Court File and Parties
Court File No.: D71132/14 Date: January 5, 2015
Ontario Court of Justice
Re: Nisha Adams – Applicant And: Caleb Adams - Respondent
Before: Justice Roselyn Zisman
Counsel:
- Sheila MacKinnon for the Applicant
- Paul Cooper for the Respondent
- Veena Pohani for child Kayne
Heard On: December 31, 2014
Endorsement on Temporary Motion
[1] Overview of the Motions
There are two motions before the court by the parties each seeking custody and ancillary orders and child support. Both parties maintain that they were the children's primary caregiver and seek primary residence. Although the mother agrees that both parents were involved with caring for the children, she alleges that the father has a long standing problem with alcohol that makes him unpredictable when caring for the children. She also raises concerns about the tactics of the father and his family and their effect on the children. The father alleges that the mother's current health problems have made it difficult for her to meet the needs of the children and he is the parent who can best meet those needs. It is also his position that he can provide the children with the consistency and predictability they need as he has continued to reside in their local community.
Background
[2] The parties met and began to date in about 1997 and resided together after the birth of their first child Kayne in 2000. During the next few years, the parties appeared to have resided in different homes due to the mother completing her teacher's degree in Windsor for about 1 year and then returning to live in Whitby while the Respondent lived in Scarborough with the paternal grandparents. There is a dispute about exactly how much time each spent with Kayne. They were married on July 24, 2005 and lived together continually until the separation on June 23, 2014.
[3] There are four children, Kayne Alleyne-Adams born December 13, 2000, Kayesha Alleyne-Adams born October 27, 2005, Selah Alleyne-Adams born December 21, 2008 and Zhyon Alleyne-Adams born October 19, 2011. Except for the youngest child, all of the children attend Whitefield Christian School.
[4] The mother began full-time employment as a teacher in Scarborough in October 2004. At the same time, the father also found full-time employment as a parental support worker. The parties resided together at 123 Berner Trail in Scarborough in home owned by the paternal grandmother and paternal step-grandfather.
[5] The mother stayed home for one year maternity leave after the birth of both Kayesha in 2005 and Selah in 2008.
[6] In March 2011 the mother was diagnosed with an autoimmune, neuromuscular disease called Myasthenia Gravis. She was hospitalized for 40 days. The father took time off work and received a six-week compassionate care benefits in order to care for the mother and the children. The maternal grandmother also received 6 week compassionate care to assist in caring for the mother and children.
[7] Since March 2011 the mother has been unable to return to work and is in receipt of long term disability and as of August 2011 she has also received CPP disability payments.
[8] On October 19, 2011 the parties' fourth child, Zhyon was born two months premature. The father took paternity leave.
[9] In February 2012, the mother has major surgery due to her condition. She was again briefly hospitalized in September 2012 and again in October 2013. During each of these hospitalizations the father took time off work to care for the children. The mother had surgery on September 2, 2014 in an effort to reduce the amount of medications she is taking. The mother deposed that she was able to return to all of her regular activities within two days of the surgery and is being monitored to asses her medication plan.
[10] The father was injured in December 2013 and was required to take time off work due to his injury and he had surgery on his shoulder in June 2014. Although he advised the children's aid society worker that he was fully recovered and able to return to work in August, the father has now alleged that he incurred a knee injury on the day of the separation and was unaware of the extent of the injury and it may prevent him from returning to work.
Incident of June 22, 2014
[11] The parties were in an argument that evening with the mother alleging that the father was intoxicated and belligerent. She had taken the children out for dinner and when she returned the paternal grandmother and aunt were in the home. According to the mother she put the youngest child to bed while the other children were watching TV with the paternal grandfather. She could hear the father yelling that he would find someone better than her and he began to follow her throughout the house. He then followed her into the bedroom and shortly after the paternal grandmother entered the room and tried to remove the child. The mother tried to prevent this and used her right foot to fend off the paternal grandmother. The father then became involved and according to the mother grabbed her shirt, ripping it, grabbed her arm and began to punch, scratch and squeeze her. The mother said she was going to call 911 and the paternal grandmother then said she was also going to call 911.
[12] The police arrived and the police notes stated that the father had a "strong odour potent of alcohol". It was also noted that the father was vague with the details of what happened and that he was somewhat incoherent. The father was arrested for assaulting the mother.
[13] The father denied that he was intoxicated and deposed that he only had two glasses of wine the entire night. He alleged that the mother's attack on the paternal grandmother was unprovoked.
[14] The paternal grandmother wanted the police to charge the mother as she alleged that she heard the parents arguing and went upstairs and the mother kicked her in the breast and she fell back and hit the wall. The paternal grandmother advised the police that there was something wrong with the mother and made allegations of neglect against her. The paternal grandmother left to go to the hospital but returned while the police were still investigating. No further charges were laid that evening. According to the mother, the police advised her that she would not be charged as the incident with the paternal grandmother was deemed to be self-defense. The father was subsequently released on terms not to attend at the home or have contact with the mother.
[15] The next evening, on Monday June 23, different officers, but from the same division, attended at the mother's home and arrested her for assaulting the paternal grandmother. The mother noticed that the father and his step-father drove up as she was being escorted out of the home. They subsequently removed the children from the home and took the mother's van, even though the children were being supervised by the mother's friend and the paternal grandfather.
[16] The mother was suspicious about her arrest and the fact that the father was outside her home and aware that she was being arrested. She suspects that somehow the father's brother who was police office in the same police division was involved. The father alleges that the children's aid society told him to pick up the children as the mother was about to be arrested however, the notes of the children's aid society do not confirm this.
[17] The mother was held overnight for a bail hearing and upon her release on June 24th, she alleges that she was told by the presiding justice of the peace that she could return to the home and that her mother could act as a third party to collect the children and return them to her care. According to the mother, the father refused to return the children to her care or permit her any access and accordingly and she was advised to commence a family court application.
Court Proceedings
[18] The mother brought an emergency motion on June 27th. The mother was represented by duty counsel and the father had counsel present. On a temporary without prejudice basis the mother consented to supervised access to herself every other day for a minimum of two hours to a maximum of three hours. It was also agreed that with respect to Kayne, who was 13 years old, his wishes regarding access should be considered and that the parties should not discuss the conflict with any of the children.
[19] The matter was again before the court on August 1, 2014 at which time the mother had retained counsel. The parties entered a consent on a without prejudice basis dealing with some conditions of access and communication namely, that a third party would be responsible for pick-up and delivery of the children, that the father, paternal grandmother and paternal step-grandfather and Clayton and Susan Adams would not have contact or attend at the mother's residence except for George Needles who could attend with 24 hour notice. The mother was required to have a third party residing with her when she had the children. There was also a stipulation that the father not consume alcohol while the children were in his care. It appears, not on consent, that Justice Curtis made an order for temporary access with each parent having the children on alternate weeks with the changeover being on Fridays at 6:00 p.m. There was a further stipulation that the parties not file any further motion materials without leave of the court. An order was made for the Office of the Children's Lawyer[^1] to be appointed due to the high conflict between the parties and concern about the consequences for the children.
[20] The matter was adjourned several times for a variety of reasons and the motions was then scheduled to be heard on December 31st.
[21] Both parties filed extensive motion materials. The mother relied on her affidavits sworn June 26, July 8, July 16, July 23, December 10 and December 16, 2014. The father relied on his affidavits sworn July 28, December 12, including exhibits (a) to (mm) and December 19, 2014. As a result of the criminal charges which were subsequently withdrawn against both parents, the children's aid society began an investigation and both parties relied on various excerpts from the notes of that investigation. Both parties also filed financial statements.
Findings and Analysis
General Principles
[22] As in all cases involving custody and access the only consideration is the best interests of the children. Section 24 of the Children's Law Reform Act outlines the factors the court should consider. I have considered those factors and the principles that that children should have as much contact with each parent as is consistent with the best interests of the children and the court should consider the willingness of each parent to facilitate such contact.
[23] I have also considered that at this stage of the proceedings temporary orders are based on limited evidence without the benefit of cross-examinations and such orders are meant to come to a reasonable acceptable solution to a difficult problem pending trial. Even though in this case, many more affidavits were filed than usually seen by the court on temporary motions, nevertheless the materials rely on hearsay, letters that are attached to the affidavits, medical reports and excerpts from the notes of the children's aid society and the police investigation. None of this evidence has been scrutinized as it will be if this matter proceeds to trial.
Who is the Primary Parent?
[24] I find that during the time the parties resided together that they both played an active part in the children's lives. Despite the father's allegations that he was the primary parent as the mother initially was not with Kayne because she was completing her education or later because she was ill, I find that the mother was actively involved in all aspects of the children's lives. The mother took maternity leave with each child and despite her illness she has been home with the children since March 2011. As the mother worked as a teacher her days and hours of employment and vacation times would coincide with the children's schedule and therefore it is reasonable to conclude that she spent a great deal of time with the children.
[25] As of 2004, when the father began his employment he typically worked from 11:00 p.m. to 7:00 a.m. on alternate week-ends and three overnights per week. Based on the father's earnings, except for the year 2012, it appears that he was working full-time and therefore I find that he has exaggerated the time he was available to spend with the children while demeaning the mother's role in the day to day care of the children.
[26] Based on the evidence it appears that both parents took the children to all of their medical and dental appointments and both were involved in their school, church and extracurricular activities. Although since the mother's illness she has been somewhat restricted at various times from physically caring for the children or being able to transport them I do not find that this diminished her role in being a caregiver. Being a primary caretaker involves not just quantity but the quality of involvement. As in most families where both parents are working outside of the home, both parents participated in caring for the children, making decisions and meeting their needs. Based on the contradictory evidence presented at this stage of the proceedings, I am not able to definitively conclude which parent was the primary parent nor does much turn on that issue in this case.
[27] I therefore find that historically both parents were primary caregivers of the children and at various points in time each parent may have spent more time with the children than the other parent. I do not find it useful or productive to minutely examine the time spent or the things each parent did for the children. I find that the historical parental caregiving roles in this case would support an ongoing parenting scheme that maximizes the time each parent spends with the children.
Mother's Health
[28] The father both in his materials and submissions spent a great deal of time emphasizing the mother's illness and how her illness makes her incapable of meeting the children's needs. The father relied on the fact that he was able to receive compassionate care leave, that the doctor has filed applications on behalf of the mother confirming she has a disability and supporting her inability to work. He also relies on comments made by the children during interviews by the children's aid society that the mother was ill and mostly slept.
[29] There is no question that the mother suffers from a serious and chronic disease and that from time to time she has been hospitalized but the latest report from her doctor confirms that she is doing well and there are few limitations on her ability to care for the children.
[30] Dr. Brooyman's report dated December 16, 2104 clarifies the difference between the medical forms confirming the mother's disability and her ability to care for the children. Dr. Brooyman states that: "Medically this forms states that Nisha is disabled but medically she is able to look after her children. Note this includes she can play with the children but can't run with them. She can cook/do bedtime routines/chores but requires additional time and advanced planning."
[31] The father also alleged that the mother was mentally ill and reported this concern to the children's aid society. The father took the position that as a result of his concerns he was justified in refusing to permit unsupervised access to the mother.
[32] The mother attended for a mental health assessment. The report states that understandably the mother was anxious and sad about the father's threats that he would use her illness and the medications she takes against her to obtain full custody of the children and make access to them very hard for her. The report confirmed that the mother has had some depressive symptoms and has had treatment with anti-depressants and that she attended some day programs and currently is free from any emotional symptoms other than some mood lability associated with her being on steroids. The report concludes that from a psychiatric point of view, the mother does not have any emotional difficulties that would impair her ability to adequately parent the children.
[33] I find that the father instead of suggesting ways he might assist the mother and the children is using her illness as a litigation strategy to attempt to gain primary care or custody of the children. I find there is no basis to find that the mother's physical or mental health in any way impedes her ability to parent the children.
Mother's Eviction from the Matrimonial Home
[34] On June 27th, the day the parties were in court on the emergency motion brought by the mother, the father's family served the mother with a Notice to Terminate Tenancy as well as a Notice of a Hearing dated July 2, 2014 from the Landlord and Tenant Board. The Notice was signed by George Needles (the paternal step-grandfather) and indicates he is giving this notice because his spouse's child wishes to move into the rental unit. Although the father deposes that they intended to sell the home and use the proceeds for their retirement.
[35] The mother deposes that she and the father began to rent the home at 123 Berner Trail in Scarborough in November 2005 and that was her belief that they had signed a rent to own contract. In any event, the mother began to look for alternate accommodations after being served with the eviction notice.
[36] On July 9, 2014, the mother deposes that Stephen Adams, the father's biological father who had been drinking told her that the paternal grandmother and step-father were arranging to have their other son, Clayton Adams, a police sergeant move into the home in an attempt to make her feel uncomfortable in an effort to force her out. As a result of Stephen Adams' belligerent and threatening behaviour, the police were called.
[37] The landlord and tenant hearing was adjourned due to the mother's surgery. On October 24, 2014 the board dismissed the application to terminate the mother's tenancy, without prejudice to seek relief in another forum, as the board found that the mother was not a tenant.
[38] On October 29th, the paternal grandparents changed the locks and took possession of the premises without notice or attempting to negotiate a planned moving date. A note was left on the door advising that the mother had until Friday October 31st to remove her belongings. This was two days before her scheduled week with the children. With the assistance of the police, the mother negotiated a time to remove her belongings and the children's belongings on October 30th at 3:00 p.m. The father's parents then emailed mother's counsel unilaterally changing the time. The mother drove by the home on October 30th and witnessed the father removing all of the children's belongings, clothes, boots, toys, beds and even items she purchased after the separation. The father also removed the food from the fridge. Mother's counsel tried to contact the father's counsel to negotiate the items the father could take but was unable to reach him. The police were called and permitted the mother into the home to show the father the items she wanted. Despite this, the father removed the majority of the children's clothing and toys. The father's parents also attempted to restrict the number of people the mother could bring into the home to sort through, pack and move her belongings and restricted her time to do so. Again, the mother had to seek the assistance of the police to negotiate permission for more people to assist her.
[39] The father denies any involvement in the eviction and deposes that this was strictly an issue between the mother and his parents. He denies that the mother's medications and purse were left in the home and states her medications were left in a bag outside the home. He does not deny that the mother's allegation that the home is still vacant.
[40] The mother was able on Saturday November 1st able to secure a three-bedroom apartment for herself and the children in Markham.
[41] Dr. Brooyman reported to the children's aid society that the father and his mother had been meeting with her and that they were attempting to get the mother out of the house and seemed to want her to take sides.
[42] I find it implausible that the father was not complicit in the eviction of the mother. Even if he as he alleges does not have control over the actions of his parents, it is concerning that the father is residing with the children in his parents' home and are being exposed to their obvious dislike of the mother. The manner in which the mother and children were evicted from their home in order for the father to gain some tactical advantage was spiteful and showed a profound lack of judgment and lack of concern about the impact on the children.
Concerns Regarding the Father's Drinking
[43] The mother's primary concern about the father's parenting revolves around his drinking which she deposes has been a long standing issue. In 2009, the father was convicted of impaired driving and as a result lost his license for a year. However, it appears that his doctor was concerned enough about his drinking that she reported it to the Ministry of Transportation. A letter dated November 2, 2010 submitted to the Ministry of Transportation confirms that the father's blood work and urine screens had been negative for a year and that the father had opted not to enter a formal treatment program due to conflicts with his work and family life but had proven his abstinence from drugs and alcohol. Dr. Brooyman reported that the father has not reported much about his alcohol use to her likely out of concern that she would notify the authorities if she had concern about his drinking.
[44] The mother deposes that the father in the past has been able to maintain sobriety for periods of time but there were recent concerns about his drinking problem. The mother produced text messages between herself and the father's sister confirming these concerns and she deposes that there was a family meeting along with their pastor to discuss the issue.
[45] The father denies that he has a drinking problem. To his credit, since these proceedings began he has submitted to blood tests, urine screens and even fingernail analysis to prove that he is not drinking. Based on the evidence presented I am satisfied that the father has abstained from the use of alcohol for the last six months.
Mother's Plan
[46] The mother proposes the children reside with the father on alternate week-ends from Thursday after school to Monday morning return to school and on alternate weeks, when the mother has the children for the week-end, from Wednesday after school to drop off at school on Friday morning. She proposes that a third party still be required to pick up and drop off Zyhon who is not yet attending school.
[47] The schedule coincides with the father's work schedule, minimizes the contact between the parties and shortens the number of days the children are away from either parent. The schedule also permits Kayne to continue to have his paper route on Thursdays. The paper route is in the area where the family previously resided but close to the father's current residence. Both shortening the time between the days that the children reside with each parent and being able to continue his paper route were issues that Kayne expressed concerns about to his counsel.
Father's Plan
[48] Although the father's affidavit materials and submissions of counsel stressed the mother's inability to meet any of the children's needs including their medical, dental and educational needs and her inability to ensure that the children attended school on time or attended their extra-curricular activities, his actual proposal for a residential plan continued the current week about schedule with one day during the week that the children would spend with the other parent. He did not specify which day or if this visit was to be overnight. He also proposed that the parenting arrangement would be contingent on the mother's health and ability to care for the children but it was unclear as to who would gauge her health or abilities.
[49] I do not find that the father's plan is child focused or consistent with the children's best interests. Either the father does not intend to return to work or the children would be left in the care of members of his family, while he is working, rather than being in the care of their equally competent mother.
[50] The father has complained that the mother has not facilitated telephone access while the children are in her care. As the mother's plan provides for less time away from each parent, I do not find that it is necessary to include a provision that the parents be responsible for facilitating telephone access. The lack of such a provision does not prevent the children being able to call the non-residential parent when they are in the care of the residential parent.
Sole or Joint Custody
[51] Both parents seek sole custody or in the alternative the father seeks joint custody. The key to joint custody is the ability of parents to co-operate and communicate.[^2] The parents need to be able to put aside their personal differences for the sake of the children and respect each other as caring and capable parents.
[52] Both parents have a close and loving relationship with the children. Both parents are capable of meeting the needs of the children. Despite the father's criticism of the mother's abilities, her doctor, the children's aid society and the psychiatrist who examined her all confirm that the mother is a capable parent.
[53] If not for the father's conduct in this case from its inception, this may have been a case where the parties were able to work co-operatively and continue to jointly parent their children. However, I find that the father has attempted to manipulate the system and misrepresent events to create a status quo where he was the primary parent and he has attempted to marginalize the mother's role. I find that the mother is the parent who is best suited to ensure that the father has a meaningful role in the children's lives. In view of the current conflict between the parties, there has been a total breakdown in their ability to jointly make decisions.
[54] In coming to this conclusion I rely on the following facts:
a) After the mother was arrested under somewhat suspicious circumstances the father refused to negotiate a reasonable parenting schedule;
b) At the first emergency motion, the father insisted on supervised day access for the mother based on his misrepresentations of the involvement of the children's aid society and their findings. I accept that the mother felt she had no option but to agree to such limited access. I find there was no basis for the mother's access to her children to be limited or supervised;
c) The father and his family's role in evicting the mother with insufficient notice and curtailing her ability to remove her belongings and those of the children caused unnecessary anxiety and stress for the mother and the children and totally ignored the well-being of the children;
d) The father reported the children's health cards lost although he was aware the mother was in possession of the cards. As a result the mother who took the children to an optometrist appointment was prevented from obtaining proper medical care for the children;
e) The father did not advise the mother of Selah's dental problem and then attempted to blame the mother for not properly caring for the child's dental needs;
f) The father arranged Kayne's birthday party during the time he was with his mother without giving her proper notice and caused her to change her birthday plans for him. Although the mother eventually allowed Kayne to go, the conflict was upsetting to the child;
g) The father's incessant criticism of the mother's parental abilities and his exaggerated and misleading claims regarding her physical limitations and her mental health. Despite the children doing well in school the father has focused on some late attendances while not acknowledging that it was only as a result of the father's family eviction of the mother from the only home the children have known that caused her to re-locate outside of their local community. Despite the fact that the mother is a qualified teacher the father submits that he is the parent better suited to meet their educational needs;
h) Although mother's proposed plan will have the children in her care slightly more than with the father, it is the plan that is better suited to meet the needs of the children and ensures that the father has a meaningful role in the children's lives; and
i) The mother has shown herself to be the parent that is best able to make decisions that will be child focused and that she is the parent that is most able to consult with the father rather than impose her views on him.
Communication
[55] As the criminal charges were withdrawn the only impediment to the parties communicating is the order of this court that the parties only communicate through a third party. This provision has unfortunately caused problems. The father has used this provision as an excuse for not advising the mother of various child related issues or plans he has made. The mother has alleged that the father has breached the no contact provision. Kayne advised his counsel that his parents' inability to communicate well bothers him. It is important for the long term well-being of the children that the parties begin to communicate with each other in a civil manner and normalize the situation.
[56] I agree with the suggestion of child's counsel that the parties should only communicate through the use of the Family Wizard which will minimize the need for any direct communication and eliminate the need for the involvement of third parties to convey information. The use of the Family Wizard will enable them to keep each advised of any issues regarding the children and to advise each other of any special plans that might require a scheduling change.
Child Support and Section 7 Expenses
[57] The mother seeks child support based imputing an income of $52,198 to the father based on his 2013 income. The father submits that he has never earned that much income in previous years and that in 2013, due to the mother being ill he worked a great deal of overtime. He submits that his income is only in the range of $30,000 to $35,000. The father provided his Notices of Assessment since 2007 and his income has been as follows:
- 2007 - $39,233
- 2008 - $33,914
- 2009 - $45,545
- 2010 - $42,198
- 2011 - $41,294
- 2012 - $25,399 (includes Employment Insurance $18,000)
- 2013 - $52,198
[58] Based on the pattern of income and discounting the years 2013 and 2012 as being unusual years, it appears that the father is capable of earning in the range of $43,000 per year. The father submits that since the separation he has paid for all of the children's private school costs and their section 7 expenses. However, the father also quickly arranged for the children's tax benefit to be paid to himself and continued to receive those funds for several months after the order in August that the residence of the children be shared.
[59] In Drygala v. Pauli[^3] the Ontario Court of Appeal interpreted section 19(1)(a) of the child support guidelines that provides that a court can impute income to a payor in circumstances that the court considers appropriate. The Court found that "intentionally" means a voluntary act. Justice Gillese, writing for the panel, went on to state:
The parent required to pay is intentionally underemployed if that parent chooses to earn less than he or she is capable of earning. That parent is intentionally unemployed when he or she chooses not to work when capable of earning an income. The word "intentionally" makes it clear that the section does not apply to situations in which, through no fault or act of their own, spouses are laid off, terminated or given reduced hours of work. (at para. 28)
[60] The father has been off work with a shoulder injury for over a year but as of August 2014 he was apparently able to return to work and there was no medical evidence presented to the contrary. He can return to his previous employment and as indicated he is capable of earning in the range of $43,000. His support obligation for four children is therefore $984.00 per month. Although it may be on a closer examination of the financial circumstances, the father would be entitled to argue a reduction of child support as he has the children for at least 40% of the time, counsel did not make any submissions on this issue. I have considered that at the present time the father is residing with his parents and his housing costs are therefore reduced. It is appropriate that the father pay child support in accordance with the Child Support Guidelines.
[61] The father indicated that he is prepared to be solely responsible for the private school costs although it appears that for this school year, some of the tuition was paid by an anonymous donor and the school forgave the balance.
[62] With respect to any other section 7 expenses, the mother's income consists of disability benefits of $21,370 per year. Based on this income and the father's imputed income of $43,000, the father will pay 65% and the mother 35% of any agreed upon section 7 expenses.
Order
[63] Order as follows:
Custody and Access
The Applicant shall have custody of the children, Kayne Alleyne-Adams born December 13, 2000, Kayesha Alleyne-Adams born October 27, 2005, Selah Alleyne-Adams born December 21, 2008 and Zhyon Alleyne-Adams born October 19, 2011.
The Respondent shall have access to the children in alternate weeks from Thursday after school to Monday return to school and in alternate weeks from Wednesday after school to Friday morning return to school. Until Zhyon commences daycare or school, Respondent or his designate shall pick him up at 4:30 p.m. and return him to the Applicant's home at the end of his access period at 9:30 a.m. On any days when the other children are not in school, the Respondent or his designate shall also pick up the children from the Applicant's home at 4:30 p.m. and drop them off at the end of his access period at 9:30 a.m.
The Respondent shall not consume alcohol when he is in a caregiving role with the children.
Neither party may object to the other's plans with the children and must respect each other's ability to care for the children appropriately.
Neither party will arrange activities for the children when the children are scheduled to be with the other parent without that parent's prior written consent. This includes suggesting or discussing the possibilities of activities with the children when the children are scheduled to be with the other parent.
The children shall continue to attend their current school and their current doctor and dentist.
Either party may register the children in extracurricular activities without the consent of the other parent provided that:
a) The activity takes place during their own parenting time and does not interfere with the other parent's parenting time; and
b) They are not seeking the financial contribution of the other party.
The Applicant and the Respondent may each make inquiries and be given information by the children's teachers, school officials, doctors, dentists, health care providers, summer camp counsellors or others involved with the children. The parties intend this clause to provide each of them with access to any information or documentation to which a parent of a child would otherwise have a right of access. If, for whatever reason, this clause itself is not sufficient (although both parties intend it to be sufficient authority for either of them), the parties will cooperate and execute any required authorization or direction necessary to enforce the intent of this clause.
Communication
Communication will be strictly by Our Family Wizard unless an emergency dictates communication by telephone. The Our Family Wizard expense shall be a joint responsibility. The parties shall each half of the cost of approximately $100.
Both parents are to provide the other by Our Family Wizard with their current addresses and a phone number where they can be reached at all times.
Both parents are to advise the other by Our Family Wizard if the children will be other than in the Applicant's home or the Respondent's home for more than one night, and to provide the details of where the children are as well as a phone number.
The information the parents exchange shall be restricted to information pertaining to the children's health and welfare, pertinent child-related information, medical information, information about extra-curricular activities, information pertaining to routines, and informing each other as it might relate to the health, education or well-being of the child or restricted to items under this heading. Apart from keeping each other informed about any medical or health issues or inability to care for the children or the need to consult on a major issue, there shall be no need to communicate more than once per week and the parents are to be at all times civil and respectful.
If there is a special event, the request to change the schedule so as to allow any or all of the children to attend with either parent shall be made with at minimum 14 days' notice with an expected response within 72 hours. In the event of an emergency or truly time-sensitive matter, the parents may call each other. If a reply requires more time than 72 hours, an Our Family Wizard communication shall be sent advising that the reply cannot be reasonably given with this time period and advising when the response can be expected.
In the event any parenting issue is returned to court, the communication on the Our Family Wizard shall be copied and filed with the court.
Neither parent shall speak in a disparaging or negative manner about the other party or allow or encourage others to do so in the presence of the children.
Neither parent shall discuss with the children or with another party in the presence of the children present or past legal proceedings or issues between the parties related to present or past legal proceedings, including any outstanding property or financial issues relating to the parties or the children or regarding conflicts between the parties relating to parenting issues. Each parent may respond briefly, in a reasonable manner, to questions with respect to such matters initiated by any of the children.
Neither parent shall leave out or accessible to the children information or documents pertaining to any issue arising from the parties' separation and divorce, including any material that pertains to the matters referred to in the paragraph above, and neither will permit the children access to their personal email where communications regarding these matters are stored. Both parties shall ensure that the children will not have access to information regarding the parties' separation and divorce by password-protecting any area of their personal computers that hold such information.
The parents shall share all documents pertaining to the children by scanning the document and then sending it to the other parent by Our Family Wizard. The parents shall not rely on any of the children to transport documents between them.
Any discussions between the parents at transition times, activities or other special events where the children are present or nearby shall be limited to brief and cordial interchanges. If one parent considers that the discussion is not courteous, both shall discontinue the conversation.
If one parent finds what any of the children has said about the other parent to be of significant concern, that party shall first ask the other parent, by Our Family Wizard what actually happened. If a complaint is made by any of the children to one parent about the other, the child shall be encouraged to talk directly to the parent he or she is complaining about.
Neither party shall go to the other's home or place of employment except for the purpose of picking up the children or on the consent of the other.
Decision Making
In the event of a non-emergency major decision pertaining to health, education, religious instruction, extra-curricular activities, social environment or welfare of any child, the parents shall confer to discuss the issue. Each parent shall be provided with an opportunity to provide input regarding such decisions. In the event that the parents agree on the major decision, the decision shall be implemented.
If the parents disagree about the major decision, they will seek input from any professional involved with the child in the area of the disagreement. In the event that the parents agree on the major decision, with the input of the professional, the decision shall be implemented.
If the parents continue to disagree about the major decision, then if the child is of an age that he or she can understand the issue and the various alternative options for resolution, and is able to express his or her views and preferences and if it would be appropriate to seek the child's views pertaining to the issue, the parents shall attempt to ascertain the views of the child pertaining to the issue, although the child's views shall not be determinative. In the event that the parents agree on the major decision, after consideration of the child's views, the decision shall be implemented.
If the parents continue to disagree about the major decision, then if both parents agree, they shall attempt to mediate the issue. In the event the parents achieve a mediated resolution, the resolution shall be implemented.
If the parents continue to disagree about the major decision, then the mother being the parent with whom the children primarily reside, shall make the decision, upon 30 days advance written notice to the father. If the father disagrees with the decision, he may apply to the court within the 30-day notice period to have the decision made by the court.
Child Support
Based on the Respondent's imputed income of $43,000, he shall pay child support to the Applicant for the support of the four children in accordance with the child support guidelines in the amount of $984.00 per month as of January 1, 2015 without prejudice to a claim for retroactive child support or child support in a different amount.
The parties shall continue to maintain the children as beneficiaries of their employment extended medical, dental or health insurance. The parties shall immediately notify one another when benefits cease to be available.
The Respondent shall be solely responsible for all private school fees.
Based on the Applicant's income of $21,370 and the Respondent's imputed income of $43,000, the Applicant shall pay 35% and the Respondent shall pay 65% of any section 7 expenses for the children, including but not limited to the uninsured medical, prescription and dental expenses, any extra-curricular activity expenses for which a financial contribution has been sought and agreed to. The party seeking a contribution the other parent shall provide the other parent with a copy of a receipt, invoice or proof of payment and the other parent will pay his/her proportionate share within 14 days.
The parties shall provide each other with a copy of his/her income tax return with all attachments and his/her Notices of Assessment or Notices of Re-Assessment on June 30, 2015 and each year thereafter pending final resolution of this proceeding.
Support Deduction Order to issue.
Justice Roselyn Zisman
Date: January 5, 2015
[^1]: Though an administrative error, counsel was only appointed for the eldest child Kayne, a further order was made for representation for all of the children.
[^2]: See Kaplanis v. Kaplanis, O.J. No. 275 (OCA)