Court File and Parties

Date: December 4, 2017

Court File No.: D10430-17

Ontario Court of Justice

Between:

N.T. (Applicant)

- and -

R.R.K. (Respondent)

Counsel:

• Kenneth E. Snider, for the Applicant
• Barbara Puckering, for the Respondent
• Christine Maley, for the City of Toronto, Assignee

Heard: December 1, 2017

Before: Justice S.B. Sherr

Endorsement

Part One – Introduction

[1] The applicant (the mother) and the respondent (the father) have both brought motions seeking temporary custody of their six-year-old daughter (the child). The mother also seeks temporary spousal support from the father in the amount of $884 each month, starting on November 1, 2017.

[2] The mother is on social assistance and has assigned her interest in spousal support to the City of Toronto (the assignee). The assignee supports the mother's position.

[3] During the hearing of the motion, the father changed his position (from that set out in his notice of motion) and asked that either no temporary custody order be made, or in the alternative, that a temporary joint custody order be made.

[4] The parties have agreed on temporary access and child support and these terms will be incorporated into this order.

[5] The parties each filed an affidavit and financial statements for the motions. Pursuant to subrule 14 (17) of the Family Law Rules the court permitted cross-examination and re-examination of the parties. The mother's boyfriend also testified and was cross-examined.

[6] The remaining issues for the court to determine on the temporary motions are:

a) Is it in the best interests of the child to make a temporary custody order?

b) If so, is it in the best interests of the child to make a temporary joint custody order, or should the court order that the mother have temporary custody of the child?

c) What is the mother's income for the purposes of the support analysis?

d) Is the mother entitled to temporary spousal support?

e) If so, how much temporary spousal support should be ordered?

Part Two – Background Facts

[7] The mother is 30 years old. The father is 31 years old.

[8] The parties cohabited from 2008 until October, 2016. They continued to live separate and apart in the same home after their separation.

[9] On November 22, 2016, there was an altercation between the parties and the police were called. The mother left the home and the child remained with the father.

[10] The parties agreed that the child would start living with the mother on or about January 1, 2017 and further agreed that the father would exercise access on two out of every three weekends.

[11] The mother issued her application on March 15, 2017.

[12] The father issued his Answer/Claim on July 14, 2017.

[13] The case was adjourned as the parties engaged in mediation. They did not resolve the matters that are now before the court.

[14] The parties did agree in mediation that starting in November, 2017, the father's access would change to alternate weekends.

Part Three – The Child

[15] The child has been struggling behaviourally since her parents separated.

[16] The child's report card dated October 31, 2017 (the report card) identifies the child as Exceptional. She has recently been placed in a Special Education Class in a new school. The report card identifies the child's areas of need as:

a) Behaviour management (i.e. will strike and threaten staff).

b) Emotional regulation and self-regulation; anger management.

c) Social skills.

d) Task Initiation and completion.

e) Attention.

f) Defiance (resistance to adult instruction/direction; work refusal).

g) Rules and routines (specifically at school).

[17] The report card identifies the child's strengths as:

a) Verbal comprehension skills.

b) Creativity and artistic ability.

c) Expressive language.

d) Sense of humour.

e) Responds to positive reinforcement.

f) Shows pride in her accomplishments.

[18] The report card sets out that the child has had support through the Board of Education's Behaviour Team and special education consultant. She had been supported in the Safe and Caring Program for half the day and received resource support for the other half of the day. The report card states that the child has a diagnosis of Oppositional Defiant Disorder.

[19] The father blames the mother's parenting and environment for the child's issues. The mother primarily attributes the child's issues to the stress of the separation.

[20] The Children's Aid Society of Toronto (the society) has been involved with the family on a voluntary basis since March, 2017.

[21] The mother and child are attending counseling at the Aisling Discoveries program in Toronto.

Part Four – Temporary Custody

4.1 Legal Considerations

[22] The Ontario Court of Appeal in Kaplanis v. Kaplanis, [2005] O.J. No. 275, sets out the following principles in determining whether a joint custody order is appropriate:

1. There must be evidence of historical communication between the parents and appropriate communication between them.

2. It can't be ordered in the hope that it will improve their communication.

3. Just because both parents are fit does not mean that joint custody should be ordered.

4. The fact that one parent professes an inability to communicate does not preclude an order for joint custody.

5. No matter how detailed the custody order there will always be gaps and unexpected situations, and when they arise they must be able to be addressed on an ongoing basis.

6. The younger the child, the more important communication is.

[23] Joint custody should not be ordered where there is poor communication and the parties fundamentally disagree on too many issues affecting the child's best interests. See: Graham v. Butto, 2008 ONCA 260; Roy v. Roy, [2006] O.J. No. 1872 (Ont. C.A.).

[24] This court wrote the following about joint custody orders and special needs children in paragraph 33 in Ciutcu v. Dragan, 2014 ONCJ 602:

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

[25] In Smith v. Robinson, [2007] O.J. No. 458 (SCJ), the court refused a request for joint custody for a child with selective mutism, finding that there was not the necessary level of cooperation between the parties. The court found that the child required decisive, informed and consistent parenting.

[26] Courts do not expect communication between separated parties to be easy or comfortable, or free of conflict. A standard of perfection is not required, and is obviously not achievable. See: Griffiths v. Griffiths, 2005 ONCJ 235, 2005 CarswellOnt 3209 (OCJ). The issue is whether a reasonable measure of communication and cooperation is in place, and is achievable in the future, so that the best interests of the child can be ensured on an ongoing basis. See: Warcop v. Warcop.

Courts will order joint custody rather than sole custody where such an order is considered necessary to preserve the balance of power between the parties, particularly in cases where both parties are caring and competent parents but one party has been primarily responsible for the conflict between the parties. See: Roloson v. Clyde, 2017 ONSC 3642, par. 59 for a review of these cases.

[27] In S. (S.) v. K. (S.), 2013 ONCJ 432 this court wrote that courts should assess the dynamics of a family when determining if a joint custody order is appropriate. Particularly, the court should examine if the granting of such an order is:

a) more or less likely to de-escalate or inflame the parents' conflict;

b) more or less likely to expose the child to parental conflict; and,

c) Whether a parent is seeking the order as a mechanism to inappropriately control the other parent. Parents who seek such orders for the purpose of asserting control over their former spouse and children tend to be rights-based, overly litigious, unbending and the best interests of their children can be secondary considerations. For such parents, a joint custody order can be a recipe for disaster. It can become a springboard for that parent to assert control and make the lives of their former partner and children much more difficult.

[28] In paragraph 504 of Izyuk v. Bilousov, 2011 ONSC 6451, 2011 CarswellOnt 12097 (SCJ), the court writes:

In the wrong family circumstances, a joint custody order can perpetuate hostilities, indecision, and power struggles. Children - particularly children already exposed to the upset of family breakdown - look to their parents for love, guidance, stability, protection, and consistency. They need to have confidence that adult decisions will be made quickly, properly and uneventfully.

[29] In making any parenting decision, the court must consider the child's best interests and the relevant best interest factors set out in subsection 24 (2) of the Children's Law Reform Act. The court has taken these factors into consideration.

4.2 Discussion

[30] There are some factors that support the father's request that either no temporary custody order be made, or that a temporary joint custody order be made, being:

a) The parties have been able to agree on where the child lives and make changes to the child's residence.

b) The parties have been able to agree on the parenting schedule and changes to the parenting schedule.

c) The parties recently agreed to change the child's school so that she can be in a Special Education Program.

d) The parties were able to agree on temporary child support. The father has complied with that agreement.

[31] Notwithstanding these positive factors, the court finds that it is in the child's best interests to grant the mother temporary custody of the child.

[32] The evidence revealed that the level of communication between the parties is very poor – too poor to justify making a joint custody order at this time.

[33] The parties present as very angry at one another. This has been reflected in their behaviour towards each other, their correspondence and their presentation at court.

[34] The police became involved with the parents on November 22, 2016. Both parents claimed to be the victim of an assault by the other. No charges were laid.

[35] The mother claims that the father was controlling and physically abusive to her during the relationship. The father claims that the mother is lying to obtain an advantage in this case.

[36] The parties have been quick to call the society about the other. The mother called the society claiming that the father abuses drugs and alcohol in the child's presence. The father has contacted the society, claiming that the child is in danger due to the mother's marijuana lifestyle, the people she exposes the child to and having illegal dogs (pitbulls) in her home.

[37] There was no evidence that the society verified any of these concerns.

[38] It was clear that the parties do not trust each other and are quick to jump to the worst possible interpretation of the other's behavior. Parents who choose to use the society as a complaints department, instead of working through these issues on their own are usually poor candidates for a joint custody order.

[39] We are dealing with a child with special needs whose behaviour has seriously deteriorated since the parties separated. She needs child-focused parenting by caregivers who can effectively work together. Decisions need to be made quickly and decisively as her behavioural issues evolve. It is not in her best interests to have these decisions delayed because her parents cannot communicate effectively with each other.

[40] The father entirely attributes the child's deterioration in behaviour since the separation to the mother's poor parenting and lifestyle. There was some disconnect in his evidence. Despite his fear that the child was in an unsafe environment, he agreed to a reduction in his access time in November, 2017 (the mother deposed he sought this reduction – the father did not deny this) and chose not to pursue a temporary custody order.

[41] The father was unable to acknowledge an alternative explanation for the child's behavioural deterioration – for one, her exposure to the intense conflict of her parents and their power struggle over her. This lack of insight makes him a poor candidate at this time to effectively co-parent with the mother.

[42] The mother also blamed the father for the child's deteriorating behaviour. However, she showed more insight than the father by acknowledging that the stress of the separation has been a factor as well. The mother followed the society's recommendation and has obtained counseling for her and the child at Aisling Discoveries.

[43] The court accepts the mother's evidence that the main reason for the society's involvement is its concern about the impact of the parents' separation on the child.

[44] Many texts between the parties were filed. Many of the texts (in particular the mother's) are profoundly disrespectful and inappropriate. It is unnecessary to go into details. They are contained in the exhibits to the motions.

[45] It is highly unlikely that the parents are protecting the child from their disrespectful views of the other. Neither party appears at this time to have the requisite judgment and maturity to place the child's need for security and stability over their need to express their anger at the other.

[46] The mother struggled with her impulse control at court. She was defensive, sarcastic and combative. It is a legitimate concern that the child is being exposed to this type of behavior at home.

[47] While not as overt with his anger, it was apparent to the court that the father also has challenges controlling it. His tone when discussing the mother was harsh and judgmental. He is upset about her new relationship (which the mother has taunted him about in her emails, escalating his anger). The court accepts the mother's evidence that the father will often be demeaning to her in their verbal discussions.

[48] If the parents cannot control their emotions, how can they expect the child to?

[49] The court accepts the mother's evidence that even when the parents eventually reach agreement, it is only after considerable hostile interaction. A joint custody order would increase the parties' engagement with each other. The parties are not at a stage where they can handle increased engagement in a mature manner. This would just lead to increased hostilities and more pressure on the child. This is not in the child's best interests.

[50] The father claims that he has been excluded from the Aisling counseling process. The mother disagrees. She says that the father is free to have counseling with Aisling or to have joint counseling with the child. She says what Aisling won't do is release its records of the child's individual counseling or joint counseling with her. She says that the father has chosen not to follow through with Aisling.

[51] The father claims that the society is only helping the mother and not him. He took no responsibility for the child's problems.

[52] The court encourages the father to contact Aisling (or some other agency) for the purpose of obtaining individual counseling. He needs assistance to deal in a healthy manner with the separation and his relationship with the mother.

[53] This is not a case where one parent is primarily responsible for the poor communication between them. Both parents are to blame.

[54] Despite the mother's hostility to the father, he has remained involved with the child's life. The mother consulted him about the new school and the parties have agreed on access arrangements. The father will have extended time with the child over the winter school break.

A joint custody order is not required (at this stage) to preserve the father's relationship with the child.

[55] The mother will have temporary custody of the child. She will be required to consult with the father before making any non-emergency major decisions about the child. The father will have the rights to information set out in subsection 20 (5) of the Children's Law Reform Act, which reads as follows:

Access

20(5) - The entitlement to access to a child includes the right to visit with and be visited by the child and the same right as a parent to make inquiries and to be given information as to the health, education and welfare of the child.

[56] The father expressed a concern about the mother moving with the child back to her family in Montreal if she had sole custody. Until this case is decided, it is in the child's best interests to remain in Toronto.

[57] In submissions, the father also asked for a term that the mother not consume marijuana while in a caregiving role for the child. The mother claimed that she never does this. There is no evidence that she has cared for the child while consuming marijuana. The court won't make this order at this time.

Part Five – Incomes

5.1 Positions

[58] The parties agreed that the father's annual income is $57,124.

[59] The mother has been in receipt of social assistance since March, 2017.

[60] The father claims that the mother is working at marijuana dispensaries for cash income. He believes that she is also working with her new boyfriend selling marijuana on-line. If she is not earning income, he believes that the mother is capable of earning at least a minimum wage income and asks that this amount be imputed to her for the purpose of the support calculation.

[61] The mother admitted working at marijuana dispensaries part-time a year ago, but says that due to her physical limitations and the child's special needs she is unable to work at this time. She plans to apply for Ontario Disability Support Payments. She deposed that she would like to go back to school with a focus on child care for disabled children.

5.2 Legal Considerations

[62] Imputing income is 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 obligation, the parties must earn what they are capable of earning. If they fail to do so, they will be found to be intentionally under-employed. See: Drygala v. Pauli, [2002] O.J. No. 3731 (Ont. C.A.).

[63] The court in Drygala set out the following three questions which should be answered by a court in considering a request to impute income:

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

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

3. If not, what income is appropriately imputed?

[64] The onus is on the party seeking to impute income to the other party to establish that the other party is intentionally unemployed or under-employed. The person requesting an imputation of income must establish an evidentiary basis upon which this finding can be made. See: Homsi v. Zaya, 2009 ONCA 322, [2009] O.J. No. 1552 (Ont. C.A.).

[65] Once a party seeking the imputation of income presents the evidentiary basis suggesting a prima facie case, the onus shifts to the individual seeking to defend the income position they are taking. See: Lo v. Lo, 2011 ONSC 7663; Charron v. Carriere, 2016 ONSC 4719.

[66] The third question in Drygala v. Pauli, supra, is: "If there is no reasonable excuse for the payor's under-employment, what income should properly be imputed in the circumstances?" The court must have regard to the payor's capacity to earn income in light of such factors as employment history, age, education, skills, health, available employment opportunities and the standard of living earned during the parties' relationship. The court looks at the amount of income the party could earn if he or she worked to capacity. See: Lawson v. Lawson.

[67] A person's lifestyle can provide the criteria for imputing income. See: Aitken v. Aitken, [2003] O.J. No. 2780 (SCJ); Jonas v. Jonas, [2002] O.J. No. 2117 (SCJ); Price v. Reid, 2013 ONCJ 373.

5.3 Analysis

[68] The mother claimed that since March, 2017 she has supported the child and herself through social assistance payments, child support from the father and government tax credits and benefits.

[69] The mother denied receiving support from her boyfriend or earning any other income.

[70] The court agrees with the father that the evidence did not support the mother's denial.

[71] The mother claimed that she pays rent of $900 each month by withdrawing this amount from her bank account. However, a review of her bank account entries shows that for some months she doesn't make the necessary withdrawals to make this rent payment. If she is paying the full rent each month, it is from cash obtained elsewhere.

[72] The mother was also unable to explain how she met the monthly deficit in her budget, being the difference between her claimed expenses and income. The most likely explanation is that she has other cash sources. This could be from part-time work at the marijuana dispensary, on-line marijuana sales or support from her boyfriend. At this point, the source of her funds does not matter.

[73] The father presented a text from the mother from early in 2017, where she complained about working two jobs. The court does not accept the mother's explanation that the two jobs were, as she stated, "I'm a mom" and "I'm a human being". It finds that she was likely working part-time at the marijuana dispensaries at that time.

[74] However, circumstances have changed for the mother since early in 2017. The child is now with her full-time. Due to her behavioural issues, the child was only able to go to school (until recently) for half-days. There were many school meetings to deal with the child's struggles. The mother and child have also been actively engaged in counseling at Aisling Discoveries. The child's needs have significantly impaired the mother's ability to work.

[75] The child's special needs will likely continue to impair the mother's ability to earn income.

[76] The court finds that it is reasonable for the mother to reduce her work hours and focus on the child's needs at this time.

[77] The mother has limited earning capacity. She has a high school education. She also has health limitations that restrict her from doing physical work. She has had rheumatoid arthritis for most of her life. She has had her right hip and left knee replaced and needs a left ankle replacement.

[78] The mother is leading a very modest lifestyle. This was apparent from her bank account entries. She and the child are living in the basement of her boyfriend's grandmother's home. While the mother is likely receiving some cash funds, it isn't a significant amount.

[79] The father tried to establish that the mother is being well supported by her boyfriend. The evidence did not support his contention. The boyfriend also has a modest income. He works as a landscaper and snow remover and receives employment insurance benefits during the winter. He lives in the basement of his mother's home. If he is helping the mother financially, it isn't much.

[80] The court will impute the mother's annual income at $5,000 for temporary support purposes. The addition of this amount to her social assistance payments, government benefits and the child support she receives from the father totals an amount that is consistent with the lifestyle she appears to be living. The court finds that she is earning or is capable of earning this annual income.

Part Six – Temporary Spousal Support

6.1 Entitlement

[81] Section 30 of the Family Law Act (FLA) states that every spouse has an obligation to provide support for himself or herself and for the other spouse, in accordance with need, to the extent that he or she is capable of doing so. Subsection 33 (8) of the FLA sets out the purposes of spousal support and subsection 33 (9) of the FLA sets out how to determine the amount of spousal support. The court has considered these provisions in making this order.

[82] Spousal support is not merely a consideration of needs and means. In determining the appropriate amount of spousal support, compensatory and non-compensatory considerations should be taken into account in an effort to equitably alleviate the economic consequences of the breakdown of the relationship. See: Rioux v. Rioux, 2009 ONCA 569, [2009] 97 O.R. (3d) 102 (OCA). Entitlement can be based on compensatory, non-compensatory or contractual grounds. See: Bracklow v. Bracklow.

[83] In Kowalski v. Grant, 2007 MBQB 235, 2007 CarswellMan 422 (ManQB), the court set out the following principles in dealing with temporary spousal support motions:

1. Interim support is to provide income for dependent spouses from the time the proceedings are instituted until trial.

2. The court need not conduct a complete inquiry into all aspects and details to determine what extent either party suffered economic advantage or disadvantage as a result of the relationship. That is to be left to the trial judge.

3. Interim support is a holding order to maintain the accustomed lifestyle if possible pending final disposition as long as the claimant is able to present a triable case for economic disadvantage.

4. Interim support is to be based on the parties' means and needs assuming that a triable case exists. The merits of the case in its entirety must await a final hearing.

[84] In Robles v. Kuhn, 2009 BCSC 1163, the court added the following considerations:

1. On interim support motions, needs and ability take on greater significance.

2. On interim motions, the need to achieve self-sufficiency is of less importance.

3. Interim support should be ordered within the Spousal Support Advisory Guideline (SSAG) range unless exceptional circumstances dictate otherwise.

4. Interim support should only be ordered where a prima facie case for entitlement has been set out.

[85] It must be kept in mind that an interim support award is a temporary order only and inevitably imperfect. See: Cardoso v. Cardoso, 2013 ONSC 5092. It is meant to provide "a reasonably acceptable solution to a difficult problem until trial". See: Chaitas v. Christopoulos, [2004] O.J. No. 907 (S.C.J.).

[86] The mother established her entitlement to temporary spousal support on both a compensatory and non-compensatory basis.

[87] The mother has a compensatory claim for spousal support based on the roles she assumed during the marriage. The father worked full-time and was the primary financial supporter of the family. The mother stayed at home with the child. The father has been able to focus on his career. The mother is the primary caregiver for a special needs child. This role already has and likely will continue to impair the mother's ability to earn income. She will be the parent who needs to be available to meet with the child's teachers and take the child to medical and therapeutic appointments. It will likely affect the jobs she can take and the hours she can work.

[88] The mother also has a non-compensatory claim for spousal support based on her need for support and the father's ability to pay it. The mother has become economically vulnerable due to the breakdown of the relationship. Her lifestyle has diminished since the separation. She and the child are in receipt of public assistance. She does not have the ability to be self-supporting on a temporary basis.

[89] The father has the ability to support the mother and the child. He earns a good income. He has no other support obligations or unusual expenses.

6.2 Amount of Spousal Support

[90] The Court of Appeal in Fisher v. Fisher, 2008 ONCA 11 stated that the Spousal Support Advisory Guidelines (SSAG), while only advisory, are a useful starting point to assess the quantum of spousal support once entitlement is established. They have been endorsed as ideal for use on temporary support motions. See D.R.M. v. R.B.M., 2006 BCSC 1921, [2006] B.C.J. No. 3299 (B.C.S.C.).

[91] A software analysis, based on the mother's imputed annual income of $5,000 and the father's annual income of $57,124, indicates that the SSAG low range of support is $722 per month. The mid-range of support is $884 per month and the high range of support is $1040 per month.

[92] The father asks that if spousal support is ordered, that it be awarded in a low amount due to his own limited financial resources.

[93] The mother asks for temporary spousal support to be ordered at the mid-range of the SSAG. She is asking for a November 1, 2017 start date. These are very reasonable requests since:

a) With a young child, most of the primary caregiver's disadvantage lies ahead of her, not behind her, namely the labour market consequences for the parent of ongoing child care. This is a strong consideration in ordering support towards the higher end of the SSAG ranges. See: Ideas of Spousal Support Entitlement (2015), 34 Can. Fam. L.Q. 1, by Professor D.A. Rollie Thompson.

b) The mother has a prima facie compensatory claim for spousal support.

c) There is a significant disparity in the parties' incomes.

d) The mother is on social assistance. The taxpayer should not be supporting the mother, to the extent that the father is capable of doing so.

[94] The software analysis reveals that the father will still enjoy a higher standard of living than the mother after paying the child and spousal support that will be ordered.

[95] The court recognizes that most of the spousal support award will belong to the assignee as long as the mother is on social assistance. This has no impact on the court's decision. The taxpayer should not be assuming any portion of the father's legal responsibility to the mother.

Part Seven – The Order

[96] A temporary order will go on the following terms:

a) The mother shall have custody of the child.

b) The mother shall consult with the father before making any non-emergency major decisions affecting the child.

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

d) The father shall have reasonable and generous access with the child, to include alternate weekends.

e) The child shall spend equal time with the parents during the winter school break. The child shall reside with the father from December 22nd at 7 p.m. until December 29th at 7 p.m. and with the mother from December 29th until the start of school.

f) The parties are to communicate with each other in a respectful manner.

g) The parties are not to demean the other in the presence of the child.

h) The child's residence shall not be moved outside of the City of Toronto without prior court order.

i) The father shall pay the mother child support of $528 each month starting on December 1, 2017, being the guidelines table amount for one child, based on the father's annual income of $57,124.

j) The father shall pay the mother spousal support of $884 each month starting on November 1, 2017.

k) A support deduction order shall issue.

[97] This case shall return to court on February 15, 2018 at noon for a settlement conference. Briefs are required.

[98] The software calculations upon which the spousal support order is based are attached to this decision. If either party feels that there is a mathematical or inputting error they have 7 days to make written submissions. The other party will then have 7 days to make a written response. The order is not to be taken out until the 7 days have expired without submissions, or until the court rules on the written submissions.

[99] If either party seeks costs of this motion, they are to serve and file written submissions by December 29, 2017. The other party will have until January 12, 2018 to respond. The submissions are not to exceed three pages, not including any offer to settle or bill of costs.

[100] All submissions are to be delivered to the trial coordinator's office on the second floor of the courthouse.

Part Eight – Concluding Comments

[101] It was clear to the court that both parents love and care about the child. They both are worried about her and are scared about her behavioural deterioration.

[102] The parents have many parenting strengths. However, their struggles in dealing with their separation are interfering with their ability to be the best parents they can be.

[103] The parents impressed the court as being intelligent and motivated to help the child. This gives the court some confidence that they can make the necessary personal changes to give the child the best chance to succeed.

[104] It is very important that the parties carefully examine their own behavior and ask themselves "what can I do better to protect my child from conflict?"

[105] The child needs both of them to do much better – and soon, before it is too late.

[106] The court encourages both parents to obtain counseling that addresses their feelings about the separation and how to deal with them in a healthier manner. The mother may already be getting this counseling through Aisling Discoveries. The Families in Transition program also provides very good services.

[107] The parents should also consider returning to mediation before the next court date. The child is not handling the parents' stress over the court action well. They should try as hard as they can to resolve this matter before it returns to court.

[108] If the matter returns to court it would be helpful to have information about:

a) How the child is functioning in her new school.

b) Counseling the parents are engaged in and any progress made.

c) The society's involvement with the family and its observations.

d) How each parent is supporting the child's relationship with the other parent.

[109] Lastly, the court thanks counsel for their professional presentation of the motions.

Released: December 4, 2017

Justice Stanley Sherr