Court File and Parties

Date: October 16, 2018

Court File No.: D57818/12

Ontario Court of Justice

Between:

Joann Milonas

Barry Nussbaum, for the Applicant

Applicant

- and -

Constantinos Copsas

Melanie A. Larock, for the Respondent

Respondent

Heard: October 12, 2018

Justice S.B. Sherr

Reasons for Decision

Part One – Introduction

[1] This trial was primarily about the parenting arrangements for the parties' two children, D. (age 8) and Y. (age 3) (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 without the respondent's (the father's) consent. She also seeks to change the children's surnames to include her own last name.

[3] The respondent (the father) seeks a modified form of joint custody of the children and several incidents of custody and access. He is content that the mother make all major decisions for the children with prior consultation with him, except in the areas of religion and the children's extracurricular activities.

[4] The father seeks an order to prohibit the mother from changing the children's surnames. He also seeks an order prohibiting either party from changing the children's residence to a place more than a 30-minute drive during rush hour from the children's present daycare/school and from each other without the other party's written consent or court order.

[5] The parties agree that the father will have the children with him on alternate weekends. The father wants to return the children to school on Monday mornings. The mother wants him to return the children to her on Sunday evenings. The father seeks overnight access during the school week – the mother opposes this.

[6] The father seeks a far more extensive holiday access schedule than the mother is proposing that he have with the children.

[7] The parties exchanged draft orders at the outset of the trial at the direction of the case management judge. [1] Many of the claims for relief in the draft orders were not contained in the parties' pleadings. The parties consented at the outset of the trial that their pleadings would be orally amended to include the claims made in their draft orders. The court was satisfied that each party had had a fair opportunity to address the new claims made by the other.

[8] The parties agreed to a focused trial of the issues on the following terms:

a) The trial was set for one day.

b) Each witness would provide their direct evidence by affidavit.

c) The parties would each have up to 30 minutes for supplementary direct evidence.

d) Cross-examinations of the parties would be for up to 75 minutes.

e) Re-examinations of the parties would be for up to 30 minutes.

f) Closing statements would be for up to 30 minutes each.

[9] Both parties testified and were cross-examined. Counsel were very focused in their examinations and did not require the full time allocated to conduct them. The trial was completed in a half-day.

[10] The main issues in this trial were:

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

b) Should the mother be prevented from changing the surnames of the children?

Part Two – Background Facts

[11] The mother is 42 years old. The father is 52 years old.

[12] The parties began their relationship in 2008 and separated in 2010. They only lived together for a few months during that time.

[13] The parties resumed their relationship in 2014, but ended it on a final basis at the end of 2015.

[14] The parties are the parents of the children, both boys. They have no other children.

[15] The children have always lived with the mother.

[16] The father is self-employed and works in construction. The mother works in early childhood education.

[17] The mother issued an application for custody and child support for D. in 2012.

[18] On consent, on August 8, 2013, Justice Carolyn Jones made an order (the existing order) granting custody of D. to the mother, with the father to have day access until D. was 5 years old, at which time access would be increased to a single overnight access visit on alternate weekends. A holiday access schedule was agreed to. The parties agreed that they would mutually agree on D.'s extracurricular activities. A final support order was made.

[19] The mother issued an application on June 7, 2016, seeking custody of both children, access by the father to the children to be in her discretion, and child support.

[20] The father filed an Answer/Claim. He sought to change the existing order and asked for joint custody of both children.

[21] The father was not permitted by the mother to see Y. (who was born in November, 2015) from January, 2016 until September, 2016 and was only permitted by her to have sporadic access to D. during this time.

[22] On December 13, 2016, Justice Jones made temporary orders that the father would have access to D. for one overnight on alternate weekends and to both children on Tuesdays and Thursdays for 3 hours. The father also was given access to Y. on alternate Saturdays for a few hours. Justice Jones also made a temporary child support order.

[23] On February 13, 2017, Justice Jones ordered that the mother have temporary custody of the children.

[24] On February 12, 2018, Justice Jones increased the father's access to the children, to take place on alternate weekends from Fridays after school until Sundays at 5 p.m. She also ordered that the children were to have access with the father each Tuesday after school for 3 hours and on alternate Thursdays after school for 3 hours.

[25] On May 29, 2018, Justice Jones ordered that the children spend two one-week periods, non-consecutive, with each parent in the summer.

[26] On August 29, 2018, Justice Jones organized the focused hearing of the parenting issues.

[27] Access has been taking place in accordance with the temporary orders.

Part Three – Perspectives of the Parties

[28] The mother believes that it is in the children's best interests that she be granted unfettered sole custody of them. She says that she has always been their primary caregiver and that she has consistently made responsible decisions for them – they are thriving in her care.

[29] The mother says that she cannot communicate with the father. She describes him as domineering and abusive in his communications with her. She filed texts supporting this position and described two incidents where the father accosted her in public at D.'s hockey games. She testified that she is always fearful and full of anxiety around him.

[30] The mother expressed concerns about the father's time with the children. She believes that he does not properly feed them and that they stay up too late on their nights with him; she claims that they are tired and cranky for a day after these visits, falling asleep at school and at daycare. She does not believe that the father does homework with D. during the visits.

[31] The mother believes that the father demeans her to the children. She is also concerned that the father exposes the children to gambling and has taken them to age-inappropriate movies.

[32] The mother asks to add her last name to the children's surnames. She feels that it is only fair that the children have both of their surnames.

[33] The father denied most of the mother's allegations and characterized her as a liar.

[34] The father agreed with the mother that they cannot communicate effectively with one another – they only communicate by text.

[35] The father admitted that a series of texts he sent to the mother in January and February, 2017 were inappropriate and apologized for them in court. He said that he was frustrated about being denied access. He says that he has not repeated this behaviour.

[36] The father believes that the mother has been trying to remove him from the children's lives. He says that she has fought at every step to restrict his access to the children. He noted that the mother did not let him know that she was taking D. to counseling – he had to learn this from D. He says that he has given up trying to call the children at the mother's home as the mother will not pick up the phone or return his calls.

[37] The father testified that he wants to be more than a "fun dad" and that he wants to play a more meaningful role in the children's lives. He wants to be able to take them to school, be involved with their service providers and coach their sports teams.

[38] The father said that he lost his own father at a young age and still misses him. He wants to instill values in the children that his father taught him. He wants the children to learn the importance of family.

[39] The father does not trust the mother and believes that she is seeking a name change to further marginalize him as a parent.

[40] Both parents are Greek Orthodox. The father claims that religion is much more important to him than it is to the mother. He said that he let her choose the godparent for D. He said that she unilaterally chose two godparents for Y., although he has not yet been baptized. He wants to select two more godparents for Y. He also worries that the mother will not baptize him.

[41] The mother says that she has held off baptizing Y. because of the conflict over the godparents, but fully intends to do this once this case is finished. She said that she selected Y.'s godparents when he was born, that Y. knows them as his godparents and it would be confusing to him and inappropriate to add additional godparents at this time. [2]

[42] The mother says that she has complied with the court orders and denies that she is attempting to marginalize the father as a parent.

Part Four – Legal Considerations

4.1 Material Change in Circumstances and Best Interests

[43] The parties are both seeking to change the existing order regarding D. The claims regarding Y. arise from an original application. Accordingly, different legal considerations apply.

[44] Section 29 of the Children's Law Reform Act (the Act) provides that a court shall not vary a custody or access order unless there has been a material change in circumstances that affects or is likely to affect the best interests of the child.

[45] Once a material change in circumstances is established, both parties bear the evidentiary onus of demonstrating where the best interests of the child lie, and there is no legal presumption in favour of maintaining the existing access arrangements. See: Persaud v. Garcia-Persaud, 2009 ONCA 782; Deslauriers v. Russell, 2016 ONSC 5285; Roloson v. Clyde, 2017 ONSC 3642. Once the material change threshold is met, the best interests considerations set out in section 24 of the Act will apply to both the request to change the existing order for D. and the original parenting claims respecting Y.

[46] Subsection 24 (1) of the Act provides that the merits of a custody or access application shall be determined on the basis of the best interests of the child.

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

[48] 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 person.

[49] 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.

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

4.2 Joint Custody

[51] The Ontario Court of Appeal in Kaplanis v. Kaplanis, [2005] O.J. No. 275 (OCA), 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.

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

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

[54] 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.

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

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

4.3 Access

[56] 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.

[57] There is a presumption that regular access by a non-custodial parent is in the best interests of children. The right of a child to visit with a non-custodial parent and to know and maintain or form an attachment to the non-custodial parent is a fundamental right and should only be forfeited in the most extreme and unusual circumstances. See: Jafari v. Dadar, [1996] N.B.J. No. 38 (NBQB).

[58] 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 (OCJ).

[59] If one parent does not facilitate, or undermines the child's relationship with the other parent, it will be a relevant factor in determining their ability to act as a parent. See: Leggatt v. Leggatt, 2015 ONSC 4502.

4.4 Name Change

[60] In paragraphs 15 to 25 of Hermanson v. Kiarie, 2017 ONCJ 598, this court reviewed its jurisdiction to make orders changing or preventing the change to a child's name as follows:

[15] At paragraph 215 of Benko v. Torok, 2013 ONCJ 331, Justice Sheilagh O'Connell wrote: [3]

The Ontario Court of Justice does not have jurisdiction to make an order changing a child's name. There is no statutory authority to make an order compelling the Registrar General of Ontario (the Registrar General) to change a child's name under the Vital Statistics Act and the Ontario Court of Justice does not have parens patriae jurisdiction. In all of the cases where this order has been made, the application was commenced in the Superior Court of Justice and the court has made the order changing a child's name using its parens patriae jurisdiction. See: Gallant v. Lewis, [2008] O.J. No. 2913, 57 R.F.L. (6th) 345, 2008 CarswellOnt. 4384 (S.C.J.); Ryan v. Scott, [2011] O.J. No. 3032, 2011 ONSC 3277. [4]

[16] However, the court is not being asked by the mother for an order changing the children's names. It is being asked by the father to prohibit the mother from changing the children's names as an incident of custody.

[17] Clause 28 (1) (b) of the Children's Law Reform Act gives the Ontario Court of Justice statutory authority to determine any aspect of the incidents of the right to custody or access.

[18] In paragraph 24 of Zho v. Chen, [2000] O.J. No. 4520 (SCJ – Family Court), Justice Clifford Nelson found that the court could prohibit a party from changing a child's name as an incident of custody. The test, he wrote, was whether such an order was in the child's best interests. [5]

[19] The father is seeking this order because subsection 5 (1) of the Change of Name Act permits a custodial parent to apply to the Registrar General to change a child's name, unless a court order or separation agreement prohibits the change. In the absence of such an order or agreement, the custodial parent is free to change a child's name over the objection of the non-custodial parent. The father is seeking a court order that, if granted, would have the effect of preventing the mother from being able to bring a name change application under the Change of Name Act.

[20] Changing a child's name is not a mere administrative act. See: Herniman v. Woltz, [1996] O.J. No. 1083 (Ont. Gen. Div.). A child's surname is important. In many ways, the surname speaks to who the person is, and is not simply a convenient means of identification. See: Hill v. Shimla, [1995] O.J. No. 3311 (Ontario Court of Justice (General Division – Family Court)); Belisle v. Poole, 2 R.F.L. (4th) 165 (Ont. Gen. Div.).

[21] The court should be mindful of the parties' agreement about what to name a child at birth. See: Hill v. Shimla, supra.

[22] The jurisprudence has set out factors for the court to consider in determining whether a prohibition of a name change is in a child's best interests. These factors include:

a) Whether the proposed name change will exclude the name of the non-custodial parent.

b) The length of time a custodial parent has had sole custody of the child.

c) Whether there is a continuing close relationship between the child and the non-custodial parent.

d) Whether there would be any serious effect on the non-custodial parent.

e) Whether either parent has displayed any malice or improper motivation.

f) The age of the child and the weight to be given to the child's wishes, in light of that age.

g) The length of time the child has had its name.

h) The surnames of any siblings.

See: Hornan v. Hornan, [2007] MBQB 261; Skoglund v. Dimmery, 59 Man. R. (2d) 154 (Man. Q.B.); Herniman v. Woltz, supra; Melvin v. Burwell, supra; Zho v. Chen, supra.

[23] In Benko v. Torok, supra, the child had only the mother's surname at the time of the trial. Justice O'Connell made a final order for joint custody of the child and made a finding that it was in the child's best interests to have the surnames of both parents.

[24] Justice O'Connell noted that while the Ontario Court of Justice had no jurisdiction to order a change of the child's name, under the Change of Name Act, a joint custodial parent had the right to make a change of name application to the Registrar General. If the other joint custodial parent did not consent to the application, subsection 5 (4) of the Change of Name Act permitted an application to be made to the court (including the Ontario Court of Justice – see subsection 5 (4.1)) to dispense with that consent.

[25] Justice O'Connell granted leave to the father to bring an application to dispense with the mother's consent if he made a name change application to the Registrar General to include the surnames of both parents and the mother did not consent to it.

[61] This court decided in Hermanson that the mother should not be prevented from adding her last name to the children's surnames, but prohibited any other change to their names.

[62] Hermanson was followed in Roy-Bevington v. Rigden, 2017 ONCJ 730, a decision of Justice Alex Finlayson. The mother had temporary custody of the child and the child had the surname of the mother's new husband. The father wanted to include his last name in the child's surname. Justice Finlayson found that there was a material change in circumstances and awarded the father, as an incident of custody, the right to apply to the Registrar General of Ontario to change the surname of the child. If the mother opposed the name change, Justice Finlayson indicated that the father could move before him to dispense with the mother's consent.

[63] In M.L. v. J.C., 2017 ONSC 7179, Justice Lena Madsen considered the factors set out in paragraph 22 of Hermanson (set out above) in determining the name of a child. She expanded upon Hermanson and Roy-Bevington by finding that:

a) The court isn't restricted to determining a change of a child's name as an incident of custody pursuant to clause 28 (1) (b) of the Act. It can also determine the initial name of the child as an incident of custody, if the child's name has not yet been registered.

b) The court could determine the child's first name – not just the child's surname.

c) The court could (and did) require the biological mother to take the necessary administrative steps to name the child as determined by the court.

Part Five – Material Change in Circumstances

[64] The parties agreed and the court finds that there has been a material change in circumstances affecting D.'s best interests since the existing order was made. The parties reconciled and had a relationship for over one year after the existing order was made and there have been subsequent court orders changing the access terms from those contained in the existing access order. The father's relationship with D. is much different now than it was in 2013.

[65] The court must next determine what parenting orders are in the best interests of the children.

Part Six – Findings of Fact

6.1 Uncontested Material Findings of Fact

[66] The following material findings of fact were not seriously contested:

a) The mother has always been the primary caregiver of the children.

b) The children are doing well in the mother's primary care. She is a good parent.

c) All of the children's physical needs are being responsibly met by the mother. She ensures that they are well-fed, clothed, clean and that they attend school and daycare regularly.

d) The mother has responsibly attended to the children's medical needs. When D. required counseling, the mother made the necessary arrangements for him to be seen at Aisling Discoveries.

e) The mother loves the children and the children love her very much.

f) The father loves the children and the children love him very much.

g) The children are safe in the father's care.

h) The father is a good parent. [6]

i) The children enjoy their time with the father. He is very involved in sports with them and takes them regularly to church.

j) Between January, 2016 and September, 2016, the father did not have any contact with Y., despite his requests.

k) The father has complied with the court's child support order.

6.2 Material Findings of Contested Facts

6.2.1 The Father's Aggressive Behaviour

[67] The court finds that the father has acted in an inappropriately aggressive manner when he has been frustrated and doesn't get his own way.

[68] The mother attached a series of texts that the father sent to her in January and February, 2017, where he made the following statements to her: [7]

a) You provoking witch.

b) Filthy murdering vroma. [8]

c) You are nothing more than a female version of Charles Manson….sick, delusional calculating filthy psychopathic bottom.

d) You piece of Greek garbage.

e) If you think you can FUCK WITH MY KIDS MINDS LIKE YOUR MOTHER FUCKED WITH YOUR TO BRING TO A POINT TO TRY A MURDER YOUR FATHER…think again!! You piece of rotting flesh.

f) You don't deserve to see the light of day.

[69] The father acknowledged that these texts were inappropriate and apologized at trial. It shouldn't have taken a trial for him to make this apology. The father kept explaining, "I am only human", as if it justified his conduct. He said that he was frustrated at being denied access.

[70] The court finds it more probable than not that the father also verbally accosted the mother in both 2017 and 2018 at D.'s hockey games in front of other parents. Such behaviour is consistent with the text messages filed. It is also consistent with the father's anger at and lack of respect for the mother that was apparent to the court.

[71] The mother has good reason to be wary about dealing with the father.

6.2.2 The Mother's Facilitation of the Children's Relationship with the Father

[72] The court finds that the mother unreasonably restricted the father from having contact with Y. between January and September, 2016.

[73] The court finds that while she has substantially complied with court orders, the mother has only begrudgingly permitted the father to have reasonable contact with the children since September, 2016. The court makes this finding for the following reasons:

a) The mother's complete restriction on the father having contact with Y. from January, 2016 until September, 2016.

b) The mother's initial position was that the father could have no overnight access with D. and that all of his access to the children had to be in her discretion.

c) The mother has been resistant to increases in access throughout this case.

d) The mother had D. attend counseling without informing the father.

e) The mother has never had the children send the father a Father's Day card or a birthday card.

f) The mother has made telephone access difficult for the father – often not picking up the phone or returning calls.

g) In her draft order, the mother offers the father no rights to obtain information about the children or any rights to be consulted about major decisions affecting them.

[74] The mother made a number of allegations of poor parenting against the father that were not supported by the evidence. In particular:

a) She claimed that the children were not properly fed when they were with him. The father satisfied the court that this is not the case.

b) She claimed that the children were returning from visits exhausted and they were exhausted the next day at school, because they were staying up late at night when with the father. The mother provided no evidence to support this allegation, except undated photos of the children sleeping. She provided no school reports, evidence from the children's teacher or any other professional supporting this allegation. The court accepts the father's evidence that he has a responsible schedule for the children.

c) She claimed that the father was improperly exposing D. to gambling because D. has participated in football pools. The father explained that he asks D. what team he thinks will win when he enters these Sunday pools. This is just harmless fun and bonding time between D. and his father and an overreaction by the mother.

[75] The mother made a few other complaints of similarly limited value. It appeared to the court that she was looking for any excuse to prevent the father from obtaining a further increase in access.

[76] These complaints actually informed the court more about the attitude of the mother towards facilitating the children's relationship with the father than the parenting of the father.

[77] The court finds that the father is adequately parenting the children and that he is capable of properly caring for them for extended periods of time.

6.3 Communication

[78] The court makes the following findings of fact about the parties' communication with each other:

a) The communication between the parties is extremely poor. The parties blamed each other for the poor communication. At this point, the parties only communicate by text.

b) The parties do not trust each other. They interpret each other's actions in the worst possible manner.

c) The parties have minimal respect for each other. The father believes that the mother is a chronic liar who wants him out of the children's lives. The mother perceives the father as a bully who acts irresponsibly.

d) Time has only entrenched the parties' negative view of each other. There was no evidence at trial that either party had much insight into how they have been responsible for perpetuating this conflict and how it has the potential to adversely impact the children.

e) The parties share responsibility for their poor communication.

Part Seven – Analysis

7.1 Custody and Incidents of Custody

[79] The communication between the parties is far too dysfunctional to make a joint custody order – on any aspect of parenting. With most parents, communication improves with the passage of time after a separation and the wounds of separation heal. That is not the case here. The parties' anger and distrust has only grown with the passage of time. They remain in heated litigation, continuing to make allegations about each other. Their lack of insight into their own role in the conflict make them poor candidates to change.

[80] This is not the type of case where one parent is primarily to blame for the conflict and a joint custody order is required to maintain a balance of power. Both parents are responsible for the conflict.

[81] The mother has always been the children's primary caregiver and she has made responsible decisions for them. [9] It is in their best interests that she be granted sole custody.

[82] The court finds that it is not in the children's best interests to carve out spheres of joint decision making as proposed by the father. These would only serve as focal points for the power struggle between the parents and the children would be unnecessarily placed in the middle.

[83] The court is also not prepared to micromanage the children's religious issues and dictate the number of Y.'s godparents, who can select them or who can or cannot select the godparent or godparents who will anoint the oil on Y. during his baptism – all terms sought by the father. This is an unrealistic expectation of the court. It will also not dictate to the mother what faith she is to raise the children in. [10] The mother is the custodial parent of the children and will make major religious decisions regarding the children. This will not prevent the father from teaching the children his Greek Orthodox faith. See: Young v. Young, [1993] 4 SCR 3.

[84] The court finds that it is in the children's best interests that the father be permitted to play a more meaningful role in their lives. The court was impressed by the sincerity of his love and commitment to his children. He was able to describe his positive relationship with the children and how he spends his time with them in detail. It is not in the children's best interests to view him as a secondary parent.

[85] The court order will require the mother to consult with the father before making any major decision regarding the children.

[86] The court order will also give the father the opportunity to obtain information about the children directly from the children's service providers, including doctors and teachers.

[87] The mother seeks orders waiving the father's consent to obtain government documentation for the children. Such orders should not be made lightly as they remove parental rights and often send a message that one parent is not valued as much as the other. The evidence did not support making this order. No evidence was produced that the father has ever refused any request for a consent by the mother.

[88] The court will make orders permitting both parents to travel outside of Canada with the children for vacations, to see extended family and for special events. Travel terms will be set out in the order.

7.2 The Parenting Schedule

[89] The mother submitted that her wishes about the parenting schedule should be given deference since she is the children's primary parent and knows what is best for them. The law does not create a presumption in favour of the custodial parent's position when determining an access schedule. The only legal test is what access order is in the children's best interests.

[90] The mother also submitted that since the children are doing well with the current access schedule, the status quo should be maintained. If the court accepted this premise, the children's access to the father would never have been increased as they have always been functioning well, except for the brief period of time when D. attended counseling. Such a premise would be an open invitation for custodial parents of well-functioning children to oppose reasonable increases in access sought by the other parent. How well, or not well, children are functioning is only one of many factors for the court to consider in the best interests analysis.

[91] The court finds that the mother's proposal to essentially maintain the access status quo is not in the children's best interests. The children only spend four overnights each month with their father. The children enjoy their time with him and should be able to spend more time with him. Their father will be more positively integrated into their lives if he can take them to school, meet with their teachers and have more time to spend on their homework and activities. There is also a benefit to the children in spending more time with the father so that he does not have to "cram in his fun time" with them.

[92] The court order will provide that the father can return the children to school/daycare on Monday mornings after his access weekends. Presently, the father spends three school evenings (for 3 hours) with the children every 2 weeks. Instead, the father will now have one overnight visit with the children each week from after school until he returns the children to school/daycare the following morning.

[93] The new schedule will also have the benefit of reducing the interaction between the parents and the risk of exposing the children to parental conflict.

[94] The court finds that it is also in the children's best interests to spend extended time with the father during holidays and a robust holiday schedule will be ordered. The father's weekend will be extended if a statutory holiday or professional development day falls on the Friday or the Monday of the access weekend. Winter school breaks and March school breaks will be equally divided. Transitions during these weeks will be limited to reduce the potential of exposing the children to conflict. The children will spend Father's Day with the father and Mother's Day with the mother.

[95] The court will order that the children can spend two non-consecutive weeks with each parent during the summer. A structure will be put into place for how these weeks are selected.

[96] The court will not make specific orders about the children's birthdays, as requested by the father. The court wants to reduce the transitions and interactions between the parties to minimize conflict.

[97] The father sought a term that the parties have a right of first refusal if the other is unable to care for the children for 8 hours or more during that party's parenting time. The court finds that this order is not in the children's best interests. It is too intrusive and is a potential source for conflict between the parties. Each parent will be trusted to make responsible parenting arrangements for the children when they are in their care.

[98] The father proposed a mobility restriction of 30 minutes driving time during rush hour from the children's daycare/school and from each other. The court agrees with the mother that this is too restrictive and will make the order restricting any move more than 60 minutes driving time away that she proposed in closing submissions.

[99] The father sought an order that either party may seek a review of the children's parenting schedule in one year. This will not be ordered as it is not in the children's best interests. The parents have been involved in lengthy litigation. It needs to end. This will be a final order that can only be changed if there is a material change in circumstances affecting the best interests of the children.

7.3 Name Change

[100] The court considered the following factors in favour of the mother's position that she should not be restricted from changing the children's surnames:

a) She is the custodial parent.

b) She is only seeking to add her last name to the children's surnames. She is not seeking to remove the father's last name.

c) The name change may communicate to the children that both parents have equal importance in their lives.

d) It may make it easier for the mother to deal with any service provider who wonders why the children have a different last name than her. [11]

[101] Notwithstanding these positive factors, the court finds that it is in the children's best interests to prohibit the mother from changing the children's names.

[102] The court notes that the parties had agreed to the children's surnames. This was not imposed on the mother by the father.

[103] The children have always had the father's last name. Particularly for D., there may be some short-term difficulty adjusting to the new name.

[104] However, the main reason for prohibiting the name change is that the court finds that it is more probable than not that the mother has primarily made this claim for improper motives – to hurt the father and to punish him for taking her to trial. The mother's anger at and disdain for the father were apparent to the court.

[105] The timing of the mother's claim is troublesome. She did not plead this relief. She did not raise the issue at the trial management conference. [12] The claim is not contained in her draft order – just in her trial affidavit, where in one line she writes:

19. I am seeking an order to change the children's surname to include both parent's surname.

[106] The mother has been involved in litigation with the father for years without making the name change request. Raising it for the first time on the eve of trial smacks of litigation tactics.

[107] The mother provided absolutely no evidence in support of her claim for a name change in her trial affidavit.

[108] The mother is highly attuned to the fact that it is important to the father for the children to have his last name and that her suggested change would be very hurtful to him.

[109] Name changes should not be permitted when they are primarily sought for an improper purpose and are designed to be inflammatory. They should be strongly discouraged as a tactic in litigation.

Part Eight – Conclusion

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

a) The mother shall have sole custody of the children.

b) The mother shall consult with the father before making any major, non-emergency decision for the children.

c) 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 and doctors, for the children.

d) 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.

e) The father may attend parent-teacher meetings and may attend all special school events.

f) The mother shall provide the father in a timely manner with the schedule for the children's extra-curricular activities. The father, in addition to his access time set out below, may attend at these activities. He is to be respectful to the mother on these occasions.

g) The parties are to notify each other, in a timely and respectful manner, if there is any urgent issue, medical or otherwise, regarding the children.

h) The mother shall hold the children's government documentation and provide copies to the father. The father shall reasonably consent in a timely manner to the mother obtaining or renewing this documentation.

i) The parties are permitted to travel with the children outside of Canada for vacation purposes, contact with extended family or for special events during their parenting time.

j) If either party is traveling with the children in excess of 3 days (whether inside or outside of Canada), the traveling party is to provide the other with a minimum of 30 days written notice, a full itinerary for the proposed trip, addresses where they will be staying and contact numbers where they can be reached.

k) The parties shall execute whatever consents are required for the children to travel with the other in a timely manner. They shall also provide the other with a notarized travel letter authorizing the children to travel outside of Canada with the other party. The traveling party shall pay for the cost of any travel letter.

l) The mother shall apply for a Canadian passport for each child and the father shall sign the passport application and any passport renewal applications in the future in a timely manner. The mother shall hold the passports.

m) The mother shall provide the father with the children's passports if he plans to travel with them outside of Canada. The father shall promptly return the passports to the mother upon his return to Canada.

n) The children's residence shall not be removed to a place more than 60 minutes driving time during rush hour from the children's school/daycare and from the parents' present homes without the father's written consent (such consent not to be unreasonably withheld), or without prior court order.

o) The father shall have regular access to the children as follows:

i) On alternate weekends from Friday at 4 p.m., pick-up at school/daycare, until a Monday morning return to school or daycare.

ii) If there is a professional development day or statutory holiday on the Friday of the father's access weekend, the weekend will begin on Thursday at 4 p.m.

iii) If there is a statutory holiday on the Monday of the father's access weekend, the weekend will end on Tuesday morning, with the return of the children to school.

iv) On the Thursday following the father's access weekend, he will have the children with him from 4 p.m., pick-up after school/daycare until a return to school on Friday morning.

v) On the Tuesday before the father's access weekend, he will have the children with him from 4 p.m., pick-up after school/daycare until a return to school on Wednesday morning.

vi) Such further and other access as the parties may agree to.

p) The children shall reside with the father during the March school break in odd-numbered years, starting in 2019, and with the mother in even-numbered years, starting in 2020.

q) 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 father and the second half with the mother in even-numbered years, starting in 2018. The children shall spend the first half of the winter school break with the mother and the second half with the father during odd-numbered years, starting in 2019.

r) The father shall have the children with him on Greek Easter Sunday from 10 a.m. to 6 p.m. in even-numbered years and on Greek Good Friday from 10 a.m. to 6 p.m. in odd-numbered years. The mother shall have the children in her care on Greek Easter Sunday from 10 a.m. to 6 p.m. in odd-numbered years and on Greek Good Friday from 10 a.m. to 6 p.m. in even-numbered years.

s) The children shall spend Father's Day with the father from 9 a.m. until 6 p.m., if it is otherwise not his day for access.

t) The children shall spend Mother's Day with the mother starting at 9 a.m., if it is otherwise not her day for access. She will take the children to school on Monday morning.

u) The children shall spend two one-week periods, but not consecutive, in the care of each party during the summer. The summer begins on the first Monday following the last day of school. The father shall notify the mother by May 1st in even-numbered years what two weeks he is choosing. He cannot select the week before school begins. The mother then shall let the father know by May 15th in even-numbered years what two weeks she is choosing. In odd-numbered years, the mother will make the summer weeks selection by May 1st and the father by May 15th.

v) The holiday and summer access schedule shall take priority to the regular access schedule.

w) The parties are to permit the other to have reasonable telephone access with the children (a minimum of a call every other day) when the children are in their care.

x) Neither party shall speak in a disparaging or negative manner about the other party or allow or encourage others to do so in the presence of the children.

y) The parties are to promptly notify the other of any change to their addresses or phone numbers.

z) All communications between the parties shall be civil and child-focused.

aa) Neither party may change the names of the children, or bring an application to change the names of the children, without the written consent of the other party.

bb) All other claims made by the parties in their draft orders are dismissed.

If either party seeks their costs, they shall serve and file their written costs submissions by October 30, 2018. The other party will have until November 7, 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.

[111] The trial coordinator shall contact counsel to arrange a settlement conference before the case management judge, Justice Jones, regarding the support issues.

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

Released: October 16, 2018

Justice S.B. Sherr