on December 5, 2011, remain the same, without a court order or the permission of the society. The CMJ also ordered counsel to send a letter to all of the child's doctors stating:

Both parties are ordered to attend each of the child's medical appointments. If at any time after a medical appointment, either parent misbehaves or treats the other parent with disrespect, the doctor is urged to contact the society immediately.

[30] This order also required the father to fully cooperate with the society and provide a letter from the society on the next court date, confirming that he was cooperating to the society's satisfaction.

[31] In July of 2012, the society recommended that each parent obtain a psychological assessment.

[32] On August 14, 2012, the CMJ ordered that the child attend Montessori school for one more year and for each parent to pay 50% of the cost. This order also required the father to sign the child's passport application and provide it to the mother within two days. The order provided detailed travel terms, permitting each parent to travel with the child for up to two weeks. The father's temporary access was changed to alternate Thursday after daycare until Monday morning. The order required the parties to each pay 50% of summer camp costs for the child.

[33] Two days later, on consent, the parties agreed that:

a) The child would attend at a Catholic school.

b) The child would attend the Coping with Life Program at Families in Transition.

c) The parties would attend counseling through the father's employee assistance program.

d) The mother's request for an assessment be adjourned until both parties engaged in counseling for six months and provided a thorough psychological report.

e) The father's special expense obligation for Montessori school would terminate as of June 30, 2012.

[34] In December of 2012, the father took the child to the hospital due to a urination issue. The child was diagnosed with balanitis. The treatment of this issue became a source of contention between the parties. This problem recurred in February of 2013. The child was seen by another urologist and subsequently had a circumcision, which has satisfactorily addressed this issue.

[35] On March 13, 2013, the CMJ increased the father's temporary access to every week from Sunday at 10:00 a.m. until Wednesday at 8 a.m. He also defined Christmas access. This access order remains in effect.

[36] On October 2, 2013, the CMJ clarified the father's decision-making authority. The father's counsel had advised the child's doctor that the mother could only raise concerns at the end of a meeting. The CMJ endorsed that this letter overstated the father's authority. He set out that the mother is entitled to participate in medical appointments and ask questions in the same way as the father and that the doctor is entitled to exercise his discretion in the way medical appointments are conducted, but all decisions regarding the child's medical care shall be made by the father.

[37] In October of 2013, the society re-opened their file for this family. Its file remained open until October of 2014.

[38] In January of 2014, the mother reported to the police and to the society that the father had threatened to cut her throat. This was denied by the father. No charges were laid.

[39] On January 30, 2014, the CMJ dealt with a complaint from the mother that the father was not regularly picking the child up from school at the scheduled time. A letter was filed from the school setting out that there had only been one time the father did not pick up the child at the scheduled time, and this was a misunderstanding.

[40] The parties each obtained psychological assessments that were filed in the trial record. The mother brought one last motion on March 3, 2015, asking that the father be required to obtain a new psychological assessment. This motion was dismissed on the basis that it was brought too close to the trial date. The CMJ endorsed that the case needed to be resolved due to the high conflict.

Part Three – Positions and Plans of the Parties

3.1 Position and Plan of the Father

[41] The father believes that he is the parent best suited to make custodial decisions for the child. He deposed that:

a) The mother has resisted giving him access to the child. He has had to continuously go to court to fight for appropriate access.

b) The mother has tried to marginalize his involvement with the child.

c) The mother has made many false allegations to the police and the society about him – none of them verified. These include allegations of assaulting her, harassing her, taking the child too often to doctors, having an undue interest in the child's private parts and having severe mental health problems.

d) The mother unilaterally made decisions despite the joint custody order. He said that she took the child to doctors without advising him, only revealed medical problems of the child at the appointments, and changed the child's schools without his consent. This behaviour, he said, extended to minor issues, such as signing the child up for pizza day at school and not advising him.

e) The mother made poor medical decisions for the child. She didn't tell him about the child's Tylenol allergy (which he doubted existed) and didn't give him the prescription cream for the child's warts. He also said that she dismissed his concerns about the child's ability to urinate and didn't follow up with a medical appointment to address it – instead accusing him of over-involving doctors.

f) The mother has taken the child to medical appointments without his consent since he was given decision-making authority, breaching the existing order.

g) The mother will often make appointments to see doctors privately to discuss her concerns and not notify him about this.

h) The mother does not listen to his concerns or overreacts in a hostile manner to innocent questions.

i) The child has done well since he was given authority to make medical decisions for him.

j) He is the parent more willing to communicate with the other parent.

[42] The father provided little detail about his plan to care for the child. He was primarily focused on expressing his grievances about the mother. He didn't set out how the child would be cared for. Aside from stating that he wanted the child to attend Romanian school on Saturdays, he did not discuss how he would spend his time with the child.

[43] The father wants to rotate care of the child weekly. He has previously worked on shifts, and has relied on other persons in the home to care for the child when he is working. His mother will often take the bus with the child to school. The father testified that he has obtained a new position with his company that will permit him to work from 7 a.m. until 3 p.m. This, he said, will give him more time to spend with the child.

[44] The father says that the child will benefit from spending more time with him and his family. He felt that a rotating weekly schedule would have the benefit of minimizing tense exchanges between the parents, as exchanges could take place at school. He also felt that the child would benefit by having full weekends with both parents.

[45] The father was emphatic that he wants to maintain his role of making medical decisions for the child. He does not trust the mother's judgment. He said that he would keep the mother informed of medical issues. He agreed that she should be able to attend at and participate in medical appointments.

[46] The father was not as concerned about having sole decision-making authority over other issues, and was content to make the temporary joint custody order final.

3.2 Position and Plan of the Mother

[47] The mother believes that she is better suited to make decisions for the child for the following reasons:

a) She has been the child's primary caregiver and has made responsible decisions for him.

b) She is better attuned to the needs of the child.

c) The father is controlling and emotionally abusive. She described how the father was demeaning to her daughter. She felt this led, in large part, to her daughter's mental health issues.

d) The father tries to exclude her from decision-making and ridicules her suggestions. She believes that if he is given custody of the child, he will use this power to eliminate her ability to act as a parent.

e) She is the parent more willing to include the other parent in decision-making.

f) The father prevents her from having contact with the child when he is in his care. His attitude, she said, is that it is not her business about what happens when the child is with him.

g) She is the parent more willing to seek help for the child.

h) She is more flexible about access than the father. She provided examples where the father was inflexible about rearranging access.

[48] The mother was also primarily focused at trial in addressing her grievances about the father. That said, she was more child-focused than the father. Her plan is to keep the child in the same school and maintain the same doctors for him. She stated that she believes that after so much disruption, the child needs stability. She has explored the idea of counseling for the child at Aisling Discoveries, but will want to ensure that it is a positive experience for the child. The child is involved with choir at the school and the mother has him enrolled in swimming. She said that she arranges play-dates for him and the child has friends at school and in the community.

[49] The mother emphasized that she feels it is important that both parents be involved with the child. She says that even if she is granted custody, she will advise the father of all school events and medical appointments and encourage him to attend and participate. She said that she would like to arrange separate access between the child and his half-siblings, if the father would agree.

[50] The mother would like access to take place on alternate weekends. She was open to the idea of the father having extended weekends with the child from Thursday after school until Monday return to school and fully sharing holidays, including the summer. She said that she was also open to the idea of the father having additional weekday access as could be agreed upon.

[51] The mother feels that the current access is too difficult for the child and that the parents do not communicate well enough about issues affecting the child to make it effective. She would like to have the child for some full weekends so that she can take the child to church or go camping for a weekend. She feels that a rotating weekly schedule would be too disruptive for the child and pose the same problems as the current schedule, due to the communication problems.

Part Four – Credibility of Parents

[52] The court found the mother to be a more credible witness than the father. It found that the mother presented her evidence in a frank and candid matter. She was willing to admit when she had made mistakes in this case. She was organized, prepared and demonstrated a good memory of events.

[53] This did not mean that the court totally accepted the mother's evidence. She demonstrated a tendency to misinterpret information. Evidence was led where she reacted to innocuous emails from the father in a hostile manner – subjectively interpreting them as insulting to her. She has a fixed perception that the father engages in what she called, "hostile and aggressive parenting" and interpreted his behaviour through this prism. This has resulted in her usually thinking the worst of the father and rarely giving him the benefit of the doubt, when there can be more than one interpretation of his actions. Accordingly, when she noted the child had a rash under his scrotum, she raised a historical allegation by the father's ex-wife that the father had engaged in inappropriate sexual activity with a dog. The result was that the society and the police became involved. The concerns were not verified. She has been quick to complain to the society about the father. The society has not verified her concerns about the father's fitness as a parent or that he has mental health issues.

[54] The father's credibility was severely impaired by the manner in which he obtained sole medical decision-making authority from the court.

[55] In an affidavit sworn on November 25, 2011, the father represented to the court that:

a) He had given the child Tylenol and asked the Supervised Access Centre staff to notify the mother. He claimed that he learned for the first time, in October of 2011, from the access supervisor that the mother had told the staff that the child was allergic to Tylenol.

b) He was concerned about the child's warts spreading and was told by the dermatologist that the mother had been given a prescription to deal with it. He claimed that the mother had never advised him of this.

[56] The transcript of the December 7, 2011 court appearance confirms that the CMJ relied on these representations to grant the father medical decision-making authority.

[57] The father maintained at trial that the mother had never told him that the child was allergic to or had a sensitivity to Tylenol. The mother produced the following communication book entries sent to the father about not giving the child Tylenol:

a) August 31, 2011 – "Please do not give him Tylenol, he is sensitive (gets diahrhea and is vomiting). I put a natural syrup fo him, in case be need it."

b) September 24, 2011 – "N. has a stuffy nose and is coughing. I put the syroup; just give him 5 ml in case is needed. Please, do not give him Tylenol."

c) November 19, 2011 – "N. had a mild fever last night. He has a runny nose. I suggest to not take him out if it is very windy. I put a cold syrup for him, do not give him Tylenol. Give him this syrup only for fever."

[58] The father's evidence that the mother had not provided him with the prescription cream for the child's warts was also proven to be false. The mother produced the following communication book entries addressing this issue:

a) October 8, 2011 – "I sended the N's Health Card. For his warts apply a small amount on the affected area (do this after he is asleap, so he will not rub (sic) his eyes or mouth with this cream. The cream was prescribed by the dermatologist on February 1, 2011, but the treatment was start in June (as per doctor's recommendation), that the warts, at this age, may go away by themselfs, therefore to wait few more months."

b) The next entry in the communication book written by the father stated: "Please give some more info regarding N's sleeping pattern and what he likes or dislikes. P.S. N. had his warts cream".

c) November 5, 2011 – "I put wart cream for N."

d) November 19, 2011 – "N.'s warts are gone, so I didn't put the cream. Let me know if you notice any warts".

e) November 20, 2011 (by father to mother) – "Please continue N.'s warts treatment"…

[59] The court also found the father to be evasive and defensive when discussing difficult areas in his testimony during cross-examination. He often failed to directly answer questions.

[60] While there were occasions where the mother acted unilaterally in making decisions for the child, the father, at times, overstated this issue. For instance, the father complained about not being given adequate notice of birthday parties for the child's friends. The mother provided several communications disproving this.

[61] Where the father's evidence conflicted with the mother's and was not supported by independent evidence, the court generally preferred the evidence of the mother.

Part Five – The Community Witnesses

5.1 The Society Worker

[62] The court heard from the society worker (the worker) who primarily dealt with the family between March of 2012 and March of 2013. He was not involved with the second file opening of the society in October of 2013.

[63] The worker testified that the society viewed this as a high conflict family. The society was very concerned that the conflict could emotionally harm the child.

[64] The worker said that the mother made many allegations against the father that were not verified. These allegations included her concerns about the father's preoccupation with the child's penis, taking the child to the doctor too much, a bruise on the child's forehead and sending the child to school with a fever.

[65] The worker confirmed that the child's family doctor had sent him a letter stating a concern that the father was too intrusive with the child's medical care. However, he said that the doctor later recanted this concern. In fact, the father's concern about the child's urination issues was later borne out.

[66] The worker testified that the society initially had difficulty obtaining the father's cooperation. However, he said that both parents were fully cooperative with him during his involvement with the case.

[67] The worker was also directed to a case note where a referral was made because the father was involved in a verbal confrontation with another parent at the child's school. The note indicated that the father was upset because the other parent had touched the child. It noted that the father had threatened to call the police. The worker testified that the incident did not warrant further society involvement.

[68] The worker testified that the society did not have any concerns about the parenting abilities of either parent (except for exposing the child to conflict). He said that the child appeared to be comfortable in both homes.

[69] Although the worker acknowledged writing a case note expressing his feeling that the mother was primarily instigating the conflict, he emphasized to the court that by the end of his involvement, he no longer felt that this was the case – neither parent was primarily responsible for instigating the conflict.

[70] The worker said that it was the society's suggestion that the parents each obtain a psychological assessment. He stated that the society also recommended that the child obtain counseling. He also felt that the parents could benefit from mediation.

5.2 The Father's Ex-Wife

[71] The mother called the father's ex-wife (the ex-wife) as a witness. She is the mother of the father's 11-year-old son. The ex-wife and the father have joint custody of the son. He rotates spending one week with each parent.

[72] The court, in weighing the ex-wife's evidence, took into consideration that she is aligned with the mother.

[73] Both parties asked the court to review a report from the Office of the Children's Lawyer that was filed with the court in 2008 in the case between the father and the ex-wife. The report reads very much as a mirror image of this case. It was a high-conflict case. The parents made multiple allegations against the other, including about their fitness as parents and their mental health (none of the serious allegations were verified). The parents involved the police and the society in the conflict. Both claimed that the other tried to exclude them from decision-making.

[74] The ex-wife testified that her parenting arrangement has not worked well for the son. She said that the son has experienced emotional distress. When the child was 5 years old, he was killing small animals. She wanted to take the child for treatment – the father would claim nothing was wrong with him. Again, in 2008, she was advised that the son was depressed and she wanted to start counseling. The father said nothing was wrong with the son. She said that the son has recently been aggressive towards the child at the father's home. She has tried to address this with the father, but again, he says that nothing is wrong.

[75] The ex-wife said that the son has implored her not to testify in this case because he was afraid of the father's reaction. She said that she has to work hard with the son to teach him how to handle his father's anger. She said that the father has not given the son permission to continue his relationships with the mother and her daughter – even though they had been positive relationships. The son, she said, will not defy the father. She described the father as manipulative with his children and not a good role model.

[76] The ex-wife described the father as inflexible around access issues – asking for accommodation from her, but strictly relying upon the court order when she asks for a change.

[77] The ex-wife claimed that the father has restricted her telephone contact with her son and will put them on speaker phone. She said that she and her son have to resort to a code to communicate if he is free to speak to her.

[78] The ex-wife stated that the father does not meaningfully communicate with her. He will always say everything is OK, or he will tell her it is not her business what happens in his home. She also related examples where he did not advise her about a parent-teacher interview or provide the child's report card to her (when it was sent home during his week with the son).

[79] The ex-wife testified that she and the father can only cooperate if she agrees with what he says. She described him as controlling.

[80] The ex-wife testified that she has had considerable difficulty having the father pay toward additional expenses for the son. She described how the father had obtained a wheelchair for the son, when the son broke his leg. Insurance paid for most of the cost, leaving a balance of about $21. The father sent her the invoice, asking her to pay 50%. However, when she asked him to pay 50% of the son's summer camp fee of $600, he told her that this was her responsibility.

[81] The ex-wife also described the father as having an explosive temper when he didn't get his own way (even though he was not physically abusive). She said that he would demean her, telling her "that you are a woman, you don't deserve to live". She said that she continues to try to avoid having contact with him.

[82] The ex-wife stated that the father used to have panic attacks.

[83] The ex-wife said that the father would constantly demean her other child (a teenager at the time they resided together).

[84] The ex-wife has not brought a motion to change her court order.

[85] The father did not reply to this evidence.

[86] The court found the ex-wife to generally be a credible witness. It found that she gave her evidence in a clear and thoughtful manner. She did not over-state evidence, setting out any allegation cautiously. She was very generous to the father's fiancée, who was in court, stating that she had been very good to the son and how much she appreciated this.

5.3 Dr. Collins

[87] The mother filed a psychological report prepared about her by Dr. Rex Collins, dated February 20, 2013. Dr. Collins is a clinical psychologist who frequently prepares expert reports in family law cases. The court found his report very helpful in understanding the mother.

[88] Dr. Collins reported that the mother is an intelligent, complex, rather troubled woman, in considerable psychological distress related not only to her current situation, but likely also to some longstanding inner conflicts and tensions.

[89] Dr. Collins writes about the results of psychological testing on the mother as follows:

…at times, she can address issues in thoughtful and reflective ways before making a decision or taking action; in other instances, she may be led by her feelings. Because of this, others may find her somewhat unpredictable and have difficulty in anticipating what she may say or do next. She herself, may experience difficulties making decisions. Compounding this aspect of her functioning is what might be described as an excessive openness to experience, an acute sensitivity to and an acute awareness of, events in her life. Because of this hyper-vigilance and sensitivity, others may see her as making big productions out of small matters, leaving her with her own sense of not having her concerns taken seriously. Her frustration with respect to this is likely experienced by others as anger, whereas she herself might have the experience of not being able to do what it feels right for her to do. This can further compound her sense of being misunderstood and dismissed.

[90] Dr. Collins observed that when the mother feels overwhelmed by her feelings, her thinking may become more confused and distracted, even at times illogical. He said that she has a predisposition to becoming depressed.

[91] Dr. Collins discussed the mother's losses in her life as a child and observed that her fear of losing control over the child has reverberated with her earlier losses and contributed to her current level of stress and her emotionality.

[92] Dr. Collins identified the mother's strengths from the psychological testing. These findings, he wrote, include a caring ability to take the feelings of others into account and a profile that her bonding with a child is likely to be quite stable and dependable. He observed that it is unlikely that the mother would allow the pursuit of her own interests to hurt a child in any way.

[93] The mother deposed that she found Dr. Collins's report to be very helpful and it gave her a better understanding about herself. She has engaged with several services since then.

5.4 Dr. Sibian

[94] The father filed a psychological report from Dr. Adrian Sibian, a registered child and family psychologist. Dr. Sibian also testified at the trial.

[95] Dr. Sibian's evidence was not very helpful. His process to assess the father was considerably flawed.

[96] The mother complained to the College of Psychologists about Dr. Sibian's report. The matter was investigated. The copy of the Decision of the Inquiries, Complaints and Reports Committee of the College of Psychologists of Ontario, dated December 23, 2014, was filed.

[97] The decision sets out the following charges:

a) Dr. Sibian failed to maintain the standards of the profession, including failing to be familiar with the standardization, norms, reliability, and validity of any tests and techniques used and with the proper use and application of these tests and techniques; failing to render professional opinions based on current, reliable, adequate and appropriate information; and failing to identify the limits of certainty with which diagnoses, opinions or predictions are made.

b) He provided services that he knew, or ought to have known, would not benefit his client.

c) He made a record, or issued or signed a certificate, report, or other document that he knew or ought to have known is false, misleading or otherwise improper.

d) He engaged in conduct or performed an act, in the course of practising the profession, that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable, or unprofessional.

[98] The case has been referred to the Discipline Committee of the College. The hearing has not taken place yet. Dr. Sibian indicated he will vigorously defend these charges.

[99] Dr. Sibian acknowledged that he was retained to conduct a psychological assessment of the father. He also acknowledged that he went well beyond the boundaries of what he was asked to do when he writes in the summary portion of his report:

Moreover, I highly recommend that the child, just like his brother, spends half and half time with his parents.

[100] Dr. Sibian wrote this conclusion having never met the mother, not seeing the child with the mother or speaking to collateral sources such as the society worker. He had only one side of a high-conflict story. This seriously undermined the weight the court could place on his observations. Dr. Sibian also candidly admitted that he feels that parents should have equal parenting time with children. This bias appeared to affect his conclusion.

[101] The mother asked the court to draw an adverse inference against the father for obtaining such a flawed report (and failing to obtain another report). The court is not prepared to do this. The father retained a psychologist and relied on his expertise. It wasn't his responsibility to evaluate the quality of the report.

[102] The mother maintained that the father has severe mental health problems. The evidence did not support this conclusion. Many of the mother's concerns were historic from the time she lived with the father (he had anxiety attacks, nightmares and would become very depressed). The ex-wife's knowledge of these issues was also historic. There was no recent evidence that any of these issues has impaired the father's parenting ability. The father has had active involvement with many doctors, schools and society workers. None have expressed a concern about his mental health functioning.

Part Six – The Child

[103] It was noteworthy that neither party provided the court with much information about the child. Aside from stating that the child did well in school and had a good relationship with his family, the father offered little information about him.

[104] The mother offered a bit more information about the child, but most of her evidence arose through questioning by the court after she had completed her direct evidence.

[105] The mother described her son as an open child who likes to be involved in making decisions. She said that he is happy, but sensitive. She said that the child loves swimming and is very good at it. He also enjoys school and participating in choir there. She said that the child is still bedwetting and that she is concerned about his emotional health.

Part Seven – Joint Custody

[106] The court needs to determine if it is in the child's best interests to make a final order for joint custody.

7.1 Legal Considerations

[107] The Ontario Court of Appeal in Kaplanis v. Kaplanis, [2005] O.J. No. 275 sets out the following principles in determining whether a joint custody order is appropriate:

1. There must be evidence of historical communication between the parents and appropriate communication between them.

2. It can't be ordered in the hope that it will improve their communication.

3. Just because both parents are fit does not mean that joint custody should be ordered.

4. The fact that one parent professes an inability to communicate does not preclude an order for joint custody.

5. No matter how detailed the custody order there will always be gaps and unexpected situations, and when they arise they must be able to be addressed on an ongoing basis.

6. The younger the child, the more important communication is.

[108] Joint custody should not be ordered where there is poor communication and the parties fundamentally disagree on too many issues affecting the child's best interests. See: Graham v. Butto, 2008 ONCA 260, Roy v. Roy, [2006] O.J. No. 1872.

[109] Courts do not expect communication between separated parties to be easy or comfortable, or free of conflict. A standard of perfection is not required, and is obviously not achievable. See: Griffiths v. Griffiths, 2005 ONCJ 235. The issue is whether a reasonable measure of communication and cooperation is in place, and is achievable in the future, so that the best interests of the child can be ensured on an ongoing basis. See: Warcop v. Warcop.

[110] The Court of Appeal has upheld joint custody in the absence of reasonably effective communication between the parents where it has been necessary to sustain a child's contact with a parent who has been subjected to a campaign of alienation. For example, such an order was upheld where a mother had laid down a pattern of resisting the father's access and was found by the trial court to be unable to appreciate the importance of the father's relationship with their children. See: Andrade v. Kennelly, 2007 ONCA 898.

[111] In recent years, there has been more willingness to grant joint custody where such an order is necessary to preserve the balance of power between the parents, especially where one parent has been primarily responsible for the conflictual relationship: See: Garrow v. Woycheshen, 2008 ONCJ 686, Hsiung v. Tsioutsioulas, 2011 ONCJ 517.

[112] Ultimately, the court must decide if a joint custody order is in the child's best interests and consider the factors set out in subsection 24 (2) of the Act in reaching this decision. This subsection reads as follows:

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) any plans proposed 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.

7.2 Analysis

[113] Despite having operated with a temporary joint custody order since May 3, 2011, the court finds that it is not in the child's best interests to make a final order for joint custody for the following reasons:

1. The parents' communication with one another is extremely poor.

2. The parents lack respect for one another.

3. The parents completely distrust each other.

4. The parents think the worst of one another – they rarely give the other the benefit of the doubt.

5. The parents have engaged in a power struggle for many years, using decision-making about the child as their battleground. This needs to end.

6. The conflict between the parents has been so intense that the society has had to be involved for several years due to their concerns that the high conflict between the parents will cause emotional harm to the child.

7. There has been considerable police involvement with the parents.

8. There has been considerable judicial involvement with the parents.

9. The substantial community resources dedicated to the family has not improved the ability of the parents to communicate.

10. The parents presented to the court as being very difficult people to deal with, unless you adopt their point of view. The father's conflict with the mother mirrors the conflict he had with his ex-wife. He was initially resistant to cooperating with the society. When he didn't get the access he wanted after the separation, he did not exercise access. There was a report to the society about the father having conflict with another parent at the child's school. Many of the father's emails to the mother were terse and dismissive. The mother can also be difficult to deal with. Some of her emails to the father were sarcastic, accusatory and provocative. She is far too quick to make reports to the police and the society about the father. There was also evidence of conflict that she has had with the father's lawyer and the school principal.

11. The parents have been inflexible in dealing with one another. Both provided examples of the other parent unreasonably refusing to change access or to accommodate the other parent's needs.

12. The court observed the dynamics between the parents when the mother cross-examined the father. It was clear that the father has a visceral distaste of speaking with the mother – he communicated that he really wants nothing to do with her and his behaviour in the case reflects this.

13. The father acknowledged that he and the mother fight over every small thing.

14. The parents (and particularly the father) are very rights-based. They have prioritized advocating for their rights in this case over the importance of insulating the child from adult conflict.

15. The parents have communicated poorly about schooling and medical issues. The latter creates some risk for the child, as the parents have often been unable to coordinate medical treatment for the child, or communicate effectively about doctor's instructions for the child.

16. There is some evidence that the child is adversely affected by the conflict. The mother testified that the child is still bedwetting. The society has been concerned about the conflict's impact on the child. The court is also concerned about the long-term emotional impact on the child from being exposed to this level of domestic conflict.

[114] The temporary joint custody order (which has some elements of parallel parenting) has not been effective in meeting the child's best interests and needs to be changed on a final basis.

[115] The inability to communicate is not solely due to the behaviour of one parent. Both parents have acted inappropriately and have tried, at times, to control decision-making for the child to the exclusion of the other parent. There has been a constant power struggle between the parents that has little to do with the child.

[116] It is in the child's best interests to implement a sole custody order, with the non-custodial parent having defined rights of participation. The issue becomes which parent should have custodial authority.

Part Eight – Custody

8.1 Best Interest Factors in Subsection 24 (2) of the Act

[117] Subsection 24 (2) of the Act sets out eight considerations for the court to consider in determining custody. No one factor has greater weight than the other, nor is one factor particularly determinative of the issue before me. See: Libbus v. Libbus, [2008] O.J. No. 4148 (Ont. SCJ). The court will review these considerations below.

Factor #1: 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.

[118] The court finds that the parents love their children very much. The court also finds that the child loves his parents.

[119] The child also has a positive relationship with his half-brother, half-sister and paternal grandmother who reside with the father.

[120] The mother deposed that she has had challenges in parenting her daughter. Her daughter has had mental health issues and has spent much of the past two years living in a treatment home. The mother testified that her daughter is doing much better and is hoping she will be able to return home full-time soon. She said that her daughter has a very good relationship with the child.

[121] The mother does not have any other family living in Canada.

[122] The child benefits from spending extensive time in the homes of both parents.

Factor #2: The Child's Views and Preferences, if They Can Reasonably Be Ascertained

[123] The child's views and preferences were not independently ascertained.

Factor #3: The Length of Time the Child Has Lived in a Stable Home Environment

[124] The court finds that the mother was the child's primary caregiver prior to the parties' separation. She continued to be the child's primary caregiver after the parties separated. The father has had increasing access to the child, and has spent substantial time with the child, particularly for the past two years. Both parents offer stable home environments for the child.

Factor #4: 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

[125] The parents are both capable of providing the child with guidance and education and the necessaries of life. The mother appears more attuned to the importance of the child receiving counseling, as he has been caught in the middle of this conflict. Counseling was recommended by the society and the mother took active steps to explore it. The father did not support this and took the stance that nothing was wrong with the child. He wrote to the mother that the only trouble was with her. The father was also not supportive when speech and language assistance was suggested by the school for the child. The court notes that the ex-wife also said that the father was not supportive of counseling and speech language assistance for her son.

[126] The mother has the better ability to respond to the child's special needs.

Factor #5: Any Plans Proposed for the Child's Care and Upbringing

[127] The mother provided a more detailed and child-focused plan for the child. The father provided few details of his plan. The mother set out the specific activities and counseling she would obtain for the child. She recognized the importance of stability of schools and service providers for the child.

Factor #6: The Permanence and Stability of the Family Unit with Which It Is Proposed That the Child Will Live

[128] This is not a major factor. Both family units appear to be stable.

Factor #7: The Ability of Each Person Applying for Custody of or Access to the Child to Act as a Parent

[129] The parents presented with different strengths and weaknesses.

[130] The father presented with the following strengths:

a) He loves and cares about the child and the child loves him.

b) He is intelligent, confident and a strong advocate.

c) He has made good medical decisions for the child. He recognized and acted on the child's urinary issues when the family doctor originally felt there was no problem, and the mother did not accept that there was a problem.

d) He has a large extended family and the child is an important part of that family. The father supports the importance of family.

e) He has the ability and desire to educate the child about his Romanian culture. He was more supportive of this than the mother.

f) He was open to joint counseling with the mother. The mother was the person who terminated this process.

g) The father is able to look after the instrumental needs of the child, such as feeding, clothing, hygiene and getting him to school on time.

h) The father is a capable parent, able to make competent decisions for the child. His flaws primarily relate to his interaction with the mother.

[131] The father also presented with many flaws, including:

a) He obtained medical decision authority for the child with evidence he knew or ought to have known was false. He had been notified about the mother's concerns about giving the child Tylenol and had been given the child's wart cream with instructions. This makes it difficult to trust him.

b) The father made attempts after he obtained medical decision authority to marginalize the mother. He changed the child's doctor. He then informed the doctor that the mother could only speak at the end of meetings. The court accepts the mother's evidence that the father impedes her ability to express her concerns during medical appointments. The court is not confident that the father would meaningfully involve the mother in the child's life if he was given custody.

c) The father presented to the court as somewhat rigid and inflexible. There was evidence to support this, such as:

i) After the separation, the father wanted unsupervised access. The mother offered supervised access pursuant to a court order. The father's bail term limited the father's options. However, instead of seeing the child on any terms, he exercised no access to the child. This informs the court that asserting his rights came ahead of the child's need to have contact with him.

ii) Many of the father's emails to the mother were terse and dismissive of her.

iii) The father denied many reasonable requests by the mother to rearrange access, including spending either Catholic Easter Sunday or Orthodox Easter Sunday in 2015 with her. In response to a simple request for the father to sign a travel consent for the mother to take the child to Niagara Falls for a day trip, the father responds to her:

My dear: Google shows Niagara in 4 states of US. Travel itinerary means that either you provide the details of the flights or the road trip map.

iv) The court accepts the mother's evidence that the father restricted her contact with the child at his graduation – because it was his time. He let her only take two pictures and then would not let her take any more.

v) The father delayed in signing a passport application for the mother. She required society and court intervention to obtain this.

vi) The court accepts the mother's evidence that the father has restricted her telephone contact with the child. His attitude appears to be that his time is his time, and the mother should not intrude on it, even if can be beneficial to the child. The ex-wife testified that she has had the same issue with the father.

d) The father has a history of conflict, as set out in subparagraph 113 (10) above.

e) The court accepts the evidence of the mother and the ex-wife that the father has not supported the son having a relationship with the mother and her daughter.

f) The father is very rights-based. He spoke little about the child in his evidence, instead focusing on his grievances and rights.

g) The father demonstrated little insight into his role in the conflict and the impact this may have on the child. He provided no evidence of efforts to obtain such insight.

h) The father resisted the mother's attempts to mediate this case. He should have taken every opportunity to resolve this case.

[132] The mother presented with the following strengths:

a) She loves the child and the child loves her.

b) She is intelligent and a strong advocate.

c) She has historically been the primary caregiver for the child and the child has done well with her.

d) She impressed the court as being nurturing and child-focused. She recognizes the importance of getting help to address the child's emotional needs.

e) She appears to be attuned to the child's needs.

f) She has ensured that the child is involved in activities and arranges play dates for him.

g) She demonstrates more insight into the impact her behaviour has had on the child than the father. She was able to recognize when she had acted inappropriately and apologized for it (instead of defending inappropriate behaviour). She expressed a commitment to doing better for the child.

h) Instead of trying to minimize the personal issues identified by Dr. Collins, the mother was grateful for his insights and has proactively taken steps to address them. These steps include attending for personal counseling at Youthlink and taking a parenting program at Catholic Family Services.

i) The mother is able to look after the instrumental needs of the child, such as feeding, clothing, hygiene and getting him to school on time.

j) The mother is a capable parent, able to make competent decisions for the child. Her flaws primarily relate to her interaction with the father.

[133] The mother presented with the following flaws:

a) She made unilateral decisions for the child, even when there was a joint custody order. She tended to act first and then ask for permission later. She did this when she enrolled the child in Montessori school, both when it was part-time and full-time.

b) The mother was resistant to agreeing to access increases or changes in access schedules throughout this case. This resulted in numerous court appearances and escalated the conflict.

c) The mother unreasonably delayed (and by doing so contravened a court order) in providing the father with a consent to travel. The father provided this request in February and the mother did not deliver the consent until the summer. This increased the father's anxiety and escalated the conflict.

d) The mother has been far too quick to report the father to the society and the police. This too has escalated the conflict.

e) The mother, at times, will not communicate with the father about her medical concerns, raising these concerns for the first time at appointments, or sometimes going back to see the doctor privately to raise her concerns. Recently, after taking the child to a dentist for emergency treatment, she notified the father's counsel (by email on a Saturday night), and not the father about what had happened.

f) The mother, at times, has unfairly discounted the father's medical concerns. An example is when the child had urination difficulties. The mother initially felt that the child did not have a problem. She did not tell the urologist about the father's concerns about the child's urination at an appointment in 2012. In 2013, when the father took the child to the emergency department (as the child was in pain because of this issue), she accused him of taking the child to too many doctors.

g) The mother presented as a difficult person to deal with. She misinterprets many of the father's emails to her, interpreting innocent emails from him as hostile. She would then respond with hostility. In response to a reasonable request for information about a birthday party the mother responded:

…It is about that the child whants (sic) very much to go to this birthday party, and it is time that you go over your personal problems (anxiety, demetia (sic), or any other mental problems that you might have) and make this child happy as much as possible…

In response to a proposal by the father in 2013 to change some parenting time to give each parent long weekends, the mother responded:

I will not switch anything. PLEASE STOP THINKING OF YOURSELF!!!!!!!!!!!!!! He is to (sic) young to understand anything from this long weekneds (sic), instead he will see that he is torn between places. Watever (sic) parent will have him for long weekend or his birthday, he will stay there. I am not asking any long weekend for him to spend with me, unless he is in my care. DO NOT PULL THIS CHILD ANYMORE AND DO NOT MAKE SO MANY CHANGES ANYMORE!!!!!!!!!!

It was clear at trial that the father is exhausted in dealing with the mother and really wants nothing to do with her, other than what communication the court will require.

h) The mother stopped joint counseling that might have assisted the parties.

Factor #8: The Relationship by Blood or Through an Adoption Order Between the Child and Each Person Who Is a Party to the Application

[134] This was a neutral factor in making this decision.

8.2 Final Analysis

[135] Despite her flaws, the court finds that it is in the child's best interests that the mother be granted custody of the child. In summary, the court makes this finding for the following reasons:

a) She demonstrated a better understanding of the child's needs.

b) She presented a more detailed plan for the child.

c) She is the parent more willing to obtain supports for the child.

d) She has demonstrated more insight than the father into her role in the domestic conflict and is taking more active steps to address her issues than the father. This makes her a better candidate to positively evolve as a parent.

e) She has historically been the primary caregiver for the child.

f) The mother impressed the court as being more nurturing than the father, who struck the court of having a rigid personality.

g) The father was manipulative and dishonest in obtaining medical decision-making authority for the child. The court has more confidence that the mother will act in good faith than the father.

h) The mother, at this point, (despite her history of acting unilaterally), is more likely to include the father in the child's life than the father would include her. This includes facilitating telephone contact when the child is not in a parent's care.

[136] The court will set out specified rights for the father to ensure that his relationship with the child is not compromised.

8.3 Parenting Schedule

[137] The child should have maximum contact with both parents if it is consistent with the child's best interests. See: Gordon v. Goertz, [1996] 2 S.C.R. 27.

[138] It is in the child's best interests that the parenting schedule address the following objectives:

a) Ensure that the child has maximum contact with his father, half-siblings and the paternal family.

b) Reduce the interactions between the parties.

c) Provide the child with stability during the school week. Many of the considerations in deciding whether to make a joint custody order apply to a decision about whether to order week-on, week-off access. To make such an order, there should be some positive communication between the parties; otherwise the parents may take inconsistent approaches to school work and extra-curricular activities, or may not be informed about school issues or meetings (as the ex-wife has testified has happened in her parenting arrangement with the father). The parents do not cooperate well enough to make such an arrangement work.

d) Spend weekend time with both parents. This will allow the parents to participate in more activities with the child and permit the father to enrol the child in Romanian school on Saturdays.

e) Spend dedicated time with the parents during holidays, including having time to travel with them.

f) Permit contact with the other parent when the child is in the other parent's care.

[139] The father shall have access to the child on two out of every three weekends from Fridays after school until Mondays, when he will return the child to school in the morning. The weekend shall extend until Tuesday if the weekend falls when there is a Monday statutory holiday. In the week before the non-access weekend for the father, he will also have the child from Wednesday after school until he returns the child to school on Friday morning. All exchanges will be at the school, unless the school is closed, in which case it will take place at the mother's apartment lobby.

[140] There will be a full sharing of holidays. The two-week winter school break and the one week March break shall be evenly divided. In the summer, the child shall spend rotating two week blocks of time with each parent. Starting in 2016, the parties may have a three-week block of time with the child, if one of them wishes to take the child to Romania.

Part Nine – Child Support

9.1 Preliminary Findings

[141] The mother accepted that the father's income for support purposes is $89,176 per annum. This was his gross income in 2014.

[142] The father accepted that the mother's current income is $32,000 per annum.

[143] The parenting schedule qualifies as shared parenting as defined in section 9 of the guidelines, as the father has the child with him about 42% of the time.

[144] The father asked for a strict set-off of the parties respective table support obligations. This would be $526 per month ($795- $269).

[145] The mother asked in closing submissions that the father pay child support of $700 per month, which is less than the guidelines table amount of $795 per month for one child.

9.2 Legal Considerations

[146] Section 9 of the guidelines reads as follows:

Shared custody

9. Where a parent or spouse exercises a right of access to, or has physical custody of, a child for not less than 40 per cent of the time over the course of a year, the amount of the order for the support of a child must be determined by taking into account,

(a) the amounts set out in the applicable tables for each of the parents or spouses;

(b) the increased costs of shared custody arrangements; and

(c) the condition, means, needs and other circumstances of each parent or spouse and of any child for whom support is sought.

[147] In Contino v. Leonelli-Contino, 2005 SCC 63, [2005] 19 R.F.L. (6th) 272 (SCC), the Supreme Court of Canada set out the following principles when dealing with cases under section 9 of the guidelines that are applicable to this case:

a) Once the payor surpasses the 40% threshold, section 9 creates a different method of determining child support in shared custody cases. There is no onus on the payor to convince the court to order a different amount than the table amount.

b) There is no presumption of a reduction in the table amount for child support in section 9 cases. A court may still order the full table amount after conducting the section 9 analysis.

c) There should be no mathematical formula or multipliers applied to section 9 cases. In particular, the simple set-off only serves as a starting point under subsection 9 (a) of the guidelines, but it has no presumptive value.

d) The court should consider all three factors in section 9. None should necessarily prevail over the others.

e) Section 9 of the guidelines is broad enough to incorporate section 7 guideline expenses directly in the examination of child-related expenses, and expenses can be considered that might not fit within section 7.

[148] In Flick v. Flick, 2011 BCSC 264, the court, citing Contino, identified these additional factors for consideration in a section 9 analysis:

a) The language of section 9 warrants an emphasis on flexibility, fairness and consideration of the overall situation of the parents and the needs of the child.

b) The weight of each factor under section 9 will vary with the particulars of the case.

c) The court retains the discretion to modify the set-off amount where, considering the financial realities of the parents, it would lead to a significant variation in the standard of living experienced by the child as they move from one household to the other.

d) The analysis should be contextual and remain focused on the particular facts of each case.

e) The court has full discretion under subsection 9 (c) to consider "other circumstances".

[149] Once the 40% time threshold is met under section 9, courts aren't required to quantify the time, or award support in accordance with the percentage of time. It might cost the parent with the lower percentage of time just as much to raise the children. See: Stewart v. Stewart, 2007 MBCA 66.

[150] In his article, The TLC of Shared Parenting: Time, Language and Cash, Professor Rollie Thompson summarizes how the Supreme Court in Contino has directed courts to conduct a section 9 analysis as follows:

a) Determine the simple set-off amount – The starting point under subsection 9 (a) is the straight set-off of each parent's table amount for the number of children involved in the shared custody arrangement.

b) Review the child expense budgets - A court must look at the parents' actual spending patterns, based upon child expense budgets, and not just make assumptions about spending. Under subsection 9 (b), a court has two concerns: the over-all increased total costs of child-rearing for both parents, especially duplicated costs; and any disproportionate assumption of spending by one parent or the other. The child-related expenses should be apportioned between the parents based upon their incomes, to verify the set-off and to determine the need for significant adjustments to the set-off amount.

c) Consider the ability of each parent to bear the increased costs of shared custody and the standard of living for the children in each household - In assessing each parent's ability to bear the increased costs of shared custody, a court should look at the incomes of the parents, the disparity in incomes, and their assets and liabilities. Children should not experience a significant variation in the standard of living as they move from one household to another.

9.3 The Set-Off Amount

[151] The first step in a section 9 child support analysis is to determine the amounts set out in the applicable tables for each of the parents (the set-off amount). As set out above, this is $526 per month.

9.4 Increased Costs of Shared Custody

[152] The second step in a section 9 child support analysis is to determine the increased costs of the shared custody arrangements.

[153] The father provided no evidence that he had increased costs due to the shared custody arrangement. The court, however, can infer that the father will have some additional food, clothing, laundry, transportation and household supply costs for the child.

9.5 The Condition, Means, Needs and Other Circumstances of the Parents

[154] The court considered that the father pays child support of $190 per month to his ex-wife. He is also supporting the education for his daughter who is in university. The father did not provide evidence of the child's contribution to her expenses, although he did state that she received a scholarship for $2,500. The father also supports his mother, who lives with him. The father did not reveal his fiancée's income to the court. He claimed that they each pay 50% of the household costs. The court draws the inference that the fiancée earns as much income as the father.

[155] The mother supports the child and her daughter. The mother has a sitter for the child from after school until she returns from work. She said that she pays about $500 per month for this expense. The father has family who care for the child when he is at work. He has no additional child care costs.

[156] The child will spend about 58% of the time with the mother. She has higher costs for him.

[157] The father owns his home. The mother rents an apartment.

[158] The father's temporary support obligation of $730 per month was based on an income of $80,800 per annum. He earned $112,578 in 2012 and $107,061 in 2013. His support obligation was not increased. He has had the benefit of underpaying child support since the temporary order was made. He has also not been required to contribute to the child's childcare expenses. He is fortunate that the mother only sought an ongoing support order. The mother made it very clear that support was a secondary consideration for her in this case.

9.6 Support Calculation

[159] Balancing all of the considerations set out above, the court finds that the mother's child support proposal is very reasonable. The father shall pay the mother child support in the sum of $700 per month, starting on May 1, 2015.

[160] The parties shall be required to provide each other annually with their complete income tax returns and notices of assessment.

Part Ten – Conclusion

[161] A final order shall go on the following terms:

a) The mother shall have sole custody of the child.

b) The mother shall consult the father before making any major decision for the child.

c) The mother shall not change the school or any doctor for the child without the father's consent or prior court order.

d) The mother shall give the father reasonable notice of all medical appointments for the child and the father shall be entitled to attend and fully participate in these appointments. She shall not schedule these appointments during the father's parenting time unless there is an urgent medical issue. The mother shall also keep the father advised about any medical directions, treatment or prescriptions required for the child.

e) The father shall only take the child for medical care if there is an emergency or he obtains the prior consent of the mother. He is to immediately notify the mother if he takes the child for emergency treatment.

f) The mother shall give the father reasonable notice of any school meetings or events for the child and the father shall be entitled to attend at and fully participate in these meetings or events.

g) The mother shall sign any necessary consents or directions to permit the father to speak directly with any medical or other service provider for the child and to staff at the child's school.

h) The father shall have access to the child on two out of every three weekends, from Fridays after school until Mondays, when he will return the child to school. If there is a Monday statutory holiday on the father's weekend, the access shall extend until Tuesday morning when he will return the child to school. This access shall begin on April 24, 2015. The father will have two consecutive weekends with the child, followed by the weekend with the mother. The parents shall ensure that the child can speak with the other parent at least once on the weekend.

i) In the mid-week prior to the mother having the child for the weekend, the father shall have the child with him from Wednesday after school until Friday morning, when he will return the child to school.

j) The father may enrol the child in Romanian school for the weekends that the child is with him.

k) The child shall rotate spending two week blocks of time with each parent in the summer. The first two weeks shall be spent with the father from the Friday following the child's last day of school (and if the last day of school is a Friday, access will start that day). The parent who the child is with shall ensure that the child speaks with the other parent at least twice each week.

l) Starting in 2016, if either party wishes to take the child to Romania, they may serve the other with notice of this intention by May 15th. That parent will be permitted an additional week to spend with the child in Romania. If a parent takes the child to Romania one year, the other parent will have priority to take the child to Romania the following year.

m) The parties shall alternate spending the March break with the child. The child shall spend even-numbered years with the father, starting in 2016, and odd-numbered years with the mother, starting in 2017.

n) The child shall spend equal time with the parents during the two-week winter school break. In odd-numbered years, starting in 2015, the child shall spend the first week of the break with the mother and the second week of the break with the father. In even-numbered years, starting in 2016, the child shall spend the first week of the school break with the father, and the second week of the break with the mother.

o) The child shall spend Mother's Day with the mother from 10:00 a.m. to 7 p.m. and Father's Day with the father from 10:00 a.m. to 7 p.m., if those days fall on days that the child is not in their care according to the regular schedule.

p) The holiday schedule takes priority to the regular schedule. The regular schedule resumes when the holiday access ends.

q) The child shall be exchanged at the mother's apartment building lobby when the school is closed.

r) The parents shall execute any travel consent requested by the other parent within 7 days of the request. The child shall only travel during the summer or during school holidays, unless the other parent consents, in writing.

s) The traveling parent shall be provided with the child's passport.

t) The traveling parent shall provide the other parent with 30 days notice of his or her intention to travel and a full itinerary, including where the child will be staying and contact numbers.

u) The traveling parent shall ensure that the child can speak with the other parent, at a minimum, every third day.

v) The parties shall ensure that the child has private telephone contact with the other parent. The child shall not be put on speaker-phone.

w) The father shall pay the mother child support of $700 per month, starting on May 1, 2015. This is less than the guidelines table amount because there is shared parenting, as defined in section 9 of the guidelines.

x) The parties, by June 30th each year, shall exchange full copies of their income tax returns and notices of assessment.

y) A support deduction order shall issue.

z) All other claims not addressed in this order are dismissed.

[162] If either party wishes to seek costs, they shall serve and file written submissions by May 5, 2015. The other party will then have until May 19, 2015 to serve and file a written response to these submissions. The written submissions are not to exceed 3 pages, not including any offer to settle or bill of costs, and in the mother's case, any accounts from counsel she retained to assist her on this matter. The submissions should be filed at the trial coordinator's office on the second floor of the courthouse.

[163] At the conclusion of closing submissions, I spoke to the parents. I emphasized to them that it is critical for their child's long-term emotional welfare to treat each other with kindness and respect moving forward. They cannot continue this conflict. It is too stressful for them and too stressful for the child. The child does not care how the parenting arrangement is labeled. He wants permission to be able to have wonderful relationships with both of his parents and extended family, and not be placed in the middle of conflict. They both have a responsibility to meet this important need and to give him a normal and happy childhood.

Justice S.B. Sherr

Released: April 21, 2015