Court File and Parties
Date: August 28, 2017
Court File No.: D53521/11
Ontario Court of Justice
Between:
J.J.G.
Applicant
-and-
J.D.S.
Respondent
Counsel
For the Applicant: Davine D. Burton
For the Respondent: Acting in Person
For the Child (Office of the Children's Lawyer): Karen Lindsay-Skynner
Hearing and Decision
Heard: July 17–20, 2017
Justice: S.B. Sherr
Reasons for Decision
Part One – Introduction
[1] This trial was about the parenting and support arrangements for the parties' 13-year-old daughter (the child).
[2] Both parties have brought motions to change the parenting terms contained in the final order of Justice Robert Spence, dated November 10, 2011 (the original order). The original order granted sole custody of the child to the applicant (the mother). The respondent (the father) was granted access on alternate weekends and on Tuesday evenings.
[3] The issue of child support was not finalized in the original order. Accordingly, support is still being decided pursuant to the initial application issued by the mother on March 11, 2011.
[4] The father asks for a shared parenting time order, with the child spending more time with him than the mother. He also proposed detailed incidents of custody and terms of access. In his closing submissions, the father submitted a draft order seeking (for the first time), custody of the child.[1]
[5] The father also asks that the mother pay for the thrown away costs of the child's birthday party that didn't take place in 2013 because he was denied access.
[6] The mother is prepared to increase the father's parenting time with the child. She proposes that the time on the father's weekend visits be extended so that he can pick up the child from school on Fridays. She has proposed extending the weekends by one day if there is a professional development day at school or a statutory holiday. She proposed additional holiday and summer parenting time for the father.
[7] The mother asks that any mid-week access take place where she and the child now live, in Alliston Ontario. She wants all access exchanges to take place in Alliston. The mother also sought a detailed claim for incidents of custody and terms of access.
[8] The mother asked that child support be adjusted in accordance with the father's income since her application was issued in 2011. This request included claims for special and extraordinary expenses pursuant to section 7 (section 7 expenses) of the Child Support Guidelines (the guidelines).
[9] Counsel for the child advised the court that the child wants to continue to live with her mother in Alliston. She would like to see her father on alternate weekends, but wants to be home by Sunday at 8 p.m. She only wants to exercise mid-week access with the father if it takes place in Alliston and does not interfere with her scheduled activities. She is open to additional holiday time with the father. She wants to be kept out of the parental conflict.
[10] Prior to their closing arguments, the parties reached partial minutes of settlement. They resolved the issues of the table amount of child support owed by the father to the mother pursuant to the guidelines since September 1, 2015, ongoing child support, the parties' incomes for the purpose of calculating their respective contributions to section 7 expenses and a few incidents of custody and terms of access. The terms of this consent will be incorporated into the final order.
[11] Most of the parenting issues and the issue of payment of section 7 expenses remained outstanding.
[12] The parties agreed to a focused hearing pursuant to subrule 1 (7.2) of the Family Law Rules. They agreed that the mother and father would each have up to 8 hours to present their case and counsel for the child would have up to 4 hours to present her case. This time included:
a) Opening and closing statements.
b) Direct evidence for their cases.
c) Cross-examination of the other party's witnesses.[2]
d) Re-examination of their own witnesses.
[13] During the trial, the father sought permission for some additional time to present his case and this request was granted.
[14] The court heard evidence from the parties, the child's grandmothers, the mother's current partner, two daycare workers, a social worker from the Children's Aid Society of Toronto (the society) and a social worker from the Office of the Children's Lawyer. A report prepared by the Office of the Children's Lawyer pursuant to section 112 of the Courts of Justice Act (section 112 report), dated May 15, 2014, was filed. No one sought to cross-examine the social worker who prepared the report. On consent, the notes and records of a counselor who worked with the father and the child during 2016 were filed. No one sought to examine the counselor.
[15] The remaining issues for the court to decide are:
a) Has there been a material change in circumstances affecting the best interests of the child since the original order was made that warrants changing it?
b) If so, what parenting order is in the best interests of the child?
c) What expenses claimed by the parties are eligible section 7 expenses?
d) What should the parties' monthly contributions be to the child's eligible section 7 expenses?
Part Two – Background Facts
[16] The mother is 33 years old. She is employed as a personal support worker. She presently lives with the child, her 8-year-old son from another relationship, her partner of 3 years and her mother (the maternal grandmother) in Alliston, Ontario.
[17] The father is 35 years old. He is employed as a plate maker for a graphics company. He presently lives with his mother (the paternal grandmother) and sister in Toronto, Ontario.
[18] The father has another child, age 2. The father presently is not seeing this child.
[19] The parties met in high school. They did not live together.
[20] The child has always primarily resided with the mother.
[21] In 2006, the father was charged with multiple criminal offences with respect to the mother. In 2008, after a trial, the father was convicted of five offences, including assault, threatening, theft under $5,000 and two Fail to Comply with recognizance. The father was restrained from contacting the mother for 3 years.
[22] The mother issued an application for custody and child support on March 11, 2011. The father filed an Answer/Claim seeking joint custody of the child and extensive access to her.
[23] On September 8, 2011, Justice Spence made temporary orders granting the father access to the child on alternate weekends and Tuesday evenings, permitting the mother to obtain a passport for the child without the father's consent, child support of $142 each month starting on September 1, 2011 and an order that the father pay one-third of the child's section 7 expenses.
[24] On November 10, 2011, Justice Spence made the original order.
[25] The parties both agreed that they were in constant conflict after the original order was made. The police were often called.
[26] On April 18, 2012, Justice Harvey Brownstone changed the original order on a temporary basis. He required that all access exchanges take place at a police station and that the father's visit would be cancelled if he was more than 10 minutes late.
[27] The father was very unhappy with this decision. He advised the mother that he would not be exercising access. He went almost one year before he decided to see the child pursuant to the original order. The father testified that he saw the child a few times over that year, when agreed to by the mother.
[28] On March 11, 2013, the father notified the mother that he would resume his weekend access on the child's birthday weekend in April, 2013. The mother did not give the father access and the father called the police.
[29] The mother moved to terminate or change the father's access. This motion was dismissed by Justice Brownstone on May 24, 2013.
[30] The relationship between the parties was toxic in 2013. The police were often involved. The society became involved after being called by the child's school. The child would often become upset and cry when she had to see the father. She would sometimes refuse to see the father and visits were missed.
[31] The father moved for an order to have the child apprehended from the mother's care. Justice James Nevins adjourned this request on October 11, 2013 and ordered the father to pay the mother $750 costs.
[32] An order was made referring the case to the Office of the Children's Lawyer on December 3, 2013. They assigned a social worker who prepared the section 112 report.[3]
[33] The section 112 report recommended that the father have access with the child on alternate weekends from Saturday at noon until Sunday at noon and alternate Wednesday overnights with additional holiday time. This recommendation was not implemented.
[34] The section 112 report and the evidence of the society social worker revealed that the child had a difficult relationship with the father in 2013 and 2014. The child did not want to spend overnights with him. She expressed that she felt that the father did not listen to her, didn't consider her feelings and was often harsh with her. She told the professionals that she was often embarrassed by the father's behaviour.[4] She expressed being bored at visits. She advised the social worker who prepared the section 112 report that she does not love her father and does not feel close to him.
[35] The evidence of these professionals also made it clear that the child was being exposed to a high degree of conflict by both parents and she felt caught in the middle. Both parents spoke negatively about the other in the child's presence and this distressed her.
[36] The section 112 report set out that the father failed to take any responsibility for his strained relationship with the child, discounted the child's feelings and expressed his feeling that the child's account of his relationship was false.
[37] The society worker testified that she cautioned the mother about speaking about adult matters in the presence of the child.[5] Otherwise, she had no parenting concerns about her. She stated that she had parenting concerns about the father. She found him to be rigid and unable to acknowledge the difficulties in his relationship with the child.
[38] The father called the child's daycare supervisor from 2013 to 2015 as a witness at trial. She testified that the child would often become moody when it was time to go with the father and she had to be encouraged by daycare staff to attend access.
[39] The parties had several court appearances in 2014 and 2015 and couldn't resolve this matter. Their relationship remained poor. Access continued to be problematic. Many visits were cancelled by the mother. Many were not made up.
[40] On December 22, 2015, the parties reached a consent that was incorporated into a temporary order by Justice Melanie Sager. Some of the terms of the order were:
a) Exchanges would take place at the mother's home.
b) The Tuesday access was extended to be from 5:30 p.m. until 8 p.m.
c) Both parties were to take the child to her previously scheduled activities.
d) The parties were to communicate with each other about changes to the parenting schedule through email or text messaging.
e) The parties were to be flexible when necessary to make changes to the parenting schedule that were in the child's best interests.
f) The parties were to discuss what extra-curricular activities the child should be enrolled in and agree on same if they fell on both party's parenting times or if they expected contribution from the other parent.
g) In satisfaction of the mother's claim to a retroactive increase in table child support, child support arrears up to and including August 31, 2015 were fixed at $4,153.41.
h) Commencing on September 1, 2015, the father was to pay the mother temporary child support of $296 each month, based on an annual income of $34,409.36.
i) The father and the child would go to counseling. The mother was to facilitate this.
[41] The father and child attended for counseling in the spring of 2016. The sessions ended when the child no longer wanted to attend. The counselor recommended that the parents obtain counseling through Families in Transition. Neither parent did this.
[42] The following are some of the observations of the counselor in her notes and records:
a) The child was upset that her parents were not communicating well, asking her opinion and putting the other down.
b) The child and father both expressed that they have trouble with their communication in general.
c) The father and child appeared to have a close relationship.
d) The father was taking many steps to ensure the child feels supported and heard. He was motivated to improve his relationship with the child.
e) The child was very upset in the final session that she missed her 2016 birthday party because of access with the father.
[43] On March 29, 2016, Justice Sager increased the temporary monthly child support payment to $360, based on the father's reported income of $40,000.[6]
[44] In May, 2016, the Office of the Children's Lawyer agreed to provide counsel for the child pursuant to section 89 of the Courts of Justice Act.
[45] On May 16, 2016, the mother notified the father that she was moving with the child from Toronto to live in Alliston, Ontario.[7]
[46] The child remained in school in Toronto until the end of the school year and moved to Alliston over the summer.
[47] The mother did not move for permission to move to Alliston. The father did not bring a motion to court to prevent the move, or ask that the child's residence be returned to Toronto.
[48] The access exchanges have continued in Toronto. The mother testified that she has maintained her lease on her Toronto residence until the end of July, 2017. She wanted to make sure that she was able to obtain stable employment in Alliston before giving it up.
[49] Access has been problematic since the mother moved to Alliston. The mother has cancelled many Tuesday visits for a variety of reasons such as: illness of the child, bad weather and most frequently, conflicting activities of the child. Some weekend visits have also been missed. Many of the visits are cancelled with little notice.
[50] The parties communicate very poorly about access. Some of the missed visits are made up – some aren't.
[51] The father was charged with assault against his new partner in May, 2016. The father testified that the first day of a three-day trial in criminal court has been held. The next two court dates are scheduled for September, 2017.
[52] The father said that his bail terms permit him to have access to his other child through a Family Court order. However, the father has chosen not to exercise access with his other child since he was charged. He said that he will not seek access while this case and the criminal case are ongoing.
[53] The father does not pay child support for his other child. He said that he was advised by that child's mother that they do not need money from him.
[54] The father was also charged with impaired driving in June, 2016. That case is still before the criminal court.
[55] The parties' partial minutes of settlement, submitted prior to closing arguments, increased the father's guidelines table support payments starting on September 1, 2015 and fixed his support arrears, based on the guidelines table support he should have been paying from that date until July 31, 2017, at $3,989.[8] The parties agreed that the father will pay these arrears at the rate of $100 each month, starting on July 1, 2017.
[56] The parties agreed that the father will pay the mother ongoing guidelines table support for the child of $511 each month, starting on August 1, 2017, based on his 2016 income of $56,311.
Part Three – Material Change in Circumstances
[57] 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.
[58] The Supreme Court of Canada decision in Gordon v. Goertz, 19 R.F.L. (4th) 177 S.C.C. sets out a two-stage process for the court to conduct in motions to change custody or access as follows:
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.
[59] The parties agreed that there have been material changes in circumstances affecting the best interests of the child since the original order was made. The evidence supported this. These changes include:
a) The conflict between the parties has escalated since the date of the original order. There has been frequent police involvement with the family. The society became involved with the family in 2013 and 2014 due to parental conflict. The parties have been in constant litigation. The mistrust between the parties has deepened. The child has been distressed by this conflict.
b) There have been several changes to the parenting schedule since the original order was made.
c) The child has been living in Alliston for over a year.
d) The current parenting plan is not meeting the child's needs.
e) The child is now an adolescent and her needs have changed.
f) The child's views and preferences have changed.
[60] The court must next determine what order is in the best interests of the child.
Part Four – The Child
[61] Despite the conflict between her parents, the child is doing very well.
[62] The child was consistently reported by witnesses to be intelligent, friendly, confident and outgoing. Her school report card states that her compassion and witty sense of humour have been welcome additions to the classroom community and that she can be counted on to try and make all students feel welcome. It says that she is quick to encourage students in their efforts, offering them a reassuring comment to help set them at ease.
[63] The child is doing well academically and enjoys school. Her school attendance is excellent.
[64] The child has made many friends and appears to be thriving living in Alliston.
[65] The child has many interests. She enjoys baking and sewing. She is gifted athletically and is on many of her school's teams. She plays baseball, basketball and rugby. She is very good at gymnastics.
[66] The child attends a program in Toronto each Wednesday called Ladies on the Rise. This program provides young women with mentors and life-skills training. The young women meet community leaders and go on trips.
[67] In 2016, the Office of the Children's Lawyer appointed a social worker, Tracy Griffiths, to meet with the child and provide evidence to the court about the child's current views and preferences.
[68] Ms. Griffiths had several meetings with the child. She described her as strong, bubbly and confident, with an excellent sense of humour – "a lovely girl".
[69] Ms. Griffiths testified that the child's views were strong, consistent, clear and in her view, independent. She described the child as open, honest, frank and mature for her age.
[70] Ms. Griffiths said that the child did not like being caught in the middle of her parents' conflict. The child, she said, was very excited on two occasions in the past year when her parents got along well.
[71] The child told Ms. Griffiths that she is very happy living with her mother in Alliston. She has friends, likes her school and the activities she is involved in. The child does not want this to change.
[72] The child has asked that mid-week visits take place in Alliston. She already is in a car on Wednesdays for the Ladies on the Rise program in Toronto. She doesn't like the extra driving on Tuesdays and how late she gets back home on school nights.[9]
[73] The child has asked that the mid-week access be flexible. This is because the schedules for the teams she is on change. She does not want to miss team games or events. She is also very aware that the mid-week visits are a source of conflict for her parents.
[74] Ms. Griffiths said that the child is open to the father coming to her activities for the mid-week visits, but wants to be flexible about the time. The child is also open to extending the length of the mid-week visit as long as it takes place in Alliston.
[75] The child told Ms. Griffiths that she is open to additional holiday visits with the father, as long as her parents keep the Ladies on the Rise program in mind.[10] She would also like to attend a camp with her paternal cousins run by the Scott Mission. She attended this camp two years ago and enjoyed it.
[76] The child advised Ms. Griffiths that she would like to be home on weekend visits by Sunday at 8 p.m., to settle in before the school week. She does not want the father to be driving her from Toronto to Alliston to go to school in the mornings, as proposed by him.
[77] Ms. Griffiths advised the court that based on her discussions with the child, her visits with the father are inconsistent – some are described as horrible, sometimes she has a lot of fun.
[78] The child reported to Ms. Griffiths that she does not believe that her father listens to her. This was a constant theme from the witnesses and corroborates the evidence of the society worker, the social worker who wrote the section 112 report and the mother.
[79] The child reported having close relationships with her maternal and paternal grandmothers, her maternal half-brother, her mother's partner and her paternal cousins.
[80] The child, Ms. Griffiths testified, wants this matter to be resolved. She would like her parents to decide on a schedule without putting her in the middle.
Part Five – The Father
[81] The father proposed a parenting schedule where the child will be with him as follows:
Week 1: Friday after school until Monday morning, with a return to school in Alliston;
Week 2: Friday after school until a return to school on Wednesday morning.
[82] The father lives in a two-bedroom apartment with his sister and the paternal grandmother in Toronto. The paternal grandmother and the father's sister sleep in the two bedrooms.
[83] The father testified that his work schedule is flexible. He said that on the mornings he needed to drive the child to school in Alliston, he would wake her up at 6:30 a.m., get her ready and leave at 7:30 a.m. to make the 45 to 60-minute drive.
[84] The father said that he should not have to exercise mid-week access to the child in Alliston, as requested by the mother and the child. He said, "I'm not being compensated to go, it becomes a burden to me".
[85] The father felt that the child's desire to see him more reflected her true views and preferences. He felt that her desire to live with her mother and to have mid-week access with him in Alliston was unduly influenced by the mother.
[86] It became clear during the trial that the father only respected the child's views and preferences when they coincided with his own.
[87] The father believes that the mother has significantly interfered in his ability to develop a relationship with the child. He testified that she does not respect this relationship, unilaterally moved to Alliston, unilaterally cancels or changes access and provides him with little notice of cancellations, disrupting his plans.
[88] There is no doubt that the mother unilaterally moved to Alliston without seeking a court order.
[89] The father also provided evidence that the mother cancelled many visits with the child and that she has often changed or cancelled visits with little notice.
[90] However, this is not the end of the access story. The father shares the blame for access not working.
[91] The father chose not to exercise access (except for a few visits) for almost one year when he was upset about Justice Brownstone's April, 2012 order. He showed no insight at trial into how this decision adversely impacted his relationship with the child.
[92] The father announced in March, 2013 that he would resume access on the child's birthday weekend, even though he was advised that the child had a birthday party scheduled. This was provocative and immature behaviour.
[93] The mother provided evidence that the father has also often sought to change access on short notice. The mother agreed to many of these requests.
[94] The mother provided evidence of many times where she offered the father additional parenting time.
[95] The mother also provided evidence of many efforts (particularly since 2016) where she tried to problem-solve the access issues so the child could attend her activities and the father wouldn't lose parenting time. The father was generally resistant and hostile to these attempts.
[96] In 2017, the child was attending sewing classes on Thursday nights. The child really enjoyed these classes. The service provider changed the classes to Tuesday nights – the father's access night. The child did not want to visit the father if it meant missing these classes. The visits did not take place. While the mother should have brought a motion to change the access time instead of unilaterally cancelling visits, the father's reaction was also inappropriate. He would frequently call the police about his missed visits. The child became very upset with him about this.
[97] The father acknowledged that the child is physically gifted and outgoing and likes to be involved in many activities. However, the father does not want activities taking place on his parenting time unless he is the one arranging the activity. This is unrealistic. The child is on many school sports teams and the school sets the schedule. It is not child-focused for the father to expect the child to miss her team's games to travel to Toronto for the mid-week access. There are other solutions to make sure the father obtains meaningful parenting time. He has not been open-minded to these solutions.
[98] The father would like to have a better relationship with the child. He actively engaged in counseling in 2016. He acknowledged problems in their relationship. He said, "things right now are not so good, it could be better and improved. Without access, I don't see how that is possible".
[99] The paternal grandmother testified that the child is very disrespectful and has no manners. She said that this behaviour has been going on for a long time and is getting worse. The child will tell the father that he is bothering her, she doesn't want to be at his house and asks him why he is taking her from her mother and sending police to her house. She said that at times the child gets along well with the father and at other times they are like "oil and water". She said that the child was very upset when the father did not let her have her 2016 birthday party at her mother's home.
[100] The father presented as stern, rigid and guarded at trial. His email correspondence with the mother demonstrated the same traits.
[101] The emails and letters filed showed that the father can be threatening and imperious in his dealings with the mother. A couple of examples are:[11]
a) On February 10, 2015, he writes to the mother:
Do you remember when Ontario Works started to deduct monies for repayment from your cheque? That was because of me. If you would like for them to go after you for the rest of your money I can help you with that and I'm not playing. If you would like for me to create other additional expenses for you and your so call budget then do t contribute towards the gymnastics expense and I will make you wish you had contributed. This is not a threat. This me telling you that I've been very lenient with you bs…..
b) On May 2, 2017, he writes to the mother:
Lately, you better move you ass back to Finch or Toronto as that is what the Judge is going to tell (take a hint). If you don't want to believe me then ask your lawyer what my next play (move) is.
I allowed you to mess yourself up just so we can be where we are today. Aren't I smrt!.
[102] It became clear that the father is a very challenging person to get along with. This does not justify the mother's breaches of court orders, but, to some extent, explains her reactions to him.
[103] The father accepted no responsibility for the difficulties he has in his relationship with the child or the mother.
[104] The father did not appear sensitive to his child's needs other than her need to have a better relationship with him. This is the child's major complaint about him – he does not listen to her.
[105] The evidence indicated that the father has difficulty prioritizing the child's needs ahead of his own. Examples include:[12]
a) Essentially removing himself from her life for one year after Justice Brownstone's April, 2012 order.
b) Resuming his access at time that would interfere with her birthday party.
c) Frequently calling the police to enforce his access when the child was too upset to attend.
d) Refusing to attend the child's activities in Alliston. His complaint that it costs too much gas money makes little sense, since he is proposing to transport the child between Toronto and Alliston if he is given shared parenting time.
e) Insisting that the child cancel activities that are important to her on his weekday parenting time.
f) Not seeing his other child since May, 2016, even though he knew that the child was excited about her baby brother and wants to spend time with him.
g) Presenting a plan (against her wishes) that would require the child to be driven between Toronto and Alliston several times a month in order to attend school.
h) Making the child spend additional travel time instead of having his access exchanges take place in Alliston.
i) Having the child miss her scheduled 12th birthday party.
j) He has refused to return the child's trophies to her, keeping them at his home.[13]
k) He has been underpaying child support for several years.
l) In May, 2017, the child was involved in a traumatic episode. She witnessed a shooting in Toronto. She became distraught and was hospitalized. She was released early the next morning. The child wanted to stay with the mother and not go for the weekend access that was to start that night. The father showed no sensitivity to the child's experience and insisted that access take place that weekend and the mother should send along any medication. Access was cancelled.
[106] It is concerning that the father is repeating a parenting pattern with his new family. He has been charged with assault and has chosen to remove himself from his son's life – a child who has needed a responsible father. Once again, the father externalized blame, saying that this child's mother is exactly like the applicant. When asked if he would seek access to his son after his criminal case ends, the father said yes, "full mode".
[107] The evidence revealed many instances of immature behaviour by the father. This included not seeing his children unless it is on his terms, instances of overholding the child, inappropriate use of the police, not returning the child's clothes and trophies, refusing to allow the child to be with the mother on Mother's Day in 2015, interfering with the child's birthday parties, refusing to allow the child to be a flower girl at a wedding on his access time unless he could attend the wedding and failing to pay adequate child support.
[108] Much of the father's behaviour also reveals a controlling personality. Combined with his lack of insight into his flaws, externalization of blame and inability to show any increased maturity since this case began, the court will exercise caution in increasing his parenting time.
Part Six – The Mother
[109] The mother testified that the child is thriving in Alliston. She confirmed that the child is doing very well in school and has made many friends.
[110] The mother testified that the child's life is much better in Alliston. She said that the main reason the family moved from Toronto was due to concerns for her children's safety. She said that the child can now play outside and she doesn't have to worry about her. In her Toronto neighbourhood, the mother worried about gangs, bad influences and older men hanging out on the street. She said that her family was able to obtain much better housing in Alliston.[14]
[111] The mother testified that the child has an excellent relationship with the mother, the mother's partner, the mother's son and the maternal grandmother.
[112] The mother said that the child exhibits no behavioural issues at home - she is respectful to everyone. The school made a similar report about the child's behaviour at school. This is in contrast to the paternal grandmother's evidence about the child's behaviour at the father's home.
[113] The maternal grandmother testified. She has always been the mother's main support in assisting her with her children. The maternal grandmother is also a personal support worker. It was clear that she has a close relationship with the child.
[114] The mother testified that her children are both physically gifted and active. She set out the many activities and school teams the child is involved with. Her son is playing basketball at an advanced level. She drives him to Mississauga, Ontario for his games each week. He also plays in tournaments in Canada and the United States.
[115] The mother said that she found steady employment in Alliston in March, 2017, as a personal support worker. Her work includes providing assistance to seniors in the evenings in their own homes. She said that since she is a new employee, her employer often calls her for work with little notice.
[116] The mother testified that it is very difficult for her to drive the child to Toronto for mid-week visits because of the schedules of her children, her own work schedule, bad weather and occasional illnesses.
[117] The mother asked to make changes to the parenting schedule. She is proposing to give the father more time with the child on holidays and slightly elongate his parenting weekends. She asked that any mid-week visits take place in Alliston, subject to the child's wishes. She asked that all access exchanges take place in Alliston, Ontario.
[118] The mother expressed a number of concerns about the father, including:[15]
a) She has been afraid of him for many years. She said that she was very afraid of him after he assaulted her in 2006. She described stalking tendencies by the father. She also claimed that the father would frequently twist her arm violently, often during sex, which she now perceives as having been rape.[16] She said that since she no longer has much direct contact with the father, her fear of him is much less.
b) She feels that he is angry, demanding, harsh and rigid in his communications with her.
c) She feels that he does not listen to the child and is often insensitive to her needs. She described many instances of this. She said that over the years the child often became hysterical when she had to see the father and she had to work very hard with the child to encourage her to go. She said that the child no longer acts this way and is usually happy to go with him.
d) The father fails to appreciate the importance to the child of her activities and refuses to come to Alliston to watch her participate in them. Instead, she said, he stubbornly insists that the child be brought to Toronto for exchanges.
e) The father has, over the years, returned the child late or overheld the child (the latter not recently) without communicating with her.
f) The father unnecessarily involves the police when he doesn't get what he wants, upsetting her and the child.
g) The father has chosen not to become involved with the child's school.
h) The father has failed to pay appropriate child support.
[119] The mother's presentation at trial contrasted sharply with the father's. She presented as open, friendly, solution-oriented and child-focused.
[120] The mother was amenable to changing her position about the parenting schedule during the trial. When it was proposed to her by counsel for the child that it might be beneficial for the child to have the father attend the child's activity and lengthen the mid-week visit in Alliston, she was agreeable to this. She also agreed with the child's counsel that a fixed mid-week day might be preferable to her own suggestion to leave the date flexible. The mother was also open to longer holiday access and to the child attending the Scott Mission camp with her paternal cousins. She said more than once that if the child is happy with the father, then she is happy.
[121] The mother demonstrated much more insight than the father about her role in the parental conflict and how it has distressed the child. She stated that both she and the father were young and immature when they had the child. She regrets now how she behaved at times. She said that she had sometimes communicated with the father and the paternal grandmother inappropriately.
[122] The mother admitted that she had sometimes spoken negatively about the father in the presence of the child and that this was harmful.
[123] The mother said that she has worked very hard over the past two years to communicate with the father in a more respectful manner and to try to shield the child from parental conflict. A review of the many emails filed show that, while not perfect, the mother is working harder to communicate with the father in an appropriate manner.
[124] The mother also acknowledged that she has often communicated requests to change access to the father with little notice. She said that she often learns about the need to change the access late (due to late notice by the child, or work schedule changes), but said that she can stay on top of this issue better.
[125] In contrast to the father, who had nothing positive to say about the maternal family, the mother had positive things to say about the paternal family. She expressed her admiration for the paternal grandmother and commented that the child enjoyed spending time with her paternal cousins. She also commented that she was pleased that more recently, the child was telling her that she was enjoying her time more with the father.
[126] The court does, though, have some concerns about the mother.
[127] The evidence indicates that the mother has often acted unilaterally and at times has only paid lip service to court orders.
[128] The most obvious example is the mother's unilateral decision to move to Alliston, without prior consultation with the father. Despite multiple court appearances, the possibility of moving out of Toronto was not discussed. The issue isn't whether this was a good move for the child (it is), but the way the mother went about it.
[129] Counsel for the mother claimed that no court order prevented the move. She missed the point. The move to Alliston immediately impacted on the father's access. The mother could not coordinate her schedule to consistently bring the child to Toronto. The father's access and relationship with the child was compromised. She turned the father into the "bad guy" in the eyes of the child if he asked to have his court-ordered access enforced.
[130] The mother then compounded this problem by often unilaterally changing the father's mid-week access, usually with little notice and disregard to his schedule – particularly his work schedule. The court order did not permit her to do this.
[131] The mother showed poor judgment by doing this and unnecessarily exposed the child to additional parental conflict. She knows that the father is challenging to deal with and vigilant about his rights. She should have known these actions would have exacerbated the parental conflict and caused additional distress to the child.
[132] The mother's remedy was to move to the court for permission to move to Alliston and to change the access schedule. Instead, she chose to act first and seek permission later.
[133] The mother also continues to involve the child in access arrangements, even though the child is clear that she does not want to do this. The mother did this on the July 14, 2017 weekend and the father's visit did not take place due to miscommunications. The mother needs to deal with the father directly about access exchanges or changes.
Part Seven – Best Interests
7.1 Legal Considerations
[134] Subsection 24 (1) of the Act provides that the merits of a custody or access application shall be determined on the basis of the best interests of the child.
[135] Children should have maximum contact with both parents if it is consistent with their best interests. See: Gordon v. Goertz, [1996] 2 S.C.R. 27.
[136] If one parent does not facilitate, or undermines the child's relationship with the other parent, it will be a relevant factor in determining their ability to act as a parent. See: Leggatt v. Leggatt, 2015 ONSC 4502.
[137] Generally, the older the child, the greater weight will be given to their views and preferences. The weight to be attached to any expression of preference depends on the facts and is a function of age, intelligence, apparent maturity and the ability of a child to articulate a view. See: Stefureak v. Chambers.
[138] Subsection 24 (2) of the Act sets out eight considerations for the court to consider in making the best interests determination. No one factor has greater weight than the other, nor is one factor particularly determinative of the issue before the court. See: Libbus v. Libbus, [2008] O.J. No. 4148, (Ont. SCJ). The court will review these considerations below.
7.2 Best Interest Factors
[139] The following is the court's analysis of the best interest factors set out 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.
[140] The parents both love the child and the child loves them. The child clearly has a closer and healthier relationship with the mother than with the father. The child's relationship with the father is "up and down". The father reports that "things right now are not so good, it could be better and improved".
[141] The child also enjoys spending time with her grandmothers, her mother's partner, her maternal half-brother, her paternal cousins and her paternal aunt.
[142] The father wants to completely attribute his problems in his relationship with the child to the mother. While the mother's negative view of the father likely has had some influence on the child's perception of him, the evidence showed that this is not a significant reason for their relationship difficulties. The father chose to remove himself from the child's life for almost one year during a formative time in her life. The child does not feel that the father listens to her. She is upset that the father constantly involves the police. She was upset that he caused her to miss her birthday party in 2016. She is upset when there is conflict because she wants to attend an activity she enjoys. In the past, the child has also reported how the father has embarrassed her and treated her harshly.
[143] Until such time as the father is able to acknowledge his own failings, it is unlikely that his relationship with the child will significantly improve.
Factor #2: The Child's Views and Preferences
The child's views and preferences, if they can reasonably be ascertained.
[144] The child's views and preferences are set out in paragraph 9 above.
[145] The court accepts Ms. Griffith's evidence that the child's views and preferences are her own and not unduly influenced by her mother. The father failed to provide any real evidence indicating otherwise.
[146] The child's views and preferences will be given considerable weight by the court. They were reasonable, thoughtful and practical.
[147] The child's views and preferences did not parrot the mother's position. The mother adapted her position to be more consistent with the position taken by the child. The mother deserves credit for this. The father dismissed out of hand any position of the child's that was inconsistent with his own.
Factor #3: The Length of Time the Child Has Lived in a Stable Home Environment
[148] The child has lived with the mother since birth. The mother has provided her with a loving, nurturing and stable home. The mother has responsibly attended to all of the child's emotional and physical needs.
[149] The father absented himself from the child's life for almost one year. This was a selfish decision. He has recently repeated that behaviour with his son. It causes the court to question whether he will be consistently present for the child if she displeases him.
Factor #4: The Ability and Willingness of Each Person Applying for Custody to Provide Guidance, Education, Necessaries of Life and Special Needs
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.
[150] The mother, for the most part, is a responsible parent. She supports the child's academic and social needs. The child's health needs are attended to. She has borne much of the financial responsibility for the child.
[151] The father has often prioritized his own needs to those of the child, as set out in paragraph 105 above.
[152] The father did make a child-focused decision by attending and meaningfully participating in counseling with the child in the spring of 2016.
[153] The father has deliberately underpaid child support since this case started. Justice Sager made an arrears order in 2015 and the parties agreed to an additional arrears order prior to closing argument. The mother has had to chase the father to provide financial disclosure and pay adequate support. He has not contributed to the child's orthodontal costs – yet feels he needs to be compensated for the child's cancelled 2013 birthday party. Financially supporting your children is an important component of responsible parenting. The father has failed the child in this respect and prioritized his own needs over those of the child. See: Jama v. Mohamed, [2015] ONCJ 619.
[154] Both parents have been poor role models for the child in how to resolve conflict.
Factor #5: Any Plans Proposed for the Child's Care and Upbringing
[155] The mother set out a child-focused plan for the child. She provides structure and routine for her.
[156] The child enjoys her school and friends. The mother has the child engaged in a wide variety of activities. She lets the child take the lead in choosing these activities.
[157] The father's plan to care for the child is unrealistic. He does not have suitable accommodation for the child. His plan would involve the child getting up very early so she can make a long drive to school in Alliston on three mornings every other week. His plan would give the child no weekend time with the mother.
Factor #6: The Permanence and Stability of the Family Unit
The permanence and stability of the family unit with which it is proposed that the child will live.
[158] The mother has been in a stable relationship with her partner for 3 years. The maternal grandmother has been a constant source of support for her.
[159] The paternal grandmother has been a constant source of support for the father.
[160] The father is facing criminal charges in relation to the mother of his second child. This is not a stable relationship. He is not seeing that child.
Factor #7: The Ability of Each Person Applying for Custody or Access to Act as a Parent
[161] The evidence established that the mother is, for the most part, a good parent who is attuned to the needs of the child. She provides the child with a loving home environment.
[162] The mother has not always facilitated the father's relationship with the child as well as she should have. She has, at times, been arbitrary and has disregarded court orders.
[163] However, this is not a case of parental alienation as alleged by the father. The mother often worked hard to encourage the child to go on visits against her will. There were many times when she agreed to the father's requests for additional parenting time. She has offered additional holiday time to the father. She arranged access for the paternal family even when the father was not attending access. She tries to find solutions for make-up access. Once she moved to Alliston, she continued to bring the child to Toronto for visits, even though the order says that access exchanges shall take place at her home. The mother has moderated the tone of her communication with the father and has tried not to speak negatively about him in front of the child.
[164] The court has many concerns about the father's ability to act as a parent, including:
a) He often prioritizes his own needs ahead of the child's.
b) He is insensitive to the child's wishes. He only respects them if they accord with his own.
c) He shows a profound lack of insight into his role in the parental conflict and his relationship with the child, and externalizes blame.
d) He is angry and controlling.
e) He inappropriately involves the police.
f) He is now facing criminal charges for assault and impaired driving.
g) He has not seen his son since May, 2016 and blames that child's mother. This repeats the pattern he had in this case of not seeing the child and blaming the mother.
h) He has failed to pay adequate child support.
Factor #8: The Relationship by Blood or Through an Adoption Order
The relationship by blood or through an adoption order between the child and each person who is a party to the application.
[165] This is a neutral factor.
7.3 Discussion
[166] The evidence was overwhelming that it is in the child's best interests that the mother be granted sole custody. The child has thrived in the mother's care. The child is much closer with the mother than the father and wants to live with her. The mother has provided a more child-focused plan. The mother has acted much more responsibly than the father. The court has significant concerns about the father's judgment, behaviour, insight and ability to put the child's needs first. The father did not even seek a custody order until closing submissions.
[167] The father did not seek an order that the child's residence be returned to Toronto. Despite the mother's unilateral move to Alliston, the court, applying the factors in Gordon v. Goertz, supra, would have found (if such a request had been made) that it was in the child's best interests to remain in Alliston. She is thriving in that community.
[168] It is not in the child's best interests to make a shared parenting order as requested by the father. The comments made in paragraph 166 above also apply to this request.
[169] As with joint custody, a higher degree of cooperation and mutual respect is needed to make an equal parenting arrangement work effectively. Parents need to be able to coordinate medical and health issues concerning the child. They need to be able to coordinate extra-curricular activities that will be important for her. There should be some level of consistency in the two homes if an equal parenting schedule is going to work. None of these elements are present here.
[170] The quality of the father's relationship with the child, when contrasted with the stable and secure relationship the child has with the mother, dictates against any significant change to the father's parenting time with her. It is not in the child's best interests to compromise her stability in an effort to improve her relationship with the father.
[171] This case is not about the father's rights or the mother's rights - it is about the child's best interests.
[172] It is in the child's best interests that:
a) She has a stable schedule - particularly during the school week.
b) Her reasonable wishes are respected.
c) She can spend meaningful time with the father.
d) Her exposure to parental conflict is minimized.
e) She is able to participate in activities that are important to her.
f) Access doesn't interfere with her school sports events and activities that are important to her.
g) The father has the opportunity to participate in her activities.
[173] The father's plan to drive the child back and forth from Toronto to her school in Alliston is not child-focused. The child should be settled during the school week and not rushing and spending so much time in a car. The child has clearly stated that she does not want to do this.
[174] The mid-week visits have been a source of considerable conflict between the parties. The mother has cancelled many of them. The father has shown rigidity by insisting that the child miss her mid-week activity and be brought to Toronto on his access night. The child is upset by this conflict.
[175] The court order will designate a specific day each week for mid-week access. Unless otherwise agreed by the parties, this will be on Thursdays, as the child wants to participate in sewing that presently takes place on Tuesdays and the Ladies on the Rise program that takes place on Wednesdays.
[176] The mid-week access shall take place in Alliston. The child should not have to travel back and forth to Toronto on a school night. This also means that access is less likely to be frustrated due to the mother's work schedule.
[177] The father and the child should discuss what activity she will do, if any, on Thursdays. The final choice will be the child's. The father will be able to pick up the child after school, take her to the activity and then return the child to her home by 8:30 p.m.[18] This will enable the father to have dinner with the child.
[178] The father is to notify the mother that he will pick up the child for the mid-week visit no later than 6 p.m. the day before, failing which the visit will not take place. This notice is important as the mother has to make other transportation arrangements for the child if the father is not available.
[179] The court considered having access take place after the Ladies on the Rise program on Wednesdays in Toronto. However, this would mean that the child would return to Alliston late during the school week and would be contrary to her wishes. The court will not order this.
[180] The father will be given the opportunity to pick up the child from school at the start of the his alternate weekend access. His parenting weekends will be extended by one day if the Friday prior to the weekend or the Monday after the weekend is either a statutory holiday or a professional development day at school. The order will set out notice and exchange terms to ensure that the mother may make transportation arrangements for the child.
[181] If the child has a school event or team game on the Friday afternoon of the father's parenting weekend, he will take her to that event or game. If he is unable to do this, his access will begin once the event or game is over. The mother shall provide the father with as much notice as possible if the game or event is taking place on the Friday afternoon.
[182] The child will be entitled to spend two exclusive weeks with each parent during the summer holidays. The order will set out the mechanism for doing this. Unless they are out of town for vacation, or the child is at overnight summer camp, the parties shall ensure that the child attends the Ladies on the Rise program during their parenting time.
[183] The order will provide that the child spend Father's Day with the father if it is not otherwise his parenting weekend and Mother's Day from 10:00 a.m. onwards with the mother, if it is not otherwise her parenting weekend.
[184] The child shall spend August 6th (her maternal half-brother's birthday) each year with the mother.
[185] All other holidays will be divided equally between the parties as set out in the order.
[186] The parties both provided numerous requests in their draft orders for incidents of custody and terms of access. Many of these terms were either not pleaded, overreaching or would only lead to more confusion and conflict between the parties. The court has taken these requests into consideration and will only grant incidents of custody and terms of access that it finds to be in the best interests of the child.
[187] The mother shall not cancel any visit unless the child is too ill to go. In this event, the access will be made up at the earliest opportunity.
[188] The mother may change up to, but not more than, 3 access visits each year if the child has a special event to attend. The mother must provide the father with a minimum of one week's notice of this change. The visit is to be made up at the earliest opportunity.
[189] The father may also change up to, but not more than, 3 access visits each year if the father has a special event he wishes to take the child to. He must provide the mother with a minimum of one week's notice of this change.
[190] There will be no make-up visit if the father otherwise cancels a visit.
[191] All arrangements about access changes or exchanges shall be conducted between the parents (and not the child) by email or text.
[192] The mother shall provide the father, on a timely basis, with the child's schedule of activities and the location of such activities.
[193] The order will set out travel terms for the parties.
[194] The mother shall provide the father with 60 days written notice of any intention to change the child's residence or school.
[195] The father asked for a police enforcement order. This order will not be granted. He already is far too quick to involve the police. He knows it agitates the mother. The father does not appreciate how police involvement is upsetting the child and impairing his relationship with her.
Part Eight – Section 7 Expenses
[196] The parties resolved the issue of guideline table support payable by the father since September 1, 2015, just prior to making closing submissions. This just left the issue of the mother's section 7 expenses claim for the court to decide.
[197] The onus is on the parent seeking the special or extraordinary expenses to prove that the claimed expenses fall within one of the categories under section 7 of the guidelines and that the expenses are necessary and reasonable, having regard to the parental financial circumstances. See: Park v. Thompson, 2005 O.J. No. 1695 (OCA).
[198] The list of special and extraordinary expenses under clauses 7 (1) (a) to (f) of the guidelines is exhaustive. If a claim does not fall within any of the listed categories, then it must be dismissed. See: Kilrea v. Kilrea, 1998 CarswellOnt 3652 (Ont. Gen. Div).
[199] Expenses for usual or ordinary extracurricular activities for a particular family are included in the table amount of support. See: Smith v. Smith, [1997] O.J. No. 4833 (Ont. Gen. Div.), paragraphs 14 and 16; Park v. Thompson, supra; Kase v. Bazinet, [2011] ONCJ 718.
[200] The mother prepared a claim for contribution to the child's extracurricular activities since 2012. Fortunately, most of the child's activities are arranged through the school at no cost. None of the claimed extracurricular activities by the mother were extraordinary as defined by subsection 7 (1.1) of the guidelines. The yearly amounts spent on these activities were under $200 each year from 2012 until 2015 and was $335 in 2016. These were ordinary extra-curricular activities covered by the guidelines table amount and not eligible section 7 expenses.
[201] The mother does have one eligible section 7 claim. The child is having orthodontic work done. The father agreed it is an eligible section 7 expense. It is a reasonable and necessary expense for the child.
[202] The mother has been paying this expense on her own since April, 2015. The total cost of the work is $7,600 and 50% ($3,800) is covered on the family benefit package of the mother's partner.
[203] The mother has made a $1,300 payment for this treatment. She has been permitted by the orthodontist to pay the balance over a lengthy period of time.
[204] The court will spread the father's contribution to this expense over three years on an ongoing basis.
[205] Subsection 7 (3) of the guidelines instructs the court to take into account any subsidies, benefits or income tax deductions or credits relating to the expense, and any eligibility to claim a subsidy, benefit or income tax deduction or credit relating to the expense.
[206] A software analysis shows that the father's annual share of this expense, after taking into account the income tax deductions and credits related to this expense, spread over 3 years, is $66 each month. These payments will begin on September 1, 2017.[20]
[207] The father testified that he also has a benefits plan at work with orthodontic coverage. He made late disclosure of this coverage and despite being aware of the child's orthodontic costs never offered to reimburse the mother for these expenses through his plan. If he chooses to do so, the mother shall provide him with the orthodontic receipts and the parties should readjust the section 7 expense payments, if any portion of these expenses are reimbursed through this plan.
[208] The father's claim that the mother pay for the child's birthday party in 2013 is not a section 7 expense and is dismissed.[21]
Part Nine – Conclusion
[209] A final order shall go on the following terms:
a) This order shall replace any previous court order. The parenting provisions shall take effect on September 4, 2017.
On consent:
b) The father shall be listed as father and emergency contact with all schools, doctors, after-school programs and extra-curricular activities.
c) Pursuant to subsection 20 (5) of the Act, the father shall have the right to directly communicate with the child's school, doctors, dentists, child care providers, counsellors and coaches regarding the child without any further consent from the mother or other court order.
d) Both parents shall keep each other advised of their current residential addresses, phone numbers and email addresses.
e) The child shall spend Father's Day with the father from 10:00 a.m. to drop-off at school the following morning.
f) The parties shall refrain from making disparaging remarks to the child, or in her presence, or to third parties, about the other party or the circumstances of the parties' relationship breakdown. The parties shall make their best efforts to ensure that no third person speaks in a disrespectful manner about the other parent in the presence of the child.
g) Starting on August 1, 2017, and payable on the first day of each month thereafter, the father shall pay guidelines table support to the mother in the amount of $511, based on his 2016 income of $56,311.
h) The father's guideline table amount arrears, based on the amount of support he should have paid to the mother in accordance with his income from September 1, 2015 until July 31, 2017, are fixed at $3,989. This is in addition to the child support arrears of $4,153.41, fixed by Justice Sager on December 22, 2015, that accumulated up until August 31, 2015.
i) The father will be credited for all payments towards the arrears fixed by Justice Sager on December 22, 2015, as reflected in the records of the Family Responsibility Office.[22]
j) The father shall pay the mother the amount of $100 each month towards the support arrears of $3,989, as set out in subparagraph (h) above, starting on July 1, 2017.
k) The parties shall pay the child's section 7 expenses in proportion to their annual incomes. Based on their 2016 incomes, the father's proportionate share of section 7 expenses is 65% (income of $56,311) and the mother's proportionate share is 35% (income of $30,539).
Not on consent:
l) The mother shall have custody of the child.
m) The father shall have parenting time with the child as follows:
Starting on September 8, 2017, alternate Fridays with pick-up after school until he returns the child to the mother's home in Alliston on Sunday by 8 p.m.
If the child has a school event or team game on the Friday afternoon of the father's parenting weekend, he will take her to that event or game. The mother shall provide the father with as much notice as possible if the game or event is taking place on the Friday afternoon.
The father is to notify the mother by 6 p.m. on the Thursday before his weekend access visit to confirm if he will pick up the child at school on Friday (or take her to her school event or team game if subparagraph 2 applies). If he does not do this, or if he cannot pick up the child after school, he shall instead pick up the child from the mother's home in Alliston on Friday at 6 p.m., or at such time as she returns home from any school event or team game.
The father's access will be extended until Monday at 8 p.m. if his parenting weekend is followed by a statutory holiday or a professional development day at the child's school.
If a statutory holiday or professional development day falls on a Friday before the father's parenting weekend, the weekend shall start at Thursday from after school, or if the father is unable to pick up the child from school, from the mother's home in Alliston at 6 p.m. The terms in subparagraphs 2 and 3 above apply, modified so that the father will notify the mother on Wednesday if he will pick up the child after school and that the child will attend any school event or team game on the Thursday.
Every Thursday, the father will be able to pick up the child after school, take her to her activity and then return her home by 8:30 p.m. The father and the child should discuss what activity the child will participate in, if any, on these Thursdays. The final choice will be the child's. The father is to confirm with the mother that he will pick up the child after school for the Thursday visit no later than 6 p.m. the day before, failing which the visit will not take place.
Commencing in 2018, both parents will have the child with them during the summer for two exclusive weeks. Each parent shall also be entitled to enroll the child in overnight camp in the summer for up to 10 days.
In even-numbered years, starting in 2018, the father will have the first choice of his two-week summer parenting time and the 10 days of summer camp. In odd-numbered years, starting in 2019, the mother will have the first choice of these times. The parent first choosing will let the other parent know the selected times by May 1st. The other parent shall provide notification of his or her selected times by May 31st.
Unless they are out of town for vacation, or the child is at overnight summer camp, the parties shall ensure that the child attends the Ladies on the Rise program during their parenting time.
The child shall spend Mother's Day with the mother, starting at 10:00 a.m., if it is not otherwise her parenting weekend.
The child shall spend August 6th (her maternal half-brother's birthday) each year with the mother, if is not otherwise her parenting day.
Starting in 2017 and in every odd-numbered year, the child shall spend the first week of the two-week winter school break with the mother and the second week with the father. Starting in 2018, and in every even-numbered year, the child shall spend the first week of this break with the father and the second week with the mother.
The child shall spend equal time with the parents during March Break, to be divided at the mid-point in the week. In even-numbered years the child will be with the father for the first half of the break and with the mother for the second half. In odd-numbered years, the child will be with the mother for the first half of the break and with the father for the second half.
The parties shall each be permitted vacation time with the child (including outside of Canada) during their parenting time when the child is not in school. The traveling parent shall provide the other parent with a complete itinerary of where they will be staying on the vacation, together with contact numbers for the child, a minimum of 45 days in advance of the vacation. The traveling parent shall ensure that the child has frequent contact with the other parent during the vacation.
The non-traveling parent shall execute any documentation that is required to permit the child to travel (including renewals of passport and permission letters) within 7 days of any request by the traveling parent. The traveling parent shall be provided with all necessary identification by the non-traveling parent for the child to be able to travel.
The holiday times shall take priority over the ordinary access schedule.
Both parents shall permit the child to have telephone and Skype access with the other parent, in accordance with the child's wishes.
n) All access exchanges shall take place in Alliston. The father shall remain in his car when he exchanges the child at the mother's home.
o) The mother shall not cancel any visit unless the child is too ill to go. In this event, the access will be made up at the earliest opportunity.
p) The mother may change up to, but not more than, 3 access visits each year if the child has a special event to attend. The mother must provide the father with a minimum of one week's notice of this change. The visit is to be made up at the earliest opportunity.
q) The father may also change up to, but not more than, 3 access visits each year if he has a special event that he wishes to take the child to. He must provide the mother with a minimum of one week's notice of this change. Otherwise, there will be no make-up visit if the father cancels a visit.
r) All arrangements about access changes or exchanges shall be conducted respectfully between the parents (and not the child) by email or text.
s) The parties shall immediately notify the other of any emergency regarding the child.
t) The mother shall provide the father, on a timely basis, with the child's schedule of activities and the location of such activities.
u) The mother shall provide the father with 60 days written notice of any intention to change the child's residence or school.
v) The father shall pay the mother the amount of $66 each month towards her section 7 expenses (orthodontics), starting on September 1, 2017 for 3 years. If the father obtains benefits coverage for the child and reimburses the child's orthodontic costs through these benefits, the parties are to adjust the father's section 7 payments accordingly.
w) The parties shall exchange their complete income tax returns and notices of assessment by June 30th each year.
x) A support deduction order shall issue.
y) All other claims are dismissed.
[210] If either party finds a mathematical error in this decision, or an inputting error in the software calculations attached to this decision, they may serve and file written submissions by September 6, 2017. The other party will then have until September 13, 2017 to serve and file a written response. Any submissions should be delivered to the trial coordinator's office on the second floor of the courthouse. The father may deliver them by fax.
[211] If either party seeks their costs, they shall serve and file their written costs submissions by September 20, 2017. The other party will have until September 27, 2017 to respond. The costs submissions shall not exceed 3 pages, not including any offer to settle or bill of costs.
Released: August 28, 2017
Justice S.B. Sherr