Court File and Parties

Ontario Court of Justice

Date: May 27, 2019

Court File No.: 15-0636

Between:

GARY GEORGE BURGESS Applicant

— AND —

MELLISSA ANNE KILBY Respondent

Before: Justice M.G. March

Heard on: April 10 and 11, 2019

Reasons for Judgment released on: May 27, 2019

Counsel:

• John Cooke, for the Applicant
• Victoria Legris, for the Respondent

Judgment

M.G. March J.:

INTRODUCTION

[1] On January 18, 2017, the Respondent/Moving Party, Mellissa Anne Kilby ("Kilby") filed a Motion to Change with this Court. On February 23, 2017, the Applicant/Responding Party to the Motion, Gary George Burgess ("Burgess") filed his Response.

[2] Originally, the Motion sought to change the custodial arrangement for the subject children, Kyra born […], 2007 and Kyson born […], 2008. By Order of His Honour, Mr. Justice R. Selkirk dated July 4, 2016, Burgess enjoyed sole custody of the children.

[3] By December 7, 2017, Burgess and Kilby, on consent, agreed to shared custody of Kyra and Kyson. Since then, the children have been in an alternating arrangement staying one week with Burgess and the next with Kilby at their parents' respective residences.

[4] Essentially, the parties have come to a full agreement on shared custody but for one solitary issue – final decision making authority.

Summary of the Relevant Evidence

Kilby:

[5] Kilby is 32 years of age. She lives in Eganville with her two youngest children fathered by her new partner, Ray Clemen. Kyra and Kyson stay with Kilby, of course, on alternating weeks.

[6] At present, Kilby is not working outside of the home. She enjoys support in raising all of her children from her father and his partner, both of whom live some 15 minutes away.

[7] Kilby started her relationship with Burgess when she was 15 years old. At that time, Burgess was 24. She placed their separation date at May of 2015.

[8] Kilby testified about a common law union with Burgess which escalated early on from one of verbal to physical abuse. She described an incident of having a chair smashed over her face. She told no one about what occurred until years later. She was scared. The assault caused injuries in the nature of broken blood vessels in her eye, and bruising around the socket and face. She told a school counsellor that she tripped over a vacuum cleaner.

[9] On another occasion, Kilby contended that Burgess choked her multiple times and punched her in the mouth. He threw objects at her as well.

[10] After these incidents, she moved in with her father. She ultimately returned to Burgess following his disclosure to her that he had been diagnosed as bipolar. He vowed to get help. Kilby concluded it was an empty promise.

[11] Kilby described Burgess as having a violent temper and an inability to control his emotions. Burgess' outbursts, she recounted, occurred often when he was awoken from slumber by the children. She was entrusted to being their primary caregiver.

[12] Kilby recalled that Kyra was a good child. Kyson, by contrast, was a handful. By age 3, he was diagnosed with attention deficit hyperactivity disorder ("ADHD").

[13] Kilby took the lead in setting up Kyson's medical appointments, treatments and follow through.

[14] Kilby attended all of the children's parent-teacher meetings and Christmas concerts, once the children were school age. Burgess, she recollected, did not go to those types of events.

[15] By the time of separation, Kyra was in Grade 4, Kyson in Grade 3. They attended St. Michael's School in Douglas. Aside from one semester spent at a school in Petawawa, the children had to that point in time only ever attended school at St. Michael's.

[16] In the lead up to separation, Kilby had been working in Calabogie. She complained that Burgess would lock Tyson in his room for 22 hour periods. She would not challenge Burgess about this practice lest she be disciplined as well.

[17] Following separation and through the fall of 2015, the children remained with Kilby. They were in school at St. Michael's. Burgess had access to them every second weekend.

[18] In September of 2015, Burgess commenced his Application in this Court seeking to have the children placed in his custody. Kilby obtained legal aid and retained the services of a lawyer. She thought the lawyer was preparing an Answer for her. She went to one court appearance. Then over the course of time, she could not attend. She had a miscarriage in June of 2016. She fell into a bout of depression as a result.

[19] Three or four months later, she contacted her lawyer. He explained to her that her legal aid had been cancelled. He was getting off record.

[20] By this point, Kilby was living in Gatineau, Quebec. The children were still with her. She testified she was under the impression her Answer had been prepared and filed. She was surprised to learn of the Order made by Mr. Justice Selkirk on July 4, 2016 granting sole custody of the children to Burgess.

[21] Kilby attempted to appeal, but could not file one. She then proceeded with her Motion to Change.

[22] Kilby lamented that the situation for her did not improve post-separation. Burgess would want to know who she was with. He would threaten to come to her house and kill her in the night. Apparently, he told the children as well that he was going to murder her and her new partner, and burn them naked.

[23] Kilby explained that FCS became involved when the children mentioned at school that Burgess punched her in the mouth. Police ultimately charged Burgess. He entered into a peace bond in the midst of trial. He subsequently breached it and was charged with uttering threats. He received a conditional discharge and a 'no contact' order. The animosity also led to Kilby's new partner being charged with uttering threats. A peace bond resulted for him as well.

[24] At present, Kilby related that the children attend Holy Name School in Pembroke. They are not doing as well as when they were at St. Michael's, where they were A and B students, but their grades are improving. Recently, Kilby took Kyra to "Emerging Lines." Kilby discovered that Kyra has some learning disabilities, particularly in math. She also has anxiety issues. An IEP ("intense educational plan") was set up for Kyra as a result. Recommendations were made as well that she see a psychologist and a tutor. Kilby was frustrated that she had no access to school records as a non-custodial parent through the course of July 4, 2016 to December 7, 2017. Kilby did not have a say in the children's enrolment at Holy Name.

[25] When Kilby began to spend more time with Kyra again, as her mother, she noticed Kyra's mental health was suffering. Her daughter was having self-image issues. She was crying, depressed and easily upset. Kilby wanted counselling for Kyra. Initially, Burgess would not provide his consent, but eventually he did. Through a Metis group with which Kilby has an affiliation, Kyra is now receiving counselling.

[26] With respect to Kyson, Kilby explained that she would commonly not get his ADHD medication on her access weekend, when custody of the children switched to Burgess. Kilby did not know the specialist who was responsible for prescribing and adjusting his medication. Ultimately, she brought Kyson back to see his original specialist, Dr. Gfellar. Kyson's prescription was changed to Concerta over time. He is doing much better since. He is not as thin. His grades are improving. He does not have headaches anymore.

[27] Burgess wanted to attend an appointment with Dr. Gfellar. Kilby would not agree to both Burgess and she meeting together with Dr. Gfellar. She maintains she is still afraid of Burgess. She would not want to be alone going to her car when Burgess is around.

[28] In the fall of 2018, FCS became involved with Kyra and Kilby again. Kilby took Kyra's bedroom door away at her residence in Eganville. It was punishment imposed by Kilby for Kyra's repeated slamming of her door. There was also an allegation that Kilby slapped Kyra's mouth. Police became involved to investigate. No charges were laid.

[29] Kilby explained that she did not slap Kyra's face. As a form of discipline, Kilby testified that she slapped Kyra on the bum.

[30] Kilby clarified, in terms of the litigation, that although she had originally sought sole custody, she was now content with the current, 'week about' arrangement. She nevertheless would prefer to have final decision making authority on matters concerning the children's medical care (including their mental health) and their education. She felt that Burgess would not communicate or compromise on any proposal she made for the children on those subjects. Instead, everything was a fight. She could not understand why Burgess was always so reluctant to share information. Nor would he engage in seeking out the help the children needed.

[31] On the subject of schooling, Kilby complained that her responsibility for transporting the children from Eganville to Pembroke was a hardship. She would prefer to see the children return to St. Michael's. Alternatively, if they stayed on at Holy Name, she would want Burgess to assist with the children's transportation to and from school. He is vehemently opposed to offering any such help.

[32] As far as activities go, Kilby is aware that the children attend the Boys and Girls club in Pembroke in their father's neighbourhood. Kilby cannot facilitate a daily attendance at the club, when the kids are in her care.

[33] Kilby pointed out that Kyson has an interest in hockey, and Kyra in dance. Both would require commitment for transportation. Both are quite costly. However, Kilby has not had any discussion with Burgess on those topics recently.

[34] It was Kilby's assessment that the children were doing well in her home. She conceded that the children were fine in Burgess' home as well. The challenging issues were his unwillingness to share transportation responsibilities for Kyra and Kyson, and the unreasonable stance he would take on important decisions to be made regarding their health and education.

[35] Under cross-examination, Kilby conceded that it was the recommendation of the Office of the Children's Lawyer ("OCL") in a Report dated August 30, 2017 that the children should remain in Burgess' custody. She firmly disagreed with that proposal. She felt it would not be in her children's best interests. She denied as concluded by the Report's author that she lacks "…insight, responsibility and willingness to acknowledge accountability for her actions."

[36] When it was pointed out to Kilby that a joint investigation by FCS verified that Kyra was slapped in the mouth three times by her, after Kyra challenged her mother about speaking ill of Burgess, Kilby concluded that Kyra was lying about where she was slapped, and the number of times. Kilby clarified that the concurrent FCS and police investigation must have found otherwise, as no charge was laid. She maintained that there were circumstances where a slap on the bottom from parent to child would be justified. On the occasion in question she slapped Kyra on her bottom, because the child was yelling and using foul language. Kilby was adamant that she has the right to use reasonable force as a parent disciplining her child. She gestured that all she administered to Kyra in any event was a light tap.

[37] Kilby concurred with the suggestion she was a good advocate for her children. She was going to make sure Kyra received counselling. She contacted the school board and spoke to the Superintendent when Burgess resisted in giving his consent. She regretted for Kyra's sake that it was not provided sooner. She was determined that Kyson resume his visits for treatment and observation by Dr. Gfellar. Burgess, she insisted, was never interested in those discussions. She continues to worry about follow through by Burgess in terms of medical recommendations and appointments made for their children.

[38] On the subject of the children's education, she agreed that Kyra and Kyson have been attending Holy Name School since September of 2016. By June of 2019, they will have completed three years there. Nevertheless, she countered that the children had been at St. Michael's virtually the whole of their school age years before that. Depending on the children's views, she would consider enrolling them at St. Michael's again. She asserted that a 45 minute drive one way to get Kyra and Kyson to school from her home is not easy on them. She wants their wishes to be weighed regarding where they want to go to school, but it was in her interest, and what she assessed as in the children's best interest, to move them to St. Michael's.

[39] Kilby denied that the problems in her communications with Burgess is a "two way street." She insisted she reaches out to Burgess. He does not want to co-operate especially in respect of the transportation for schooling and extracurricular activities.

[40] Kilby rejected the suggested that a solution could be found through parallel parenting. Her desire for information from Burgess would continue to be stymied. Issues of medical care and education for the children ought to be her domain. She vowed to keep Burgess updated, as well as to take Kyra's and Kyson's views into account.

Burgess:

[41] Burgess recollected that Kilby and he separated in the summer of 2015. At that time, she retained the day to day care of Kyra and Kyson. The children continued their schooling at St. Michael's into the fall of 2015. Kyra was in Grade 3; Kyson in Grade 2. In Kilby's exclusive care, he recalled the children were late for or absent from school a lot.

[42] Around the fall of 2015 as well, Burgess was charged for historical assaults upon Kilby. His conditions of release prevented him from seeing his children. Eventually, he entered a plea of not guilty. The matter proceeded to trial. It resolved with his decision to enter into a peace bond. He was to keep the peace for a year, and to attend a Partner Abuse Response program. He successfully completed the program. He found the counselling he received to be of benefit to him. He learned to think before speaking or acting, and to remain calm.

[43] By December 2015, Burgess obtained access to his children every second weekend. His accommodation, a one bedroom apartment in Eganville, was inadequate for caring for two young children. He would have to give up his bedroom to Kyra. Kyson and he would sleep in the living room. He needed a bigger place. He applied for public housing. On March 1, 2016, he moved into his new home in Pembroke, a four bedroom, two bathroom house with a basement.

[44] By July of 2016, given the lack of participation by Kilby in the proceeding he commenced seeking custody of his children, Kyra and Kyson were returned to his care. He enrolled them at a school near where he lived in Pembroke. He found a family doctor for them. He sought out counselling for Kyson with FCS assistance.

[45] At the time he regained custody of his children, Burgess was and still is in receipt of ODSP benefits. His only other income was the Child Tax Benefit. Money was tight, but he managed to furnish his home with the help of an organization called "Community Jubilee," as well as the Boys and Girls Club and FCS.

[46] Burgess became eligible for ODSP at age 30. He recounted that at age 10, he fell four stories. He suffered a compound fracture of his tail bone. He could not walk for a year. At age 20, he suffered a broken neck and was temporarily paralyzed.

[47] The lingering effects of his injuries have resulted in an arthritic condition. He takes prescribed medication for the pain, oxycocet. His drug therapy (two tablets in the morning and two at night) helps him to get his housework done and to play with the children.

[48] The children, Burgess offered, ask to assist him with chores. He gives them an allowance for doing so.

[49] Burgess has enrolled the children in a cooking class through the Boys and Girls Club. They used to attend every week, but with the imposition of the 'week about' custodial arrangement, they attend every second week when the program is running.

[50] Burgess denied that he was ever diagnosed with bipolar disorder. Kilby suggested, when he was 33, that perhaps he suffers from it. He tried medication for about a month, but abandoned it because it made him drowsy.

[51] In describing how he was managing with the children after being granted sole custody, Burgess stated he felt all alone. He would send texts to Kilby's father, but he would receive no answer.

[52] Burgess explained that Kyson could not start school without a prescription for his ADHD medication. Consequently, Burgess searched via the internet and found a Dr. Baldwin in the Ottawa area. Dr. Baldwin's care of Kyson ended about a year later when Kilby terminated this physician's relationship with their son. He had offered for Kilby to meet with Dr. Baldwin, but she did not reply.

[53] Burgess attributed Kyra's periodic depression to the sadness she experienced at her parents' separation. He brought this impression he had to the attention of Dr. Primeau, their family doctor.

[54] Burgess maintains that his children are very happy for the most part in the home he has made for them. They have space, pets (a dog and a cat), and friends and family in their neighbourhood. The children have their paternal grandmother and his cousin, Ms. Tierney, with whom they are close.

[55] Burgess explained that his decision to relinquish sole custody of the children and to consent to a shared, week about arrangement was pressured. It was the result of a recommendation made by a legal aid lawyer following a mediation session. Burgess felt intimidated. He thought he may lose all custodial rights following trial if he did not agree.

[56] In terms of activities his children enjoy, Burgess listed:

• visiting family
• tobogganing in winter
• biking in summer
• going for pizza
• going to the library
• going online to show him their homework
• playing sports (basketball, baseball, volleyball, soccer and hockey)
• swimming

[57] Burgess testified about the impact the Boys and Girls Club has had on his children. He wanted to enrol them, so they would meet other kids in their neighbourhood. Now they attend five days per week.

[58] Burgess was clear that he never discusses in front of the children any issues regarding his relationship with Kilby as it relates to their shared parenting arrangement. He stated however that what he does hear about it emanates from Kyra and Kyson.

[59] Burgess testified that he tries hard not to speak negatively about Kilby. He is aware of the harm parental conflict causes to the children. To improve civil communication between Kilby and him, Burgess is willing to use a software app to ensure a record is kept of the conversations he has with his ex-partner regarding the children. Additionally, Burgess was open to attending further mediation to develop a protocol for improving communications on matters such as medical and dental appointments.

[60] Under cross-examination, Burgess voiced his deep concern over the finding made by FCS that Kilby had assaulted Kyra. He wants Kyra to be protected in future. Whether it was multiple slaps to the mouth or a tap on the bottom, Burgess observed that it did little for his confidence as to the children's safety while in Kilby's care.

[61] Burgess denied the incident where Kilby alleged he smashed a chair over her head. Nor did he ever choke Kilby, he asserted. Nor did he break items in the homes they shared. Nor did he lose his temper.

[62] The one incident of violence which Kilby described, and which Burgess remembered, was when Kilby attacked him outside near their vehicle in 2013. She initiated the physicality by slapping Burgess in the head. She tried to slap him in the face. In defending himself, Burgess caught Kilby with his ring on her lip, as he tried to shield himself from her slaps.

[63] Like Kilby, Burgess took issue with aspects of the OCL Report. He felt that Kilby brainwashed their children in respect of certain things they said to the investigator. Overall however, he believed the author did "a good job."

[64] Burgess disagreed with the portion of the Report where the author accepted as verified that he punched Kilby in the face in the presence of the children. He believed that Kilby put their children up to saying he had. The children were then rewarded by Kilby for having done so.

[65] Burgess agreed that he was charged as a result of the 'punching' incident. He accepted the offer of a peace bond after commencement of his criminal trial. However, he did not recall being given any option not to enter into the bond.

[66] While attending the PARS program, he learned to "…take a breath before speaking." He learned as well to think first before he took action. He participated in and successfully completed the court ordered program.

[67] Burgess did plead guilty to breaching his condition to keep the peace, and to threatening. He denied that the threat was made in the presence of the children. He clarified that his words were to the effect that he would kill Kilby. They were uttered to her new partner. He denied demonstrating on his neck with a knife what he intended to do. He rejected the suggestion he would bury Kilby and her new partner naked in a ten foot deep hole.

[68] Burgess refuted the suggestion that he did not attend all medical appointments for the children. He did concede that he did not attend all parent-teacher meetings.

[69] Equally, Burgess did not dispute that he was skeptical of the ADHD diagnosis made for Kyson when he was only two years of age. Burgess thought Kyra was more active than Kyson. He agreed that medical professionals were more equipped to make such a diagnosis. Burgess adamantly denied that he was opposed to medicating his children if it was recommended by their doctors.

[70] Burgess agreed that the worst time for his kids' absence from school was April to June 2015. During that period, he was still living with Kilby. Indeed, for those three months, the children did not attend school. It was during their parents' period of separation. To Burgess' refreshed recollection, the separation did not occur until August 1, 2015.

[71] Burgess readily conceded that he made a number of changes in the children's lives after he was granted sole custody of them in July 2016. He changed their school from St. Michael's to Holy Name. He found a new family doctor. He arranged for Kyson to see a new doctor in Ottawa, Dr. Baldwin, for his ADHD condition.

[72] He nevertheless insisted that he wanted to involve Kilby in those decisions. He would text her father, but there was never any response. He suspected they may have blocked him. At the root, he felt alone as a parent. He testified that he had to make all choices for the children on his own.

[73] When contact between the children and Kilby did eventually resume, Burgess though that Kilby did not support his decision to enrol the children at Holy Name. His impression was that she belittled their new school.

[74] When weekend access resumed for Kilby, Kyson soon after began seeing Dr. Gfellar again. Burgess did not oppose the reinvolvement of Dr. Gfellar to Kyson as his specialist. Burgess believed that Dr. Baldwin agreed with the changes in Kyson's medication dosages, and the switch to the drug, Concerta. Burgess felt that Dr. Gfellar's recommendations were helpful. Kyson started to feel better.

[75] Burgess acknowledged that Kyra was having problems with her mental health in his custody. He agreed that the meeting with the OCL representative occurred in July 2017. Yet in spite of the OCL's recommendation in August 2017 that Kyra continue her counselling at school, Burgess did not provide his consent for it to resume until the spring of 2018.

[76] Burgess maintained that Kyra's counsellor, Annick, was making the children uncomfortable. She cancelled her sessions with them when Burgess challenged her on the point. The children have since switched to a new counsellor, Kim.

[77] Burgess denied any suggestion that he spoke negatively about Kilby in the children's presence. He did not deny the persistent problems Kilby and he had with civil communication. Texting was not working. No efforts were made to improve the situation via email. Burgess claimed he did not have an email address.

[78] Burgess agreed that Kilby loves their children. She can be a good parent to them. However, he was very reluctant to see control ceded to her for any decisions on medical and educational needs for the children.

Issues

[79] The evidence adduced at trial raises the following issue:

[80] Who should have final decision making authority in respect of the children's health and educational needs – Burgess or Kilby?

[81] As an incident of custody, can this authority remain a joint responsibility of Burgess and Kilby, or must one or the other have the final say.

The Law

[82] In Kaplanis v. Kaplanis, [2005] O.J. No. 275 (C.A.) at paras 11 and 12, Weiler J.A. offered the following guidance to trial judges when dealing with former domestic partners who have an inability to effectively communicate and to work together in the best interests of their children:

"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.

12 Insofar as the ability of the parties to set aside their personal differences and to work together in the best interests of the child is concerned, any interim custody order and how that order has worked is a relevant consideration for the trial judge and any reviewing court."

[83] In interpreting Kaplanis v. Kaplanis, Doyle J. in Ascani v. Robert, 2015 ONSC 4585, [2015] O.J. No. 3832 (S.C.J.), commented:

"164 As discussed, a joint custody order is not in [the child's] best interests as this requires some minimum ability of the parties to discuss and communicate. This principle has been enunciated in a number of cases, most notably by the Court of Appeal in Kaplanis v. Kaplanis, 194 OAC 106, unlike Ursic v. Ursic, 32 R.F.L. (6th) 23 where the court dismissed the appeal from a trial decision which ordered joint custody. There, the parties had largely cooperated on major decisions affecting the child, except for the schooling.

165 The recent Court of Appeal decision in M. v. F. illuminates the developing trend in the courts regarding the use of the word "custody". After considering the fact that the Ontario legislation does not require a court to make an order for custody, Justice Benotto states at paras. 39 and 40:

• For over twenty years, multi-disciplinary professional have been urging the court to move away from the highly charged terminology of "custody" and "access. These words denote that there are winners and losers when it comes to children. They promote an adversarial approach to parenting and do little to benefit the child. The danger of this "winner/loser syndrome' in child custody battles has long been recognized.

• It was therefore open to the trial judge to adopt the 'parenting plan' assessor without awarding 'custody". It was also in keeping with the well-recognized view that the word "custody" denotes "winner" so consequently the other parent is the "loser" and this syndrome is not in the best interests of the child.

166 Therefore, it is not in [the child's] best interests that either parent be empowered with sole decision‑making power. There needs to be a balance of power that neutralizes the parties and does not permit either parent to have the upper hand. With sole custody, there is a potential for one party to usurp the role: impacting [the child's] life, and possibly marginalizing the other parent.

167 The challenge is in how to structure the decision‑making process in a manner that both parents can remain involved…"

Analysis

Health

[84] In my view, Kilby is a good advocate for Kyra and Kyson. She does not stop until the children's health needs are met. She soldiers on until the concerns she has for her children are adequately addressed.

[85] When Kyson began to exhibit behavioural problems as a young child, she recognized the challenges he posed. She found Dr. Gfellar. She reconnected Kyson to him later after Burgess had sole custody, and Kyson began to lose weight.

[86] Similarly, she insisted on reinvolving Kyra with Annick of the Metis group to ensure she received counselling. Kilby identified her depression and self-image problems. In spite of Burgess' reluctance to provide consent, Kilby persevered. The counselling, be it with Annick or Kim, is happening.

[87] I do not disparage Burgess' efforts. When Kilby appeared to be missing and out of the picture, he managed to find Dr. Primeau as a family doctor, and Dr. Baldwin as Kyson's ADHD specialist.

[88] I sensed that Burgess did not appreciate the extent of Kyra's struggles with maintaining her mental health. He was inclined, in my view, to regard her depression as a normal, emotional reaction to the loss of her connection with her mother, Kilby. As much as that hypothesis may well have been correct, Burgess did not take the action necessary to address an existing problem – irrespective of the cause.

[89] To be clear, I do not find that the children, Kyra and Kyson, would ever lack adequate medical care and attention when under Burgess' charge. To the contrary, they would. However, Kilby is their advocate. She will ensure that they will receive the best care that she can find. She will push for that type of attention to be paid to their children's needs. Her determination is what tips the balance in her favour. It is in Kyra's and Kyson's best interests that Kilby have the final say on matters concerning their health.

Education

[90] When Burgess gained full custodial rights to Kyra and Kyson, he managed in short order to have them enrolled at Holy Name, a school near the residence he was able to find and secure, one suited to the needs of raising young children. He appreciated as well the need to acquaint Kyra and Kyson with the children with whom they would attend school and socialize in general. He saw the value in having them regularly go to the nearby Boys and Girls Club.

[91] Burgess spoke of how he instils in his children a sense of responsibility by giving them an allowance for doing chores to assist him around the house. He goes online to check on their homework. He plays sports and bicycles with them. He is engaged. He wants to see his children brought up in a way that truly benefits them, and allows them to become happy and productive adults.

[92] By contrast, Kilby does not seem to value education and socialization the same way. Her desire is to move the children back to St. Michael's, because it would be in her interest. Her interest she sees somewhat as an extension of the children's best interest. While the decision to move the children to St. Michael's would be more convenient for Kilby, and less time would be spent in transit for them during the weeks when Kyra and Kyson are in her care, she did not seem to appreciate that the time spent in a vehicle would be roughly the same for the children, if Burgess were required to get them to school from his residence in Pembroke during his week.

[93] Furthermore, Kilby appeared to lack an appreciation for the upheaval a change of school would cause Kyra and Kyson. They have spent their last three educational years at Holy Name. They would lose connections to their friends at school and in their father's neighbourhood. While they may remember the children they used to go to school with at St. Michael's, much will have changed in three years. The friends they once had may have found others in their absence. There is little guarantee those school friendships can be rekindled. They, more importantly, will lose their relationships with teachers and counsellors who know them now. For children the ages of Kyra and Kyson, 12 and 11 respectively, three years is a long time.

[94] Upon a considered review of the evidence, I cannot find that allowing Kilby to have the final say on matters of education would be in the children's best interest. It would not. They would almost certainly end up at St. Michael's. They would lose important friends and relationships they currently enjoy. Their lives would be disrupted and negatively impacted in my view. Their education would suffer.

[95] Accordingly, I will grant final decision making authority on matters of education to Burgess.

Conclusion

[96] Sadly, if sole custody were granted to either Burgess or Kilby, the parent without it would be isolated. History would repeat itself. The access parent would become marginalized. None of these predictions bode well for Kyra and Kyson.

[97] Communication is undoubtedly a struggle for Burgess and Kilby, but it is not impossible. The communication must going forward be in writing. Civility must prevail. In the not too distant future, Kyra and Kyson will be making their own decisions essentially on who they wish to reside with, where they wish to go to school, who should be their doctor or dentist, etc. Burgess and Kilby must make do in the interim.

[98] Accordingly, I shall order as follows:

1. The children's doctors, dentists and counsellors shall be as decided upon by Kilby with input from Burgess provided in writing and duly considered.

2. The children shall remain at Holy Name School. When they attend high school, Burgess shall consult with and duly consider Kilby's recommendation made in writing.

3. Kilby and Burgess shall utilize Family Wizard or a similar app to communicate strictly on issues concerning the children. Only in an emergency should the parties speak to each other via telephone or text message.

4. Kilby and Burgess shall share with one another health and education information upon written request by one to the other.

5. Kilby and Burgess shall maintain civility in all communications with one another for the sake of Kyra and Kyson. Neither shall discuss the views each holds for one another in the presence of their children.

Released: May 27, 2019

M.G. March J.