Court File and Parties

Ontario Court of Justice

Date: 19 November 2015

Court File No.: Brampton 404/13

Between:

Rachel Elizabeth Paul Applicant

— And —

Alvin Lochan Paul Respondent

Before: Justice P.W. Dunn

Heard: October 26, 27, 28, 29 and 30, 2015 and November 5, 2015

Released on: November 19, 2015

Counsel:

• Susan L. Kania, for the Applicant
• Self-Represented, for the Respondent

DUNN J.:

Background and Issues

[1] Rachel Elizabeth Paul, 28, was the Applicant and Alvin Lochan Paul, 35, the Respondent. They have a child, Aiden Lucas Collum Paul, born 7 December 2010 (Aiden). The Applicant requested sole custody, permission to relocate with Aiden from Mississauga to Kitchener, child support, retroactive child support and travel.

[2] The Respondent sought sole or joint custody and with Aiden to remain with him in Mississauga, and child support.

[3] There are no custody or access orders. The parties parented on an ad hoc basis since their separation over two years ago. In effect, a shared parenting arrangement was utilized, with Aiden in each home for part of the week.

[4] In reciting this case history, there were no landmark turning points in the narrative. Rather, mundane family happenings with certain exceptions were presented that would arise in many families' quotidien lives. However, these parties had many different perceptions of those events that lead to discord between them.

Relationship History

[5] Ms. Paul met Mr. Paul in 2009 and they began to cohabit in January 2010. The Respondent was from Trinidad, and in 2009 he had refugee status, but could work in Canada. The Applicant is a Canadian and was sponsoring Mr. Paul for permanent residency, which he obtain in May, 2011. For a portion of the parties' relationship, they did not know if he would be allowed to stay in Canada.

[6] In addition to the stress of the Respondent's uncertain status, a shortage of finances was a continuous complication. They had numerous residences, always trying to upgrade their living situation.

[7] Until 2014, Mr. Paul did shift work as a security guard. The pay was low and the inconsistent schedules were to make child management difficult. Ms. Paul's work in offices was also poorly remunerative, being sometimes only part-time, but it had a regular daytime routine being Mondays to Fridays.

[8] Ms. Paul became pregnant 12 weeks after cohabitation. The couple never had a chance to develop their relationship or prepare for parenthood, for which neither was experienced. This was not a blissful union, but the parties were committed to making a home for their new baby.

[9] Mr. and Ms. Paul married in July 2010. Mr. Paul believed that a wife and mother was to do the housework (in addition to employment outside the home) and also to provide the baby's basic care in feeding, diapering and putting to sleep. When Aiden was an infant, Mr. Paul's role was to engage in play. As the boy grew, he occupied a greater part in Aiden's life. The father and mother were dutiful in caring for their son when their work schedules conflicted, and this was an attribute they still provided to each other.

[10] When Ms. Paul was on maternity leave from 1 December 2010 for twelve months, Mr. Paul was the sole provider. Besides the usual stress of shift work, the Respondent's changeovers varied frequently, and that created havoc in the parties' parenting. It was difficult to find and pay for babysitters. By 2011, Ms. Paul had returned to work, first part then full-time. By May 2012, Aiden was in subsidized daycare Mondays to Fridays. At present, the boy is in that location for senior kindergarten in Mississauga. (In September 2015, he will have to attend a public school somewhere for grade one.) Aiden has been well nurtured in his daycare facility and is in a small class. However, there were frequent challenges to the parties' schedules before and after school. One person had to transport the child to school, and one needed to collect him afterwards. The parties' work schedules, and especially Mr. Paul's with its changes, caused daily challenges. Ms. Paul felt pressure from her own work agenda, and from being the principal caregiver to Aiden. Additionally she had to fulfil her husband's expectations of maintaining the household to a high standard.

Separation and Initial Arrangements

[11] By the spring of 2013, Ms. Paul felt overwhelmed by the parties' constant arguments and verbal abuse from her husband. She also was concerned about the effect of this dissonance on Aiden. Mr. Paul was aware of the parties' conflicts, but he did not appreciate there could be repercussions on his son and he was insensitive to his wife's serious malaise. The Applicant with Aiden left the home on 7 April 2013. She had already filed what was called her first Application in this court on 2 April 2013. On the day of her departure, Ms. Paul sent the Respondent the following message:

We need to talk…I am staying at my mom's. I have Aiden and he is fine. I am not doing this to keep Aiden from you. When you get home, I want you to call me right away so you can talk to him. I can explain the access arrangement that I feel in his best interests for the time being. You get to see him every day.

[12] Mr. Paul did see his son later in the week of Ms. Paul's leaving. The Applicant was concerned that if access was to be immediately after her separation, she feared what Mr. Paul might do in angry retaliation, and the impact of that on Aiden. At that point, Ms. Paul did not believe she could trust the Respondent to return Aiden to her. From Mr. Paul's viewpoint, he considered that the Respondent was dictating terms of all his access which was not the case.

[13] For a period of time after the separation, Ms. Paul and Aiden resided with the maternal grandmother, Francesca Couch, then they obtained their own apartment.

[14] Shortly after the separation in April 2013, the parties reached a verbal agreement on where Aiden would reside on a weekly basis. They drafted a proposal (Exhibit 7) that was unsigned and undated, but they acted in accordance with some, but not all of its provisions. With the Applicant having the primary residence, custody was shared. Mr. Paul received Aiden at 6:30 p.m. Sundays to Wednesdays, when he would deliver the boy to daycare. Ms. Paul picked up Aiden Wednesday afternoons from there, and kept him to either Saturdays at 6:30 p.m. (on the Respondent's access weekends) or to 6:30 p.m. on Sundays (on the Applicant's access weekends.) The reason the Applicant kept Aiden to 6:30 p.m. on Mr. Paul's access weekends, was because he worked Saturdays, so he lost a day on his weekends because of his work schedule.

[15] Each party supported Aiden's needs when in his or her care. Child support was not paid, but the Applicant received the universal child tax credit and any other government benefit.

[16] Being satisfied with the parties' caregiving arrangement, Ms. Paul withdrew the first Application on 1 May 2013. The difficulties, however, were far from over.

[17] Ms. Couch, the maternal grandmother, played an important role in her grandson's care, but as with other aspects of this case, it was inconsistent. Both parties relied on her to care for Aiden during brief periods when work schedules prevented availability. Mr. Paul for the most part related well to Ms. Couch, but the Applicant had an inharmonious rapport with her. At times she felt Ms. Couch was supportive, but on other occasions, the Applicant viewed her as a troublesome meddler. Clearly, Ms. Couch was important to the parties in helping meet their parental obligations.

[18] Because the parties' relationship was so uncertain, Ms. Paul filed a second application on 18 June 2014, and it is that document that is before this court.

New Relationship and Escalating Conflict

[19] In November 2013 the Applicant met Michael Horncastle, 28, who lives and worked in Kitchener, and they began a serious relationship a few weeks after their first encounter. Ms. Paul is to give birth to their child in January 2016, and a marriage is planned in the summer of that year. Aiden was introduced to Mr. Horncastle in a sensitive way, and now after two years, Mr. Horncastle was a significant person in Aiden's life. He was called "Mike" and is a stepfather, because Aiden already had a substantial bond with Mr. Paul as his father. The involvement of Mr. Horncastle with Aiden became and continues to be a torment to Mr. Paul.

[20] In the spring of 2014, Mr. Paul was hired as a bus driver for the Toronto Transit Commission and his work schedule was only predictable within a six-week period. Every six weeks, the drivers "bid" on their next six-week driving assignment. The present time block calls for Mr. Paul to have Mondays and Tuesdays as days off. However, he is on medical leave from September 22nd to December 1st in this year because of stress.

[21] On the Applicant's access weekends, she and Aiden went to Kitchener to visit Mr. Horncastle and his family. On the Respondent's weekends, Ms. Paul cared for Aiden on the Saturdays when he was working. Then later on Saturday afternoon, she took Aiden to Ms. Couch's until Mr. Paul was available. She did that to allow her to go to Kitchener at a good hour on the Saturday. Mr. Paul believed he should be picking up Aiden from the Applicant, and not from Ms. Couch. That would mean that Ms. Paul would have to wait in Mississauga until he finished in the evening. The issue arose before Justice Parent on 2 October 2014. The court ordered pursuant to Minutes of Settlement:

The Applicant and Respondent shall provide each other with the right of first refusal with respect to caring for the child, when a party cannot personally care for the child for a period exceeding four hours, and when a party cannot personally care for the child from 8:15 p.m. onwards.

This provision lead to mischief and misuse by the Respondent.

Incidents Demonstrating Conflict

[22] In the spring of 2014, Aiden needed hernia surgery which was scheduled for 18 June 2014 at the Hospital for Sick Children. Aiden was with the Respondent that day and he accompanied they boy there, and the Applicant and Mr. Horncastle rendezvoused in the waiting room. Mr. Horncastle had not met Mr. Paul and he went to introduce himself. Mr. Horncastle testified that Mr. Paul responded to his outstretched hand with a snarled response, and he refuse to engage in an introduction.

[23] After the successful surgery, the parties' understanding was that Aiden would return to the Applicant's residence. On the pretext that by Aiden hanging on to Mr. Paul the boy wanted to stay with him, and the Respondent did not give the boy to the Applicant. Over the objections of Ms. Paul, the Respondent took Aiden home with him, with Ms. Paul to retrieve her son later that day.

[24] When the Applicant and Mr. Horncastle did go to the Respondent's later on 18 June 2014 to receive Aiden, the Respondent secretly recorded a conversation with Aiden in a car, and the Respondent and Mr. Horncastle outside the vehicle.

Ms. Paul: Never hit my son again.

Mr. Horncastle: I don't give an s… I'd never hit a child. I'd never f… hit a child.

Mr. Paul believed he had trapped Mr. Horncastle in having to admit that he used bad language in Aiden's presence, but he was unsuccessful because apparently Aiden in the car did not hear those retorts. Mr. Paul was still not conversing with Mr. Horncastle at the time of this trial.

Regarding Aiden's discipline, Ms. Paul and Mr. Horncastle advised that only the Applicant gave discipline which was short time-outs. Ms. Horncastle's only role was to explain to Aiden at appropriate times, what was wrong with his actions.

[25] There were scheduling problems with Aiden's operation in April 2014 because he had illness and the procedure was rescheduled. The Applicant had made it clear to the Respondent during rescheduling discussions that she insisted on being present for the operation. On a date prior to the actual date of 18 June 2014, Mr. Paul had arranged for the surgery without telling the Applicant. The first Ms. Paul learned about it was when the hospital called her to say Aiden was in pre-op. The Applicant cancelled the operation for that day because she could not attend.

[26] In the summer of 2014, Ms. Paul and Aiden were at a family wedding in Bracebridge with Mr. Paul's knowledge. Aiden was a ring-bearer and the Applicant a bridesmaid. When the ladies in the wedding party were preparing, Mr. Horncastle and the groomsman took Aiden to play in the hallway of the facility. It was at that moment that Mr. Paul telephoned to speak to Aiden. Ms. Paul testified that the Respondent became very upset that Aiden was not in her direct care at that moment.

[27] In October 2014, Mr. Paul called the Peel Children's Aid Society (the Society) alleging physical abuse and over-discipline by Mr. Horncastle on Aiden. The Society investigated and Mr. Paul's claims were not verified.

[28] At the case conference in October 2014, Justice Parent on consent ordered the following:

Paragraph 2: The parties shall exchange information about Aiden in a timely manner, if possible by text, and the texts shall only be in relation to Aiden.

[29] Ms. Paul wanted that provision to lessen Mr. Paul's textual abuse of her. The Applicant filed Exhibit 1, Tab 2, which had texts between the parties from December 2013 (the separation was in April 13) to February 2014. They showed disagreements over when the Respondent was to acquire Aiden, disputes over the whereabouts of Aiden's clothing, and above all the derogatory language the Respondent used with Ms. Paul.

[30] Paragraph 2 in Justice Parent's 2 October 2014 order was not effective in restraining the Respondent from his abusive language. As recently as 28 April 2015, Mr. Paul texted the Applicant:

It's [the Respondent's child support cheque] is in [Aiden's] bag already, you greedy selfish brat. Go enjoy it and feet your bastard child [the unborn child of the Applicant's and Mr. Horncastle's] with it while our son has less now when he is with me. What's the matter, your idiot boyfriend can't support his bastard kid that you have to keep nagging me about my son's money?

In reply, Ms. Paul stated that she had only mentioned the child support cheque once that month.

[31] In November 2014, Mr. Paul took Aiden to a police station to complain about physical abuse and excessive discipline in the Applicant's household. The police called the Society who investigated (again) and no protection issues were verified. Despite that, the Society has an open file even at the time of trial because of its concern for serious parental disagreements.

[32] Another event occurred that led to further estrangement between the Respondent and Mr. Horncastle. Because of her travel difficulties in being on time to gather Aiden at daycare, Ms. Paul put Mr. Horncastle on an approved list to get Aiden at daycare. It was infrequent that he could even be available. On one occasion in November 2014, Mr. Horncastle went into the school and obtained Aiden. On leaving the building, he and Aiden encountered Mr. Paul, who was also attending for the same purpose. Aiden ran to his father who took him to his own residence. Mr. Paul testified that he did so because it was what Aiden wanted.

Access Patterns and Concerns

[33] Mr. Paul filed Exhibit 1 Tab 5 which indicated times Aiden was with each parent between February 2015 and September 2015. The records showed:

1. The Applicant often cared for Aiden when the Respondent's work schedule conflicted with his access times.

2. The Respondent did not follow the right of first refusal process in a consistent manner.

3. Mr. Paul would take Aiden for a few hours on scheduled access days, then return him to the Applicant's care.

4. The Applicant did not know where Aiden was during Mr. Paul's access times because Mr. Paul would not say.

5. Ms. Paul's most serious concern was that the Respondent's abbreviated periods of access did not give the boy stability in his time with his father. Aiden complained to the Applicant about the too frequent exchanges, which the Applicant described as being flip flops with the boy switching places too often between two homes.

Child Support and Special Needs

[34] On 18 March 2015 at a case conference, on consent, Mr. Paul was ordered to pay $371. a month in child support, starting 1 April 2015, based on his estimated income of $65,000.00. From the time of the separation in April 2013 to this order in March 2015, he had not paid support, although the Applicant claims he should because he was put on notice in the Application(s) that the Applicant sought child support.

[35] The Applicant had a concern about Aiden's speech and language development. The boy attended Erinoak Kids Centre for Treatment and Development ("Erinoak") in Mississauga:

In June 2012, Aiden's physician felt he was behind in speech, and a speech pathologist was recommended. Aiden took speech therapy at Erinoak from October 2012 to his discharge on 16 July 2015. Both parents accompanied their son to his therapy sessions. Ms. Paul testified that at the start of Erinoak's involvement in 2012, Mr. Paul did not understand there was a need for professional involvement. He thought Aiden's speech would improve over time.

[36] At the boy's discharge in July 2015, Aiden was below the normal limits in word and sentence structure tests, and he needed ongoing speech and language services and further assessments of expression and language skills. Once Aiden is in the regular school system in September 2015, he is going to need a pro-active parent to push for the professional help he requires.

Relocation Proposal and Respondent's Resistance

[37] In the late summer of 2015, the Applicant's family planned a reunion with over sixty relatives in Huntsville. The event would have been on the Respondent's access weekend, and Ms. Paul in adequate time requested a variation in the access schedule to permit Aiden to travel with her. The Respondent refused, without giving reasons. Lawyers became involved and the Respondent relented, but then withdrew his consent so Aiden missed the reunion. Ms. Paul received a letter from the Respondent's lawyer giving reasons why he would not let Aiden attend. They were:

(i) The Respondent did not like the location for the event at a provincial park because no land line was available, and he did not trust cellular reception in the area. It was important to Mr. Paul that he could telephone Ms. Paul at any time;

(ii) The site was unsafe because drugs and alcohol could be present;

(iii) The Applicant could not adequately supervise Aiden because she was pregnant;

(iv) The driving distance was too much for the Applicant in her condition.

In contrast to the Respondent's unwillingness to be flexible, Ms. Paul permitted Mr. Paul to take Aiden to Boston for four days in March 2015.

[38] In September 2015, Ms. Paul was not working and could pick up Aiden from school, which is what she would have preferred to do. Nevertheless, Mr. Paul insisted on delivering their son from school to her apartment.

[39] There were two final orders promulgated by Justice Parent on 22 September 2015. The parties were required to communicate only about Aiden, and be respectful to each other, and to other persons in the child's life. There was also a final order for the parties to share the cost of special expenses in proportion to their incomes, and consent must be obtained for any proposed expenses.

Applicant's Relocation Plan

[40] Ms. Paul and Mr. Horncastle discussed where to live as a family. If it was to be in Mississauga, that would allow Mr. Paul's access to continue on an ad hoc basis as he has been doing. On the other hand, Ms. Paul saw clear advantages for Aiden and her moving to Kitchener. These reasons were:

1. Mr. Horncastle has a well-paying technical job for nine years where he has seniority.

2. Ms. Paul and Mr. Horncastle would have the support of Mr. Horncastle's mother and brother and his family.

3. Consumer prices are more reasonable in Kitchener than in Mississauga. Mr. Horncastle rented a townhouse at a moderate rate located in a good neighbourhood close to his mother and a school.

4. Ms. Paul's mother, Ms. Couch, was not seen by the Applicant as a valuable caregiving asset because mother and daughter were not close.

[41] Ms. Paul and Mr. Horncastle testified that they tried to find work in Peel Region which would meet Mr. Horncastle's skill sets but could not do so. There was no mention of Mr. Paul even considering moving to Kitchener.

[42] Regarding Mr. Paul having access if Ms. Paul moves to Kitchener, he does have an automobile, so private transit is possible. Provided he was not working late on a weekday, he could take Aiden to dinner in Kitchener on any weekday evening. Other than this dinner access and on holidays, all other access would be difficult. Aiden would be in school all day from Mondays to Fridays. Weekend access would depend on Mr. Paul's schedule, but it would not be available on any kind of regular basis. One might surmise that a trip from Mississauga to Kitchener is not an overwhelming obstacle. Yet it is not the distance alone that is the dilemma, it is Aiden's and Mr. Paul's mutual lack of availability for each other. Ms. Paul and Mr. Horncastle offered to drive Aiden to and from access in Mississauga. They proposed access on alternate weekends (if Mr. Paul could accommodate that) as well as a fifth weekend in a month if the month had another week.

[43] This court must decide which parent should have custody, and its type. Then the issue would be whether Aiden's best interest would be served by moving to Kitchener. Finally, the access conundrum must be considered.

Findings of Credibility

[44] Ms. Paul testified in a thoughtful and clear manner, and her main concern was for Aiden's welfare, and even her rapport with Mr. Horncastle came second to that. The Applicant was not vindictive against Mr. Paul. She was fair in her statements about their problems and realistic in resolving complications.

[45] Mr. Horncastle is a disciplined individual for whom commitment had meaning. He had no animus against Mr. Paul, only sadness that Aiden's father cannot accept a two-year status quo of his being a part of Aiden's life. I found Mr. Horncastle's versions of events, like those of the Applicant's, to be reliable.

[46] Mr. Paul's evidence in-chief and cross-examination of the Applicant and Mr. Horncastle was designed to find fault in their actions and words. The Respondent's questions never focused on Aiden's need for his mother to be a principal part of his life. When he testified, the Respondent dwelt on historical events such as where the parties lived and on past relationships of the Applicant and Mr. Horncastle. Mr. Paul is intelligent, but his understanding of his son's physical, emotional and psychological needs was limited. I gave a copy of Section 24 of the Children's Law Reform Act to him to study. I believe he did consider the clauses in the subsection, because he articulated the many things he did for and with Aiden. However, Mr. Paul missed the purpose of the subsection. Yes, it was important that he took an active role in his son's activities. However, this father in evidence did not discuss the little boy's needs, nor did he consider which parent would be best able to meet those needs.

[47] When the evidence of Ms. Paul and Mr. Horncastle conflicted with the Respondent's, I prefer the testimony of the Applicant and Mr. Horncastle.

[48] I turn now to a consideration of the Children's Law Reform Act.

Legal Analysis: Best Interests of the Child

Merits of Application for Custody or Access

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

Best Interests of the Child

Section 24(2): The court shall consider all the child's needs and circumstances, including:

(a) The love, affection and emotional ties between the child and each person entitled to or claiming custody of or access to the child:

[49] Both Mr. and Ms. Paul love and have affection and emotional ties with Aiden. The child is attached to both parents and wants to spend time with them. However, I believe the Applicant's close bond with Aiden allows her to have a more intimate emotional connection with this five-year-old.

[50] Mr. Paul viewed himself as having a solid father-son relationship, yet I do not see his emotional tie with Aiden as being as heightened as the boy's with his mother. For example, Ms. Paul promoted his relationship with the Respondent. The opposite was not true, because Mr. Paul's disdain for the Applicant likely filters into his conversations with his son.

(iii) Persons involved in the child's care and upbringing:

[51] Aiden's relationship with Mr. Horncastle appeared salutary. The Applicant's fiancé is a leader who will help guide Aiden in sports where Mr. Horncastle has skills. This man has inbued values, where his commitment to the people he loves, to his work and to his community, should be a good bellwether for Aiden's development. He was perceptive of Ms. Paul's feelings. He stated "I know [Ms. Paul] to be a caring and loving mother by the way she speaks to Aiden".

[52] Mr. Paul did not testify that he had any family support available (other than Ms. Couch). When his mother stayed with him for a brief period in January 2015, Mr. Paul said that his mother's brother, his wife and their children, came to visit her, but there was no further reference to those persons seeing himself or Aiden.

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

[53] Aiden is too young to have views and preferences. Nevertheless, Mr. Paul stated that on several occasions that Aiden preferred to go with him rather than with the Applicant. I cannot put any weight on the Respondent's observations. Young children express a variety of views and preferences and often inconsistently.

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

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

[54] Aiden was three when his parents separated, and both parties changed their residences since then. Now the Applicant considers relocating an hour's drive from the Respondent.

[55] A relocation need not be overwhelming if a moving point provides stability for a child in important ways. I find that the Applicant always furnished a stable home environment wherever she lived. Ms. Paul's personal maturity and appreciation of principles has enveloped Aiden in a secure environment.

[56] Mr. Paul deserves credit for being a hard worker. He effectively maintained employment, but his demanding schedules interfered with the quality of his filial relationship. Ms. Paul lamented the times Aiden's father would take him only for a few hours on his access days because of his shift demands.

[57] I cannot describe the Respondent's home as being a stable environment. His work schedule was so unpredictable that maintaining a regular routine is contra-indicated for the future. Mr. Paul would require assistance in parenting. Someone would either have to live in his residence or be available on a regular basis. Who that person or persons would be is unknown because Mr. Paul did not address the issue at trial. I would not think Ms. Couch would be able to do more than she has done – namely provide child care for brief periods of time.

(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:

[58] There is a difference in the ability and willingness of the parties to provide guidance and education to Aiden. Ms. Paul had a daily routine for her son; eating, play, baths and bed time occurred in an orderly fashion. She had standards of behaviour that she expected. Respecting the Respondent as Aiden's father was an important part of the boy's education.

[59] Although unfortunately the Respondent did not speak of his goals for Aiden, I have the impression he has a laissez faire parenting approach. In other words, let happen what will happen in the little boy's life, provided he is not in danger. Yes Mr. Paul would protect him from peril and provide for his physical needs. However, it was very telling about the Respondent's parenting style that he allowed Aiden to stay up until 10:30 p.m. or later, and he tried to telephone the boy when at his mother's very late in the evenings. That is simply unacceptable for a five-year-old by any parenting standard. Mr. Paul on occasion acted wrongly in accordance with Aiden's wishes became he improperly permitted Aiden to make adult decisions. Examples were when Mr. Paul took Aiden home from him after the hernia operation, or when the boy was removed from Mr. Horncastle's care at daycare. The Respondent should know that a young child's wishes cannot be allowed to override parental arrangements.

[60] Mr. Paul's accommodation was substandard for his circumstances. His bachelor apartment with one bed was not the lodging required for a father and young son.

[61] Another serious deficiency in Mr. Paul's parenting plan was his refusal to discuss his house rules with the Applicant, and there were serious differences. His attitude in this regard was not a foundation for effective coparenting on any level.

[62] Every parent wants to teach a child about the world. I believe Ms. Paul was correct to be concerned about what the Respondent will tell Aiden about herself as his mother. Mr. Paul's texts to her demonstrated a disdain and callousness that should never have been permitted.

[63] I was disconcerted by the Respondent's lack of understanding and appreciation of what the Applicant did for her family – sponsoring Mr. Paul to Canada, maintaining the household, working full-time, but especially in being Aiden's primary caregiver. Mr. Paul's lack of awareness suggests that he would not instruct Aiden to acknowledge the labour of others in the community or in one's home or at the work place.

[64] With respect to imparting formal education, I believe that with the Respondent's busy work schedule, he will entrust the school system to provide for Aiden its bureaucratic way without his full involvement. On the other hand, Ms. Paul will be pro-active to investigate the supportive agencies that Aiden needs to bring betterment to his life.

[65] The Applicant with Mr. Horncastle's support will be as able as Mr. Paul to furnish Aiden with the necessaries of life. The boy will likely be showered with more "extras" from the Applicant than from the Respondent because of her more generous spirit.

[66] Aiden does have special needs. The Erinoak study indicated he requires further assessment in language skills, and the Applicant believed some behaviour modification is required. Even now, Ms. Paul reinforces Aiden's speech therapy at home by daily encouraging him to use particular sentence structures. I am confident the Applicant will pursue all avenues that will lead to facilities and agencies who will support Aiden. I am much less sure about Mr. Paul's intent or ability in that regard. He is to be complemented for taking Aiden to the numerous therapy sessions he attended. Even so, the Applicant believed the Respondent did not initially see a need for speech pathological intervention. Because the Respondent did not discuss the topic at trial, the court does not know if he has acquired any further insight.

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

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

[67] The Applicant presented a thoughtful, practical and realistic plan for Aiden in Kitchener, and there will be economic security because of Mr. Horncastle's employment. Ms. Paul will not be in the workforce for at least a year after her baby is born; her extra availability to Aiden will help in his adjustment to his new sibling, to living in Kitchener, to Mr. Horncastle as a permanent house resident, to acclimatize to his Kitchener school, and to maintaining his bond with the respondent.

[68] The town house in Kitchener will give adequate space for the whole family, including a bedroom just for Aiden, and a back yard that Aiden never had before. The location is proximate to the school Aiden will attend, and to Mr. Horncastle's mother, who will be a resource person to the parties.

[69] One can trust that the family unit, headed by the Applicant and Mr. Horncastle, will be permanent and stable. They have already benefitted from a two year relationship, which at times was in trying circumstances. The Applicant's and Mr. Horncastle's personal commitment and maturity and understanding of children's needs will surely work for Aiden's benefit.

[70] Regarding Mr. Paul's situation, it does not appear that changes are on the horizon, and the present deficiencies in his plan will continue. It seems he will make decisions as future circumstances arise with little forward planning. He cannot envisage the Applicant moving away leading to a change in his access. It is something that he believes should not happen because in his mind, the present situation is best for him and Aiden. Ms. Paul and Ms. Couch have been and should continue to be reliable caregivers to complement his work schedule.

[71] The simple fact is that the Respondent has made no plans in anticipation of the Applicant's relocation. He is even less prepared to receive primary residence of Aiden. This court will not consider giving custody to Mr. Paul without knowing who would help to provide full-time care. It is not sufficient that the school "babysits" Aiden during school days. It is certainly not enough that some unknown person will provide support when he works. Every parenting plan should have a leader who will anticipate the child's needs and act to fulfill them, and Mr. Paul was not that in Aiden's life. He left serious decision making to Ms. Paul.

Parental Conduct

[72] The Court should also consider subsection 24(3) of the Act.

A person's past conduct shall be considered only

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

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

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

(a) his or her spouse;

(c) a member of the person's household.

This subsection applies to the facts of this case. Mr. Paul was abusive in his texts to the Applicant and to Mr. Horncastle (even though he is not yet a member of the Applicant's household). The court has determined that the Respondent's conduct in this regard is relevant to his ability to act as a parent.

Material Considerations

[73] The evidence was very clear that as between the Applicant and Respondent obtaining custody, Ms. Paul has always had a closer emotional tie to Aiden than did Mr. Paul. Ms. Paul is in the best position to meet the little boy's special needs that will require parental advocacy that she is capable of providing. Sole custody should be awarded to the Applicant.

[74] Joint custody is out of the question in this case because the parties are not able to reach decisions about Aiden in an amicable manner.

[75] If the Society has concerns about the unstable relationship between these parties, this court certainly takes notice. The evidence was incontrovertible that Mr. Paul cannot communicate in a respectful way with his former partner.

[76] Turning now to the issue of whether Ms. Paul and Aiden should be permitted to move to Kitchener, the following factors support the proposition that it would be in Aiden's best interests to relocate:

1. Ms. Paul will ensure Mr. Paul's contact with Aiden (if the Respondent is available for access). Reliable access between Ms. Paul and Aiden would not be a certainty if the Respondent had custody.

2. The move would not be disruptive to Aiden's education because a new school is needed regardless in September 2015. There was no evidence about Aiden having social connections in Mississauga that would be obstructed by a move.

3. Ms. Paul established very good reasons for the proposed relocation. Her motives were valid – for the betterment of her family especially including Aiden. She was not being vindictive to Mr. Paul.

4. There will be more social support in Kitchener than in Mississauga; Mr. Horncastle's family will assist where needed. It is true that the support would not be from the Applicant's family of origin, but support is support regardless of its source.

5. The Applicant's relocation to Kitchener need not impair the Respondent's close bond with Aiden. The distance from Mississauga is not formidable for travel, especially when Mr. Paul has an automobile. Communication by telephone and Skype is possible and will be encouraged by the Applicant. The real difficulty for the Respondent is to arrange his availability from work to match Aiden's absence from school.

Access Arrangements

[77] Regarding the Respondent's access, if the Applicant and Aiden move to Kitchener, the Applicant had several proposals for Mr. Paul's visits. Mr. Paul, however, could not offer any of his own plans to see his son. In my opinion, the court would be ill advised to try to establish any access schedule for these parties. Even when the family was in Mississauga, the Respondent could not commit to his Sunday weekend access. To establish a detailed visiting schedule would lead to frustration and missed access and contempt motions. The only practical solution is for the parties to schedule access between themselves. They have shown in the past, that it can be done successfully.

[78] Ms. Paul conveyed her willingness to drive Aiden to and from all access in Mississauga but I do not find that proposal prudent. Ms. Paul is going to be very occupied caring for two children, and Mr. Horncastle wanted to do as much overtime work as possible. I believe the transportation should be shared with Mr. Paul driving to Kitchener to obtain Aiden. The Applicant or her designate will then retrieve the boy from Mississauga after access. Mr. Paul should be able to show responsibility to take an active part in the access process.

[79] There will be no more right of first refusal between the parties. The distance between their residences renders that concept an impracticability.

Child Support

[80] The Applicant requested that the Respondent pay child support retroactively from the parties' separation in April 2013. Her rationale was that her first Application dated 2 April 2013 asked that support be paid so that the Respondent had notice of her claim. However that Application was withdrawn one month later on 1 May 2013, and there was no further formal appeal for child support until over a year later when Ms. Paul filed her second Application dated 18 June 2014. The Respondent made no payments voluntarily pursuant to either Application.

[81] In or about April 2013, the parties drafted their "Custody and Support Agreement" which was never signed but they did act upon several of its provisions. One clause stated: "Both Mother and Father agree that each will be financially responsible for the child while in their physical custody", but government monies would be claimed by Ms. Paul. I find that the parties followed that direction. Ms. Paul testified that she had requested the Respondent to pay support, but there was little more in her evidence about a demand for retroactive support. It is evident that the Respondent relied on the Custody and Support document, and he met Aiden's needs only when the boy was in his care. It was not until Justice Parent's temporary child support order on 18 March 2015 that the Respondent accepted a legal obligation to make support payments to the Applicant. Hence, there will be no order for retroactive child support back to the date of separation.

[82] However, the Respondent began work with the Toronto Transit Commission in August of 2014. Mr. Paul's financial statement sworn 28 September 15 indicated that his annual income is $70,537.80. I believe the Respondent should be paying guideline child support of $643.00 a month retroactive to 1 January 2015. That would accumulate arrears of $6,430 [$643. per month x 10 months (January 2015 to October 2015) = $6,430]. Mr. Paul should be required to retire these arrears by paying $200. a month from 1 November 2015 with regular monthly child support payments of $643. to also begin 1 November 2015.

Final Orders

1. The Applicant shall have sole custody of Aiden Lucas Collum Paul, born 7 December 2010. (Aiden).

2. The Respondent shall have such in-person access as the parties agree upon.

3. The Respondent shall have such dinner access with Aiden in Kitchener as the parties may agree upon.

4. The Respondent may telephone or communicate by email or text or video conference with Aiden up to 3 times a week but such communication shall not interfere with Aiden's bedtime or feeding schedules. Aiden may initiate communication with the Respondent at reasonable times.

5. When the Respondent exercises access in Mississauga, he shall drive to Kitchener to collect Aiden and return him to Mississauga. At the end of access the Applicant or her delegate, to include Michael Horncastle, shall drive to Mississauga to pick-up Aiden and return him to Kitchener.

6. Each party will pay the transport cost for his or her travels to and from Kitchener.

7. For any overnight access in Mississauga, the Respondent shall provide an appropriate separate bed for Aiden.

8. Both parties will keep each other up-to-date with his or her current email and residential addresses, and a phone number where a party can be reached at all times.

9. A notarial copy of Aiden's health card will travel with him between the parties' homes.

10. The Applicant shall sign such consents, authorizations or permissions as Aiden's doctors, dentists, school officials or any professional providing care to Aiden requires, in order for such person to provide the same information about Aiden to the Respondent, as the Applicant is entitled to receive as custodial parent.

11. If Aiden needs emergency medical care while with one party, that party will promptly notify the other party of the emergency.

12. Aiden will continue to be under the care of Dr. Ruth Connelly in Mississauga, as long as Dr. Connelly is available to care for Aiden. If Dr. Connelly is not in a position to care for Aiden, the Applicant shall choose a replacement physician.

13. The Applicant will promptly notify the Respondent of any medical or dental appointments for Aiden, and both parties are entitled to attend all medical and dental appointments.

14. Regarding educational issues:

    (a) Both parties may attend all school functions.

    (b) The parties may attend parent-teacher meetings together or separately (depending on the school rules).

    (c) Each party will obtain his or her school calendar and school notices.

    (d) On an alternating basis, the parties may attend school field trips or classroom events.

15. The Applicant is permitted to establish a residence for Aiden in the Region of Waterloo, and is permitted to enroll Aiden in school in Waterloo, without the Respondent's consent.

16. At any time, without the consent, permission or signature of the Respondent, the Applicant may:

    (a) apply for and retain a passport for Aiden, and

    (b) remove Aiden from Canada for vacation purposes.

17. The Respondent may travel with Aiden inside Canada or outside Canada with the written permission of the Applicant, and provided the Respondent's child support payments are up-to-date.

18. If either party plans a vacation away from his or her residence, that party will give the other a detailed itinerary at least ten days before it begins if within Canada, or at least thirty days before, if it is outside Canada, including the name of any flight carrier and flight times, accommodation, including address and telephone numbers, and details as to how to contact Aiden during the trip.

19. The Respondent is ordered to pay child support of $643.00 a month, from 1 November 2015 and regularly monthly thereafter. Payments to the Family Responsibility Office. Support Deduction Order to issue. This order is based on the Respondent's acknowledged annual income of $70,537. and the guidelines require payments of $643. monthly for one child.

20. The court fixes the child support arrears at $6,430. for the period 1 January 2015 to 30 October 2015. The Respondent is ordered to pay $200. a month from 1 November 2015, and monthly thereafter, until $6,430. is paid in full. Payments to the Family Responsibility Office.

21. By June 1st in each year, beginning 1 June 2016, the Respondent will give the Applicant a copy of his income tax return for the preceding year, together with his Notice of Assessment or Reassessment.

22. If the Applicant is claiming that the Respondent contribute to Aiden's special expenses, she shall provide the same information to the Respondent as specified in paragraph 21 herein.

23. The Applicant is entitled to receive the Canada Child Tax Benefit (including the National Child Benefit Supplement and the Child Disability Benefit if applicable), the Universal Child Care Benefit and the refundable children's GST/HST credits for Aiden. These benefit/credits shall not affect the Respondent's obligation to pay child support.

Costs

[83] If a party requests costs, the request shall be served on the other party and filed with Marty Starkman, Judicial Secretary, Ontario Court of Justice, 7755 Hurontario Street, Brampton ON L6W 4T6, 6th floor by 18 December 2015. The other party may serve and file in the same way an Answer to the request for costs to be served and filed by 8 January 2016. If an Answer is served and filed, the party requesting costs may serve and file a Reply to the Answer by 29 January 2016.

Released: November 19, 2015

Justice P.W. Dunn