Court Information

Court: Ontario Court of Justice

Date: April 12, 2019

File Number: Brampton 144/18

Before: Justice Philip J. Clay

Heard: February 25, 26, 27, 28, March 1, 4, 5, 6, 2019

Reasons for Decision Released: April 12, 2019

Parties and Counsel

Between:

ALLAN GANIESH SINGH Applicant

— AND —

LIANDA SINGH Respondent

Counsel:

Ms. J. Freedman for the Applicant

Ms. G. Deokaran for the Respondent

CLAY J.:

PROCEDURAL BACKGROUND

[1] This Application concerned the custody of and access to the child Athan Aakesh Singh born […], 2016. It is also concerned the financial responsibilities that the parties have to their son and to each other. For ease of reference I will refer to the parties as the mother and the father even though they did not become parents until […], 2016.

[2] The Applicant father ("father") brought an Application in the Ontario Court of Justice ('OCJ') at 47 Sheppard Avenue, Toronto and obtained two court orders. The Application was then transferred to Brampton. The Respondent mother ("mother") filed her Answer, in which she sought custody of the child. The Office of the Children's Lawyer ("OCL") accepted a referral and their final report was released on May 30, 2018. This matter was scheduled for trial during the fall sittings of this court but it could not be reached.

[3] Between that sitting and this trial sitting a report was made to the Peel Children's Aid Society ("PCAS") regarding this high conflict case. That investigation was concluded with verification of risk of emotional harm due to parental conflict.

[4] The matter was then scheduled for this winter sitting of the court.

[5] At the Trial Management Conference ("TMC") it was ordered that the direct evidence of everyone but the parties and the OCL would be given by way of affidavit and each witness would be cross-examined at the trial. Some witnesses were given permission to give evidence by Skype or other electronic means.

THE LAW

[6] The statute that governs the custody and access issues in this matter is the Children's Law Reform Act ("CLRA") and the applicable section is s. 24 which reads in part as follows:

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). 2006, c. 1, s. 3 (1).

(2) The court shall consider all the child's needs and circumstances, including, (the relevant factors are discussed below)

(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. 2006, c. 1, s. 3 (1); 2016, c. 23, s. 7 (2).

(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.

EVIDENCE

CUSTODY ISSUE

Prior to the birth of the child

[7] The parties were both born in Trinidad. The father immigrated to Canada when he was 11 years old, lived in Brampton and ultimately obtained a mechanical engineering degree from Lakehead University. After graduation the father moved back to Trinidad.

[8] The mother grew up with her family in Trinidad and was still living with them when she met the father at their mutual place of employment. The father asked the mother out. She said she was initially reluctant to date the father but that she "eventually gave him the chance to be in a relationship with me". Throughout the mother's evidence she stated that while she was in love with the father she always had significant concerns regarding their relationship. It appeared from the mother's evidence that she was convinced by her family and friends that she should marry the father but she always had some uncertainty in her mind about making a life with him.

[9] The father moved back to Canada in 2011. The parties had a long distance relationship throughout 2011 and talked of marriage. The father visited Trinidad in 2011 and the parties were engaged. They were married in Trinidad on March 3, 2012 and the father sponsored the mother to immigrate to Canada. The mother stated that she was scared about the prospect of moving away from the only home she had known but said that she would give it a try. She said the father told her that if she didn't like it she could move back.

[10] In December 2012 the father accepted an engineering position with Saskarc and moved to Oxbow, Saskatchewan ("SK"). The mother was finally able to come to Canada in October 2013. She stayed with the father's mother Jean Singh, for a few days until she could make the trip to Oxbow. The mother gave evidence that she was treated very poorly by the father's mother who would become the paternal grandmother ("the PGM").

[11] When the mother arrived in Oxbow, she moved into the house that the father had purchased there. She said she felt very isolated. She said that she had limited contact with her family (though she also said was able to video call them once or twice a week). She said the father forced her to remain in the home, did not give her access to any financial information and was verbally abusive and demeaning to her throughout their relationship. She said there were some periods of time that were not too bad but others when he yelled and screamed at her. She said that the father forced sex upon her without her consent and that on one occasion when she was five months pregnant, he grabbed her by the hair and stood her up against the wall, slapped her and then dragged her into another room. The mother described this period of time in a very emotional way.

[12] The mother said she had no friends in Oxbow. She talked to her doctor about her problems and she recommended Envision counselling which she began in April 2014. The mother also said she contacted her own father with whom she had reunited during her brief stay in Brampton in October 2013. Her father had immigrated to Canada when she was 10 and had another child with his spouse. The mother said she disclosed the abuse to her father, the future maternal grandfather ("MGF") over the phone from Oxbow.

[13] The mother's evidence was that the father was very clever with technology and he used it to monitor and control her. She used his computer to Skype her family and email her friends. He walked in on her emailing and said "I know what you are emailing because I know everything that goes on in this house". The mother also alleged that there were cameras installed all over the house with the images available on the father's phone. She said she felt imprisoned in the home.

[14] The father denied all abuse. He said the mother spoke with her family frequently by phone and by video through WhatsApp. He said he helped her apply for her driver's license and she had access to the keys to the family car as he always drove his company car. The father conceded that moving from Trinidad to rural Saskatchewan was a major cultural change but he said that he did what he could to help her. He said that a friend of his offered the mother a job at the company where he then worked. She began work as a receptionist in January 2014 and worked until sometime in 2015 when the company downsized and she was laid off. She opened her own bank account when she got a job and he kept all of his financial papers in an unlocked box and the mother knew where it was. The mother bought her own cell phone once she started working.

[15] With respect to the allegation of physical abuse when she was pregnant, the father said that the mother was ill throughout her pregnancy. She was given medication but she did not like to take it (the mother admitted that in her evidence). He said he did strongly encourage the mother to take her medication and the mother called the police when they had a big argument about it. He denied that that the argument resulted in any physical abuse. As to the allegations that he isolated the mother, the father said that the mother chose to accompany him on a trip to NYC on June 24, 2014 and from there she flew to Barbados for a holiday with her brother.

The mother's counsellor

[16] The mother contacted Envision counselling by telephone and was connected with a counsellor named Skylar Gunderman. Ms. Gunderman's notes were filed as an exhibit and she appeared as a witness via Skype. The notes indicate that Ms. Gunderman first opened a file on May 29, 2014. The counselling was done by telephone as Ms. Gunderman was in Estevan SK. When the mother was employed she called from her workplace in Oxbow. The father was unaware that the mother had received any counselling until the questioning took place in this matter in July 2018.

[17] Ms. Gunderman stated that she was the inter-personal violence and abuse counsellor and Envision was her first job out of university. She began in January 2014 and left there on an educational leave in July 2017. She is now a school counsellor. She said the notes in the record that was submitted as an exhibit were accurate and transcribed by her from her rough notes within 48 hours of the conversation. Ms. Gunderman's notes are very detailed and set out what the mother told her and the resources that the counsellor recommended to her. The counsellor said that she did not try to persuade or push her clients to take an action that they are not ready to take. Throughout the notes there are references to the mother stating that she is unhappy with her life but that she was not yet prepared to leave her marriage.

[18] The notes do show that as early as March 2014 the mother told a counsellor that the father was controlling and verbally abusive to her. She related that when she arrived from Trinidad in October 2013 she had a cold sore. After googling it, the father's sister said she must have obtained the herpes virus from being promiscuous in the period between her wedding and her arrival in Canada. This began the poor relationship that the mother had with the father's mother and sister. As his sister was very close to him, this alleged unfaithfulness was communicated to the father and it may have had an effect on his relationship with the mother.

[19] The mother reported that the father was emotionally abusive and would explode with anger and call her names such as "dumb" and "stupid". At the trial the mother alleged that the father used much cruder, sexualized language to degrade and humiliate her. The counsellor's notes stated that the mother said that the father was not physically abusive as he knew that he could not do that in Canada.

[20] The mother described that she and the father had travelled to Trinidad in March 2015. There appeared to be a gap in the counselling between August 29, 2015 and July 29, 2016, when the mother contacted Ms. Gunderman when she was in Estevan, presumably for a hospital checkup as she was then 19 weeks pregnant. The mother told her counsellor how ill she had been with her pregnancy and said that the father was not supportive of her. She said that in June 2015 the father was angry with her and dragged her by the arm to the bedroom. She was worried that she or her unborn baby would be harmed. She called 911 and the RCMP responded. She said she lied to the police and told them it was a misunderstanding. The counsellor provided support and told her she could still make a report. The mother said she wanted to leave and travel home to be with her family. She asked the counsellor if the father would still have to pay child support if she was out of the country. This was the last contact with Ms. Gunderman.

[21] The mother called Envision again on August 25, 2017 and this time spoke to the new IVA counsellor, Megan Russel. Her note stated that the mother said she used to have telephone counselling and she wanted to ensure that if for any reason she was in a custody dispute that her concerns are documented. She said her husband was "sly" and she was not sure what he was "coming with". The mother related that the father often tells her that she cannot take their son and go to Trinidad. The mother said she was worried that the father would try and take the baby away from her. The counsellor referred the mother to legal and other resources.

[22] The overwhelming impression left by the notes was that the mother was very sad and depressed and perhaps somewhat bitter that she had been uprooted from a full independent life in Trinidad to a small town life in SK. She felt unable to talk to anyone about her sadness because the father was a very well-known and respected member of the small community of Oxbow. She said the father was friends with everyone and treated everyone well and no one would believe her.

New job and new plans

[23] The father changed jobs from Saskarc to Havwoods in February 2016. He signed an employment contract in April 2016 and was appointed the general manager of Havwood's North American operations. Havwoods is a family run company based in the United Kingdom that makes engineered flooring products. They had a small base in Oxbow with four employees but they had plans to expand throughout North America. The father was responsible for managing their employees in their warehouse in Maryland and for working with the managers in the U.K. on their planned expansion to a showroom in Manhattan. This new position came with a significant increase in salary.

[24] At the time that the father was settling into this demanding new position, they learned that the mother was pregnant. Both parties described the pregnancy as being a very difficult time. The pregnancy was deemed to be high risk due to the mother being 42 years old. The mother was very ill from the onset of the pregnancy. She was In and out of hospital and she had to be on an intravenous line at home. She said the father was quite supportive at first but when she did not get well she felt his patience must have run out as he would be angry at her. The father would yell at her to take her medication. She said she felt so depressed.

[25] The child's birth was a traumatic experience for the mother. Her labour began two weeks early and was a bad snowstorm on their journey to the nearest hospital in Estevan and from there the mother was taken by ambulance to Regina where she required an emergency c-section. The mother was required to be in hospital for 2.5 days. Her mother and aunt came from Trinidad to Oxbow to help out and stayed for about 6 weeks. The father went back to work after they arrived. After the MGM's visit ended the PGM came to Oxbow for a month.

Early parenting

[26] The father said that as he worked for a U.K. company, he needed to be in the office for their work hours. He said he left for work at about 5:00 a.m. He would return home at about 9:00 or 9:30 a.m. "to see how everyone was doing" and he finished for the day around 5:00 or 5:30 p.m.

[27] The father conceded that the mother was primarily responsible for parenting the child. The mother said she continued to be quite ill after her surgery but she breastfed the child and took care of Athan during the day. She said that when they were visiting, the respective grandmothers cooked and cleaned. The mother said she encouraged the father to spend time with the child in the evenings. The father said that once he was home, he was fully involved with the child and participated in all of the bedtime routines. The mother denied this and said that the father told her he had worked all day so she should care for the child.

[28] In May 2017, the father was required to attend a meeting in the U.K. at which time he was told that he would be required to assume responsibility for the launch and management of the Manhattan show room and he would have to move to New York City ("NYC"). The father said he discussed the move with the mother and while she was understandably anxious about another big change in her life, she agreed to the move. The mother's testimony regarding this life changing event was quite different. She said that the father presented the news like an ultimatum. He was going to move to NYC with the baby whether or not she chose to accompany him.

[29] The parties also gave starkly different evidence as to the process involved with the move. The father said he decided to rent rather than sell the Oxbow home. The parties packed up their home together and on November 1, 2017 they drove to the PGM's home in Brampton. The father said that the mother chose to stay with his mother rather than with her father in Brampton. The father said moving to Brampton was a logical interim step as they had to obtain a home in NYC and it would be far easier for the father to fly back and forth from Toronto than to try to effect the work transition by driving back and forth from the Regina airport and connecting through Toronto to NYC. The father admitted that in the fall of 2017, he travelled back and forth but estimated that he spent about 80% of his time in Saskatchewan. He noted that the mother accompanied him on trips to NYC to see the city and look for a house. The mother said she went twice and that she was shut out of the home purchase as the father and his sister made all the decisions.

[30] The mother said she never wanted to move to NYC. When the father was travelling so much, she felt even more isolated with her infant child in Oxbow and she asked the father if she could go to Trinidad for a holiday with her family. She said the father was insistent that she could not leave. He told her that she would only be spending a week or two with the PGM and his sister but it became over six weeks. She said that she was very poorly treated by the PGM and paternal aunt who spoke rudely to her and constantly criticized her parenting. The PGM said that in this time the mother would keep the child in her bedroom until the afternoon. She would Skype on her laptop so the child could see the MGM. The PGM said it was the mother who did not want to interact with her. She denied being constantly critical and said she simply told the mother that the child never eats regular meals and needed more exercise.

[31] The father said that the parties found a home in Bayside NY. The father admitted that the entire moving process took much longer than anticipated. Their house contents did not arrive in NYC until December 16 due to the moving truck schedule and a truck breakdown. The father stayed in NYC from December 3 until his return to Brampton on or about December 22. What happened in the days between December 17 and December 22 were critical to direction of this litigation.

The without notice motion

[32] The father said that the mother told him on December 17 that she wanted to go to Trinidad with Athan. The father sent the mother a text message on December 18 stating that it was unfair for her to take Athan away from him for the Christmas holiday. She responded that he chose to be away from him now by leaving the child with her in Brampton. The father said he had no choice as he had to work. She responded "Like I said Wat ever".

[33] On December 19, the mother left the home of the PGM with Athan and all of her contents. The PGM asked where she was going and she said she was leaving to be with family. The PGM called the father in NYC. The father then left a series of messages that said that he did not permit Athan going to Trinidad. They included "I hope you are not going to Trinidad", "I am concerned about the safety of my son" and "How can you just take my son". He also said "I spoke to you this morning and you never told me you are taking him". The mother did not respond to any of the messages.

[34] The father called the MGF in Brampton. He was told that the mother and child were not there and the MGF did not know where they were. The father then called the MGM in Trinidad and left a message asking whether Athan was there. There was no response. The father then called the police. On December 20, the Peel Regional Police were able to locate the mother through her cell phone. She was at the Interim Place shelter. The police reported to the father that the mother and child were safe and were in Mississauga but if he wanted any more information he would need to go to family court. The father then flew back from NYC and retained counsel. Ms. Freedman prepared a motion seeking an order to prevent the child from leaving the province of Ontario. The ex parte motion did not seek sole custody and did not seek an order to locate and apprehend the child.

[35] Ms. Freedman took the motion to the OCJ at Brampton on December 22. She did not file the motion there because, based on information her office said they received from the court staff, she was not confident that the motion would be reviewed that day. (In fact there were two family judges available and all urgent motions are reviewed the same day). In any event, the father and counsel then went to the OCJ at 47 Sheppard Avenue, Toronto where Justice R. Zisman was prepared to receive submissions on the record in court in addition to reviewing the affidavit filed. A transcript of the proceeding was filed.

[36] It is clear from the transcript that it was on Justice Zisman's initiative that the motion for a non-removal order was converted to sole custody order with the police to apprehend the child and deliver him to the father. The mother subsequently said that the father "lied to the court" to obtain a custody order. The evidence before Justice Zisman and the evidence given at this trial do not support that. Justice Zisman was very concerned that the father had not heard anything from the mother in two days and that she had spoken of going to Trinidad and being with family. She thought the mother had no status in Canada but the father made it clear that the mother was a permanent resident. Justice Zisman asked counsel why she was not seeking an order to have the child placed with the father as she was concerned that "we do not know where the child is". Ms. Freedman advised the court that the father did not have any concerns with the mother's ability to care for the child and the father did not want to cause any undue stress to the child by having the police arrive to remove him.

[37] Justice Zisman then asked the father if he would like the child returned to his care and he responded "Most definitely". Justice Zisman then made an order for the father to have custody and for the child to be apprehended and delivered into his care. There is no doubt that Justice Zisman had jurisdiction to make the order under R. 5 (2) of the Family Law Rules. There is also no doubt that the court simply wanted to ensure that the child was not taken to Trinidad. Justice Zisman made it clear that she was making a custody order and transferring the child to the father only to ensure that her order would be effective in preventing the mother from leaving Canada with the child. She ordered the parties to attend before her on December 28 and stated that if the mother attends we will "straighten it out".

[38] The mother's version of what happened is quite different. She said that she was living in intolerable circumstances in the PGM's home. Christmas was approaching and she wanted to take her son with her to Trinidad for the Christmas holidays. She said she made it clear that it was for a holiday only. She said she never mentioned moving to Trinidad. She was a permanent resident of Canada and the father had assisted her in starting her citizenship application when she was in Oxbow. She said that the father had threatened her that if she left him he would "end her story" and that her family would find "her body in a bag". She said this threat was made by telephone on December 18 and that is why she was feared for her life and left the PGM's home to go to a shelter.

[39] The mother did not deny telling the PGM that she was going to see family. She testified that she did contact her own father and he helped her move into the shelter. She claimed that she had a good relationship with her father but the MGF's wife did not like her so she felt uncomfortable in that home. She said that is why she went to a shelter and not to the MGF home. The mother said that when she arrived at the shelter she was told to have absolutely no contact with the father. She said that is why she did not respond to his frequent texts and phone calls. She said that when the Peel police spoke with her on December 20, she knew that the father would be told that his son was safe in Peel. She contacted a lawyer to begin the process of seeking custody of Athan, when on December 22 she was served by the police with the locate and apprehend order and the police delivered Athan to the father at the PGM's house.

[40] The mother did attend with counsel at the return of the matter before Justice Zisman on December 28. At that time she was still living in the shelter. An order was made granting her supervised access with the child for 3 hours a day. The father said that the MGF was an agreeable supervisor. The matter was then adjourned to January 25 and at that time an order was made removing supervision and granting the mother access to the child every Monday, Wednesday and Friday from 10:00 a.m. to 7:00 p.m. The order also provided that if the father was out of the jurisdiction for more than 24 hours, the child shall be placed in the mother's care pending his return.

[41] Ms. Doekaran, who was not counsel for the mother until late August 2018, built her trial case to a large extent around the narrative that the father abused the mother and then lied to the court to obtain a custody order which he then used as a continuation of the abusive behavior by denying the mother access. The evidence does not support that theory.

[42] There is no doubt that the mother was the child's primary caregiver until December 22, 2017. There is also no doubt that the father did not mislead the court. Justice Zisman was aware that the mother's planned trip was said to be for a holiday and she was aware that the police had located the mother and child in Mississauga on December 20. She was concerned that the mother had the motivation and ability to leave the country and she simply wanted to ensure that the child remained in Ontario until decisions about parenting were made. The without notice motion to court would not have been brought, or if it had been brought, it would not likely have succeeded, had the mother simply told the father that she was leaving him and she was staying in Peel. She could have relayed that message directly by text or indirectly through her father. At that point, an agreement could have been reached with respect to the father, his counsel or some third party keeping the mother's passport while a time sharing agreement was negotiated.

[43] To be fair to the mother she stated that the father threatened her over the phone. She had no obligation to stay at the PGM's. She had a right to go to a shelter. If the shelter personnel told her to ignore all contact from the father then she may have some right to think she was badly advised as the failure to respond for two days led to the motion. At the end of the day though, it was the mother's judgment to not respond and she is responsible for the consequences of that decision.

Access from December 22 to May 16

[44] The father was very emotional when he testified that his year old son was brought to him on December 22 in the back of a police car. He stated that he had not gone to court with any expectation that the police would physically take the child from the mother. In fact, throughout the trial, the father consistently took the position that he did not want the child to see the police involved in any interaction between his parents.

[45] On December 28, the parties agreed that the MGF should be the supervisor. The mother stated that she moved into the MGF's home after about two weeks in the shelter but she moved out to live with a cousin by March 2018. The relationship between mother and the MGF and the father and the MGF was not fully explained by the evidence. The father said he was the one who proposed the MGF as supervisor. Yet when the MGF went to pick up the child, the father insisted on looking into the car to see if the MGF had installed the car seat correctly. The MGF presumably feeling insulted, denied the request, words were exchanged and a scuffle ensued. The father went to the police station and that report was filed in court. The police declined to lay charges.

[46] With this incident and the MGF's involvement in the report to the PCAS in November 2017, one can see why the father and MGF do not get along. Yet the father also gave evidence that the MGF is the only grandfather Athan has, so he arranges for Athan to visit with him fairly regularly.

Communication regarding care of the child

[47] The mother said that the father's controlling and demeaning behavior could be observed from the numerous texts that he sent her whenever she had access. The messages contained very detailed comments as to what Athan must eat when with her. If she did not immediately respond, the father texted her to ask what the child ate. The mother said her son was just a baby and she knew what to do. She said that she did not ask the father what Athan did while in his care.

[48] The mother also said that the father also made access exchanges very uncomfortable. She said she just wanted to exchange without comment. She said that the father or PGM always had something that they wanted to say to her. There were comments about a scrape or a rash or some other issue. She said that it was these comments, which felt to her like accusations, that caused her to feel that it was necessary to video the exchanges. She said when the father saw she was recording, he did not say anything to her.

Child's attendances at hospital

[49] There was a considerable amount of evidence led by both parties as to all of the details surrounding Athan being taken to hospital for a febrile seizure on March 2, 2018. When Athan was with his mother that day, she noticed he was developing a fever and she gave him Tylenol and a teething medication known as Camilia. When she exchanged the child that evening, she told the father of the fever and the treatment. Athan became more ill and developed a high fever. Rather than calling an ambulance, the father drove him to the hospital. Prior to so doing, he texted the mother and asked about the dosages of Tylenol and Camilia. She did not respond. The father became frantic and sent more texts demanding the information. It was not until he told the mother that the emergency room doctor must have the dosages that the mother responded. The mother said she did not respond immediately because she thought it was another example of the father trying to find fault with her care of their son. She said once he told her it was an emergency, she immediately responded, and then attended at the hospital. Both parents spoke to the doctor. Later the father blamed the mother for the child's seizure and said that the doctor told him that child became fevered because he was given Camilia. The mother denied that the doctor told them that and said that the emergency room record did not mention Camilia. The mother said that she used Camilia on doctor's advice in SK when the child was teething.

[50] The child was prescribed Amoxycillin and the father took him back to his home. His-temperature went up again and he developed hives. The father took him back to the hospital but did not contact the mother until the next day. The mother was very upset and defensive about the late contact. She was right in saying that the father should have contacted her from the emergency department (the father said he forgot his phone). The mother was wrong to note that the hives issue arose only at the father's home. When a child is ill, the parents should only be focused on the health of the child not making an issue of who the caregiver was when the illness or problem developed.

[51] The March 2nd incident must have been frightening for the father as he had a very sick child and he felt helpless. The mother should have responded immediately with all of the dosage information that the father sought. The mother's excuse- that she did not know the child was having a seizure when the father asked about dosages- is only understandable in that there was a pattern of the father looking to find fault with the mother and she was tired of being questioned. I do not find that the mother was negligent in her care of Athan. Children can develop fevers quickly and there is no medical evidence that giving the Camilia worsened the situation. She did tell the father about the fever and the remedy. She felt that the father was being accusatory in his demanding messages. Once she knew Athan was in hospital, she immediately attended.

Mother's move to an apartment

[52] In March 2018, the mother moved from the MGF home to a basement apartment of a cousin who lived in Toronto. This was around the same time that she obtained a job working nights as a shipper for Amazon. She lived there until she was able to obtain her current two bedroom apartment in Brampton in June 2018. The father testified that the mother did not advise him, or his counsel, of her move from the shelter to the MGF and from the MGF to the cousin's home and then to the apartment. He also said that despite requests, she failed to advise him when she obtained employment. A theme of the father throughout the trial was the mother's failure to keep him apprised of important information regarding herself and the child.

[53] The mother brought a motion for expanded access that was returnable on May 16, 2018. The parties consented to an order that remained in place until trial. At that time, the mother was still working nights on weekdays. By June 23, her access was as follows:

Week one:

• Monday from 10:00 a.m. to 5:30 p.m.
• Wednesday from 10:00 a.m. to 7:00 p.m.
• Thursday from 10:00 a.m. to 5:30 p.m. and
• Saturday from 11:30 a.m. to Sunday at 5:30 p.m.

Week two:

• Wednesday from 10:00 a.m. to 7:00 p.m.
• Thursday from 10:00 a.m. to 5:30 p.m.

Pre-trial access requests

[54] When this matter was being organized for trial, the mother recognized that she could not present a custody plan when she was working nights on weekdays and living alone. She left her job at Amazon and after a brief period of unemployment obtained a new position. She initially said that she worked for National Logistics and as will be set out below, she said she was working on September 12, 2018. She then provided a letter from the People Store Staffing Solutions Inc. dated October 18, 2018 that stated that her employment began October 9, 2018 and that she worked from 7:30 a.m. to 3:30 p.m. on a full time basis.

[55] The mother told the father that she had daytime hours on September 12, 2018. She asked the father for overnight access. He did not believe that she had the new hours and asked for proof. Inexplicably the mother did not initially provide any information. She then produced a letter from her employer. The mother's evidence regarding her employment and income was inconsistent. Part of the problem was her failure to make updated financial disclosure as is set out below. Ultimately at trial she provided pay statements for October, 2018 and January 2019 which showed that she only worked 16-20 hours a week. The mother said that her employer was very flexible with her hours and let her make up time on weekends if she had child related responsibilities during her work hours. Her employer attended at the trial but was not called as a witness.

[56] The mother's position was that it was totally unreasonable for the father not to change the access schedule once she changed her employment. On the surface there is merit to that claim. The father took the position at trial that the May 16 order only gave the mother one overnight in a 14 day period because she worked nights. Once she no longer worked nights it made perfect sense to renegotiate the access terms. The father never had any real concern with the mother's ability to parent. If the mother worked 7:30 to 3:30 p.m. she could only have access from 4:00 p.m. to 5:30 p.m. on Mondays and Thursdays and from 4:00 p.m. to 7 p.m. on Wednesdays.

[57] The effect of the mother's new job was the exact opposite of what she had hoped for. She wanted to be available for overnight time with her son and to share time equally with the father now that they were both working all day on weekdays. The result was that her daytime work hours made her unavailable for access during the times set out in the order. The father initially agreed to some extended visits and then through counsel deferred any request to a schedule change until the mother provided written confirmation of her work hours. As this matter drew closer to the winter trial sittings, the father took the position that the parties should just comply with the order and leave any possible changes for trial.

November 6-20, 2018

[58] This matter was scheduled to be tried in the fall sittings of this court in late October/November. When the matter was not reached, the conflict between the parties escalated dramatically. With few exceptions neither party was prepared to give the other any additional time with Athan or agree to anything the other suggested.

[59] By then, the mother was well pre-disposed to see anything the father did as a means to control and dominate her. She already saw him as a very clever and manipulative. The response to her access requests in November and early December confirmed her view that the father would make every request difficult and force her to go to her lawyer to get every half hour of additional time.

[60] One example that the mother gave was her request for access on Diwali which was Tuesday November 6. The father said he agreed to this special access even though it was on his day with the child. The mother noted that she asked for 4:00-8:00 p.m. and the father said no and countered with 4:00-7:30 p.m. and he was adamant about that. She then contacted her lawyer, a motion was brought and the parties finally agreed on the 4:00-8:00 p.m. that she originally requested. The mother viewed this exchange as the father fighting over every half hour. The father's view was that he agreed to special access time and he felt that 7:30 p.m. was a reasonable return time for a two year old child. This was a bad example of access frustration and the fact that the mother's counsel prepared a motion over the issue showed poor judgment on her part. This was the opening salvo in what was to be a war over pre-trial access.

[61] The mother said that the father knew that the MGM and the maternal great aunt were coming to Brampton from Trinidad for the scheduled trial. They arrived on November 7 and stayed for six weeks. The mother said that in all that time she only received 2 extra days of access and that the father was deceitful and manipulative throughout.

[62] The period from November 11 to November 20 was covered extensively by both parties in their evidence. The mother noted the terms of the May 16, 2018 order that provided that, if the father was not at home for a period for more than 48 hours during his scheduled access time, Athan should be with the mother.

[63] The father had a business trip to NYC to get ready for the launch of his company's showroom in Manhattan. He said the trip was scheduled for 2 days on his time with Athan. As he did not expect to be away more than 48 hours he did not inform the mother that he would be out of the country. If there was any good faith between the parties, the father could have used this trip and his busy business schedule to offer the mother some extended time when her mother and the maternal aunt were visiting. He not only did not do this but he breached the court order, mislead the mother and involved the PGM and the paternal aunt in the deception.

[64] Wisely, Ms. Freedman had the father apologize profusely for his egregious conduct and he fully addressed what happened in his direct evidence. The father stated that he intended to go to NYC from November 11-12, then return to Toronto and then go back to NYC when the mother had time with the child. He described, in great detail, the business emergency that required him to stay in NYC for 9 straight days. What made his actions particularly troubling was that when the mother asked for more time with Athan during the MGM's visit, the father texted her from NYC and told her that she would be breaching a court order if she over held the child. The mother, assuming that he was in Brampton, dropped the child off to the PGM. She was curious that the father was not home to receive Athan but the PGM, complicit in the father's deception, told the mother that he had "stepped out".

[65] The father did not inform his lawyer that he had been away for 9 straight days and this put Ms. Freedman in the position of providing misleading information to Ms. Deokaran. The mother had Athan with her on Thursday November 15 when she was supposed to return him to the father. She refused to return the child unless she knew the father was actually home. In a very effective cross-examination, Ms. Deokaran put it to the father that he tried to deceive the mother. He had texted the mother on November 15 to tell her that if she did not drop the child off that day she would be in breach of a court order and it would be reported. When pressed on where he sent the text from the father tried to dodge the question. Finally he conceded to the fact that he "may have sent it from NYC". He was then asked if he was trying to make it look like the mother was in the wrong. After a very long pause he finally said "yes".

[66] The father did not actually return to Brampton until November 17. Scrambling to try and undo the damage, the father offered to let the mother keep the child for some limited make-up time. The mother was not satisfied with the make-up time offer. While the father conceded at trial that he should have told the mother that he was detained in NYC, the impression left was that the father only admitted fault because he got caught and he only offered make up time due to the advice of counsel.

[67] The parties filed many exhibits detailing their interaction in this pre-trial period. Taken as a whole, the texts and correspondence exchanged showed the father to be very detail oriented and often frustrated with the mother's refusal or failure to respond in kind. The mother was initially reluctant to engage in any communication with the father and it appeared that she took a passive/aggressive approach knowing that this would irritate the father whom she considered controlling. The mother's texts became more aggressive in nature though after September 2018.

[68] Ms. Deokaran's communication with Ms. Freedman is concerning. In her letter of December 18, 2018, she stated the following:

With respect to my email sent to you at 11:57 a.m. this morning please do not mischaracterize my email. I am not attacking your character, I am simply highlighting to the court (as that email and this letter will be provided to the Trial Judge) that you have and continue to act unethically. The following is the evidence I rely upon in support of my position:

1. You misrepresented information to the judiciary in Order to bring an ex-parte Motion in the jurisdiction of your choice …. (three other examples were given)

You Ms. Freedman (much like your client) may believe that your unethical behavior serves your client's case but I can assure you it will only hurt your client's case.

[69] Ms. Freedman asked the mother whether she endorsed her counsel's tone and comments and after an awkward pause the mother denied that the communication was inappropriate. I did not really expect her to do otherwise. She was in the midst of a custody trial and she did not want to undermine her own lawyer. I could not help but notice though that the mother's communication became more aggressive and accusatory after Ms. Deokaran became her counsel.

Athan's birthday access

[70] With the above noted dynamics in play, the access situation turned from bad to worse. With the MGM still visiting, the mother asked for extra time around Athan's second birthday. She proposed having Athan from Tuesday November 27 to Saturday December 1 at noon. The father denied the Tuesday time. He said she could have Athan from her usual Wednesday pick up at 10:00 a.m. to Friday morning. The father said that he had a family dinner planned on the Friday. He then agreed to change his Friday plans but insisted the child be returned at 8:00 a.m. on the Saturday morning because he had scheduled a family breakfast. The mother's evidence was that she thought that the father was intentionally throwing up roadblocks to a little extra time with the MGP and maternal aunt who lived so far away and who were about to go home on December 1. She said the father's rigid position meant that she ended up with one additional access day. She was particularly upset when at the 8:00 a.m. return, she was criticized for not giving the child breakfast. She said that convinced her that the father never had a family breakfast planned and it was just an excuse to have her return Athan to the father at a time that was earlier than she proposed.

The pre-school issue

[71] Both parents thought in the fall of 2018 that Athan should be registered in a pre-school program. The father, always the more organized of the two, sent the mother an email in October 2018 with a short list of three proposed pre-school programs. The mother did not respond. At trial, the father said he had put a lot of time and energy into finding just the right program for Athan. He had taken his two year old son with him to some pre-schools to see if they were a good fit for him. He seemed to think that Athan's reactions to the teachers and other children at the centre would somehow assist him with his decision. The mother said that she also looked at daycare or pre-school options. In fact, one of the places she looked at favourably in the fall of 2018 was a place on the father's short list. The mother did not tell the father anything about her intentions and he did not believe that she even looked at pre-school options.

[72] The mother said her research told her that a 2 year old child should be eased into pre-school with only a couple of days a week. While that may be true, both parents soon learned that child care places are in such demand that no centre can accommodate less than full time schedules. The mother had a motivation for moving slowly on child care. She had the flexibility at her new job to leave early and therefore be able to continue to spend weekday time directly with Athan.

[73] The father was highly motivated to have Athan in a pre-school. He was very focused on education. He had even turned his mind to the type of elementary school that his son might attend. He preferred Brampton Christian School, even though both sides of the family are Hindu, because he was impressed with the knowledge of the Grade 12 students he met when he visited the school. The father has a busy business career. The father wanted to have Athan with him on most weekdays (he proposed that the mother have Wednesday after daycare to Thursday return to daycare). It suited the father to have the child in full time daycare as he would then have the child cared for when he had to work or travel.

[74] Given that the parties agreed that the child should be in daycare and given that they may have even had the same school on their respective lists, this should not have been a difficult parental decision. It became a disaster.

[75] The father intended to get on a waiting list for one pre-school when he learned that there was a vacancy in another school that he had not visited. He decided to register in the Songbirds Montessori School as he had visited another Songbirds that had no space available and he liked it. He said that he learned of the vacancy on December 28. He registered Athan to begin at the end of the winter break on January 7. The registration was only conditional on providing the immunization documents. He told the mother on Friday January 4 that Athan would be attending on Monday January 7. When he registered the child, he did not mention to Songbirds that according to a court order the mother had Athan with her on Mondays, Wednesdays and Thursday during the week. Had the father been prepared to change the access schedule in October when the mother obtained a day job, this would not likely have posed a problem. His failure to do so put him in a position where he had to register the child for 3 out of 5 days on the mother's time.

[76] The mother is not without fault on the pre-school issue. She failed to respond to the father's early email about prospective centers. She allegedly researched pre-schools herself although there appears to be no written record of that prior to trial. She stated that she thought it was in Athan's best interests to be in a pre-school and she knew that spots were difficult to obtain. Nevertheless, when he was registered at Songbirds, she did everything possible to undermine the placement, solely because it was the father who had taken the initiative to find a place and register the child. She did receive short notice of the actual pre-school registration. On the other hand, it occurred over the winter break when counsel were not easily available and, for reasons set out below, at a time when she knew that the father could not communicate directly with her.

[77] Rather than being pleased that her son had been accepted into a pre-school with a good reputation that was close to their respective homes, the mother was very upset. She insisted on taking Athan out of the school during her access periods. Her ability to do that played into the father's doubts as to whether she was actually working on a full time basis. The mother did call the school to speak to the teachers though she was furious when the father did not advise her about the parent teacher meeting (He said as the school had her contact information and he could not contact her directly and he just assumed that the school would notify her).

[78] Notwithstanding their inability to communicate directly, they could have contacted counsel and the parties should have been able to keep Athan at the pre-school by making adjustments to the access schedule. Instead, their inability to trust the other meant that Athan was ultimately discharged from the pre-school after two weeks' notice. Effective February 28, 2019, he had no child care available to him. The point is that, individually, these parents knew what they should do. The conflict between them though meant that Athan lost out on an opportunity for socialization and development.

The alleged assault

[79] The father asked the mother in late November 2018 to allow him to have Athan on December 8 for a Christmas party at his Hindu temple. There would be a visit from Santa and games for the children. This was the mother's weekend and she was slow to respond. Ultimately she agreed to bring the child from 12:00-4:00 p.m. The mother arrived at the temple a little after 1:00 p.m. with the child who had fallen asleep in the car. The father was upset that the mother held the child in her arms almost all the time. The child was put down to play some games but he was very upset about sitting with Santa. From the evidence of both parties, I conclude that the 2 year old child was sleepy because it was his normal nap time and he was overwhelmed by all the activity. Clearly the father was very invested in the child having a good time and frustrated by the child's lateness, sleepiness and general upset. The mother attended very reluctantly. It would have made much more sense for the mother to drop the child off at the temple where all the father's family and friends were and pick the child up after the party. Instead she came inside and clutched on to the child. Athan may well have felt the tension between his two parents.

[80] The mother tried to leave early with Athan. She alleged that when she did so, the father screamed at her and slapped her. The father denied it. The mother called the police and they came to the temple. The mother attended at the police station and gave a statement. The father was charged with assault and a no contact order was put in place. This charge is still before the criminal courts. I draw no conclusions about what happened. It is necessary to note the alleged incident though as the release terms prevented the parties from communicating directly and it changed the exchanges for access.

Peel Children's Aid Society

[81] As is the protocol, the Peel Children's Aid Society were notified after an alleged incident involving the police when a child was present. They spoke to the parties and closed their file. It was re-opened when Justice Parent made a report to them on December 17, 2018 about possible emotional harm to the child due to the level of conflict between the parents. The Society investigated and they did verify a risk of emotional harm due to parental conflict. It is important to note that while this verification occurred after the December 8 charge it was not made as a direct result of that alleged incident. The Society had evidence as outlined herein of a pattern of conflict.

[82] The Society recommended that each parent get counselling at the Family Education Centre. The mother followed up on this and at the time of trial she was attending their conflict resolution course. The mother takes the child to the program which is held on Monday evenings from 5:30-8:00 p.m. until early April. The access time was adjusted in the midst of trial to allow the mother to drop off the child to the PGM at 9:00 a.m. on alternate Tuesday mornings instead of 5:30 p.m. on the Monday nights.

[83] The mother noted that the father did not follow the Society's recommendation for the place of counselling. He signed up for a different conflict resolution course run through the Family Enhancement Network on Saturdays. The father said the Society were aware of the course he was taking and were content with his choice. Clearly both parties need assistance with conflict resolution and I find it immaterial that the father has chosen a different counselling service that might have initially been proposed.

Access exchanges

[84] After December 8, the mother took the position that all access exchanges must occur at a police station. The father initially refused to consider exchanging at the station. The father became very emotional when speaking of not wanting his son to see the police when his parents exchanged him. The only other time the father lost his composure during the entire trial was when he spoke of the police apprehending Athan on December 22, 2017 at the shelter. The involvement of the police with his son was an emotional trigger for the father. As a general rule, parents should not use police resources for regular exchanges. In this high conflict matter, the mother's insistence that exchanges be done inside a police station coupled with the father's refusal to exchange this way resulted in the 2 year old child not seeing his mother over the Christmas period in 2018. As noted above, there had been no access from December 22 to 28 in 2017 as well. Fortunately, as the disastrous December 8 Christmas party showed, Athan was too young to know the significance of the time when he did not see his mother.

[85] I find that both parties are equally at fault for the failure of communication that led to access not occurring for Christmas 2018. Through counsel (not Ms. Freedman as she was on holiday) they argued over the exchange and the timing. When Ms. Freedman was not available to give the father advice he could not seem to make a reasonable decision with the mother.

[86] Both parties were videotaping access exchanges. It is not clear when that began. Neither party sought to introduce video or audio taping at the trial management conference so it may have begun after the trial was not reached in the fall. In any event, I refused to admit any of the tapes on public policy grounds.

[87] The videotaping led to the mother alleging that the father breached the terms of his recognizance when the mother went to pick up the child at his home. The mother brought a video to the police, after an exchange at the home in January, and alleged that the father had breached his bail because he was hiding behind the door. She said she recognized his hands reaching around the door holding a phone and videoing. The police spoke to the father and he proved to their satisfaction that the hands visible in the video were not his.

[88] After the criminal charge, the mother picked up Athan from the PGM's home where the father resided, and she dropped off to the PGM at the police station with the father not to be present. The PGM alleged that the mother would hand the child to her in the police station and then follow her to her car and video her the entire time. The mother alleged that after exchanging the child inside the police station, the PGM would approach her just outside and swear in front of the child. The MGM and maternal aunt said the same thing when they testified on the last day of the trial. Their allegations were almost identical and they claimed that the PGM was very aggressive with them in an exchange that occurred less than an hour before they were to give their evidence. As there was an exclusion of witnesses order and the PGM had already given evidence that she never confronted the mother or her family, it was very suspicious that the MGM and maternal aunt gave identical evidence of a confrontation.

Trial allegations

[89] By the time of trial, everything was contentious. While Ms. Freedman referred to 8 motions served upon her between November and the trial, Ms. Deokaran alleged that there were a number of breaches of the bail (though no charges resulted). At the trial, Ms. Deokaran alleged that the father was looking at the mother in an aggressive way-the parties were at opposite ends of parallel counsel tables with the lawyers, stacks of paper and a lectern in between. I did not see the looks but cautioned both parties to look forward and not sideways at each other. When the mother began her testimony, Ms. Deokaran said that the father was staring at the mother in an attempt to intimidate her. I did not see that. She asked that he be excluded from the court during her testimony. I would not make that order. After an exchange, Ms. Freedman said she was prepared to have her client turn his chair and look to the back of the court if it would help the evidence go in uninterrupted by the other counsel's comments. The father was quite prepared to follow his counsel's suggestions and the evidence continued.

[90] It is always possible that a judge could miss a glance here, or a glare there, but to put this in context, with the exception of his tears when talking about his son and the police, the father kept his emotions in check throughout this 8 day trial. There were no emotional reactions toward the mother or her counsel at any time. I could not help but think that the allegations regarding the exchange of the child immediately before court, and the allegations of intimidation at court, were contrived to fit the mother's narrative that she was frightened of her controlling and abusive ex-spouse. If the allegations were part of some twisted trial strategy, they were completely counter-productive as they cast some doubt on the veracity of the mother's allegations generally.

The OCL report

[91] The OCL were asked to investigate by the order made on January 25, 2018. Ms. Jaqueline Pullan was assigned on March 5 to conduct a report pursuant to s. 112 of the Courts of Justice Act. Ms. Pullan has been a social worker for about 20 years and has been on the panel of the OCL for about five years.

[92] She completed her investigation and held a disclosure meeting on May 23. She delivered her final report on May 30, 2018. From the information that she received, she came to the following conclusions at p. 19 of her report:

During the course of this investigation, there has been no evidence provided that Ms. Singh was planning to leave the country or that she has any mental health challenges. She has been the child's primary care giver since birth until these recent chain of events and she had relocated; albeit secretly, to a local shelter to escape what she described was an abusive relationship.

Mr. Singh is seeking Sole custody of Athan with Sole decision making is supported as long as she signs necessary consent forms for Mr. Singh to receive all information regarding Athan's health, education, religion and general welfare independently. (sic) Ms. Singh has been Athan's primary care giver since birth with the exception of when he was abruptly removed from her care by a court order and placed with his father temporarily for the past five months. Ms. Singh's story has been consistent with regards to experiencing domestic violence from the family's time in Saskatchewan to Ontario. There is history of a power imbalance between the couple and Ms. Singh talked with several service providers about her story which is well documented in their records. There are no child protection concerns with Ms. Singh or Mr. Singh's mental health although there were concerns about Athan's exposure to the ongoing conflict. There are no allegations of substance abuse or misuse by Mr Singh or Ms. Singh. Although Mr. Singh reported that he will support a shared access schedule with Ms. Singh he sought an emergency motion via the court to have the child removed to his care, and after that order was made he attempted to block her access with Athan, denying her overnights until recently. Athan needs both his mother and his father to care for him and an equally shared access schedule in Athan's best interests is supported while both parties live in Ontario. If one of the parents moves access will need to change.

[93] The report recommended that the mother have sole custody, that the parties share time with the child on a 2-2-3 rotation, and that the parties share holidays equally. Ms. Pullan also recommended that both parents obtain counselling and that they use a shared parenting app like family wizard or google calendars. The mother accepted all of the recommendations and the father filed a dispute.

[94] At the time of her investigation the father's position was that he wanted custody of Athan and he planned to move to NYC. He proposed that he would bring Athan back to Brampton at least once a month to visit with his mother. The mother's position was that she wanted custody of Athan and she was prepared to share time equally with the father.

[95] Ms. Pullan's summary of the situation and her report as to what each parent had to say was similar to the evidence given at the trial by the parties, with respect to events up to that point. She noted in her oral evidence, as she did in her report, that both parents have the ability to care for Athan in a loving and safe way. The main issue was the conflict between them and what she referred to as a power imbalance.

[96] Ms. Pullan said that the mother talked a lot about domestic violence and the impact it had upon the ability of the parties to communicate. She said the mother was seeking sole custody as she felt that she could not make decisions with the father.

[97] The mother told Ms. Pullan that she was hesitant about the relationship. Where she was not wanting to get into a serious relationship, he was certain that he wanted to be with her. She said the father was good to her in the period leading up to their marriage. The mother told Ms. Pullan that after the marriage things changed. The father became verbally abusive and then became physically abusive.

[98] The mother said that after she was laid off from her job she thought about going back to Trinidad. The mother told the clinical investigator that she felt controlled and isolated by the father. She spoke of reaching out to Envision counselling services and Ms. Pullan reviewed the notes from the counsellor.

[99] Ms. Pullan said that the mother told her that the father threatened her life over the phone on December 18, 2017 and that is why she went to the Interim Place shelter. Ms. Pullan said that despite the fact that the child had been in her primary care since his birth, the father was able to get a court order on December 22, 2017 for the police to apprehend Athan from the mother. The investigator did not have all of the background to that decision that emerged at trial. In the spring of 2018, when the interviews were conducted, the mother's biggest worry was that the father would move to NYC and she would not be able to have access to Athan.

[100] The clinical investigator said that the father's greatest concern about the mother was his worry that that she would take the child to Trinidad. She said that he also expressed concern about the mother's mental health, yet there was no evidence to support such concerns.

[101] Ms. Pullan said that she recommended sole custody to the mother based upon all of the evidence. She felt that the father had so much control throughout the relationship. She referenced phrases by the father such as "I will allow her to do this". She said that the father felt that Athan's life would be based upon his decision making. Ms. Pullan said in her testimony that she felt "pretty strongly" that the mother needed custody as otherwise the father would not take her views into consideration.

[102] Ms. Freedman's cross-examination focused on the sources of information that Ms. Pullan relied upon. The investigator said that she did contact all professionals involved with the father such as the physicians and counsellors. She said that parties often want the investigator to speak with their family members and she often does not find this helpful as their comments usually mirror the comments of the parent who is their family member. Ms. Freedman asked why Ms. Pullan did not speak with the PGM whom the mother had been living with for about six weeks before she went to the shelter. She said that she was prepared to seek consent to talk to the PGM and to the MGF. She noted that other than the MGF, the mother had no family support in the Greater Toronto Area ("GTA") to interview. The mother did not provide consent for her to speak to the MGF. Based upon that and to ensure balance, she did not interview the PGM either.

[103] Ms. Freedman quite effectively pointed out that the mother has stated in this litigation that the MGF is the mother's main source of family support in the GTA. He was the one who contacted the PCAS in November 2017 to report that his daughter and grandson were living in an abusive relationship. It was the MGF who had helped the mother to move to the women's shelter and two weeks later into his home until she could find her own apartment. It was the MGF who supervised the mother's access with Athan from December 28, 2017 to January 25, 2018. Despite what appeared to be his significant role, not only in the mother's life but in the child's life, shortly before the OCL investigation, the mother did not want him interviewed. Ms. Freedman quite rightly asked Ms. Pullan if that seemed a little unusual to her and she clearly caught the clinical investigator on the defensive. She said that the mother told her that she was somewhat estranged from her father and so she respected her wish not to talk to him.

[104] I agree with Ms. Pullan that an OCL investigator must be free to determine who to interview and when. I also agree that family member's evidence can be quite predictable. However, when the mother was seeking custody of the child and she refused to grant consent for her main support person to be interviewed, that should raise some concern. I find that it would have been helpful if Ms. Pullan had interviewed both the PGM and the MGF as the mother and child had lived with one or the other, but for the two weeks when she was in the shelter, in the period between the separation and her appointment as the clinical investigator.

[105] Ms. Freedman also asked Ms. Pullan about the reason for her conclusion that there was a clear power imbalance in the couple's relationship. Ms. Freedman suggested that the investigator had only relied upon self-reported abuse by the mother. Ms. Pullan said that her finding of a power imbalance was not based upon the party's statements but it was grounded in collateral information from the professionals involved. Ms. Pullan relied upon the Interim Place shelter's danger assessment that resulted in a score of severe danger of abuse. Ms. Pullan did not have an opportunity to talk to anyone at the shelter who had actually spoken to the mother. The assessment was based upon a weighted scoring of answers to questions on a form. The mother answered "yes" to physical, verbal, sexual, emotional, financial and other forms of abuse. She even said that she was worried that the father would harm the child. There was no credible evidence for anything other than possible verbal and emotional abuse and one incident of physical abuse when she was pregnant.

[106] Ms. Pullan said it was somewhat of a factor in her view of the father as an unreasonable parent that he was unwilling to agree to the mother having overnight time with the child. It was also clear from her evidence and her report that she felt that there was no evidence that the mother planned to leave the country with the child. Given this, she may have thought that the father's action in obtaining a custody order based upon her being a flight risk was the move of a controlling parent who wanted to gain the upper hand in a custody battle.

[107] It may be that the mother has no intention of taking Athan to Trinidad on a permanent basis. However, it is easier to see that now, or even in the spring of 2018, than it was to see it on December 22, 2017. I appreciate that an OCL investigator has limited time for a report and that she does not have access to all the facts that may emerge at trial. As noted above Justice Zisman did have evidence to consider the mother a flight risk and she, not the father, was the one to determine that a custody order was required to mitigate that risk.

[108] The basis of Ms. Pullan's finding that the mother had to have custody to offset the controlling behavior of the father was somewhat undermined by the details that emerged at the trial as to the strength of the collateral information upon which she relied. The simple fact is that there was no evidence, other than the mother's own statements to collaterals, and the evidence of the MGM and maternal aunt, that the mother was being abused and controlled by the father. I find that her contemporaneous statements to Envision counselling support a finding that the mother was very unhappy, that the father was not nearly as supportive as she wanted him to be and that he verbally lashed out at her from time to time. I do not discount the incident that caused her to call 911. Any physical assault upon a vulnerable pregnant women is very concerning.

[109] I am prepared to give some deference to the views formed by Ms. Pullan about the parties, from her in depth interviews with them. I have no doubt that she has developed good interview skills over the past 20 years and is able to make some judgments from the way people express themselves. However, I cannot accept that a review of the collateral information could be the basis for a finding of such a serious power imbalance that it must lead to a redressing of that imbalance by a custody order.

The Father's plan

[110] The father set out a very detailed parenting plan which was filed as an exhibit. Briefly stated, he says he gets up at 7:00 a.m. and gives Athan his breakfast. He works from his home office. The PGM watches Athan when he is working. Periodically, during the day the father stated that he would come out to see Athan or give him a snack. He also said that Athan had his own desk in his home office so that everyone in his global company knows Athan as they see him on video calls.

[111] The father said that he schedules his day so he can spend time with Athan. He always has lunch with him. He then gives him a bath before he puts him down for his afternoon nap. He said that when Athan gets up at about 3:30 p.m., he finishes his work day. The father said that he feeds Athan his supper and tries to get him into bed by 7:00 p.m. He conceded that the PGM does most of the cooking and he estimated that she cared for Athan for 2-3 hours during the day. The father said that he has some control over his work schedule and he maximizes his work time when Athan is with his mother.

[112] The father sought an order that Athan primarily reside with him and be in his sole custody. He proposed that the mother have regular access every Wednesday from after pre-school with a return to pre-school on Thursday morning. He also proposed that she have Athan every other Friday after pre-school to Monday return to pre-school. On non-pre-school days, he said that the mother could exchange Athan with the PGM and/or the paternal aunt at the home that he shared with them.

The Mother's plan

[113] The mother stated that since last June she had resided in a two bedroom apartment where Athan will have his own room. The mother said that Athan should be registered in a daycare or pre-school and she had found two options near her home. She had already determined that Athan could attend the Ross Drive public school. There was an Alliance Francais program that Athan could attend twice weekly once he is 3 years old.

[114] The mother said that she had registered Athan in swimming last year. She has him in a sports activity program currently. She planned to take Athan to her Hindu temple every Sunday. She said she had grown up in a multi-cultural background and Athan would have that opportunity as well. The mother noted that she had the support of the MGF and her many cousins in the GTA.

[115] The mother said that she had always scheduled Athan's medical appointments. She contacted the father whenever she scheduled an appointment. She was the parent responsible for ensuring that Athan had his immunizations. She wanted Athan to continue to see Dr. Ali.

ANALYSIS OF THE CUSTODY ISSUE

[116] I must begin my analysis by reviewing the best interests factors set out in s. 24(2) of the CLRA. I will only refer to those sub-sections that are relevant to my factual findings. I will also address s. 24 (4).

(a) 24 (2)(a) the love, affection and emotional ties between the child and a parent

[117] I find that the child is well bonded to both parents. Both parents clearly love their son and it is reciprocated. Despite the high level of conflict in this litigation, to this point Athan has not actually suffered any emotional harm. The OCL report showed that he was as comfortable with one parent as he is with the other. He has a greater opportunity to spend time with his paternal grandmother but he knows his maternal grandfather and his relatives in Trinidad.

(b) 24 (2)(b) the length of time the child has lived in a stable home environment

[118] This factor is one of the main pillars that the father relies upon to support a custody order in his favour. He emphasized the status quo that had developed since the December 22, 2017 custody order. After he made the decision not to move to NYC, he made arrangements to work out of his home with some commuting to Toronto. The father argued that the mother's life was chaotic. He noted that she had lived in four places since December 22 and she did not notify him of any of the changes. He raised the issue of her lack of supports and the fact that it was him, not the mother, who ensured that Athan saw the MGF on a regular basis.

[119] Ms. Pullan, the clinical investigator noted that the mother had been the child's primary parent until December 22. The father admitted this but he said that was only because he had to work while the mother was home with the child. The mother said that the father only established the status quo by virtue of misleading the court to get a custody order. I have found that the father did not mislead the court and there were reasons why the mother did not have overnight access initially. I also find that the mother's living arrangements do not show instability at all. The mother went to a shelter, then to the MGF, then to the basement apartment of a cousin and then finally to her own two bedroom apartment. She wanted to separate from the father but did not have the financial resources to immediately afford an apartment nor the family home to simply return to.

[120] I have found that it would have been helpful to have heard from the MGF as to any support he could offer the mother. The mother's evidence was that she got along well with him but not with his spouse. It is for that reason that the mother moved out of his home to her cousin's home. I find it is very unfortunate that the mother did not receive overnight access to Athan until June 23, 2018 when she obtained her own apartment. However, but for a gap between December 22 and December 28, the mother has had Athan with her for some time at least every third day. Athan has stayed with the mother in the same apartment since June 2018.

[121] I find the fact that Athan has primarily been residing in the PGM's home with the father and the paternal aunt for over a year to not be a significant factor in my decision.

(c) 24 (2)(c) the ability and willingness to provide the child with guidance and education

[122] The father also relied heavily on what he, in effect, said was his major strength and a major weakness of the mother. He said that he had a university education and would be focused on ensuring that Athan had every opportunity in life to succeed. He implied that the mother's lack of formal education beyond high school in Trinidad meant that she would not be so well equipped to assist Athan.

[123] The father also referred to his work ethic and his record of success in multi-tasking. He could manage a company in different time zones and still ensure that Athan was well cared for by excellent organization and time management. He referred to the fact that he took the initiative to find and register Athan in pre-school and he had attended every doctor's appointment that he was made aware of.

[124] The mother said that before December 22, 2017, she was almost completely responsible for all of Athan's needs. She had always taken care of his doctor's appointments. She said the father demeaned her after the separation by assuming that she had not, or could not, take care of Athan's needs. He went to the doctor's to see if the immunization records were there rather than just accepting that she took care of it. He sent her texts about what Athan should eat and wear. She said the father was very controlling and was unnecessarily detailed in his demands of her. She admitted not immediately responding to some text or email inquiries about Athan because she knew what to do for Athan and she felt that she did not need to explain it to the father.

[125] I find that both parents are equally capable of providing Athan with guidance and education. I find that consistent with their respective personalities, they will likely go about doing this in different ways. The father is very goal oriented and focused on excellence and he may be more likely to inspire the child but there also may be a risk that he will push the child to the point where Athan will feel undue pressure. The mother appears to have a much more relaxed parenting style. She may be less likely to cause Athan to test his limits but also less likely to put Athan into situations that he is not ready for.

[126] The father has been more consistent than the mother in documenting his issues and ensuring that the mother has all relevant information about Athan. It is difficult to know the degree to which he will continue to do this once the litigation is over and he does not have the ongoing advice of his counsel. The mother has failed to respond to messages in a timely way and failed to provide information that she should have provided, i.e. where and with whom she was living when she was seeking access. The mother did have reasons to feel that the father was overbearing and controlling at times. No parent wants to be told how to feed or clothe their child. The lack of trust the father had in the mother's basic ability to keep Athan safe and secure was unwarranted. Both parents made unsubstantiated allegations about the other's ability to care for the child. The mother said that the father had picked the child up and swung him around. She also stated, in her desperate attempt to get Athan back, that the father posed a risk to the child. The father said that the mother was unable to cook for the child and unable to ensure his safety. Both of them knew better. I find that at various times both parents were prepared to do, or say, almost anything about the other to improve their chances and diminish the other parent's chances in this litigation. I find that over time they may develop the respect that they should have for the other's role in caring for Athan.

(d) 24 (2)(d) the plan proposed for the child's care and upbringing

[127] Despite the high conflict nature of this litigation both parents have similar plans for Athan. Both agree that Athan needs to be in pre-school for the socialization it will provide, particularly since neither of them live in households with any young children. Both are interested in having him involved in activities-the mother registered him for swimming, the father for gymboree. Both practice their Hindu faith and attend their respective temples regularly. Both respect other faith traditions and want Athan to enjoy the cultural aspect of events like Christmas. Both parents have close relationships with their respective mothers-the father lives with his mother and the mother speaks to her mother in Trinidad frequently.

[128] I find that while their personalities are quite different their values are not. One of the factors that may have made this litigation so intense is that both parents feel the need to have Athan with them all the time. They have not learned how to properly share time with him.

(e) 24 (2)(e) the permanence and stability of the family unit with which it is proposed that the child will live

[129] This litigation began when the father thought the mother was a flight risk. Ms. Deokaran is still required by court order to hold onto the mother's passport. I have found that the father's concern on December 22, 2017 was warranted given the information known at the time. The mother has now been in Canada for over five years and she is about to be a Canadian citizen if she is not one already. Still, there is some doubt that the mother truly has full time employment. She is very close to her family in Trinidad where she lived until she immigrated to Canada.

[130] The father has been living with the PGM since the separation but at that time he was just about to move to NYC. He works for a U.K. company with a significant presence in the U.S. He has gone to great lengths, with an employer who clearly values his abilities, to be accommodated in a different position based out of Toronto. He has taken a significant pay cut to remain in Brampton. The father has shown a willingness to move to SK and to NYC. He is not in a romantic relationship and the only reason he still lives in Brampton is because he wants custody of Athan.

[131] A good deal of the conflict in this file began when each parent thought that the other would take their child away from them. I find that both parents are committed to living near Athan. Objectively, they should now feel secure that the other will not remove the child from them but I will make an order that delineates the boundaries of Athan's primary residence and I shall provide that neither parent shall take Athan out of Canada without providing the other with a copy of their return airline ticket.

24 (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

i. his or her spouse

[132] There was a great deal of evidence led in this matter as to the alleged violence and abuse committed by the father against the mother. The only contemporaneous third party information put before the court were the notes from Envision Counselling services.

[133] The counselling notes show that there were problems in the party's marriage from the time that the mother came to Canada. I find that she was somewhat ambivalent about whether she wanted the marriage in the first place. She stated that she did love the father when they were married. However, it appeared that she felt she had been convinced that everything would work out really well if she immigrated to Canada. The reality fell far short of her expectations. Rather than living in the GTA or another large centre she felt isolated in a small rural community. She appeared to be lonely and depressed and the counsellor was a lifeline. Initially the mother was just looking for someone to talk to but by August 25, 2017 when she personally attended at the counselling service, the mother felt that if she did decide to leave her marriage it would be important to have her concerns documented.

[134] The notes do show that the mother's allegations of abusive behavior by the father were not fabricated for the purpose of this litigation. She had expressed this abuse at the time it happened. However, I noted that the mother's evidence at trial as to historic abuse was much more detailed, and the abuse was more serious, than was originally reported. There was one incident of physical abuse reported to the counsellor. It was serious in that the mother was pregnant when she stated she was dragged by the father into a room. She did call 911 which indicated that she was afraid. The fact that when the police arrived she minimized what happened as a "misunderstanding" does not mean that the incident did not occur. It is common for spouses to recant allegations. In this case, the alleged perpetrator was a general manager of a large employer and well liked in the community. It is understandable that the mother might have felt that she could not proceed with criminal charges against him when she was unemployed and pregnant with his child. Though, I do note that when recounting events at trial, the mother said she was pushed up against a wall and slapped as well as being dragged. She felt safe with her counsellor, yet she did not mention being slapped. This point together with other testimony suggested that the mother, consciously or unconsciously, exaggerated the use of physical force by the father. In the same way, the abusive language allegedly used by the father was said to be much worse and more frequent in the trial testimony than it was said to be in the counselling notes. The mother said, at trial, that she never wanted sexual intimacy with the father but that he would pin her hands down and rape her. She did not mention any sexual abuse to her counsellor at the time.

[135] The father denied ever using abusive language or yelling at the mother. This is difficult to believe. The father had a very busy and responsible job. He had concerns from the time that the mother arrived in Canada as to her commitment to the marriage. He may have been influenced in this regard by his sister, with whom he is very close, who told him that the mother must have been unfaithful to him in Trinidad.

[136] The father is a very disciplined and organized man who was rightly proud of his educational and employment achievements. He knew what he wanted and worked hard to get it. The mother was clearly unhappy and emotional. By her own account to her counsellor, she did not feel motivated to do anything at times. Both parties admitted that there were some happy shared times between them including their 2015 trip to Trinidad. I also find that the mother was unhappy most of the time and the father appeared to be trying to convince himself that everything was fine, despite all the evidence to the contrary.

[137] I do not believe that the mother would have contacted the counsellor and completely lied about the father's comments to her and the times that he got frustrated and upset. I think it is likely that the father did say some very negative things to the mother. I also think it is likely that at the trial the mother exaggerated what happened. I find that the counsellor's notes are a more accurate representation of her fears and concerns than her trial testimony which sometimes appeared to be intentionally overwrought.

[138] The mother said she went to a women's shelter, rather than her own father's home, because of a death threat by the father made over the phone from NYC when she was staying with the PGM. It is likely that the father became very stressed over the fact that the mother did not want to go to NYC. The plan had been in the works for months. The texts sent back and forth at that time do not contain threatening language. It is likely that the father expressed frustration and perhaps anger and he may even have felt quite desperate about the fact that his carefully organized life was falling apart. However, I am not prepared to accept that the father threatened the mother's life in the manner she described. There was no police report regarding such a threat even though the mother would have had assistance in contacting the police while in a women's shelter.

[139] On the totality of the evidence, I find that the father likely became angry and yelled at the mother when they lived in Oxbow. I do not find, on a balance of probabilities, that there was any sexual abuse and while I was very concerned with the allegation by the mother that she was dragged from one room to another, I do not find any other credible evidence of physical abuse. Since the separation on December 22, 2017, there have been no reported threats and no police reports until the Christmas party incident of December 8, 2018, which is still before the criminal court.

ii. the child

[140] There were no credible allegations that either party abused the child. The mother signed an affidavit on or about December 22, 2017 in which she alleged that the father was a risk to the child. Her one year old child had just been taken from her by the police. She was desperate to get him back. Her only other evidence was the father's alleged rough play with the young child and his comments that he wanted to ensure that his son did not grow up to be a "sissy". The statement in the affidavit and the allegation of being a little rough with Athan is not consistent with any other evidence including the evidence of Ms. Pullan from the OCL. Ms. Luibukka from the PCAS said despite the high conflict between the parents and the tense exchanges the child showed no evidence of emotional distress.

Custody options

[141] I conclude from my analysis of the evidence in light of the s. 24 factors that both parties are competent parents. Both of them could be a good custodial parent of Athan. He would be well looked after and nurtured in each of their homes and he would be given a full opportunity to succeed in life.

[142] I also conclude that joint custody is not an option in this matter. Neither party sought a joint custody order. Ms. Pullan, who delivered her report on May 30 th before much of the serious conflict began, recognized that one parent had to be the custodial parent.

[143] In Kaplanis v. Kaplanis the Ontario Court of Appeal overturned a joint custody finding and Justice Weiler stated for the court:

[10] As in any custody case, the sole issue before the trial judge was the best interests of the child. The fact that both parents acknowledged the other to be "fit" did not mean that it was in the best interests of the child for a joint custody order to be made….

[11] The fact that one parent professes an inability to communicate with the other parent does not, in and of itself, mean that a joint custody order cannot be considered. On the other hand, hoping that communication between the parties will improve once the litigation is over does not provide a sufficient basis for the making of an order of joint custody. There must be some evidence before the court that, despite their differences, the parents are able to communicate effectively with one another. No matter how detailed the custody order that is made, gaps will inevitably occur, unexpected situations arise, and the changing developmental needs of a child must be addressed on an ongoing basis. When, as here, the child is so young that she can hardly communicate her developmental needs, communication is even more important. In this case there was no evidence of effective communication. The evidence was to the contrary.

[144] Ms. Pullan recommended that the mother be granted custody. She made this recommendation based upon her finding that there was a clear power imbalance in the relationship due to the father's abusive and controlling behavior. Ms. Freedman was able to demonstrate that this conclusion of a power imbalance was largely based upon the mother's self-reporting as there was no other evidence that the father was abusive.

Abuse and control

[145] I find that there is a distinction in the matter between evidence of abuse and evidence of control. I have set out above that I find the contemporaneous notes taken by Ms. Gunderman were accurate. The Christmas party incident is still before the court. The exchanges of the child between the parties since the separation have been tense and very uncomfortable for all involved. I find that with the end of the trial, it is likely that exchanges will much less fraught with tension as the perceived need to gather evidence (they both videotaped exchanges) will have ended. I find it is important to state that my decision with respect to custody is not based upon the fact that I find that the mother or the child has an objective reason to fear abuse of any type from the father.

Evidence of controlling behavior

[146] The mother's evidence was that the father was controlling. She said he demeaned her, denigrated her abilities as a person and a parent and was condescending. She also said that he was unwilling to allow her to spend time with their very young son. He saw himself as the decision maker in the relationship and she was to do what he said.

[147] Once again, I find that the mother exaggerated at the trial the level of control that the father exerted over her life when they lived together. There was a great deal of evidence led by the mother about the party's relationship in Oxbow in the period before the child was even born. Much of that evidence of control and isolation was successfully challenged at trial. The mother did call her mother frequently, she did have access to a car, she did not even ask about financial documents that were freely available etc. One could argue, as Ms. Freedman did, that the mother was free to do what she wanted. The counter-argument is that whether her feelings were objectively reasonable or not, the mother actually felt isolated and alone-that is why she talked to a counsellor surreptiously for so long. Controlling behavior is often nuanced and subtle. The evidence that is most relevant is what the father said or did after the child was born. The mother said that he continued to act in the same pattern that had prevailed from the time she came to Canada. The decisions to move

[148] The parties were married in March 2012. At the time the father was living in the GTA. He started the mother's immigration process. In 2012, or early 2013, he accepted a job in Oxbow, SK. There was no evidence that he even discussed with the mother the impact of this move from a huge city to a small town. He bought a house there that remained in his name alone throughout the marriage. The father then changed jobs and in 2017 got the offer to go to NYC. According to the mother's evidence, he said he would move with Athan whether or not she came with him. Although, the father was completely unaware of it, the mother was actively considering leaving. The father was determined to accept this position and may have missed, or ignored, signals that the mother remained very unhappy, although he did tell Ms. Pullan that he was aware that there were problems in their marriage.

[149] The father did take the mother and Athan to NYC. It was not his fault that the moving process took too long. I find that the father was oblivious to the mother's concerns that she felt shut out of all decisions which she thought were being made solely by the father in consultation with his sister.

The parties' initial post–separation plans

[150] The period from December 22 to at least January 25, when the first access motion was heard was chaotic. Neither party was settled. The father had his career/life plans derailed and he was scrambling as to what to do. The mother did not have a job or stable housing. What was clear though was both parents wanted to have custody of Athan. The child was only 14 months old at that time and there was no doubt that he had been raised primarily by his mother until December 22. The court order made on December 28 and the one made on January 25, made it clear that this young child needed to see both of his parents frequently. The mother had non-overnight access three days a week. Ms. Pullan began her work in March 2018 and concluded it at the end of May. She set out the parties' positions at the beginning of her report as follows:

Mr. Singh is seeking sole custody of Athan and would like to bring him to New York City. He says he willing to fly Ms. Singh to New York once a month for access time with Athan alternatively he is willing to bring Athan to Toronto once per month for access time with Ms. Singh

Ms. Singh is seeking sole custody of Athan. She says that she is willing to share custody of Athan with Mr. Singh evenly so that Athan will live with them on alternate weeks.

[151] At some point after the OCL report was issued, Mr. Singh withdrew his request to have Athan move to NYC. At trial, he sought an order that the mother have access every alternate weekend and one overnight a week. Nevertheless, the fact that the father took the position that he did for so long is instructive. One of the key components of custody is the ability to understand the child's needs. The father proposed bringing a less than two year old child to another country and flying the mother in to see him once a month. It is easy to see how such a proposal met the father's desire to advance his career with this promotion and still see his son most of the time. How the father could have thought that this position was in the child's best interests is another question. The fact that he would maintain this position some four to five months after he had advice from experienced legal counsel and the fact that he thought the OCL clinical investigator might endorse it, is an indication that the father did not value the mother's role in the child's life. He must have thought that he was clearly a superior parent and that the child did not really need his mother in his life. His access proposal was not only unreasonable to the mother, it was grossly unfair to the child. The father clearly equated Athan's interests with his own interests.

[152] Notwithstanding that she felt controlled and abused by the father, the mother has never taken a position other than that Athan should spend equal time with each parent. It is true that her expressed plan of a week about time share was not objectively appropriate for such a young child with no experience of sharing time in different homes but perhaps the mother foresaw the battle over access exchanges that ultimately developed.

The father's unwillingness to share time

[153] As noted above, the father amended his position after the OCL report was released. From that point forward, with one notable exception, he followed the court orders, and it appears the instructions of his counsel, to the letter. I find that particularly in the period after August 2018, the father and his counsel were able to take advantage of the mother's increasingly desperate attempts to see her son more.

[154] The mother accepted all of the recommendations of the OCL report and thought that the father should do so as well. In some sense, it appeared that the mother and her counsel saw it as bad faith, if not unethical, for the father to ignore changed circumstances and the recommendations. The father had no legal obligation to accept the OCL recommendations and he filed a formal dispute of the report. The father's position was to adhere exactly to the terms of the May 16 order, and with few exceptions, to only make an adjustment to give the mother a bit more time if an equal adjustment could be made in his favour. Given that the father had Athan overnight, 13 out of every 14 nights, this rigid position was not reasonable.

[155] Unfortunately the very aggressive approach taken by the mother's counsel, combined with a failure to provide basic information to support her demands, made it relatively easy for the father to maintain the May 16 schedule. This is best shown by what happened when the mother found a daytime job. She asked the father in a polite email on September 12 to allow her to pick-up Athan at 4:00 p.m. and return him at 9:00 p.m. as she was starting her day shift the next day. The father very reasonably responded that 9:00 p.m. was too late so he asked for an 8:00 p.m. return. On September 13, Ms. Freedman emailed Ms. Deokaran to tell her that her client had agreed on a couple of days to do a without prejudice adjustment from the 10:00 a.m. to 5:30 p.m. (7:00 p.m. on Wednesday) mid-week schedule. She then said that her client was not willing to adjust the parenting schedule set out in the May 16 order unless he received proof from the mother's employer of her work schedule (and other details of her employment).

[156] It then appears from the exchanges that the mother continued to ask for time changes to allow her to see her son after work but failed to provide any employer's letter. This allowed the father to maintain a schedule that may have required the mother to take time off from her new job to see her son during the designated hours. I emphasize the word may because it is not clear from the mother's evidence that she had employment when she asked for the schedule change on September 12. The mother did not provide proper financial disclosure and she did not explain what happened between the time she left the Amazon job and the time she actually began full time employment.

[157] The mother finally provided an employer's letter on October 18, 2018 which stated that she started work on October 9 with the People Place staffing agency. It may be that the mother did have work on September 12 and other days leading up to October 9. It appeared that the mother thought that the father had no right to the details of her employment situation and that he should just accept her word that she was working. Viewed objectively, the father's request for a confirmation of employment was not unreasonable. If the mother had evening time with the child the father might have more day time with him but given the demands of work he could have thought that the time exchange was not a positive move for him. The father appeared to believe that the mother was lying about working in order to reduce his quality time and increase hers. However, it should be noted that the mother was not asking for more mid-week time. She simply said she could not care for Athan before 4:00 p.m. when working so she asked if she could have time after work. Her proposal was to actually reduce her mid-week time from 7.5 hours per day to 4 hours.

[158] The mother did not present her job change and increased access request well and this allowed the father to delay any changes. This was very unfortunate as once the mother was no longer working a night shift, there could have been an immediate negotiation of a new schedule with at least one more overnight on a weekend and evening if not overnight mid-week times. I understand that when the request was made in September, the parties expected to be at trial in November but that did not mean that they should have given up any opportunity to make a more equitable schedule.

[159] The father may have had some justification for not changing the schedule until he had some proof of the new hours. However, even after the October 18 letter was sent, the father still did not agree to change the access times. I find that in this pre-trial period he saw a request for more particulars as a way to stall any change to a schedule that gave him far more time with Athan than the mother received. I note that when the mother sent a letter with a detailed request for Christmas, the child's birthday and her birthday access, the responding letter dated November 6 asked for confirmation of her vacation schedule and a letter to show that she continues to work 7:30 to 3:30 p.m. This letter for confirmation was sent less than three weeks after the mother's letter setting out her employment times.

[160] Both sides can be faulted for the failure to expand access to take into account the mother's new job. The mother and her counsel could have sent all of the information requested in a timely way. On the other hand, the father was able to benefit in terms of the division of time sharing when the mother had a night shift. She obtained a day shift, provided proof and she was ultimately left with having to miss work to see her son. She became increasingly frustrated and this file descended into a flurry of motions served by her counsel.

[161] As noted above, the mother did not see her son on either Christmas 2017 or 2018. In 2017, she refused to go to his home for access at a time when she was staying in a women's shelter, and in 2018 she insisted on an exchange at a police station, after criminal charges were laid against the father, which the father stubbornly refused to accommodate.

[162] The most significant failure of the father to consider the child's best interest by sharing time with the mother occurred during the November NYC deception in 2018 and the failure to immediately offer a block of time to the mother and MGM when the latter was visiting in late November. Most of the time, the father justified his inflexibility on the mother's own failures to be consistent and provide information. However, the impression left was that the father expected the mother to account for all of her time to justify having her son with her. The father felt that the mother could not be trusted to take the child unless the father was frequently updated as to the exact details of her schedule.

The mother's willingness to share time

[163] The simple reality of this matter is that the mother went from being Athan's primary parent to having her son taken away and having no contact with him for a week. She obtained short supervised visits and then day visits but did not have an overnight with her eighteen month old child until June 23, 2018, approximately six months after the child was apprehended from her care. I have set out the reasons for this above and there is no doubt the mother bears some significant responsibility for what occurred prior to the delivery of the OCL report.

[164] The May 16, 2018 order was consented to just prior to the OCL report being released. The mother agreed with the OCL's recommendations. For whatever reason, she was unable or unwilling to find a daytime job until September 2018. When the father was unwilling to change the schedule to recognize the fact that she no longer worked nights and when he was unwilling to agree to an equal sharing of holiday time, she became understandably frustrated.

[165] Notwithstanding her very firm view of the father as having been abusive to her throughout their relationship, the mother has always been willing to share equal time with him. She always invited the father to attend at doctor's appointments. The pre-school issue was fumbled badly by the mother but her resistance was all about the fact that she was not granted early evening time with her son. It appears that the failure to adjust the schedule once she got a day shift meant that the mother either missed work or rearranged her hours in order to spend her court ordered mid-week time with Athan.

[166] On the surface, it appeared that the father was better at sharing information. His emails, and the correspondence from his counsel, was generally more focused and detailed. It must be noted thought that his emails displayed a lack of trust in the mother's abilities to do anything for the child. He told her how to dress the child, what to feed him, queried whether she had attended to his immunizations, and questioned her decisions throughout.

[167] Despite her anger and bitterness with the father, the mother did not question his ability to care for Athan safely. It is true that the mother knew where Athan was living with the father and he had less information about her circumstances. However, he knew or should have known, that the mother was a competent parent and his frequent demands for proof of this, or that, would have been irritating at best and seen as controlling at worst.

Case law

[168] This matter falls under the CLRA but the maximum contact principle set out in the Divorce Act has been found by numerous cases to apply to matters decided under provincial statutes. The Supreme Court of Canada affirmed the principle in the seminal case of Young v. Young, 1993 4 S.C.R. 3 (S.C.C.) The maximum contact principle can only be respected insofar as it is consistent with the best interests of the child. In cases where both parents are individually quite capable of caring for the child the willingness of a parent to encourage and support the child's contact with the other parent is clearly a significant factor in the custody decision.

[169] In Andrade v. Kennelly, Justice Harvison-Young made the following comments:

[77] In Rogerson v. Tessaro, (2006), 147 A.C.W.S. (3d) 821 (Ont. C.A.), the Court of Appeal upheld the trial judge's decision awarding custody of the parties' children to the father. The facts in Rogerson bear a remarkable similarity to those in this case. There, the mother, while insisting that she supported the children's relationship with their father, had actively thwarted it, and ultimately made a unilateral decision to move. At trial, Lafreniere J. changed custody to the father on the basis of the maximum contact principle. It was true there, as in this case, that the children were more closely bonded with their mother than their father. Lafreniere J. held that this was hardly surprising in light of the mother's diligent efforts to exclude the father from their lives. She held, on the facts that the father would support the children's relationship with the mother while the mother would not support the children's relationship with the father. Accordingly, she found that by awarding custody to the father, the children would enjoy maximum contact with both parents, which was in their best interests. The trial judge found that the mother was unable to consider the best interests of the children as far as their relationship with their father was concerned.

[170] Both Andrade and Rogerson were referred to in Attia v. Garanna 2010 ONSC 1261. In that case, Justice Richetti found that:

251 the Father was ready willing and able to share his parental role with the Mother in a significant way….on the other hand the Mother had sought to minimize the Father's role in the Children's lives and continues to propose a reduced role and access to the Father….

252 I conclude there is a greater likelihood the Father will actively support a generous and liberal access to the Mother while there is no doubt the Mother would not support any such access to the Father.

[171] In the case before me, it is the mother who has had her time with the child minimized. The mother proposed equal time sharing. By way of contrast the father had always taken a position that he should have most of the time with the child. Granted his position for trial was to share alternate weekends but he began this litigation by offering the mother a day a month with the 18 month old child.

[172] Attia was a high conflict case and Justice Richetti found fault with the conduct of both parents. He also found them both to be competent parents and wrote:

254 There is no reason why one parent should have time with the Children more than the other parents. Both have made homes for the Children and have family support in their homes or nearby….

256 In these circumstances there is no reason a shared equal residency for the Children would not be in their best interests. The Children will reside with each parent on a week about basis.

SUMMARY

Custody designation

[173] I find that the mother is much more committed than the father to sharing time with, and information about, Athan. I have considered all of the evidence and all of the relevant factors set out in s. 24 of the CLRA. Ultimately, I conclude that the mother should be the custodial parent. I am confident that the mother will not attempt to minimize the father's role in the child's life. I am not confident that the father will do likewise. From the outset of the separation, the mother has recognized that Athan deserves the active involvement of both his parents in his life. She did not waver from that position even when this matter became hotly contested and both parents were desperate to find ways to prove to this court that they should be designated as the custodial parent.

Time sharing schedule

[174] I accept the recommendations of the OCL with respect to the appropriate time sharing regime that should be in place. When the 2-2-3 schedule was proposed, Athan was just eighteen months old and the mother had not had any overnight time with him for five months. It is important for very young children to see both parents quite frequently. A week on/week off schedule would not have been good at that time. Now Athan is two and has had overnight visits with his mother at the same home for nine months. If Athan were currently in daycare, I would make a 2-2-3 order as the exchanges would not be directly between the parties or their designates. Athan is not in daycare or pre-school at this time and I recognize that he may not be able to be placed in pre-school for some period of time given the wait lists that prevail. This means that the preferred option of drop offs to, and pick -ups from, a pre-school may also not be available for some time.

[175] I will order an alternate week regular time sharing schedule. Athan can be exchanged between the parties or their designates on Friday at 6:00 p.m. Once Athan is in daycare or school, the parent who will begin their week will pick him up from daycare/school on Friday between 4:00 and 6:00 p.m. This schedule will minimize exchanges and allow Athan and the parents to spend a block of time with their son without having to interact with the other parent or their family.

Exchanges

[176] I will not continue any access exchanges at a police station. They have not worked. Both parties and their designates have alleged that the other party has harassed them just outside the station. As Athan becomes older, he will question the need for police involvement. As there is a bail condition preventing the father from contacting the mother and as the PGM and the mother do not get along, I will provide an alternative to exchanges at a residence. There is a public library just behind the current exchange point of the 21 Division police station. The parties have both shown an ability to get to the Bramalea City Centre to exchange. A library is a quiet place and it should act as a disincentive for either party or their designates to raise their voice or act inappropriately. Over time, Athan should associate the library as a familiar place and it is much better that this young boy feel familiarity with a library than a police station. That said, the police station is very close should an incident occur.

[177] I find that as exchanges will have to be between the parties or their designates for some unknown period of time, it would be best to reduce the exchanges to once a week. Athan needs to be removed from the conflict. He needs to be settle in to one parent's home without him or his parents becoming anxious about an imminent transfer. Once he is in pre-school, the parties will not need to exchange him directly at all except on holiday times when pre-schools and then schools will be closed.

Pre-school/Daycare

[178] As the custodial parent, the mother will make the decision as to which pre-school Athan attends but she may only do so after full consultation with the father. It is apparent to me that this may be difficult initially so I will set some parameters around it.

[179] The parties had both agreed that Songbirds Montessori pre-school was a good option. They have a number of locations within Brampton. The mother shall take steps to determine if there is an opening at any of their locations that are no more than 20 minutes' drive from both of their residences. The mother shall advise the father if there is such availability and she shall send to him information about the school (i.e. the website) and proof of its distance from their homes (i.e. Google Map information). The mother may register the child in a Songbirds Montessori location as soon as she finds availability. If the mother cannot find such a Songbirds location with space available for the child she shall select another pre-school or daycare centre as close to 20 minutes from each party's home as possible.

[180] I find that having Athan in any licensed child care centre as soon as possible is more important than the relative merits of each possible centre. The centre is needed to facilitate access exchanges as well as provide care and socialization for the child. The child shall stay at the chosen daycare centre until at least August 31, 2019 to provide some stability. After that, the mother may not register the child in a new daycare centre without providing the father with at least fourteen days' notice of the planned change. The mother must consider the father's input before she registers the child and answer any questions that he poses about her choice.

[181] I will follow the OCL recommendations with respect to holiday time with some minor changes. The parties can celebrate Athan's birthday with him on the years that it lands on their week and the same can apply with respect to their own birthdays. March Break can follow the regular schedule until Athan is 4 years old and in junior kindergarten. These changes are intended to minimize changes to the regular schedule and therefore minimize exchanges. It is to be hoped that over time both parties will be able to trust each other and develop some flexibility in sharing time with Athan so that the child does not miss out on important family events.

CHILD AND SPOUSAL SUPPORT

The positions of the parties

[182] Both parties sought a final order for child support. The mother had not paid any child support to the father notwithstanding the fact that the child had been in his primary care since December 22, 2017. No temporary order for child support had been made.

[183] The mother sought an order for spousal support. The father did not contest her eligibility for same. He has made voluntary payments of spousal support in the amount of $639 per month since June 1, 2018.

[184] In her submissions, Ms. Deokaran stated that if the court granted her request for an equal time sharing order, it would be appropriate to set off the Child Support Guidelines (CSG) table support to be paid by each party. She did not refer to any of the other sub-sections of the shared parenting provisions of s. 9 of the CSG.

[185] Ms. Freedman stated that the mother should have paid child support to the father beginning January 1, 2018. She sought a time sharing order that would have Athan with the father more than 40% of the time so her position was that the mother should pay table child support to the father for Athan, pursuant to s. 3 of the CSG. Ms. Deokaran noted that the mother was not employed until March 2018 so there should be no child support for the first three months.

[186] Ms. Deokaran filed DivorceMate support calculations in which she set out a minimum wage income of $29,120 which was consistent with the mother's evidence that she earned $14 an hour. She did two calculations. In one, she set out $174,920 in employment income and $10,800 in untaxed rental income (for his rental of the house in (Oxbow) and in the other she set out the father's income at $292,688 by adding in another $45,900 of untaxed income. She sought a spousal support order of $6,440 per month.

[187] Ms. Freedman filed a DivorceMate support calculation that imputed the mother to an income of $36,000 per year and set out the father's income at $135,000, minus a loss on his house rental of $2,245 per year. The spousal support calculation for a custodial parent resulted in a high range of $637 per month. Ms. Freedman submitted that the spousal support should terminate four years from the date of separation.

The father's income

[188] As noted above, the father began working for his current employer Havwoods in February 2016. It was an unusual situation in that he was employed as the North American manager of a U.K. company. He was based in Canada but he was paid in U.S. funds. He was the manager of 10 employees. His employment contract was not signed until April 2016 but it provided that he would be paid $130,000 and receive a $10,000 car allowance and a company cell phone. When the father agreed to move to NYC, the agreement was that his salary would be exchanged dollar for dollar so that he would earn $130,000 USD. Havwood's chief financial officer Andrew Barnes filed an affidavit and was cross-examined via meeting software from his office in the U.K.

[189] The father's income is not difficult to determine. It was $140,000 USD (including car allowance) in the period when he was responsible for the U.S. sites and when it was expected that he would move to NYC to assume responsibility for the flagship Manhattan showroom. Once it became clear that he would be remaining in Toronto, the father was offered the job of managing the planned Toronto showroom while still retaining some responsibility for U.S. operations but with much less travel. His new contract provides for an income of $135,000 beginning in March 2019 which is significantly lower due to the limited responsibilities. There has been no car allowance since the move but he did receive $5,000 for a vacation in 2018.

[190] The mother also added in to her calculations the full amount of the $900 per month that the father receives on the lease of the Oxbow, SK residence. She did not deduct any expenses. The father claims a loss but I will disregard that and consider the rental of the property to pay for the cost of the property.

[191] If the father had moved to NYC, he would have received money to lease a house for one year. As he did not move, the money for the lease was not advanced. One of the mother's calculations added in $45,000 in untaxed money. There was no evidence that the father received any other money. Even if I misunderstood the evidence and the father did get money he did not need for a lease, it would make no difference to my calculations for spousal support and the father did not have a child support obligation at this time.

[192] Mr. Barnes responded to questions about the father's frequent travel to NYC by stating that now that the business is more settled, and is finally showing a profit, there was less need for travel and active leadership of the U.S. team. He explained that there was a metric that determined the father's bonus based upon company profits. To this point, no bonus has been paid out as the company just started turning a profit within the last three months.

The mother's income

[193] The mother had worked in Trinidad before immigrating to Canada in 2013. In 2014, she obtained a job as a receptionist in Oxbow, making $19 an hour. That job ended in 2015 when the company downsized and then the mother became pregnant. She did not work again until after the separation when she obtained a job at Amazon in March 2018. She stated that she earned a wage of $14.40 an hour but she did not provide any pay statements and she did not file a Financial Statement as required. This meant that the only evidence presented of the mother's income in 2018 and 2019 was the letter that she obtained in October 2018 and the pay statements that she provided. The letter said she worked on a full time basis but the pay statements showed approximately 16-20 hours a week. This was not directly explained but the mother's evidence regarding her access did show that she was missing work to exercise access. She said she made up the time but it was not clear as to how she did that.

[194] Ms. Freedman said that as the mother had failed to properly disclose her income and as she was capable of earning more than minimum wage, the court should impute an income to her of $36,000 per year. Based upon that imputation and the fact that no child support has been paid, Ms. Freedman said the court should find that she should have paid child support in the amount of $315 per month since January 2018, which leads to arrears of $4,725.

Payments made to date

[195] The father provided the mother with a bank draft for $3,000 in February 2018, shortly after the separation and then began paying $639 on June 1, 2018 and every month thereafter. The father paid for the Songbirds pre-school in January and February 2018. He wants to have the child back in pre-school and is seeking a contribution proportionate to her share of their total income from the mother. The father said that if the mother cannot afford to contribute he would pay for the pre-school and he would pay for private school if Athan were to attend there.

ANALYSIS

Child support

[196] The mother did not obtain employment until March 2018. The May 16, 2018 order confirmed that the child would remain in the primary residence of the father pending trial. While the mother had her modest income as of late March 2018, she did not receive any regular spousal support payments until June 1, 2018 (she did receive $3,000 in February). The mother had a brief period of unemployment, or perhaps partial employment, between leaving the Amazon night shift job and starting with the People Store Staffing Solutions Inc. in October. She even received one Ontario Works cheque. I am not persuaded that the mother can earn more than $14 an hour at the present time. The fact that she had a higher hourly rate in Oxbow is not really relevant as she obtained that job as the father was a manager at the Saskcar plant. There was no evidence that the mother had an opportunity to obtain a job as a receptionist in Peel. I find that the mother should be working full time and I find her income to be $29,120.

[197] I find that the mother should have paid child support at $248 per month from April 1, 2018 to March 31 2019 which amounts to the sum of $2,976. As there is no evidence that the mother has money readily available to pay this sum I will give the father a credit against future child support until the entire arrears are paid.

[198] Based upon the equal time sharing that will occur as a result of this decision, I find that s. 9 of the CSG applies. Neither party directed me to any evidence relating to any sub-section other than s. 9 (a) which is the CSG table support set off. I find that the father's current income is $135,000 which means he would pay a table amount of $1,185 per month. When the mother's $248 is deducted from this sum, the father is to pay the mother the net amount of $937 per month.

[199] As noted, I will apply a credit to the father for the mother's notional child support arrears. The parties will start to implement the equal time sharing part of this order in April 2019. I find the father should not have to pay the full amount of the s. 9 set-off for April. I find that if I delayed the father's payments to August 1, 2019 that will give a credit for part of April, May, June and July which is roughly equivalent to the child support the mother owes him.

Spousal support

[200] The father took a responsible position when he paid $3,000 in spousal support in February 2018 and $639 per month beginning June 1, 2018. He will receive no tax relief on the $3,000 payment but I will make the spousal support order retroactive to June 1, 2018, and as the tax filing deadline for 2018 has not passed, the mother will need to include the support in her income and the father may deduct it from his.

[201] I note that the father's payment of $639 per month was near the high end of the SSAG range for a custodial parent with his income. I have prepared a DivorceMate calculation, which is attached as a schedule, as neither party submitted a calculation with shared custody and the income levels that I have found to be appropriate. I find the father's income to be $135,000 without any rental losses included. I have found the mother's income to be $29,120 rather than $36,000.

[202] I find that the appropriate approach to spousal support in this matter is one that should recognize that the mother is in the early stages of returning to full time employment after a year when she primarily cared for the child and after the past year which featured all of the challenges referred to above. The mother is clearly intelligent and has a history of being able to earn more than minimum wage in an office environment. It may take some time for her to find better paying work and she should be supported at a higher level while she attempts to do so. I find that given that the parties only cohabited for four years that the support should be time limited. I find that spousal support should be paid for a further period of five years and that the said support should gradually decrease over that time frame. The gradually decreasing amount of support will give the mother a period of time to find more remunerative work and it will allow a more gradual adjustment to any lifestyle changes that may be necessary when spousal support ends.

[203] I will use the attached DivorceMate calculation and make an order that takes support from a near high end amount of $2,800 a month in the first year, down to $2,000 per month in the final year.

FINAL ORDER

Custody

1. The R. shall have custody of the child Athan Aakesh Singh, born […], 2016 and the child shall have his primary residence with her and his secondary residence with the A.

Regular time sharing

2. The parties' regular time sharing schedule shall be from Friday to Friday as follows:

a) when the child is not in daycare or school he shall be exchanged on Fridays at 6:00 p.m. in or just outside the public library at the Bramalea City Centre.

b) when the child is in daycare or school he shall be picked up from school or daycare between 4:00 and 6:00 p.m. by the parent who is beginning their week.

c) this schedule shall begin on Friday April 19, 2019 with the R. picking up the child from the paternal grandmother Jean Singh at the said library.

Holiday access

3. The following holiday time sharing schedule supersedes the regular time sharing schedule.

a) The A. shall have the child on Father's Day from 10:00 a.m. to return to daycare on Monday if that is not already within the A.'s week. Provided that the R. shall have the child at the same time on Mother's Day.

b) The A. shall have the child on Diwali every odd numbered year beginning in 2019 with the R. having Diwali in every even numbered year beginning in 2020. The child shall be picked up from daycare/school by the parent whose year it is and dropped off the next morning at daycare/school.

c) The school winter vacation shall follow the alternate week schedule provided that:

i. in 2019 and every odd numbered year thereafter the R. shall have the child with her from December 24 at 2:00 p.m. until December 27 return to daycare/school. The A. shall have the same time in odd numbered years.

ii. in 2019 and every odd numbered year, the A. shall have the child with him from December 31 at 2:00 p.m. to January 2 return to daycare/school. The R. shall have the same time in odd numbered years.

Incidents of custody and access

4. a) The R. shall immediately try to register the child in a Songbirds Montessori school that is no more than a 20 minute drive from each party's residence. If there are no openings in that pre-school, the R. shall register the child in any licensed daycare or pre-school within a 20 minute drive of each residence.

b) Once he is attending a pre-school/daycare, the child shall not be transferred to a different pre-school/daycare until at least August 31, 2019.

5. Neither party shall change the child's primary or secondary place of residence from the Region of Peel without the express written consent of the other party or court order. A party seeking to change the child's residence shall provide the other party with 90 days' notice of the planned change with full particulars of the change.

6. The parties shall use a shared parenting application such as ourfamilywizard or google calendars to exchange all important information concerning the child.

7. Both parents shall be listed as contacts at the child's, school, doctor, dentist or any other person providing services to the child. The R. shall sign an authorization permitting the A. to obtain any information that she could obtain from the said service providers.

8. a) Except in an emergency, the R. shall provide to the A. at least 7 days' notice of any health related appointment for the child. Immediately following the appointment, she shall provide the A. with a brief statement of the nature of the treatment and details of any instructions or medications given.

b) If the child should require any emergency medical treatment, the party taking the child for treatment shall contact the other party at the first available opportunity. Both parties shall be entitled to attend at the hospital or treatment provider.

9. a) The R. shall obtain and renew a Canadian passport for the said child and shall provide it to the A. for the purpose of any out of country travel. The R's counsel shall return her passport to her.

b) Neither party shall travel with the child outside of Canada prior to June 28, 2019.

c) Either party may travel with the child inside or outside of Canada on their week with the child without the consent of the other party. Provided that the travelling party must give at least 14 days' notice of the travel and shall provide the non-travelling party with the full travel itinerary, a copy of the airline tickets and the address and telephone number where the child will be staying.

d) If a party wishes to travel with the child on the other party's week with the child, written consent for such travel shall not be unreasonably refused. The travelling party shall provide at least 30 days' notice of the trip with all particulars, except the purchased airline tickets, and the non-travelling party shall within 7 days either:

i) provide a written consent on the Canadian government's online form for same or

ii) provide a detailed reason why they are not consenting to the trip and set out at least two other weeks of their scheduled time with the child when they would consent to such a trip. The non-travelling party cannot then refuse consent if the weeks provided are subsequently chosen.

iii) upon the consent being received, the travelling party shall provide a copy of the airline tickets at least 7 days prior to departure.

Child support

10. a) The A. shall pay to the R. for the support of the said child the sum of $937 per month beginning August 1, 2019 and on the first day of each and every month thereafter.

b) This sum is based upon the A's anticipated 2019 income of $135,000 and the R's imputed 2019 income of $29,120.

c) There are no arrears of child support owed by either party to the other as of July 31, 2019.

11. The A. shall pay to the R. his proportionate share of the child's expenses pursuant to s. 7 of the CSG as follows:

a) The R. must provide the A. with at least 14 days' notice of notice of her intention to incur a s. 7 expense for which she is seeking a contribution. She must provide him with the full particulars of same including proof of the total cost.

b) The A. shall not be responsible for contributing to a s.7 cost unless he receives the said notice and consents to the expense being incurred. Consent shall not be unreasonably refused.

c) The R.'s proportionate share shall be 75% of the net cost of the expense. The said proportion may be adjusted on consent in the future after the exchange of Notices of Assessment.

d) If the A. wishes to register the said child in a private school, and the R. consents in writing to this occurring, the R.'s obligation to contribute to the costs of private school shall be capped at the amount of her proportionate contribution to childcare in the year immediately preceding the said registration.

Spousal Support

12. a) The A. shall pay to the R. spousal support in the amount of $639 per month beginning June 1, 2018 and payable on the first day of each month thereafter until April 30, 2019.

b) Beginning May 1, 2019 and payable on the first day of each and every month until April 30, 2020 the A. shall pay to the R. the sum of $2,800 per month.

c) Beginning May 1, 2020 and payable on the first day of each and every month until April 30, 2021 the A. shall pay to the R. the sum of $2,600 per month.

d) Beginning May 1, 2021 and payable on the first day of each and every month until April 30, 2022 the A. shall pay to the R. the sum of $2,400 per month.

e) Beginning May 1, 2022 and payable on the first day of each and every month until April 30, 2023 the A. shall pay to the R. the sum of $2,200 per month.

f) Beginning May 1, 2023 and payable on the first day of each and every month until April 30, 2024 the A. shall pay to the R. the sum of $2,000 per month.

g) Spousal support shall be terminated on April 30, 2024.

13. Support deduction order to issue.

14. The parties may address costs as follows:

a) By April 26, 2019 the R. shall serve and file a costs submission limited to five pages double spaced, any offer to settle with an affidavit of service and a bill of costs.

b) By May 10, 2019, the A. shall serve and file a response submission limited to five pages double spaced and any offer to settle with an affidavit of service.

Reasons released April 12, 2019

______________________ Justice Philip J. Clay