Court File and Parties

Court File No.: Halton 14/53 Date: 2016-05-06 Ontario Court of Justice

Between:

Thomas William Graham Applicant

— AND —

Carey Lynn Stone Respondent

Before: Justice Marvin Kurz

Heard on: March 29, 30, 31, 2016

Reasons for Judgment released on: May 6, 2016

Counsel:

• Lukasz (Luke) Szymura, counsel for the applicant
• Carey Lynn Stone, on her own behalf

KURZ J.:

Overview

[1] Each of the parents of Zakkary Stone Graham, born December 3, 2005 ("Zakkary" or "the child"), seeks custody of and support for the ten year old child. In this decision I will deal first with the custody and access issues. I will then move on to child support.

[2] The applicant father, Thomas William Graham ("Thomas" or "the father"), first brought this application more than two years ago, on January 7, 2014. He alleges that Zakkary's mother, the respondent, Carey Lynn Stone ("Carey" or "the mother"), unilaterally terminated his access to Zakkary in the months before he began this application. He claims that she has lived an unstable lifestyle, with numerous moves and relationships. He argues that Zakkary has been harmed by his mother's itinerant lifestyle. He presents himself as the only parent who can provide stability to Zakkary.

[3] Carey responds that she has been Zakkary's primary caregiver since birth. She states that, following the parties' separation, in May, 2013 Thomas exercised access every weekend and one week each summer. This changed when she moved to Burlington, Ontario and stopped driving the child to and from access visits. At this point, she says, the father's access became inconsistent and irregular. Carey pleaded that she terminated access only when Thomas began to threaten not to return the child.

[4] When this matter first came to court, Carey agreed to reinstate weekend access. But she admits that she has been less than consistent in allowing that access. Nonetheless she argues that Thomas has been an inconsistent and uninvolved parent. Further the child has expressed his preference to remain in her care. Thus the status quo of her primary caregiving role should not change.

[5] On April 7, 2014 the Honourable Justice Zisman of this court requested the assistance of the Office of the Children's Lawyer in resolving the custody and access issues. The OCL accepted the appointment request. It appointed a social worker, Shazeeda Haroon, to engage in a clinical investigation of the parenting issues in this case.

[6] Ms. Haroon prepared two reports, an interim one dated December 5, 2014, and a final report dated January 7, 2016. The former raised a number of significant issues, including the mother's frequent moves. It called for mother to be granted interim rather than final custody. That was subject to the father having interim access three out of four weekends and half of Zakkary's holidays. Her second report calls for a change of custody.

[7] Carey claims that Thomas consistently underpaid support and failed to provide financial disclosure. She seeks an indeterminate amount of retroactive support. Thomas claims that he and Carey agreed to the amount of support that he paid. He adds that when this proceeding began, he provided full disclosure and full table support.

Background

[8] The parties lived together in Ayr, Ontario for about a year and a half. They separated in February, 2006. At that point, Carey and Zakkary moved to Cambridge, Ontario, about a 20 minute drive from Ayr. Subsequent to her initial move to Cambridge, the mother moved with Zakkary numerous times. The father alleges that she moved at least 15 times in the ten plus years since their separation. On the other hand, he has continued to reside in the same home in Ayr that they shared during their cohabitation.

[9] The mother admits to many moves but claims that the father's number is exaggerated. She says that the moves were motivated by her finances and the desire to offer the child a better lifestyle.

[10] Each parent has a child from another relationship. The father has an adult daughter from a previous relationship while the mother has a son, Zaiden, from a subsequent relationship.

[11] In addition, each parent has formed a relationship with another person who is part of his or her plan to parent Zakkary. The father is dating a woman named Sue Carter, who is a school teacher. Ms. Carter will assist the father in providing some daycare to Zakkary while he is working. She has cared for Zakkary in the past. The mother is involved with a man named John Brophy. She spends a great deal of time with Mr. Brophy. She and her two sons frequently accompany Mr. Brophy to his cottage on weekends. She plans to move with him to his home in Caister Centre, Ontario when this case is over, and then marry him in two years.

Request to Admit

[12] The father's counsel served a detailed Form 22 Request to Admit on the mother on February 17, 2016. Under Rule 22(4):

RESPONSE REQUIRED WITHIN 20 DAYS

(4) The party on whom the request to admit is served is considered to have admitted, for purposes of the case only, that the fact is true or that the document is genuine, unless the party serves a response (Form 22A) within 20 days,

(a) denying that a particular fact mentioned in the request is true or that a particular document mentioned in the request is genuine; or

(b) refusing to admit that a particular fact mentioned in the request is true or that a particular document mentioned in the request is genuine, and giving the reasons for each refusal.

[13] The mother failed to serve or file any response to the father's Request to Admit. Accordingly I am required to consider her to have admitted the facts contained in that document and to the genuineness of the documents attached to it.

[14] Among the salient facts to which the mother is effectively deemed to have admitted are the following:

a. The father has resided in the same neighbourhood in the village of Ayr since 2005.

b. He owns a three bedroom home with a bedroom for Zakkary and a large fenced backyard. That home is close to an elementary school and a park.

c. The father is employed on a full time basis with Tenant Sales and Service Canada.

d. Each party has another child. Thomas has a daughter from a previous relationship, while Carey has a son from a subsequent relationship.

e. From January 1, 2006 to April 30, 2013, Carey resided in at least nine different residences in the Regional Municipality of Waterloo. During that time, Zakkary normally resided with the father on weekends and the mother during the week. They shared holidays. During some of that time, the father was Zakkary's primary caregiver. He never refused to return the child to the mother.

f. Carey moved with Zakkary to Burlington, Ontario on July 1, 2013. She did so without the father's consent. She refused to disclose the correct address at which she lived. From that time onward, she has lived at six different addresses in Burlington, Hamilton, and Cambridge, Ontario.

g. Carey now plans to move to Caister Centre, Ontario.

h. From July 1 – December 31, 2013, Carey refused ten of Thomas' requests to see Zakkary on a weekend or holiday period. During that six month period, she unilaterally changed the father's access to Zakkary, then cut off his access unless he paid her increased child support. She withheld virtually all access between August 1, 2013 and December 31, 2015, only allowing Thomas to see the child on three separate occasions. She twice told him that he would not see Zakkary until further court order.

i. On December 27, 2013 Carey moved with Zakkary to a new address in Burlington. She offered Thomas a new address that was really an industrial property.

j. On January 14, 2014 each of Carey and her lawyer offered the father different home addresses for Carey and Zakkary. She later confirmed that the address offered by her lawyer was the correct one. It was a Homewood Suites hotel.

k. About four months later, on April 7, 2014, Carey moved again, this time to an address in Hamilton.

l. From the time of her April 7, 2014 move until the end of 2014, Carey withheld access four times. She also refused to allow summer and Christmas holiday access. She chose that location, and made Thomas do all of the driving to and from the access changeover points. She required him to drive to at least six different destinations in six different localities.

m. At some point during this period she moved again, to Hamilton. Once again she offered an address that is an industrial property.

n. While the father exercised his alternate weekend access in January and February, 2015, he was denied access in March, 2015, and 3 of 4 weekends in April, 2015. During this time, Carey advised Thomas that she was moving with Zakkary and Mr. Brophy to a location north of Sudbury.

o. On April 28, 2015 Carey advised the court that she and Mr. Brophy were moving with Zakkary to Hagar, Ontario.

p. On June 16, 2015 Starr J. of this court forbade the mother from moving the child's residence from his current catchment area in the City of Cambridge.

q. On June 23, 2015 Carey advised this court that she planned to move with Zakkary to Binbrook, Ontario. The father consented to the move and an order was made to that effect. Yet contrary to the consent order, Carey did not make that move. Instead she moved to various residences in Cambridge, Ontario.

r. Carey denied Thomas access to Zakkary four times between November 14, 2015 and January 9, 2016. She was late for numerous other access changeovers.

s. Carey has changed her cell phone number numerous times.

t. In Zakkary's first five years of school, he has changed school four times. He has averaged 26.5 absences per school year.

u. Zakkary is presently a grade 5 student at Parkway Public School in Cambridge.

v. John Brophy has announced the end of his relationship with Carey on three occasions:

i. On September 15, 2014, he sent Thomas a text advising the end of Mr. Brophy's relationship with Carey;

ii. On October 23, 2015, Mr. Brophy telephoned OCL clinical investigator, Shazeeda Haroon, to inform her that his relationship with Carey had ended. He stated that she had been drinking alcohol and yelling at both of her children. He added that he had purchased groceries for her children but that Carey had returned the groceries and used the money to buy alcohol.

iii. On February 5, 2016 Mr. Brophy told Thomas in a text message that his relationship with Carey was over. He described her as "a train wreck". He added that "She likes dating other guys not for me", "too many guys in her life" and "Party party that's all she wants".

w. Mr Brophy often arranges access on Carey's behalf. He will often yell and scream at Thomas.

Father's Testimony

[15] In his testimony, Thomas described a relationship with Zakkary that is good when he is allowed to see the child. His primary concerns are that he is not consistently allowed to see his son and that the mother leads an inconsistent and itinerant lifestyle. All of this adversely affects Zakkary.

[16] Thomas' evidence expanded on the facts admitted in the Request to Admit. He stated that his relationship with Carey was good for about seven years after their separation. He was an actively involved father who enjoyed generous access to the child. He initially saw Zakkary every weekend that he could and even brought him back to Ayr from Cambridge to play soccer. He got on well with Carey. He even met her other child, Zaiden.

[17] Thomas' access relationship with Carey began to come "crashing down" when she became increasingly involved with Mr. Brophy in July, 2013. That is when she began denying his weekend access.

[18] By 2014, the access problems were so bad that Thomas had to obtain legal representation and commence this proceeding. He never knew whether he would be getting Zakkary or where the access pick-up would occur until Friday of an access weekend at 4 p.m. Even the April 7, 2014 order, granting him alternate weekend access, did not solve the access problems.

[19] Thomas' access remained inconsistent. Once he kept the child for a week while Carey and Mr. Brophy holidayed. At other times he was denied access. For example, Carey and Mr. Brophy went away for another week. They left Zakkary with what Thomas characterized as a "stranger". Carey never even told him that she was going away.

[20] Thomas spoke at some length about Carey's frequent moves and the frustrations that they caused. He is concerned that some of the locations to which she moved are shelters. Mr. Brophy had expressed concern to Thomas about paying money to Carey to cover her accommodation costs, only to see her move into a "dump".

[21] Thomas had opposed the mother's plan to move to Hagar, Ontario, a stance that Justice Starr supported. Carey then followed Mr. Brophy's cue in claiming that she would move instead to Binbrook, Ontario. But she never moved there.

[22] Thomas feels that Zakkary is struggling at school. He previously required an individual education program. Thomas believes that Zakkary is still on such a program. He also believes, based on what Carey has told him, that Zakkary was getting more help with his learning problems from his previous school, Frontenac Public School, than his present school, Parkway Public School.

[23] If granted custody, Thomas would enroll Zakkary in his local school in Ayr, which is fairly close to his home. He has neighbours who could help care for Zakkary before he takes a bus to school. Thomas is usually home by 4 p.m., when Zakkary would normally return home. But Thomas has neighbourhood coverage in case he is late. He can also count on help from Ms. Carter.

[24] Under my questioning, Thomas stated that this proposed schooling arrangement would start until the fall of 2016. Thomas would keep the child in his present school until the end of this school year. This arrangement will avoid yet another change of school in the middle of the school year.

[25] Thomas will also take a week off from work to get Zakkary set up for school and comfortable in his new arrangement. Thomas has two weeks of holidays this summer and 300 hours of banked sick and holiday time at work that he can use to spend with the child. In addition, he has family and a girlfriend, Ms. Carter, who has cared for Zakkary in the past, who can provide care this summer.

[26] Zakkary has known the children in Thomas' neighborhood all of his life. The child has played soccer in that neighborhood. Father and son have discussed scouting, which now interests Zakkary more than soccer. They have also discussed swimming. Zakkary is not engaged in any of these activities right now.

[27] Thomas is willing to equally share the driving if the mother remains in Cambridge. However if she moves to Caister Centre, that will cause a problem. He fears that it will be difficult to get Carey to agree to a consistent meeting place or that she will be consistently late for changeovers.

[28] Thomas is aware of Zakkary's severe eczema and its impact on the child. He has applied the necessary cream many times, particularly after a bath.

[29] On cross examination by Carey, Thomas admitted to historically underpaying child support. I discuss that issue in greater detail below. Thomas conceded never having attended a parent teacher interview before commencing this case. He also admitted to having been a "workaholic" who missed his son's first day at school. He felt that he had to work hard in his early days at his job. Further he refused to take Zakkary one time when he had "foot and mouth illness". He did not want his girlfriend and her children to get infected.

Mother's Evidence

[30] Carey described Zakkary's birth as a planned one. However he was a difficult baby. He suffered from colic and severe eczema. He often cried because his "absolutely raw" skin left him in constant pain. He also had to be fed every three hours. Carey had weekly visits to a pediatrician and medical specialists.

[31] Carey felt that Thomas inadequately supported her as the parent of a difficult child. Because she was on maternity leave while he was working, he left the lion's share of the parenting to her. Feeling alone, unsupported and under stress, she took Zakkary and left Thomas.

[32] Carey moved to the home of her mother and step-father. She found work as a transit driver with the Region of Waterloo, first as a full time driver and then on weekends. Thomas unilaterally decided to pay her only $300.00 per month in child support. This was less than the table amount for his income under the Child Support Guidelines. He justified the payment by saying that it was the same amount that he paid to his ex-wife for his older daughter. Carey did not object for the first few years post-separation. She was working on her own.

[33] In Carey's narrative, Thomas was an uninvolved father who showed little interest in Zakkary's schooling and extra-curricular activities. He refused to come to the child's first day of school, parent teacher interviews and school plays. Thomas does not deny some of these allegations. She stopped telling him about these activities because he was not interested in them. He was unwilling to take the child when he was ill.

[34] Carey also described a number of times when Thomas was too parsimonious to pay for Zakkary's schooling and extra-curricular activities, such as Kumon, Beaver Scouts, and even dental surgery. While Thomas paid for some of the child's soccer costs, she paid for his soccer clothing. She even drove him to the soccer games at Thomas' behest. This only ended when her younger son, Zaiden, insisted on playing the games with his brother. I should note that Carey provided no evidence of receipts for expenses to which Thomas refused to contribute.

[35] Carey admitted that she has been at fault for a number of the concerns raised by Thomas. She states that she has been angry and not making the best decisions. For example she stated that she refused Thomas' visits even though Zakkary wants to see his father. She recognizes that the quantity of her moves have affected Zakkary. He does not like moving. But she is living in a bad neighborhood; one that is not a good environment for the child. She has to move again.

[36] In Carey's telling, she made two primary mistakes: moving too frequently and giving up her full time job.

[37] Carey offered a history of her moves that confirms in large measure the narrative offered by Thomas and deemed admitted under the Request to Admit. In doing so she offers her explanations for a number of the moves.

[38] In sum, Carey explains her itinerancy by stating that she fell into poverty and bad relationships with men who physically and financially abused her. She denies that Mr. Brophy is one of those men. She moved to get out of bad situations or to try to improve her lot in life. Carey admits that some of the homes to which she moved were shelters or temporary residences like hotels.

[39] If granted final custody of Zakkary, Carey wishes to engage in one further move: to Mr. Brophy's property in Caister Centre, Ontario. She will make this move as soon as this case ends. However if that sudden move is an issue for the court, she will wait until the end of the school year. Carey sees this as her final and permanent move. She plans to marry Mr. Brophy within the next two years. Until then she will cohabit with him. They would start a business together. It should be noted that she has not resided with him on a permanent basis to date. She did not indicate the nature of the business, her updated role or her expected income.

[40] If granted custody and permission to move, Carey will allow alternate weekend access to Thomas. She will meet him for access changeovers at a spot halfway between Ayr and Caister Centre. That spot will be agreed upon or set by the court. However she does not have a driver's license. Presumably Mr. Brophy will carry out her driving responsibilities.

[41] I asked Carey whether she had a backup plan if her relationship with Mr. Brophy did not work out. I did so considering the apparent instability of her relationship with Mr. Brophy. He had proclaimed the end of their relationship three times in the past year and a half, including just six weeks prior to the commencement of this trial. She frankly, albeit naively, answered that she has no such backup plan. It is not clear what she would do if the relationship were to end while she and her two children were living in Mr. Brophy's home.

[42] Carey's evidence discloses one further fact. Despite the involvement of the OCL, Carey claims that she sat down with Zakkary numerous times and elicited his consent to this move. This view is contradicted by some of the evidence offered by Ms. Haroon, about Zakkary's diffidence towards future moves set out below. Of course it causes great concern to the court that the mother is having such conversations with the child, which could potentially influence his views and preferences.

Evidence of John Brophy

[43] Mr. Brophy was exempted from my order excluding witnesses. I offered that exemption because Carey is self-represented and he is her sole support person.

[44] Mr. Brophy plans to move with Carey to his home in Caister Centre. He has owned that home for 23 years and raised his five children there during his 25 year marriage. His oldest daughter is a teacher and another is a police officer.

[45] Mr. Brophy claims that his relationship with the child is close. He says that they have bonded over the past four years. Every Saturday morning when they visit his cottage, Zakkary wakes up, jumps in bed with Mr. Brophy and tells him he loves him. They then go to work at his shop, building and repairing items like a snowmobile. Zakkary loves this kind of work.

[46] Mr. Brophy denies ever hitting Ms. Stone, although he admits to arguing with her.

[47] Mr. Brophy offered some comments about the father's parsimony. He stated that Thomas refused to contribute to Zakkary's education fund because he did not believe that his son was "going anywhere". I have not been provided with evidence of this education fund. The statement was not corroborated, even by Carey. Thomas denies it.

[48] In cross examination, Thomas' lawyer confronted Mr. Brophy with the allegation that he had engaged in an altercation with a police officer outside of the courtroom on the second day of trial. He denied it. However Mr. Brophy did admit that he said "fuck you" to a police officer outside of the courtroom that day. He said that he later apologized and that they shook hands. The officer did not testify.

[49] Mr. Brophy admitted to telling both Ms. Haroon and Thomas that his relationship with Carey is over. However he tried to walk back much of what they said that he told them. By turns he claimed that Ms. Haroon had misunderstood him, that he was angry at Carey, and that he really meant that the case is killing her and that she is a great mom. In essence, Mr. Brophy attempted to offer the most positive spin possible on the negative statements that he had made about his fiancée as recently as six weeks earlier. None of this enhanced his credibility.

Evidence of OCL Clinical Investigator, Shazeeda Haroon

[50] Ms. Haroon is a registered social worker with a Masters in Social Work degree. She also conducts clinical investigations for the OCL. Ms. Haroon holds a full time job as a social worker for the Peel Board of Education. Prior to that she worked for the Toronto Catholic Children's Aid Society.

[51] Ms. Haroon's two reports can be seen as her examination in chief. Both parties were entitled to cross-examine her.

[52] In her interim report, Ms. Haroon confirmed that the mother's transiency raised a concern. She also raised concerns regarding:

• Zakkary's exposure to adult conflict (for example the child told Ms. Haroon that his mother told him that her father always lies);

• Zakkary's struggles at school, caused, Ms. Haroon believes, by his transiency (a new school for each year but one), excessive absences (in excess of 25 days per year), and the mother's failure to promptly respond to his school;

• Carey's acknowledged failure to adhere to the father's access schedule; and

• Her efforts to limit Thomas' access to information about Zakkary.

[53] Ms. Haroon considered recommending a change of custody because it appeared that the father could offer the child greater stability than could the mother. However the social worker recommended against that change for a six month interim period. She made that recommendation for three reasons:

• Zakkary's bond to his mother and step-brother;

• a sympathy for some of the factors that led to the mother's transience;

• and the fact that Zakkary seemed to be doing well at the time.

[54] Instead Ms. Haroon recommended interim sole custody to the mother, with access to the father three out of four weekends. She also recommended an equal sharing of holidays. Ms. Haroon added a series of recommendations to ensure the mother's stability and to keep Zachary away from his parents' adult conflict.

[55] Ms. Haroon's final recommendation of January 7, 2016 was for a change of custody. Carey had moved three more times and once again changed Zakkary's school in the thirteen months since Ms. Haroon issued her interim report. Carey even intended to move once more after the court process was completed.

[56] Ms. Haroon had a number of concerns over and above Carey's transience. In particular:

• The father was continuing to experience disruption to his access.

• Ms. Haroon was concerned that Zakkary had become exposed to physical and verbal conflict between his mother and her common law partner, John Brophy. Ms. Haroon described the relationship between Carey and Mr. Brophy as "emotionally and physical violent."

• On October 23, 2015, Mr. Brophy told Ms. Haroon that their relationship is over. He blamed the breakup on the mother's drinking and yelling at the child. He claimed that she used grocery money to buy alcohol. Ms. Haroon felt obliged to report those concerns to a children's aid society under s. 72 of the Child and Family Services Act.

• Mr. Brophy later recanted these allegations. He had reconciled with the mother. He denied that he had shared any concerns with Ms. Haroon about Carey other than in regard to her drinking. He claimed that she must have misunderstood him. But Ms. Haroon had taken contemporaneous notes of her October 23, 2015 conversation with Mr. Brophy.

[57] Ms. Haroon opined that Zakkary is now suffering from two sources: insecurity caused by his mother's numerous moves and exposure to his mother's conflict with Mr. Brophy. This represented a change from his circumstances at the time of her first report. As a result she feels that the balance has tipped towards a change of custody.

[58] Two important themes in Ms. Haroon's testimony were Zakkary's problematic schooling and his exposure to adult conflict. Ms. Haroon feels that Zakkary is struggling in school. He is behind when compared to other students of his age and grade. Ms. Haroon is particularly concerned about the impact of the child's frequent absenteeism on his school performance.

[59] Ms. Haroon logically pointed out that Zakkary's continual absences lead to gaps in his education. Some children are unable to make up these gaps. This inability can lead to school disengagement, poor attitude to school and social difficulties with peers. Ms. Haroon accepts that some of Zakkary's absences are legitimate, as a result of his severe eczema. Nonetheless his pattern of poor attendance is very concerning.

[60] Part of Ms. Haroon's role as a social worker at the Peel Board of Education deals with truancy. She is concerned with the risk of Zakkary losing both his term and his engagement with school. She feels that he is at higher than usual risk of becoming completely disengaged from his education.

[61] This concern is exacerbated by the child's constant moves (three moves and one change of schools times since Ms. Haroon's last report, with another planned). These constant moves and changes of school adversely affect Zakkary's ability to utilize special education resources.

[62] In her second report, Ms. Haroon reported that Zakkary told her that he does not like his present school, Parkway Public School ("Parkway"). He prefers his previous school, Frontenac Public School ("Frontenac"). He feels that Frontenac cared more about him than Parkway. Its teachers offered him more help than Parkway.

[63] In addition, Zakkary's ability to make friends is adversely affected by his frequent moves. He always has to make new friends. As Ms. Haroon put it, Zakkary has not had the ability to settle any roots socially and in his schooling.

[64] Zakkary is quite articulate in expressing his concerns about his constant moves. He finds the changes of schools to be dizzying, remarking to Ms. Haroon that "I've been to so many schools I don't even remember." He admitted to Ms. Haroon that "[m]oving around a lot bothers me, I just want to stay where I am".

[65] But of course that is not possible. Whichever parent obtains custody – he will have to move at least once more. Zakkary does not like his present home in Cambridge, but liked living in Burlington and Ayr.

[66] Ms. Haroon has no concerns regarding the father's ability to get Zakkary to school if there is a change of custody. Thomas was able to identify his local school for Zakkary. He has appropriate arrangements in place with neighbours and his girlfriend, Ms. Carter, to ensure that the child is cared for both before and after school.

[67] Ms. Haroon also spoke at some length about her concern that Zakkary had been exposed to adult conflict while in the care of his mother. Her concerns arise from speaking to Zakkary, reviewing the records of the Halton Children's Aid Society (which were not placed before me), and speaking to witnesses who did not appear at court. In this decision I rely only on the evidence properly before me, including the evidence of the witnesses who testified, the request to admit, the documentary evidence mentioned elsewhere in this decision and the evidence of the child's statements provided by Ms. Haroon.

[68] In her report, Ms. Haroon wrote of Zakkary's ambivalence towards Mr. Brophy. The child told the social worker that he likes Mr. Brophy. But sometimes he does not like his mother's boyfriend because, Zakkary believes, he lies. Mr. Brophy says that certain things will happen but then they do not occur (although Zakkary also said that some of the lies that Mr. Brophy tells later come true).

[69] Zakkary told Ms. Haroon that his mother has asked him whether she should leave her boyfriend or whether he wants to live with his father. In doing so, she has drawn him into her conflict with Mr. Brophy. Zakkary said that he had been telling his mother to leave Mr. Brophy. He described his mother's relationship with Mr. Brophy to Ms. Haroon as "on and off every day".

[70] Zakkary described Mr. Brophy as controlling towards his mother. As Ms. Haroon recounted in her second report, the child said:

My mum can't do nothing. He will not let my mum get a job or have friends, he will yell at her.

[71] Zakkary also described at least one event when Mr. Brophy assaulted his mother. As Ms. Haroon quotes Zakkary:

John has hit my mum, we were at the cottage, they were fighting about moving and stuff like that and John was punching my mum, [upon enquiry], I saw this happen, I don't like to talk about it, John said sorry guys, she's got a big mouth. She was close to leaving him and he said something and she changed her mind. I don't like the cottage, a fight usually starts at the cottage.

[72] Zakkary later recanted much of this statement, claiming that he was mad at his mother and Mr. Brophy at the time. But he did not deny seeing the two adults hit each other on at least one occasion (a somewhat different narrative than the one where Mr. Brophy was the sole aggressor). Zakkary stated that he now wants the couple to stay together.

[73] Ms. Haroon wondered whether the child's recantation resulted from Carey speaking to him. She noted that his second set of responses seemed to echo those of the mother. This suggestion makes sense in light of the fact that both Carey and Mr. Brophy have admitted to speaking to the child about the conflict that led to this litigation. Carey has even solicited Zakkary's advice about her relationship with Mr. Brophy.

[74] Another aspect of Zakkary's exposure to adult conflict is the fact that he has been drawn into the conflict between his parents. As set out above, Carey and Mr. Brophy have often spoken to the child about his custodial wishes. There is reason to believe that they have influenced him. I have not been presented with any evidence that Thomas has done the same.

[75] In addition, the child continues to experience long and unpredictable periods when he is simply not allowed to see his father. On other occasions, as Ms. Haroon pointed out, Carey will unilaterally cancel a visit if Zakkary indicates some reservation about it. That being said, Zakkary was clear in telling Ms. Haroon that he enjoyed his time with his father and wanted it to continue. The access denial was clearly Carey's sole responsibility.

[76] Carey admits that her access denial is wrong and that it reflects her anger at Thomas.

[77] Ms. Haroon also pointed out that Thomas has experienced difficulties accessing Zakkary's school records. Carey has stubbornly refused to list him as a parent in those records. Similarly he has been unable to access the Halton CAS's records about his son.

[78] Ms. Haroon stated that she has no concerns about Thomas' parenting plan. She also has no concerns about his relationship with Ms. Carter. She will be a support for him.

Review of Pleadings and Prior Endorsements

[79] A review of the pleadings and prior endorsements in this file appears to confirm some of the concerns raised by the father and Ms. Haroon. In particular:

a. Carey's answer, prepared by her previous counsel, was issued on March 10, 2015. The pleading listed her address as 975 Syscon Road, unit 104, Burlington, Ontario.

b. Less than a month later, on April 7, 2014, Zisman J. ordered on consent that the father exercise access every other weekend, with pick-up and delivery of Zakkary to take place at "…the mother's residence in Hamilton, Ontario."

c. In her November 28, 2014 Notice of Change of representation, the mother provided an address for service in Burlington, Ontario.

d. On January 12, 2015 Starr J. of this court wrote in her endorsement, following a settlement conference, "[t]he mother is looking for housing, but it may be that she will have to move to Burlington to accept housing. She is also looking for a job. Both of these things, she says, may mean we need to review the parenting plan [in the OCL interim report]. Currently she is in a shelter." In order to offer him a consistent address for service, Starr J. ordered that Thomas may serve Carey at her father's home,

e. On April 28, 2015, at the return of a settlement conference, Carey sought leave to move with the child from Cambridge to Hagar, Ontario (a location between North Bay and Sudbury; approx. 450 km. from Cambridge). Starr J. ordered that the mother may not change the child's place of residence from his school catchment area in Cambridge or change his school without a court order.

f. On June 16, 2015, Starr J. refused the mother's urgent motion to move the child to Hagar Ontario. She continued the terms of the April 28, 2015 order. She ordered the mother to serve and file an affidavit setting out a detailed plan of where she planned to live with the child pending trial. Starr J. ordered her to pay costs of the motion of $1,900.00 at the rate of $100.00 per month. No payments have been made.

g. On June 23, 2015 Starr J. granted a consent order allowing the mother to make one further move, to Binbrook, Ontario (which is approximately 60 km. from Cambridge). She was prohibited from moving Zachary or changing his school again without a further court order. Starr J. noted that the mother failed to serve and file her detailed plan, as previously ordered. Instead Carey attended court with a sheet of paper that contained her new intended address.

h. On February 23, 2016 both settlement and trial management conferences in this proceeding took place. The former took place before Starr J. and the latter before me. I arranged for both to be scheduled on the same date because the father had been incurring costs arising from the mother's unpreparedness for previous court attendances. While Starr J. had ordered costs against Carey, those costs had not been paid. They were not likely to be paid before trial because of the mother's financial circumstances. The mother failed to attend either February 23, 2016 conference. Mr. Brophy called the court to say that she had been taken to the hospital that day. Both conferences were put over to March 16, 2016.

i. On March 16, 2016 the mother explained her non-attendance on February 23, 2016. She told me that she had been in the hospital because of a "mental breakdown". She claimed to be unable to provide a record of the hospital attendance. Both Starr J and I ordered her to pay the father further costs of $500.00 for each of the settlement and trial management conference missed. Payment was deferred to a date to be determined at trial.

Law

[80] This court's jurisdiction to deal with the issue of custody is found in the Children's Law Reform Act ("CLRA"). Despite the fact that the parties separated over ten years ago, there is no final order for Zakkary's custody. Accordingly, section 21(1) of the CLRA is applicable here. It allows, "[a] parent of a child or any other person" to "apply to a court for an order respecting custody of or access to the child …"

[81] Pursuant to CLRA s. 24 (1), the merits of an application for custody or access will be determined by the best interests of the child. CLRA s. 24 (2) sets out that a court shall consider all of the child's needs and circumstances in order to determine his or her best interests. They include:

(a) the love, affection and emotional ties between the child and,

(i) each person entitled to or claiming custody of or access to the child,

(ii) other members of the child's family who reside with the child, and

(iii) persons involved in the child's care and upbringing;

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

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

(d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;

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

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

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

(h) the relationship by blood or through an adoption order between the child and each person who is a party to the application.

[82] Determining what is in the best interests of a particular child is specific to the circumstances of that child and family. As McLachlin C.J. noted in Gordon v. Goertz:

[e]ach case turns on its own unique circumstances and the only issue is the best interests of the child in the particular circumstances of the case.

The focus is on the best interests of the child, not the interests and rights of the parents.

[83] While this is an application at first instance rather than a motion to change, I have to be acutely aware of the status quo. Carey has been Zakary's primary caregiver in the ten years since his birth. As Ricchetti J. pointed out in Jackson v. Arthur:

The courts have traditionally given weight to the parenting arrangements in place at the time of the court's determination of the issue, be it at the interim stage or the final stage. Generally, courts are reluctant to change existing child care arrangements that are working to a child's benefit. See N. (M.) v. B. (M.).

[84] That being said, Ricchetti J. adds that:

… the status quo is only one factor to consider in the context of the best interests of the Children.

[85] The comments of (Bora) Laskin J.A., 46 years ago in Papp v. Papp, remain true today. He stated that when the court considers a change of a custodial status quo, whether at a motion or at trial:

It may be taken as a working rule that evidence to warrant an order for interim custody must more cogently support disturbance of the de facto situation than evidence to support an order for custody after trial on the merits. But, as in custody after trial so in respect of interim custody, the welfare of the children is the paramount consideration; and any difference in the required weight of evidence is a matter of degree and not of kind. The conduct of the parties inter se may not as such have any bearing on custody, let alone interim custody; but if it offers any assistance on how the children are likely to fare in their material and moral upbringing in the hands of the one parent or the other, it has relevancy.

[86] Nonetheless, as Budgell J. of this court concluded after a review of the case law:

…where a custodial parent acts inappropriately and continues to act inappropriately, serious consideration should be given to changing custody.

[87] As Zisman J. of this court points out, the principle of maximum contact, enshrined in the federal Divorce Act but not specifically articulated in the CLRA, applies to cases under that provincial legislation. As she added:

It is well accepted that it is in a child's best interests to have a loving and meaningful relationship with both parents. A child should be given the opportunity to know the non-custodial parent and to be a part of that parent's life and to have as much contact as is consistent with his best interests.

[88] In Weare v. Naumann, P.T. Bishop J. of this court found that a disrespect for court orders and a history of unreasonable decisions, such as moving a child or entering into a relationship to live out a "fairy tale life", are reasons to change a custodial status quo.

[89] Zakkary's views and preferences favour a continuation of the status quo as he desires it: primarily living with his mother and step-brother, Zaiden, seeing his father regularly on weekends and not moving any more.

[90] In Figliano v. Figliano, Mesbur J. made clear that the custodial views and preferences of three children between 7 and 11 years of age are not determinative. They may not even reflect the child's true wishes. They are just one factor for the court to consider in making its decision. As she wrote:

I want to make clear at the outset that the children do not have to choose which parent to live with. That is not their job. It is their parents' responsibility to make that decision, in their best interests. When their parents cannot agree, then the responsibility falls to the court. My role is to take on that task, and to make the decision of what is best for the children. Their wishes are only one factor to consider. What children say they want is not necessarily what is best for them? What children say they want does not necessarily reflect their real wishes. It is important that both of the parents, the children, and both extended families understand this.

Analysis of Zakkary's Best Interests

[91] Mesbur J.'s comments are particularly apposite here. Ten year old Zakkary is not old enough to realize that neither parent could fulfill his wishes. Even if he were to remain with his mother, he would still have to move and change schools at least one more time, and likely more than that.

[92] To put it bluntly: if Zakkary were to remain with his mother, there is a strong possibility that he will continue his unhappy life of itinerancy. Carey's relationship with Mr. Brophy is not a stable one. The couple has broken up three times in the last year and a half or so. The most recent breakup came six weeks prior to the commencement of the trial. At that time, Mr. Brophy said many damaging things about the mother and her ability to care for her children.

[93] Further, if history is any guide, Zakkary's desired access to his father will remain inconsistent. The access denial has continued apace even after Ms. Haroon's report was released. Zakkary can also expect to witness renewed significant adult conflict between his mother and Mr. Brophy. His opinion on adult issues will again be solicited.

[94] Yet, like a gambler laying a last high stakes bet, Carey is pushing all of her chips into the middle on the Caister Centre plan. If her number does not come in, she and her two children will be left metaphorically, if not literally, out on the street. Recall that Carey plans to initially live with Mr. Brophy as a cohabitee for two years before they marry. That would give her no possessory rights to live in the Caister Center property should Mr. Brophy wish her and the children to leave. There is nothing that I can do to prevent that Las Vegas fate for Zaiden, but Zakkary has another option.

[95] It cannot be forgotten that Zakkary has witnessed violence between Carey and Mr. Brophy. Under CLRA s. 24 (4) I am required to consider whether any person who may be placed in the role of a parent has at any time committed violence or abuse against his or her spouse or the parent of the child to whom the application relates. Here there is reason to believe that Mr. Brophy, who may be placed in a parenting role towards Zakkary, has committed violence or abuse against his mother. It may be that both Carey and Mr. Brophy have been violent with each other.

[96] I am also concerned that Zakkary will find himself stuck in the middle should Carey's relationship with Mr. Brophy disintegrate in Caister Centre. He has seen too much, been consulted too much, and been dragged into too many adult situations while in the care of his mother. Following Mesbur J. in Figliano, It is my role to make the decision that will best protect him from those possibilities.

[97] I am not blind to the fact that if Zakkary were to be placed with his father, he would also undergo a profound change. But he would likely not have to move again. He would have a more stable life than the one he experienced and can anticipate with his mother (and Mr. Brophy). Zakkary's father would allow him to see his mother. There is no reason to believe that he will be dragged into adult situations before his time. He will likely have a better school attendance record that he has amassed to date.

[98] In conclusion, I find that it is in Zakkary's best interests that he be placed into the sole custody of his father. For that reason I grant Thomas sole custody of Zakkary, subject to the conditions set out below.

Child Support

[99] I must deal with two child support issues: ongoing support to be paid by Carey to Thomas and retroactive support that may be owed to Carey by Thomas.

[100] My jurisdiction to award ongoing child support arises from the Family Law Act ("FLA") and the Child Support Guidelines ("CSG"). Section s. 31 (1) of the FLA states

31. (1) Every parent has an obligation to provide support for his or her unmarried child who is a minor or is enrolled in a full time program of education, to the extent that the parent is capable of doing so.

[101] The calculation of child support is governed by the CSG. Section 3 (1) of the CSG states that unless otherwise provided for in the CSG, an order for child support is to be made in accord with the applicable table, and s. 7. No claim is made for such expenses in this proceeding.

[102] Thomas is asking me to impute income to Carey for child support purposes. She earns virtually no income. According to her latest tax return prior to the commencement of trial, her 2014 income was approximately $7,000.00. Carey expects that her 2015 income was virtually the same. She has chosen to be to be an unemployed stay at home caregiver to her two children. She does not appear to be receiving public assistance.

[103] As the Request to Admit states, Carey is capable of working on a full time basis. She previously worked as a bus driver for the Regional Municipality of Waterloo.

[104] Thomas relies on s. 19 (1) (a) of the CSG, which allows the court to impute income to a payor parent as follows:

19. (1) The court may impute such amount of income to a parent or spouse as it considers appropriate in the circumstances, which circumstances include,

(a) the parent or spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of any child or by the reasonable educational or health needs of the parent or spouse;

[105] Thomas argues that by giving up her job as a bus driver, a job in which she previously earned over $50,000.00 per year, Carey has chosen to become under-employed or unemployed. Carey answers that she has to date chosen to stay at home to care for her children in order to meet their needs.

[106] Until now, the issue was moot because Carey was the child support recipient. Since she was not making a claim for any special and extraordinary expenses, her income or ability to earn income was irrelevant. That situation is changed in light of the change of custody that I am ordering.

[107] In Drygala v. Pauli, the Ontario Court of Appeal described the imputation of income as

... one method by which the court gives effect to the joint and ongoing obligation of parents to support their children. In order to meet this legal obligation, a parent must earn what he or she is capable of earning.

[108] As Chappel J. of the Superior Court Family Division pointed out in Szitas v. Szitas:

The Ontario Court of Appeal has held that in determining whether to impute income on the basis that a party is intentionally underemployed or unemployed pursuant to section 19(1)(a) of the Guidelines, it is not necessary to establish bad faith or an attempt to thwart child support obligations. A parent is intentionally underemployed within the meaning of this section if they earn less than they are capable of earning having regard for all of the circumstances. In determining whether to impute income on this basis, the court must consider what is reasonable in the circumstances.

[109] In reviewing the case law, Chappel J. cites seven principles that apply to the imputation of income to a support payor:

1. There is a duty on the part of the payor to actively seek out reasonable employment opportunities that will maximize their income potential so as to meet the needs of their children.

2. Underemployment must be measured against what is reasonable to expect of the payor having regard for their background, education, training and experience.

3. The court will not excuse a party from their child support obligations or reduce these obligations where the party has persisted in un-remunerative employment, or where they have pursued unrealistic or unproductive career aspirations. A self-induced reduction of income is not a basis upon which to avoid or reduce child support payments.

4. If a party chooses to pursue self employment, the court will examine whether this choice was a reasonable one in all of the circumstances, and may impute an income if it determines that the decision was not appropriate having regard for the parent's child support obligations.

5. When a parent experiences a change in their income, they may be given a "grace period" to adjust to the change and seek out employment in their field at a comparable remuneration before income will be imputed to them. However, if they have been unable to secure comparable employment within a reasonable time frame, they will be required to accept other less remunerative opportunities or options outside of the area of their expertise in order to satisfy their obligation to contribute to the support of their children.

6. Where a party fails to provide full financial disclosure relating to their income, the court is entitled to draw an adverse inference and to impute income to them.

7. The amount of income that the court imputes to a parent is a matter of discretion. The only limitation on the discretion of the court in this regard is that there must be some basis in the evidence for the amount that the court has chosen to impute.

[110] Amplifying on Chappel J.'s seven points, while I have broad discretion to impute income to a payor, that discretion is not untrammeled. As the Ontario Court of Appeal stated in Drygala v. Pauli:

Section 19 of the Guidelines is not an invitation to the court to arbitrarily select an amount as imputed income. There must be a rational basis underlying the selection of any such figure. The amount selected as an exercise of the court's discretion must be grounded in the evidence.

[111] In Drygala v. Pauli the Ontario Court of Appeal set out the following three questions which should be answered by a court in considering a request to impute income under s. 19 (1) (a) of the CSG:

1. Is the party intentionally under-employed or unemployed?

2. If so, is the intentional under-employment or unemployment required by virtue of his reasonable educational needs?

3. If not, what income is appropriately imputed?

[112] Here there is no doubt that Carey is intentionally under or unemployed. She is capable of earning more than she presently makes. She admitted as much in her evidence. She stated that she has chosen to stay at home to care for her children because she prefers to do so. It may have made sense for her to do so in the past when she had defacto custody of both children, each of her children was younger. Child care for two children would have been expensive, even if subsidized.

[113] But Carey will no longer have child care responsibilities for Zakkary. Zaiden is six years old, an age at which he now attends full day school. There is no need for her to stay at home rather than work. In her owns words, one of her mistakes was to give up her employment. While she has spoken of staying at home to care for her children, she has also spoken of going into business with Mr. Brophy (although neither party offered details of what that business may be or how much she could earn from it).

[114] The second part of the test set out in Drygala v. Pauli is irrelevant because Carey is not claiming an educational exemption to her obligation to support her son.

[115] In exercising my discretion to impute income to Carey, I have considered the legal factors set out above, Carey's employment history, and Thomas' history of intentional underpayment of child support to Carey described below. In light of all of those factors, I find that Carey will require at least six months to find a remunerative job. I offer her a grace period up until December 31, 2016.

[116] Thereafter, commencing January 1, 2017, I impute to her a minimum wage income of $22,230.00 per year. She has not worked as a bus driver for years and has chosen to give up even her driver's license. She shall be responsible for the payment of table support of $178.00 per month to Thomas based on that income unless she actually earns more income than that. Because Thomas is not making any claim under CSG s. 7, I am not making any calculation for special and extraordinary expenses.

[117] Carey's ongoing support obligations are subject to any set-off regarding retroactive support determined below. The issue of whether further income should be imputed to Carey based upon an ability to earn greater income may be reviewed by Thomas two years after the date of this order.

Retroactive Child Support

[118] Carey claims retroactive child support. The court's jurisdiction to order retroactive support arises from s. 34 (1)(f) of the Family Law Act, which states:

34. (1) In an application under section 33, the court may make an interim or final order,

(f) requiring that support be paid in respect of any period before the date of the order;

[119] From the time of separation until Zisman J. make her temporary support order of April 7, 2014, Thomas paid only $300/month to Carey for the support of Zakkary. This represented a significant underpayment of support. His only explanation was that he was paying the same amount to the mother of his other child.

[120] In reviewing Thomas' annual income and the amount of table support that Thomas should have paid to Carey under the CSG, it is clear that Thomas has significantly underpaid support in the years following separation. He should have paid support as follows:

Year	Income	Annual Table Support	Amount Paid	Underpayment
2006	$50,075	$5,544	$3,650	$1,894
2007	$52,252	$5,796	$3,600	$2,196
2008	$56,610	$6,300	$3,600	$2,700
2009	$60,706	$6,768	$3,600	$3,168
2010	$58,293	$6,480	$3,600	$2,880
2011	$64,552	$7,164	$3,900	$3,264
2012	$65,788	$7,212	$3,600	$3,672
2013	$69,955	$7,656	$4,001	$3,655
2014	$70,832	$7,752	$7,560	$192
2015	$74,555	$8,232	$7,560	$672
2016	$74,555	$3,430	$3,150	$280
Total Underpayment				$25,173

[121] The calculation set out above sets out Thomas' underpayment of support based on his income. It does not settle the issue of what, if any, retroactive support Thomas actually owes to Carey. In D.B.S. v. S.R.G.; Laura Jean W. v. Tracy Alfred R.; Henry v. Henry; Hiemstra v. Hiemstra ("DBS"), the Supreme Court of Canada set out the factors that a court should take into account in determining retroactive support applications.

[122] Among the governing principles for the awarding of retroactive support are the following:

a. Retroactive orders are not exceptional. While the propriety of such orders will not be presumed, they will not be found only in rare cases either.

b. The court shall consider all relevant factors to determine whether a retroactive award is appropriate in the circumstances.

c. Unreasonable delay in requesting an increase in support will militate against a retroactive order, while blameworthy conduct by the payor will have the opposite effect.

d. Generally, when retroactive support is ordered, the award should be retroactive to the date when the recipient gave the payor effective notice of his or her intention to seek an increase in support payments. This date represents a fair balance between certainty and flexibility.

e. Effective notice is defined as any indication by the recipient parent that child support should be paid, or if it already is, that the current amount needs to be renegotiated. All that is required is for the subject to be broached. Once that has been done the payor can no longer assume that the status quo is fair.

f. Once the issue is raised, the recipient must still be responsible in moving the discussion forward. If he or she does not do so, legal action should be contemplated. A prolonged period of inactivity after effective notice may indicate that the payor's reasonable interest in certainty has returned. Thus, even if effective notice has already been given, it will usually be inappropriate to delve too far into the past.

g. In determining whether to make a retroactive award, the payor's interest in certainty must be balanced with the need for fairness to the children receiving the support and flexibility towards changed circumstances.

[123] In a nutshell, the court set out four key factors for the consideration of a request for retroactive support. There is no priority to the following considerations, none of these factors are decisive and should all be considered. Those factors are:

1. Reasonable excuse for why support not considered earlier.

2. Conduct of the payor parent.

3. Circumstances of the child.

4. Hardship occasioned by the retroactive order.

Factor 1: Has the Recipient Parent Supplied a Reasonable Excuse for Delay?

[124] The circumstances that surround the recipient's choice (if it was indeed a voluntary and informed one) not to apply for support earlier will be crucial in determining whether a retroactive award is justified. Delay in seeking child support is not presumptively justifiable.

[125] At the same time, courts must be sensitive to the practical concerns associated with a child support application. Courts should not hesitate to find a reasonable excuse for delay where the recipient spouse:

• harbored justifiable fears that the payor parent would react vindictively to the application to the detriment of the family;

• lacked the financial or emotional means to bring an application; or

• was given inadequate legal advice.

[126] On the other hand, the recipient will lack a reasonable excuse where they knew higher payments were warranted but chose to do nothing about it. They are inviting the payor to believe that his/her obligations have been met.

[127] Delay in seeking an increase in support is a relevant factor for the court's consideration. Parents should not be encouraged to delay seeking appropriate amounts for child support.

[128] Absent a reasonable excuse, uncorrected deficiencies on the part of the payor parent that are known to the recipient parent represent the failure of both parents to fulfill their obligations to their children.

[129] The difference between a reasonable and unreasonable delay is often determined by the conduct of the payor. If he or she informs the support recipient of income increases in a timely manner, and does not pressure or intimidate the recipient, he or she will have gone a long way to showing the delay was unreasonable.

[130] Further, delay in seeking the proper quantum of support is only one factor for the court's consideration. Support is the right of the child, and the child should not be punished for the inaction of the parent.

Factor 2: The Conduct of the Payor

[131] This factor looks to the issue from the opposite perspective. Just as the payor's interest in certainty will be most compelling when the recipient has acted unreasonably in seeking an increase, it will be least compelling when that parent has engaged in blameworthy conduct.

[132] The court should take an expansive view of what constitutes blameworthy behaviour. Blameworthy behaviour is anything that privileges the payor's own interests over the child's right to an appropriate amount of support.

[133] The Supreme Court of Canada considered the following factors to be relevant to a determination of blameworthy conduct:

a. No level of blameworthy behaviour by a payor parent should be encouraged.

b. A payor who knowingly avoids or diminishes his/her support obligation to his/her children should not be allowed to profit from such conduct.

c. The payor cannot mislead a recipient into believing that the child support obligations are being met when they aren't.

d. Failure to automatically increase support is not necessarily blameworthy conduct.

e. A reasonably held belief that the payor is meeting his/her obligations is a good indicator that there is no blameworthy conduct.

f. The more material the payor's increase in income, the less likely the payor will be presumed to believe he/she is meeting his/her obligations.

g. Positive behavior, that fulfills a support obligation, such as voluntary support contributions and paying for a child's activities, can also militate against a retroactive order;

Factor 3: Circumstances of the Child

[134] A retroactive award is a poor substitute for an obligation that was unfulfilled at an earlier time. While parents have an obligation to ensure that proper support is paid when the child needs it most, that obligation is not always fulfilled with retroactive orders. Thus courts should consider both the past and present circumstances of the child.

[135] This approach is child centric: it looks to the past and present needs of the child, not the parents. Thus a child who went through hardship due to a lack of support may be compensated, while one who nonetheless enjoyed all of the advantages of proper support may not. In this case I will consider the issue from Zakkary's perspective; that is how such an award will affect him.

Factor 4: Hardship for the Payor

[136] Courts must be aware of the fact that retroactive support awards disrupt the payor's management of their financial affairs in ways that prospective awards do not. They are based on past rather than present income. The payor's circumstances may have changed. Thus courts should craft the order to minimize hardship.

[137] The child centric nature of the consideration of retroactive support is also manifested in the consideration of such an award on the payor's children from a second family.

Determining the Quantum of Retroactive Support

[138] Once a court decides to make a retroactive award, it must then make two determinations:

• the date to which the award is retroactive, and

• the amount that would adequately quantify the payor's deficient obligations during that time.

[139] Absent blameworthy conduct, the court should generally make the award retroactive to the date effective notice was given to the payor. Where the payor engaged in blameworthy conduct, the date when circumstances changed materially will be the presumptive date of the award. It will then be open to the court to determine the quantum.

[140] Effective notice is defined as any indication by the recipient parent that child support should be paid, or if it already is, that the current amount needs to be renegotiated. All that is required is for the subject to be broached. Once that has been done the payor can no longer assume that the status quo is fair. However once the issue is raised, the recipient must still be responsible in moving the discussion forward. If they do not, legal action should be contemplated.

[141] The court should not be discouraging informal requests to settle by requiring formal notice or a court action.

[142] Absent blameworthy conduct, it will usually be inappropriate to make a support award retroactive to a date more than three years before formal notice was given to the payor.

Applying the DBS Factors

[143] Applying the DBS factors to the evidence in this case, Carey has testified that she was initially of the view that Thomas was underpaying support. However she appears to have let it go while she was working. From the evidence, she worked until 2012.

[144] Carey testified that when she raised the issue of increased support, Thomas threatened to take Zakkary away from her. She frankly admits that she has no independent evidence that she requested any increase in support before the commencement of this proceeding. However she did threaten to withhold access unless support was increased in or about July, 2013.

[145] Thomas states that Carey never requested increased support until he started this proceeding. He then provided full disclosure and began to pay an agreed upon table support amount. He states that Carey's failure to produce evidence of a formal request for support should be taken as acquiescence to the $300.00 per month period.

[146] In performing the balancing process mandated by DBS, I have to consider some other factors that point to both blameworthy conduct and Carey choosing not pushing the issue for a number of years after separation.

[147] Thomas' income increased a great deal over the years. He was, in his own words, a "workaholic" who placed a priority on his employment. That attitude likely was a key to the increase in his income. In 2006, when the parties separated, Thomas was earning $50,075.00 per annum. He underpaid child support by $1,894.00 that year. In 2013, when Carey began to withhold access unless she received increased support, Thomas earned $69,955.00, or approx. 40% more than he did in 2006. He underpaid support by $3,655.00 that year, or almost double the underpayment of support in 2006.

[148] Yet Thomas had offered Carey no disclosure from 2006 until the court proceeding began in 2014.

[149] For some of the time that Thomas was underpaying child support, Carey and Zakary were living in poverty. I recognize that Carey and Zakkary would not have been lifted from poverty had Thomas properly met his support obligations. Their financial state of affairs owed more to Carey's choices than Thomas' underpayment. But Zakkary was deprived of resources while Carey was underpaid support.

[150] There can be no doubt that Carey was clear about her desire for increased support by July, 2013. Her actions showed that she believed that she was being underpaid support. Again, her conduct in withholding access was wrong. But so too was Thomas' failure to provide disclosure or pay proper child support.

[151] Carey offered effective notice of her desire for increased support in July, 2013. Thomas engaged in blameworthy conduct in failing to provide disclosure of his increasing support to Carey. Further he insisted on setting an arbitrary support figure based on his support for his first child, which was likely based on a lower figure than his 2006 income of $50,075.00.

[152] Further I have to consider that any retroactive support order will affect Zakkary. If Thomas is required to make a large retroactive support payment to Carey, Zakkary will not benefit. In fact, Thomas will have less income available for Zakkary. The child, who was already deprived by the failure to pay proper support at the time it was due, will suffer again when the blameworthy behavior is made right.

[153] The order that I make below would have been somewhat different had I ordered that Zakkary remain with his mother. Yet I cannot ignore Thomas' blameworthy behavior or send out the message that such behavior will be rewarded.

[154] In considering all of the factors set out above, I set the date for Thomas to pay increased support to Carey at January 1, 2012, the approximate date that Carey appears to have become unemployed. Carey was open in saying that she was not willing to do anything about what she considered to be an underpayment of support until she stopped working.

[155] Using the figures in the chart above, I fix retroactive child support at $8,471.00. However I will not order Thomas to pay that amount to Carey as a lump sum at this time. Instead I will set off against this figure any costs that she may owe to him and any support that she will be obliged to pay to him.

ORDER

[156] Accordingly an order will go as follows:

1. Thomas will be entitled to sole custody of Zakkary.

2. Zakkary will remain in his present school, Parkway Public School, until the end of the present school year.

3. Thomas will not change Zakkary's home again without a further written agreement or court order.

4. Carey will be entitled to alternate weekend access, from Friday evening to Sunday evening (continuing to Monday evening if Carey's access falls on a long weekend). If the parties are unable to agree on appropriate times and places for access changeovers, I will make the decision.

5. Thomas will ensure that Zakkary's homework on an access weekend is placed in his backpack for that weekend. Each parent shall ensure that that Zakkary's homework is done when he is with that parent.

6. The parents will use a communication book in order to exchange important information about the child. It will be in Zakkary's backpack, and will remain there for this purpose.

7. Between now and the end of the summer school break, 2016, Thomas will take as much vacation and other time from work as he is capable of obtaining from his employer. He shall do so in order to spend a maximum amount of time with Zakkary.

8. Unless the parties agree otherwise in writing, each party will be entitled to up to three weeks of exclusive summer holiday parenting time with Zakkary in 2016. The other parent will not have access/parenting time with Zakkary during those exclusive parenting periods. Unless the parties agree otherwise in writing, that time shall not be for more than one week at a time. The balance of the summer of 2016 will have the regular schedule.

9. During these exclusive parenting periods, the other parent is to be provided with a contact telephone number. The other parent may call the child every other day while on holiday with one parent.

10. Summer holiday arrangements are to be made no later than May 31, 2016. The mother will have first choice of dates in 2016.

11. From 2017 onward, the parents will equally divide Zakkary's summer school holidays. Unless the parties agree otherwise in writing, that time shall not be for more than two weeks at a time.

12. For each summer, each party's summer holiday period shall begin on the Friday of a weekend that would be his or her regular weekend, and continue until the end of the applicable Sunday (or Monday if that parent's exclusive parenting period ends on a long weekend).

13. Neither party will speak ill of the other or allow their relatives or significant others to do the same about the other in the presence of Zakkary.

14. Thomas will consult in good faith with Carey about all major decisions concerning Zakkary's education and health. He will do so in a timely fashion, before any major decision is made. The parents will try to reach agreement, in the best interests of the child. If the parties are unable to agree on any of these issues, Thomas may make the decision without Carey's consent.

15. If the parties agree, Zakkary may be enrolled in extracurricular activities on the weekends, but only if both parties agree and undertake that they will take the child to the activities on their respective weekends, and will support the child's participation in the activity.

16. The parties will share the Christmas school break equally, with Thomas having Zakkary in the half with Christmas Eve and Christmas day in even numbered years, and Carey having that half in odd-numbered years.

17. Zakkary will spend March break with Thomas in odd-numbered years, and with Carey in even numbered years. Easter weekend will be spent with the parent whose regular weekend it is. If it is Carey's weekend, the weekend will begin with the child being picked up on the Thursday before Good Friday, and being returned to Thomas on the final evening of the long weekend.

18. Unless the parties agree otherwise, Zakkary will be with Thomas on Father's Day, and with Carey on Mother's Day, from 11:00 a.m. onward, regardless of whose weekend it would normally be.

19. I make no special arrangement for Zakkary to be with either parent on his or her birthday. Similarly I make no such arrangement with regard to Halloween.

20. Zakkary will spend his birthday according to the regular schedule. The other parent is encouraged to telephone him on his birthday, and make arrangements for a birthday celebration at an alternate time.

21. Carey is to have access to information about Zakkary's health and education. His doctors, dentists and teachers are directed to communicate directly with her, and provide her with all information she requests. She is to be kept informed about all events at the child's school and daycare, independently of Thomas. Carey is encouraged to attend these events.

22. Zakkary may be informed of my decision regarding custody and access, but not the reasons for my decision. He shall not be shown my reasons for this decision. Both parents will meet with him together (with no other support persons) to do so. A breach of this provision by either parent or anyone else will be treated as a very serious matter.

23. Thomas owes Carey retroactive child support of $8,471.00. This amount will be set off against any costs and ongoing child support owing by Carey to Thomas.

24. Commencing on January 1, 2017 and continuing on the first day of each subsequent month until further order, Carey will pay to Thomas child support of $178.00 per month, based on an imputed $22,230.00 per year. This amount will be set off against the amounts that Thomas owes to Carey for retroactive support, once the costs of this proceeding are determined. No payments shall be made until the set-off is completed.

25. The issue of Carey's ability to earn greater than an imputed minimum wage may be reviewed two years from today.

26. I may be spoken to regarding costs of this trial and the previous proceedings in which costs or the determination of the payment of costs was reserved to trial. I may also be spoken to in regard to the determination of the set off of retroactive child support set out above.

Released: May 6, 2016

Signed: "Justice Kurz"