ONTARIO COURT OF JUSTICE

Date: 2019-10-07

Court File No.: Woodstock D69/18

BETWEEN:

G.H.F.

Applicant

— AND —

M.D.E.

Respondent

Before: Justice S. E. J. Paull

Trial Heard on: September 18-19, 2019

Reasons for Judgment released on: October 7, 2019

G.H.F. — on his own behalf

Michellene Beauchamp — counsel for M.D.E.

PAULL J.:

Introduction

[1] Before the court is the trial dealing with the custody, access and support issues related to the parties' only child. The trial took place over two days on September 18-19, 2019.

[2] The parties testified as did M.D.E.'s mother, G.T.

Background and Positions of the Parties

[3] M.D.E. (mother) and G.H.F. (father) are the parents of L.F. born in 2012. They lived together from November 2010 to in or about November 30, 2017.

[4] G.H.F. brought an application on May 2, 2018 seeking joint custody and a shared residential arrangement on a week about basis, or alternatively joint custody with liberal access. He later amended the application to seek additional relief related to transportation and child support.

[5] M.D.E. filed an answer dated May 8, 2018 seeking sole custody and child support retroactive to November 30, 2017.

[6] The parties are agreeing on various terms of relief. They agree to an order for joint custody, however, M.D.E. would like final decision-making authority in the event of a disagreement, and G.H.F. would like to be consulted in advance regarding major decisions concerning L.F.

[7] They further agree that G.H.F.'s parenting time shall include the following:

1. Alternate weekends from Friday after school to Monday morning. He drops L.F. off at his mother's home to catch the bus for school.

2. On alternate Mondays after school overnight to Tuesday morning to accord with M.D.E.'s work schedule.

3. An equitable sharing of holidays as agreed between the parties, to include two weeks of summer access for each parent.

4. G.H.F. has agreed to be responsible for the transportation for the regular access schedule, with M.D.E. agreeing to be responsible for any transportation for any additional time L.F. spends with G.H.F. to accommodate any additional shifts and commitments she has at work.

5. They have also agreed to a proportional sharing of section 7 expenses going forward.

[8] The areas the parties are disagreeing on relate to child support and whether there has been and should be a shared residential arrangement in place for L.F. going forward.

[9] G.H.F. seeks an order, in addition to the alternate weekends noted above, that he have two overnights per week. He takes the position that this would amount to a shared custody arrangement which would justify no order for child support. He also opposes any claim for arrears in child support on the basis that the arrangements up to now have also amounted to a shared custodial arrangement.

[10] M.D.E. seeks an order for primary residence of L.F. with access in addition to the alternate weekend access noted above, of one overnight per week, with one of those overnights being the alternate Monday night already agreed to which accommodates her work schedule. She takes the position that child support should be payable from the date of separation and that arrangements up to trial have not amounted to a shared residential arrangement. She also seeks to impute income on G.H.F. for the purposes of calculating child support.

[11] As such, the main issues to be determined relate to what residential arrangement will best serve L.F.'s needs, and whether child support is payable based on the parties' incomes and the arrangements in place since separation.

[12] Resolving these issues will involve a determination of what arrangement going forward is in L.F.'s best interests, including whether it should be a shared parenting arrangement.

[13] Further, a determination of the appropriate amount and commencement date of child support, if any, which should be payable based on the parenting arrangements. This includes a determination of both parties' incomes and whether income should be imputed to G.H.F., and whether there has been a shared parenting arrangement in place for any or all the time since separation.

The Law Regarding Child Support

[14] The Family Law Act imposes an obligation on every parent to provide support for his or her minor children to the extent that the parent is capable of doing so. The purposes of an order for support of a child is to recognize that each parent has an obligation to provide support for the child, and to apportion the obligation according to the Child Support Guidelines.

[15] The Family Law Act requires that a court making an order for the support of the child to do so in accordance with the Child Support Guidelines. Section 19 of the Child Support Guidelines provides that the court may impute to a spouse "such amount of income … as it considers appropriate" and provides a non-exhaustive list of such circumstances. The relevant portions of s. 19 read as follows:

19.(1) Imputing Income – The court may impute such amount of income to a spouse as it considers appropriate in the circumstances, which circumstances include,

(a) the spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of any child or by the reasonable educational or health needs of the spouse;

[16] Imputing income is one method by which the court gives effect to the joint and ongoing obligation of parents to support their children. In order to meet this obligation, the parties must earn what they are capable of earning. If they fail to do so, they will be found to be intentionally under-employed. Clause 19(1)(a) of the Guidelines is perceived as being a test of reasonableness. Drygala v. Pauli.

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

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

2. If so, is the intentional under-employment or unemployment required by virtue of his reasonable educational needs, the needs of the child of the marriage, or reasonable health needs?

3. If not, what income is appropriately imputed?

[18] The court stated in Drygala that there is no need to find a specific intent to evade child support obligations before income is imputed; the payor is intentionally under-employed if he or she chooses to earn less than what he or she is capable of earning. The court must look at whether the act is voluntary and reasonable.

[19] Under the first question in Drygala the onus is on the party seeking to impute income to the other party to establish that the other party is intentionally unemployed or under-employed. The person requesting an imputation of income must establish an evidentiary basis upon which this finding can be made. Homsi v. Zaya, 2009 ONCA 322.

[20] Absence of a reasonable job search will also usually leave the court with no choice but to find that the payor is intentionally under-employed or unemployed. Filippetto v. Timpano.

[21] The court should draw an adverse inference against the respondent for his failure to comply with his disclosure obligations as provided for in s. 21 of the Guidelines and impute income. Gray v. Rizzi, 2016 ONCA 494; Smith v. Pellegrini; Maimone v. Maimone. In Graham v. Bruto, 2008 ONCA 260, the court inferred that the failure to disclose would mitigate the obligation of the recipient to provide an evidentiary basis to impute income.

[22] Once under-employment is established, the onus shifts to the payor to prove one of the exceptions of reasonableness. When an employment decision results in a significant reduction of child support, it needs to be justified in a compelling way. Riel v. Holland, at paragraph 23. It must be reasoned, thoughtful and highly practical. Hagner v. Hawkins, at paragraph 19.

[23] As a general rule, separated parents have an obligation to financially support their children and they cannot avoid that obligation by a self-induced reduction of income. Thompson v. Gilchrist, 2012 ONSC 4137; DePace v. Michienzi.

[24] Parents can take jobs with less money as long as the decision is reasonable. A payor cannot be excused from his or her support obligations in furtherance of unrealistic career aspirations. Hanson v. Hanson; Gobin v. Gobin, 2009 ONCJ 245; Charron v. Carriere, 2016 ONSC 4719. Where a party chooses to pursue self-employment, the court will examine whether this is a reasonable choice in the circumstances. Smith v. Smith, 2012 ONSC 1116.

[25] If there is no reasonable excuse for the payor's under-employment, the third question in Drygala requires the court to determine what income should properly be imputed in the circumstances. The court must have regard to the payor's capacity to earn income in light of such factors as employment history, age, education, skills, health, available employment opportunities and the standard of living enjoyed during the parties' relationship. The court looks at the amount of income the party could earn if he or she worked to capacity. Lawson v. Lawson.

[26] Where the under-employment or unemployment is the result of one's own actions (an event over which the payor had some control) or misconduct, the support obligations will not be reduced or cancelled. Luckey v. Luckey; Maurucci v. Maurucci, 2001 CarswellOnt 4349 (SCJ); Sherwood v. Sherwood.

[27] Section 9 of the Child Support Guidelines states the following:

Shared Custody

9. Where a parent or spouse exercises a right of access to, or has physical custody of, a child for not less than 40% of the time over the course of the year, the amount of the order for the support of a child must be determined by taking into account,

(a) the amounts set out in the applicable tables for each of the parents or spouses;

(b) the increased costs of shared custody arrangements; and

(c) the condition, means, needs and other circumstances of each parent or spouse and of any child for whom support is sought.

[28] There is no set formula for calculating the 40%. Froom v. Froom.

[29] For section 9 to be triggered it must be 40% of the entire year, not an isolated period. Lopatynski v. Lopatynski, [1998] A.J. No. 1312 (Alberta Q.B.). You must look over the "course of the year". Ellis v. Ellis, 1997 P.E.I. J. No. 119.

[30] There is no jurisdiction to alter the 40% threshold. A detailed review of the case law was outlined by the court in L.L. v. M.C., [2013] ONSC 1801. The following summary of principles can be taken from the case:

1. The onus of proving that the 40% access threshold is met falls on the spouse seeking to invoke s.9 (Meloche v. Kales; Huntley v. Huntley, 2009 BCSC 1020).

2. Though the method of the calculation is not set out in the legislation, it is clear that 40% is the minimum period of access time fixed by Parliament as sufficient to trigger a child support calculation under s. 9 of the Guidelines. Courts cannot ignore this mandatory requirement in favour of rounding up in the case of access time that is close to 40% (Maultsaid v. Blair, 2009 BCCA 102).

3. In commenting on Froom the review states, "[w]ith respect, the overwhelming weight of authority in Ontario and the other provinces supports calculating the 40% threshold on an hourly basis." This approach is applied by the court in Rockefeller v. Rockefeller. Its appropriateness is also affirmed in Gauthier v. Hart, 2011 ONSC 815, although in that case the parties' evidence did not support an hourly calculation so it was not applied.

4. The two most common approaches to calculating access and custody time are in days, and in hours. If using days, to reach 40 per cent, the access parent must have the child in his or her care for 146 days per year (Handy v. Handy, [1999] B.C.J. No. 6 (S.C.)). When calculating in hours, the 40 per cent threshold lies at 3504 hours per year (Claxton v. Jones, [1999] B.C.J. No. 3086 (Prov. Ct.)).

5. Julien D. Payne points out that no matter how the calculation is completed, the relevant period is the amount of time the child is in the care and control of the parent not the amount of time that the parent is physically present with the children. The calculation includes the time the child spends in swimming lessons, at day care, at school, or with a nanny, so long as the parent claiming this time is the parent who during that period is "responsible for their well-being" (Sirdevan v. Sirdevan, [2009] O.J. No. 3796).

6. In line with this approach, a custodial parent will be credited with time that a child spends sleeping or at school, except for those hours when the non-custodial parent is actually exercising rights of access or the child is sleeping in the non-custodial parent's home (Cusick v. Squire, [1999] N.J. No. 206 (S.C.)). If there is a fixed drop-off time for the access parent to deliver the child to school or daycare and the child returns to the custodial parent at the end of that day, the time during school or daycare is typically credited to the custodial parent (Maultsaid, at para. 20; Barnes v. Carmount, 2011 ONSC 3925, at para. 43).

7. In the case of Mehling v. Mehling, 2008 MBCA 66, at para. 45, the court asserts that the flexible approach is in line with the view expressed by Terry W. Hainsworth in his text, Child Support Guidelines Service, loose-leaf (Aurora: Canada Law Book, 2007) (at para. 3:10.03), which is as follows:

Section 9 of the Guidelines requires the courts to consider more than a simple mathematical comparison of the number of hours in a year and the number of hours of physical access exercised by the parent asserting shared custody. If a given situation establishes an unusually extensive pattern of access by the support payor which is consistent with the concept of shared parenting or shared custody, the reality of the situation should be carefully reviewed. In determining the issue, the court may consider several factors, including:

(a) how the shared parenting situation evolved;

(b) any specific contractual agreements relating to joint custody; and

(c) the quality of the time the children spend with each parent (i.e., whether the children are in daycare, whether there are associated costs such as meals and activities, whether there are clothing costs, etc.).

If it is determined that a given situation is, in spirit and reality, one of shared custody, there is no governing method of calculation so long as the method used is reasonable. ...

The Law Regarding Custody and Access Issues

[31] Ultimately, the court must decide what custodial order is in the children's best interests and consider the factors set out in subsection 24(2) of the Children's Law Reform Act in reaching this decision. This subsection reads as follows:

Best interests of child

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

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

(i) each person entitled to or claiming custody of or access to the child,

(ii) other members of the child's family who reside with the child, and

(iii) persons involved in the child's care and upbringing;

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

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

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

(e) any plans proposed for the child's care and upbringing;

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

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

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

[32] No one factor in the statutory definition of a child's best interests is given statutory preeminence. The court should consider the level of hostility and the extent to which that hostility may undermine the child's stability. Wilson v. Wilson, 2015 ONSC 479.

[33] In Giri v. Wentges, 2009 ONCA 606, the court adds the following at paragraph 10:

[10] Second, as this court has repeatedly held, joint custody requires a mutual commitment between parents to cooperate on matters pertaining to the raising of their child, and an ability for the parents to put their own interests behind those of the child. The Ontario Court of Appeal in Kaplanis v. Kaplanis has made it clear that an interim custody order and how it has worked is a relevant consideration for the trial judge. Ladesic-Hartmann v. Hartmann

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

[35] The reasons of Mr. Justice J.C. Murray in the case of Jackson v. Jackson, paragraphs 7-25 highlight the toxic effect of parental conflict on children. Numerous studies demonstrate the significant negative impact parental conflict has on children which continues in both the short and long term and is a major source of harm to children.

[36] The test for determining the appropriate residential arrangement and access is also what order is in the best interests of the children. An access parent has the right to visit and be visited by a child and the same right as a parent to make inquiries and to be given information as to the health, education and welfare of the child. S. 20(5) CLRA.

[37] The court must ascertain the child's best interests from the perspective of the child rather than that of the parents and the child should have maximum contact with both parents if it is consistent with the child's best interests. Gordon v. Goertz.

Evidence

[38] G.H.F.'s testimony included the following:

1. Prior to separation he was self-employed which meant he could be there to provide care to L.F. which included putting him on the bus and cooking meals. During that time he was equally involved in caring for L.F.

2. After separation he lived with his father in London, and then rented a room in a motel for a period of time. Since July 2018 he has lived in a rented apartment on a farm.

3. He has two other adult children that he has little contact with, one who has never met L.F. and the other who has met L.F. once. He testified he had no desire to have L.F. spend time with either of them.

4. He agreed that the calendars filed at trial which outline each party's parenting time with L.F. since separation were "98%" accurate.

5. M.D.E. has refused him access on several occasions, including one week of summer access in July 2019 he had asked for. He feels that M.D.E. is manipulating and limiting his access to L.F.

6. He acknowledged in his 35.1 affidavit that between 1985 and 2006 he had three assault convictions and a conviction for cultivation of a controlled substance. He denied any other or outstanding charges. However, in cross-examination, when provided with a copy of an intermittent sentence agreement, he did not dispute that he served 45 days custody in 2011 for a conviction of drive disqualified.

7. He opposed L.F. being in swimming lessons because he did not see the point to "spend good money after bad" for swimming lessons when L.F. knew how to swim.

8. L.F.'s bedtime in his home is around 10 PM and he believes L.F. is okay with the transitions between homes and feels that adding more transitions during the school week would not be an issue for L.F.

9. He was aware L.F. was in grade 2 at East Oxford Public School, and acknowledged that M.D.E. has always been responsible for school registration. In cross-examination he acknowledged not knowing the name of L.F.'s teacher, doctor, or dentist, and confirmed he has never been to any appointments or parent-teacher interviews regarding L.F. He felt there were no issues with L.F.'s academics, including his reading level.

10. He acknowledged being content with the decisions M.D.E. made about issues with respect to L.F. He was of the view that M.D.E. was a "moderately okay mother".

11. He does not support L.F. being in day camps for much of the summer because of M.D.E.'s work. He has not been consulted regarding the day-camp or any other activities for L.F. When he worked as a courier he worked part-time and was able to work around L.F.'s schedule and could have provided care for L.F.

12. The parties live 20 km apart (which takes approximately 20 minutes to drive), and he resides approximately 30 km from L.F.'s school. As a result after his access times he drops L.F. off at M.D.E.'s home in the morning so that he can leave for school from there on the bus.

13. He testified that the parties communicate primarily by text and email which works okay and that they do not fight or bicker when face-to-face. He did indicate there was a period when M.D.E. did not have a phone which made communication difficult and resulted in miscommunications.

14. He believes M.D.E. manipulates his time with L.F. around her work schedule. He also disagrees with L.F. spending overnights with the maternal grandparents during M.D.E.'s weekends because L.F. could be with him.

15. He acknowledged that the current arrangements for access were alternate weekends from Friday to Monday morning and alternate Mondays and alternate Wednesdays overnight. He felt that M.D.E. unilaterally changed the schedule in June 2019, and up to that time he was having alternate weekends plus two overnights during the week.

16. He acknowledged in cross-examination that he was enrolled in the Ontario Lottery and Gaming self-exclusion program (as outlined in the Notice filed as Exhibit 8).

17. He provided correspondence he received dated March 5, 2018 (filed as Exhibit 11) from Oxford County requesting child support for L.F. on behalf of M.D.E. He was previously self-employed as a courier and engaged in commission delivery services and had periods of short-term employment and unemployment up to obtaining his current job at AGS Homes.

18. He also worked part-time doing odd jobs and trading horses and offering ferrier services which he has done for many years. He acknowledged some of this income was earned in cash.

19. He started working for AGS Homes doing construction work on July 20, 2019. He makes $20 per hour and works 40 hours per week between the hours of approximately 8 AM to 5:30 PM Monday to Friday. He testified that the job is temporary and may end in October or November 2019.

20. He acknowledged paying no child support and not contributing to any extraordinary expenses since the parties separated. He stated in cross-examination that he would contribute to extra expenses if needed and if he had any money at the time.

[39] G.H.F. filed two financial statements. His first sworn August 16, 2018 outlines that he was self-employed as Can-Go Courier and as F. Ferrier Services. The financial statement included an attachment that also indicated he earned some income from Doubletree Courier Service.

[40] Attached to the financial statement were his 2016 and 2017 income tax returns which outline that for 2016 his total line 150 income was $30,023.80 comprised of employment income, self-employment income, and worker's compensation benefits. It also outlined gross business income of $2887.50 and net business income of $1524.07.

[41] The 2017 tax return outlines total line 150 income of $22,357 comprised of business income and employment insurance benefits. It outlined gross business income of $22,170.29 and net business income of $12,963.78.

[42] G.H.F. filed a further financial statement dated June 7, 2019 where he claimed his only employment was doing Ferrier work and claimed total annual income of $22,357, which was his 2017 line 150 income total. The only attachments were one page from each of his 2016 and 2017 tax returns previously filed.

[43] At trial G.H.F.'s 2018 tax return was filed as an exhibit which outlined total line 150 income of $21,456.06. It noted gross business income of $29,299.11 and net business income of $12,734.18, as well as commission income of $8745.

[44] G.H.F. testified his income for 2018 was from his Ferrier business and commissions from deliveries. The income tax return contained no outline of business expenses and G.H.F. testified he could not remember what any of the expenses were from his businesses.

[45] He testified that he stopped the commission deliveries in December 2018, after which he did snowplowing and ferrier work. He also indicated he was unemployed for approximately two months before getting his current job. He acknowledged not looking for work during this period.

[46] For 2019 he projected his annual income to be about $30,000 from his construction job which he started in July, and from his Ferrier business, which he indicated he would not be able to do as much while working full-time.

[47] He testified to health issues related to a groin hernia and COPD which causes him some shortness of breath, but that he was still able to do pretty much anything he used to. He acknowledged still smoking cigarettes.

[48] M.D.E. testified as follows:

1. The parties separated on or about November 30, 2017 primarily because of G.H.F.'s problem gambling. While the parties were together she was primarily responsible for L.F. and organized all aspects of his care as G.H.F. was not dependable.

2. When the parties lived together (from November 2010 to November 2017) they resided on a farm she owns and where she and L.F. remain. L.F. has lived there his entire life.

3. L.F.'s bedtime is 9 PM.

4. She has L.F. involved in before and after school programs to accommodate her work schedule, which she has always paid for.

5. She went to the University of Western Ontario as an English major for four years and has been working at the Woodstock Public Library for many years. Her work schedule at the library is on a two week rotation as follows:

Week One	Week Two
Monday 10 AM to 4 PM	Monday 4 PM to 8:30 PM
Tuesday 10 AM to 2 PM	Tuesday 10 AM to 2 PM
Wednesday 10 AM to 2 PM	Thursday 1 PM to 4 PM
Friday 4 PM to 8:30 PM	Saturday 1 PM to 5 PM

6. The weekend between week one and week two of her schedule when she works Friday night and Monday night, is the weekend L.F. is with G.H.F., and includes the Monday night overnight. G.H.F. drops L.F. off at her home Monday mornings and picks him up at the after school program.

7. She has no criminal record.

8. L.F. is enrolled in swimming lessons which she views as an important life skill, and L.F. is currently enrolled in a dance class as part of his membership at the YMCA.

9. L.F. attends day camps during the summer while she works.

10. She deals with all aspects of L.F.'s involvement in school, including enrolment and parent-teacher interviews, and arranging and attending all his medical and other appointments. G.H.F. has never been involved in this and never makes inquiries concerning any issues related to L.F.'s health or education.

11. The parties communicate primarily through text and email which works for most scheduling issues but the parties have difficulty communicating on anything else.

12. She denied the communication problems were due to her not having a cell phone for a period of time but rather on G.H.F.'s inflexibility. She has difficulty communicating with him because he gets angry and never agrees to help pay for anything. She used to feel threatened when he became angry but acknowledged it is better now.

13. L.F. does reasonably well in school but is behind in his reading so she is working with him every day to catch up.

14. On her weekend with L.F. she works Saturdays from 1 PM to 5 PM. During that time her parents look after L.F. This involves L.F. sometimes spending the night at their home if she does not pick him up on Saturday after her work shift, and can involve her and L.F. spending the day on Sunday with her parents.

15. She acknowledges that G.H.F. has been available to assist her with L.F. when she occasionally has an extra shift or work commitment in the evening.

16. She has no confidence G.H.F. will agree to pay for any expenses as he has never paid child support or offered to contribute to any expenses.

17. She was of the view that G.H.F. has never been dependable regarding finances and cites the example of letting him use her truck and plow after separation to earn money but ultimately had to use the police to retrieve it. After it was returned she found out he got a ticket in the truck which she had to pay. She asked him for the money for the ticket but never received it.

18. She was of the view that he has no issues with her decisions regarding L.F. and any programming unless he is asked to pay.

19. She rarely asks G.H.F. for contribution for camps or other expenses because he has never agreed and she has no expectation that he will.

20. She pays for the afterschool program and all costs for school trips and other expenses.

21. She acknowledged that G.H.F. agreed to two trips for L.F. to go to Florida while her parents were there.

22. Prior to getting his current employment in July 2019, G.H.F. offered to take L.F. the whole summer so he would not be in day camps. She was not in agreement with this because previously L.F. had been with G.H.F. in the summer and he drove L.F. around on his deliveries without a proper car seat and while smoking in the vehicle.

23. She also felt that as an only child and a "farm child" he would benefit from the socialization, structure, and activities available at Camp. However, she does not oppose each parent having two weeks of holiday time in the summer with L.F.

24. She acknowledged that G.H.F. asked for two weeks of holidays in July 2019 and that he only had one week. She further acknowledged that the second week did not occur because she needed confirmation camp was cancelled and that she did not receive a response from the YMCA in time.

[49] M.D.E. filed a financial statement sworn October 12, 2018 which outlines for 2016 a total line 150 income of $35,390 comprised of employment income and a farming business loss of $2175.47. For 2017 she had a total line 150 income of $31,022.69 comprised primarily of $34,330.65 from employment income and a farming business loss of $3936.23.

[50] M.D.E.'s 2018 notice of assessment was filed as Exhibit 9 which noted a total line 150 income of $34,994. She testified that $10,000 of this was because she redeemed a stock investment she has owned for many years to assist with living expenses and legal fees and that her employment income for the year was $24,994. She did not file in evidence her tax return or any other confirmation of this, or of her 2019 income to date which she indicated she expected to be $24,994 from her employment at the library.

[51] G.T. testified as follows:

1. She and her husband R.T. are L.F.'s maternal grandparents. They live in London and L.F. is their only grandchild.

2. Both she and her husband are retired teachers. She works with L.F. regularly to help him catch up on his reading level. She provided a workbook for G.H.F. to use with L.F. but he did not use it.

3. They see L.F. regularly and assist with looking after him on weekends when he is with his mother and she works on Saturdays from 1 to 5 PM.

4. This involves L.F. sometimes staying overnight on Saturday night if M.D.E. does not pick him up after work. This happens regularly unless they are in Florida, where they spend two months each year, or they have other plans which can result in them not seeing L.F. at all when he is with his mother for the weekend.

5. She is concerned that L.F. is being pulled in two directions because of his parents' separation.

6. She related an incident soon after the parents separated which she found very upsetting. L.F. was at their home and G.H.F. came to pick him up and while they were standing in the foyer of her home G.H.F. said to L.F. a comment that L.F. enjoyed his time better with him than with his grandparents. This left her upset and in tears afterwards. G.H.F. testified that he did not recall this incident.

[52] M.D.E. testified that from December 1, 2017 to October 31, 2019 the time L.F. spent with his father during each month was as follows:

1. In December 2017: 1 evening visit.

2. January 2018: total of 8.5 hours.

3. February 2018: 3 daytime visits.

4. March 2018: 2 overnights, 2 day visits.

5. April 2018: 3 overnights, 2 day visits.

6. May 2018: 4 overnights, 3 day visits.

7. June 2018: 6 overnights, 3 day visits.

8. July 2018: 7 overnights plus a couple of additional days when G.H.F. failed to return L.F. to his day camp.

9. August 2018: 5 overnights, 2 day visits.

10. September 2018: 4 overnights, 5 day visits.

11. October 2018: 10 overnights, 2 day visits.

[53] These times were not disputed by G.H.F. in his evidence.

[54] M.D.E. testified and filed her calendar from November 2018 to September 2019 which outlined the following time L.F. spent with his father during each month as follows:

1. November 2018: 8 overnights, 3 day visits.

2. December 2018: 11 overnights, 1 day visit.

3. January 2019: 13 overnights.

4. February 2019: 4 overnights, 2 day visits.

5. March 2019: 12 overnights, and 1 day visit (which included additional time during March break).

6. April 2019: 9 overnights, 1 evening visit.

7. May 2019: 10 overnights, 1 day visit.

8. June 2019: 9 overnights.

9. July 2019: 9 overnights (which included 1 week of summer access).

10. August 2019: 12 overnights.

11. September 1-19, 2019: 6 overnights.

[55] G.H.F. agreed in his testimony that the times outlined in the calendars from November 2018 to September 2019 were accurate, as he had verified them against the texts between the parents on his cell phone.

[56] Where the parties did differ on the evidence, including the residential arrangements that were in place since separation up to the time of trial, I prefer the evidence of M.D.E.

[57] I accept M.D.E.'s evidence regarding the arrangements in place from December 1, 2017 (separation) to October 31, 2018 (which was the time period not covered by exhibits 6 and 10). Her evidence was clear, convincing, and cogent. Her evidence remained unshaken during cross-examination and was consistent with her mother's testimony.

[58] Most importantly, G.H.F. was inconsistent in terms of his testimony on the historic status quo of the residential arrangements. He testified that up to June 2019 the status quo was alternate weekends from Friday to Monday and 2 overnights per week. However, this is inconsistent with his later testimony wherein he acknowledged that the dates outlined in exhibits 6 and 10 were accurate. It is clear from a review of those exhibits that the status quo was not 2 overnights every week. He then conceded in cross-examination that the current arrangements of alternate weekends from Friday to Monday morning and 1 night per week has been the pattern that has largely been followed.

[59] I also have a concern that G.H.F. neglected to include in his 35.1 affidavit a drive disqualified conviction for which he was sentenced to 45 days custody for in 2011. While this is somewhat historic and does not impact the current analysis of L.F.'s best interests, it suggests that he either does not recall an important event or he was being untruthful when he swore his 35.1 affidavit, which was done with the assistance of his counsel at the time. In either circumstance it adversely impacts his credibility in my view.

[60] I also accept the evidence of G.T. Her evidence was clear, convincing, and cogent. She presented her evidence in a straightforward manner and she remained consistent during cross-examination. Her testimony related to having L.F. in her and her husband's care at times on M.D.E.'s weekend when she worked was also consistent with M.D.E.'s testimony.

Residential Arrangements

[61] Based on the residential schedule since the date of separation outlined by M.D.E. which I have accepted, the following can be concluded. For December 2017 G.H.F. had one daytime visit which clearly does not meet the 40% threshold requirement to be considered a shared parenting arrangement.

[62] For 2018 it appears G.H.F. had approximately 65 overnights with L.F., which included a couple of overnights not scheduled as G.H.F. kept L.F. and did not return him to the day camp that M.D.E. had arranged. He also appears to have had an additional 26 daytime visits during 2018.

[63] For 2018 this represents 17.8% of overnights (being 65 out of 365). It was unclear on the evidence how long the daytime visits were but even if all the overnights are calculated at 24 hours each, and the day visits at 8 hours each the total hours for the year would be 1768. This is well below the threshold of 40% (which is 146 days or 3504 hours) regardless of how the time is calculated.

[64] For 2019, from January 1 to September 18, the start of the trial, which is a total of 262 days, there appear to have been 84 overnights and 5 daytime visits. These overnights were largely comprised of the alternate weekends from Friday to Monday morning, with one additional night per week which appears to correspond with M.D.E.'s work schedule. It also includes additional times for holidays.

[65] Up to the date of trial this represents 32% of the overnights (84 out of 262 days). The pickups for access appear to have generally been after school with the drop off being in the morning at M.D.E.'s home before school. It is difficult to discern all the actual times on the calendar for pickup and drop off, however, based on the undisputed times outlined therein for 2019 it appears the total hours L.F. was with his father up to the date of trial was 1841 hours over a period of 262 days. This also falls well short of the 40% threshold of 2515 hours (or 40% of 262 days X 24 hours).

[66] G.H.F. took the position that he in fact had L.F. more than 50% of the time when calculated on an hourly basis. He arrived at this by not including any time L.F. was in school or the time he alleged L.F. stayed with his grandparents on M.D.E.'s weekends (which he calculated was from noon on Saturday to about 4 PM on Sunday every weekend that M.D.E. had L.F.).

[67] This is not the appropriate manner to calculate whether a residential arrangement amounts to a shared custody regime. The relevant period in making the calculations is the amount of time the child is in the care and control of the parent, not the amount of time the parent is physically present with the child. As such, the time the child spends in school, activities, with a babysitter, or with extended family is applicable to the parent who is responsible for the child during that time.

[68] I accept on the evidence that M.D.E. is largely if not entirely responsible for L.F. when he is at school. The majority of G.H.F.'s parenting time is on weekends and when he does have him overnight on a school night he drops L.F. off at M.D.E.'s in the morning so that she is responsible for ensuring he gets to school. Further, a finding that she is responsible for L.F. while he is in school is further supported by the fact that she has remained entirely responsible for all aspects of L.F.'s health, education, and welfare. There was no evidence that G.H.F. was ever responsible for L.F. while he was at school, and he acknowledged not knowing the name of L.F.'s teacher or ever attending meetings at the school. Even were G.H.F. to be credited for additional time while L.F. attended school, he would still not approach the 40% threshold required.

[69] I have also considered that the determination of whether an arrangement is a shared one is not simply a mathematical exercise but also involves consideration of other factors including whether there was a pattern of unusually frequent or extensive access which is consistent with the notion of shared parenting.

[70] On the basis of the actual arrangements in place and the fact that a majority of G.H.F.'s parenting time was on weekends, with M.D.E. being largely or entirely responsible for L.F.'s attendance at school as well as all his other health and educational needs, the circumstances of the arrangements in place in no way reflect the spirit of shared parenting. G.H.F. did not know the name of any of L.F.'s health or educational providers and acknowledged he had never attended to any of these issues. He was content with M.D.E. making the decisions and being responsible for following through with them.

[71] On the basis of the foregoing G.H.F. has not satisfied the onus of establishing that the 40% threshold has been met in order to trigger section 9. The arrangement was not one of shared parenting regardless of the method used to calculate, whether it be number of days or hours, or by assessing the nature of the parenting arrangements as a whole. The arrangements in place from separation to trial did not amount to shared parenting.

[72] The next issue is to determine what the appropriate residential arrangement is going forward that will serve L.F.'s best interests.

[73] G.H.F. seeks a shared arrangement going forward which he submits will be achieved by him having two overnights during the week in addition to the alternate weekends already agreed to.

[74] M.D.E. takes the position that there be only one overnight per week, to coincide with her work schedule and the status quo that has been in place.

[75] For the reasons which follow the best interests of L.F. will be served in my view by one overnight of access during the week as proposed by M.D.E.

[76] A shared parenting plan requires a high level of communication and coordination between the parties, particularly when the child is very young. The parents will have to coordinate schooling, medical appointments and extra-curricular activities for the child. This should not be ordered where the evidence indicates that implementing such a plan, given the dynamics between the parties, would be an invitation to conflict and chaos, and would be destabilizing for the child. Bokor v. Hidas, 2013 ONCJ 40.

[77] I agree with the reasoning outlined in V.P. v. D.M., 2019 ONCJ 289, which stated:

[120] A shared parenting arrangement for a 5 year old will likely require a significant amount of contact between the caregivers. Homework is forgotten, money is required for a school trip, extracurricular activities will require coordination and flexibility, arrangements will have to be made for C.B.'s care on non-school days when the parents are working; who buys birthday gifts for parties attended by C.B., who picks out C.B.'s Halloween costume, and who takes C.B. to the doctors and fills prescriptions?

[121] Before concluding a shared parenting regime, which will likely require frequent communication between the parents, is in the best interests of a 5 year old child, the court ought to be able to find at least that:

(a) The parties can speak to one another directly and not just in writing;

(b) The parents behave respectfully towards one another;

(c) The parties will cooperate to ensure the child's needs are being met;

(d) The parties are capable of putting the needs of the child before their own;

(e) The parties demonstrate a reasonable amount of emotional maturity and will demonstrate that emotional maturity when there is a disagreement; and,

(f) The parties will behave appropriately towards one another at all times in front of the child.

[78] The court in Izyuk v. Bilousov, 2011 ONSC 6451, stated the following at para. 504:

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

[79] In my view this reasoning is equally applicable to a consideration of whether a shared residential arrangement is appropriate.

[80] While the parties are consenting to an order for joint custody, this is not a case where I have confidence that they will be able to communicate effectively going forward, or agree on issues related to L.F. any better than they have to date.

[81] The parents both acknowledge difficulties communicating and that they do not speak directly, and are only able to communicate in writing by text message or email.

[82] Further, it is clear that they have significantly disagreed on issues regarding L.F. G.H.F. does not support swimming lessons and viewed them as a waste of money, while M.D.E. viewed them as supporting an important life skill. G.H.F. did not support day camp in the summer while M.D.E. saw it as an important opportunity for socialization and activities for L.F. who is an only child living on a farm.

[83] G.H.F. did not dispute that in the previous summer he took L.F. with him while on his deliveries for his courier business, or that he smoked while L.F. was in the van with him.

[84] I agree with M.D.E. that swimming lessons and attendance at day camps are appropriate in the circumstances and are important opportunities for L.F., and are decisions which are in his best interests.

[85] L.F.'s bedtime at M.D.E.'s is 9 PM and she works daily with him to catch up on his reading level, while G.H.F. stated that L.F.'s bedtime in his home was around 10 PM. He appears not to have assisted L.F. with his reading as he did not acknowledge it was necessary.

[86] The parents also disagreed on L.F. spending time with M.D.E.'s parents during her weekends. G.H.F. felt this was essentially the equivalent of L.F. being with babysitters and that L.F. should be with him at these times. G.H.F. saw little value in L.F. spending some of his time while in his mother's care with the maternal grandparents, and felt that L.F. should be with him instead.

[87] I disagree with G.H.F.'s characterization of the time L.F. spends with his grandparents. A parent is entitled to share his or her ordinary lifestyle with the child when they are in their care, including the choice to spend time with extended family. A parent has no right to interfere with how a child spends his or her time with the other parent, unless the activity poses a risk to the child, or is not in the child's best interests.

[88] Family members, and particularly grandparents, are not merely babysitters when they assist a parent with care or otherwise spend time with the child. They offer love, affection, emotional ties, and can promote a sense of belonging in the family as a whole.

[89] In this case M.D.E. plans her time with L.F. in a way that encourages and maintains a positive relationship between L.F. and his grandparents. They assist caring for L.F. when she works on Saturdays which sometimes includes staying overnight in their home when they are available. They also spend other time together as a family.

[90] I view these decisions by M.D.E. of how she arranges her time with L.F. as both appropriate and entirely consistent with L.F.'s best interests.

[91] While not a major factor in the determination of whether a shared residential arrangement would be in the best interests of L.F., the issue of G.H.F.'s approach to child support is relevant.

[92] Financially supporting one's children in a responsible manner is an important part of being a parent. The failure to do so is generally a factor militating against a joint custody order as it demonstrates poor judgment and an inability to prioritize the child's interests. Jama v. Mohamed, [2015] ONCJ 619. In my view this reasoning is equally applicable when considering a shared residential arrangement.

[93] G.H.F. has not dealt with his financial support obligations for L.F. in a responsible and child focused manner, and he acknowledges having paid no child support and making no contributions to any extraordinary expenses related to L.F. since separation. His view that they had a shared parenting arrangement since separation which he felt justified no child support is not a reasonable one based on the actual arrangements that were in place.

[94] I am also not convinced that G.H.F. has at all times behaved appropriately in front of L.F. The incident related by G.T. about G.H.F.'s comment to L.F. in the grandparents' foyer that L.F. enjoyed his time with him better is entirely inappropriate, and one I view as designed to undermine L.F.'s relationship with his maternal family.

[95] Further, while G.H.F. denied in his testimony that he had ever coached L.F., he acknowledged that he does encourage him to use his own voice to express his views to his mother if he wants to live with him. G.H.F. stated he has told L.F. that he needs to use his voice because L.F.'s living arrangements are not up to him.

[96] In addition, the comments that M.D.E. testified to that L.F. has made to her are strongly suggestive that G.H.F. has engaged L.F. in adult discussions. She testified that L.F. has stated to her that, "daddy is going to win", referring to the litigation, and recently referenced court papers his father was preparing, and stated to his mother that his father told him she was lying.

[97] These examples illustrate to me that G.H.F. is not only exposing L.F. to adult discussions about issues of custody and access, but also attempting to negatively influence L.F. L.F. is 7 years old and should not be involved in these discussions or in decisions over which his parents disagree. This behaviour engaged in by G.H.F. is not child focused or in L.F.'s best interests, as it exposes and involves him in his parents' conflict and potentially undermines his stability in his mother's home.

[98] G.H.F. has been content to permit M.D.E. to be responsible for all issues related to L.F.'s health, education, and welfare, but characterized her only as a "moderately okay mother." He acknowledged having taken no steps to involve himself in any of these matters. He also did not feel that L.F. was behind in his reading in spite of having never spoken to his teachers.

[99] There should be some level of consistency in the two homes if a shared parenting schedule is going to work. Few of these elements are present here. M.D.E. testified that L.F.'s bedtime in her home was 9 PM with G.H.F. testifying that in his home it was around 10 PM.

[100] There was also insufficient evidence of historical and appropriate communication between the parents to support a shared residential arrangement and, given L.F.'s young age, effective communication and cooperation are particularly important.

[101] However, while there was no independent evidence of views and preferences of L.F. I accept that he has a positive and loving relationship with both of his parents. While both parents were critical of each other in some respects and took differing views on what was best for L.F., neither disputed that the other was not an important part of L.F.'s life.

[102] In all the circumstances of this case a shared parenting arrangement is not workable or in the best interest of the child. A shared residential arrangement, particularly for young children, requires a high degree of cooperation, communication, mutual respect, and a commitment to put the children's needs first. G.H.F. has not displayed enough of these qualities on the evidence before me to support a shared residential arrangement.

[103] One additional overnight per week rather than two is also largely consistent with the arrangements that L.F. is accustomed to. While the court should never simply defer to the status quo, and carefully consider the principle of maximum contact, in the particular circumstances of this case the best interests of L.F. favour a residential arrangement that involves one additional overnight per week to correspond with M.D.E.'s work schedule.

[104] While the parties agreed to joint custody M.D.E. seeks final decision-making authority in the event of disagreement. No matter how detailed the custody order there will always be gaps and unexpected situations, and when they arise they must be able to be addressed on an ongoing basis.

[105] For the same reasons that a shared custodial arrangement is not in L.F.'s best interests, in the circumstances a requirement that the parties agree on major issues will simply invite indecision and power struggles. As such, in order to insure decisions regarding L.F. are made in a timely fashion, M.D.E. shall be required to consult with G.H.F. on major issues, but will have final decision-making authority in the event of a disagreement.

[106] The issue is not to reward or punish either parent but to put an arrangement in place that will best serve the interests of the child. Having considered all the factors outlined herein, and in s.24(2) of the CLRA, the best interests of the child support an order that L.F. remain in the primary care of M.D.E. with regular access to G.H.F.

Arrears and Ongoing Child Support

[107] Based on the residential arrangements the court has found since separation and ordered going forward G.H.F. is liable for child support.

[108] G.H.F.'s evidence was that his income for child support purposes should be his line 150 income from his tax returns as follows:

• 2016: $30,023.80
• 2017: $22,357
• 2018: $21,456.06

[109] For 2019 he commenced employment in July doing construction at $20 per hour 40 hours per week. He projected his 2019 income from all sources at $30,000.

[110] The issue then becomes whether it is appropriate when calculating child support to use the annual incomes as stated by G.H.F., or whether another income should be imputed to him for some or all of the years at issue.

[111] The first question under Drygala relates to whether G.H.F. has been intentionally underemployed or unemployed for any or all of the time since separation. The onus is on M.D.E., as the person seeking to impute income, to establish this on a balance of probabilities.

[112] For the following reasons M.D.E. has satisfied the onus of establishing that G.H.F. has been intentionally underemployed.

[113] Up until July 2019 when he started his current job, G.H.F. was largely self-employed as a courier and a Farrier. The net income he claims on his tax returns for 2016-2018 include significant deductions for his business expenses. However, the financial disclosure provided by the applicant was woefully inadequate with respect to his business income.

[114] A self-employed person has the onus of demonstrating clearly the basis of their gross and net income. This includes demonstrating that the deductions from gross income should reasonably be taken into account in the deduction of income for support purposes. Whelan v. O'Connor.

[115] A self-employed person has the inherent obligation to put forward not only adequate, but comprehensive records of income and expenses, from which the other party and the court can draw conclusions and the amount of support can be established. Meade v. Meade.

[116] A party must make full and complete financial disclosure to ensure that the information required to make a decision on the issue is before the court. Charron v. Carriere, 2016 ONSC 4719. The court will usually draw an adverse inference against a party for his or her failure to comply with their disclosure obligations as provided for in section 21 of the Guidelines. Smith v. Pellegrini; Maimone v. Maimone.

[117] The onus is on G.H.F. to provide a full and complete financial picture. He has not done so. He chose to provide virtually no evidence by way of financial records or statements from his businesses, and there were no particulars on the number of clients, revenues, deductions etc. for his businesses that appear to be his primary source of income from separation to July 2019. He also testified to other temporary employment since separation but provided no particulars.

[118] The 2018 income tax return he filed contained no reference to the amounts or categories of his business expenses and when asked during cross-examination regarding the particulars of his business expenses he stated he did not know.

[119] Further, G.H.F. did not provide any of his notices of assessment for the years since separation as required, and only provided his tax returns for those years. He provided no documentary evidence to establish any income he has received to date in 2019 from his Farrier business or a paystub from his construction job. He also provided no evidence from his current employer to confirm that his employment there was temporary.

[120] On the basis of these considerations an adverse inference is appropriate for G.H.F.'s failure to comply with his disclosure obligations. This mitigates the obligation on M.D.E. to establish an evidentiary basis to impute income and supports a finding that G.H.F. has been intentionally underemployed since December 1, 2017.

[121] Once underemployment is established, the onus shifts to the payor to prove one of the exceptions of reasonableness.

[122] On the evidence before me G.H.F. has not established any justification for his underemployment.

[123] He testified to some health issues but provided no independent medical evidence, and confirmed in his testimony that apart from some shortness of breath he was generally able to do everything he has done.

[124] Further, G.H.F. provided no evidence on the viability of his own businesses, which appeared to be his primary source of income up until July 2019, or the basis upon which he believed that these were a reasonable course of employment for him.

[125] He also provided no evidence of any efforts to find other employment up until July 2019, and acknowledged in his testimony that when he was unemployed for a couple of months earlier this year he did not seek employment.

[126] G.H.F. has failed to establish that his limited job search and his choice to pursue self-employment are reasonable in the circumstances. He has simply presented the net income he claims to have earned in his tax returns and takes the position that this should be the basis for any support. To justify his underemployment, which has resulted in annual incomes at less than he would make working for minimum wage, G.H.F. is required to justify his choices in a reasoned, practical, and compelling way. He has failed to do so.

[127] The fundamental obligation of a parent to support his or her children takes precedence over the parent's own interests and choices.

[128] While a payor may take a job for less money, that decision must be reasonable, and the payor will not be excused from supporting their children by accepting employment or pursuing self-employment for less money than they are capable of earning.

[129] A parent is required to act reasonably when making financial decisions that may affect the level of child support available from that parent, and will not be permitted to knowingly avoid or diminish the obligation to support their children. A parent will not be excused from their child support obligations in furtherance of unrealistic or unproductive career aspirations or interests. G.H.F.'s level of earning has been below what he is capable of earning. His state of under employment prior to starting his current employment in July 2019 is the result of a series of voluntary choices on his part and he has failed to establish the reasonableness of those choices.

[130] On the basis of these considerations there is no reasonable excuse for G.H.F.'s underemployment since the date of separation.

[131] The issue then becomes what is the appropriate income to impute in the circumstances. In my view the current income he is earning is the appropriate starting point in the consideration of his earning potential. He testified that since July 2019 he earns $20 an hour for 40 hours a week which extrapolates to an annual income of $41,600. He did indicate that the job may not last past the fall, but provided no independent confirmation of this from his employer.

[132] There is also no reason why he would not be capable of pursuing minimum wage employment which amounts to approximately $30,000 of annual income. In the circumstances an imputed income of $35,000 per year is, in my view, the appropriate level of income as it balances his capacity to earn income in construction, while recognizing that he may need to seek further employment if his current job ends.

[133] It is also appropriate that the child support commence on December 1, 2017, following the date of separation. M.D.E. made the claim for child support in her answer dated May 8, 2018, and G.H.F. acknowledged receiving the letter from Oxford County dated March 5, 2018 notifying him of M.D.E.'s claim for child support. In the circumstances the short delay between separation and notice to G.H.F. of her claim for child support is not unreasonable.

[134] Further, as noted above G.H.F. has not behaved reasonably with respect to his approach to child support. He acknowledged he has paid no support or contributed to any extraordinary expenses since separation. I agree with the submission of counsel for M.D.E. that G.H.F.'s position regarding shared custody and child support appears to have been motivated more by financial considerations rather than a child focused assessment of L.F.'s needs.

[135] On the basis of the foregoing there shall be a child support order commencing December 1, 2017 in the amount of $304 per month payable by G.H.F. for one child based on an imputed income of $35,000.

[136] As a result of his ill-advised approach to child support, G.H.F. has accumulated arrears. Arrears owing as a result of this order shall be repayable at a rate of $200 per month. This repayment rate balances the modest financial circumstances of both parties, while recognizing the obligation of a parent to support their child and the recipient's need to receive that support.

[137] With respect to the proportional contribution for section 7 expenses going forward, I also have some concerns with the level of M.D.E.'s financial disclosure.

[138] M.D.E.'s evidence outlined that her line 150 incomes were as follows:

• 2016: $35,390
• 2017: $31,022
• 2018: $34,994

[139] For 2019 she testified her income continues to be from the Woodstock Public Library and she expects her annual income to be approximately $25,000.

[140] Her employment with the Woodstock Public Library has remained consistent throughout this matter and her line 150 income for 2016-2018 was between approximately $31,000 and $35,000 (which included farming losses).

[141] She testified that in 2018 her income was higher by $10,000 because of a one-time sale of stocks she had owned for several years, and that her regular employment income was approximately $25,000. She did not provide confirmation of this sale of stocks, or of the particulars of the farming losses she claimed every year to reduce her total taxable income. She also provided no confirmation of her year-to-date income from the Woodstock Public Library, or from any other income she may have received from farming.

[142] Based on the evidence before the court I am of the view that M.D.E.'s income, for the purposes of calculating the proportional share of section 7 expenses, should also be $35,000. This reflects what appears to be her historic annual income from Woodstock Public Library, and the fact that she has not provided particulars of any of the farming losses or investment income she has claimed.

[143] On this basis the parties shall equally share any section 7 expenses consented to in advance, with such consent not being unreasonably withheld.

Final Order

[144] On the basis of all the considerations outlined herein there shall be a final order as follows:

1. Joint custody with primary residence of L.F. with M.D.E.

2. The parties shall consult on major decisions related to the health, education and welfare of L.F. In the event of a disagreement M.D.E. shall have the final decision-making authority.

3. G.H.F. will be responsible for all the transportation for the access schedule outlined herein. If there is additional access to accommodate M.D.E.'s work schedule she will be responsible for the transportation.

4. Unless otherwise agreed by the parties L.F.'s access to G.H.F. to include the following:

a. Alternate weekends from Friday at 5 PM to Monday morning before school with the drop off to occur at M.D.E.'s home.

b. One other overnight visit per week to include alternate Monday nights following the weekend L.F. is with G.H.F. when M.D.E. is working the evening shift, and on the alternate weeks a midweek overnight as agreed between the parties.

c. Unless agreed otherwise, each party to have two non-consecutive weeks of uninterrupted time during the summer holidays which shall entail adding the Monday-Friday onto a weekend that parent has L.F. pursuant to the regular schedule.

d. An equitable sharing of other holidays and special occasions as agreed between the parties.

e. Other times as may be agreed between the parties

5. The child shall not be exposed to adult conflict or discussions, or spoken to in a negative manner about the other parent or their family. The parties shall not discuss this litigation with the child except to advise him of the visitation schedule outlined herein.

6. Child support payable by the applicant to the respondent for one child on an imputed income of $35,000 commencing December 1, 2017 and monthly thereafter the amount of $304 per month.

7. Arrears which have accumulated under this order shall be repaid at a rate of $200 per month.

8. Section 7 expenses shall be shared equally by the parties based on their annual incomes of $35,000 each. Section 7 expenses shall be consented to in advance, with such consent not being unreasonably withheld.

The parties are encouraged to agree upon costs in this matter. In the event that the parties do not agree, any party seeking costs will file written submissions of no more than 3 pages excluding attachments by no later than October 25, 2019, with the responding party filing a written response of no more than 3 pages excluding attachments by no later than November 8, 2019. If no written submissions are filed by the deadline, the parties will be deemed to have resolved the matter of costs.

Released: October 7, 2019

Signed: "Justice S. E. J. Paull"