Court File and Parties

Court File No.: Toronto DFO-17-15534 Date: 2018-01-22 Ontario Court of Justice

Between: Laura Davis, Applicant

— And —

Andrew Eastmond, Respondent

Before: Justice Alex Finlayson

Heard on: December 13 and 19, 2017

Reasons for Judgment released on: January 22, 2018

Counsel:

• Matthew J. Kim, counsel for the applicant
• Amiri Dear, counsel for the respondent

ALEX FINLAYSON J.:

PART I: Nature of this Proceeding and a Summary of the Parties' Positions

[1] The Applicant mother in this proceeding is Laura Davis and the Respondent father is Andrew Eastmond. The parties are the parents of a two year old girl, Ajah Gabrielle Eastmond-Davis, born December 17, 2015 ("Ajah").

[2] On December 13 and 19, 2017, I heard a two day trial in this matter. The only issues for trial were custody and access respecting Ajah. The parties settled child support previously during a case conference before Justice Nevins on July 28, 2017.

[3] The mother seeks an order for sole custody of Ajah, that the father have access to Ajah for 8 hours every Saturday for at least 8 months, and other related terms. The mother argues that:

(a) the parties cannot communicate and make decisions concerning Ajah together, so joint custody is not an option in this case;

(b) she has been Ajah's primary parent and an analysis pursuant to section 24(2) of the Children's Law Reform Act, R.S.O. 1990, c. C.12, as amended, supports this outcome; and

(c) the father lacks the parenting skills needed to care for Ajah over a period of time longer than that which she has proposed, such as the full weekend the father asks for. She has a number of safety concerns and the Court should not order this.

[4] The father seeks an order for joint custody and asks that Ajah reside with him on alternate weekends from Fridays at 6:30 pm until Monday mornings at 7:00 am, plus additional access during the mid-week. The father:

(a) concedes that the parties' do not communicate. However, he nonetheless seeks joint custody;

(b) does not strenuously contest that the mother was the child's primary parent during the relationship and post-separation. However, he argues that during cohabitation, he participated in parenting, and he says he has been excluded from parenting by the mother post-separation. He wishes to become more meaningfully involved in Ajah's life;

(c) candidly concedes that he is a less experienced parent than the mother;

(d) argues there would be no safety concerns if the Court orders the schedule he seeks; and

(e) argues that he is involved in a new relationship. His new partner is an experienced parent and loves Ajah. He has the necessary supports in place.

[5] At the trial, I heard evidence from each party. The father also called his new partner, Tyna Sayavongs ("Tyna"), and his friend of 18 years, Jennifer Lanthier ("Jennifer"), to testify. All of the witnesses provided their evidence in chief by way of affidavit. I permitted each witness to supplement his or her affidavit evidence by way of additional viva voce evidence in chief, and each witness was cross-examined. In addition, each party tendered a number of documents that form part of the record.

PART II: Summary of this Decision

[6] For the reasons that follow, I am granting the mother's request for sole custody. I agree with the mother's submission that joint custody is not in Ajah's best interests. However, I am not persuaded that the father's access should continue to be limited as it has been. The mother has been unnecessarily restrictive respecting the father's access. I intend to make an order to permit Ajah to spend additional time with the father, including full weekends as I find that is in the child's best interests. For the reasons that follow, I intend to order the father's plan, but modified so that overnights are phased in over a short period of time.

PART III: Facts

A. Background Information

[7] The mother is 42 and the father is 36. They first met in December 2013 and by June of 2014, the mother moved in with the father into an apartment he was then sharing with another person. The following month, the parties moved into their own rental home in Toronto. Initially they lived on the main floor of the residence, but they later moved into the basement apartment about one year later, in June of 2015.

[8] The mother testified that the separation occurred in July of 2016. Although the father moved out of the basement apartment at that time, both parties agree that they had an "on and off again" relationship for a further 5 months until December of 2016. The father still had a key to the apartment, he slept over, he otherwise had access to the basement apartment and he helped care for Ajah there. The separation finally occurred at some point in December 2016. The mother and Ajah continue to reside in the basement apartment since then.

[9] Until recently, the mother was employed at Jenny Craig for approximately 8 years on a full time basis. At the time of trial, she had recently lost her job.

[10] The father works for a company called Sinking Interactive. He has worked there since 2013. He is a computer programmer and makes video games for children. He works from 9:00 am to 5:00 pm. He testified that his job used to offer him more flexibility than presently, and he used to be allowed to come to work later in the morning, and work later at the end of the day.

[11] He testified that he would try to work late on Tuesdays and Thursdays when he could. On Mondays and Wednesdays nights between 6:00 pm to 7:00 pm, he taught martial arts (which he continues to do) and so he did not work late on those evenings. As of October 2017, the father's employer no longer permits the flexibility that the father previously enjoyed.

[12] The mother has not re-partnered.

[13] The father is in a new relationship with Tyna Sayavongs. They first met online on December 28, 2016. This was very soon after his relationship with the mother ended. The father told Tyna that he had just ended a relationship and that he has a child with Ms. Davis. Tyna herself has a daughter, Layla, who is now 10 years old. Tyna owns a four bedroom home in Newmarket that she shares with her daughter and her parents. As of September 2017, the father resides with Tyna and her family in that home in Newmarket.

[14] I heard evidence that the father enjoys a close relationship with Layla, and that Ajah is familiar and comfortable with both Tyna and Layla.

[15] At the trial, the mother took issue with Tyna's home and alleges that there are risks associated with Ajah spending time there.

B. Parenting During the Relationship

[16] Ajah is a healthy 2 year old girl. The mother described Ajah as a "bright, curious, and exceptionally physically-mobile child who requires constant supervision and monitoring", as "sensitive", "sweet" and "hyper".

[17] The mother painted the picture of the father as an uninvolved parent, who left her alone to do the parenting. She testified that she had a difficult pregnancy with Ajah and that the father did not accompany her to medical appointments. She said he wanted to terminate the pregnancy because "he wasn't prepared to have a child".

[18] In response, the father said that both parents were "stressed and unprepared". He explained that he was ambivalent about the pregnancy, but after Ajah's birth, he was "extremely elated" and "grateful". He further testified that when he first met Ajah, he felt "attachment". He said that he "started to bond". While he was "overwhelmed, he was focused on her and was "absolutely intrigued. He testified, "it was moment by moment absorbing my child".

[19] The mother was a stay at home parent for the first year after Ajah's birth. In December 2016, the mother returned to work and Ajah began attending the Candy Factory Day Care in Toronto.

[20] I did not hear any evidence that could support a finding that the parties have ever been able to functionally communicate about, and make decisions together about Ajah in her best interests, either during the relationship (or since the separation). The mother testified:

(a) The parties had frequent arguments throughout their relationship. They cannot communicate peacefully;

(b) They separated because they were "fighting all the time". They fought about finances, "gambling issues"[1], and about the father not providing the mother with parenting support;

(c) Their arguments involved shouting and name calling; and

(d) Their arguments occurred in the presence of Ajah, which caused the child stress.

[21] The fact that the relationship was riddled with conflict is not contested. The father admits that they argued a lot. He explained that he tried to insulate Ajah from the arguments, but the basement apartment was so small that arguments inevitably occurred in her presence. He testified he ultimately felt it was best that he move out as a result of their fighting.

C. Parenting Between July 2016 and January 2017

[22] There was no evidence that things improved once the parties began occupying separate dwellings. Between July 2016 until December 2016, the parties attended counselling together. The father described this period as turbulent. Although he said things "smoothed out a bit" in counselling, the parties were nevertheless unable to "come to any agreements".

[23] In December 2016, when the mother was preparing to return to work, she created a schedule and a "rules sheet" that she supplied to the father. The mother expected the father to visit with Ajah in her home. The "rules sheet" purported to regulate the father's conduct in her home plus the father's access with Ajah. The mother testified that she created this document because "he wasn't stepping up".

[24] There was some very temporary acquiescence to this arrangement on the part of the father. After receiving the "rules sheet", the father sent a text message to the mother in which he said "Were (sic.) still mediating[2]. I'll abide by the rules until then." But as I will explain below, this arrangement very quickly deteriorated into conflict followed by the father not seeing the child for months.

[25] At least initially after the separation, the mother was prepared to have the father involved in Ajah's care on a daily basis. The schedule the mother created provided that the father would care for Ajah on Monday, Thursday and Friday mornings, that he would pick the child up after day care on Tuesdays and Thursdays and take the child home. It also provided that he would have Ajah during the day on Saturdays.

[26] This schedule provided that the father would assist with Ajah's transportation between the mother's home and the day care. The mother explained that Ajah had to be at the day care by 10:00 am each day, Monday to Friday, and she must be picked up between 5:00 and 6:00 pm. From December 2016 until recently when the mother lost her job, Ajah would be dropped off as early as 7:30 am, although the mother testified that the drop off time varied according to her work schedule.

[27] The father testified that for between one and two months (in December 2016 and January 2017), he sometimes helped with transportation on Tuesdays and Thursdays. This stopped when the parties had a major argument in January.

[28] The mother gave the father a key to her apartment that was only to be used for the father to gain access to the apartment to get the child to and from day care, and to spend time with her there. Although the schedule and rules suggest that the father would be able to take the child out of the apartment during the day on Saturdays, the evidence was that he did not get much opportunity to do this before things deteriorated markedly between the parties.

[29] The rules were:

(a) No drinking or drugs around Ajah. The father was not to show up to care for Ajah "hung over";

(b) A number of rules regulated the father's behaviour in the mother's home concerning cleanliness, that he was not to do laundry there, and that he was not to eat the mother's food;

(c) Regarding Ajah, the rules included:

(i) Ajah was to travel in a car seat while traveling in the car;

(ii) The father could take Ajah to visit his family, so long as there was an area that was child proofed there;

(iii) The father could take Ajah out if he had to run errands, like if he needed to get his hair cut;

(iv) The father was not to be distracted on social media when caring for Ajah;

(v) If Ajah was sick, the mother said that she was not to be "carted around everywhere";

(vi) Ajah must be returned home by 8:20 pm. The mother said that if the father didn't respect her schedule, he wouldn't be able to take Ajah out; and

(vii) Ajah was not allowed to meet people that the mother did not approve of. The rules listed 3 people that Ajah could meet.

[30] Some of the conditions are reasonable and were matters of common sense, for example, the rules concerning the need to respect the child's schedule and to travel using a car seat. However, while these conditions are reasonable, I did not hear evidence that the father had, for instance, not respected Ajah's schedule, nor traveled with her without a car seat, such that he needed to be told these things in a document in the first place. Nor did I hear evidence that the father had taken the child out when sick. Nor was there any evidence that the father had introduced the child to any other persons inappropriately.

[31] As the mother included the condition about drug and alcohol use, I wondered whether there had been a substance abuse issue concerning the father. Obviously the father should not be high, intoxicated or hung over during his visits with Ajah. However, I did not hear any credible evidence that the father had a problem with alcohol or drugs, or that he had ever used drugs or abused alcohol while in a caregiving role either. When testifying, the mother offered a vague explanation that the father "uses marijuana", and she said in the past "there were pills and stuff like that". She also said his friends do it.

[32] There were a number of conditions regulating the father's use of the mother's apartment during the parenting time. On the one hand, I understand that the mother wished to place limits on the father's use of her home. However, the evidence was unclear on the extent to which the father was using the mother's home for personal reasons in the first place. She testified that he was showering there and doing his laundry there. But it is noteworthy that according to both parties evidence, they had just spent the past 5 months in a continuing relationship where the father spent periods of time with the mother in her home. I also note that the mother insisted that the father have visits with Ajah in her home after the final separation.

[33] I accept that the father found many of these conditions to be controlling and unnecessarily restrictive. This document and the mother's insistence on adherence to it precipitated a major argument followed by months of the father not seeing Ajah.

D. The Argument on January 14, 2017

[34] The parties had an argument in the mother's home on Saturday, January 14, 2017, in the presence of Ajah. The argument centered on the conditions under which the father could see Ajah. The mother described the argument as "the straw that broke the camel's back". According to the mother, on January 14, 2017, the parties had agreed the father could take Ajah out for the day while he ran errands and got a hair cut. Apparently the father was supposed to have Ajah for the whole day, but he returned early.

[35] The father explained that he brought Ajah home early because he had a friend available to drive him back to his home. By this point he had moved to Etobicoke and if he did not take the ride, he would have to take the TTC for 2 hours. He testified that he did not think this was a big deal, because usually the mother wanted him to have Ajah home by 3 pm on Saturdays in any event. According to the father, on January 14, 2017, she changed her mind and decided that he should have Ajah for a longer period of time.

[36] More generally, the father was upset because he had wanted to take Ajah to his home in the first place, but was not allowed. He testified that he had food and clothing there, and wanted to spend time in a natural home setting. On the day of the argument, he had picked Ajah up at 7 am, and by 3 pm, he had run out of activities to do with Ajah.

[37] According to the mother, when the father entered the mother's apartment, the mother was taking a nap and was his arrival startled her. He told her that he had a friend waiting outside, but did not otherwise explain why he had to leave. The mother testified that the father had "lied about the day". She said she felt disrespected.

[38] Unbeknownst to the father, mid-way into their argument, the mother began filming their exchange with her cell phone. The father did not object to this video being tendered as evidence and so it was admitted on consent without a voir dire. On the video, the father has a raised voice and is clearly upset. He voices his upset about the conditions the mother has imposed. At the end of the video, the mother can be heard saying that the father had given her "the finger" although this act is not visible on the video. The argument occurred in front of the child, who can be heard crying in the background.

[39] The father testified that he felt frustrated with the way the mother had set up the schedule. He said he had to follow the mother's directions or leave. He said he had gotten to the point where he wanted to "bring up his points". He said he was "pretty pissed off". The entire argument lasted between 5 and 10 minutes, although the video is of a shorter duration.

[40] Following the argument, the father tried to avoid conversations with the mother to avoid any more conflict.

[41] After this, the mother no longer allowed the father to have visits with Ajah in her home. In cross-examination, the mother admitted that she "banned" the father from her home and threatened to call the police on him if he came back.

[42] On January 14, 2016, in a text message, the mother also told the father that he was no longer needed to pick up or drop off Ajah at the day care, nor was he needed to "watch her at any time". She said she was going to tell the day care that he was "not to pick her up anymore". She said that if he wanted to see Ajah, arrangements with a third party would have to be made. The parties were unable to make those arrangements until his court proceeding began.

E. The Father's Access with Ajah Following the January 2017 Argument

[43] For several months, the father then had almost no access with Ajah until this Court's intervention. The parties have differing accounts about the reasons for this. The mother says that the father did not take very serious steps to see Ajah. For example, she told the Court that he went on a trip to Mexico and curiously he requested access during the time while he was away. I gather I was told this by the mother in an attempt to suggest that his request was not a bona fide one.

[44] I decline to make such a finding. More generally, I am not prepared to accept the mother's version of events that the father was either disinterested in having a relationship with Ajah, or that he was not trying hard enough to pursue that relationship.

[45] The father says that he tried to arrange access. He tried to follow up. He instructed a lawyer to prepare and propose a parenting plan[3]. However, he said the mother was not cooperative and he had to commence this proceeding.

[46] Regarding the Mexico trip, the father did not ask for a visit to take place while he was away, but rather he asked, via email sent while in Mexico, for a visit to occur after his return.

[47] Several months after the argument, the father discovered that the mother had been taking Ajah to see members of his family, unbeknownst to him. He learned about this after he started the proceeding, when he received a text message from his step-mother. According to the father, some of his family members were cold towards him. He felt as if the mother had disparaged him and told a version of events that was not factually accurate.

[48] It is evident that the mother was very clearly hurt and angry towards the father following their break up, and about his new relationship. She remains angry towards him. Following their argument in January 2017, the mother engaged in a text message exchange with the father's witness, Jennifer Lanthier. To Ms. Lanthier, the mother said:

I want myself and Ajah to be able to have a good relationship with whoever he decides to settle down with. But he's already f*&ked that up if it's with this girl. She is always gonna be the girl he was f*&king around with me on now and has robbed me and Ajah of her ever having a good relationship.

[49] She went on to call the father a "f*&king scumbag" and said he "deserves to be spit on" and called him a "piece of shit". She then said "she will never have a relationship with my child", "And his will be limited". She referred to the father's new girlfriend as a "bitch" who the father is putting "in front of his own daughter". She said, "I will never forgive him".

PART IV: Prior Proceedings

[50] The father commenced this proceeding on April 25, 2017. On July 28, 2017, Justice Nevins presided over a case conference. The parties entered into a consent order that day that the father would have temporary access to Ajah, "every Saturday at sometime between 8am and 4 pm to take place at the child's paternal grandparents' residence". The terms of the parties' consent lacked specificity as to the amount of time the father could spend with Ajah each week. In practice, the father only got to see Ajah for short periods during these weekly visits; the visits were not for the full 8 hours.[4]

[51] On a final basis, they also agreed that the father would pay child support of $639 per month commencing August 1, 2017 and special and extraordinary expenses of $317.06 per month pursuant to section 7 of the Child Support Guidelines ("section 7 expenses") based on the father's annual income of $70,000 and the mother's annual income of $34,800.00.

[52] On September 6, 2017, I presided over a case conference. On consent, I made an order clarifying how the exchange of receipts for s. 7 expenses should be handled, and I varied the temporary access order of Nevins J. dated July 28, 2017 to provide that the father may have unsupervised access for 3 hours between 8 am and 11 am.

[53] The mother was concerned about Ajah's safety and was not prepared to agree to the father having access in his new home in Newmarket. The mother was not familiar with this new home environment. So I made an order, also on consent, that the mother and her adult daughter from a previous relationship, could attend at the home to inspect it.

[54] On October 31, 2017, I presided over another conference. I offered the parties early dates for a trial before me, or alternatively I indicated that they could attend at the assignment court. Both parties and counsel agreed that I could hear the trial, and so I scheduled this hearing before me. I made procedural orders relating to the conduct of the trial.

[55] Both counsel did an excellent job preparing documents briefs with affidavits, and they focused their examinations and cross-examinations. This allowed the trial to proceed in an efficient fashion within the allotted times.

PART V: Issues and Analysis

A. Custody vs. Joint Custody

[56] I begin with the dispute concerning the appropriate custodial arrangements for Ajah. The circumstances in which joint custody will be ordered are well established in the case law. Six themes emerge from the leading case, Kaplanis v. Kaplanis. They are:

(a) There must be evidence of historical communication between the parents and appropriate communication between them for joint custody to be an option;

(b) Joint custody should not be ordered in the hope that it will improve their communication;

(c) Just because both parents are fit does not mean that joint custody should be ordered;

(d) The fact that one parent professes an inability to communicate does not preclude an order for joint custody;

(e) The Court should be mindful that 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; and

(f) The younger the child is, the more important communication is.

[57] There is a further line of authorities that stands for the proposition that a Court may grant joint custody where such an order is necessary to preserve the balance of power between the parents, especially where one parent has been primarily responsible for the conflict.

[58] However, the evidence in this case does not support an order for joint custody on either basis. I find that the parties did not, and cannot today communicate effectively about Ajah and make decisions in her best interests. The parents have already tried counselling and that professional assistance did not assist them to come to terms. There is no realistic option in this case but for one parent to have custody.

[59] It is also well established that the Court must make its determination about which parent should have custody in the child's best interests. The applicable factors to consider are set out in section 24(2) of the Children's Law Reform Act. The Court is required to consider these factors in light of the evidence adduced at trial. See Van de Perre v. Edwards, 2001 SCC 60 at ¶ 10.

[60] Regarding section 24(2)(a), there is no question that both parents love Ajah.

[61] Regarding section 24(2)(b), the child is very young and her views and preferences cannot be reasonably ascertained.

[62] Regarding sections 24(2)(c)-(g), the evidence is that when the parties were together, and in the 5 months following the separation, the father worked a lot. The mother did much more of the heavy lifting respecting parenting. The mother is the more experienced parent. The mother has also provided a stable home environment for the child. She has remained with the child in the home and when she returned to work she made arrangements for the child's care. The father has moved twice since the separation and there have been periods where he has not seen the child.

[63] The father essentially admits the mother was the child's primary parent and he admits that he is less experienced. Despite this, he testified that he helped care for the newborn baby in the mornings before, and in the evenings after work, except when he taught martial arts. He says his lack of involvement in 2017 is because the mother would not allow it.

[64] Even if the latter is true and the mother limited the father's contact, on an application of the applicable statutory factors to the evidence at trial, I find that it is in Ajah's best interests that the mother be awarded sole custody.

B. The Father's Access

[65] While I have awarded the mother sole custody, I cannot give effect to her position respecting the father's access. That decision is also governed by the child's best interests and the statutory factors in section 24(2) of the Children's Law Reform Act. Additionally, I am considering the maximum contact principle, namely that Ajah should have the maximum contact with both parents that is consistent with her best interests: see Gordon v. Goertz, [1996] 2 S.C.R. 27. This principle applies to cases decided under the Children's Law Reform Act, even though the principle is not specifically set out in the statute: see Cavannah v. Johne, [2008] O.J. No. 5027 (S.C.J).

[66] The mother's request that the father continue to have limited contact with the child is based on a number of incidents that she described. The mother's concerns are:

(a) During the relationship, the father left her alone to care for Ajah. Meanwhile, when she left Ajah in his care, he neglected and did not pay attention to her;

(b) The mother has few family supports in Ontario. She felt she was not receiving adequate support from the father after Ajah's birth;

(c) The father neglected the child when she left her in the father's care. For example, he failed to change the child's diaper in his care;

(d) The father chose to play video games and "candy crush" on his phone rather than pay attention to Ajah when caring for her;

(e) The father sometimes left small items around the house that the child could have put in her mouth and choked on. The mother had to caution the father about this;

(f) Since the father has had access pursuant to this Court's orders, he has missed three visits with Ajah;

(g) The father's new residence with Tyna is not child proofed, and Tyna's family burns incense in the home; and

(h) Tyna gave the father a motorcycle and the father should not be transporting Ajah on the motorcycle.

[67] The father responded to each of these concerns. He denied neglecting Ajah. He gave evidence that he tried to introduce the mother to his friends and expand her social circle. He admitted that there was an occasion when he did not change the child's diaper. This was when he was a new parent and he has not repeated this oversight since. He also admitted that there were times in the past when he played video games, but he did not ignore Ajah. He testified that he primarily played video games when Ajah slept.

[68] Regarding the missed visits, the father admits to having missed three visits in August and October 2017 (after Court orders for his access were in place). However, it was the mother who cancelled one of the visits. Respecting the other two visits, the father planned to be away and gave approximately one month of advance notice to the mother. During one of those weekends, he went to Blue Mountain. He testified that he wanted to bring Ajah with him, but he was not permitted to do so. There have been a number of other short trips, including day trips to places in southern Ontario, where he has not been able to have Ajah with him.

[69] Regarding child proofing, the father admitted that Tyna's home in Newmarket is not child proofed currently. But he is prepared to do this. Tyna testified that she had child proofed a home previously for her own daughter, and she too is prepared to do this if this Court allows access to take place in Newmarket. They will not burn incense when Ajah is present as this is a concern of the mother's.

[70] And finally concerning the motorcycle, the father does own a motorcycle. Tyna bought it for him as a gift. However, he also has access to two vehicles that Tyna owns. They drive a car currently for the father's access on Saturdays. He also has used public transportation at times. There was no evidence that he ever took Ajah on his motorcycle and he agreed not to do so in the future. I believe him.

[71] I understand that the mother is concerned about Ajah's well-being. However, the mother was highly critical of the father's parenting, often without providing the necessary context. Much of her evidence focused on her perceptions of his shortcomings as a parent and she has not been prepared to accept his explanations respecting the above, nor to permit an expansion of his parenting time.

[72] It was evident at the trial that the mother remains upset with the father. I note that she failed to provide any explanation whatsoever for her text message with Jennifer, in which she indicated that she intended to limit the father's contact with Ajah. She did not explain to the Court whether she continues to hold this view.

[73] During cross-examination, the mother was confronted with an email that she had previously sent to the father, raising a concern about his parenting of Ajah, but also praising him for being a good father. In cross-examination, she refused to admit he is a good father. She said she said the positive words in the email because she wanted to encourage him to do better.

[74] The mother also argues that the Court should not expand the father's access because his new relationship is not yet established, and there is a risk of emotional harm to Ajah if she bonds with Tyna and then the father's relationship with her fails. The child will experience a loss too. I appreciate the relationship is somewhat new, but the only evidence I heard is that the father's current relationship is a functional one. In any event, Ajah has already been introduced to Tyna and Layla and they have had already had contact with one another already during visits.

[75] Moreover, Tyna appears to be a positive influence during the visits. Tyna, who accompanies the father on most visits, described Ajah as a "sweet caring girl". She testified that she loves Ajah like her own daughter. She observes the father to be sad about the limited amount of contact the father has with Ajah. He very clearly has a desire to be more involved in her life and Tyna is prepared to support this.

[76] Unfortunately, the mother's dislike of the father's new partner boiled over into conflict during at least one access exchange. In a public scene, the mother repeatedly gave the father instructions for Ajah's care during an upcoming visit. Tyna intervened and the mother called Tyna a "home wrecker". This argument occurred in Ajah's presence.

[77] The father was candid respecting the issues that arose during his parenting time and respecting his lesser experience as a parent compared to the mother. Where he fell short, he admitted it, and he provided an explanation. He has also matured as a parent, and he has support during his access visits. The evidence is simply insufficient for the Court to conclude that Ajah will not be safe or well cared for in the father's care if the visits are extended.

[78] The father's access proposal includes logistics about how to make access work given that he now lives in Newmarket. On the weekends Ajah is in his care, he will pick Ajah up at day care on Fridays after work and take her back to Newmarket on the Go Train. He will leave home on Mondays by 7:10 am to take the Go Train in to the City, take Ajah to her day care, and then go to work. As set out above, the father also has access to a vehicle so there is some flexibility there as well. His plan for pick ups and drop offs in a neutral location when possible also reduces the opportunity for conflict between the parents at exchanges.

[79] I note that the father had been commuting back on the TTC for lengthy periods back and forth from Etobicoke after the separation to see the child and other than the three missed visits, he has attended on Saturdays diligently to visit Ajah since this Court made orders. I have no doubt that he is committed to making a new schedule work and he will be sensitive to Ajah's needs.

[80] The mother's proposal that the father have day time visits on Saturdays only for 8 months did not include a proposal as to how the father's access should expand after the 8 month period, if at all. The effect of this would be almost certainly more litigation in the very near future. The proposal does not permit either parent to have a full weekend with the child. And it is not in a natural setting, in that the father would not be able to take the child to his home in Newmarket, or have the child accompany him on day trips out of the city. The parties have already had the major argument in January 2017. The essence of that dispute is that a day visit in Toronto did not work.

[81] In my view, there is no reason to continue to restrict the father from taking to Ajah to his home, and he should be given the opportunity to be a parent to her in a normal home environment. However, I am mindful that the child is young, and while he participated in parenting during the relationship, he has not yet had an opportunity to spend time with the child in his new home or on an overnight basis since the separation. Therefore, I am ordering the father's access plan, but to be phased in over a short period of time.

PART VI: Order

[82] Based on the foregoing, I make the following orders:

(a) The Applicant shall have sole custody of the child, Ajah Gabrielle Eastmond Davis, born December 17, 2015. Prior to making any important decisions concerning the child's health, education or religious upbringing, the mother shall inform the father in writing via email about any such decision she intends to make and the father may provide his input. However the mother may make the decision;

(b) Both parents have the right to make emergency decisions respecting Ajah when she is in his or her care. In the event of an emergency concerning Ajah, the parent having care of Ajah shall attempt to reach each other parent before making the emergency decision;

(c) Both parents shall be listed as emergency contacts with the Ajah's day care, school, and with any other organizations involved with Ajah;

(d) The parties shall keep each other apprised of their addresses and phone numbers;

(e) The mother shall provide the father with a list of the names and contact information for any third parties involved with the child, including doctors, dentists, day cares, schools, teachers or other educational professionals, and the like;

(f) The father has the right to make inquiries of, and to be given information from third parties as to the health, education and welfare of the child. The mother shall sign any directions that may be necessary should any third parties require consents for the release of information and records;

(g) The mother shall be the custodian of the child's health card, passport and other government ID. The mother shall provide the father with a notarized copy of the child's health card;

(h) For the next three Saturdays, namely Saturday, January 27, 2018, February 3, 2018 and February 10, 2018, the father shall have access to the child Ajah from 8:00 am to 4:00 pm. He shall do the pick up and drop off at the mother's home. He may exercise the access in his home in Newmarket or elsewhere in his discretion;

(i) For the next four Saturdays after that, namely Saturday, February 17, 2018, February 24, 2018, March 3, 2018 and March 10, 2018, the father shall have access to the child on Saturdays from 8:00 am, overnight until Sundays at 10:00 am. The father shall do the pick ups and drop offs at the mother's home;

(j) Then, commencing March 17, 2018[5], and on alternating weekends thereafter, the father shall have access to the child on Fridays from after day care (or school when the child begins school) until Monday mornings, return to day care or school. The father requested a pick up time of 6:30 pm on Fridays from the day care but I heard evidence that the child must be picked up by 6:00 pm. If Ajah must be picked up before 6:30 pm (ie. at 6:00 pm), then the pick-up time shall be 6:00 pm instead of 6:30 pm. The father shall check with the day care and ensure that he makes the necessary arrangements to ensure that the day care's pick up and drop off times are respected;

(k) Commencing March 17, 2018, if the father's weekend is a long weekend, then the father may pick Ajah up from day care (or school when the child begins school) on the Thursday (if the holiday is on Friday) and/or he shall return her on Tuesday morning (if the holiday is on Monday), as the case may be. The same arrangements respecting pick up and drop off shall apply;

(l) The father may also have mid-week access with the child on one evening each week, with the father picking the child up from day care (or school when the child begins school) after work, and returning the child to the mother's home. As the logistics of this request were not fully argued, the Court requires further submissions as to the day of the week the father should have this visit, and the times of the pick up and drop off;

(m) Neither party made submissions respecting a holiday schedule, nor regarding whether or when the access/holiday schedule should be reviewed in the future (such as when the child commences school), nor regarding whether the Court should make orders to permit travel with the child, either with or without the other's travel consent.[6] The Court requires further submissions concerning these remaining issues;

(n) The trial coordinator shall contact counsel for the parties to schedule a re-attendance to address the outstanding issues. The parties should attend with a draft order incorporating the terms of this Order and that Order may be entered on that day;

(o) If the parties can arrive at a consent concerning the remaining issues prior to the re-attendance, then they should also attend with a draft order respecting the remaining outstanding issues. Otherwise, the Court will hear brief oral submissions and make an Order; and

(p) If either party seeks costs, costs will also be argued at the re-attendance. If either party seeks costs, the parties shall exchange a Bill of Costs and any case law at least 7 days prior to the re-attendance. They should also have any Offers to Settle available for the Court's review.

Released: January 22, 2018

Signed: Justice Alex Finlayson

Footnotes

[1] Other than this statement, the mother did not offer any specific, credible evidence of gambling issues.

[2] The parties never attended mediation to resolve the custody and access or child support issues. They were in counselling at this time however.

[3] The parenting plan focused more on custody terms rather than access however.

[4] In the draft Order tendered as Exhibit 7, the mother asked the Court to make a final Order that the father's access revert to that set out in the Consent Order of Nevins J. dated July 28, 2017. When I asked questions about the specifics, the mother conceded that the father could have the full 8 hours.

[5] I have chosen this commencement date so that the father's access with Ajah coincides with the weekend that Tyna's daughter is in her care. I have done this to permit Ajah to spend time in their household as part of that family unit too.

[6] The mother's draft order states that the mother should be permitted to travel without the father's travel consent, but there is no discussion concerning the father's travel with the child.