Court File and Parties

Court File No.: D30891/02 Date: 2015-02-23

Ontario Court of Justice

Between:

C.R. APPLICANT

- and -

L.A. RESPONDENT

Counsel:

• Alex Novak, agent for Coulson Mills, for the Applicant
• Poroshad Mahdi, for the Respondent
• Jean Hyndman, for the Office of the Children's Lawyer, for the Children

Heard: January 21 and 22, February 9 and 19, 2015

Justice: S.B. Sherr

Reasons for Decision

Part One – Introduction

[1] The parties are the parents of L., age 15, J., age 14, D., age 7, and Ja., age 3 (the children).

[2] On October 22, 2002, Justice Geraldine Waldman made a final order regarding L. and J. (the Waldman order). The Waldman order provides that the parties have joint custody of L. and J., with their primary residence being with the applicant (the mother). The order also requires the respondent (the father) to pay the mother child support of $300 per month.

[3] The father has brought an application seeking to change the Waldman order and for original orders regarding D. and Ja. The father seeks sole custody of all the children, with alternate weekend and holiday access to the mother. He asks that all access exchanges take place at a Supervised Access Centre in Durham. He asks for an order that he may obtain government documentation for the children and travel with them outside of Canada without the mother's consent. In his application, the father sought child support from the mother. However, in his opening statement his counsel advised the court that he would not pursue this claim. He asks that any support arrears accumulated under the Waldman order be rescinded.

[4] The mother has also asked the court to change the Waldman order and to make original orders regarding D. and Ja. In her pleadings, she claimed custody of all four children. In her opening statement, her counsel indicated that she would not oppose an order that L. and J. live with the father. In her evidence, the mother advised the court that she was seeking custody of all the children. However, in her counsel's closing argument, the court was told again that the mother was only seeking custody of D. and Ja. The mother proposed that the father have access to D. and Ja. on alternate weekends and on holidays. She did not feel that it was necessary to have access exchanges take place at a Supervised Access Centre. She also sought child support for D. and Ja.

[5] The Office of the Children's Lawyer, on behalf of the children (the OCL), asks the court to make an order that the parents have joint custody of the children, with the primary residence of the children being with the father. It proposes that the mother's access to L. and J. be reasonable and in accordance with their wishes and that the mother have access to D. and Ja. on alternate weekends and on holidays. The OCL proposed that the mother pick up D. and Ja. from school on Fridays and return them to a Supervised Access Centre on Sundays.

[6] At the time of the trial, L., J. and D. were in the temporary care of the father and Ja. was in the temporary care of the mother, pursuant to the December 9, 2013 order of Justice Debra Paulseth.

[7] The issues at trial were:

a) Has there been a material change in circumstances affecting the best interests of L. and J. since the Waldman order?

b) If so, what parenting order is in the best interests of L. and J?

c) What parenting order is in the best interests of D. and Ja? In particular:

i) What parenting schedule is in their best interests?

ii) How should access exchanges take place?

iii) Should any conditions be attached to access?

iv) If a sole custody order is made, what rights to information should the other parent have?

d) Is it in the children's best interests to dispense with the mother's consent for the children to travel outside of Canada with the father, or for him to obtain government documentation for the children?

e) What child support order, if any, should be made?

f) Should the arrears accumulated under the Waldman order be rescinded or reduced, and if so, by so much?

Part Two – Factual Background

[8] The parties are both 33 years old.

[9] The father presently lives with his fiancé (D.S.), her 6-year-old daughter and L., J. and D. He has worked as a Corrections Officer since 2008.

[10] The mother lives with Ja. and her mother (the maternal grandmother). The mother deposed that she is not employed. She said that she has not worked since she was employed at Walmart in 2006.

[11] The parties met and had children when they were teenagers. The father testified that the parties cohabited from 1995 until September of 2012. The mother said that the father would only live with her and the children on and off during this time. She said that their final separation was in November of 2012.

[12] The mother applied for custody and child support in 2002. This resulted in the Waldman order. The mother testified that the father was not living with her during this time. The father said they were living together. He said that he and the mother pretended to be separated in order that the mother could obtain social assistance payments.

[13] The children continued to live with the mother after the parties separated in the fall of 2012.

[14] The father exercised frequent overnight access to the children after the separation. Starting in December of 2012, the children were with him on alternate weeks from Thursday afternoons until Monday mornings. He would also see the children on his days off work.

[15] The parties have had a fractious post-separation relationship. There have been numerous reports to the police and the Children's Aid Society of Toronto (the society) by both parties.

[16] In June of 2013, the mother was charged with driving while intoxicated. She was convicted of this offence in September of 2013. She received a $1,200 fine and her driver's licence was suspended for one year.

[17] In June of 2013, the mother's sister reported to the society that the mother was abusing alcohol, hitting, swearing at and neglecting the children. She reported that the mother is always with a different man. She said that L. and J. are often left at home alone. She also reported the children being exposed to significant adult conflict. The sister testified at trial that none of these allegations were true. She said that she lied to the society because she was upset at the mother.

[18] In September of 2013, the society opened an ongoing file for the family. This was the third opening for the family. The first two openings did not warrant having an ongoing file.

[19] In October of 2013, L. moved in to live with his father.

[20] On November 18, 2013, the mother's hydro was cut off. The mother asked the father to take the other children. She said this was intended to be a short-term arrangement. The father denied this was the case.

[21] The father issued this application on December 6, 2013.

[22] On December 9, 2013, Justice Paulseth made her temporary order, placing the oldest three children with the father, and Ja. with the mother. The mother was granted temporary access to L., J. and D. every other weekend from Fridays at 6 p.m. until Sundays at 6 p.m. and mid-week access on Tuesdays overnight. The father was granted the same access to Ja. on the alternate weekends.

[23] The conflict between the parties continued. The father alleged that the mother assaulted D.S. during an access exchange on December 29, 2013. The mother was then charged with assaulting the father during an access exchange on January 1, 2014. The mother was prohibited by her criminal release terms from contacting the father. Access exchanges were then facilitated by D.S.

[24] The hostility between the parties abated between February and October of 2014. D.S. and the mother dealt with each other in a civil manner. The parties were flexible in rearranging access.

[25] Ja. spent additional time with the father, at the mother's request, during 2014. The mother testified that her brother was charged with murder and she had safety concerns for the children.

[26] On October 15, 2014, the OCL held an all-parties meeting to disclose their position. It was apparent that the mother was upset by the OCL recommendation that the children live primarily with the father. The mother felt betrayed by D.S. She felt that she had been manipulated by her to give the father extra time with Ja. and this had been held against her by the OCL.

[27] The mother refused to give the father extra time with Ja. after this meeting.

[28] The OCL made a recommendation at this meeting that Ja. be tested for his delayed speech.

[29] On November 21, 2014, the mother went to the police and alleged that the father had frequently sexually assaulted her during their relationship. She did not follow up on laying charges.

[30] On November 25, 2014, there was a physical confrontation at an access exchange. The father and D.S. alleged that the maternal grandmother pulled D.S.'s hair from behind. The mother denied this.

[31] On November 27, 2014, Justice Roselyn Zisman made a temporary order, on consent, regarding Christmas access. The mother was required to give the children to the father at 9 a.m. on Christmas Day. Justice Zisman also ordered, on consent, that access exchanges were to take place at the Toronto Supervised Access Centre (TSAC) and that the parties were to immediately complete the intake process. Access for D. and J. was to take place from Fridays at 5 p.m. until Sundays at 5 p.m., subject to the availability of TSAC. Until TSAC accepted the case, exchanges were to take place at the Scarborough Town Centre.

[32] The mother's criminal charges were withdrawn on December 12, 2014 upon her entering into a Recognizance to Keep the Peace for one year.

[33] The mother did not give the children to the father on December 25, 2014, as required in Justice Zisman's order. The police had to become involved to locate and deliver the children to the father later in the day.

[34] The father completed the intake process at TSAC as directed by Justice Zisman. The mother delayed in this process and by the start of the trial had scheduled, but not attended, an intake appointment with TSAC. Accordingly, access at TSAC had not begun.

[35] L. and J. have chosen to have almost no contact with the mother since they came to live with the father.

[36] Since December 9, 2013, the mother has exercised frequent overnight access to D. and the father has exercised frequent overnight access to Ja.

Part Three – Material Change in Circumstances

[37] Section 29 of the Children's Law Reform Act (the Act) provides the statutory authority for varying a custody or access order. It states:

A court shall not make an order under this Part that varies an order in respect of custody or access made by a court in Ontario unless there has been a material change in circumstances that affects or is likely to affect the best interests of the child.

[38] The Supreme Court of Canada decision in Gordon v. Goertz, [1996] 2 S.C.R. 27 sets out a two-stage process for the court to conduct in mobility cases.

a) First, the parent applying for a change in the custody or access order must meet the threshold requirement of demonstrating a material change in the circumstances affecting the child.

b) If the threshold is met, the court must embark on a fresh inquiry into what is in the best interests of the child, having regard to all the relevant circumstances relating to the child's needs and the ability of the respective parents to satisfy them.

[39] There clearly has been a material change in circumstance affecting the best interests of L. and J. They have been living with the father since the fall of 2013 and have chosen to have little contact with the mother.

[40] The court must next determine what order is in the best interests of the children.

Part Four – Joint Custody

[41] 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.

[42] 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.

[43] 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.

[44] The OCL has asked the court to make a joint custody order, with the primary residence of the children to be with the father. It suggested a decision-making scheme, where the father would consult with the mother on major decisions, but have the right to make final decisions if the parties could not reach agreement.

[45] There was some evidence to support this request. In particular:

a) Between February and October of 2014, the parties were flexible in making access arrangements for the children.

b) During this time, the communication between the mother and D.S. was civil and occasionally even friendly.

c) The parties cooperated in making decisions for the children when they cohabited.

d) It is important to reinforce to both parents that the other parent is an important person in the children's lives, as both parties denigrate the parenting of the other.

[46] Notwithstanding these factors, the evidence was overwhelming that it is not in the children's best interests to make a joint custody order. In particular:

a) The communication between the parties is terrible. The mother, when asked if she could make major decisions together with the father answered: "No, we can never come together and make decisions".

b) The parties have no respect for the other as a parent.

c) The hostility between the parties was apparent at trial. Neither would look at the other when giving evidence. The mother would often sneer at the father's evidence.

d) The parties frequently accused each other of being a liar. There was no evidence of trust between them.

e) Both claimed that the other physically abused them. The mother alleged that the father frequently sexually assaulted her during their relationship.

f) There were multiple police occurrence reports filed due to parental conflict.

g) The court finds that there were physical conflicts between the adults on access exchanges.

h) There were multiple reports by the parties about the other parent's parenting to the society.

i) The mother sent abusive and racist texts to the father and D.S.

j) The parties have different views on religion. The mother is Roman Catholic and wants the children to be baptized. The father is opposed to this.

k) The mother has demonstrated vindictive behaviour. She stopped being flexible about access after receiving the OCL position, unreasonably turned down a travel consent for the father to take the children to Buffalo for a weekend and withheld children's health cards.

l) The mother has made irresponsible decisions regarding the children's schooling and obtaining services for D. and Ja. This will be discussed in more detail below.

m) D. and Ja. both have special needs. D. is delayed in school. Ja. has speech and language delays. The court repeats the following comments it made in paragraph 33 of Ciatcu v. Dragon, 2014 ONCJ 602:

[33] In Kaplanis, the court emphasizes that it is particularly essential for parents to have good communication when a child is young. The same reasoning applies, if not even more, to special needs children. Their needs are complex and it is essential to their well-being that there should be an effective decision-making process in place for them. For these children, important decisions frequently need to be made about medical treatment, supportive services, education and activities. They need stability and consistency in decision-making and conflict can be particularly harmful for them. See: Kenney v. Kenney, [2007] O.J. No. 2564 (SCJ – Family Court).

Part Five – Custody

5.1 Position and Plan of the Father

[47] The father asks for sole custody of the children. He believes that L. and J. should be free to decide if they want to see the mother. He is agreeable to the mother having generous overnight access to D. and Ja. He proposes that the mother have access on alternate weekends and on holidays. He asks that these weekends take place on weekends that he is scheduled to work. He seeks supervised access exchanges due to the high level of conflict with the mother during exchanges.

[48] The father claimed that he was the primary caregiver for the children when he cohabited with the mother. He said that the mother started drinking heavily in 2007 and would often physically attack him. He said that he was concerned about the children when he left the home in the fall of 2012, but did not apply for custody because he believed the court would not favour a father.

[49] The father deposed that the children told him that the mother was drinking heavily and sleeping in each morning. He said that L. and J. complained to him that they had to care for the two younger children and that several men came and went from the home. He said that they also complained that there often wasn't food in the home. He stated that the children said the mother would hit them.

[50] The father reported these concerns to the society in 2013. The file was investigated and closed.

[51] The father said that the mother neglected D.'s dental care and he had to address this when D. came to live with him.

[52] The father led evidence that the children had very poor school attendance when living with the mother. D's attendance was a particular concern. He missed 59 days of school in the 2012/2013 school year, and 15 days in the fall of 2013 before he came to live with his father. He fell well behind the other students at school.

[53] The father expressed concern about the mother's lack of financial responsibility. He said that he was giving her child support of $2,000 per month. Despite this, she was far behind on rent and hydro, which led to her hydro being cut off and her eventual eviction.

[54] The father deposed that the children have thrived in his care since the separation – they are doing better in school and are much happier.

[55] The father said that the children are very close with one another. He believes it is in the children's best interests to live together.

[56] The father expressed concern that the mother is neglecting Ja.'s needs. She has not registered him in daycare, despite promises to the society. He also felt that she is not addressing his speech and language issues.

[57] The father and D.S. testified that until the disclosure meeting with the OCL in October of 2014, the mother frequently asked them to keep D. and Ja. for longer periods than agreed to in the court order. This, they said, was often due to her work commitments.

[58] The father testified that the children enjoy a good relationship with D.S. He and D.S. have purchased a home in Oshawa. The closing is scheduled for the end of March of 2015. He plans to continue to drive the children to their current schools for the balance of this school term. The children would attend schools in Oshawa in the fall of 2015. He plans to maintain the same doctors for the children (who are nearby in Pickering).

[59] The father's mother currently provides child-care assistance when both the father and D.S. are working. Once the family moves to Oshawa, the father and D.S. plan to hire a nanny.

[60] The father says that he has arranged for counseling for the family at Aisling Discoveries. He said that this agency will start the counseling once the court case is finished.

5.2 Position and Plan of the Mother

[61] The mother asked for custody of D. and Ja. in closing submissions. She testified that it is important that they remain together. She is willing to grant reasonable and generous access to the father, including alternate weekends and holidays. She does not feel that access exchanges need to be supervised.

[62] The mother believes that if J. is told he is to live with her, he will readily agree. She felt that L. might be initially hesitant to live with her, but would eventually come around. She testified that D. and Ja. beg to stay with her. It was her position that the OCL and the society have not properly interviewed the children and have not obtained their real views and preferences.

[63] The mother claims that she has always been the primary caregiver for the children. She said that the father came and went from the children's lives. She said that he had little to do with the day-to-day care of the children and probably would still not know how to change a diaper.

[64] The mother deposed that the father was physically and sexually abusive to her during their relationship. She said that he assaulted her over 25 times. He was charged with assaulting her in 2001. This charge was withdrawn in 2002.

[65] The mother also alleged that the father carried on relationships with other women during their relationship. She said she learned in 2010 that the father had been living part-time with another woman for three years and they had a child together. She also alleged that he had two children by other women.

[66] The mother reported to the society in 2013 that the father had hit D. in the stomach with a hockey stick.

[67] The mother testified that L., J. and D. are doing poorly with the father and did better when they were in her care.

[68] The mother blamed the father for the children's poor school attendance after the separation, as the children (especially D.) were upset that their father had left them.

[69] The mother denied ever physically assaulting the father, D.S. or the children, with the exception of one admission of slapping L. on the arm at a party when he was acting out.

[70] The mother denied having any alcohol issues. She testified that the children were always well-fed and cared for. She denied allegations of delegating caregiving of the younger two children to L. and J.

[71] The mother blamed the father for her financial problems. She claimed that he failed to pay child support and manipulated matters to have her hydro cut off. She alleged that he had agreed to pay hydro in addition to child support and she was shocked when she was notified that her hydro was going to be cut off.

[72] The mother believes that the father and D.S. have manipulated, bribed and threatened the children, and that is why the children have made false allegations about her to the society and OCL.

[73] The mother presently lives with the maternal grandmother. She conceded that this residence is not appropriate accommodation for all of the children. She said that she is actively looking for new accommodation, but wants to first see the result of this trial, to determine how large a home she will need. The mother deposed that she received a lump sum of $17,000 in the summer of 2014 (mostly for retroactive child tax benefits). She said that this will cover her rent for one year.

[74] The mother testified that L. and J. would remain in the same school and D. would attend the school he went to when he lived with her. Ja. would attend the same school as D., starting in September of 2015. She then said that she planned to have D. and Ja. baptized and have them attend a Catholic school.

[75] The mother testified that she is prepared to obtain counseling for the children. She does not feel that she requires it for herself. She said that she would have the support of her parents, her sister and her aunt to care for the children.

[76] The mother said that she plans to obtain work, or perhaps go back to school.

The father and D.S. denied all the mother's allegations of abuse or manipulation of the children. The father said that for the last several years of his relationship with the mother, they had an "open relationship", and each had affairs with other persons. The father denied having any other children. No independent evidence was led that the father has other children.

5.3 The Children

[77] L. was described by the witnesses as a quiet child. He does well in French and science in school, but struggles with English and mathematics. He enjoys playing video games, hockey and going camping. He gets along well with his siblings and looks out for them. The father and D.S. testified that he has improved at school since he came to live with them.

[79] L.'s views and preferences are to live with his father. He feels comfortable and well-cared for in his home. He is wary about having contact with his mother, but is willing to attempt it after the trial.

[80] J. was described by the witnesses as being more outgoing and the leader of the children. He enjoys school and his best subject is science. He is struggling with mathematics and has had tutoring after school. He enjoys being with his family. He enjoys technology and hockey.

[81] J.'s views and preferences are to live with his father. He also feels comfortable and well-cared for in the father's home. He is willing to try some access with the mother after the trial.

[82] D. was described as a friendly but hyperactive child who needs to be supervised and kept occupied. He enjoys playing Lego, crosswords and puzzles. He enjoys being with his siblings and is also close to D.S.'s daughter. He enjoys skating and playing basketball and hockey.

[83] D. is the child who has been most troubled by the separation. He would like his parents to be together. He is very close to Ja., and is upset when he is not around. D. is now in grade 2. He struggled in grade 1. He was behind academically and was very aggressive, often hitting other children. It is apparent that a major reason for his struggles was due to his very poor attendance. His teacher testified that he has significantly improved his behaviour this year. He is on an Individual Education Program and has made gains academically.

[84] Ja. was described as a very social child who is close to his siblings, especially D. He enjoys puzzles and watching television. He is delayed in his speech and language. Ja. will start school in September. He is not in daycare.

5.4 Credibility

5.4.1 The Father

[85] The court treated the father's evidence with caution. He would often become evasive, argumentative and defensive when challenged about evidence that made him uncomfortable. In particular, he acted in this manner when questioned about his past relationships and his historical living arrangements with the mother.

[86] The father also testified that he colluded with the mother to obtain social assistance payments in 2001. They were living together, he said, but reported they were separated so they could collect benefits. The court agrees with the submissions of the mother's counsel, who described the father as testifying about this behaviour in a cavalier fashion.

[87] The court accepts that the father has been a loving and caring parent. However, it finds that he also exaggerated when he described himself as the children's primary caregiver between 2007 and 2012. The mother, for the most part, stayed at home with the children while the father worked very long hours.

[88] The court also finds that notwithstanding the father's evidence, there were several periods between 1995 and 2012 when he lived separate and apart from the mother and the children.

5.4.2 The Mother

[89] The mother had virtually no credibility. She was evasive, defensive and frequently contradicted herself. At times, her evidence made little sense. When caught in a contradiction, she would quickly create a new explanation to try to extricate herself from it.

[90] An example of this was with respect to the payment of child support. The mother insisted that the father had not paid support to her for September and October of 2013. The father then produced bank statements showing e-transfers of support for these months. When confronted with this evidence, the mother alleged that the father would transfer the money, but put a stop order on them immediately – she had not received these transfers. The father then produced proof that the transfers were received in her account. The mother then alleged that the father would create accounts in her name and was transferring money to himself. Her evidence was far-fetched.

[91] There were numerous examples of problems with the mother's evidence including:

a) She claimed that she was not working, although texts filed indicated otherwise. When confronted with these texts, the mother alleged the father was sending them to himself. This was not credible, as the statements about working were contained within conversations that the mother acknowledged happened.

b) The mother gave multiple explanations as to why she didn't take D. to the dentist.

c) The mother gave multiple explanations for not giving the father the children at Christmas, including her not being aware of the pickup time, the OCL rushing her into the consent, her phone battery going dead and sleeping in.

d) She irrationally blamed the father for D. missing 59 days of school while D. lived with her.

e) She denied being told by the society that the reports about her use of physical discipline and neglect of the children had been verified. Letters to her from the society confirming their verification of these risk concerns were filed.

f) The mother claims that Ja. speaks perfectly now. This was contradicted by the society worker.

g) The mother claimed that she always pays her telephone bills. However, her phone was disconnected in November of 2013 for non-payment.

h) The mother blamed the father for her financial problems in 2013. However, he was paying her generous support ($2,000 per month) and she was receiving the child tax credit. Despite this, she allowed the hydro to be cut off and was in rent arrears of $7,000.

i) When questioned about her alcohol use by the society worker, she did not mention her conviction for driving while intoxicated.

j) The mother claimed that the father stole her OSAP money from her account. She claimed that he hacked her account and changed her passwords. Her explanation about this was rambling and made little sense. She offered no proof to corroborate this allegation.

[92] Time was spent at trial about whether the mother was keeping a fetus in a jar in her freezer at home. The father reported to the society that D. had reported this to him. The society investigated this allegation. According to the society records filed, the mother confirmed that she had a miscarriage, and for cultural reasons she had kept the fetus in a jar. The society worker told her that it was inappropriate for the children to see this and asked her to get rid of it.

[93] The mother told a different version of this incident at trial. She said that she had just picked up D., returned home and D. saw the maternal grandmother holding a jar with the fetus in it (the mother having had a miscarriage that day). D. asked what was in the jar and the mother said that she panicked, took the jar away from the maternal grandmother (who she said was preserving it for cultural reasons), placed it on top of the fridge, and told D. not to mind what it was. She said that she told the maternal grandmother to get rid of the jar as it was inappropriate for the children to see it. The mother said that she does not know what the maternal grandmother did with the fetus.

[94] It was informative that the mother blamed the father for D. reporting that there was a dead fetus in the jar – particularly when the father had no knowledge that she was even pregnant.

[95] The mother's evidence on this issue was not credible. It was clear that D. knew there had been a fetus in the jar from either the mother or the maternal grandmother and he was confused by this.

5.4.3 The Mother's Sister

[96] The mother's sister testified. She also had no credibility. She had, she said, falsely reported to the society that the mother abused alcohol, and neglected and mistreated her children. When asked why she did this, she answered that she was angry at her sister and wanted "the society to go to her house and fear her".

[97] The sister attended with the mother at the society's office in December of 2014. She recanted her allegations and claimed that she had conspired with the father to make false allegations against the mother.

[98] The sister testified at trial that the father had no idea that she was making false allegations, contradicting her report to the society.

[99] The sister presented as extremely immature.

5.4.4 D.S.

[100] D.S. is employed as a Corrections Officer and works with the father. They have lived together since November of 2012 and are engaged to be married. They have purchased a house together in Oshawa. D.S. has sole custody of her 6-year-old daughter.

[101] D.S. is the one family witness this court found credible. She was a good historian, who had a clear and concise recollection of the facts. She was not evasive and answered questions directly.

[102] D.S. demonstrated a strong understanding of the children, their needs and what they have experienced. She appeared to the court to be very child-focused.

[103] The court had the opportunity to read many texts between D.S. and the mother. It was apparent that D.S. was working very hard to reduce the family conflict. Her texts to the mother were respectful and demonstrated flexibility and fairness. This was particularly impressive given some abysmal behaviour by the mother towards her, including assaulting her and sending racist text messages.

[104] D.S. suggested and facilitated Tango (internet) access between the mother and D. She also agreed to conduct the access exchanges, even after being mistreated by the mother.

[105] D.S. appeared to have a clear picture of the challenges faced by everyone due to the family conflict. She is going to personal counseling and is active in arranging counseling through Aisling Discoveries for the children.

[106] The court accepts the following material evidence from D.S.:

a) The children have a strong relationship with her and the father.

b) The children have a good relationship with her daughter.

c) Her relationship with the children has improved. L. and J. now share experiences with her.

d) L. has become more outgoing and is doing better at school since coming to live with her and the father.

e) D. is often rude and unsettled for a couple of days after visits with the mother.

f) D. first reported to her that the mother was keeping his baby sister in a jar in the freezer. When she asked the mother about this, the mother told her she had just had the miscarriage a couple of hours before and had put the fetus in a Ziploc bag (yet another version of this event from the mother). D.S. tried to encourage her to go to the hospital and be checked out, but the mother chose not to go.

g) L. and J. are reluctant to have contact with the mother.

h) The mother often asked her and the father to take D. and Ja. for additional time in 2014 due to multiple reasons, including her need to work.

i) The mother punched her in the face during an access exchange in December of 2013.

j) The mother's attitude towards her became harsh after the OCL meeting in October of 2014.

k) The maternal grandmother pulled her hair from behind during an access exchange in November of 2014.

5.5 Evidence of Society Worker

[107] The court heard evidence from the society worker assigned to work with the family in August of 2013. Selected notes from the society files were also filed, on consent.

[108] The worker testified that she investigated the mother's allegation that the father had hit D. in the stomach. She said that she did not verify the allegation.

[109] The society records indicate that the mother fell out of contact with the society after J. and D. went to live with the father in November of 2013, despite their efforts to contact her. The mother attributed this to her phone not working.

[110] The worker prepared a letter dated December 5, 2013 supporting the father's request for temporary custody of all the children. She was concerned about allegations of inappropriate physical discipline made by L. and J., the mother's financial mismanagement and possible neglect of the children's basic needs.

[111] The worker said that the mother was often resistant to her suggestions and would avoid her for several weeks at a time.

[112] The worker sent the mother a letter on May 29, 2014. In this letter she writes:

a) The concern about inappropriate physical discipline by the father was not verified.

b) On December 2, 2013, a subsequent investigation was launched as allegations of inappropriate physical discipline, limited caregiving skills and the neglect of basic needs against you came to light. These concerns were verified.

c) The society has made a series of recommendations to both yourself and the father. You have not yet followed through with the recommendations. I am hopeful you will reconsider this to allow the case to move forward.

[113] The worker testified that she asked the mother to place Ja. in daycare and the Ontario Early Years Program. She was concerned that he was not visible in the community and not being adequately socialized. She also asked the mother to attend for individual counseling.

[114] The worker testified that the mother would agree to place Ja. in daycare and then not follow through. She said that the mother did not feel that she needed counseling.

[115] The worker testified that the father and D.S. were very cooperative, open to her suggestions and followed through on them.

[116] The worker wrote another letter to the mother on December 11, 2014. She comments in the letter that the mother has not been compliant in meeting with her on a regular basis and allowing private interviews with D. and Ja. She also notes that the mother had not moved forward with daycare or the Early Years Program for Ja. and programming for herself. Lastly, she commented that the mother had been unable to secure stable housing.

[117] The worker had positive things to say about the mother. She said that the mother loves and is affectionate with D. and Ja. and they are responsive to her. She said that she plays appropriately with them. She said that she had good parenting skills. She saw no evidence of alcohol abuse and there was ample food in the home when she visited.

[118] The worker described the mother's parenting weaknesses as having housing instability, financial mismanagement issues and difficulty with her emotional regulation. She said that the mother does not take responsibility for her problems.

[119] The worker felt that the children function well in the father's home. She said he is "providing for the kids". He ensures that they are clean, well-dressed, go to school on time and do their homework. She felt that he could improve in managing his interactions with the mother and suggested that he attend a post-separation counseling program.

5.6 Legal Considerations

[120] 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.

[121] The court also considered subsection 24(4) of the Act which reads as follows:

Violence and abuse

24(4) In assessing a person's ability to act as a parent, the court shall consider whether the person has at any time committed violence or abuse against,

(a) his or her spouse;

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

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

(d) any child.

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

[123] The court should try to ensure that siblings are raised together in the absence of compelling evidence to separate them in their formative years. See: Voortman v. Voortman, 4 R.F.L. (4th) 250.

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

Factor #1: The Love, Affection and Emotional Ties

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.

[124] The court finds that the parties love their children very much. The court also finds that D. and Ja. love their parents.

[125] The evidence indicated that L. and J. have a close relationship with the father and feel well-cared for by him. Sadly, they have ambivalent feelings towards their mother at this time. The court found no credible evidence that these feelings have been unduly influenced by the father or D.S. (although they are probably attuned to the father's lack of respect for the mother's parenting ability). L. and J.'s feelings towards their mother appear to be primarily based on their own experiences with her.

[126] The children are developing a close relationship with D.S. Her daughter has also become an important part of this family.

[127] The parties, in their testimony, agreed that the siblings are very close and should be together. They disagreed on who they should be together with. In particular, D. and Ja. are very close and would likely benefit from living with one another.

[128] The court received little evidence about the nature of the children's relationship with the maternal grandmother and the paternal grandmother.

Factor #2: The Child's Views and Preferences

The child's views and preferences, if they can reasonably be ascertained.

[129] L. and J. have expressed a clear and consistent preference to live with the father and to have little or no contact with the mother. The mother acknowledged that J. looks embarrassed when he sees her and will put his head down. L. and J. have repeatedly expressed these preferences to professionals. They have provided understandable reasons for having these views.

[130] D. has expressed that he is happy living with his father, but would like to spend more time with his mother.

[131] Ja. is too young to express his views and preferences. He has been observed to be comfortable in both homes.

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

[132] The court finds that the mother was the children's primary caregiver prior to the parties' separation and that the father was very involved in their care.

[133] After the parties separated, the children all lived with the mother until L. went to live with the father in October of 2013. J. and D. went to live with the father in November of 2013.

[134] The mother's home was not a stable environment for the children after the separation. She mismanaged her financial affairs and fell well behind on rent and hydro, leading to her housing crisis in November of 2013.

[135] The evidence indicates that the mother was going through emotional turmoil during this time. D's attendance record at school was unacceptable and harming him. The mother admitted that she was very upset, angry and sad during this time. She was arrested for and convicted of driving while impaired. She was in conflict with the father and her sister, who reported her to the society. The mother also had unstable housing.

[136] L., J. and D. have been stable since living with the father. They are well-cared for and doing better in school.

[137] Ja. has lived with the mother since December 9, 2013. This status quo is an important consideration for the court. Ja. has also spent considerable time at the father's home.

[138] The mother and Ja. have had several changes in residence since the parties' separation. The mother's housing remains uncertain.

Factor #4: The Ability and Willingness of Each Person Applying for Custody to Provide Guidance, Education, Necessaries of Life and Special Needs

[139] The father has demonstrated that he is very reliable in providing the children with guidance and education, the necessaries of life and in addressing any special needs of the children.

[140] The father has been vigilant in meeting with teachers and ensuring that the children attend school every day and do their homework. He has arranged tutoring for L. and J. The school performance of L., J. and D. has improved since they have lived with the father. The school attendance for these children dramatically improved once they came to live with the father.

[141] D's teacher described how the father was very attentive to D.'s schooling. She described how D. has improved, both academically and socially since he went to live with his father.

[142] The father arranged for D. to have overdue dental work done as soon as he came into his care. He has responsibly attended to the children's medical needs.

[143] The father has cooperated with recommendations of the society, proving himself open to suggestions to help the children. He has arranged for counseling to start after the trial.

[144] The father arranged for Ja. to see a pediatrician for a referral to test his speech after the mother failed to follow this recommendation by the OCL.

[145] The evidence revealed significant concerns about the mother's present ability to provide the children with guidance and education, the necessaries of life and in addressing any of their special needs.

[146] The mother was unable to responsibly meet the children's educational needs after the separation. The school attendance records revealed the following:

a) D. missed 59 days of school in the 2012/2013 school year.

b) D. missed 15 days of school in the fall of 2013 while he was living with the mother.

c) D. missed school twice in January of 2014, when it was the mother's responsibility to take him to school after her overnight visit.

d) There have been several occasions where the mother has delivered D. late to school following her mid-week overnight visit.

e) L. missed 23 days of school in the 2012/2013 school year.

f) J. missed 27 days of school in the 2012/2013 school year.

g) J. missed 11 days of school in the fall of 2013, while living with the mother.

[147] The mother showed no insight at trial into the impact his attendance record had on D's educational delays. Instead she blamed the father for D's poor attendance. D. was struggling during this period, and the mother was unable to meet his basic need to attend school regularly.

[148] D.'s teacher testified that the mother has never attended for a parent-teacher meeting. The teacher has had only one contact with the mother.

[149] D. has special educational needs. He needs a parent who will be attuned to these needs. The mother has not shown herself capable of this.

[150] The court also finds that the mother neglected D.'s dental needs. D.'s school had sent her a letter stating that D. required urgent dental care. These dental needs were only met once D. came to live with the father.

[151] The mother has also been remiss in meeting Ja.'s special needs. The society has implored her to place Ja. in daycare or in an Early Years Program. The hope is that socialization will improve his speech. The mother has promised the society that she will do this and then not follow through. The mother explained at trial that Ja. is her last child and she wants to spend this time with him and not have him in daycare. This is putting her emotional needs ahead of the child's. At another point in her evidence, the mother said the delay in having Ja. attend at the Early Years Program was because she has felt overwhelmed by all of her obligations. This creates a real concern about the mother's capacity to look after more than one child.

[152] The mother did not follow up on the recommendation by the OCL to have Ja.'s speech tested. She does not appear to appreciate this is an issue, claiming "he speaks perfectly now". This is not the case.

[153] The mother is resistant to cooperating with service providers who could assist her and the children. She has often avoided the society worker. She has not followed through on their recommendations.

[154] The younger children will likely require further services. They need a parent who will responsibly recognize these needs, be responsive to suggestions and who will do the necessary legwork to ensure that the children receive these services. They need a parent who can work collaboratively with professionals. The father is much better suited to do this.

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

[155] The father provided a good plan to care for the children. The father and D.S. plan to arrange their work schedules to maximize their time at home with the children. They have arranged for comfortable accommodation in Oshawa as of the end of March. They plan to have Ja. attend daycare. They are sensitive to keeping the older three children in their present schools until the end of this school year. They will be able to keep the same medical caregivers. They are committed to counseling for the children and themselves. The father and D.S. earn good incomes and are able to meet the children's financial needs.

[156] The mother's plan was vague. She acknowledged that her present accommodation is not suitable for all the children. She said that she will find appropriate accommodation, but she has been telling the society this for over one year. She supported counseling for the children, but has not explored how or when this would happen. When asked about where the children would go to counseling, she answered, "I don't know, I'm capable of looking". The mother initially testified that D. and Ja. would go to D.'s old school. She then said she wanted to have the children baptized and sent to a Catholic school. The mother had vague notions of whether she would work or go back to school. It was unclear who would support her with the children and what role they would play. The mother did not set out what changes she would make to responsibly meet the children's financial needs.

[157] The court agrees with the OCL's characterization of the mother's plan, as being "a plan to have a plan".

Factor #6: The Permanence and Stability of the Family Unit

[158] The father's family unit appears to be stable. He and D.S. have a committed and supportive relationship. They have bought a new home together. The court recognizes that there will be some adjustment for the children in moving to a new community.

[159] The mother's family unit is in a state of flux. In the past year, she has lived in multiple homes. She is now looking for her own residence.

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

[160] The parties presented with different strengths and weaknesses.

[161] The mother loves her children. She interacts well with D. and Ja. The society worker commented on her positive parenting of D. and Ja. They were observed to be clean while in her care - the mother cares well for their hygiene. At times, she has been flexible about access and ensures that the children spend a lot of time together. There is evidence that she parented the children positively in the past. The court was impressed that she used to go to every hockey game and practice for L. and J.

[162] However, the mother has many challenges, including:

a) She has a damaged relationship with L. and J.

b) The mother shows limited insight. She took very little responsibility for her damaged relationship with L. and J. and the circumstances that led to D. coming into the father's care. She is unwilling to accept recommendations to deal with her challenges, such as going to counseling.

c) The mother appeared to become emotionally overwhelmed after her separation. She could not attend to D.'s academic needs and get him to school. She neglected his dental care. She acted inappropriately with the father and D.S., sending them abusive text messages. She acted inappropriately, and twice violently, at access exchanges. Her inappropriate behaviour often took place in front of the children.

d) The mother has demonstrated poor judgment. Many examples of this have already been provided. She presented to the court as an emotionally immature person.

e) The mother has exposed the children to considerable domestic conflict. She appears unable or unwilling to manage her emotions. An example of this was when she went on L.'s Facebook page to write abusive posts about the father and D.S. She did not appear to understand at trial how this could embarrass L., as his friends could see this. She dismissed this notion, saying that she took down the posts at a later time.

f) The mother involves the children in the domestic dispute. She was intent at one point of taking a video of D., so he could tell the court that: the father had hit him with a hockey stick; was threatening to physically harm him after the court case; he was afraid of his father and wanted to live with the mother. She felt that the OCL and society worker were not listening to him. After D. went to live with his father, she took D. during an access visit to see the principal of his old school. The mother said that nobody was "giving her answers". It was inappropriate for the mother to involve D. On another occasion, the mother had the children empty all the food from the freezer, so she could take a picture and tell the father that the children were without food. She then had the children put the food back into the freezer.

g) In one moment of insight at the trial, the mother admitted that she was inappropriate with L. and J., "involving them with messages". She said, "I wasn't a happy mom, I was angry".

h) The mother struggles with financial management. She jeopardized the children's welfare by not paying her rent and hydro despite having the funds to do so. Yet, around this time she bought the children Notepads with an expensive monthly payment plan. It was very unclear what else she was spending her money on.

i) The mother had difficulty accepting responsibility for her actions. She would constantly externalize blame. She would blame the father, D.S., the society worker and counsel for the children.

j) There is evidence that the mother has had alcohol issues. Her sister reported alcohol abuse to the society. The father reported heavy drinking by the mother. The mother was convicted of impaired driving. It is noteworthy that the mother's accident occurred near the time her sister made allegations about alcohol abuse to the society. The mother has not taken any steps to address her alcohol issues.

k) The court observed during the trial that the mother had difficulty processing information. She would often distort the message intended by the speaker. The mother testified that she had recently spoken to the society worker and the worker now had a completely different opinion on what was happening with the children. When the worker testified, it was clear this was not the case. The mother was interpreting the worker's information incorrectly.

l) The mother has questionable supports. The evidence indicated a history of dysfunction in the maternal family. There is a history of society involvement due to domestic violence between the maternal grandparents and alcohol abuse by the maternal grandfather. The mother reported that her brother is in jail, charged with murder. Her sister reported to the society that the mother was a neglectful parent in order to hurt her. The mother attributed putting the fetus in a jar to the maternal grandmother. The court also finds that the maternal grandmother recently assaulted D.S. on an access exchange, bringing the maternal grandmother's judgment and impulse control into serious question.

[163] The father also has flaws. The court observed that he was dismissive of the mother. That attitude has likely been observed by the children and undermines the mother's relationship with them. He presented as rigid in dealing with her.

[164] The father has a number of parenting strengths. He demonstrated a strong understanding of the children and their needs. He has a structured and predictable routine for the children. He prioritizes their education and ensures the children do their homework. He is sensitive to the special needs of the children and has taken action to address them. He has worked cooperatively with professionals. He is financially responsible. Together with D.S., he has created a stable home for the children.

Factor #8: The Relationship by Blood or Through an Adoption Order

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

5.8 Domestic Violence

[166] The court also considered the parties' respective allegations of domestic violence. The mother's allegations were severe and involved both physical and sexual abuse over a long period of time.

[167] The father was charged with assaulting the mother in 2001. The matter was withdrawn and did not proceed to a trial.

[168] The mother's charge of assaulting the father was dismissed in December of 2014, upon her entering into a Recognizance to Keep the Peace for one year.

[169] The court finds on a balance of probabilities that the mother assaulted D.S. in December of 2013.

[170] The mother did not prove on a balance of probabilities that the father abused her during their relationship. She provided no corroborative evidence of any of her allegations. Aside from the 2001 incident, no police charges were laid and no medical evidence of injuries was produced. The court is well aware that many victims of domestic violence do not have such evidence to present to a court. However, as this court has observed, the mother has little credibility. She was a witness whose evidence required corroboration before the court could make findings that the father abused her.

5.9 Custody Order

[171] L. and J. have thrived in the father's care. They have expressed a clear and consistent preference to live with the father. It is a view that merits considerable respect.

[172] D. has also thrived in the father's care. His academic and medical needs were being neglected when he resided with the mother. They are now being dealt with responsibly.

[173] The court strongly considered that Ja. has primarily lived with the mother and might experience some distress in not living with her full-time. However, Ja. will be starting school in the fall. The father is much better suited to look after his academic needs. The court also finds that the father is better prepared to address any special needs of Ja., including challenges he may have with his speech and language. He is more committed to ensuring Ja. is socialized with other children.

[174] It is in the best interests of the children to live together, particularly D. and Ja. The children are close with one another and provide each other with love, emotional support and stability.

[175] The court has far more confidence in the judgment of the father to properly care for the children. He has presented a more stable plan for their care and has better supports. He is able to provide them with the structure and stability that the mother has struggled with. The father is better able to address the children's needs and work cooperatively with professionals to address them.

[176] It is in the best interests of the children to place them in the sole custody of the father.

[177] The mother will be given rights to information about the children set out in subsection 20(5) of the Act. This subsection reads as follows:

Access

(5) The entitlement to access to a child includes the right to visit with and be visited by the child and the same right as a parent to make inquiries and to be given information as to the health, education and welfare of the child.

Part Six – Access

[178] L. and J. are old enough to determine how much contact they will have with the mother. The court is satisfied that the father will not obstruct this access. It is not in L. and J.'s best interests to make a structured access order. The order will provide for reasonable access, in accordance with their wishes.

[179] It is in the best interests of D. and Ja. to have generous access with the mother. They have a very close bond with her. D. has expressed a desire to spend more time with the mother. The mother has been Ja's primary caregiver.

[180] The OCL and father suggested that visits take place on alternate weekends and holidays. The mother made a similar proposal for the father's access, if she was awarded custody. The court will make an order providing the mother with access on alternate weekends and on holidays.

[181] The OCL and the mother suggested that weekend access start on Fridays with pickup from school. Such an order would not be in D. and Ja.'s best interests. It is very important to carefully structure the access to minimize D. and Ja.'s exposure to domestic conflict. The court is not satisfied that the mother can manage her emotions on exchanges. There is an emotional risk of harm to D. and Ja. if they witness her outbursts, which are sometimes violent. Further, the evidence indicates that the mother has difficulties exchanging D. and Ja. on time. The court is not confident that the mother would consistently pick up the children on time from school. It is in the best interests of D. and Ja. that all access exchanges take place at a Supervised Access Centre.

[182] The father asked that access exchanges take place at a Supervised Access Centre in Durham. It is in the best interests of the D. and Ja. that access take place with as few obstacles as possible. The mother does not have a car and presently does not have a driver's licence. If exchanges took place in Durham, this would mean that D. and Ja. would spend an inordinate amount of time on public transit. D.S. has a car. Both she and the father are able to drive D. and Ja. for access exchanges. The exchanges shall take place at TSAC.

[183] This access order will necessitate some restrictions to access as the exchanges will need to take place when the TSAC Scarborough location is open (Saturdays and Sundays).

[184] The father and D.S. have irregular work schedules. They work two weekends per month, but sometimes work on consecutive weekends – their shifts change throughout the year. The father asks to be able to change the access weekends, on notice, to ensure that the children spend the weekends he is off with him and the weekends he is working with the mother. To her credit, the mother is agreeable with this.

[185] The order will provide that D. and Ja. will spend alternate weekends with the mother, from Saturdays at 10:00 a.m. until Sundays at 4 p.m. So long as the father's employment schedule requires him to work weekends and the mother is not working on weekends, the parties will trade weekend access so that D. and Ja. are with the father on the weekends that he is not working. In making such changes, each parent will have 50% of the weekends over the course of the year, and except during summer vacation time or as otherwise agreed by the parties, D. and Ja. shall not spend more than two consecutive weekends with either parent.

[186] The OCL also proposed that the mother have one mid-week evening visit with D. and Ja. The court will not order mid-week access. The court wants to limit the transitions between the parties due to the conflict and disruption it has often caused. Overnight visits in the middle of the week are not in the best interests of these children due to the mother's struggles with getting them to school on time and the distance between the parties.

[187] The order will provide the mother with exclusive holiday time with D. and Ja. and the father with exclusive holiday time with all the children.

[188] The father sought the right to obtain government documentation and to travel with the children outside of Canada without the mother's consent. It is in the best interests of the children to grant these requests. The mother unreasonably refused this consent when the father asked to take the children to Buffalo last summer. The mother has also demonstrated she can be vindictive. She cut back the father's access after hearing the OCL's recommendations and shortly after went to the police to report historic physical and emotional abuse by the father. The ability of the father to obtain documentation and to travel with the children shouldn't be compromised by the mother. If the father plans to travel outside of Canada with the children for more than four days, he will be required to give her 14 days notice and a full itinerary of the trip.

[189] The father, in his closing argument, sought a police enforcement order. This was the first time this issue was raised. It was not pleaded. In the absence of such pleading, the court is not prepared to grant this relief. See: Rodaro v. Royal Bank of Canada, [2002] O.J. No. 1365. There was no questioning on this issue during the trial. The mother had no opportunity to lead evidence or question the father on this issue.

Part Seven – Child Support

[190] The father made a claim for child support in his application. However, in his opening argument, he advised the court that he would not pursue this claim. Notwithstanding this representation, the father asked the court, in closing submissions, to impute income to the mother and have her pay ongoing child support of $599 per month, together with a contribution to the children's special expenses pursuant to section 7 of the Child Support Guidelines.

[191] Evidence was led during the trial that the mother was working at some times in 2014. The court also learned during the trial that the mother received $17,000 for government benefits and credits in 2014.

[192] The court will not make a child support order. The mother relied on the father's representation that he would not seek child support at this trial. Accordingly, her counsel did not ask the mother questions about child support or question the father about his claim. If the father was going to change his position and make this request, it should have been done during the evidentiary portion of the trial so that the mother could have had the opportunity to meet the case against her. It is fundamentally unjust to raise this issue in closing submissions, after evidence is closed.

[193] The father asks for an order finding that he does not owe child support to the mother. This is a reasonable request. The parties did not follow the Waldman order – they lived together most of the time until their final separation. The father paid child support far in excess of the Waldman order after the separation. He has had three of the children living with him since November of 2013. The mother also received $17,000 in the summer of 2014 and did not disclose this until trial.

[194] The court will require the mother to provide the father with complete copies of her income tax returns (including T4 slips) and notices of assessment by June 30th each year. She will also be required to notify him if she starts working, including the name, address and phone number of her employer and her rate of pay.

Part Eight – Conclusion

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

a) The father shall have sole custody of the children.

b) The mother shall have the rights to information about the children set out in subsection 20(5) of the Children's Law Reform Act.

c) The mother shall have reasonable access to L. and J., as agreed upon between the parties and in accordance with the wishes of L. and J.

d) The mother shall have access to D. and Ja. on the following terms and conditions:

i) Every other weekend from Saturday at 10:00 a.m. until Sunday at 4 p.m. This will start on February 28, 2015.

ii) So long as the father's employment schedule requires him to work weekends and the mother is not working on weekends, the parties will trade weekend access so that D. and Ja. are with the father on the weekends that he is not working. In making such changes, each parent will have 50% of the weekends over the course of the year, and except during summer vacation time or as otherwise agreed by the parties, D. and Ja. shall not spend more than two consecutive weekends with either parent.

iii) The two-week Christmas holiday break shall be evenly divided between the parties. In odd-numbered years, starting in 2015, they shall spend the first week with the mother and the second week with the father. In even-numbered years, starting in 2016, they shall spend the first week with the father and the second week with the mother. The parent who doesn't have D. and Ja. with them during the first week will have them from December 25th at 9 a.m until December 26th at noon. D. and Ja. will spend the Saturday before Christmas Day each year with the father, to attend their annual family party.

iv) Irrespective of the usual schedule, they shall spend Mother's Day weekend with the mother and Father's Day weekend with the father.

v) In odd-numbered years, starting in 2015, they shall spend March Break with the mother. In even-numbered years, starting in 2016, they shall spend March Break with the father. March Break shall be defined as being from Monday to Friday.

vi) Each summer, they shall spend one week in July and one week in August, with the mother. The mother shall notify the father which weeks she chooses by May 15th each year.

vii) The father may also have the children for one week in July and one week in August each summer. These weeks can be consecutive. He shall notify the mother which weeks he chooses by May 30th each year.

viii) Holiday access shall take priority over the regular access schedule.

ix) Access exchanges shall take place at the TSAC – Scarborough location (Ellesmere Ave. and Neilson Rd.). If TSAC is closed (and until TSAC accepts this case) the exchanges shall take place at the Scarborough Town Centre, or such other public location agreed upon by the parties.

x) The parties shall immediately contact TSAC to arrange for these exchanges. They shall be responsible for their respective shares of TSAC fees.

xi) The father shall give the mother and TSAC reasonable notice, on an ongoing basis, of his work schedule and on what weekends access will take place.

xii) The mother shall not consume alcohol during or within 12 hours before any access visit.

e) The father may obtain or renew all government documentation for the children, including passports, without the mother's consent.

f) The father may travel with the children outside of Canada for vacation purposes without the mother's consent. If the trip is going to be for more than 4 days, he is to provide the mother with 14 days notice of the trip, an itinerary and contact numbers. He is to ensure that the mother is able to speak to D. and Ja. at a minimum, on alternate days during any trip.

g) Neither party will denigrate the other in the presence of the children. They are to also use their best efforts to ensure that no other friend or family member denigrates the other party to the children.

h) The order of Justice Waldman dated October 22, 2002 is terminated.

i) Any arrears accumulated under the October 22, 2002 order of Justice Waldman are rescinded.

j) There will be no order for child support at this time.

k) The mother shall provide the father with complete copies of her income tax returns (including T4 slips) and notices of assessment by June 30th each year.

l) The mother shall immediately notify the father if she obtains employment. She is to advise him of the name, address and telephone number of her employer and her rate of pay.

[196] If either party seeks costs, they are to serve and file written submissions by March 9, 2015. The other party will then have until March 20, 2015 to make written response. The submissions should not exceed three pages, not including any bill of costs or offer to settle. The submissions should be delivered to the trial coordinator's office on the second floor of the courthouse.

[197] The court thanks counsel for their professional presentation of the evidence.

Justice S.B. Sherr

Released: February 23, 2015