Court File and Parties

Court File No.: Brampton 1214-16 Date: 2018-10-16 Ontario Court of Justice

Between:

Margaret Oliveira Applicant

— AND —

Oswald Hamilton Blackett Respondent

Before: Justice A.W.J. Sullivan

Heard on: August 20 to 24, 2018

Reasons for Judgment released on: October 16, 2018

Counsel:

• Faryal Rashid, Counsel for the applicant(s)
• D. Ian Kilgour, Counsel for the respondent(s)

SULLIVAN J.:

Introduction

[1] This is the decision from a trial pertaining to the issues of custody, access and child support regarding Eden Jade Oliveira-Blackett born July 6, 2016 (Eden).

[2] Eden's parents are the applicant, Margaret Oliveira (Margaret) and the respondent, Oswald Blackett (Oswald).

[3] The central issue in this trial is what type of custody order would best meet Eden's short and long-term interests.

[4] Margaret is seeking sole custody with a detailed parenting/access schedule to Oswald that sets out many stipulations surrounding his work and volunteer coaching football schedule which is further discussed below.

[5] Oswald believes that a joint custody order would best meet his daughter's interests with her primary residence with Margaret.

A Review Of The Relevant Trial Evidence

[6] In this trial the mother and father both testified and questioned over the course of a day and a half each approximately.

[7] Each provided collateral witnesses.

[8] Margaret called:

• Veronica Flor a personal friend
• Marissa Fernandez, office manager at Eden's doctor's office
• Christina Dobrita, nurse at child's doctor's office
• Priya David, child protection worker Children's Aid Society Region of Peel

[9] Oswald called two of his family members:

• his mother, Joylene Blackett
• his sister, Meika DeSant

[10] I heard that Eden is a well developing two and a half-year-old child who is sensitive to her environment and certain food items and hygiene products that she may be exposed to in soaps and shampoos. I did not receive an allergists report but heard indirectly from the parents that she does require an EpiPen that was prescribed to her by an allergist. The parties are in agreement that the assessment of her allergies is an ongoing work in progress.

[11] Margaret and Oswald testified that they met in 2010 at a local gym where Margaret was attending. Oswald was at the time working at this gym and was assigned to her as a fitness trainer. Their relationship grew and Margaret moved in with Oswald in 2014.

[12] When they moved in together the plan was that they would live in the basement apartment that was renovated at Oswald's mother's home. At the time Oswald was living with his mother in the main upper floor part of the house. Margaret was living on her own in a small apartment.

[13] I heard conflicting evidence from the parties about how their relationship unfolded after they moved in together. Margaret explained that Oswald would frequently not be at home and that he essentially did not move out of his mother's home on the top floor, maintaining his previous room. He would spend time with her in the basement unit but often they would not sleep together. Oswald denies this. He testified that he did maintain his room as mentioned but did so as an office, to assist him with his volunteer football coaching. Here he would watch game film and kept his records and notes.

[14] They both agreed that they spoke about having a child together and that their daughter Eden was a planned child.

[15] Margaret described the relationship as a difficult one in which she often was alone and was not supported by Oswald. She explained that Oswald has been verbally aggressive with her both during the pregnancy and since separation. Oswald deposed that he was supportive of Margaret during her pregnancy and denied being aggressive or angry.

[16] She described the pregnancy as a struggle and one in which she was not supported by Oswald. She would have to care for herself in the apartment and that he did not assist.

[17] I heard different versions of events that occurred on January 30, 2016 when Margaret and Oswald went to the Yorkdale Mall to pick up a crib and other supplies for their expectant child. Margaret remembers being in the second trimester of her pregnancy during this event.

[18] On that date she was driving and Oswald was in the passenger seat as Oswald does not have a valid license. They had some difficulty locating a parking spot in the mall parking area. When one became available they both noticed another car waiting to take the spot. The other car eventually entered the spot before Margaret could react. Just before this she describes how Oswald was yelling at her banging his hands on the dashboard and roof of the car and his feet on the floor and yelled at her to hurry up and take the spot.

[19] Oswald when questioned recalled the date and purpose of the visit to Yorkdale Mall and the difficulty regarding finding the parking spot but denies this behavior described by Margaret. He testified that he recalled the other car grabbing the spot before they could and remembers telling Margaret to move into the spot but did not do so in an in an aggressive manner. He recalls trying to encourage her to take this spot as it was closer to the doors of the mall where they could enter and was concerned for her as she was pregnant and had difficulty walking.

[20] They both explained that after locating a spot they entered the mall. Both in different ways explained the tension between them while walking towards the store in question to buy the items that Margaret had scoped out online. They both explained in some degree or another that Oswald felt that he should leave the mall and abandon the shopping trip rather than continue. He said as much to Margaret. Eventually I heard that they did continue together and the purchase was made.

[21] From Margaret's perspective she felt that this was an example of how she walked on tiptoes throughout her pregnancy and felt at times that she may miscarry because of the tension she had with Oswald.

[22] She explained that often around medical appointments that Oswald would eventually show up but was often late as he preferred to go to the gym first. She remembers that he attended their first ultrasound visits but arrive late.

[23] Margaret felt another example of Oswald's lack of support was around the planned baby shower. Both agreed that he did assist in picking up food. There was, however, from Margaret's perspective an argument when buying other items at Walmart at which time Oswald chastised her for potentially wanting to buy more chips that had been on sale week earlier. Margaret recalled that Oswald grabbed the food cart in which she had placed her purse and he went in one direction in the store quickly, abandoning her in the Walmart store when she could not keep up with him while pregnant and her purse in the basket. Eventually after about 20 minutes they connected once again.

[24] Another issue of irritation between the couple has been Oswald's lack of obtaining his driver's license. I heard evidence that the couple needed to make arrangements for family members to assist them in traveling to the local hospital in Brampton for the birth of their daughter. When Oswald was questioned about why he had not obtained his driver's license by the trial date, although it had been discussed between the couple for the two years while they were living together, his response was that he simply did not find the time to get around to it.

[25] Although on the surface this might appear to be somewhat of a non-issue the court heard evidence throughout this trial of Oswald's indecisiveness to the point that it has affected the ability of the parents to work together on Eden's behalf in making decisions together. Further illustrations of this are explained below.

[26] When Margaret gave birth to Eden, Oswald was present and remained at the Brampton Civic hospital for approximately 3 days.

[27] While at the hospital after the birth Margaret explained an incident where she slipped and fell on the floor when her legs gave out beneath her as she attempted to lift herself out of bed. She recalls Oswald's reaction was to yell at her in a harsh tone. Oswald explained in his testimony that he was caught off guard and surprised at how Margaret's legs gave out from under her and was more startled than angry.

[28] Margaret recalls Oswald on the third day when they were to check out with Eden how he left the hospital to attend to some business that he had in Toronto to do with the University of Toronto Varsity Blues football team. Oswald explained that he is part of the coaching staff at U of T and that he was gone for about three and a half hours as he needed to sign a document in relation to responsibilities as an assistant coach with the team. Both agreed that he arrived back for the discharge and that one of Margaret's brothers had arrived as planned to drive them home.

[29] The subject of Oswald's involvement in football runs through this trial as a theme that consumes Oswald's time and interests on and off the field. When I heard him explain his role with the Varsity Blues football team it appeared more to be as a staff member on the payroll. Eventually evidence was led in cross examination, in particular an agreement letter from the University of Toronto addressed to Oswald for the 2016 season that clearly indicated that he is "a volunteer" to the University and to their football program for which he was to receive an honorarium. I heard that in 2016 this was $3,750. And potentially for 2018 it is to be about $2,500.

[30] When questioned by his counsel about his hopes and desires for his daughter in the future Oswald testified that potentially his daughter might be able to attend the University at a reduced costs, as such a benefit is available to staff members. He modified this slightly by indicating that this was a hope that he would be able to provide this to her but did not clearly state that it was not available to her now and he gave his testimony without this being clarified by him.

[31] When questioned on whether he was coaching football in 2018 Oswald testified that he has not decided, one way or another, to accept or not the volunteer coaching position for the 2018 football season at U of T.

[32] As noted above this whole issue of Oswald's time, either coaching football both at U of T and with a local community effort in Peel, the Hard-Core Football Academy, is an area of concern for Margaret for future planning. The reason for Margaret's concern is that Oswald is not available for certain periods of time during the year either in the evening and/or on weekends to care for his daughter. Oswald testified that the U of T coaching was from August to the end of October. During this time he would rely on his mother and or his sister according to his evidence when he might have an away game to assist him, but for the most part he would be away for about seven hours on a Saturday or Sunday either in Toronto or at other Universities in the Region.

[33] Oswald testified that his coaching of young men in Peel is for about two hours twice a week from January to May and the U of T time is form August to October, with three evening week practices and a eight game season ( four in Toronto and four away games) with two of those requiring most of the day traveling.

[34] Some time was spent at trial reviewing with Oswald the amount of time that it takes him to get to and from Brampton to the U of T campus in downtown Toronto for both practices and games, and the few games that are out of town. At best he suggested that as he takes public transit to and from Varsity Stadium that it usually a 2.5 hour return trip.

[35] Upon discharge from hospital Margaret remembers her return home on the first day with Eden completely different than that of Oswald. She testified that she felt affairs were not in order for receiving Eden at home. In particular the bassinet that was borrowed from Oswald sister was not properly arranged and Eden's bottles were not sterilized and cleaned.

[36] She recalls a struggle over the proper arrangement for the bassinet that required her to place a call to Oswald sister to come over to assist.

[37] Oswald remembers that although it required some assembly it had nothing to do with the bottom of the bassinet as Margaret insisted, but rather the handle and that when asked he sterilized and prepared formula and assisted in feeding Eden.

[38] Margaret recalls Oswald's mom coming down from the upstairs of the home to greet her and the baby. In doing so she mentioned there was food prepared upstairs. Oswald went up and prepared himself some food but did not bring any down for Margaret.

[39] It was Oswald's sister who asked Margaret about whether she had had an opportunity to care for herself since returning home and said that she would look after Eden while Margaret showered and cared for herself.

[40] Margaret recalls that no food had been purchased for their apartment and that she does not recall eating that day.

[41] A theme in this trial was Margaret's concern that Oswald has at times been unable to control his temper towards her in private and in public. Although when Oswald's Mother, Joylene Blackett testified, she recalled preparing food and when she greeted Margaret that night she recalls offering the food made earlier that day.

[42] The parties have been using the lobby a local Peel police station to conduct exchanges. Margaret is requesting that this continue as part of a final order.

[43] Oswald disagrees and would prefer another option such as a public location, library or mall.

[44] Margaret testified that she has ongoing concerns about Oswald's anger that caused her concern when the couple were living together and since separation.

[45] On one occasion Margaret recalls Oswald coming down stairs from his mother's home on the main floor in late October 2016 requesting her rent cheque. She was in the process of trying to feed Eden and needed to go to the washroom. She asked Oswald to hold Eden. She recalls he persisted in asking about the cheque while she was in the washroom. When she came out he was feeding Eden her bottle and when she went to collect Eden he pulled her away abruptly causing Eden's head to snap back. She was so concerned about this that she told Oswald that she was leaving him. She recalls Oswald approaching her within inches of her face in an aggressive fashion.

[46] Margaret also recalled an argument that she had with Oswald at their home about where and how Eden should bathe. Eden at the time had a small portable bathtub to bathe in. Margaret had wanted to place the tub on the counter so as to surround the base of the portable tub for support. She recalls Oswald insisting that the portable bathtub be placed on a bench in the shower that did not provide as much coverage of the base. He according to Margaret used aggressive language in telling her in no uncertain terms that their daughter was to be bathed in the shower. Margaret testified that she was frightened of his level of anger over this issue.

[47] Margaret testified that when the parties attempted to first arrange access shortly the after separation at the Bramalea City Center, Oswald approached her in a very forceful manner and was aggressively took Eden from her on that occasion. She recalls being critical of the stroller that he had brought in which to transport Eden. Margaret noted at the stroller Oswald had brought was for an older child that could sit up and which Eden could not at that time and needed more supports given her age.

[48] Margaret also recalls an argument that she had with Oswald at their home.

[49] The parties agreed that their separation occurred on November 16, 2016, when Margaret moved from the basement apartment of Oswald's mother's home.

[50] The evidence appears to be that the parties had discussed separation some time before it occurred and that Oswald had asked that this be kept from the public and his family for the time being. Before moving they both attended Thanksgiving in 2016 at one of Oswald's aunt's, although the both understood they were going to separate.

[51] After separation Margaret sent texts to Oswald to arrange for visits. She was not comfortable with Eden having visits at Oswald's mother's home where Oswald continued to live. This was principally because of what she felt was the messy state of the upstairs of the home. She accused Oswald and his mother of hoarding and as well felt there was certain safety issues regarding the state of a railing on a stairwell and the angle of the stairs.

[52] This initially caused difficulty between the parents as Oswald was not content with visits starting outside of the home and offered his sister's home which was refused by Margaret.

[53] The court heard from Oswald's sister, Meika Du Sant who agreed when she testified that she had sent text messages to Margaret that confirmed the need to clean up some of the boxes and clutter on the upstairs floor of the home, but she did not agree that her brother or mother were hoarders or that the house was unsafe.

[54] Ms. Priya David, a Peel CAS worker that has been working with the family, also testified about these and other issues in her testimony and indicated that they had been addressed to her agency's satisfaction. Peel CAS became involved about 1.5 years ago with the family because of the potential of escalating conflict in this separation. I heard that today from her Agency's perspective there are no child protection concerns regarding Eden's care with either parent.

[55] It was after the initial difficult access exchange noted above that the parties negotiated via their lawyers to use the lobby of the 21 Division of the Peel police. Here the parties do not necessarily interact with the police but use the lobby as a public location.

[56] Margaret wishes to continue this practice. Oswald argues that this is not appropriate. He indicates this sends a bad message to his daughter.

[57] I heard that since the parties have used this location there has been no conflict during exchanges. I also received no evidence that the Peel police were not content with the public using this division for such a purpose. I was told by Margaret that at times Oswald is late for pick – up and drop off.

[58] Oswald deposed that Margaret's portrayal of him as angry was racist stereotyping of him as a black man. He testified that it is this type of portrayal of him that has been used to keep black men away from their children.

[59] This he testified to when he was questioned as to whether he discussed this issue this Ms. David, the Peel CAS worker who has been working with the parents due to parental differences.

Child's Baptism

[60] The court heard evidence that both parents had agreed that Eden was to be baptized.

[61] Margaret is Catholic and she testified that for her this was a significant issue of faith. She feared that if her daughter was not baptized Eden would not be saved in heaven.

[62] The court was presented with several exhibits specifically letters exchanged between counsel for the mother and the father and pages from their communication book on this issue.

[63] This issue went unresolved between the parents for about one year despite both parents testifying that this was agreed to.

[64] The court has reviewed many pages of communication from the parties Communication book, exhibit "N" and Lawyers letters in which Margaret requested from Oswald a date to be set for the baptism.

[65] Many concessions were made to permit Oswald to pick a date for the baptism to happen in order to accommodate shifting requirements on his part.

[66] He suggested that it was agreed that the baptism should occur in the spring so that the weather would be better. He then also wanted assurances that a date would accommodate travel for some of his extended family members who he wished to be present.

[67] Documentary evidence was presented that the initial baptismal date set was by the church and not by either of the parents. This date was canceled by Oswald who instructing his counsel to do so as he felt he was not involved in the baptismal process.

[68] Evidence was led that indicated when he was given every opportunity to pick the date, in full knowledge of the importance of this to Margaret, this matter went unresolved for months.

[69] Margaret testified that as a Catholic her daughter's baptism was very important to her faith and belief system. It weighed on her that there was an endless delay. She feared that if anything happened to Eden she would not be saved in her faith.

[70] I heard and read correspondence that much energy, time and money was devoted to resolving this impasse between the parents which went unresolved between them until Margaret had the baptism done without Oswald's participation.

[71] Another source of difficulty between the parties that was how Oswald felt that he was not provided with full medical information regarding his daughter's care and/or that he was only provided with doctor appointment dates at the last minute. He testified that he wants to play a meaningful role in his daughter life including her health, but felt after the separation he was being exclude and this lead he being frustrated at times with Margaret.

[72] Margaret called two witnesses, Christina Dobrita and Maria Fernandez from Eden's doctor, Dr. Bennett, to testify about this issue.

[73] They testified about what they had witnessed in terms of interaction between her and Oswald at Dr. Bennett's office that caused the doctor to insist that the parents have separate appointments with staff and her to discuss Eden's health.

[74] Ms. Fernandez, Dr. Bennett's office manager of some 16 years, testified to a commotion at the front desk on January 9, 2017 that she had to attend to. On the date she testified to remembering hearing loud voices from the front desk. At the time she heard the voices speaking over each other loudly as she was working off to the side in another office. She came to the front desk to notice that Mr. Blackett had placed himself between Eden's stroller and Margaret and the front desk and that he was leaning over the front desk being very loud and his body language was aggressive. She recalls Oswald leaning forward and talking loudly over-the-counter with his hands on the counter.

[75] In cross examination she could not recall whether or not Oswald was simply asking for his daughter's medical records. She admitted that he was not physically aggressive towards Margaret or anyone else and she did not observe him interact with his daughter who was present at the time.

[76] When cross-examined Ms. Fernandez was clear and balanced in her testimony and felt that given the loud voices that she overheard and the manner in which Oswald was leaning over the front desk and dealing with the staff, that she was required to intervene.

[77] Christine Dobrita, a staff nurse at Dr. Bennett's office indicated that in 2017 while at in one of the examination rooms she observed Margaret and Oswald arguing in the waiting area.

[78] She was quite clear when cross-examined that she was concerned from what she observed. She indicated she saw Margaret a mother with the child in a stressful situation with Oswald arguing with her in an aggressive manner.

[79] When asked what she meant by this she indicated that she recognized the aggressive body language and felt that Oswald was bullying Margaret to the point where she felt she needed to intervene to have Margaret and the baby removed from that situation in the waiting room.

[80] In order to do this she asked Margaret if the baby needed feeding and offered a room to the side away from the waiting room separate and apart from Oswald in which to do so.

[81] When questioned as to why she did this she indicated this was simply a false pretense to extricate a mother who she felt was under duress from a difficult situation which she indicated she recognized from different circumstances in the past between other people.

[82] When cross-examined she admitted that she did not overhear the conversation but it was loud enough to be noticed. She did not know exactly what was being said but recognize the fact that Oswald was not treating Margaret properly.

[83] She did not waver from this description when asked if indeed this would be normal for parents who might be upset regarding their child's overall health and who might not be given all of the information that one has requested.

[84] These witnesses testimony as noted above was not altered through questioning to the central point of their testimony which was in their dealing with this family they felt that it was necessary because of the words and body language of Oswald to intervene at the doctor's office reception area in one instance, and in another find a pretext in which Margaret and Eden would be separated and placed in an examination room away from Oswald.

[85] Based on these circumstances Doctor Bennett made the decision that the parents could only attend at the office individually, and that they would meet with staff and be provide information both individually and not on the same occasion to avoid the experiences as was testified to. This was the doctor's decision and not either of the parents.

[86] The court heard after this testimony that, Oswald has filed a complaint against the doctor. Oswald also agreed when questioned that although permitted he has not been to the doctor's office since the above incidences nor has he obtained or requested any records regarding Eden's care from the doctor although he was free to do so.

[87] Oswald testified that he has only obtained records from the hospital on a needs be basis. Finally the court heard that Oswald was visited by the police regarding the above noted events. No other evidence from the police directly was presented in this trial.

Communication Difficulties

[88] The parties testified that they had agreed to use a communication book to update each other regarding Eden's welfare between exchanges.

[89] The entire communication book was entered into evidence at trial exhibit "N ". I have reviewed this exhibit.

[90] Areas that the parties had agreed to communicate about in this book were Eden's emotional and physical well-being. In particular if Eden was ill or was receiving medication, what she ate, the introduction of new foods and any hygiene products, such as shampoos or powders, given her sensitivity and the issue of what her allergies may be.

[91] Margaret testified that she was concerned about Oswald's lack of communication, or terse form of communication, in this book and in general about Eden's care when she is with him. She felt that he did not provide adequate detail and information regarding Eden's time with him and in particular regarding health issues.

[92] Her concerns revolved around Oswald's introduction to Eden of either new foods and/or hygiene products with little communication of this to her.

[93] Oswald testified that to avoid conflict he was advised to keep his communication factual on the main areas of care to Eden as agreed to above.

[94] Regarding the issue of new foods, he understood that this was to be done slowly and that both parents had been doing this during their visits and care for Eden.

[95] At trial no medical report was presented that Eden had reacted poorly to either parent presenting new food items.

[96] Margaret did testify that in order to work with Eden's allergist that it was important that each parent keep each updated about what, if any, product and/or new food items was introduced to successfully eliminate and isolate what Eden might be allergic to. This was underlined by Eden's allergist to be of any help to the family.

[97] Both parents agreed that they had met Eden's allergist who insisted and underlined the need for the parents to be transparent in this regard with each other when and if foods and/or hygiene products were introduced to Eden.

[98] I heard evidence from Margaret that on one occasion, upon return to her, that Eden's hair smelled of a coconut scent. She questioned Oswald as to whether or not he and/or his family had used a new cream or hair product but did not receive a clear response.

[99] Oswald testified that had informed Margaret of this when asked and that he was fully aware that his daughter was sensitive to new products and that he used only what Margaret was using with Eden.

[100] Oswald's testimony regarding his level of cooperation with Margaret and understanding on the need to be on the same page and share information regarding Eden's health and care while with each other was sharply contrasted and contradicted to his testimony about the following.

[101] Oswald testified that he brought his daughter to a walk-in clinic on three different occasions. Here she was examined by two different doctors and on one occasion was prescribed antibiotics.

[102] In questioning Oswald indicated that he had been treated by one of the two doctors himself. This seemed to be at odds with his opinion and plan that Eden should have a pediatrician rather than be seen by a family Doctor practicing general medicine.

[103] Oswald testified that on one of these doctors' visits Eden received antibiotics. This happen to be on one of his weekend visits with Eden, Saturday to Monday, return to daycare.

[104] On that weekend he returned Eden to her daycare center at which time he provided to the daycare staff the prescribed antibiotics. He testified that the daycare staff informed him they could not provide Eden with the antibiotics during the day. Oswald when asked if he informed Margaret of this medication and about the doctor's visit testified that he had provided the information in the communication book and that Margaret would have received the information and medication when she picked up Eden after day care on Monday afternoon.

[105] Margaret testified that upon learning of this she brought Eden to her doctor who discontinued the medication, as it was discovered that Eden had a viral infection not treatable with antibiotics.

[106] When questioned Oswald felt that he was properly caring for his daughter as at the time she was not feeling well and he did not see the difficulty with how he handled the communication about the medication and the visits to this doctor who had no communication with Eden's doctor.

[107] In contrast, in an unrelated and later incident, Margaret immediately contacted Oswald about when she feared her daughter ingested a cleaning product that was left by Margaret in her daughter's stroller while she was bringing her daughter with her between the apartment and the washing machines in the building.

[108] On this occasion when Margaret saw her daughter holding the bottle of the tea tree oil she brought her daughter to the local emergency department and contacted Oswald at the same time who joined them. After examination and consultation it was concluded that Eden was not in danger.

[109] I also heard testimony about another example of the lack of communication surrounded an event in the spring of 2018, at which time Eden's leg was injured while being dressed to be returned to her mother.

[110] On this occasion Oswald dropped Eden off at the police station at which time Eden complained about her sore leg to her mother and as well having hurt her head.

[111] Margaret testified that in the communication book Oswald described in general terms that Eden caught her leg in the furniture while be dressed and that he had put some ice on it and suggested that Margaret do the same.

[112] Margaret testified that while parked at 22 Division she read Oswald's brief note of this incident and tried calling his cell which was not answered.

[113] This led Margaret to attend the hospital where the child was x-rayed. Margaret informed Oswald that they were at the hospital and when he arrived he was questioned about what had happened. The doctors at the hospital concluded that on a cautionary note it would be best for Eden's leg to be placed in a full cast.

[114] There ensued a joint investigation by the Peel CAS and the police regarding Eden's injury. Oswald was interviewed and nothing further came of this.

[115] Margaret asks the court to consider this testimony as a further example along with the others noted above of how poor communication between the parents could lead to further difficulties and complications for Eden and as an illustration about how Oswald parenting with her does not support an order of joint custody.

Oswald Blackett's Income

[116] Oswald testified that he is working in the Walmart logistical warehouse in Mississauga earning $23.70 per hour which he later correct to be $23.10 per hour, working a minimum of 24 hours per week.

[117] He testified that Walmart requires him to be available at least 24 hours per week and that depending on the season he could receive additional hours and work of between 30 to 36 hours per week.

[118] He testified that his current work hours is his traditional or normal work pattern that he has been doing for several years and therefore should be accepted by the court as an accurate reflection of his work and income.

[119] When cross-examined he indicated that he had looked for other work recently as a fitness manager with Goodlife Fitness. He did not accept this offer given the commissioned nature of the employment. He also applied for a managerial position with Longos food stores. Here he was given an interview but not offered employment. In the past he was working for about two and a half years part-time as a fitness trainer with Regency Fitness which has subsequently gone out of business.

[120] When questioned about if he could look for other work to bring his hours up to 40 per week, he presented no evidence to suggest that he could not.

[121] He was cross-examined on the amount of time that he spends volunteering with his two football positions that are seasonal and effectively unpaid, although he did receive between $2500. to $ 3500 as an honorarium for his assistant coaching at U of T.

[122] Margaret deposes that Oswald's time consumed with volunteer coaching could otherwise be used for employment and/or direct care of Eden.

[123] In cross examination it was put to Oswald that if he worked 40 hours at his current employment rate of $ 23.10 he could earn about to $46,000. per year to which he did not disagree.

Oswald's Extended Family Support

[124] In support of Oswald's parenting plan and his care of his daughter Oswald's mother, Ms. Joylene Blackett and sister, Meika De Sant testified at this trial.

[125] Joylene Blackett continues to enjoy a healthy life and works full time during the week from 8:30 to 4:30. She testified that when Margaret was living in the basement apartment of her home that she owns, she had a good relationship with her and would interact with Margaret daily and when invited she would assist in caring for Eden. She testified that that the parents lived together when in her home in the basement unit that was renovated for them.

[126] She denied that she would argue regularly with Oswald other than on occasion.

[127] She denied that her home presented any hazards to Eden and explained that the photos presented by Margaret that showed boxes stacked in a few rooms were not accurate in terms of the depiction of her home which she kept clean and proper other than when things were being organized as depicted in the photos. It is these photos that she believes Margaret has presented which do not present a fair representation of her house. She indicated that she can assist Oswald in looking after Eden when she visits.

[128] Meika Du Sant, Oswald's sister, testified that she lives 10 minutes from her mother's house. She has two children of her own and lives with her husband. She is employed and works daily between 7:00 to 3:30.

[129] She testified that she believes she had a good relationship with Margaret.

[130] When questioned about Margaret's concerns about the state of her mother's home she did concede that at times it was a bit cluttered but not as Margaret suggests to the extent that both her mother and Oswald were hoarders.

[131] She agreed that at one occasion it was necessary to tidy up the upstairs but mainly some clutter was in Oswald's room where he maintained his computer and organized his football activities. This did not apply to the main living area where Eden spends time with her grandmother and Oswald.

[132] It is agreed that she did assist them both in tidying up the house in order to address concerns that Margaret had raised.

[133] When asked about Oswald's anger surrounding the setting up of the bassinet for Eden upon her return home, Ms. De Sant did confirm that she assisted when called to do so but does not recall any serious differences or anger between Oswald and Margaret in this regard when she was present.

[134] She testified that she was available, as is her mother, to assist Oswald in caring for Eden and that she has done so on a few occasions.

[135] At trial the following terms to a final order were proposed by Margaret and consented to by Oswald. As such these will be incorporated into my final order.

1. Primary residence of Eden shall be with the Applicant.

2. The Respondent will notify the Applicant of any changes in Eden's mood or general health.

3. The parties shall complete the communication book in full detail for each visit including the Saturday visit so that each party is aware of any changes in Eden's mood, diet or general health.

4. If Eden needs emergency medical care while with one parent, that parent will promptly notify the other of the emergency immediately by telephone.

5. The Applicant will apply for a Canadian passport for Eden. The Respondent will sign the passport application. The Applicant will hold the passport.

6. The Applicant may travel with Eden outside of the province of Ontario for vacation purposes. If she travels with Eden on vacation she shall give the Respondent 30 days' notice of the travel and a detailed itinerary, including the name of any flight carrier and flight times, accommodation, including address and telephone numbers, and details as to how to contact Eden during the trip. If the Applicant needs to travel for an emergency situation (i.e. death of a family member) or travel for a day-trip to Buffalo she will provide as much notice as possible.

7. The Respondent shall not be late for pick up and drop off.

8. The Respondent shall have Eden on Father's Day from 9:30 a.m. to 6:30 p.m. and the Applicant has Eden on Mother's Day. This shall override the regular schedule.

9. If there is a long weekend, then the party that does not have Eden for the weekend shall have the holiday from 9:30 a.m. to 6:30 p.m. For example, if it is the Applicant's weekend on Family Day weekend, the Respondent shall have Eden on the Family Day Monday from 9:30 a.m. to 6:30 p.m., if it is the Respondent's weekend on the Family Day weekend, Eden shall be returned at 9:30 a.m. on the Family Day Monday.

10. Either parent may telephone Eden while she is in the care of the other parent, limited to one call a day.

11. Commencing September 1, 2018 the Respondent shall pay the Applicant $47. For Eden's daycare expenses, which is the after-tax amount.

12. There is a $553.12 credit to the Respondent for overpayment in daycare for the period July 2017 to August 2018.

13. The Respondent shall pay the Applicant his 55.3% proportionate share of Eden Jade Oliveira-Blackett' s, born July 6, 2016, daycare, activities, school programs, camps and medical/dental not covered by the benefit plan.

14. The parties shall exchange notices of assessment and any other such disclosure as set out at section 21(c) of the Federal Child Support Guidelines, by June 1 st of each year.

Applicable Legal Principles

[136] The central issue for this court in this trial in relation to custody and access is that of Eden's best interests. Section 24 (2) of the Children's Law Reform Act provides direction to this court in making determinations with regards to where Eden will primarily reside and which of the parents should make decisions regarding her welfare both now and in the future.

Key Legal Principles:

1. The court must ascertain a child's best interests from the perspective of the child rather than that of the parents. Gordon v. Goertz, [1996] 2 S.C.R. 27.

2. No one factor in the statutory definition of a child's best interests is given statutory preeminence. Wilson v. Wilson, 2015 ONSC 479.

3. A young child with attachments to both parents needs sufficient contact with both, without prolonged separations to maintain a meaningful and close relationship with them. Van Den Driessche v. Van Den Driessche, 2011 CarswellMan 255 (Q.B. Family); Wilson v. Wilson, 2015 ONSC 479.

4. In resolving custody disputes, emphasis must be placed on the critical importance of bonding, attachment and stability in the lives of young children. Barnes v. Parks.

5. The court should consider the level of hostility and the extent to which that stability may undermine the child's stability. Wilson v. Wilson, 2015 ONSC 479.

6. Financially supporting one's children in a responsible manner is an important part of being a parent. The failure to do so is a factor militating against a joint custody order as it demonstrates poor judgment and an inability to prioritize the child's interests. See Jama v. Mohamed, [2015] ONCJ 619; P.H. v. T.J., 2017 ONCJ 166.

[137] The Children's Law Reform Act ("Act") sets out the statutory provisions to be considered by a court in making decisions pertaining to custody and access. The relevant provisions follow:

The merits of application for custody or access

Section 24. (1) The merits of an application under this Part in respect of custody of or access to a child shall be determined on the basis of the best interests of the child, in accordance with subsections (2), (3) and (4).

Best interests of child

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

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

• (i) Each person entitled to or claiming custody of or access to the child,
• (ii) Other members of the child's family who reside with the child, and
• (iii) Persons involved in the child's care and upbringing;

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

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

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

(e) The plan proposed by each person applying for custody of or access to the child for the child's care and upbringing;

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

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

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

Past conduct

(3) A person's past conduct shall be considered only,

(a) In accordance with subsection (4); or

(b) If the court is satisfied that the conduct is otherwise relevant to the person's ability to act as a parent.

Violence and abuse

(4) 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,

(a) His or her spouse;

(b) A parent of the child to whom the application relates;

(c) A member of the person's household; or

(d) Any child.

Best Interests – Useful Questions to Ask

[138] Some useful questions to ask are:

• What does the parent know about child development and is there evidence indicating what is suggested to be known has been or will be put into practice?

• Is there a good temperamental match between the child and the parent?

• Can the parent set boundaries for the child and does the child accept those restrictions without the need for the parent to resort to harsh discipline?

• Does the child respond to the parent's attempt to comfort or guide the child when the child is unhappy, hurt, lonely, anxious, or afraid?

• Is the parent empathetic toward the child? Does the parent enjoy and understand the child as an individual or is the parent primarily seeking gratification for his or her own personal needs?

• Can the parent examine the proposed parenting plan through the child's eyes and reflect what aspects of that plan may cause problems for, or be resisted by, the child?

• Has the parent made changes in his or her life or behavior to meet the child's needs, or is he or she prepared to do so for the welfare of the child?

[C. (J.R.) v. C. (S.J.), 2010 CarswellNS 126 (N.S. S.C.); P.H. v. T.J., 2017 ONCJ 166]

Joint Custody

[139] 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.

[140] In Giri v. Wentges, 2009 ONCA 606, which states:

"[10] Second, as this court has repeatedly held, joint custody requires a mutual commitment between parents to cooperate on matters pertaining to the raising of their child, and an ability for the parents to put their own interests behind those of the child. The Ontario Court of Appeal in Kaplanis v. Kaplanis, [2005] O.J. No. 275 has made it clear that an interim custody order and how it has worked is a relevant consideration for the trial judge."

Graham v. Bruto, 2008 ONCA 260, the court of appeal stated clearly that the joint custody and parallel parenting option was not in the best interests of the child of that family because the parents disagreed on too many important issues that affected the child's best interests. Also in Roy v. Roy, [2006] O.J. No. 1872.

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

[142] 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. Bruto, 2008 ONCA 260; Roy v. Roy, [2006] O.J. No. 1872.

[143] In Ciutcu v. Dragan, 2014 ONCJ 602, Justice Sherr at paragraph 33 wrote the following about joint custody orders and special needs children:

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

[144] 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.

[145] 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.

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

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

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

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

[147] 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."

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

Analysis / Discussion And Order

[149] Having regard to the foregoing, and for reasons which follow, I have concluded that it is in Eden's best interests that final sole custody be granted to Margaret.

[150] Eden has been in Margaret's daily care since separation in 2016. Her daily physical and emotional needs have been provided by Margaret. She is thriving in Margaret's care and Margaret has encouraged and promoted her Eden's relationship with her father Oswald. When Margaret moved with Eden there was no objection from Oswald and the evidence was they had talked about the separation but waited before making this known to extended family. This evidence fulfills the criteria as set out in Section 24 (2) c, d, f, g of the Children's Law Reform Act (CLRA).

[151] Oswald argues that he is available and a loving father and that he is able to jointly parent with Margaret in Eden's best interest. He has shown a consistent interest in his daughter's development and has regularly exercised assess and has maintained Eden's contact with extended family. This evidence fulfils the criteria as set out in Section 24(2) c,d,f,g (CLRA).

[152] In relation to the issue of joint custody I heard much evidence about the strained communication between the parties both during their relationship and the brief period of time that they cared for Eden together and after the separation.

[153] Margaret asked the court to focus on evidence that suggests Oswald was and can be aggressive when he does not get his way. Further Margaret argues that he has not shown the ability to communicate with her routinely in their communication book and otherwise which does not support a joint custody order.

[154] I did hear evidence from staff at Eden's doctor's office which I find credible in relation to the incidents that were testified to. I find both Ms. Fernandez and Ms. Dobrita to be independent of either of the parties and were fair and balanced in their evidence and the demeanor in which they gave their evidence.

[155] They were clear that Oswald was not physically aggressive on the occasions that they were required to intervene. Their testimony was that Oswald was loud and through his voice and gestures was intimidating to reception staff on one occasion and as well to Margaret.

[156] I find these witnesses credible as they explained what they had observed. They were balanced and admitted that Oswald was not physical with Margaret, Eden or staff and the police did not need to be called. It was Oswald's tone and body language that concerned them and was considered unsettling.

[157] Margaret explained other incidences of Oswald's behavior in this regard during their relationship and just after separation in public during the first exchange of their daughter for access.

[158] On the balance of probabilities I find that this evidence points to how Oswald's was exhibiting anger at the time in question early on in the separation. This appears to be how he conducted himself with Margaret in private as well.

[159] There is however no evidence that he has been physically assaultive to Margaret or for that matter any member of the family.

[160] Pursuant to section 24(4) a of the Children's Law Reform Act I must consider this evidence of Oswald's behavior as part of the best interest analysis. I find his anger with Margaret did cloud his judgement at times in private and in public. He must reflect on this and admit to this as a feature of who he was and guard against this behavior in the future. In doing so this will make him a better parent and a good example of a father and a man that his daughter can look up to. This evidence does not support a joint custody order.

[161] In terms of the parent's communications through the communication book and other means I find that Margaret has been able to provide greater description and details to that of Oswald about Eden's care. She is open to share information, an example of this was when she feared that Eden had ingested a cleaning product. Oswald 's updates to Margaret are factual and terse. I don't accept his explanation that he believes this is more a constructive means of communication that avoids conflict. Indeed it leads to misunderstanding.

[162] When it comes to the issue of joint custody I find that Oswald has had an opportunity to show he was able to cooperate with Margaret in their daughters best interest, but that he has not been successful in this regard, examples of this are as follows:

Eden's Baptism

[163] The issue of Eden's baptism was fundamental in Margaret's faith as a Catholic. This issue consumed months of time with strained negotiations back and forth through lawyers, the church and the parents themselves. Margaret was pleading with Oswald at one point to please just pick a date that worked for him. This was met with inaction or a vague reply that lead nowhere.

[164] I received into evidence and read the parent's communication book that traveled between visits. It contains about 93 pages of communication between Margaret and Oswald. Eventually through the course of the communication all that Margaret asks for from Oswald is for the date to be chosen by Oswald for the baptism to happen. Oswald never gets around to doing so.

[165] It should be remembered that Oswald testified and evidence was led that clearly indicated he agreed to Eden being baptized, but when it came to the follow through it was his concerns or issues that seem to dictate the timelines as to when it was to be done and who was to be present.

[166] In the end Eden was baptized. This was done unilaterally by Margaret because of the lack of progress and the importance of this issue in her faith, as it is her belief that her daughter might not have been saved in her faith if something were to happen to Eden. This evidence does not support a Joint Custody order. Here was an area cooperation in Eden's spiritual best interest that was overcome by Oswald's needs first and not that of his daughter's.

Eden's Medical Needs

[167] When it comes to Eden's medical needs there was evidence again that showed the inability of Oswald to place his daughter's best interest first.

[168] The evidence that I find most telling in this regard is that of Oswald bringing his daughter on three occasions to a walk-in clinic. His evidence was that his daughter was seen by two different doctors over three visits. One of these doctors had treated him in the past and neither doctor was a pediatrician, although he felt that his child needed to have a pediatrician as part of her medical treatment and this is what he wished as part of his plan to the court.

[169] I find as relevant evidence that does not support joint custody is when one of the above noted doctors prescribed antibiotics to Eden surrounding a cough or cold that she had while in her father's care.

[170] This in itself might not be surprising, however, what is telling is that Oswald did not communicate directly with Margaret on this issue. Oswald testified that he dropped his daughter off at daycare after his weekend visit on Monday, providing to the daycare the medicine which they indicated they would not provide to Eden. This of course is not how antibiotics should be administered which goes to the issue of care. More concerning to this court is that when Oswald was asked how Margaret was to know about this medication he answered that it was in the communication book and that she would learn about this when she picked up Eden that evening from her daycare.

[171] Through his testimony it was clear to me that Oswald did not see the difficulty in his bringing his daughter to another set of doctors without their having the full knowledge of Eden's medical chart so they would have a comprehensive understanding of her medical needs. The court heard that when Eden was brought to her Doctor the treatment of antibiotics was immediately discontinued, as a proper swab test was done that indicated the infection was not one that was treatable through antibiotics.

[172] Another example of poor communication that does not support joint custody is when Oswald did not fully explain to Margaret in the communication book Eden's injury to her leg while dressing her to prepare for an exchange. The evidence was that somehow Eden's leg was caught in a piece of furniture. He placed ice on her leg and made a brief note to this effect suggesting that Margaret do the same.

[173] Margaret noticed that Eden was limping slightly during the exchange at the police station and went to the communication book for further information which was not available other than the suggestion to place ice on the child's leg. When Margaret could not reach Oswald to obtain further and better information as her daughter was unable to explain the limp, Margaret brought Eden to a local hospital. Here, out of abundance of caution, the doctors placed a full leg cast on Eden's leg. Eventually after a combination of medical, CAS and police investigation nothing untoward was discovered in terms of Oswald's care for Eden.

[174] I find that on this occasion possibly Margaret overreacted in bringing Eden to the hospital, however this is an example of how poor communication does not support a joint custody order and that how overall Oswald does not see his responsibility to his daughter's welfare by his actions.

[175] I find that he is more willing to be circumspect or provide passive information about medical care or events that require medical care for Eden when she is with him. This is a concern to the court and does not support a joint custody order.

[176] In comparison Margaret provided contemporaneous information to Oswald when she noticed that Eden had possibly ingested some cleaning liquid, concentrated tea tree oil.

[177] On her way to the hospital she notified Oswald who joined them at the hospital. Upon examination by the specialized medical team dealing with poisons Eden was released without a problem. This is an example of Margaret's willingness to notify Oswald of a potential difficulty, despite the fact that this happened during her care of her daughter. Margaret did not attempt to hide this information from Oswald.

[178] The above evidence surrounding the inability of Oswald to make a decision in a timely fashion regarding Eden's baptism, Oswald's non-communication surrounding medication and bringing Eden to another set of doctors without communicating the same to Margaret, is evidence that I find that does not support a request for joint custody as a plan to meet Eden's best interests. I find that Margaret overall better fulfills the criteria in section 24(2) g of the CLRA to "act as a parent".

[179] I have no doubt that Oswald loves his daughter and wishes the best for her. However the evidence at trial suggests and provides me with the impression that he is a father without a clear plan for Eden and who is more focused on his interests and current lifestyle. 24 (2) e of the CLRA.

[180] Examples of this from the evidence presented are the following:

a- Oswald's lack of motivation and planning to obtain his driver's license when with Margaret and since separation. To have this would assist in his care for Eden given the distances between venues in Peel and his travels to and from Toronto and beyond for his football interests.

b- Oswald's inability to decide as to whether or not to accept a volunteer coaching position with the Varsity Blues for the 2018 football season, preferring to wait for the outcome of this trial.

c- Oswald's contentment with his current employment at Walmart logistics department which is less than a 40 hour per week when the he has the ability and skill set to do more.

[181] When considered individually these might not necessarily seem significant in evaluating Oswald's parenting plan, 24 (2) e of the CLRA, however, considered as a whole I find this evidence sheds light on his lack of planning.

[182] Oswald does not do the heavy lifting around issues that require effort and sacrifice on his part when it comes to being the principal parent or an equal co-parent with Margaret for Eden.

[183] Oswald had the ability to clearly make a decision, well before this trial, and say no to the voluntary coaching position at U of T.

[184] This would have shown to Margaret and to this court his priority which should have been to maximize his available time to be in Eden's young life and to clear his time schedule and keep things simple when planning for Eden. In addition, every moment in these formative years of a child of Eden age are most significant.

[185] Oswald in his testimony stated that he was waiting for the outcome of this trial before deciding what to do with U of T's offer to him for this year's 2018 football season.

[186] I find that Oswald probably knows the answer to this issue. The reason I say this is that when he testified about his coaching role in this program at U of T, he did not recognize that he is not a staff member at U of T or a fully paid coach. This might actually be his goal and this is why he spoke about being able to offer to his daughter free tuition or subsidized tuition at U of T in the future.

[187] This may explain also his being content with his 23 to 30 hours of work in the logistics department at Walmart. Such a position and hours meets his needs and provides flexibility for his pursuit of his football programs both at U of T and in Peel.

[188] The subject of Oswald's time during the week and on weekends for the months of August through early November, the football season, would have resolved Margaret's concern that Oswald should be present at all times during Eden's access with her father.

[189] This led Margaret to propose a schedule of access that would be adjusted according to Oswald football schedule. The proposal was that when there were out-of-town games or longer times coaching games around the GTA that access visits would be rescheduled and therefore there was a requirement to have this schedule disclosed ahead of time and planning to occur.

[190] Surprisingly Oswald felt that he needn't be bothered with providing the schedule as it is public information.

[191] After considering the schedule that was filed in this trial and the amount of time that Oswald might not be available over a course of two or four weekends I find that it would be better and in Eden's best interests for a seamless rotating weekend schedule during which if Oswald is unable to be present for part of the day or one day that Eden can spend that time with her aunt, or her grandmother. In the alternative he and Margaret should communicate and rejig the scheduled weekend access for a shorter visit or on another date.

[192] Both of Oswald's family members play a role in supporting Oswald. They testified to that effect and overall the evidence was that they have a good working relationship with Margaret. Oswald's overnight visits with Eden have progressed with few difficulties, other than what I have reviewed above. Oswald lives with his mother who is present during visits and Eden knows Oswald immediate family.

[193] I find that possibly the maternal grandmother and Margaret might have a bit of resentment between each other presently but nothing that cannot be overcome for the brief period of time that Eden might be in her care.

[194] I find that Eden's welfare would be addressed if Oswald was not available during one or two road trips or part of a Saturday or Sunday during the Varsity Blues yearly schedule, and Oswald's family members could assist in caring for Eden as he proposed. They could also assist in picking up and/or returning Eden as they have done in the past without much if any difficulty.

[195] As such, I find that the every other weekend access should be as seamless as possible for Eden. This should be the case even though Oswald might continue with his football coaching. As such, instead of Margaret's proposed schedule regarding weekly access and the possible contingencies as to what might happen when and if Oswald might not be available for part of a weekend, I find that it would be in Eden's best interest to simply plan every other weekend and that Oswald will make the proper arrangements for the three or four hours or the day that he might not be available on the four weekends per year as per the filed schedule.

[196] I also find that the continued use of the police station past one year from this order should not be necessary. I agree that up until this point things have been uneventful with the use of the police station. Police and the police station should not be the general rule for families that are working civilly with each other. I will in this order allow the use of the police station for the next year. I believe by then the parties will have settled in and should be able to communicate and arrange a mutually agreeable public location. This I find is a proper balancing of interest in the context of the evidence regarding Oswald's ager at times and the degree and extent of this behavior which I have reviewed above.

Oswald's Income

[197] There is no evidence to suggest that Oswald cannot earn the suggested income of $46,000 per year working full time in a combination of his current employment through Walmart and other employment that he has skills for. Indeed when questioned he recognized that although Walmart asks him to work a minimum shift overall on a yearly basis, he could get close to on average 32 if not more hours per week if he asked and took advantage of more time offered during the busy times of the year.

[198] The time that he has invested in coaching is of benefit to young men in our community, however his first responsibility is to his child. He does have other skills that he has put to use in the past for employment in particular as a physical trainer. This part-time work along his Walmart work would easily amount to an annual salary of $46,000. He has no disability and a good work record that would support his full-time employment. I therefore impute to Oswald Blackett an annual salary of $46,000.

FINAL ORDER

A. Custody and Incidents of Custody

[1] The Applicant mother Margaret Oliveira (the "Applicant") shall have sole custody of the child Eden Jade Oliveira-Blackett, born July 6, 2016 ("Eden").

[2] Primary residence of Eden shall be with the Applicant.

[3] The Applicant shall make all final decisions for the Eden. She will notify the Respondent 10 days, if possible, prior to making the decision.

[4] The Respondent will notify the Applicant of any changes in Eden's mood or general health.

[5] The parties shall complete the communication book in full detail for each visit including the Saturday visit so that each party is aware of any changes in Eden's mood, diet or general health.

[6] Both parties are to follow this communication and behaviour protocols as they form part of the terms of this order.

[7] The parties shall abide by these principles in their relationship with each other and their contact with the child:

a. They shall refrain absolutely from denigrating each other or members of each other's household or families in the presence or within earshot, of the child.

b. They shall not question the child about the other party's personal life and activities.

c. They shall refrain absolutely from engaging in any disputes with each other in the presence or within earshot of the child and from involving the child in any manner in conflicts which may arise between the parties.

d. They shall not use the child to pass messages or documentation on to each other.

e. They shall encourage the child to have a strong and positive relationship with both parents and shall use all reasonable efforts to foster a meaningful relationship between the child and the other parent.

f. Neither party shall discuss with the child, or with another party in the presence of the child, present or past legal proceedings or issues between the parties related to the present or past legal proceedings, including any financial issues relating to the parties or the child, or regarding conflict between the parties relating to parenting issues.

g. Emails/texts shall be brief, respectful, related solely to the child, with no reference to either of the parties or their activities. The party shall not email/text each other excessively.

h. The parties shall share all documents pertaining to the child by scanning or photographing the document and then sending it to the other parent by email. The parties shall not rely on the child to transport documents between them.

i. If one party requests information or a temporary change by email/text, the other party shall respond within 48 hours. Requests made giving less than 48 hours' notice shall be responded to as soon as possible. In the event of an emergency or truly time sensitive matter, the parties shall call each other. If a reply requires more time than 48 hours, and email/text shall be sent advising that the reply cannot be reasonably given within this time period and advising when the response can be expected.

j. Any discussions between the parties at transition times, activities or other special events where the child is present or nearby shall be limited to brief and cordial interchanges. If one party considers that the discussion is not courteous, he or she shall simply say "I no longer wish to discuss this", and upon one party saying so, both shall immediately discontinue the conversation and shall take up the issue later by email/text.

k. If one party finds what the child has said about the other party to be of a significant concern, that party shall first ask the other party, by email/text, what actually happened. If a complaint is made by the child to one party about the other, the child shall be encouraged to talk directly to the party he or she is complaining about.

[8] If he is unable due to work or his coaching schedule he must either reschedule access with the Applicant Margaret Oliveira or at least 7 days in advance provide to the applicant details of who will care for Eden, where and for what period of time.

[9] If Eden needs emergency medical care while with one parent, that parent will promptly notify the other of the emergency immediately by telephone.

[10] The Applicant will apply for a Canadian passport for Eden. The Respondent will sign the passport application. The Applicant will hold the passport.

[11] The Applicant and the Respondent may travel with Eden outside of the province of Ontario for vacation purposes. When each travels with Eden on vacation she/he shall give the other 45 days' notice of the travel and a detailed itinerary, including the name of any flight carrier and flight times, accommodation, including address and telephone numbers, and details as to how to contact Eden during the trip. If the Applicant/Respondent needs to travel for an emergency situation (i.e. death of a family member) or travel for a day-trip to Buffalo she/he will provide as much notice as possible.

[12] The Applicant/Respondent shall sign a travel consent letter to travel permitting the other to travel out of Canada with Eden and such consent shall not be unreasonably withheld.

Access

[13] The Respondent shall have access to Eden as follows:

(a) Alternate weekends from Friday at 4:30 p.m. pick up at daycare until Sunday at 6:30 p.m.

(b) Each Wednesday at 4:15 p.m., pick up from daycare to 6:30 p.m.

[14] The Respondent shall not be late for pick up and drop off.

[15] If the Respondent is unable to exercise his access due to work or his coaching schedule he must either reschedule access with the Applicant, Margaret Oliveira at least seven days in advance or provide to the Applicant details of who will care for Eden, where and for what period of time.

[16] The Respondent shall have Eden on Father's Day from 9:30 a.m. to 6:30 p.m. and the Applicant has Eden on Mother's Day. This shall override the regular schedule.

[17] The parties shall alternate Christmas day and Christmas Eve. In odd years the Respondent shall have Eden Christmas Eve from noon to 8:00 p.m. and the Applicant Christmas Day, this reverses in even years such the Respondent has Eden from noon to 8:00 p.m. on Christmas Day. The Respondent shall have an additional three overnights during the winter break, once Eden commences school. The Respondent shall notify the Applicant of the three nights he chooses by November 15 th of each year.

[18] If there is a long weekend, then the party that does not have Eden for the weekend shall have the holiday from 9:30 a.m. to 6:30 p.m. For example, if it is the Applicant's weekend on Family Day weekend, the Respondent shall have Eden on the Family Day Monday from 9:30 a.m. to 6:30 p.m., if it is the Respondent's weekend on the Family Day weekend, Eden shall be returned at 9:30 a.m. on the Family Day Monday.

[19] March Break – The parties may split March break. March break commences the Friday evening when school is out to Monday a.m. return to school. By February 1 st of each year the parties will advise each other whether they intend to take time off with Eden for March break. They shall rotate annually the start or end with Wednesday at 12 noon being the mid-point. The Applicant in 2019 shall have first choice to advise the Respondent whether she may take the start or end of this holiday after which the respondent may choose.

[20] Commencing the summer of 2019, each party shall have Eden for one uninterrupted week in July and one uninterrupted week in August, not consecutive. The parties shall notify each other of the weeks by March 1 st of each year. The Respondent shall have first choice of weeks in odd years and the Applicant shall have first choice in even years. The balance of the weeks shall follow the regular schedule. However, for the year 2019 and 2020 the Respondent shall ensure to keep Eden in her PLASP Daycare for the weeks he has her to ensure she does not lose her spot and subsidy. In 2021 and for the summer holiday thereafter (July/August) the Applicant and Respondent may choose to have 2 consecutive weeks summer vacation with Eden. The Parent that chooses to have two consecutive weeks may need to pay the non-subsidized (full) daycare fee for Eden for those two weeks to ensure she does not lose her daycare spot or any subsidy.

[21] Either parent may telephone Eden while she is in the care of the other parent, limited to one call a day.

[22] All exchanges shall be at the police station at 21 Division Peel Police for the next 12 months from the date of this order, unless at daycare. After 12 months from the date of this order the parents shall either directly or through a representative negotiate a new public drop-off/pick up location.

[23] Access to be exercised by the Respondent father, except for the infrequent times he may not be available due to work or coaching during which he must notify the Applicant as set out in paragraph 14 above in this order.

Child Support and Section 7 Expenses

[24] Commencing November 1, 2018 the Respondent, Oswald Hamilton Blackett, will pay the Applicant, Margaret Oliveira, table child support for one child, Eden Jade Oliveira Blackett born July 6, 2016 in the amount of $417 per month, based on an imputed income of $46,000.

[25] Commencing November 1, 2019 the Respondent shall pay the Applicant $47 for Eden's daycare expenses, which is the after-tax amount. This 12 month delay in the Respondent commencing payment of this section 7 expense is to account for the 11.76 months credit of $553.12 to the Respondent for overpayment in daycare costs paid for the period of July 2017 to August 2018.

[26] The Respondent shall pay the Applicant his 55.3% proportionate share of Eden Jade Oliveira-Blackett's, born July 6, 2016, daycare activities, school programs, camps and medical/dental not covered by the benefit plan. At the date of this order Eden's section 7 costs are daycare and medical costs not covered via the parties benefit plans. Before other section 7 costs such as activities, camps or school programs are incurred as a section 7 cost to be shared proportionately, the Applicant and Respondent must first exchange information on these proposed section 7 costs and agree on the same in writing.

[27] The parties shall exchange notices of assessment and any other such disclosure as set out at section 21(c) of the Federal Child Support Guidelines, by June 1 st of each year.

[28] The Respondent shall have Eden on his medical/benefit plan and shall authorize that the Applicant may make inquiries with the benefit provider as to coverage and submit receipts on behalf of Eden. He shall also provide the Applicant with the benefit plan booklet.

[29] A Support Deduction Order shall issue.

Released: October 16, 2018

Signed: Justice A.W.J. Sullivan