Court File and Parties

Court File No.: Woodstock D145/15 Date: 2017-11-17 Ontario Court of Justice

Between:

Sandra Allison Rideout Applicant

— AND —

Andrew William Norman Payne Respondent

Before: Justice S. E.J. Paull

Heard on: October 16-20, 2017

Reasons for Judgment released on: November 17, 2017

Counsel:

• Grant Rayner, counsel for the applicant(s)
• Lloyd St. Amand, counsel for the respondent(s)

PAULL J.:

Introduction

[1] Before the court is a long-standing and bitter custody and access dispute concerning the parties' one child, Aidan, who was three when his parents separated for the final time in June 2015.

[2] This matter proceeded to trial for 5 days from October 16, 2017 to October 20, 2017.

Positions of the Parties

[3] In her application dated July 15, 2015 Aidan's mother, Sandra Rideout seeks an order for sole custody of Aidan with alternate weekend access to Mr. Payne, child and spousal support, supervised exchanges for access, and a restraining order.

[4] She takes this position, in part, on the basis that she has always been the primary caregiver of Aidan and on what she submits is Mr. Payne's relentless campaign to harass and undermine her as a parent. She also cites concerns with Mr. Payne's alcohol use and his physical violence towards her and, on the occasion of their final separation, towards Aidan.

[5] The respondent and Aidan's father, Andrew Payne, filed an answer seeking an order for sole custody and primary residence, and an order dismissing Ms. Rideout's claims.

[6] He seeks this relief primarily on the basis that he has always participated at least equally in the caregiving of Aidan and that this has continued since separation. He also contends that Ms. Rideout has a history of serious and long term drug abuse and untreated mental health issues. He submits that his plan for Aidan offer's him greater stability and opportunity.

[7] During his opening statement, counsel on behalf of Mr. Payne identified an alternate plan as joint custody with primary residence with Mr. Payne.

[8] The court has the benefit of a Report of the Office of the Children's Lawyer, prepared by a clinical investigator, Adrienne Hafeman dated June 7, 2016.

[9] The parties were subject to two orders during this proceeding. The first was the interim order of Fraser J. dated August 10, 2015 which required Mr. Payne to immediately return Aidan to Ms. Rideout, and set an interim care arrangement for Aidan to be with Ms. Rideout from Sunday at 6 PM to Thursday at 4 PM and with Mr. Payne from Thursday to Sunday. The order also granted interim custody to Ms. Rideout.

[10] The second is the interim without prejudice order of Pockele J. made on consent dated November 30, 2015 which ordered child support in the amount of $500 per month commencing December 1, 2015 payable to Ms. Rideout, and requested the involvement of the Office of the Children's Lawyer.

Background and Evidence

[11] The parties began their relationship sometime in 2008, and at the time of trial Ms. Rideout was 35 and Mr. Payne was 39 years old. The parties have one child together, Aidan, born April 2, 2012. Aidan is Mr. Payne's only child. Ms. Rideout has another child, Mia born November 24, 2005 from a previous relationship. Mia has access with her father on alternate weekends and he pays child support of $303 per month to Ms. Rideout.

[12] The parties agree that they had a tumultuous, on and off relationship with numerous separations, which involved Ms. Rideout leaving with the children to reside with her parents in London, Ontario.

[13] Mr. Payne has lived for many years in Innerkip in a home he purchased when his grandfather passed away. In 2008 Ms. Rideout moved in with Mia and the parties lived together until they separated for approximately 15 months in the spring of 2010. They reconciled and resumed cohabitation in the summer of 2011. Aidan was born in April 2012 and the parties separated again for approximately 16 months from August 2012 to December 2013. There were other separations of a shorter duration including one in July 2012 where Ms. Rideout and the children went to her parents' home in London for approximately one week. All the separations involved Ms. Rideout and the children moving in and out of Mr. Payne's home in Innerkip.

[14] The final separation took place at the end of June 2015. The parties have multiple involvements with police and the Children's Aid Society ("CAS"), due to repeated allegations during times of separation.

[15] The police were involved shortly after the separation in June 2015 and helped to negotiate a schedule for Aidan which had him with Ms. Rideout from Sunday to Thursday and Mr. Payne from Thursday to Sunday. There is disagreement between the parties about how the arrangement came about, and neither party is particularly happy with these arrangements.

[16] In July 2015 Mr. Payne withheld Aidan from Ms. Rideout. Ms. Rideout brought a motion and Fraser J. made the order of August 10, 2015 granting her interim custody and ordering Aidan's immediate return to her and further ordered that, "the agreed-upon status quo will resume as previously agreed", were Aidan was with Ms. Rideout Sunday to Thursday and Mr. Payne Thursday to Sunday.

[17] This status quo was continued since that time.

[18] Ms. Rideout testified as follows with respect to the parties' concerns with each other:

1. The multiple separations were the result of the abusive and toxic behaviors of Mr. Payne.

2. When the parties were together Mr. Payne would not assist around the home or with the children and would typically come home from work, consume alcohol and watch TV.

3. With respect to one of the separations prior to the birth of Aidan she stated that following an argument in a grocery store where she slapped him, he grabbed her to leave the store and backhanded her in the face in the vehicle on the way out of the parking lot. She did not seek medical care but it left her face, "busted up pretty good."

4. When the parties separated she moved with the children to her mother's home in London and then moved to her own residence in the same townhouse complex.

5. The parties separated for one week in July 2012 when Aidan was three months old following an argument during which she took refuge in the bathroom and Mr. Payne proceeded to damage the door by banging on it. The police were involved in that incident but no charges were laid.

6. During the separations Mr. Payne would obsessively contact her to pressure her into reconciling.

7. The final separation occurred on Father's Day in June 2015. She stated that Mr. Payne had been up drinking the night before and overreacted when Aidan woke him up early. He "violently spanked" Aidan to the point that Aidan hyperventilated. It took a long time for her to calm Aidan down but she resolved to separate because Mr. Payne's aggression was now being aimed at Aidan as well.

8. The parties had discussed separating after the school year in June 2015, but after this incident she decided to leave immediately.

9. She acknowledges occasional marijuana use when not in a caregiving role but denied further consumption.

10. She acknowledged smoking cigarettes but not in the house except occasionally out her bedroom window, and never in the presence of Aidan.

11. She acknowledged issues with depression and anxiety, particularly following the death of her father in 2014 and around the time of the separation in 2015, for which she sought counselling and the assistance of her family doctor.

12. She and the children are currently seeing a counsellor to address the "trauma" caused by Mr. Payne.

13. Since the final separation Mr. Payne has continued to harass and berate her through text and voicemail messaging, repeatedly accusing her of being a cheater and drug addict, that her boyfriend is a drug dealer, that she is mentally unstable, and that she has exhibited "drug fuelled rage". Numerous examples of these types of communications were filed as exhibits at the trial.

14. She stated that Mr. Payne's harassment extended to repeated and monthly calls to the police and CAS making false allegations.

15. Mr. Payne frequently accused her of living with her boyfriend Jay, and that he was a drug dealer. She acknowledged not mentioning Jay to the clinical investigator because it was her position that they never lived together and that they had been friends for years and only dated at times.

16. She stated that her emotional health was "not so good" as a result of Mr. Payne's constant harassment, name-calling, and putdowns. She suggested that this has affected her memory and that she had spoken to her doctor regarding PTSD, but there was no evidence of a formal diagnosis.

17. Mr. Payne's behavior has negatively impacted Aidan and Mia. Both are now in counselling and Aidan had developed a "tick" as a result of his anxiety.

18. She is currently single and lives only with Mia and Aidan.

19. She acknowledges moving to Komoka, Ontario in September 2017 without prior notice to Mr. Payne because she felt he would not have agreed. She has refused to provide him with her address because of her concerns for his harassment.

20. She stated her move was motivated by what was best for the children (cheaper accommodations and a better school) and permitted her to be closer to the children's appointments, and the clients of her cleaning business.

21. She feels Mr. Payne is controlling and excludes her from things related to Aidan. He has refused to let her attend medical appointments for Aidan. She acknowledged not providing Mr. Payne any information about Aidan's counselling appointments.

22. Ms. Rideout acknowledged allowing Aidan to stay overnight occasionally on Sundays with Mr. Payne but only because she had no choice when she did not have a car and he would refuse to drive.

[19] Mr. Payne testified with respect to the parties' concerns with each other as follows:

1. The parties had multiple separations largely due to Ms. Rideout's unstable mental health, drug use and, following Aidan's birth, a feeling by both parties of being overwhelmed.

2. He denies any physical abuse of Ms. Rideout or Aidan.

3. During the separations prior to the final separation the parties remained connected and he often drove Ms. Rideout and Mia to her karate lessons on Wednesday or to assist with errands.

4. He was very excited about being a father and regularly attended prenatal appointments.

5. When the parties were together he was always involved in meal preparation, spending time with the children, and in all aspects of childcare.

6. He acknowledged being a social drinker but denied excessive alcohol use.

7. With respect to his concern for Ms. Rideout's drug use he stated the following:

   a. Ms. Rideout has a long-standing dependence on marijuana and used it, "all day, every day".

   b. He did smoke marijuana with Ms. Rideout at times but not after she became pregnant with Aidan

   c. Ms. Rideout could not run out of marijuana or she would become, "out of this world crazy" and, "all hell would break loose" including screaming, yelling and throwing things. This would happen in front of the children.

   d. When he occasionally came home early from work he would find her to already be under the influence, even before Mia left for school.

   e. When he came home from work in the afternoon she would either be in the garage smoking marijuana or would go out to smoke marijuana as soon as he returned home.

   f. When he returned home from work he generally did everything for the children while Ms. Rideout absented herself to smoke marijuana.

   g. As a result of Ms. Rideout's drug use he was "scared to death" for the children every time he left the house.

   h. On weekends she would yell, scream, and throw things if she was woken up early, and spent most of the weekends out with friends and drinking and driving in his truck.

8. He completed the Caring Dads program as recommended by the OCL and filed a certificate of completion dated June 20, 2017.

9. He denied being controlling or harassing towards Ms. Rideout. He acknowledged sending the text messages that were filed as exhibits, and making numerous referrals to CAS, and calling London Police "countless times" about Ms. Rideout's drug use.

10. He saw nothing wrong with his behavior and felt the repeated texting was "valid". He did not acknowledge that it may adversely affect Ms. Rideout and indirectly Aidan.

11. He denied his behavior toward Ms. Rideout was malicious and stated that he was justified in his actions because he was protecting Aidan.

12. He takes Aidan to swimming lessons on Thursday evenings and wants Aidan to reside primarily with him and attend the public school in Innerkip which is very close to his home.

13. Since September 2017 Mr. Payne has lived with his current partner, Aliceson Andrew and her daughter Anna, age 7. They have known each other for approximately two years and plan to be married in 2019. She and Anna have a good relationship with Aidan (Ms. Andrew testified and confirmed this).

[20] Kim Noble testified on behalf of Ms. Rideout. She stated that she is a cousin of Mr. Payne and a friend of Ms. Rideout and that she babysat Aidan occasionally both before and after the final separation.

[21] She felt that the parties' relationship was like "oil and water" and noted that they often argued and "butted heads" with each other. She stated that Mr. Payne was very angry after the separation and she had to tell him on one occasion shortly after the separation in June 2015 not to speak in a derogatory manner about Ms. Rideout in front of Aidan. After that incident Mr. Payne left her home and never came back and they have not spoken since.

[22] Mr. Payne did not recall speaking negatively about Ms. Rideout to Ms. Noble and stated that he does not speak to her anymore because she is an alcoholic.

[23] The court received evidence from Ms. Rideout's mother, Christina Rideout. She has known Mr. Payne since 2008 when he and her daughter got together. She acknowledged that Ms. Rideout and the children stayed with her at times when the parties separated. She stated that at some point after the separation in 2015 Mr. Payne called her on a couple of occasions calling her daughter a "bitch", "whore", and a "drug addict". She responded by asking him not to call her again and hanging up. She also relayed an incident where Mr. Payne picked Aidan up from her home and there was yelling between the parties in front of Aidan.

[24] Mr. Payne denied making disparaging comments about Ms. Rideout to Christina Rideout, or even speaking to her on the phone. He said her home is a toxic environment and not appropriate for Aidan but provided few particulars.

[25] Norma Payne, Mr. Payne's mother testified. She was aware that the parties had a tumultuous relationship. She sees Aidan almost every weekend and sometimes at his swimming lessons on Thursday nights. She testified that she has observed that her son and Aidan enjoy a close relationship and she has never had any concerns with their interactions.

[26] Since the final separation she has only spoken to Ms. Rideout once when she called her to arrange to pick up Aidan because Mr. Payne was away. She testified that she did not pick up Aidan because Ms. Rideout refused to let Aidan go if Mr. Payne was not the one to pick him up. Ms. Rideout acknowledged this in her evidence.

[27] Neil Butler, a police officer and neighbor of Mr. Payne for approximately 15 years, testified that they are casual acquaintances as neighbors. He testified that he sees a lot of Aidan on weekends in the summer with Mr. Payne and always observed a positive and appropriate relationship between them.

[28] He testified that he believed that Ms. Rideout was aware he was a police officer and that she never spoke to him in the years they were neighbors about any concerns she had. He also confirmed that in all the years Ms. Rideout lived there he never witnessed any drug activity, or the smell of marijuana, or any suspicious or concerning activity.

[29] Lauren Hare, a child protection worker from the Children's Aid Society of London and Middlesex ("CAS"), testified that she has personally been involved in two investigations with the family.

[30] The first was in December 2015 resulting from a call from Mr. Payne concerning Ms. Rideout's drug use and that Aidan had left his mother's home without shoes and walked across a busy road to his grandmother's home. Within a week of the referral Ms. Hare attended Ms. Rideout's home unannounced and met with Ms. Rideout, Mia, and Aidan. No concerns were noted in the home, the children or with Ms. Rideout's presentation. Ms. Hare confirmed that the grandmother's home was in the same townhouse complex across a short stretch of grass and that occasionally Mia and Aidan had permission to walk over together. The concerns were not verified.

[31] The second investigation took place in February 2016 when a call was received from Mia's school that Ms. Rideout had been punched by her sister. Ms. Hare attended again and did not verify any concerns, however, on that day Aidan was present and playing with Mia upstairs in the home before leaving for an access visit with his father. While Ms. Hare was meeting with Ms. Rideout, Aidan came downstairs with a scratch on his face that she did not observe when she arrived. Aidan then left with Mr. Payne for his visit.

[32] Mr. Payne later made a referral that Ms. Rideout was angry and scratched Aidan's face. This allegation was not verified and Ms. Hare was firmly of the view that this did not happen as she was present in the home at the time.

[33] Ms. Hare confirmed that the CAS has received 19 referrals concerning Ms. Rideout starting in 2012, with none being verified. She confirms the CAS now views Mr. Payne as a "malicious referent" and will no longer investigate referrals from him concerning drug use by Ms. Rideout. She also confirmed that the referrals have continued with the last one from Mr. Payne being made in August 2017 involving an allegation that Mia held a knife to Aidan and then Ms. Rideout held the knife to Mia. Like all previous referrals CAS did not verify it and took no further action.

[34] Adrienne Hafeman, clinical investigator for the OCL testified and her Report was filed in the trial record.

[35] She has a BA degree in psychology and social work and a Master's degree in social work. Since 2004 she has worked in various fields of social work including in child protection, at a hospital, and as a counsellor. She has been a clinical investigator for the OCL since 2014.

[36] She was assigned to this matter on January 27, 2016 and provided the parties with her written report dated June 7, 2016.

[37] The concerns raised by the parents which formed part of her investigation mirrored what the parties identified in their testimony at trial and included the following:

1. Ms. Rideout was concerned with Mr. Payne's controlling behavior, his use of Aidan as a means to harass her, his inappropriate messaging to Aidan, and his past alcohol use.

2. Mr. Payne was concerned with Ms. Rideout's drug use, mental health, her unsuitable home environment and parenting skills, and her inappropriate messaging to Aidan.

[38] She interviewed the parents on 2 separate occasions each, conducted 2 observational visits with each parent and Aidan in their home, and met privately with Aidan on 4 occasions.

[39] Ms. Hafeman interviewed numerous collaterals including the following:

1. Rose Schnarr (Ms. Rideout's cousin a neighbor).

2. Amanda Rock (Mr. Payne's ex-wife).

3. Lauren Hare (London CAS).

4. Dr. Jeffrey Nicholls (Aidan's physician).

5. Christina Rideout (Ms. Rideout's mother and neighbor).

6. Neil Butler (Mr. Payne's neighbor).

7. Norma Payne (Mr. Payne's mother).

8. Dr. Rubina Malik (Ms. Rideout's physician).

[40] In addition to reviewing the court file, Ms. Hafeman received written reports from the following:

1. OPP-Oxford Detachment.

2. London Police Service.

3. Children's Aid Society of London the Middlesex.

4. Children's Aid Society of Oxford County.

[41] Ms. Hafeman noted the following observations during her investigation:

1. She observed a positive relationship between Aidan (who was 3 years old at the time) and both parents and Mia, and described Aidan as presenting as very intelligent and articulate for his age.

2. She observed both parents to speak of the litigation and issues between them in front of Aidan resulting in her having to redirect them both.

3. She cited a number of spontaneous comments Aidan made to her about his parents which she described as atypical for a three-year-old and led her to conclude that Aidan was more aware than he should have been of the issues between his parents.

4. She reviewed phone messages from Mr. Payne and text messages between the parties during her investigation that illustrated the parties' difficulty with communication. She noted that Mr. Payne would insist on communicating with Ms. Rideout and would escalate in his demands when she did not immediately respond, or respond in the manner he wanted. She felt this behavior was a trigger for Ms. Rideout. She noted that Ms. Rideout would attempt to resist engaging with Mr. Payne and this would, in turn, trigger him. She was concerned about Mr. Payne's desire to remain in close contact with Ms. Rideout, and believed it was an issue of control for Mr. Payne.

5. She reviewed voicemail messages from Mr. Payne from February 2016 which were left for Ms. Rideout right after Mr. Payne had picked up Aidan. The messages included Mr. Payne calling Ms. Rideout a drug addict, telling her that she was pathetic and had horrible parenting skills, and that she was manipulating a three-year-old and ruining his childhood. One message stated that he would be raising all these issues with the OCL. Meanwhile in both messages Ms. Hafeman could hear a child she believed was Aidan in the background.

6. When she challenged Mr. Payne with this at her next meeting with him only a few days later he claimed he did not remember but must have done so if she heard them.

7. She reviewed the significant police and CAS involvement from 2012 to 2016 which included repeated allegations made against one another. She noted that they were only made during times of separation.

8. Each party contacted police on four separate occasions. The records indicated that the police questioned the reliability of both parties and felt that each had made false allegations against the other to better their position in court.

9. The CAS reported that it viewed Mr. Payne as a "malicious referent", and Ms. Hafeman cited inconsistencies in his allegations throughout the collateral reports and her interviews with him.

10. She noted that despite the many accusations made against Ms. Rideout by Mr. Payne, no professional or personal collaterals, including Mr. Payne's mother and neighbor, provided any information to validate his concerns of drug use, mental health causing suicidality and instability, physical abuse of Aidan, or inadequate parenting.

11. She noted that despite Ms. Rideout's allegations that Mr. Payne may be drinking alcohol excessively, there was no evidence to support this concern.

12. She communicated to the parties that she felt strongly that they should not have any communication in front of Aidan. She stated that Ms. Rideout understood this concern and made efforts to put boundaries in place but that Mr. Payne resisted this recommendation. Mr. Payne sent repeated and escalating messages to Ms. Rideout, in spite of the advice of Ms. Hafeman, wanted to talk to Aidan together about lying (about the incident of the scratch on his face). It was clear Ms. Rideout did not wish to do this and in spite of Ms. Hafeman urging Mr. Payne that this was inappropriate in the circumstances, he brought it up anyway with Aidan present at a subsequent access exchange.

13. She gave evidence that up to the date of her investigation in early 2016, apart from the unverified report to the CAS received from Mia's school no reports to the CAS or police regarding Ms. Rideout come from anyone other than Mr. Payne.

14. She was concerned that Mr. Payne used poor judgment on a number of occasions with regard to Aidan that indicated his decision-making is more focused on his conflict with Ms. Rideout. For example, Mr. Payne acknowledged Aidan often got upset at exchanges, yet he used that time to send derogatory voicemail and text message to Ms. Rideout with Aidan in the car listening. He also indicated to Ms. Hafeman that he took Aidan to Ms. Rideout's home to cheer her up when she was apparently suicidal. Mr. Payne continued to seek opportunities to communicate with Ms. Rideout after Ms. Hafeman encouraged him to cease engaging with her when Aidan was present due to the high levels of conflict.

[42] Ms. Hafeman made numerous recommendations including that Ms. Rideout be granted sole custody of Aidan, with access to Mr. Payne every weekend from Friday to Sunday with supervised access exchanges, that the parties have no communication in the presence of Aidan, and that all communication between the parties flow through a third-party or through a digital platform like "Our Family Wizard". Further, any communication between the parties was to be specifically limited to pertinent information concerning Aidan's care.

[43] Mr. Payne filed a Dispute to the Report of the OCL, found at Tab7 of the trial record which essentially restated his position to the OCL and the position he took at trial about his concerns with Ms. Rideout. In paragraph 2 of his Dispute he states that, "… Ms. Rideout was able to hide her severe mental health and addiction issues from the OCL, which will undoubtedly result in detriment to child Aidan".

[44] His Dispute further outlined at paragraph 6 that he submitted a complaint to the College of Physicians and Surgeons against Ms. Rideout's family doctor, Dr. Malik because she stated to Ms. Hafeman that she had no concerns with drug use by Ms. Rideout. Mr. Payne stated that he, "has firsthand knowledge that Dr. Malik does have substance concerns as it relates to Ms. Rideout, as she has limited her prescription quantities to her as a result of addiction concerns. Ms. Rideout's suicidal ideations are also not historic, as Mr. Payne has received text messages in that regard from Ms. Rideout as recently as December, 2015".

[45] Mr. Payne did not provide this evidence to the OCL and did not seek to adduce evidence at trial to support any of these assertions other than to confirm he made a complaint about Dr. Malik. The text messages he presented at trial do not support that Ms. Rideout was at any time suicidal.

[46] The Report of the Office of the Children's Lawyer is not an expert report such as might be had under s. 30 of the Children's Law Reform Act. The author of an OCL report is a fact finder. Section 112 of the Courts of Justice Act does give the author of the report, on behalf of the Office of the Children's Lawyer, the power to make recommendations on the resolution of the issues but the recommendations are only a starting point not the last word. Ganie v. Ganie, 2015 ONSC 6330.

[47] The weight that the court assigns to the clinical investigator's recommendations depends on the nature and extent of the investigation and the facts upon which the assessor based her recommendations. The court needs to examine how the assessment was conducted, including the process used, how many visits there were, and whether the standard assessment guidelines were met, when determining what value if any to place on the assessment and its recommendations. Ganie, supra, para. 20.

[48] The Court of Appeal in Woodhouse v. Woodhouse confirmed that an assessor's evidence was not determinative of the issues before the court, but was merely one piece of the evidence for the court's consideration. In other words, it is up to the court, not the assessor, to determine the facts.

[49] I was not persuaded by Mr. Payne's evidence with respect to his concerns with Ms. Rideout's mental health and drug use. There was no collateral or independent evidence to support his concerns, even in the testimony of his own witnesses. Both the police and the CAS have raised concerns about the veracity of his claims against Ms. Rideout.

[50] His evidence of "all day, every day" drug use by Ms. Rideout that would result in drugged out rages, and screaming, swearing and throwing things when she ran out of marijuana, is inherently unbelievable when viewed on its own or in the context of the evidence of Ms. Hafeman and Ms. Hare.

[51] Not only is his portrayal of Ms. Rideout inconsistent with all the independent evidence, but inconsistent in my view with his own claim of supporting that Ms. Rideout have Aidan in her care 3 weekends out of 4 unsupervised, if Aidan is placed in his primary care and custody. I am unable to reconcile this position with his claim that Aidan is not safe in Ms. Rideout's care because of her drug use and mental health issues.

[52] I have similar concerns with respect to parts of Ms. Rideout's testimony that relate to her concerns with Mr. Payne. I do not accept her evidence with respect to Mr. Payne's alcohol consumption, or the physical abuse of herself and Aidan as she testified.

[53] There was no independent evidence to support these concerns. As outlined in the OCL report, the police were of the view that both parties were making self-serving and false allegations to benefit their custody claims.

[54] The police report for June 23, 2015 summarized by Ms. Hafeman, which was at the time Ms. Rideout alleges that Mr. Payne assaulted Aidan, states that Ms. Rideout contacted police about ending their relationship and that Mr. Payne was verbally abusive, but she denied any physical abuse. The police brokered the temporary care arrangement at that time. The police summary states that neither party complained of assaults, threats, or fear for safety.

[55] The final separation in June, 2015 was due to Mr. Payne violently spanking Aidan according to Ms. Rideout. It is not reasonable that she would not have reported it to the police or anyone else at that time.

[56] Further, I do not accept her assertion that her face was "busted up pretty good" after a backhand from Mr. Payne that lead to an earlier separation. Ms. Rideout testified that she went to reside at her mother's after that incident. Christine Rideout did not testify to observing any injuries or being aware of any physical violence, and Ms. Rideout did not make that specific allegation to the police at that time.

[57] Having said this I find on a balance of probabilities that both parties became physical at times during their relationship. The police summary of July 3, 2012 noted in the OCL Report referred to the parties yelling and swearing at each other which ended with Mr. Payne damaging the bathroom door. The police summary of August 27, 2012 refers to the parties engaging in a "brief physical struggle" over Aidan. Ms. Rideout also acknowledged that both she and Mr. Payne had reacted physically during the relationship.

[58] Both parties testified they were the primary caregivers of Aidan during the relationship and that the other party did very little. I do not accept either party's portrayal in the circumstances. I accept that both parties were actively involved in parenting Aidan during their relationship. This would be consistent with Ms. Hafeman's observations that both parents generally exhibited the ability to appropriate care for Aidan, and that Aidan was comfortable with both his parents.

[59] I accept the evidence of Ms. Noble and Christina Rideout concerning Mr. Payne speaking to them about Ms. Rideout in a derogatory manner (in the case of Ms. Noble in front of Aidan). Their evidence was convincing and cogent. It was consistent with the voicemail messages heard by Ms. Hafeman where Mr. Payne was denigrating Ms. Rideout with Aidan being heard in the background. It is also consistent with the tone of Mr. Payne's text messages entered into evidence which were clearly denigrating towards Ms. Rideout. Further, he did not think his comments were inappropriate in any event, which suggests to me he would have no difficulty sharing his views of Ms. Rideout with others.

[60] It was clear to me during Mr. Payne's testimony that he had a difficult time containing his adamant and negative tone towards Ms. Rideout and that he easily escalated when discussing her.

[61] I also accept the evidence of Norma Payne and Mr. Butler with respect to the positive and warm relationship they have observed between Aidan and his father. This was consistent with Ms. Hafeman's observations that when Mr. Payne was focused on Aidan, he could do very well.

[62] With respect to the OCL Report and Ms. Hafeman's testimony I have carefully considered the observations that she made during her investigation, and the facts provided to her by collateral sources, which include several professional collaterals whose personal knowledge and impartiality lend credence to the information they provided.

[63] I found Ms. Hafeman's evidence to be clear, convincing, and cogent. She conducted a thorough investigation which included contacting the appropriate collaterals. She also chose to conduct additional observation visits with the parents and interviews with Aidan beyond what was required by OCL protocol.

[64] I find that the evidence that was provided by the parties or on their behalf has not cast substantial doubt on the accuracy of her observations or the information she received from collateral sources. The evidence of those collaterals that did testify was consistent with Ms. Hafeman's summary and her observations.

[65] Further, neither party has successfully challenged or discredited the conclusions she has reached, or the facts upon which those conclusions are based. Ms. Hafeman's observations and recommendations were both thoughtful and practical.

[66] Based on all these considerations, where the evidence of the parties differs from that of Ms. Hafeman I accept the observations of Ms. Hafeman.

[67] The foregoing findings can be summarized as follows:

1. I accept the factual basis of the OCL report as testified by Ms. Hafeman.

2. Both parties have made self-serving, exaggerated or false claims against the other.

3. Mr. Payne has not established that Ms. Rideout has a drug problem and mental health issues which impact her ability to parent.

4. Ms. Rideout has not established that Mr. Payne has a history of physical violence or an alcohol problem that would impact his ability to parent.

5. The parties relationship was volatile, on and off again, with mutual yelling, swearing and physicality at times, including in front of Aidan. Both parties have, at times, exposed Aidan to the adult conflict.

6. Mr. Payne has engaged in persistent, unwanted, and inappropriate contact with Ms. Rideout which is designed to distress, belittle and control her, and has at times been in Aidan's presence. Mr. Payne has spoken about Ms. Rideout in a derogatory manner to both Ms. Noble and Christina Rideout (in the case of Ms. Noble, in the presence of Aidan).

7. In February, 2016 Mr. Payne left at least two derogatory voicemail messages for Ms. Rideout with Aidan present. He has also engaged in an ongoing and persistent pattern of text messaging Ms. Rideout in a manner that is inappropriate and derogatory.

8. Mr. Payne has displayed no insight into the potential impact of his behaviors on Ms. Rideout and their indirect impact on Aidan.

9. Both parties have made inaccurate and self-serving allegations to police. Mr. Payne has exhibited a long-standing pattern of making false allegations to the CAS, most recently in August 2017. The CAS regard Mr. Payne, justifiably in my view, as a malicious referent.

10. In spite of his parents' conflict, Aidan has a positive and loving relationship with both, and both are able to provide an appropriate primary residence for him.

11. During the relationship both parties were actively involved in caring for Aidan.

Law and Analysis

Custody and Access

[68] Ultimately, the court must decide what custodial order is in Aidan's best interests and consider the factors set out in subsection 24 (2) of the Children's Law Reform Act in reaching this decision. This subsection reads as follows:

Best interests of child

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

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

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

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

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

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

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

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

(e) any plans proposed for the child's care and upbringing;

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

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

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

[69] Section 24 (4) of the CLRA requires me to consider if a party has committed violence or abuse against the spouse or parent of the child, a member of the person's household, or the child when considering their ability to parent.

[70] No one factor in the statutory definition of a child's best interests is given statutory preeminence. The court should consider the level of hostility and the extent to which that hostility may undermine the child's stability. Wilson v. Wilson, 2015 ONSC 479.

[71] The Ontario Court of Appeal in Kaplanis v. Kaplanis 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 cannot 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.

[72] In Giri v. Wentges, 2009 ONCA 606 the court adds the following at paragraph 10:

[10] Second, as this court has repeatedly held, joint custody requires a mutual commitment between parents to cooperate on matters pertaining to the raising of their child, and an ability for the parents to put their own interests behind those of the child. The Ontario Court of Appeal in Kaplanis v. Kaplanis has made it clear that an interim custody order and how it has worked is a relevant consideration for the trial judge. Ladesic-Hartmann v. Hartmann

[73] 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. Graham v. Butto, 2008 ONCA 260, Roy v. Roy.

[74] I note in particular the reasons of Justice J.C. Murray in the case of Jackson v. Jackson, paragraphs 7 - 25 which highlight the toxic effect of parental conflict on children. Numerous studies demonstrate the significant negative impact parental conflict has on children which continues in both the short and long term and is a major source of harm to children.

[75] 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. Griffiths v. Griffiths 2005 ONCJ 235, Warcop v. Warcop. 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.

[76] The court in Izyuk v. Bilousov, 2011 ONSC 6451 stated the following at para. 504:

"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."

[77] The test for determining the appropriate residential and access arrangement is also what order is in the best interests of the child. An access parent has the right to visit and be visited by a 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. S. 20(5) CLRA.

[78] The court must ascertain the child's best interests from the perspective of the child rather than that of the parents and the child should have maximum contact with both parents if it is consistent with the child's best interests. Gordon v. Goertz.

[79] Both parties testified to comments purportedly made by Aidan which support their position with respect to concerns with the other parent. Counsel confirmed that these were being offered as part of the narrative and not for the truth their content. What they clearly illustrate to the court, along with the other facts that I have accepted, is that both parents, particularly Mr. Payne, have exposed Aidan to the adult conflict. This was a view shared by Ms. Hafeman.

[80] The voicemail messages and text messages from Mr. Payne are particularly concerning. Ms. Hafeman heard Aidan in the background of Mr. Payne's voicemail messages denigrating Ms. Rideout, and the texting which was observed by Ms. Hafeman during her investigation and those filed as exhibits at trial, establish a concerning an ongoing pattern of harassment by Mr. Payne as a means of denigrating and controlling Ms. Rideout under the guise of parenting.

[81] It is clear from the text message exchange from December 2016 regarding a doctor's appointment for Aidan that Mr. Payne was seeking to prevent Ms. Rideout from attending because he felt she would behave inappropriately, illustrated by what he referred to as her "drugged out rage" the night before. This is a further example of his controlling behavior and was done in spite the fact that Ms. Rideout had interim custody.

[82] Even after hearing Ms. Hafeman's concerns with the manner of his communication and his repeated and false allegations to CAS and the police, Mr. Payne showed no insight into why it was inappropriate or that they could impact Aidan negatively by exposing him to repeated investigations and interviews by the authorities, and indirectly because of the negative impact of his behavior on Ms. Rideout.

[83] Mr. Payne remained adamant that he is acting appropriately and in Aidan's best interests when he behaves in this manner.

[84] I disagree. The manner of his communication with Ms. Rideout and his persistent and unfounded complaints to the police and CAS are malicious and I find that they are designed to denigrate and control her, and to undermine her role as a parent. I agree with Ms. Hafeman the Mr. Payne is more focused on Ms. Rideout than on Aidan. His behavior is not consistent with co-parenting but rather in diminishing Ms. Rideout as a parent.

[85] His journal entries for access exchanges filed by Mr. Payne to support his case illustrate the degree of toxicity he displays towards Ms. Rideout. Virtually all the entries were negative and highly critical of Ms. Rideout.

[86] I agree with Ms. Hafeman that Mr. Payne can do a good job parenting Aidan when he is not focused on Ms. Rideout. Unfortunately he is not, on the evidence before me, able to appreciate this himself.

[87] I further agree with Ms. Hafeman that while both parents have behaved at times in ways which were not child focused, that Ms. Rideout has attempted to put appropriate boundaries in place and has exhibited more insight than Mr. Payne.

[88] However, refusing to permit Norma Payne to pick up Aidan on one occasion when Mr. Payne was away was not a child focused response, even if Mr. Payne had not communicated this to her in advance. Further, the manner in which Ms. Rideout moved to Komoka which included not advising Mr. Payne until after the fact was not appropriate. This matter should have been addressed through counsel or the court. To simply move and advise after the fact that there is a new location for access exchange with no particulars seems to me designed to provoke as much as it was to avoid confrontation. In spite of the way it was handled I accept that it has permitted Ms. Rideout to find better and cheaper accommodation than in London.

[89] In my view both parties have allowed their conflict with each other to impair their judgment at times and to negatively impact Aidan. Ms. Hafeman was also concerned with Aidan being coached, and both parents had to be redirected from discussing the conflict with her in front of Aidan.

[90] In spite of his parents' conflict, Aidan has enjoyed a lengthy period of considerable time with both parents. Aidan has a loving connection with both parents and his extended families, and while he is too young to provide views and preferences I accept Ms. Hafeman's observations of Aidan's closeness to both Ms. Rideout and Mr. Payne.

[91] Mr. Payne takes the position that he can offer more stability and opportunity to Aidan and cites that Ms. Rideout has moved several times resulting in Mia changing schools twice since separation and Aidan changing schools once. I do not accept that Ms. Rideout's moves to London and now Komoka illustrate that she is not able to provide stability. The move to London was a result of the parties' separation and her recent move to Komoka has given her an opportunity to find more affordable accommodations.

[92] Ms. Rideout managed the best she could on limited resources, part of which was the result of Mr. Payne not paying any child support until six months after separation.

[93] Both parents are able to provide Aidan with a stable and loving home. My primary concern relates to the level of hostility, particularly from Mr. Payne, and the extent that this has and could continue to undermine Aidan's stability.

[94] This is not a case where I have any confidence that the parties will be able to communicate effectively going forward. Since separation there is little evidence of effective communication and problem-solving even with the assistance of two experienced family law lawyers.

[95] Aidan has been repeatedly exposed to the conflict between the parties and to impose an order for joint custody would only increase the likelihood of more conflict and dysfunction, and lead to him being exposed to more conflict.

[96] I note that Court of Appeal has upheld joint custody in the absence of reasonably effective communication between the parties where it has been necessary to sustain a child's contact with a parent who has been subjected to a campaign of alienation. For example, such an order was upheld where a mother had laid down a pattern of resisting the father's access and was found by the trial court to be unable to appreciate the importance of the father's relationship with their children. Andrade v. Kennelly, 2007 ONCA 898.

[97] This is, however, not a case where joint custody is needed to prevent Ms. Rideout from limiting Mr. Payne's contact with Aidan. Throughout the lengthy period of access under the interim order there was no evidence that either party displayed a pattern of resisting access. The access occurred consistently throughout that period.

[98] This is also not a case where joint custody is necessary to preserve a balance between separated parents. In my view, a joint custody order in the circumstances of this case will only perpetuate hostilities and power struggles, and increase the likelihood of Aidan's exposure to them.

[99] In all the circumstances of this case a joint custody and a shared parenting arrangement is not workable or in the best interest of the child. A shared residential arrangement, particularly for young children, requires a high degree of cooperation, communication, mutual respect, and a commitment to put the children's needs first. Mr. Payne has not displayed enough of these qualities on the evidence before me to support a joint custody or a shared residential arrangement.

[100] The issue is not to reward or punish either parent but to put an arrangement in place that will best serve the interests of the child. Having considered all the factors outlined herein, and in s.24 (2) of the CLRA, the best interests of Aidan support an order for sole custody in favor of Ms. Rideout with liberal access to Mr. Payne. It is also necessary in the circumstances that the residential arrangement be highly structured and designed to limit the parties' interactions and to reduce Aidan's exposure to adult conflict.

[101] It is in Aidan's best interest to continue to spend significant time with his father on weekends, however, it is appropriate that Aidan have at least 1 weekend out of 4 to spend with his mother and sister. He has not spent a weekend with them since his parents' separation.

Child and Spousal Support

[102] The annual incomes of the parties are as follows:

	Mr. Payne	Ms. Rideout
2014	$91,617	$1,200
2015	$66,085	$10,966
2016	$69,253	$4,377
2017	$78,124 (prorated)	$12,000 (estimated)

[103] Counsel for Ms. Rideout provided various calculations which proposed for the purposes of support that the figure of $12,000 be used as Ms. Rideout's income.

Child Support

[104] The Family Law Act imposes an obligation on every parent to provide support for his or her minor children to the extent that the parent is capable of doing so. The purposes of an order for support of a child is to recognize that each parent has an obligation to provide support for the child, and to apportion the obligation according to the Child Support Guidelines.

[105] The Family Law Act requires that a court making an order for the support of the child to do so in accordance with the Child Support Guidelines.

[106] On the basis of Mr. Payne's income, prorated from a current paystub, ongoing child support shall be payable by Mr. Payne for one child in the amount of $709 per month based on his 2017 income of $78,124 commencing November 1, 2017.

[107] With respect to arrears the parties are the subject of an interim order which ordered child support payable in the amount of $500 a month commencing December 1, 2015. It was suggested by counsel for Mr. Payne that it was based on a set off calculation because it was a shared custody arrangement with 3 of 7 nights per week with Mr. Payne.

[108] I agree that in the circumstances that the arrangements under the interim order constitutes a shared custody arrangement for the purposes of section 9 of the Child Support Guidelines, and that a set off of child support for that period is appropriate.

[109] Arrears in child support from July 1, 2015 to the end of October 2017 are calculated using Mr. Payne's annual incomes for those years noted above, and Ms. Rideout's income of $12,000 per year. Mr. Payne is entitled to a credit for payments of $500 per month from December 1, 2015 to present.

[110] For 2015 child support of $604 is set off by $40 for a total of $564 per month payable from July 1, 2015 to December 1, 2015. The total payable is $3,384 minus $500 paid by Mr. Payne for December 2015 under the interim order leaving arrears of $2,884 for 2015.

[111] For 2016 child support of $632 is set off by $40 for a total of $592 payable per month. Mr. Payne paid $500 per month under the interim order leaving $1,104 and total arrears for the year ($92 x 12 months).

[112] For 2017 child support of $710 is set off by $40 for a total of $670payable per month. Mr. Payne paid $500 per month under the interim order leaving $1,700 in total arrears up to October 31, 2017 ($170 x 10 months).

[113] As a result of the foregoing, arrears of child support total $5,688.

Spousal Support

[114] Ms. Rideout seeks an order for spousal support from the date of separation on the basis of her need and Mr. Payne's ability to pay, pursuant to calculations provided by her counsel under the Spousal Support Advisory Guidelines (SSAG).

[115] The SSAG calculations provided outline ranges of spousal support based on the parties incomes noted above. However, while the guidelines are a useful tool they do not take the place of a proper analysis. They are only a guideline to be considered along with the specific factors applicable in the case once entitlement has been established.

[116] Mr. Payne opposes the claim on the basis that Ms. Rideout is healthy and skilled and has not met the fundamental obligation she has to support herself.

[117] Ms. Rideout filed a financial statement and testified that her financial situation is currently supported by monies from Ontario Works, child tax benefit, child support from Mia's father of $303 per month, $500 child support from Mr. Payne, and income from a business she operates called Sandra's Maid and Clean. She testified to between $500- $900 per month in income from her business.

[118] Mr. Payne filed a financial statement and testified that he has worked full time since 1995 as a construction electrician and currently works for Glenile Electric. He has been with the same employer for a number of years and his income has remained relatively consistent except for 2014 when he worked a lot of overtime on a special project.

[119] In determining entitlement and the amount of support, this court is governed by the Family Law Act (the "Act"). Section 30 of the Act sets out that every spouse has an obligation to provide support for his or her spouse in accordance with need, to the extent that he or she is capable of so doing. I have considered the purposes of an order for spousal support that are set out in subsection 33(8) of the Act and the factors in determining the award set out in subsection 33(9) of the Act in making this decision.

[120] I am satisfied that Ms. Rideout meets the definition of a "spouse" under s. 29(b) of the Act and therefore has standing to make a claim for support.

[121] The parties lived together and had a child together, managed the household together and presented themselves to the community and participated in family functions as a couple.

[122] The parties' cohabitation between 2008 and 2015 qualifies their relationship as one of "some permanence" on the basis of the factors outlined above, in spite of periods of separation during that time totaling approximately 2 ½ years.

[123] I am guided by the court in Depatie v. Squires (2011), 2011 ONSC 1758, addt'l reasons 2011 ONSC 4737, aff'd 2012 ONSC 1399 (Div.Ct.) that held that the duration of cohabitation will be measured from the time it begins until the time it finally ends. Periods of separation within that time will not be deducted when computing the duration.

[124] Any issue with the brevity of the cohabitation goes to quantum not standing.

[125] 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. Rioux v. Rioux, 2009 ONCA 569. Entitlement can be based on compensatory, non-compensatory or contractual grounds. Bracklow v. Bracklow.

[126] Compensatory support is premised on a marriage being a joint endeavor, and seeks to alleviate economic disadvantage by taking into account all the circumstances of the parties, including the advantages conferred on either spouse during the relationship. It is concerned with an equitable sharing of the benefits of the relationship. Contractual entitlement, on the other hand, flows from the express or implied agreement. Finally, non-compensatory support may be ordered "where it is fit and just to do so." Poirier v. Poirier, 2010 ONSC 920.

[127] Where compensation is not the basis, the support obligation may arise from the relationship itself when a spouse is unable to become self-sufficient. It can be based on need. Under this model, spousal support will be based on economic hardship resulting from the breakdown of the marriage, but not necessarily the roles assumed during the marriage. The needs-based support could therefore consider the recipient's ability to become self-sufficient.

[128] The Court of Appeal in Fisher v. Fisher, 2008 ONCA 11 stated that before applying the SSAG, entitlement to support must first be established.

[129] On its own, a mere disparity of income that would generate an amount under the SSAG does not automatically lead to entitlement. Lee v. Lee, 2014 BCCA 383. However, in practice, entitlement will generally be found in cases where there is a significant income disparity at the time of the initial application. Spousal Support Advisory Guidelines: The Revised User's Guide, April 2016: Professor Carol Rogerson and Professor Rollie Thompson.

[130] This is not a compensatory support case. The applicant did not give up employment prospects or career aspirations in the relationship. She did not contribute to the respondent's career. The evidence did not satisfy me that she contributed more to household management than the respondent. I have already found that both parties were involved in caring for Aidan. Both parties worked during the relationship. Ms. Rideout worked sporadically at various jobs and Mr. Payne worked as an electrician. There was also no evidentiary basis to find a contractual foundation for spousal support. There was no clear agreement between the parties what their respective roles were to be in the relationship.

[131] Ms. Rideout is making a needs based, non-compensatory support claim in order to assist her in transitioning to self-sufficiency. Ms. Rideout worked sporadically throughout the relationship and was otherwise dependent on Mr. Payne. Mr. Payne was aware of her work history and testified that she only ever held a job for a few months at a time. He accepted the applicant as she was. He financially supported her during the cohabitation. It was a relationship of relatively short duration. There continues to be a great disparity in their incomes.

[132] If the court is going to apply the SSAG it must use the Child Support Guidelines for income determination (this includes the ability to impute income), or explain why they are not being applied. Further, there is no difference in using SSAG under Family Law Act or the Divorce Act. Mason v. Mason, 2016 ONCA 725.

[133] Social Assistance is not income and is not included. The Canada Child Benefit is included. Revised User's Guide to SSAG.

[134] Ms. Rideout testified that she receives $500-$900 per month from her cleaning business. Counsel for Ms. Rideout suggested that the amount of $12,000 per year in employment income be used for the purposes of calculating support. Using Mr. Payne's average income over the last three taxation years of $71,154 and Ms. Rideout's employment income of $12,000 the SSAG produce a range of $608 to $1026 per month, with a mid-range of $808 per month in spousal support for a time period of between 3.5 and 13 years.

[135] The applicant has suffered economic hardship as a result of the breakdown of the relationship. She had to live with her parents for a period of time following the separation and has been on Ontario Works at various times since separation. At the time of trial a portion of her income was provided by Ontario Works.

[136] She has and continues to have the need for support. By contrast, Mr. Payne has been able to live comfortably since the separation. He has a significant income, and owns his home. He has not paid any support to the applicant and only began paying child support six months after separation.

[137] A basic principle of spousal support law is that the recipient must make reasonable efforts to become economically self-sufficient. Mr. Payne argues that Ms. Payne has not made such reasonable efforts.

[138] While I am satisfied that Mr. Payne has the ability to provide support and Ms. Rideout has established a level of need for support, there remains some question in my view the extent of that need based on the less than clear financial picture she provided to the court particularly with respect to her business, and her efforts to otherwise earn income since separation.

[139] Ms. Rideout testified that in 2007 she obtained qualifications from CDI College as a Medical Lab Assistant but has not worked in that field. She testified that she commenced her cleaning business in 2015 after taking a business course with the assistance of Ontario Works. She obtained a business loan to purchase a vehicle and supplies and stated she does a lot of marketing to grow her business. At this time her business is directed towards residential cleaning however she is seeking to expand into commercial cleaning.

[140] She testified that one of the main reasons for her move to Komoka, in addition to feeling it was better for her children, was that she was closer to her clients.

[141] This, however, was inconsistent with her later testimony that her business income has actually gone down since the move to Komoka. She provided no explanation or particulars for this apparent drop in her business income.

[142] A self-employed person has the onus of demonstrating clearly the basis of their gross and net income. This includes demonstrating that the deductions from gross income should reasonably be taken into account in the deduction of income for support purposes. Whelan v. O'Connor.

[143] A self-employed person has the inherent obligation to put forward not only adequate, but comprehensive records of income and expenses, from which the other party and the court can draw conclusions and the amount of support can be established. Meade v. Meade, (2002).

[144] A party must make full and complete financial disclosure to ensure that the information required to make a decision on the issue is before the court. Charron v. Carriere, 2016 ONSC 4719. The court will usually draw an adverse inference against a party for his or her failure to comply with their disclosure obligations as provided for in section 21 of the guidelines. Smith v. Pellegrini, Maimone v. Maimone.

[145] The onus is on Ms. Rideout to support her claim for spousal support by providing a full and complete financial picture. She has not done so. She acknowledged using a bookkeeper, however, she chose to provide no evidence by way of financial records or statements, and there was no information on the number of clients, revenues, deductions etc. for her business.

[146] I note that the right of spousal support ought not to be conditional upon a spouse demonstrating that he or she has made every effort to provide for themselves or become self-reliant. Indeed, the duty to self-support imposed on every spouse by section 30, is tempered with the words, "to the extent that he or she is capable of doing so".

[147] However, there was no evidence on the prospects and viability of her business which has justified her not pursuing employment as a Medical Lab Assistant or otherwise. She testified to no other job search efforts but acknowledged that she was healthy and there was no reason she could not be employed.

[148] While I am satisfied that Ms. Rideout has need and Mr. Payne has the ability to pay support, on the basis of the evidence filed by Ms. Rideout in support of her claim I am not of the view that the application of the SSAG would be appropriate for two reasons:

1. Ms. Rideout has not provided a clear picture of her financial circumstances. She chose not to provide the full particulars of her business required for determination of her income under section 21 of the Child Support Guidelines.

2. She has not established that she has made reasonable efforts to seek employment or otherwise become self-sufficient.

[149] I am not of the view that her claim for spousal support should be extinguished on the basis of these shortcomings. However, it is appropriate that they be reflected in the quantum and duration of support. In all the circumstances a fair and reasonable sum of spousal support is $400 per month for a period of 2 years, to assist Ms. Rideout in her transition to self-sufficiency.

Restraining Order and Supervised Access Exchange

[150] Ms. Rideout seeks a restraining order against Mr. Payne and an order for supervised access exchanges to limit the derogatory nature of his interactions with her.

[151] Ms. Rideout's request for a restraining order is made pursuant to section 35 of the CLRA and section 46 of the FLA. Section 35 of the CLRA reads as follows:

Restraining order

35. (1) On application, the court may make an interim or final restraining order against any person if the applicant has reasonable grounds to fear for his or her own safety or for the safety of any child in his or her lawful custody.

Provisions of order

(2) A restraining order made under subsection (1) shall be in the form prescribed by the rules of court and may contain one or more of the following provisions, as the court considers appropriate:

1. Restraining the respondent, in whole or in part, from directly or indirectly contacting or communicating with the applicant or any child in the applicant's lawful custody.

2. Restraining the respondent from coming within a specified distance of one or more locations.

3. Specifying one or more exceptions to the provisions described in paragraphs 1 and 2.

4. Any other provision that the court considers appropriate.

[152] Section 46 of the FLA reads as follows:

Restraining order

46. (1) On application, the court may make an interim or final restraining order against a person described in subsection (2) if the applicant has reasonable grounds to fear for his or her own safety or for the safety of any child in his or her lawful custody.

Same

(2) A restraining order under subsection (1) may be made against,

(a) a spouse or former spouse of the applicant; or

(b) a person other than a spouse or former spouse of the applicant, if the person is cohabiting with the applicant or has cohabited with the applicant for any period of time.

Provisions of order

(3) A restraining order made under subsection (1) shall be in the form prescribed by the rules of court and may contain one or more of the following provisions, as the court considers appropriate:

1. Restraining the respondent, in whole or in part, from directly or indirectly contacting or communicating with the applicant or any child in the applicant's lawful custody.

2. Restraining the respondent from coming within a specified distance of one or more locations.

3. Specifying one or more exceptions to the provisions described in paragraphs 1 and 2.

4. Any other provision that the court considers appropriate.

[153] The legal principles for the court to apply are as follows:

a. Restraining orders are serious and should not be ordered unless a clear case has been made out. Ciffolillo v. Niewelglowski, 2007 ONCJ 469.

b. A restraining order is serious, with criminal consequences if there is a breach. It will also likely appear if prospective employers conduct a criminal record (CPIC) search. This could adversely affect a person's ability to work. F.K. v. M.C., 2017 ONCJ 181.

c. Before the court can grant a restraining order, it must be satisfied that there are "reasonable grounds for the person to fear for his or her own safety or for the safety of their child. McCall v. Res, 2013 ONCJ 254.

d. The person's fear may be entirely subjective so long as it is legitimate. Fuda v. Fuda, 2011 ONSC 154, McCall v. Res, supra.

e. A person's subjective fear can extend to both the person's physical safety and psychological safety. Azimi v. Mirzaei, 2010 CarswellOnt 4464 (Ont. S.C.).

f. It is not necessary for a respondent to have actually committed an act, gesture or words of harassment, to justify a restraining order. It is enough if an applicant has a legitimate fear of such acts being committed. An applicant does not have to have an overwhelming fear that could be understood by almost everyone; the standard for granting an order is not that elevated. Fuda v. Fuda, supra.

g. A restraining order will be made where a person has demonstrated a lengthy period of harassment or irresponsible, impulsive behavior with the objective of harassing or distressing a party. There should be some persistence to the conduct complained of and a reasonable expectation that it will continue without court involvement. Purewal v. Purewal, 2004 ONCJ 195.

h. A restraining order cannot be issued to forestall every perceived fear of insult or possible harm, without compelling facts. There can be fears of a personal or subjective nature, but they must be related to a respondent's actions or words. A court must be able to connect or associate a respondent's actions or words with an applicant's fears. Fuda v. Fuda, supra.

i. Courts should have regard for the passage of time. Events that once triggered a temporary restraining order may not be so compelling on the issue of a permanent order. D.C. v. M.T.C., 2015 ONCJ 242.

j. In borderline cases, the court must consider what other protections may be available if a restraining order is not granted. D.C. v. M.T.C., supra.

k. It is appropriate, in borderline cases, to consider the balancing prejudice to the respondent, if the restraining order is granted. D.C. v. M.T.C., supra.

l. A no-contact or communication order made pursuant to section 28 of the Children's Law Reform Act is not as wide-ranging as a restraining order. It can limit contact and communication between the parties, but it cannot restrain a party from harassing the other party to third parties. F.K. v. M.C., supra.

m. Further, the court should be alert to the fact that parties may improve their behavior when the eyes of the court are on them. This might not continue once the case ends. F.K. v. M.C., supra.

[154] I have already found that Mr. Payne has and continues to engage in a persistent pattern of inappropriate and demeaning communication with Ms. Rideout that is designed to undermine her role as a parent.

[155] Mr. Payne denied that his communication is in any way inappropriate or abusive. On this basis I am satisfied Mr. Payne's conduct will continue unless he is under court ordered terms to refrain from communicating or interacting with Ms. Rideout.

[156] The inappropriate behavior is limited to verbal and written communication and has not included physical threats or stalking. It is however, entirely inappropriate and Mr. Payne will be required to cease this behavior immediately.

[157] The issue is whether a restraining order is necessary or whether other protections short of a restraining order are sufficient.

[158] While I am persuaded that the communication is persistent, malicious, and unwanted by Ms. Rideout I am not convinced that it raises to the level to justify a restraining order at this time.

[159] I was provided few particulars to support the view that confrontations and arguments at access exchanges have persisted to the extent they did following the separation.

[160] I am of the view in the circumstances that the particular conduct in question by Mr. Payne can be appropriately addressed by very specific terms imposed under section 28 of the CLRA.

[161] For the same reasons I am not persuaded that supervised access exchanges are necessary. Rather, specific terms imposed under section 28 of the CLRA are more appropriate to manage and control the interactions at access exchanges.

[162] If these terms prove insufficient and Mr. Payne continues in the manner he now communicates with Ms. Rideout, she will be free to return the matter to court with proper notice and seek a restraining order or other relief.

Final Order

[163] On the basis of all the considerations outlined herein, there shall be a final order as follows:

1. Custody and Access

Sole custody and primary residence of Aidan with Ms. Rideout.

2. Independent Access to Third Parties

Mr. Payne shall have the right of independent access to all third parties involved with the child's health, welfare and education.

3. Access Schedule

Access by Mr. Payne to Aidan shall include the following:

a. Unless the schedule is modified for special occasions as outlined herein, Aidan will be with his father on the first, third, and fourth full weekends of each month from Thursday at 5 PM to Sunday at 5 PM extended to Mondays at 5 PM if Monday is a school holiday. (With Aidan to spend the second weekend each month in Ms. Rideout's care);

b. Unless the schedule is modified for special occasions as outlined herein, from after school until 7:30 PM each Thursday before a weekend that Aidan will not be in his care, which is to be extended to 8:30 PM if the following day is not a school day;

c. On Mother's Day, Aidan shall be returned to the care of Ms. Rideout at 10 AM;

d. The parties will share March break with Aidan being with Mr. Payne in odd numbered years from 5 PM Friday (the first day of the break) to 5 PM the following Sunday (the last day of the break), and in even numbered years Aidan to be with Ms. Rideout from 5 PM Friday (the first day of the break) to the following Friday at 5 PM with Mr. Payne having access to Aidan on the second weekend from Friday at 5 PM to Sunday at 5 PM.

e. In even numbered years Aidan shall spend Easter weekend with Ms. Rideout and Thanksgiving weekend with Mr. Payne, to alternate in odd numbered years. Mr. Payne's access on Easter weekend shall include Thursday at 5 PM to Monday at 5 PM. Mr. Payne's access on Thanksgiving weekend shall include Friday at 5 PM to Monday at 5 PM;

f. Access between Mr. Payne and Aidan shall begin at 10 AM on the first day of the school Christmas break until Christmas day at 1 PM in even numbered years and on Christmas Day at 1 PM until January 1 at 5 PM in odd numbered years, with Aidan being with Ms. Rideout on the opposite days each year regardless of the regular access schedule;

g. Each party to have two one-week periods of uninterrupted time with the children during the summer holidays. Mr. Payne to advise by May 1 of each year which weeks he is choosing with Ms. Rideout to advise by June 1 of each year;

h. Such further and other times as agreed in advance in writing between the parties.

4. Pickup and Dropoff

Mr. Payne is responsible for picking up Aidan at Ms. Rideout's home on Thursdays or otherwise at the start of an access visit and Ms. Rideout is responsible for pickup at Mr. Payne's home on Sundays or otherwise at the end of the visit.

5. Address Disclosure

Ms. Rideout shall forthwith, through her counsel, provide to Mr. Payne the home address for Aidan while in her care.

6. Communication and Conduct Restrictions

Pursuant to section 28 of the CLRA, unless otherwise agreed between the parties in advance in writing:

i. The parties shall not communicate with each other in any manner, including by phone, voicemail, text message, or in person, in the presence of Aidan;

ii. Mr. Payne shall not text, phone, email or otherwise communicate in any manner with Ms. Rideout unless there is immediate urgency regarding Aidan;

iii. The parties shall forthwith engage and utilize the "Our Family Wizard" program, to be paid for by Mr. Payne, for the purposes of all other nonemergency contact, and such contact will only be used to address issues related to Aidan;

iv. Mr. Payne shall only attend at Ms. Rideout's home for scheduled pickups at the designated times, and shall remain in his vehicle on the road in front of the home;

v. Ms. Rideout shall remain in her vehicle on the road in front of Mr. Payne's home for any scheduled pickup, and Mr. Payne shall remain inside his home during the pickup;

vi. Neither party shall communicate with each other in any manner during access exchanges or during the time Aidan is with them in their vehicle on the way from an access exchange.

vii. Neither party shall speak in a derogatory manner about the other party, or their family in the presence of Aidan, and shall ensure that he is not exposed to any derogatory language about the other party or their family.

7. Smoking Prohibition

Aidan shall not be exposed to secondhand smoke of any kind, and the parties shall not permit smoking of any kind in their homes or otherwise in Aidan's presence.

8. Alternate Pickup Designate

The parties may designate another family member to do the access pickup, provided that party has given 24 hours' notice thereof on the Our Family Wizard.

9. Travel with Child

Unless otherwise agreed between the parties in writing, both parties shall be permitted to travel with the child for the purpose of a holiday, not to exceed seven days, provided that the time away falls entirely within that parent's periods of care and control of the child as outlined herein.

10. Travel Notice

The travelling parent shall provide a minimum of 30 days written notice of travel plans including detailed itinerary and contact information.

11. Child Support

Child support payable by the respondent to the applicant for the child in the amount of $710 per month based on an annual income of $78,124 commencing on November 1, 2017 and monthly thereafter.

12. Child Support Arrears

Arrears in child support from July 1, 2015 to October 31, 2017 shall be fixed in the amount of $5,688 payable forthwith.

13. Spousal Support

The respondent shall pay spousal support to the applicant in the amount of $400.00 per month for a period of 2 years, commencing November 1, 2017.

14. Restraining Order

The applicant's claim for a restraining order is dismissed.

Costs

In all the circumstances of this case I will not be inclined to make an order for costs unless there is evidence of an offer to settle that is equal to or exceeded by the order made. If the parties are not able to agree on the issue of costs then written submissions, not to exceed three pages, excluding attachments, may be filed by the applicant by November 29, 2017 and by the respondent by December 12, 2017.

Released: November 17, 2017

Signed: "Justice S. E.J. Paull"