M.A. v. B.N., 2022 ONCJ 529

ONTARIO COURT OF JUSTICE DATE: 2022 11 17 COURT FILE No.: Sudbury D-385-17 ext 1

BETWEEN:

M.A. Applicant

— AND —

B.N. Respondent

Before Justice Leonard Kim

Heard on September 29 and October 28, 2022 Reasons for Judgment released on November 17, 2022

Serge Treherne...................................................... counsel for the applicant mother M.A. Dhiren Chohan..................................................... counsel for the respondent father B.N.

KIM, LEONARD J.:

1: Factual Overview

[1] The applicant mother, M.A. and the respondent father, B.N., are the biological parents of J.A born […], 2017, and B. A-N. born […], 2019, (hereinafter the “children”). This matter commenced before me on September 29th, 2022, in the form of a Focused Hearing. An Urgent Motion to introduce fresh evidence was also heard on October 28, 2022.

[2] The issues to be decided involving the children are decision-making responsibility, primary residence and parenting time. Encompassed within the issue of decision-making responsibility is the sub-issue of which school or daycare the children should attend. The applicant mother is seeking an order for the sole decision-making responsibility and primary residence of the children. In doing so, she asserts that the Respondent father’s parenting time should be generally every second weekend from Thursday after school to Monday morning and at such further and other times as can be mutually agreed upon between the parties.

[3] Contextually, it is important to note that the applicant mother had the primary residence and final say on any major decisions involving the child J.A., as part of a temporary without prejudice order issued by Justice Christie on August 27, 2018, in Espanola. That order also provided for joint custody as between the parties. Those proceedings are no longer active.

[4] On a related note, the applicant has the primary care and sole decision-making responsibility of her two other children from a different relationship. Those other children, Jo. and S., are 11 and 13 years old respectively and parenting time is shared with their fathers on a bi-weekly basis.

[5] There does not appear to be any child protection concerns that inhibit the ability of either parent to care for J.A. and B. A-N. on the record before me.

2: The Position of the Applicant Mother

[6] The applicant mother brought this application primarily because from her perspective, the current schedule is not consistent with what is in the best interests of B. A-N. and J.A. She explains in her affidavit and in her testimony before me that their day-to-day school and day care arrangements are disruptive to their daily routines and interferes with the quality of their relationship with their two other siblings, Jo. and S.

[7] The applicant mother lives in the Minnow Lake area of Sudbury and is employed in downtown Sudbury. In the week about arrangement, she is required to drive from her home in near the Kingsway and Levesque intersection of Greater Sudbury to Saint James Catholic school in Lively to drop off J.A. She would also have to drop off B. A-N. at Walden Daycare also located in Lively and then return back to downtown Sudbury to her place of employment. Since August 2022, she moved B. A-N. to Maple Tree Daycare located near the Bell Park area. This will be discussed in more detail later. In her evidence, she explained to the Court that because she has to be at work by 8:15 a.m. and at her desk by 8:30 a.m., this morning arrangement requires her and the children to leave her home in New Sudbury at approximately 7:00 a.m. on the weeks that she has care of B. A-N. and J.A. In the afternoons, this driving arrangement would be repeated from Lively to her home in New Sudbury arriving home at approximately 7:00 p.m.

[8] According to the applicant mother, this routine was having a negative impact on J.A. and causing him to be tired at school in the last academic school year. Her concerns are independently corroborated in a message from J.A.’s teacher, Mrs. McLaughlin, in November and December 2021 and February of 2022. She also asserts that J.A. was showing signs of anxiety and distress and at one point was throwing up and getting sick frequently while attending St. James elementary school in Lively. She emphasizes to this Court that these long days of traveling to Lively are having a negative impact on J.A.’s ability to focus and work at school. Adding to her concerns is her belief that J.A. may suffer from attention deficit hyperactivity disorder or ADHD. She emphasizes that if this is the case, J.A would require a consistent routine that would provide him with enough sleep, time for physical activity and processing time to transition from one activity to another.

[9] Ultimately, the applicant mother asserts that the current week about arrangement that results in extensive travel time from Minnow Lake to Lively when J.A. is in her care, is not in the child's best interest. As a proposed remedy, she recommends that J.A. move schools to Pius XII Catholic Elementary School which is located only 2.5 kilometers from her current residence in the Minnow Lake area. Adding to this proposal, is the benefit of having J.A. attend the same school as his half sibling, J.A., who currently attends Pius XII near her home.

[10] Similarly, the applicant mother’s concerns regarding the distance from her Minnow Lake home to Lively equally impacts B. A-N. This child had been attending Walden Daycare prior to the mother moving away from Lively and continues to attend Walden on the weeks that she is with the respondent father at his home in Lively. Her pleadings make reference to B. A-N. regressing, having toilet accidents and getting more and more confused each time she comes home after a week with her father. However, due to the concerns regarding the travel arrangements during her parenting time with B. A-N., the mother took it upon herself to move B. A-N. to Maple Tree Daycare on the weeks she has the child. This daycare is located near Bell Park, only minutes away from her place of employment in downtown Sudbury. According to the applicant, this move from the Walden Daycare to Maple Tree Daycare was a necessary step that recognizes the best interests of B. A-N. given the geographical benefits and impact this has on their daily routines.

[11] Throughout the applicant mother’s pleadings are consistent expressions of concern for the respondent father’s alcohol or drug use in the past. The applicant mother is concerned that even if the respondent father has achieved sobriety and no longer uses drugs or consumes alcohol excessively, that a potential relapse could be devastating for their children. She indicates that the only reason why she agreed to a week about parenting plan was because the respondent father’s mother was sharing her residence with the respondent father. Recent events have resulted in the respondent father's mother moving to North Bay leaving the respondent father to care for the children during his parenting time without the benefit and assistance of the paternal grandmother. She points out that had she known that the respondent father’s mother was not going to remain in his residence, she would not have agreed to a week about parenting arrangement. The applicant mother indicates that she has never seen any evidence that the respondent father has successfully completed a treatment program either residential or aftercare.

[12] With respect to the domestic assault allegation from April 2021 and October 2020 where it is alleged the respondent father was punched by the applicant mother in the presence of B. A-N. and J.A., she denies doing so and claims self-defence in response to the respondent father acting in a menacing manner with a fork.

[13] Finally, with respect to the multiple moves and changes in employment, she asserts that this was all done out of necessity to avoid homelessness, poverty and to seek out better opportunities for her education and employment, which she continues to actively pursue. From the applicant mother’s perspective, these decisions have and will ultimately benefit their children in the long run.

3: The Position of the Respondent Father

[14] The respondent father vigorously disputes this application which would essentially reduce his parenting time from an equal parenting arrangement to weekends on a biweekly basis. At the Focused Hearing heard on September 29th, he submitted that the arrangement of shared parenting time on a week about basis and joint decision-making responsibility has worked relatively well since separation and should continue. He was vigorously opposed to reducing his shared parenting time arrangement to one of a general, bi-weekly arrangement.

[15] In recognizing the volatile history of their relationship over the past 8 years, the respondent father initially submitted that the status quo is evidence that a shared parenting arrangement and joint decision-making responsibility should continue. In support of his argument, he indicated that since the point of separation in the spring of 2021, this shared parenting arrangement was an agreement that the applicant mother willingly arranged and participated in. It was not until the mother moved away from Lively to a location initially unknown to him that her willingness to cooperate changed.

[16] In essence, the respondent father submits that this application for sole decision-making responsibility and primary residence brought by the applicant mother is based on convenience regarding scheduling with a view of coordinating her parenting time with her two other children from another relationship. While the applicant mother makes repeated reference to the respondent father’s history of drug and alcohol use, and accuses him of being a womanizer, he claims to have rehabilitated himself from any substance abuse and ultimately, none of these allegations have merit. He submits that the applicant mother’s willingness to agree to week about parenting time over the past 18 months demonstrates strong evidence of the absence of any real concerns and highlights the hypocritical nature of her legal position today.

[17] In making this submission, the respondent father takes issue with the applicant mother's credibility. He submits that he was a victim of domestic violence from her on two occasions; first in October 2020 in front of their son J.A., and secondly in April 2021 in front of their daughter B. A-N. With respect to the latter incident, he points to a text message filed in his materials that purports to include an apology from the applicant mother with subsequent to the April 2021 assault where he alleges that the applicant mother punched him three times, including once in the nose and two in the back of his head.

[18] In assessing what would be in the best interests of J.A. and B. A-N., the respondent father alleges that the applicant mother has a history of instability insofar as her places of employment and residences are concerned. He points to the applicant mother having three different employers since April 2021 and accuses her of leaving Nogdawindamin Child and Family Services due to a child welfare investigation as a result of her allegedly assaulting him in April 2021. She then went on to work at Sagamok Anishnawbek before moving on to her current position as a Clinician at Compass in Sudbury.

[19] With respect to residences, he asserts that the applicant mother has moved through multiple residences in various communities and points to this as a sign of instability and a lack of confidence in her ability to provide a stable home for the children. The respondent father also submits that the choice by the applicant mother to move to the Minnow Lake area of Sudbury was not in the best interests of their children because it was open for her to find a place to live that would have been closer to the children's daycare and school located in Lively. In support of this argument, he references the applicant mother’s affidavit where she admits that when she was living in Lively prior to her current residence, she did have access to daycare and that the hours at that daycare were an improvement from Sagamok.

[20] Further, he presents himself as capable and proven to maintain a stable residence and employment as an Asset Maintenance Worker with the Public Works Department for Atikameksheng, as evidenced in his current situation that has been unchanged since October 2019.

[21] With respect to J.A.’s school, the father wishes to have him remain at St. James in Lively since he completed his JK year there and is currently in SK. Furthermore, J.A. and B. A-N. have spent most of their lives in Lively and have come to know fellow classmates and friends during their experiences while living in that community and attending at Walden Daycare and St. James school since 2020 and 2021 respectively.

[22] The respondent father submits that the mother decided to unilaterally move B. A-N. to the Maple Tree Daycare near Bell Park without his input and highlights this as evidence of her attempt to sideline his parenting time in order to facilitate her own schedule and time with her children from another relationship. He is seeking to have B. A-N. returned to the Walden Daycare in Lively on the weeks that the child is with her mother. This will permit this child to attend a single day care as opposed to two in alternating weeks. In his view, if B. A-N. is impacted negatively by attending two different daycares and participating in two different routines, this is solely a result of the applicant mother’s unilateral decision to move B. A-N. to Maple Tree Daycare which has resulted in her attending these two different childcare establishments at the same time. For this reason, he asserts that B. A-N. should be returned to Walden Daycare as her sole childcare agency.

4: The Urgent Motion for Fresh Evidence Subsequent to the Focused Hearing

[23] At the conclusion of the Focused Hearing on September 29, 2022, the Court reserved. The matter was made returnable on November 16, 2022, in F.C.D. court, to check in on the status of my decision, in the event that it is not released by that date. Citing fresh evidence that resulted in J.A. being moved from St. James Catholic School to Pius XII Catholic School without his consent or proper notice, the respondent father brought an Urgent Motion on October 14, 2022 to introduce this evidence that did not exist at the time this hearing was initially argued. On October 15th, I reviewed the motion and affidavit of Mr. N. in chambers and found that the proposed fresh evidence could impact the very issues that I was in the process of deciding and held that the test for urgency within the meaning of Rule 14(4.2) was met. In my endorsement, I ordered the motion for fresh evidence to be set before me as soon as the Court could accompany, and the lawyers were available. The applicant mother was given until October 24th to file her responding materials to the motion to introduce fresh evidence.

[24] The proposed fresh evidence tendered by the respondent father at the fresh evidence motion was admitted on consent after a 2-hour hearing held on October 28/22. That evidence consists of (1) the affidavit of B N. dated October 14, 2022 (2) the affidavit of M.A. dated October 21, 2022 (3) the reply affidavit of B.N. dated October 25, 2022, and (4) the supplementary viva voce evidence of Ms. A. given in court on October 28, 2022.

5: Section 24 of the CLRA – Best Interests of the Child

[25] I remind myself that in every aspect of the Court’s analysis, the best interests of J.A and B. A-N. must be applied throughout. Their physical, emotional, psychological safety, security and well-being must be the primary consideration. The test for determining parenting time is what order is in the best interests of the child. In making this determination, I have considered the “best interest” factors set out in subsection 24(3) and (4) of the Children’s Law Reform Act (hereinafter “CLRA”), as well as all other relevant considerations in the evidence before me.

[26] I am also mindful of the maximum contact principle in s. 24(6), which requires me to apply as much parenting time for the children with each parent as is consistent with their best interests.

[27] The best interests of the child have been found to be met by having a loving relationship with both parents and that such a relationship should be interfered with only in demonstrated circumstances of danger to the child’s physical or mental well-being. Pastway v. Pastway (1999) 49 R.F.L. (4th) 375 (Ont. General Division).

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

[29] The party who seeks to reduce normal access will usually be required to provide a justification for taking such a position. The greater the restriction sought, the more important it becomes to justify that restriction. M.A. v. J.D. 2003 ONCJ 52807, [2003] O.J. No. 2946 (OCJ).

6: Is joint decision-making responsibility appropriate?

[30] A focal point in my analysis requires me to consider whether or not joint decision-making responsibility between the parties is appropriate. As outlined above, the applicant mother is seeking to gain sole decision-making responsibility of the children. On the other hand, the respondent father was seeking to maintain the status quo which reflects a joint decision-making regime and week about parenting time with the children, J.A. and B. A-N. Since the admission of the fresh evidence, he is now seeking sole decision-making responsibility and primary residence of the children.

[31] Joint decision making should not be ordered where there is poor communication, and the parties fundamentally disagree on too many issues affecting the child’s best interests. Graham v. Butto, 2008 ONCA 260, Roy v. Roy 2006 ONCA 15619, [2006] O.J. No. 1872 (Ont. C.A.).

[32] As conceded by both lawyers at the fresh evidence motion, the recent events where the applicant unilaterally moved J.A. to Pius XII school is further proof that co-parenting will not work and that one of the parties should have sole decision-making authority. In consideration of the factors listed by the Ontario Court of Appeal in Kaplanis v. Kaplanis 2005 ONCA 1625, [2005] O.J. No. 275, I agree.

[33] This is not a case where co-parenting would be in the best interest of the children involved and any doubt in this regard has been settled given the admission of the fresh evidence on October 28th. Additionally, I also recognize the history of domestic violence where it is alleged the applicant mother punched the respondent father in the presence of the children in October 2020 and again in April 2021. There is evidence of the applicant mother admitting to one of these assaults. While I will have more to say about this alleged history of domestic violence later in my reasons, combined with the recent events outlined in the fresh evidence admitted on consent, I am convinced that the prospect of a joint decision-making arrangement between the parties is bleak. Accordingly, I conclude that joint decision making between the parties is not in the best interests of J.A. and B. A-N.

7: Parenting Time and Primary Residence

[34] In the case at bar, both parties are gainfully employed on a full-time basis in their respective occupations. The applicant mother is also pursuing a Master’s degree in her chosen area of study and has secured employment and a residence in Sudbury. The respondent father has had stable full-time employment since 2019 that includes benefits and access to leave credits to permit him to attend medical and school appointments for the children. The parties live in separate residences within the city of Greater Sudbury and the applicant mother enjoys parenting time and primary residence with her two other children from a prior relationship.

[35] The applicant mother makes considerable references to the respondent father’s past illicit drug use and abuse of alcohol. Having reviewed the evidence before me, I am not convinced that the concerns expressed by the applicant mother with respect to the respondent father's history of drug and alcohol use is of any merit. The affidavit of the respondent father confirms that he has enjoyed equal parenting time unsupervised with the children in the absence of any child protection concerns including excessive use of drugs or alcohol since approximately April 2021. The applicant mother's evidence in this area is largely focused on historical accusations that evidently, are no longer a concern. These repeated accusations of historical drug and alcohol abuse appear to be used as a sword by the applicant mother against the respondent father, not to raise any concerns about his parenting but instead, to support her proposal for an adjusted schedule and routine that best suits her routine without consideration for how this would negatively impact J.A. and B N-A.'s equal parenting time with their father that they currently benefit from.

[36] I am of the view that reducing the parenting time from an equal, week about arrangement to bi-weekly weekends for the respondent father word result in a significant net reduction in parenting time for these two children with the respondent father with no legal justification.

[37] Indeed, the text communications in the affidavit of the respondent father at Tab 11, exhibit “C” illustrates that at times the applicant mother was content with some of the responses she received from the respondent father and that both parties were able to discuss the day today concerns required to meet the needs of J.A. and B. A-N. including illnesses and unpredictable events involving the children.

[38] This is further evidence that leads me to conclude that the respondent father today does not have a problem with excessive use of alcohol or drugs. I accept the respondent father’s evidence that he is clean and sober and commend him for his commitment to seek treatment and rehabilitation with Bebbowopka Treatment Centre in July 2019 and in the Family Well-Being program with Nogdawindamin in September 2021. Successful completion of both programs demonstrates a willingness on the part of the respondent father to address historical substance abuse issues and seek out the skills necessary to be a better parent. Clearly, his efforts have produced fruit and the applicant mother, by implication of agreeing to week about parenting time has recognized this since April 2021, for the past 19 months. I note that the applicant mother in her pleadings affirms that she was unaware of the completion of any treatment programs by the respondent father. Her interpretation of what is in the best interests of B. A-N. and J.A. and her concerns of a catastrophic relapse by the respondent father appear to be without merit in these current proceedings.

[39] Further evidence of a true lack of any concerns for a potential relapse by the father is documented in a message sent by the mother on October 20, 2021. This text message was similar to an ultimatum that the applicant mother sent to the respondent father and reveals to the Court her true motives in these proceedings:

“Hi there: this is formal notice that I am requesting we switch the kids to a school in Sudbury. Currently the children are spending 12 hours on the road and in daycare that isn’t fair to them. We can keep your parenting schedule as is should you agree. Should you not agree yo switching schools I will be forced to open an application for full decision making and will also be seeking fees for doing so.”

[40] Firstly, I find that the mother was willing up to the point of filing this application to agree to equal parenting time and joint decision making but only if the respondent father agreed to move J.A. and B. A-N.’s school and daycare to Sudbury. In her offer to the respondent father that she was prepared to agree to, is a complete absence of any concern related to the respondent father’s historical drug and alcohol struggles. It only becomes a concern in her later pleadings filed with this court because the respondent father did not agree to her proposal to switch the children’s schools.

[41] Secondly, I find that the intentions of the mother are primarily out of convenience for her household routine after she made the decision to move away from Lively to Sudbury. Let me be clear that I do not find her choice to move to Sudbury from Lively as an unwise decision. I accept that it is not an easy task for families to find affordable housing, daycare, schooling and employment all within close geographical proximity in Greater Sudbury. I also commend the applicant mother for her ongoing pursuit for a higher education and professional experiences in developing her career in the social work field. The Court is impressed with her tenacity and drive to contribute to our local society in addressing addictions all while being a loving mother of four (4) and a student. However, I find that her reasons for seeking the move of the children’s school and daycare to be premised on exaggerated facts. On the evidence before me, I do not see B. A-N. and J.A. spending 12 hours on the road and in daycare on the weeks that they are in the applicant mother’s care. This is not transporting the children from one city to another. At its high end, the time required to travel from the applicant mother's home in Minnow Lake to Saint James School and Walden Day Care in Lively is approximately 22 minutes. I do not understand how the applicant mother claims that this amounts to a 12-hour day on the road and in daycare in light of this geographical reality all within the City of Greater Sudbury.

[42] J.A. and B. A-N. will continue to have two primary residences consistent with the current equal parenting time arrangement that has been in place for a significant period of time. The parties will continue to share parenting time on a week about basis as I firmly believe that a regular, constant presence from both parents in the lives of B. A-N. and J.A. is in their best interest.

8: Legal Principles - Choice of School and Daycare

[43] When it comes to deciding the choice of school, the case law summarized by Justice J. Audet at paragraph 37 in Thomas v. Osika, 2018 ONSC 2712, is instructive for the case at bar. In particular, the following key principles are most relevant:

“f. Factors which may be taken into account by the court in determining the best interests of the child include assessing any impact on the stability of the child. This may include examining whether there is any prospect of one of the parties moving in the near future; where the child was born and raised; whether a move will mean new child care providers or other unsettling features (Askalan v. Taleb, 2012 ONSC 4746 (Ont. S.C.J.)).

g. The court will also look to any decisions that were made by the parents prior to the separation or at the time of separation with respect to schooling (Askalan v. Taleb, 2012 ONSC 4746 (Ont. S.C.J.)).

i. A decision as to the choice of school should be made on its own merits and based, in part, on the resources that each school offered in relation to the child’s needs, rather than on their proximity to the residence of one parent or the other, or the convenience that his attendance at the nearest school would entail (Wilson v. Wilson, 2015 ONSC 479).

k. If an aspect of a child’s life such as school placement, is to be disrupted by an order of the court, there must be good reason for the court to do so. Thus, before a court will order a child to transfer schools, there must be convincing evidence that a change of schools is in the child's best interests (Perron v. Perron, 2012 ONCA 811 (Ont. C.A.)).”

Ultimately, the cases say that the convenience concerns of a parent must defer to what is in the best interests of a child's education. In other words, the convenience concerns regarding geographical proximity are secondary to addressing the child’s educational needs and ensuring stability. Furthermore, if there is to be a disruption of a child school routine, this requires convincing evidence that such a change would be in the child's best interest.

8(a): J.A.’s School

[44] I find that at its core, this application brought by the applicant mother is premised out of scheduling convenience for her own benefit and a desire to unify J.A. and B. A-N. with their half siblings Jo. and S. While those concerns are respectable and could benefit B. A-N. and J.A., reducing their parenting time with their father from equal, week about to two weekends bi-weekly would be unjustified and in the long run cause harm to their relationship with the respondent father. The relationship between B. A-N. and J.A. with their biological father must be cultivated, much like their relationship with their biological mother, the applicant. I do not see any compelling evidence before me to compromise what has been otherwise an equal, week about parenting regime between two loving parents for these two young children for the past 19 months.

[45] I do not accept that keeping J.A. at St. James school in Lively results in him having to return home with his mother at 7:00 p.m. on the weeks he is in her care. Geographically, these times do not add up. I accept the evidence of the respondent father that from the applicant mother’s residence in Minnow Lake, it is only 22 minutes to Saint James school in Lively and the direct route back home after school would mean that he would be home well prior to 7:00 p.m. on the weeknights he is in the applicant mother’s care as part of the current week about parenting arrangement.

[46] On the evidence before me, there is nothing that tells me in this current academic school year that J.A.’s experience at Saint James school in Lively is being negatively impacted by this current arrangement. I find that it would be in J.A.'s best interest to remain at St. James school in the foreseeable future. Additionally, I recognize that both parents jointly agree that their children should be raised Catholic and be exposed to indigenous culture and traditions. These important decisions can be fostered by Saint James Catholic school which has staff capable of offering and maintaining teachings on indigenous culture and traditions. In other words, I see no reason to move J.A. from St. James Catholic School in Lively and order him to remain there.

8(b): B. A-N.’s Day Care

[47] The applicant mother continues to pursue a higher education and is doing her best to balance her commitments in various aspects of her life. She is a mother to four children and is a registered social worker as a child and youth clinician. On top of that she is currently studying to complete her Master’s of Social Work at the University of Toronto and working on a full time basis. It is a regretful fact but the decision to move daycares for B A-N. appears to have been done without the agreement of the father prior to doing so.

[48] The Court frowns upon any unilateral major decision made by one parent without permitting reasonable consultation with the other, which I find happened in July to August 2022.

[49] Currently, the applicant mother pleads in her affidavit of September 6, 2022, that B. A-N. regresses after a week with the respondent father, has toileting accidents and gets more confused each time she comes home. I do not have any evidence that can state with any degree of persuasion that this is due to the week about arrangement of equal parenting time. However, I do find that having B. A-N. attend two different daycares as she shares time with each parent on a week about basis, is not in her best interest. The abrupt change caused by the applicant mother’s decision to move B. A-N. to the Maple Tree Daycare after her established routine at Walden Daycare was not in B. A-N.’s best interest. To the extent that there is any evidence of B. A-N. regressing, and while many possible explanations may exist for this, I conclude that the shifting of daycares is not helpful in this young child’s adjustment or stability. Accordingly, I order that B. A-N. attend the Walden Daycare exclusively while she enjoys week about parenting time with each parent.

8(c): Stability for B. A-N. and J.A. and their Schooling

[50] When B. A-N. enters junior kindergarten in September 2023, I find that it would be in her best interest to attend St. James Catholic School with her brother, J.A.

[51] While I accept the applicant mother’s explanations for her numerous moves to various residences over the years, and her employment advancements that she is entitled to pursue, the reasons for such instability cannot compromise what I consider to be in the best interests of J.A. and B. A-N. Ultimately, the applicant mother’s employment and residential situation is not as stable as that of the respondent father when I consider the evidentiary record. Even if I were to grant the applicant mother’s request and order J.A. to attend Pius XII, I cannot rule out that the applicant may move again in the near future due to her employment and educational situation that continues to evolve today. If that happens, the children’s schools would also have to be moved. This would not be in their best interest and they should be shielded from this potential source of disruption to their stability.

[52] While sending the children to St. James may be inconvenient to the applicant mother given her commitments to her two other children, her growing career and pursuit of a higher education, each of those interests must defer to what would be the best interests of J.A. and B. A-N. when it comes to a stable and healthy educational experience.

[53] The evidence clearly demonstrates stability, consistency and availability for both children to thrive in the Catholic faith and embrace their Indigenous heritage in Lively at St. James Catholic School. This was a previous decision that the parties came to when they were together. While much has changed since then, the stability amongst friends, educators and family in Lively remains. Accordingly, I find that it would be in the best interests of J.A. to remain enrolled at St. James Catholic School and for B. A-N. to be enrolled at the same school at the commencement of the 2023-24 school year.

9: Primary Residence

[54] J.A. and B. A-N. will continue to have two primary residences consistent with the current equal parenting time arrangement that has been in place for a significant period of time. The parties will continue to share parenting time on a week about basis as I firmly believe that a regular, constant presence from both parents in the lives of B. A-N. and J.A. is in their best interest.

10: History of Domestic Violence

[55] I have considered each of the factors listed in s. 24(3) of the Children’s Law Reform Act in assessing what is in the best interests of B. A-N. and J.A. At all times, I am governed by what is in their best interests and primarily, their physical, emotional and psychological safety, security and well-being. In considering the various factors listed in s. 24(3), I am conscious of the history of alleged domestic violence. I note the applicant mother denies assaulting the respondent father.

[56] However, in the text messages exchanged between the parties on April 19, 2021, at 1:05 p.m. the following exchange took place:

Respondent: “You smoked me in the face in front of our daughter…she doesn’t deserve that…no matter who’s fault it is.”

Applicant: “No she doesn’t. And I am sorry I reacted that way.”

[57] I see no such claim of self-defence or a denial from the applicant mother, where it is directly put to her that she physically assaulted the respondent father in the presence of their daughter B. A-N., who at the time, was less than 2 years of age.

[58] In response to another assault, she is alleged to have committed upon the respondent father in October 2020, in the presence of their son J.A., she denies that happened.

[59] I am unable to accept the explanations from the applicant mother with respect to both of the physical assaults that she is alleged to have committed upon the respondent father. With respect to the April 2021 assault, the text messages in my view contain an admission to that violent conduct in the presence of their young daughter. It is hard to understand why she relies on an affidavit in these pleadings that attempt to say otherwise, when the texts messages clearly support the fact that this assault indeed happened in the presence of B. A-N. in April 2021, around the time of their separation.

[60] Furthermore, I accept the evidence of the respondent father and have no reason to doubt his claim that he was assaulted on a prior occasion by the applicant mother in October 2020, only on that occasion, in the presence of their then 3-year-old son J.A.

[61] On the evidence before me, I find that on a balance of probabilities, that the applicant mother has physically assaulted the respondent father in April 2021 and October 2020, both in the presence of the children that are at the center of this focused hearing, B. A-N. and J.A.

11: The Fresh Evidence and Decision-Making Responsibility

[62] While I have considered each of the factors in 24(3) of the CLRA in determining what would be in the children’s best interests, the subsequent events that transpired after I reserved this Focused Hearing on September 29th, causes me to comment extensively on the applicability of section 24(3)(i) of the CLRA, the ability and willingness of each person in respect of whom the order would apply to communicate and co-operate, in particular with one another, on matters affecting the child.

[63] The most salient facts admitted on consent on October 28, 2022 are documented in the text messages and emails attached to the affidavits filed at the motion to admit this fresh evidence. Upon careful review of those affidavits filed at tabs 15, 16 and 17, and in light of the applicant mother’s supplementary testimony, I make the following findings of fact:

(a) October 1, 2022 - the applicant mother unilaterally arranged for bus transportation for J.A. to Pius XII without the father’s consent. In doing so, she notified the respondent father that he would have to meet her halfway to bring J.A. to school at St. James on the weeks he was in her care, or she would send J.A. to Pius XII commencing on Monday October 3, 2022.

(b) The mother explains that the reason for this arrangement is because 11-year-old Jo., who suffers from ADHD, would be at home alone in the morning and required to get to the school bus stop alone when she would be required to drive J.A. to Lively to attend St. James on the weeks J.A. is in her care.

(c) October 1, 2022 - The respondent father made it clear that he did not consent to a proposed move that would have J.A. change schools from St. James to Pius XII but that he would be willing to meet her geographically halfway provided that J.A. remained in his current school and that such an agreement was agreed to in writing.

(d) October 1, 2022 - The applicant mother expressed that while the Court was deciding the issue of which school J.A. would attend, there was nothing preventing her from unilaterally changing school registration for the upcoming week. She also expressed a willingness to keep J.A. at St. James if the respondent father could pick him up and bring him to the Lively area that week commencing October 3, 2022.

(e) The applicant mother cautions the respondent father and indicates that if he is not willing to pick up J.A. and drive him to St. James those mornings, that she is prepared to switch J.A.’s school and that the arrangements to move J.A.’s school are in place. It is explicitly acknowledged in these texts on October 1st that these are proposed arrangements to be put in place while the Court decides this identical issue.

(f) October 2, 2022 – the applicant mother provided a deadline of 5:00 p.m. that day for the respondent father to decide whether he would be picking up J.A. to bring him to St. James school in Lively. She warns that if he doesn’t agree to this, she will send the email confirmation of registration to have J.A. enrolled in Pius XII for Monday, October 3rd.

(g) October 3, 2022 – Mr. Chohan on behalf of the respondent wrote a letter and called the principal at Pius XII and notified her that J.A. was registered to attend St. James and that the parties were waiting for this Court to decide which school the child should attend in addition to decision making responsibility and residence. He also indicated to the principal that the matter was returnable before me on November 16th for a status update and that in the meantime, the status quo was to remain.

(h) October 5, 2022 – On October 5th, the respondent father received a proposal from the applicant mother as sent through his lawyer, Mr. Chohan. The respondent father was away at a remote hunting camp from October 4 – 7th and his access to cell phone service was limited. Also on October 5th, it was communicated by Mr. Chohan to the mother that he will provide an answer upon his return. The mother expressed to Mr. Chohan that she could no longer go into work late or work late hours and that the current arrangement was bordering on a child welfare matter because she has no option but to leave her 11-year-old child Jo. alone those mornings to take the school bus.

(i) October 10, 2022 – the respondent father received a message from J.A.’s teacher at St. James, Mrs. McLaughlin. This teacher indicated that the applicant mother had informed her that J.A.’s last day of school at St. James would be Friday October 7, 2022 and that the mother had already enrolled J.A. at Pius. This teacher was not expecting J.A. to be at St. James school going forward. The respondent father was not aware of what the mother had done and advised the teacher that J.A. is not enrolled at Pius XII and will be in attendance at St. James the following day, October 11th.

(j) October 11, 2022 – at 7:35 a.m., the applicant mother notified the respondent father that J.A. was no longer enrolled at St. James and was now registered at Pius XII. She was on her way to pick up J.A. from St. James and drive him to Pius XII.

(k) October 11, 2022 at 9:39 am – there is an agreement in writing between both lawyers on behalf of the parties that consisted of (1) an arrangement where J.A. would attend St. James school on an interim basis pending the release of my decision on the Focused Hearing, and (2) Mr. N., K. or the paternal grandfather would agree to pick up J.A. at Maple Tree Daycare in Sudbury at 8:15 am, on the weeks that J.A. is in the father’s care.

(l) October 11, 2022 at 10:14 a.m. – Mr. Chohan notified Mr. Treherne, counsel for the applicant, that the mother was on her way to pick up J.A. from St. James and drive him to Pius XII in violation of the status quo. Mr. Chohan requested a conference call with myself.

(m) October 12, 2022 at 10:56 a.m. – Ms. Foster on behalf of Mr. Treherne confirms receipt of a response on October 11th to their proposal sent on behalf of the mother on October 5th. In light of the response received from the father, the transportation issue raised by the mother appears to be resolved.

(n) Ms. Foster assures Mr. Chohan that Pius XII school has made it very clear to the mother that registration at that school is not going to happen. Ms. Foster also personally assures Mr. Chohan that registration of J.A at Pius XII will not happen.

(o) October 12, 2022 at 2:11 p.m. – Mr. Chohan discovers that the applicant mother had presented the expired interim family court order issued by Justice Christie on August 27, 2018, to St. James School, purporting to currently have joint custody with the final say in major decisions and primary residence for J.A.. This ultimately facilitated her attempts to have J.A. enrolled in Pius XII. In doing so, St. James school took the position that since the mother has custody and has registered J.A. at Pius XII, the child must attend school there. J.A. is no longer permitted to continue his schooling at St. James as long as he is registered at another school, which was the case.

(p) October 12, 2022 – Ms. Foster on behalf of Mr. Treherne’s Office express that they were unaware of the applicant mother’s actions and that they would review this with their client as this should not have occurred.

(q) October 17, 2022 – J.A. commenced full time attendance at Pius XII School, contrary to the wishes of the respondent father.

(r) October 28, 2022 – the urgent motion to admit this fresh evidence was held. In light of this fresh evidence, I issued an Interim Order that included a requirement to have J.A. re-enrolled in St. James Catholic School forthwith. I also ordered sole decision-making responsibility and primary residence of the children in favour of the respondent father with bi-weekly parenting time for the applicant mother, pending the release of my decision on this Focused Hearing.

[64] Subsequent to this Focused Hearing being heard on September 29, the Court received an urgent motion seeking to introduce fresh evidence in these proceedings. That evidence comes in the form of an affidavit sworn by the respondent father dated October 14, 2022. In it is an allegation that the applicant mother unilaterally moved J.A. to Pius XII elementary school in Sudbury without the respondent father’s knowledge or consent. It is alleged that this all took place while I reserved my judgment on the very issue of which school J.A. is to attend in the future.

[65] It was also alleged that the applicant mother presented an expired court order issued by Justice Christie in Espanola on August 27, 2018, purporting to have primary residence and joint custody of J.A., which resulted in this child being moved from St. James to Pius XII in the face of direct opposition from the respondent father as I reserved to decide this very issue.

[66] We know as a fact that that order was of no force an effect today or at the time, she presented the order to school administration at St. James to register J.A. at Pius XII school. Furthermore, the respondent father alleges that this step was taken unilaterally by the applicant mother while she was aware that he was away on a hunting trip and that this court had reserved on this very important issue.

[67] It is important to clarify that at the outset of the Focused Hearing, counsel for the applicant mother, Mr. Treherne, advised the Court that a prior court order pertaining to the child J.A. issued on August 27, 2018, by Justice Christie had existed. He went on to explain that he had contacted the Espanola Courthouse that same morning and confirmed that those proceedings had been formally withdrawn and that as a result, those proceedings had ended. It was also made clear by Mr. Chohan that it was a Temporary Without Prejudice Order. While the specific time as to when the applicant mother presented this expired court order to St. James school officials is immaterial, I find that the applicant mother did so after I reserved my decision on September 29th and up to and including October 12, 2022, when this was discovered by Mr. Chohan. It is clear that the presentation of Justice Christie’s expired order in fact formed an essential role in the applicant mother’s efforts to persuade school officials to permit the relocation of J.A. from St. James to Pius XII immediately.

[68] The applicant mother had removed J.A. from his existing school and unilaterally registered him at Pius XII where he attended from October 17 – 28, 2022. Assuming he was permitted to return to St. James on October 31st, this required an urgent motion by the respondent father to introduce this fresh evidence to have him returned back to his class where he had commenced his senior kindergarten year.

[69] In consideration of the totality of evidence before me, the actions taken by Ms. A. demonstrate to this Court that her ability to truly consider what is in the best interest of J.A. and B. A-N., are severely compromised. It also proves to the Court that with respect to section 24(3)(i) of the CLRA (the ability and willingness of each person in respect of whom the order would apply to communicate and co-operate with one another, on matters affecting the child) the applicant has great improvements to make in this area.

[70] I find that the applicant mother has demonstrated a sense of entitlement that strongly suggests that she is willing to cast aside what would be in the best interests of J.A. and B. A-N., in the name of convenience for her busy routine and the priorities of her other children. I also find that the applicant has a consistent habit of unilaterally making major decisions surrounding the enrollment of B. A-N.’s daycare and J.A.’s school in a manner that frustrates rather than promotes co-operation with the respondent father.

[71] More specifically, I find that the applicant mother took it upon herself to enroll B. A-N. in Maple Tree Daycare without the respondent father’s consent on or about July 2022 and notified the respondent father after the fact. The text messages the applicant mother relied on in her affidavit simply reveals that the respondent father was notified after B. A-N.’s move to the Maple Tree Daycare was complete, but it does not support her assertion that he consented. Moving a child’s daycare and notifying the other parent after this choice was implemented does not amount to consent. Nor does it demonstrate an ability or willingness on the part of the parent causing these decisions to be put in place to respect the other parent’s voice.

[72] While I understand that the applicant mother did so because the location of this daycare may be better suited for her morning routine in light of the location of her current employment at Compass and obligations to her two other children, she did so without the consent of the respondent or a court order while these proceedings were actively before the Court. Most importantly, she did so without adequate consideration of how the attendance of two different daycares would impact B. A-N..

[73] Similarly, the recent efforts of the applicant mother that resulted in J.A. being removed from his current school at St. James and enrolled at Pius XII provides the Court with further evidence of her sense of entitlement and lack of ability or willingness to co-operate with the respondent on issues pertaining to the best interests of the children. It is clear that the best interests of J.A. and how such a move would impact him were not carefully considered by the applicant.

[74] I find that the applicant mother acted unreasonably in taking it upon herself to move J.A.’s school while this Court had reserved to decide that very issue. I also find that she did so without adequate justification despite the concerns she might have had with respect to Jo. having to take the school bus on his own on the mornings she was required to drive J.A. to St. James. While her concerns are entitled to be considered, they were not pressing enough to be raised as a reason to move J.A.’s school to Pius XII at the initial Focused Hearing heard on September 29th. There is also no evidence that the morning bussing arrangements involving Jo. have resulted in any new concerns for his safety since we heard full argument on these issues on September 29th.

[75] I do not accept this as being a reasonable justification for the applicant mother removing J.A. from his current school and enrolling him in the school that she desired, in the face of repeated opposition from the respondent father, and with full knowledge the Court was actively deciding this specific issue. Her actions resulted in confusion amongst school administration at both St. James and Pius XII. It also resulted in confusion amongst her lawyer at the time and the lawyer for the respondent father, in the face of what counsel had understood to be an agreement in principle that temporary resolved this issue as of October the 11th and effectively alleviated any concern she might have had regarding Jo. going to the bus stop alone in the morning. Most importantly, the applicant mother’s unilateral action in registering J.A. at Pius XII resulted in this child having to endure two weeks of confusion and instability having to depart St. James without any notice, start again in a new classroom at Pius XII on October 17th only to re-attend to St. James as of October 31st after this Court ordered his return.

[76] Even if the applicant mother had a genuine concern regarding the transportation arrangements involving J.A. that was impacting Jo., this issue was resolved between the lawyers for both parties after six days of discussions, between October 5 and resolved on October 11 after a long weekend and while the respondent was out of cell phone range on a hunting trip. I find that this was a resolution that proceeded in an expeditious manner, and that the applicant mother acted unreasonably by proceeding to register J.A. at Pius XII despite the swift actions taken by both lawyers to adequately address her concerns.

[77] The applicant mother testified at the fresh evidence motion, that on October 11, she understood that the transfer from St. James to Pius XII would not be made official because the registration would be held in abeyance since the parties may change their minds, and that J.A. had not yet been brought physically to Pius XII. However, she did candidly admit that she made efforts to move J.A. from St. James to Pius XII out of frustration due to what she perceived to be a lack of response from the respondent father regarding her proposal for transportation arrangements.

[78] It is difficult to accept the applicant mother’s explanation for taking such swift action in moving J.A.’s school almost immediately after this Court reserved on this very issue. First of all, the transportation involving J.A. was completely resolved as of October 11, which was a direct agreement that came out of a proposal she made with her lawyer on October 5, six days prior. Despite this, the applicant stated in her affidavit of October 21, 2022, the following at paragraph 15:

“That I am advised by my solicitor, and veritably believe that no response to this proposal was ever received.”

[79] We know her statement on this point is false. Under cross-examination from Mr. Chohan on October 28, the applicant mother admitted that her statement in paragraph 15 above was in her words, “open to interpretation”. With respect, I do not accept the applicant’s evidence as credible or reliable on this core fact.

[80] I find that the applicant mother permitted this misleading statement to be introduced in her affidavit as part of her justification for unilaterally moving J.A. out of St. James school out of frustration. Furthermore, paragraph 15 also contradicts paragraph 20 in her affidavit where she states that on October 12, she initially thought there was an agreement in place only to later discover that there was no resolution. This statement contradicts her testimony in court where she readily admitted that she was aware of an agreement being in place on October 12 negating any need to consider an abrupt move of J.A.’s school.

[81] In fact, the fresh evidence in the emails and text messages speak for themselves. Her lawyer received confirmation from the respondent father’s lawyer on October 11 that the proposal made by the applicant mother was agreed to. Also under cross-examination, the applicant mother admitted that her lawyer notified her of this agreement on October 12. From that point forward, there is no reason why anything less than a complete stop to any efforts to have J.A. transfer schools were not implemented immediately by the applicant mother.

[82] The applicant mother permitted the confusion amongst school officials, her lawyer, the lawyer for the respondent father, the respondent father himself and their child J.A., to continue even after she became aware that J.A. was no longer permitted to attend his current school, St. James, as of October 14. She did not contact either St. James or Pius XII to notify them in the clearest way, that J.A. was to remain at St. James and no registration at Pius XII should commence any further. She had the ear of school administrative staff at both schools to put an end to any prospect of registration completion immediately but chose to simply assume that her persistent efforts to move J.A. to Pius XII would cease on their own.

[83] Quite recklessly, the applicant mother assumed that J.A.’s registration was not made official despite changing his bus schedule and aggressively taking steps to have him registered at Pius XII and presenting Justice Christie’s Order to St. James. That action effectively silenced any doubt school officials would have in her authority to proceed. The applicant’s omission continued beyond October 14 when the respondent father made it clear to her that J.A. was no longer permitted to attend St. James. This was not in any way what one would expect from a parent who understands what is in J.A.’s best interest.

[84] If the applicant mother truly had J.A.’s best interest at heart, she would not have begun to put the wheels in motion to have done what she did. I find this to be compelling evidence of an emerging blind spot in the applicant’s decision-making regarding the children that are before the Court in these proceedings. While I accept the applicant has parenting obligations to two other children, Jo. and S., is employed full time and continues to pursue her Master’s degree, none of these factors is an acceptable explanation for disregarding the best interests of J.A. in unilaterally moving his school.

[85] Furthermore, I find that the erroneous nature of this conduct was further escalated because she was fully aware that this issue was before the Court for decision. Yet in the face of that knowledge, and the prospect of this Court ruling against her, and the potential for further instability for J.A., she still proceeded to move his school unilaterally. The actions taken by the applicant mother were an afront to the family court adjudication process and provides concrete evidence of her lack of ability to make sound decisions in the best interest of the children.

[86] Additionally, combined with the evidence of two domestic assaults that I have found to be committed by her upon the respondent father in the presence of both children, I find the applicant mother to have a tendency to overreact in an irrational manner when she does not have her expectations met. This tendency to overreact is not in the best interest of the children and has the potential to expose them to unnecessary instability and harm.

[87] The applicant mother does not come before the Court as an unsophisticated or uneducated litigant. Rather, she presents herself and I accept her to be intelligent and fully engaged in these and prior legal proceedings involving the child J.A.. Upon careful examination of the order issued by Justice Christie on August 27, 2018, it clearly notes the applicant mother as having final say on major decisions. It also provides for joint custody and primary residence of J.A. Her lawyer clearly enunciated at the outset of the Focused Hearing that those proceedings were formally withdrawn and were no longer active before the court. Counsel on behalf of the respondent father clarified further at the time and identified this expired order as temporary in nature.

[88] To the extent that she asserts that she was unaware that Justice Christie’s order was no longer in force, it was made clear at the outset of the Focused Hearing by her own lawyer and affirmed by the respondent father’s lawyer on September 29. It does not make sense for the applicant mother to expect that Justice Christie’s order was still in effect since it was an entirely different proceeding and provided within it the very remedy that she is currently seeking in these proceedings. In another reckless oversight, the applicant mother did not contact Mr. Treherne or any other lawyer to verify that she could rely on Justice Christie’s order to persuade school staff to permit her to move J.A.’s school, yet this was the very issue at the heart of the litigation before the court.

[89] I respectfully reject the applicant mother’s explanation for presenting Justice Christie’s Order to St. James school officials and find that she knowingly misrepresented to them that she had the decision-making authority to enroll J.A. at Pius XII by presenting to them the expired Christie Order after I reserved my decision on September 29.

[90] I also find that the applicant mother willingly presented an expired court order to school officials at St. James in order to facilitate her efforts to follow through with her threats to the respondent and register the child at Pius XII if he didn’t agree to her transportation arrangements.

12: Conclusion

[91] Since the parties separated in April 2021, the applicant mother and the respondent father enjoyed week about parenting time with the children J.A. and B. A-N., aged 5 and 3. In furtherance of that equal parenting time was the joint decision-making arrangement that continued up until the hearing of fresh evidence that was admitted on consent at an urgent motion heard before me on October 28, 2022. At the conclusion of that motion, in consideration of the prior unilateral move of B. A-N. to Maple Tree Daycare in the summer of 2022 and in light of recent events where the mother unilaterally moved J.A/’s school, I felt compelled to issue an interim order placing the children in the primary residence and care of the respondent father and provided him with sole decision-making responsibility pending the release of my decision. Parenting time with the applicant mother was to take place on a bi-weekly basis from Thursday afternoons to Monday mornings on a temporary basis to ensure stability for the children, as this Court considered the fresh evidence in conjunction with the totality of evidence received in this Focused Hearing.

[92] Despite the current Interim Order, I am conscious of the history of week about, equal parenting time that both parties have implemented relatively successfully over the past 19 months since separation. I also remind myself of the maximum contact principle and acknowledge that B. A-N. and J.A. can and should benefit from having both parents playing an active and equal role in their lives. I find that both the applicant and respondent are capable of providing a stable and loving home for J.A. and B. A-N., provided that the respondent father retains sole decision-making responsibility with reasonable consultation with the applicant mother throughout. Accordingly, I find that the equal, week about arrangement should re-commence, but with the decision-making responsibilities of the children to be provided solely to the respondent.

[93] Order to Go shall be as follows

There shall be a Final Order with the following terms:

1. The Respondent, BN., shall have sole decision-making responsibility for the children, J.A. born […], 2017, and B. A-N. born […], 2019.
2. Commencing Friday November 25, 2022, the Applicant M.A. and Respondent B.N., shall share parenting time on an equal, week-about, basis with the children, J.A. born […], 2017, and B. A-N. born […], 2019.
3. The parties shall exchange the children every Friday afternoons between 4:00 p.m. and 6:00 p.m. at the Respondent’s residence or other mutually agreed upon location confirmed at least 48 hours in advance of the next scheduled exchange.
4. The child, J.A. born […], 2017, shall attend St. James Catholic School in Lively, Ontario. On the weeks he is in the care of the applicant mother, the respondent father, or any other mutually agreeable responsible adult, shall pick up J.A. at the applicant mother’s place of employment in Sudbury or directly from the applicant mother’s home, or any other mutually agreeable location, and drive him to St. James Catholic School in Lively, Ontario. This arrangement shall remain in place as long as the applicant mother is employed and residing in Sudbury proper. On the weeks J.A. is in the care of the Applicant mother, she shall be responsible for picking up J.A. from St. James Catholic School in Lively.
5. The child, B. A-N. born […], 2019, shall attend Walden Daycare in Lively, Ontario, until she is of the eligible age to attend St. James Catholic School in Lively, Ontario. On the weeks she is in the care of the applicant mother, the respondent father, or any other mutually agreeable responsible adult, shall pick up B. A-N. at the applicant mother’s place of employment in Sudbury or directly from the applicant mother’s home, or any other mutually agreeable location, and drive her to St. James Catholic School in Lively, Ontario. This arrangement shall remain in place as long as the applicant mother is employed and residing in Sudbury proper. On the weeks B. A-N. is in the care of the Applicant mother, she shall be responsible for picking up B. A-N. from Walden Daycare in Lively.
6. At the commencement of the school year in September 2023, the child, B. A-N. born […], 2019, shall attend St. James Catholic School in Lively, Ontario. On the weeks she is in the care of the applicant mother, the respondent father, or any other mutually agreeable responsible adult, shall pick up B. A-N. at the applicant mother’s place of employment in Sudbury or directly from the applicant mother’s home, or any other mutually agreeable location, and drive her to St. James Catholic School in Lively, Ontario. This arrangement shall remain in place as long as the applicant mother is employed and residing in Sudbury proper. On the weeks B. A-N. is in the care of the Applicant mother, she shall be responsible for picking up B. A-N. from St. James Catholic School in Lively.
7. Regardless of the parenting schedule, the applicant mother shall have parenting time with the children, J.A. born […], 2017 and B. A-N. born […], 2019, on Mother’s Day and the respondent father shall have parenting time with the children on Father’s Day from 10:00 a.m. to 4:00 p.m. at a minimum. There will not be a requirement to compensate this time for the other parent.
8. Parenting time on Christmas shall be shared equally between the parties. Commencing in Christmas 2022, the Respondent father shall have the children from December 24, at 5:00 p.m. to December 25, at 12:00 pm. The Applicant mother will have the children from December 25, at 12:00 p.m. to December 26, at 5:00 p.m.
9. The regular week-about parenting arrangement shall re-commence on December 26 at 5:00 pm. each year. The parties shall alternate this order of parenting time for Christmas each year.
10. At all times, the respondent father shall forthwith notify the applicant mother about the children’s progress, services and appointments as they relate to their health, education, childcare, religion, cultural and general welfare. These communications shall be by electronic communication only and the parties shall communicate with each other in a respectful and courteous manner taking into account the best interests of the children throughout.
11. Although the respondent father holds sole decision-making authority, both parties shall have the right to make inquiries and be given information as to the health, education, childcare, religious, cultural and general welfare of the children, J.A. born […], 2017 and B. A-N. born […], 2019, directly from their service providers, or any other service provider with a mandate to advance the best interests of the children, as the case may be.
12. The parties shall forthwith notify each other of any illness or incident the children, J.A. born […], 2017 and B. A-N. born […], 2019, may experience while in the care of either parent, and in such an event, the parent with actual care at the time of any illness or incident shall have the right to consent to necessary medical treatment for the child where the other parent cannot be reached, and shall notify the other parent forthwith of the extent, treatment, and nature of the emergency.
13. The prior interim order in this matter is hereby terminated.
14. The parties are to hold resolution discussions on the Costs for the initial Focused Hearing heard on September 29. If the parties cannot resolve the issue of costs for this Focused Hearing, it shall be dealt with by way of written submissions (no more than 4 pages) and shall be served and filed with this Court no later than December 9, 2022, to my attention
15. The parties or their counsel are ordered to contact the trial co-ordinator and schedule a settlement conference before myself to address the remaining issue of child support.

Released: November 17, 2022 Signed: Justice Leonard Kim