Court File and Parties

Court File No.: D11026/17 Date: July 3, 2018

Ontario Court of Justice

Between:

T.M.B.-P. Applicant

-and-

B.P.G. Respondent

Counsel:

• Glenda Perry, for the Applicant
• Dilani Gunarajah, for the Respondent

Heard: June 18-20, 2018

Justice S.B. Sherr

Reasons for Decision

Part One – Introduction

[1] This trial was about the parenting and child support arrangements for the parties' three children, K. (age 8), B. (age 7) and C. (age 5) (the children).

[2] The applicant (the mother) seeks sole custody of the children and several incidents of custody, including the ability to obtain government documentation for the children and to travel with them outside of Canada without the respondent's (the father's) consent. The mother is also seeking an order restricting the father's contact with her. She asks that, at the end of visits, the children be exchanged at a supervised access centre – Access for Parents and Children in Ontario (APCO). She also seeks an order for child support, based on an imputed minimum wage income to the father, retroactive to July 1, 2015.

[3] The father seeks joint custody of the children and several incidents of custody and access. He wants the right to approve of any travel by the children outside of Canada. He also seeks the right to travel with the children outside of Canada on the same terms as the mother. He opposes the mother's request to dispense with his consent to obtain government documentation for the children and her request for orders restricting his contact with her. He proposes that access exchanges take place at the children's school, and if school is closed, at a subway station. The father proposes to pay child support based on an annual income of $25,000, effective January 1, 2018. He opposes any claim for retroactive support.

[4] The parties agree that the father will have the children with him on three out of every four weekends. The father asks that he be able to return the children to school on Monday morning. The mother wants the children's return to take place on Sunday afternoon. They disagree on the terms of holiday access. The father seeks extended holiday access to all of the children. The mother opposes the extended holiday access the father seeks, particularly with respect to B. – a child with special needs.

[5] The parties exchanged draft orders at the outset of the trial. Many of the claims for relief in the draft orders were not contained in the parties' pleadings. The requests for relief changed again when the parties made final submissions. The parties consented that their pleadings would be orally amended to include the final claims each made in closing submissions. The court was satisfied that it had the necessary evidence before it to determine these claims and that each party had a fair opportunity to address the new claims made by the other.

[6] Both parties testified. The court also heard testimony from a Family Service Worker (the FSW) from the Catholic Children's Aid Society of Toronto. The mother filed medical reports from B.'s doctors and business records from B.'s therapists.

[7] The main issues for this court to determine are:

a) What parenting orders are in the children's best interests?

b) Should any restrictions be placed on the father's contact with the mother?

c) Should retroactive support be ordered?

d) What is the father's annual income for child support purposes? In particular, should income be imputed to him for any year that support is ordered?

Part Two – Background Facts

[8] The mother is 33 years old. The father is 37 years old.

[9] The parties were both born in Sri Lanka.

[10] The father came to live in Canada in 1991 (he would have been 10 years old).

[11] The parties were married in 2008 in Sri Lanka.

[12] In 2009, the father sponsored the mother to come to Canada. She has lived in Canada since that time.

[13] The parties had the three children together.

[14] The parties initially lived with the father's mother (the paternal grandmother).

[15] The paternal grandmother and the father's sister (the paternal aunt) provided parenting assistance for the parties.

[16] The parties had a difficult relationship. The police were frequently called to their home – usually by either the paternal grandmother or the paternal aunt.

[17] The Children's Aid Society of Toronto was involved with the family due to domestic conflict in 2010.

[18] The father was convicted of assaulting the paternal aunt in 2011.

[19] The Catholic Children's Aid Society of Toronto (the society) became involved with the family in 2013 because of concerns about domestic conflict and the father's alcohol abuse. It continues to have an open file with them.

[20] In October, 2014, the father was hospitalized after a suicide attempt.

[21] The parties separated in December, 2014. The mother and children lived with the paternal grandmother.

[22] The parties briefly reconciled at the end of May, 2015.

[23] The parties separated on June 18, 2015. The mother took the children to a women's shelter.

[24] In January, 2016, the father went for residential alcohol abuse treatment for 30 days.

[25] The mother and the children moved from the shelter on or about July 1, 2016 into an apartment located close to the paternal grandmother's apartment.

[26] The parties reconciled shortly after for about two weeks. The father left the residence on or about July 18, 2016 after police were called due to a domestic incident.

[27] The mother and the children moved into the same apartment building (but a different unit) as the paternal grandmother in September, 2016. Shortly after, the father moved into the paternal grandmother's home.

[28] The father frequently saw the children at this time, but there was no consistency regarding his access to them.

[29] The mother issued her application on June 19, 2017.

[30] On or about August 1, 2017, the mother and the children went to live in another women's shelter.

[31] On August 2, 2017, on consent, Justice Robert Spence made an order that the father have alternate weekend access with K. and C., from Thursday at 10 a.m. until Sunday at 4 p.m. On the other weekends, the father was to have access with B. at the same times.

[32] On October 12, 2017, on consent, Justice Spence ordered that the father was to have the children with him every weekend from Friday afternoon to Monday morning.

[33] The mother and children moved to another women's shelter in December, 2017, after the father discovered the location of the shelter where they were then living. The society assisted her with this move.

[34] On January 2, 2018, on consent, Justice Spence ordered that the father have the children with him from Saturday morning until Sunday afternoon on two out of every three weekends. Exchanges were to take place at APCO, or at the subway station until APCO accepted the case. The parties further agreed that the father was not to ask the children where the mother was living or where they were going to school and that he was not to consume alcohol within 12 hours of the access visits.

[35] The parties argued temporary motions before Justice Spence on February 14, 2018. Justice Spence ordered that the children spend 3 out of every 4 weekends with the father, from Friday after school until Sunday at 5 p.m. If school was closed on Friday, access was to start on Thursday after school. The father was to drop off the children on Sundays at APCO. The court also ordered the father to pay temporary child support of $512 each month, based on his annual income of $24,745.

[36] In April, 2018, the mother was able to find housing and moved out of the shelter with the children. She continues to live with them in this residence.

[37] The mother completed the intake process for access exchanges to take place at APCO. The father did not attend at APCO for the intake process. Accordingly, the ordered access exchanges are not happening at APCO and have been taking place at the subway station.

[38] The mother speaks little English and required the assistance of a Tamil interpreter at trial.

[39] The mother has not worked since she came to Canada. She has been a stay-at-home mother and has been financially supported through public assistance.

[40] The children have changed schools a number of times due to the mother's moves.

[41] The father had an interpreter available for him at trial. He used the interpreter as needed.

[42] The father lives with the paternal grandmother. He is employed as a meat cutter and is presently working about 30 to 35 hours each week. The father has a grade 12 education.

[43] The father has a 15-year-old child from another relationship. He has not seen her since she was about two years old and does not pay support for her.

[44] The parties advised the court that the father is over $1,800 in arrears of child support pursuant to the temporary order.

Part Three – The Children

[45] K. is in grade 2. The mother described him as a quiet child, who is good at math and likes sports, such as basketball and swimming. He also likes to help her cook.

[46] K. has had behavioural issues at home. At times, he is defiant with the mother and uses inappropriate language. He is upset about the number of times he has had to change schools. In the fall of 2017, he was making statements about self-harm.

[47] C. was described by the mother as a very active child. He likes sports, such as swimming, and enjoys school.

[48] C. has also had some behavioural problems.

[49] With the assistance of the society, the mother obtained professional assistance in managing K.'s and C.'s behaviour through the Aisling Discoveries Here to Help program. The mother has found the program to be very helpful.

[50] B. has been diagnosed with Autism Spectrum Disorder in the severe range. He has received therapy from many service providers, including Aisling Discoveries and Surrey Place. He currently receives Intensive Behavioural Intervention (IBI) therapy in the mother's home 5 to 6 days each week for 6 hours each day. He does not attend a regular school. The mother receives directed funding for this service. A psychologist comes to the mother's home once each month to work with B. He has also received speech and language therapy.

[51] B. requires constant supervision. He has minimal verbal skills. B. does not like loud sounds. He is a picky eater and frequently uses the washroom. He requires a high level of consistency and predictability in his care.

[52] The mother has taken many training programs to learn how to manage B.'s autism. The father has not taken any such training.

[53] B. has made many gains. His language has increased. He is now able to go to the toilet on his own. He is eating better. His behaviour has improved. The mother is optimistic that B. may be able to attend a regular school in September.

[54] The mother described B. as very active. He likes to be outdoors and listen to music. He likes to go with her to the library and to the Early Years Centre.

Part Four – The FSW

[55] The FSW testified that the society has consistently worked with the family since 2013. She has been their worker since the end of 2016.

[56] The FSW said that the protection concerns for the society were the children's exposure to domestic conflict and the father's alcohol abuse.

[57] The FSW stated that much of her work has been around safety planning for the mother and the children.

[58] The FSW testified that in December, 2016, the society received a referral from K.'s school. Based on this referral, she spoke to the father who admitted that he had assaulted the mother. The FSW said that the father told her that he was under the influence of alcohol at the time. This incident happened in the presence of the children.

[59] The FSW said that the father told her that he was going to attend at St. Michael's House for alcohol treatment in 2017. She was unaware at trial if he had followed up on this.

[60] The FSW confirmed that B. has made significant gains in therapy. She has no concerns about the mother's decision-making for him.

[61] The FSW described the mother as very attentive to the children. She said that they are at ease with her and she is able to meet their needs. She said that the mother is very patient in dealing with them and has learned positive parenting strategies.

[62] The mother, the FSW said, is very cooperative with the society and service providers. She responsibly seeks help for the children's needs.

[63] The FSW stated that the mother has been the children's primary caregiver.

[64] The mother complained to the FSW early in 2017 that the father constantly took the children whenever he wanted. The FSW described the father's access as "all over the place". At times he would take one child, at other times two children. There was no regularity to the access schedule and this was destabilizing for the children. She arranged a meeting in April, 2017 and a regular access schedule was worked out.

Part Five – Credibility and Findings of Fact

[65] The court found the mother to be a credible witness. When she made an allegation, she provided considerable detail about it, including times, places and who was present. Her evidence was consistent and was not shaken on cross-examination. She did the best she could to provide complete answers to questions.

[66] The father was not a credible witness. His evidence was often devoid of detail. He would often become evasive and argumentative when asked difficult questions.

[67] The father claimed that he had been very involved with service providers for the children. It was very revealing that he couldn't name their service providers, including B.'s therapists and the psychologist who sees him every month. The father explained that he is bad with names.

[68] Further, the mother provided multiple service provider reports and release and consent forms from B.'s service providers showing that she was their contact person – the father's name was not on any of these forms.

[69] It became apparent that the father has had little, if any, involvement with the children's service providers.

[70] The father claimed that the parties lived together after June, 2016 for a significant period of time. He said that the mother was defrauding social assistance by not revealing to them that he was living with her while collecting her monthly payments.

[71] However, the evidence did not support this allegation. The father stated twice in his Answer/Claim that he has been separated from the mother since June 18, 2015. On his 2015, 2016 and 2017 income tax returns he declared to Revenue Canada that he was separated. It appeared to the court that he took this position about the date of separation to defend himself from the mother's claim for retroactive support.

[72] The mother set out many incidents, over a long period of time, where the father had physically abused her. Her accounts of these incidents were often detailed. They included incidents in 2014 where he punched her and broke her nose and in December of 2016 where he strangled her and banged her head against the wall. The father only offered general denials of abuse. Despite his denials at trial, the court accepts the FSW's evidence that the father admitted to her that he assaulted the mother in December, 2016. The FSW had no motive to lie about this.

[73] The father also admitted that the police removed him from the mother's residence in July, 2016, after she alleged that he assaulted her. He admitted having gone out to party the night before and that he had been drinking.

[74] The court finds that the father minimized his alcohol abuse and abuse of the mother at trial. He claims that after the meeting at the society office in April, 2017, "everything was perfect". Yet on May 11th, 2017, he sent the mother a text threatening to never let the children ever see her parents. On May 14, 2017, he texted the mother as follows:

"Your mother is going to die soon. Ull never see her watch…do u know how to talk to ur elder u undeducated b."

"wat the fuck speak English"

"ull see ull is going to happen…soon ur mom die"

[75] On May 19, 2017, the father texted the mother:

"Ur heart and soul is not good….u will die soon in vain an u go to hell.."

"I pay for u to die soon…I promise.."

[76] The father led the FSW to believe that he was addressing his alcohol issues. However, the father never followed up with St. Michael's House and has not obtained alcohol counseling since that time. The court accepts the mother's evidence that the father was hitting her in July, 2017 and this necessitated her leaving with the children to the women's shelter.

[77] The father has blatantly disregarded the court orders for the end of access exchanges to take place at APCO. He initially tried to pass these breaches off as miscommunication, but it became clear that he just didn't like the court order. He testified, "I wasn't comfortable with dropping the kids off there". The reason for his reluctance to comply with the order quickly became apparent. He frequently returns the children late, with little notice to the mother and improperly has K. ask the mother to extend access. The mother generally agrees to K's request in order to protect the children from conflict. The father wouldn't get away with this behaviour at APCO.

[78] The father's breach of court orders and manipulative behaviour makes it much more difficult for the court to trust his evidence.

[79] Where the evidence of the father conflicted with that of the mother or the FSW, the court preferred the evidence of the mother and the FSW.

[80] The court makes the following findings of fact regarding contested facts:

a) The mother has always been the primary caregiver for the children. At no time has the father had equal or more parenting time with the children, as he alleged.

b) The mother has been the parent who has dealt with the children's service providers, including their schools.

c) The father has had limited involvement with the children's service providers.

d) The mother is the parent best able to look after the children's physical, emotional and developmental needs. She has been the parent who has shown the best ability and willingness to provide the children with guidance and education, the necessaries of life and attend to their special needs.

e) The father was physically and emotionally abusive to the mother during their relationship.

f) The father has also been physically and emotionally abusive to the mother since their separation on June 18, 2015.

g) The abuse would often take place in front of the children.

h) The father's abuse was often fuelled by his alcohol use.

i) The father controlled and isolated the mother.

j) The father failed to support the children after the separation, exerting financial control over the mother.

k) After the separation, the father would demand to take the children whenever he wanted. This continued until court orders were made.

l) The dynamic between the parties is that the mother has difficulty saying no to the father and will accommodate him to make peace. She testified about her fear of being shamed in her community for not listening to her husband and mother-in-law.

m) The father questioned K. about where the mother was living and was able to locate her shelter from him. This necessitated an urgent move by the mother to another shelter in December, 2017 for her safety. This resulted in yet another change in the children's school.

n) The father continues to act disrespectfully to the mother at access exchanges. K. and C. are mimicking this behaviour.

o) The mother has shown the best ability to act as a responsible parent for the children.

Part Six – Legal Considerations

6.1 Best Interests

[81] Subsection 24 (1) of the Children's Law Reform Act (the Act) provides that the merits of a custody or access application shall be determined on the basis of the best interests of the child.

[82] Subsection 24 (2) of the Act sets out eight considerations for the court to consider in making the best interests determination. No one factor has greater weight than the others, nor is one factor particularly determinative of the issue before the court. See: Libbus v. Libbus, [2008] O.J. No. 4148 (Ont. SCJ).

[83] Subsection 24 (3) of the Act sets out that a person's past conduct shall be considered only either in accordance with subsection (4) of the Act or if the court is satisfied that the conduct is otherwise relevant to the person's ability to act as a parent.

[84] Subsection 24 (4) of the Act also sets out that in assessing a person's ability to act as a parent, the court shall consider whether the person has at any time committed violence or abuse against his or her spouse or the child.

[85] The court has considered the factors set out in subsections 24 (1) - (4) of the Act in making this decision.

6.2 Joint Custody and Parallel Parenting

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

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

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

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

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

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

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

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

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

[89] Courts should be very careful before granting parallel-parenting orders in high-conflict cases. They are rife with potential complications that could have the inadvertent effect of escalating conflict and destabilizing children. There is also the risk that important decisions regarding children will not be made in a timely manner if there is a conflict over who is entitled to make that decision. It is not in the best interests of children to paralyze the decision-making process about them. See this court's comments in K.H. v. T.K.R., 2013 ONCJ 418, paragraph 58.

[90] Logic dictates that these risks grow exponentially in a high-conflict case if a party is seeking a "full parallel-parenting model" order. There are many child-related decisions that require a high level of parental communication. Important medical and academic needs for children need to be coordinated. The treatment of any special needs of children must be coordinated. A proposed parenting model where each parent acts fully independently of the other in making these important decisions (where the parents have little or no ability to effectively communicate about the children) needs to be approached with extreme caution. See: K.H. v. T.K.R., supra, paragraph 59.

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

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

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

[93] In G.S.W. v. C.S., [2018] ONCJ 286, this court rejected a request for joint custody and parallel planning for an autistic child where there was high conflict and poor communication between the parties, writing at paragraph 117:

This court's comments about an enhanced need for communication regarding special needs children in Ciatcu, supra, apply just as much when determining the viability of a parallel parenting order. For example, when is the treatment of a child's autism an educational issue and when is it a medical issue? It was very telling and indicative of the challenges of a parallel parenting order with special needs children that the mother could not answer this question clearly at trial, stating that it would have to be worked out.

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

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

a) if the granting of such an order is more or less likely to de-escalate or inflame the parents' conflict;

b) if the granting of such an order is more or less likely to expose the child to parental conflict; and,

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

[96] In paragraph 504 of Izyuk v. Bilousov, 2011 ONSC 6451, the court writes:

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

Part Seven - Father's Claim for Joint Custody

7.1 Positions of the Parties

[97] The father seeks an order for joint custody. For the first time in closing submissions, he also proposed a parallel parenting order. He offered no specifics about how the parallel parenting plan would work.

[98] The father wants to be more involved with decision-making for the children.

[99] The father produced some texts where there was reasonable communication between the parties. He claimed that this established that there was good enough communication to support the court making a joint custody or parallel parenting order.

[100] The mother seeks sole custody of the children.

7.2 Analysis

[101] The mother will be granted sole custody of the children for the reasons that follow.

[102] The mother has been the children's primary caregiver.

[103] The mother has been the parent who has arranged all services for the children. As set out above, the family has received significant services – particularly B.

[104] The mother has worked very hard at training herself to deal with B.'s autism.

[105] The father has made no effort to learn about B.'s autism or train himself to deal with it.

[106] The mother is the parent who works with the school.

[107] The mother is the parent who takes the children for medical appointments.

[108] The father has shown little interest in taking on these multiple responsibilities for the children.

[109] The FSW confirmed that the mother makes responsible decisions for the children and works well with the society and other service providers. She also said that the father is often slow to respond to her attempts to speak with him. The children require caregivers who work well with and are responsive to their service providers.

[110] The parties and the FSW all described the relationship between the parties as high conflict.

[111] The high conflict has taken place in front of the children. It is not surprising then that K. and C. have had behavioural issues.

[112] The high conflict has been bad enough that the society has been involved with the family since 2013 and the Children's Aid Society of Toronto was involved with the family in 2010.

[113] The police have frequently intervened with the family due to domestic disputes.

[114] Families that require constant intervention by Children's Aid Societies and the police due to high conflict are poor candidates for joint custody or parallel parenting orders.

[115] There needs to be a basic level of respect between parents for a joint custody or parallel parenting order to be viable.

[116] The father does not respect the mother. The mother testified that the father constantly demeans her, calling her stupid, or a fucking bitch. He does this in front of the children. The court accepts this evidence.

[117] The father has sent abusive and threatening texts to the mother. The texts provided by the father merely show that at times he can communicate civilly with the mother.

[118] The father's lack of respect for the mother was apparent to the court while the mother testified. Throughout her evidence, he would smirk at her, make faces, sigh and cover his head in mock exasperation.

[119] The father has failed to responsibly pay child support. He paid no child support until the temporary order was made on February 14, 2018. He is already seriously in default of that order. Financially supporting your children is an important component of responsible parenting. The father has failed the children in this respect and has prioritized his own needs over their needs. See: Jama v. Mohamed, [2015] ONCJ 619; Cuevas v. Allen, 2017 ONCJ 562; Pinda v. Pankiw, 2018 BSSC 190.

[120] The father's abysmal financial support of the children is nothing new for him. He also failed to properly support his first child (who is now 15 years old). He deposed that he was over $15,000 in support arrears at one time for that child. He said that he ended up making a deal with the Family Responsibility Office to pay $5,000 and have the balance of arrears rescinded. He pays no support for that child at this time.

[121] The father has refused to permit the mother to obtain a passport for the children. His texts show that he has taunted her that he will never let her see her parents again.

[122] Layered on to these factors is the father's significant domestic violence towards the mother. This abuse happened before and after their separation. The abuse has been both physical and emotional.

[123] There is a significant power imbalance in the relationship between the father and the mother. He tries to control her and she tries to appease him. The evidence indicates that the father would use a joint custody or parallel parenting order to exert control over the mother and that such an order would escalate the conflict and destabilize the children.

[124] The court is not satisfied that the father has appropriately addressed his alcohol issues. The court found that he minimized this concern at trial. Despite undergoing alcohol treatment in January, 2016, he was under the influence of alcohol when he assaulted the mother in July, 2016, December, 2016 and in July, 2017. He did not follow through with St. Michael's House and has not obtained further treatment. The father said that he still goes to parties and drinks, "but only one or two". The court doubts that this is true. The mother testified and the court accepts, that the father has attended at access exchanges with alcohol on his breath and that once he starts drinking he becomes hostile and aggressive.

[125] Joint custody or parallel parenting orders are not appropriate in these circumstances.

Part Eight – Incidents of Custody

8.1 Government Documentation and Passport

[126] The mother seeks an order that she be able to obtain government documentation for the children, including passports, without the father's consent.

[127] The father opposes this request.

[128] The court will make the order sought by the mother. The mother is the children's primary caregiver. It is in their best interests that she have their necessary documentation. The father is hostile to the mother and controlling. He has refused to give his consent so that the mother can obtain passports for the children. The court has no confidence that he would willingly sign consents for necessary documentation for the children in a timely manner.

8.2 Travel Outside of Canada

[129] The mother seeks an order permitting her to travel outside of Canada with the children, for vacation purposes, without the father's consent. In particular, she would like to travel to Sri Lanka for 6 weeks to see her family in 2019. The mother deposed that the father has refused to let her go home to see her family since she came to Canada.

[130] The father's position kept shifting on this issue. In his Answer, he opposed this request, claiming that the mother was a flight risk. In his trial affidavit, he indicated that he would consent to travel, subject to the recommendation of B.'s doctor. In his opening statement, the father indicated that he agreed to K. and C. traveling, but not B. In cross-examination, he again said that he was content with B. traveling, subject to receiving B.'s doctor's recommendation, and in his closing argument, he indicated that he was content with the children traveling, now subject to the approval of B.'s doctor and there not being a travel advisory for Sri Lanka.

[131] The father indicated that he might try and join the mother if she went to Sri Lanka – it was a free country, he said from the counsel table.

[132] The mother's travel requests will be granted. It is in the children's best interests that they be able to freely travel with her, experience the benefits of seeing other parts of the world and meeting her side of the family. The court is confident that the mother can make reasonable decisions regarding B. and his ability to travel. She provided evidence about how she has already canvassed strategies with his doctors and service providers, such as having noise-canceling headphones on the plane.

[133] The court has no confidence that the father will provide consents to travel in a timely or reasonable manner. His positions keep shifting. He is hostile to the mother and looks at every opportunity to exert control over her.

[134] The court will also make orders restricting the father's contact with the mother and the children when they are traveling.

[135] The court will make orders that the mother provide the father with notice of when she will travel and her itinerary and facilitate the children having contact with him during the holiday by telephone or video (such as Skype or Facetime).

[136] The father also seeks the right to travel outside of Canada with the children.

[137] The mother opposed his request with respect to B. and the court agrees with her. B. has significant needs and is very vulnerable. The father has not taken any training to learn how to address his needs. Until he does, it is not in B.'s best interests to travel outside of Canada with him.

[138] The mother is agreeable to the father being able to travel outside of Canada with K. and C. with her consent, such consent not to be unreasonably withheld. That order will be made. Orders will also be made about notice for any trip, the provision of an itinerary, contact information and facilitation of contact between the mother and K. and C. during the vacation.

8.3 Rights to Information

[139] The father seeks rights to information about the children. The mother indicated that she welcomes this request – that she has offered these rights to the father since the separation, but he has been uninterested.

[140] The mother asks for an order that service providers redact her address from any information they give to the father. Given the safety concerns set out in this decision, this will be ordered.

8.4 Restrictions on Residence

[141] The father seeks an order that the children's residence not be removed from the City of Toronto. The mother proposes an order that the children's residence not be removed from the Province of Ontario.

[142] It is important that the father's access be maintained, but it is also important that the mother have the flexibility to move to an area that affords her the best opportunity to support the children – the father has shown that he can't be depended upon to do this. The court recognizes that it is expensive to live in the City of Toronto and the mother is not working.

[143] The court will make an order that the children's residence cannot be moved outside of the Province of Ontario without the father's written consent or prior court order. It will also make an order that if the mother intends to move the children more than 60 km. from the boundaries of the City of Toronto, she shall provide the father with 60 days' notice and the father will then have 30 days after receiving that notice to bring a motion to court to prevent that move. If the father does not bring that motion within the 30 days, the mother will be free to relocate with the children.

8.5 Communication

[144] It is important for the children not to be exposed to adult conflict – specifically the father mistreating the mother.

[145] The father requires specific boundaries to prevent this conflict. The parties made similar recommendations regarding communication clauses. The court will make such orders.

Part Nine – Access

9.1 Legal Considerations

[146] A child should have maximum contact with both parents if it is consistent with the child's best interests. See: Gordon v. Goertz, [1996] 2 S.C.R. 27.

[147] The party who seeks to reduce normal access will usually be required to provide a justification for taking such a position. The greater the restriction sought, the more important it becomes to justify that restriction. See: M.A. v. J.D., [2003] O.J. No. 2946.

9.2 The Father's Relationship with the Children

[148] The mother agreed that the children have a good relationship with the father and enjoy spending time with him.

[149] The mother said that the father is a good father, as long as he is not drinking and not abusive to her.

[150] The evidence indicated that the father is able to properly feed and clothe the children and keep them clean.

[151] The father receives considerable parenting support from the paternal grandmother. The father often needs to work during his access time and the paternal grandmother will care for the children when he is working.

[152] The children have a close relationship with the paternal grandmother.

[153] The court is concerned about the father's ability to meet B.'s autism needs. He has made little effort to learn about them or take any training to address them.

[154] The court is further concerned about the father's ability to act as a positive role model for the children. He has been abusive to the mother in front of the children and they have mimicked his behaviour. This is damaging to the children.

[155] The court is also concerned that the father hasn't adequately addressed his alcohol issues as detailed in paragraph 124 above.

[156] These concerns dictate that the court needs to be careful about giving the father extensive access to the children.

9.3 Regular Access Schedule

[157] The father asked in his opening statement that the regular access schedule in the temporary order be finalized. This schedule is that he have the children on three out of every four weekends from Friday after school until Sundays at 5 p.m. If school is closed on Thursday, the access would start from Thursday after school. He asked to return the children on Monday at 5 p.m. if the Monday was a statutory holiday.

[158] The father changed this position in closing argument. He now asks for access to extend to a Monday return to school. Further, if the Monday is a statutory holiday, he asks for access to extend to a Tuesday morning return to school.

[159] The mother also asked for an adjustment to the current access schedule. She asked that the father's access to B. always start on Friday – not on Thursday if school is closed. This is because B. receives his IBI therapy on Fridays from 9 a.m. to 3 p.m. The father opposed this request in his trial affidavit. However, in the middle of cross-examination he shifted his position and agreed to this. The court will make this order.

[160] The mother opposes the father's request to return the children to school on Monday morning.

[161] The court agrees with the mother. The father has very different routines for the children. They stay up much later with him. The court accepts the mother's evidence that the children are often unsettled after they return to her from the father's home. It is in the children's best interests that the mother have the opportunity to settle the children down before they start school each week.

[162] The father's request to have the children with him on Mondays if there is a statutory holiday following his access weekend is in the children's best interests. They should have the opportunity to spend holiday time with him.

[163] The father asked to be able to attend all extracurricular activities and school events for the children. The court wants to minimize the opportunities for the children to be exposed to adult conflict and will not make this order.

9.4 Access Exchanges

[164] The mother asks that the court continue the exchange arrangement set out in the temporary order. This provides that the children be picked up after school and returned to APCO on Sundays. Only if APCO is closed does she agree to exchanges taking place at the subway station.

[165] The mother also asks that the father's access be suspended until APCO is ready to conduct the exchanges.

[166] The father asks that the drop-offs of the children take place at the subway station.

[167] It is in the children's best interests that access exchanges be safe for them and that the mother and the children not be exposed to the father's verbally abusive behaviour towards the mother. It is also in their best interests that they be returned to the mother on time.

[168] The father has breached the temporary order that the Sunday exchanges take place at APCO. This has given him the opportunity to have more direct contact with the mother on exchanges and be verbally abusive to her. It has let him dictate when the children be returned to her and he has used K. in a manipulative manner to ask for extensions of his access time. This behaviour reinforces the need for the children to be dropped off at APCO.

[169] The court is reluctant to suspend access until the APCO exchanges can start. There will likely be a delay before the case is accepted and it is important for the children to see the father.

[170] The court will order that the Sunday drop-offs take place at APCO. The drop-offs will be at 4 p.m. (as APCO is not open until 5 p.m.). If APCO is closed, only then will the drop-offs take place at the subway station. The father will be required to immediately attend at APCO and complete its intake process and pay any of its annual fees for the family to use its services. The father must provide the mother with proof from APCO that he has completed the intake process and paid the required fees by August 15, 2018. If he fails to do so, his access will be suspended until he provides such proof.

[171] The father agreed not to use alcohol during or within 12 hours of any access visit. This will be ordered.

9.5 Holiday Access

[172] The father seeks an order that the children spend two weeks with him in both July and August. The mother does not want an order made for additional summer access.

[173] It is in the children's best interests to spend some additional time with the father during the summer, but nowhere near the length of time sought by him due to the court's concerns expressed above. To acclimate B. to extended time with the father, the court will increase his time with the father in stages.

[174] The order will provide that the father can designate one week in July and one week in August where his access may be extended. In 2018, his regular weekend access will be extended until Wednesday at 4 p.m., on those weeks. He shall provide the mother with notice about what weeks he is choosing by July 16th. Starting in 2019, he may have the children with him for one full week in July and one full week in August and he shall notify the mother by May 31st each year of the weeks he is selecting.

[175] The mother expressed a concern that B. would miss his IBI therapy if he spends additional days with the father. While the therapy is very important, so is B.'s relationship with the father. The mother is prepared for B. to miss 6 weeks of IBI therapy so she can travel to Sri Lanka. It is also in B.'s best interests to miss a few days of therapy over the summer and other holidays to spend additional time with the father.

[176] The pickups for summer access shall take place on Fridays at 3 p.m. at the subway station. There shall be no Thursday pickups during the summer.

[177] The father's summer access will be subordinate to the mother's right to travel with the children to Sri Lanka during any summer, for up to six weeks, starting in 2019. If the mother chooses to travel to Sri Lanka in any year, she shall notify the father about this by May 15th. The father will then be able to have his extended summer weeks during two weeks when the children will not be in Sri Lanka.

[178] The father's access will be suspended while the mother travels with the children to Sri Lanka. The court will place restrictions on the father's contact with the mother and the children when they are traveling outside of Canada.

[179] The parties agreed that K. and C. could share the March Break and the Winter School Break between them. The mother did not want B. to spend this extended time with the father. For the same reasons expressed above about summer access, the court finds that it is in B.'s best interests to spend this additional time with the father and his siblings.

[180] The father's request to have the children with him on Father's Day will be granted. His requests to have the children with him on his birthday and on their birthdays will not be granted. The court wants to reduce the number of access exchanges between the parties to protect the children from conflict.

Part Ten – Restrictions on Contact

[181] The mother sought a restraining order under both s. 46 of the Family Law Act and s. 35 of the Act in her application. In her draft order, she indicated that she was agreeable to contact restrictions pursuant to s. 28 of the Act.

[182] The father opposes any restrictions other than a term that neither parent denigrate the other in front of the children.

[183] The mother's claims for restrictions pursuant to s. 28 of the Act contained in her draft order will be granted. There is a long history of physical and emotional abuse by the father towards her. He continues to ridicule her on access exchanges in front of the children. The court lacks confidence that his alcohol issues are behind him. The father's reaction to the mother going to Sri Lanka was that he might go with her too. He is controlling and has difficulties managing his anger. The father needs clear boundaries to ensure that the mother and children are safe.

Part Eleven – Child Support

11.1 Positions of the Parties

[184] The mother seeks child support retroactive to July 1, 2015. She asks that annual income be imputed to the father at a minimum wage level for each year for the purpose of the support calculation. The mother claims that the father has either been deliberately underemployed or unemployed since July 1, 2015.

[185] The mother did not broach the issue of child support with the father until she issued her application. The date of effective notice of her claim is the same date as the formal notice of her claim.

[186] The mother did not put the father on notice that she was claiming retroactive support until April, 2018.

[187] The father asks that support be based on his actual annual income of $25,000, starting on January 1, 2018. He claimed that the parties cohabited until January 1, 2017 and that retroactive support should not be ordered. The court has already found that the parties separated on June 18, 2015. The father also claimed that he contributed a fair amount towards the children's expenses after June 18, 2015. The mother denies this. The father produced no evidence of payments made. The court does not accept his evidence.

11.2 - Retroactive Support

11.2.1 - Legal Considerations

[188] A support claimant is presumptively entitled to prospective support from the date of notice that a support claim is being pursued: see MacKinnon v. MacKinnon, 75 O.R. (3d) 175, at para. 22. This means that the mother is presumptively entitled to support from the time she issued the application in July, 2017. The father did not rebut that presumption.

[189] The Supreme Court in D.B.S. v. S.R.G.; Laura Jean W. v. Tracy Alfred R.; Henry v. Henry; Hiemstra v. Hiemstra, 2006 SCC 37 outlined the factors that a court should take into account in dealing with retroactive applications. Briefly, there are four points that the court raised:

1. Whether the recipient spouse has provided a reasonable excuse for his or her delay in applying for support.

2. The conduct of the payor parent.

3. The circumstances of the child.

4. The hardship that the retroactive award may entail.

[190] None of the above factors are decisive or take priority and all should be considered in a global analysis. In determining whether to make a retroactive award, a court will need to look at all of the relevant circumstances in front of it. The payor's interest in certainty must be balanced with the need for fairness and flexibility.

[191] Retroactive awards are not exceptional. They can always be avoided by proper payment. (D.B.S. par. 97).

[192] Where ordered, an award should generally be retroactive to the date when the recipient gave the payor effective notice of his or her intention to seek an increase in support payments; this date represents a fair balance between certainty and flexibility (D.B.S., par. 5).

[193] Effective notice is defined as any indication by the recipient parent that child support should be paid, or if it already is, that the current amount needs to be renegotiated. All that is required is for the subject to be broached. Once that has been done, the payor can no longer assume that the status quo is fair (D.B.S., par. 121).

[194] It will not always be appropriate for a retroactive award to be ordered. Retroactive awards will not always resonate with the purposes behind the child support regime; this will be so where the child would get no discernible benefit from the award. Retroactive awards may also cause hardship to a payor parent in ways that a prospective award would not. In short, while a free-standing obligation to support one's children must be recognized, it will not always be appropriate for a court to enforce this obligation once the relevant time period has passed. (D.B.S., par. 95).

[195] Courts ordering a retroactive award must still ensure that the quantum of the award fits the circumstances. Blind adherence to the amounts set out in the applicable guideline tables is not required — nor is it recommended. There are two ways that the courts can affect the quantum of retroactive awards (D.B.S., par. 128). The first involves exercising the discretion that the guidelines allow. Courts may exercise their discretion with respect to quantum in a variety of other circumstances under the guidelines. See: ss. 3(2), 7, 9 and 10 of the guidelines (D.B.S., par. 129). The second is by altering the time period that the retroactive award captures. While the date of effective notice should be chosen as a general rule, this will not always yield a fair result. For instance, where a court finds that there has been an unreasonable delay after effective notice was given, it may be appropriate to exclude this period of unreasonable delay from the calculation of the award.

[196] In J.J. v. C.C., 2017 ONCA 357 the court noted that D.B.S, at para. 99, left open the possibility that "retroactive support could be ordered where a payor parent engages in no blameworthy conduct." However, the court described that outcome as "conceivable". In J.J., the court saw no reason to deviate from the general principle that support should be retroactive to the date of effective notice – in J.J., that was the date of the motion to change.

11.2.2 – Analysis

[197] The mother provided a partial excuse for the delay in making her support claim. She had been the victim of abuse and feared the father. She hoped to avoid legal proceedings. It was only when the informal parenting arrangements became untenable that she came to court.

[198] The mother provided no explanation about why the retroactive support claim wasn't made until April, 2018.

[199] The father engaged in blameworthy conduct by paying no child support until February, 2018. He received a $1,700 income tax refund in 2018 and used little of it to pay child support. He placed his own interests ahead of the children's. In exercising its discretion, the court finds that it would send the wrong message to the father and other support payors who act in this manner to make no retroactive support order.

[200] No evidence was provided that the circumstances of the children were disadvantaged due to the father's failure to pay child support.

[201] A retroactive support order will cause the father some hardship. He has limited financial means. However, the court does not have much sympathy for him. He has placed himself in this position by his conduct and obtained a financial windfall by failing to pay any child support.

[202] Balancing all of these factors, the court will make a retroactive support order to January 1, 2017.

11.3 The Father's Income

11.3.1 – Imputing Income – Legal Considerations

[203] Section 19 of the Child Support Guidelines (the guidelines) permits the court to impute income to a party if it finds that the party is earning or is capable of earning more income than they claim.

[204] Imputing income is one method by which the court gives effect to the joint and ongoing obligation of parents to support their children. In order to meet this obligation, the parties must earn what they are capable of earning. If they fail to do so, they will be found to be intentionally under-employed. See: Drygala v. Pauli, [2002] O.J. No. 3731.

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

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

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

3. If not, what income is appropriately imputed?

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

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

11.3.2 - The Father's Income in 2018

[208] The mother submits that the father is capable of working full-time at a minimum wage level but refuses to do so.

[209] The father has worked as a meat cutter at No Frills for the past five years. He does not work full-time, but is presently working about 30 to 35 hours each week at $14.25 each hour. He hopes to make $25,000 this year.

[210] The father is a unionized employee. He testified that he would like a full-time job, but would not want to jeopardize his present employment. He said that he has a friend who might be able to get him a full-time job within a month.

[211] The mother did not meet her onus of establishing that the father was deliberately unemployed or underemployed. In the current economy, courts should not default to making assumptions that people can earn a minimum wage income at full-time hours. The reality is that there are now far more part-time workers that come before the court.

[212] The father also has limited employment skills. He has a grade 12 education and is not a skilled labourer.

[213] The father has historically not earned a significant income. His line 150 statements in his income tax returns for the past four years are as follows:

• 2017 – $18,528
• 2016 – $15,377
• 2015 – $13,806
• 2014 - $15,225

[214] The father is now working significant part-time hours. It is reasonable that he not leave this job without the guarantee of full-time employment. It is questionable whether he could work at another part-time job which didn't interfere with this job and the court will not require him (for support purposes) to do this.

[215] The father's 2018 income and ongoing annual income for support purposes shall be fixed at $25,000.

[216] The guidelines table amount for three children at an annual income of $25,000 is $517 each month.

11.3.3 The Father's Income in 2017

[217] The father's line 150 income for 2017 was $18,528. The court finds that the mother did not meet her onus of showing that the father was intentionally underemployed in 2017.

[218] However, the analysis does not end there. The father deducted his December, 2017 child support payment and his legal fees for this case of $4,000 from his 2017 income. This meant that he ended up only paying $115 in income taxes. This is an appropriate case to gross-up his income, as his income was essentially net of tax in 2017. The gross-up of income is done to ensure consistency of treatment where a party is found to have arranged his or her affairs to pay less tax on income. See: Sarafinchin v. Sarafinchin, [2000] O.J. No. 2855.

[219] The court will assess the father's annual income at $20,200 for support purposes for 2017. The guidelines table amount for three children at this income was $411 each month, from January to November, 2017. It was $368 per month, once the guidelines table amounts changed in December, 2017.

[220] The father will be credited for child support paid since January 1, 2017, but only as reflected in the records of the Family Responsibility Office. The court accepts the mother's evidence that the father did not directly pay her any child support until after the temporary order was made on February 14, 2018.

[221] The father did not seek an order for a monthly payment of his support arrears. The court will not make such an order. The father will need to negotiate payment of the arrears, as created by this order, with the Family Responsibility Office.

Part Twelve – Conclusion

[222] A final order shall go on the following terms:

a) The mother shall have sole custody of the children

b) On an ongoing basis, the mother shall keep the father advised, in writing, of the names and contact information for all service providers, including schools, for the children.

c) The father has the right to consult with and obtain information directly from the children's teachers, doctors or other professionals about the health, education and welfare of the children in accordance with subsection 20 (5) of the Act. This shall not include the right to know the address for the mother and the children. The address for the mother and the children shall be redacted from all third party information disclosed to the father.

d) The mother may apply for passports, renewals of same, and all other government documentation for the children, without the consent of the father.

e) The mother may travel outside of Canada with the children, for vacation purposes, without the consent of the father. The mother shall provide the father with advance written notice of travel and her itinerary.

f) If the mother intends to travel to Sri Lanka with the children during the summer school break, she shall advise the father about this in writing by May 15th of that year. She will be entitled to take the children to Sri Lanka for up to six weeks during that summer and the father's access shall be suspended during that time.

g) If the mother travels to Sri Lanka, she shall arrange for the father to have reasonable telephone and video (such as Skype or Facetime) access with the children.

h) The father may not travel with B. outside of the Province of Ontario.

i) The father may travel with K. and C. outside of Canada, starting in 2019, with the mother's written consent, such consent not to be unreasonably withheld.

j) If the father wishes to travel with K. and C. outside of Canada he is to provide the mother with a minimum of 60 days written notice and provide her with a full itinerary for the proposed trip, addresses where he will be staying and contact numbers where he can be reached.

k) If the father travels with K. and C. outside of Canada, he shall arrange for the mother to have reasonable telephone and video (such as Skype or Facetime) access with them.

l) The children's residence shall not be removed from the Province of Ontario by the mother without the father's written consent or prior court order.

m) If the mother intends to move the children's residence more than 60 km. from the boundaries of the City of Toronto, she shall provide the father with 60 days written notice of where she will be moving and when. The father will then have 30 days after receiving that notice to bring a motion to court to prevent that move. If the father does not bring that motion within the 30 days, the mother will be free to relocate with the children.

n) The father shall have regular access to the children on three out of every four weekends (the first weekend will follow the schedule that has been taking place since the temporary order was made on February 14, 2018), from Friday, with pickup after school, until Sundays at 4 p.m. If Friday is a professional development day or school holiday the access shall begin from Thursday after school. However, during the summer all pickups of the children shall take place on Fridays at 3 p.m.

o) The mother will advise the father if B. has therapy scheduled on any Friday when the father's weekend access would otherwise start on Thursday. In this event, the father's access to B. will start on Friday at 3 p.m.

p) If the Monday following the father's access weekend is a statutory holiday, the father's access shall be extended until Monday at 4 p.m.

q) The children shall reside with the father during the March School Break in odd-numbered years and with the mother in even-numbered years.

r) The children shall spend equal time with the parents during the Winter School Break. The children shall spend the first half of the winter school break with the mother and the second half with the father in odd-numbered years. The children shall spend the first half of the winter school break with the father and the second half with the mother during even-numbered years. This is subject to the division of Christmas Eve and Christmas Day set out below.

s) The parties shall alternate Christmas Day and Christmas Eve each year. During even-numbered years, the children shall reside with the father from December 24th at 1 p.m. until December 25th at 1 p.m. and with the mother from 1 p.m. on December 25th until 1 p.m. on December 26th. In odd-numbered years the children shall reside with the mother from December 24th at 1 p.m. until December 25th at 1 p.m. and with the father from 1 p.m. on December 25th until 1 p.m. on December 26th.

t) The children shall spend Father's Day with the father from 10 a.m. until 4 p.m., if it is otherwise not his day for access.

u) The children shall spend Mother's Day with the mother starting at 10:00 a.m., if it is otherwise the father's day for access.

v) The father can designate one week in July and one week in August where his access may be extended. In 2018, his regular weekend access will be extended until Wednesday at 4 p.m., on those weeks. He shall provide the mother with notice about what weeks he is choosing by July 16th. Starting in 2019, he may have the children with him for one full week in July and one full week in August and he shall notify the mother by May 31st each year of the weeks he is selecting.

w) The father's summer access will be subordinate to the mother's right to travel with the children to Sri Lanka during any summer, starting in 2019. If the mother chooses to travel to Sri Lanka, the father shall still have his extended summer weeks during two weeks when the mother will not be in Sri Lanka.

x) The holiday access schedule shall take priority to the regular access schedule.

y) The children shall have reasonable telephone and video access (such as Skype or Facetime) with each parent when they are in the other's care.

z) The father shall pick up the children at the start of access from school. The drop-offs on Sunday shall take place at APCO. If there is no school or APCO is closed, the exchanges shall take place at the Kennedy subway station ticket area or any other subway station chosen by the mother.

aa) The father is to immediately contact APCO and arrange for his intake interview. He is to pay all APCO annual fees for the family to use its service. He is to provide the mother with written proof from APCO by August 15th, 2018 that he has attended for intake and paid APCO's fees. If he fails to do this, his access shall be suspended until he provides such proof or until such time as this court lifts the suspension.

bb) Until such time as APCO is able to start the exchanges, the drop-offs of the children shall take place at the Kennedy subway station ticket area or any other subway station chosen by the mother.

cc) The father is not to consume or use alcohol at any time during access, and for the 12 hours prior to the start of each access visit.

dd) On an ongoing basis, the parties shall keep each other updated in writing in regards to their cell phone numbers and email addresses.

ee) The father shall keep the mother advised by text of his residential address.

ff) Pursuant to section 28 of the Act:

1. Neither party shall say anything negative about the other party or their family and shall use their best efforts to ensure that their family and friends do not make any such negative remarks in the presence of the children.

2. The father shall not ask any of the children, or enlist any person to ask the children where they are living, or for any other information that would enable him to locate this.

3. The father shall not travel together with the children and the mother when they are traveling outside of Canada. He shall also not come within 50 km. of them when they are traveling outside of Canada.

4. The father shall not contact the mother, either directly or indirectly, except for access exchanges as set out in this order, and except for communicating with the mother regarding the children, provided that this is done by text alone.

5. The father shall not come within 100 metres of the mother, or her home, school, church or workplace, or any other place that he has reason to believe that the mother may be at, except for access exchanges as set out in this order.

gg) The father shall pay the mother the guidelines table amount of child support for three children, starting on January 1, 2017, based on his annual income, assessed at $20,200. The payments starting on January 1, 2017 are $411 each month. For December, 2017, the payment is $368.

hh) The father shall pay the mother the guidelines table amount of child support for three children, starting on January 1, 2018, based on his annual income of $25,000, of $517 each month.

ii) This support order replaces the support terms contained in the temporary order, dated February 14, 2018. The Family Responsibility Office is asked to amend its records accordingly.

jj) The father shall provide the mother with complete copies of his income tax returns and notices of assessment by June 30th each year, starting in 2019.

kk) The father shall immediately inform the mother if he obtains new employment and provide the details of this employment, including the name and address of the employer, his rate of pay and copies of his first three pay stubs.

ll) The father shall be credited for all child support payments made since January 1, 2017, only as reflected in the records of the Family Responsibility Office.

mm) A support deduction order shall issue.

[223] If either party seeks their costs, they shall serve and file their written costs submissions by July 17, 2018. The other party will have until July 31, 2018 to respond. The costs submissions shall not exceed 3 pages, not including any offer to settle or bill of costs. The costs submissions should be delivered to the trial coordinator's office.

[224] The mother's counsel shall prepare and take out this order. Court staff are asked to expedite issuing it upon presentation.

[225] The court thanks counsel for their professional presentation of this case.

Released: July 3, 2018

Justice S.B. Sherr