Johnson v. Benjamin, 2024 ONCJ 184

ONTARIO COURT OF JUSTICE DATE: 2024-04-15 COURT FILE No.: Woodstock D241/16

BETWEEN:

Cassandra Johnson Applicant

— AND —

Michael Benjamin Respondent

Before: Justice S. E. J. Paull

Trial held on: March 18, 20, 22, 2024 Reasons for Judgement Released on: April 15, 2024

Counsel: James G. Battin, for the applicant Scott DeGroot, for the respondent

PAULL J.:

[1] The parties are the parents of one child, Grayson born […], 2013. Mr. Benjamin brought a motion to change seeking, among other things, sole decision-making and primary residence, with parenting time to Ms. Johnson including alternate weekends, Wednesday evenings, and a fixed holiday schedule. Ms. Johnson seeks to maintain the shared parenting arrangement in the final order under review and disputes that there has been a material change in circumstances. If the schedule were to be adjusted she supports a week-about shared parenting arrangement.

[2] The parties consented to various orders at the start of trial but disagreed on the issues of decision-making and parenting time, including the holiday schedule.

The Law

[3] Section 29 of the Children's Law Reform Act (the Act) provides the statutory authority for changing a parenting order on either a temporary or final basis. It states:

A court shall not make an order under this Part that varies a parenting order or contact order unless there has been a material change in circumstances that affects or is likely to affect the best interests of the child who is the subject of the order.

[4] The Supreme Court of Canada decision in Gordon v. Goertz, [1996] 2 S.C.R. 27 sets out a two-stage process for the court to conduct in motions to change custody or access (now decision-making and parenting time) as follows:

1. First, the parent applying for a change in the custody or access order must meet the threshold requirement of demonstrating a material change in the circumstances affecting the child.
2. If the threshold is met, the court must embark on a fresh inquiry into what is in the best interests of the child, having regard to all the relevant circumstances relating to the child's needs and the ability of the respective parents to satisfy them.

[5] The Ontario Court of Appeal in Licata v. Shure, 2022 ONCA 270 confirmed the following:

[21] The Supreme Court of Canada set out the test for determining whether there has been a material change of circumstances in Gordon v. Goertz, [1996] 2 S.C.R. 27, at paras. 10-13. This court, in N.L. v. R.R.M., 2016 ONCA 915, 88 R.F.L. (7th) 19, at para. 29, summarized that test as having three components:

1. a change in the condition, means, needs or circumstances of the child and/or or the ability of the parents to meet those needs;
2. the change must materially affect the child; and
3. the change was either not foreseen or could not have been reasonably contemplated by the judge who made the initial order.

[6] On a motion to change, the court has the option of restricting changing the existing order to address a specific issue, while maintaining its integrity. Elaziz v. Wahba, 2017 ONCA 58.

[7] If a material change in circumstances is found the court must then determine what decision-making and parenting time order is in the child’s best interest. Any proceeding with respect to children is determined with respect to the best interests of the particular child before the court in accordance with the considerations set out in section 24 of the Children’s Law Reform Act (the Act).

[8] Subsection 24 (2) of the Act provides that the court must give primary consideration to the child’s physical, emotional and psychological safety, security and well-being in determining best interests.

[9] The following non-exhaustive list of factors have been articulated in the case law as basic principles with respect to the best interest test:

1. The child’s best interests are not merely “paramount” – they are the only consideration in this analysis: Gordon v. Goertz, [1996] 2 S.C.R. 27 at para. 28; Mattina v. Mattina, 2018 ONCA 641
2. The court must ascertain a child’s best interests from the perspective of the child rather than that of the parents. Gordon v. Goertz, [1996] 2 S.C.R. 27.
3. No one factor in the statutory definition of a child’s best interests is given statutory pre-eminence. Wilson v. Wilson, 2015 ONSC 479.
4. A young child with attachments to both parents needs sufficient contact with both, without prolonged separations to maintain a meaningful and close relationship with them. Van Den Driessche v. Van Den Driessche, 2011 MBQB 100; Wilson v. Wilson, 2015 ONSC 479.
5. In resolving custody disputes, emphasis must be placed on the critical importance of bonding, attachment and stability in the lives of young children. Barnes v. Parks
6. 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.
7. The court should consider how the person seeking access has used contact for a purpose collateral to the child’s best interests. Lusher v. Lusher (1988), 13 R.F.L. (3d) 201 (Ont. Prov. Ct – Family).
8. A starting point to assess a child’s best interests when making a custody or access order is to ensure that the child will be physically and emotionally safe. It is also in a child's best interests when making an access order that his or her caregiver be physically and emotionally safe. I.A. v. M.Z., 2016 ONCJ 615.
9. The best interest analysis is also not a checklist to be tabulated with the highest score winning. Rather, it calls for the court to take a holistic look at the child, his or her needs and the persons around the child. Phillips v. Phillips, 2021 ONSC 2480. Pereira v. Ramos, 2021 ONSC 1736.

[10] The Ontario Court of Appeal in Kaplanis v. Kaplanis, 2005 ONCA 1625, [2005] O.J. No. 275 sets out the following principles in determining whether a joint decision-making responsibility order (formerly custody order) is appropriate:

1. There must be evidence of historical communication between the parents and appropriate communication between them.
2. It can’t be ordered in the hope that it will improve their communication.
3. Just because both parents are fit does not mean that joint custody should be ordered.
4. The fact that one parent professes an inability to communicate does not preclude an order for joint custody.
5. No matter how detailed the custody order there will always be gaps and unexpected situations, and when they arise, they must be able to be addressed on an ongoing basis.
6. The younger the child, the more important communication is.

[11] 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, 2005 CarswellOnt 3209 (OCJ). 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, 2009 ONSC 6423.

[12] The test for determining parenting time is also what order is in the best interests of the child.

[13] Subsection 24 (6) of the Act states that in allocating parenting time, the court shall give effect to the principle that a child should have as much time with each parent as is consistent with the best interests of the child.

[14] In Knapp v. Knapp, 2021 ONCA 305, the court set out that there is no presumption that maximum parenting time equates with equal-parenting time. Every family, it wrote, is different and the court must focus on the child’s best interests in determining the appropriate parenting time order.

[15] In O'Brien v. Chuluunbaatar, 2021 ONCA 555, the court noted at paragraph 49 that the maximum contact principle has been replaced by subsection 24 (6) of the Act. On an appeal of a case heard before the March 1, 2021 amendments to the Act, the appeal court found that it did not have to consider the maximum contact principle – but, in any event, the trial judge had properly considered it.

[16] In Bressi v. Skinulis et al, 2021 ONSC 4874, Justice Andrea Himel wrote as follows:

[21] There is no presumption in favour of joint parenting and the term “maximum contact” is no longer found in the CLRA. The legislation states that: “in allocating parenting time, the court shall give effect to the principle that a child should have as much time with each spouse as is consistent with the best interests of the child.”

[22] Clearly the idea of a presumption in favour of one type of parenting order is anathema to the court’s unrelenting focus on the child’s “best interests.” The most one can say is, all things being equal, the child deserves to have a meaningful and consistent relationship with both of their parents.

Background and Evidence

[17] The final order under review dated February 27, 2017 was made on consent and provided for a shared custody and parenting arrangement with the child with Mr. Benjamin as follows:

1. week one: from Monday at 12 PM to Wednesday at 12 PM; from Friday at 12 PM to Monday of week two at 12 PM; and
2. week two: from Wednesday at 12 PM to Friday at 12 PM; and such other times as agreed upon between the parties.

[18] The order also contained detailed terms for a sharing of holidays and special occasions on a rotating basis.

[19] Mr. Benjamin’s motion to change was first returnable on July 19, 2021.

[20] On October 19, 2022 a temporary order was made on consent at a settlement conference which included the following terms:

1. Joint decision-making, with Grayson residing primarily with Mr. Benjamin.
2. Parenting time to Ms. Johnson on Wednesday from 3:30 PM to 7 PM, and
3. alternate weekends from Friday at 3:30 PM until Sunday at 6 PM (extended if Friday or Monday was a school holiday), and
4. every fourth weekend from Friday at 3 PM to Saturday at 4:30 PM.
5. Grayson to be with Mr. Benjamin from December 23 at 6 PM to December 26 at 9 AM and with the applicant from 9 AM on December 26 until 6 PM on December 31.

[21] A further temporary order was made on consent at a subsequent settlement conference on June 7, 2023 which varied that order by removing the fourth shared weekend per month, and extending Ms. Johnson’s parenting time as follows:

1. Wednesdays from after school to 8 PM.
2. Alternate weekends from Friday after school to Monday morning with a drop off at school.
3. Alternate weeks in July and August.
4. Ms. Johnson shall ensure that Grayson has no contact with Mr. DeVries except for incidental contact in the community.

[22] Mr. Benjamin testified as follows:

1. He has been a relationship with his present partner, Joanne Benjamin, since late 2016 and they were married in 2018. She has two adult children who live independently.
2. He has lived in the same residence in Mount Elgin for approximately 10 years and works full time as a maintenance supervisor in Tillsonburg. His hours are Monday to Thursday from 5:30 AM to 3 PM and Fridays from 5:30 AM to 12 PM.
3. His wife and her children have a close relationship with Grayson. She is presently off work due to a back injury and receiving long-term disability benefits. She is available in the morning to ensure Grayson is up and ready for school, and he is available with her after school each day when Grayson gets home.
4. He was of the view that the schedule in the order of February 27, 2017 was not workable or in Grayson’s best interests, and that it created “turmoil and conflict”. Despite the parties using a communication app there was significant conflict and he felt that Ms. Johnson’s level of communication was never adequate.
5. The parties had recurrent conflicts over the holiday schedule, including Thanksgiving and Easter, because they disagreed on the precise times for the exchanges.
6. Grayson’s schoolwork suffered under the shared parenting order but has improved significantly after the order of October 19, 2022. Grayson had difficulties primarily in language courses (reading, writing, oral communication, and media literacy).
7. Since the order was varied on a temporary basis the level of conflict has reduced and the parties’ communications have improved.
8. He seeks an order that he have primary residence and that Ms. Johnson have alternate weekends from Friday to Sunday at 6 PM (rather than Monday mornings).
9. During his testimony he sought to maintain the temporary order for the Christmas holiday schedule so that he has Grayson every year from December 23 at 6 PM until December 26 at 9 AM, after which Ms. Johnson would have Grayson from December 26 to December 31 at 6 PM. However, in closing submissions, he proposed through counsel to split the Christmas holiday equally and alternating who has Grayson for Christmas. He also supported a week-about parenting schedule during the school summer holiday.

[23] Joanne Benjamin provided evidence which included a trial affidavit dated March 15, 2024. Her evidence included the following:

1. She confirmed the concerns outlined by Mr. Benjamin in terms of the level of conflict between the parties and with Grayson’s academic struggles prior to the order of October 19, 2022.
2. She raised concerns about Ms. Johnson’s care of Grayson including with hygiene, and providing him with ill fitting or torn clothes and inappropriate school lunches.
3. She volunteers at the school and she and Mr. Benjamin work regularly with Grayson on his reading and language skills and other homework.
4. She has never spoken to Ms. Johnson. Prior to the order of October 19, 2022, she did reach out to her to go out for a coffee to establish some communication but these offers were never responded to. However, Ms. Johnson’s reaction to her has been more positive since the change in the order when they have seen each other at the school or at one of Grayson’s Boy Scout functions.

[24] Grayson’s final report cards for grades 3 and 4 and the interim report card for grade 5 dated February 9, 2024 were entered into evidence.

[25] The grade 3 report card dated June 27, 2022 reflected when Grayson was in the care of both parents pursuant to the shared parenting plan in the order of February 27, 2017. It noted his learning skills and work habits were all in the good or excellent range. His marks in language for reading, writing, oral communication, and media literacy ranged from C- to B, with most in the C range.

[26] The grade 4 report card dated June 29, 2023 reflected when Grayson had been in the primary care of Mr. Benjamin during the school week since October 2022. The learning skills and work habits were all marked as good. His language marks had improved to the C to A- range. The remainder of his marks remain consistent or were generally improved in the range of half a grade point.

[27] All the report cards noted no attendance issues, and he appears to have attended school regularly and on time regardless of the parenting arrangement.

[28] The court received two Voice of the Child (VOC) Reports. Neither party sought to cross-examine the clinician, Barbara Dyszuk and the Reports were entered into evidence.

[29] The first Report dated August 29, 2022 was prepared to canvas the views and preferences Grayson may have, if any, regarding the parenting schedule. The clinician conducted an interview of the child while in the care of each parent and reported the following:

1. Grayson presented as a happy, friendly, energetic, and talkative boy who appeared to be very open and honest, and understood the purpose of the meetings. He also understood that his views and preferences would be shared with his parents and the court.
2. Grayson was clear and consistent in his views and preferences that he found the shared parenting schedule confusing and that he wanted it changed.
3. He reported being close to both parents but that he felt able to complete his schoolwork better while at his father’s home.
4. When interviewed at his father’s home Grayson reported that during the summer he would like to spend a week at each parent’s house and during the school year he would like to spend more time with his dad. When interviewed at his mother’s house Grayson reported that he would like a week about schedule all year long. However, he indicated he would be concerned about his schoolwork with this arrangement.

[30] Following the release of this VOC Report the parties consented at a settlement conference on October 19, 2022 to vary the shared arrangement to one where Grayson resided primarily with Mr. Benjamin during the school week. Ms. Johnson described this as a temporary arrangement on a trial basis.

[31] The second VOC Report dated April 26, 2023 was requested to update the previous report. The same clinician met again with Grayson while in each of his parents’ care and reported the following:

1. He presented as a very happy and confident young man. He stated that he was “happy” with the judge’s decision which allowed him to spend more time at his dad’s during the school week. He felt the schedule was easier for him and helped him do better in school.
2. He expressed that he felt the current arrangement was a “9” out of “10”, and the only thing that would make it a “10” would be to not have the “split weekend” once per month which required him to travel between his parents’ homes on Saturday.
3. The report concluded that Grayson was clear and consistent in his views and preferences that he wants to continue to reside primarily with his father during the school week and to spend Wednesday evenings and alternate weekends with his mother.

[32] Following the second VOC Report the parties consented at a further settlement conference on June 7, 2023 to remove the one split weekend per month from the order of October 19, 2022, and to extend the alternate weekends in Ms. Johnson’s care to overnight Sunday night with a return to school on Monday.

[33] Ms. Johnson testified as follows:

1. She is 34 years old.
2. The parties separated in July 2016. Grayson was confused after the separation but moved forward with the support of both parents.
3. Grayson is a happy well-adjusted boy and they have a great relationship and enjoy fishing and going to the park and library.
4. The final order of February 27, 2017 was made on consent at one of the first court dates.
5. The basis for the specific schedule was to coordinate with Mr. Benjamin’s continental work shift at the time and based on the fact that Grayson was not in school.
6. She acknowledged that the schedule was a challenge after Grayson started school because of the midweek moves involved. The schedule was hard on Grayson and contributed to conflict between the parties.
7. Since the final order of February 27, 2017, she and Mr. Benjamin have had a lot of conflict, especially related to holiday times. She agreed that they did not communicate and cooperate well.
8. The order of October 19, 2022 has negatively impacted Grayson and their relationship and he remains upset at not having more time with her.
9. She acknowledged that Grayson had challenges with language curriculum at school but disputes that they were the result of her not working with Grayson or the shared parenting schedule in place. She communicated with the school regularly and took advice on learning tools to support Grayson.
10. Grayson was negatively impacted by not being in-person at school during the pandemic and was behind when he went back to in-person learning.
11. She continues to work regularly with Grayson on his reading and any homework that he has. She disputed the extent of Grayson’s academic improvement since the change in residency in October 2022, and she still attends all parent-teacher meetings.
12. She disputed that she sent Grayson to school wearing inappropriate clothes or without a proper lunch, or that she did not ensure that he bathed regularly. Any issue with his lunches would have been inadvertent and very rare.
13. She would get accusatory messages about these issues from Mr. Benjamin on the Our Family Wizard communication app which they used, which she generally ignored to not engage in conflict.
14. She supports a week about parenting arrangement and believed that this would resolve the issues for Grayson and reduce the level of conflict.
15. She would like to share the holidays in a way that does not require Grayson to travel back and forth so much.
16. She started work in February 2024 at Oxford Tax Service. During the tax season (January-May) she works full time and between June-December will work three days per week.
17. She is still employed at times at the Comfort Inn but is able to take reduced hours during the tax season.
18. She acknowledged that Mr. Benjamin asked about Grayson attending counselling after the transition to primarily residing with him and that she initially disagreed. When she did later agree Mr. Benjamin told her Grayson did not require counselling support anymore.
19. She acknowledged moving her residence five times since the final order in 2017. Since 2021 she has continued to reside in the same residence with her mother and brother, and her other child, Colton (age 12) and Grayson when they are in her care.
20. Colton lived primarily with her until last year when she and Colton’s father agreed that he would live primarily with him in London, Ontario so he had more opportunities to play competitive football.
21. She was in a relationship with Kody DeVries. They now speak occasionally but are not in a relationship. She acknowledged that prior to breaking up with him that they spent nights at each other’s home approximately two times per week and that he was present when Grayson was there.
22. She acknowledged giving an undertaking at questioning in this matter to update her 35.1 affidavit with particulars about Kody DeVries and any CAS or police involvement with him but this was not done.
23. She consented to the order of June 7, 2023 that there be no contact between Grayson and Mr. DeVries except for incidental contact in the community. In cross-examination she confirmed that she and Grayson go to play darts for kids on Sundays and that he is occasionally there. She was aware he might be there when she took Grayson and did not see it as an issue because it was a community event.
24. She agreed that prior to October 2022 there were times when she may not have shared information with Mr. Benjamin promptly, including regarding school issues and that he had seen an allergist due to a serious drug reaction.
25. She acknowledged that except for an issue with the school photo form there have been no issues with sharing of information since October 2022, and that there has also been less conflict and less need for communication.
26. Since the making of the order on October 19, 2022 she could not identify any medical or school information about Grayson that she had requested and that Mr. Benjamin did not provide to her.

[34] Ms. Johnson’s sister Ashley Johnson provided evidence which included a trial affidavit dated February 28, 2024. Her evidence included the following:

1. She was supportive of her sister and confirmed that she had no issues with her as a parent.
2. She acknowledged she has never communicated directly with Mr. Benjamin and that she formed her opinion about him based on information provided by Ms. Johnson.

[35] Ms. Johnson’s mother, Marianne Johnson provided evidence which included a trial affidavit dated February 27, 2024. Her evidence included the following:

1. She was supportive of her daughter and her daughter’s concerns with Mr. Benjamin.
2. She acknowledged that she has never spoken directly with Mr. Benjamin and that the information she had came from Ms. Johnson and from the Our Family Wizard communications which she has observed.

[36] Derek Teft, provided evidence on Ms. Johnson’s behalf including a trial affidavit dated February 27, 2024. His evidence included the following:

1. He has known Ms. Johnson for 14 years and they are the parents of one child, Colton, now 12 years old.
2. He has no issues with Ms. Johnson and they continue to co-parent cooperatively.
3. Colton resides with him now primarily but continues to see Ms. Johnson regularly overnight on alternate weekends and during the week.
4. He and Ms. Johnson agreed that Colton reside primarily with him because he plays competitive football and trains or plays several times a week. The opportunities for him to pursue football are located in London, Ontario where he resides.

[37] The parties have continued to communicate using the Our Family Wizard (OFW) parenting app. While they agreed that there was a high level of conflict and a lack of cooperation prior to the October 19, 2022 order, they disagreed on who was responsible for it. Unfortunately, neither party offered any of the OFW communications as a means to corroborate their position.

[38] What is clear is that the parties were engaged in ongoing conflict and had a limited ability to cooperate, particularly around the parenting schedule, and that the schedule outlined in the final order was no longer working for the parties and Grayson when he started school.

[39] The parties also agreed that since the temporary order of October 19, 2022 the conflict had significantly reduced.

[40] Mr. Benjamin and his partner also alleged that Ms. Johnson was neglectful in her care of Grayson. I am not satisfied that Ms. Johnson was negligent in maintaining Grayson’s appearance or hygiene, or that she repeatedly provided rotten food for his lunches. If these issues persisted, the court would have expected this to be reflected in other evidence offered from the school. There was no other independent evidence, including from the CAS, to corroborate any of these concerns.

[41] I find that Grayson’s academic performance improved following the order of October 19, 2022, although not to the extent alleged by Mr. Benjamin. Grayson’s report cards show a general improvement in the range of half a grade point between grades three and four. More importantly, however, Grayson felt more confident in his academic progress following the change in residency. Grayson was consistent throughout his interviews with Ms. Dyszuk that he felt better able to complete his schoolwork during the week at his father’s home.

[42] With respect to the VOC Reports I am mindful of their limitations. They are not intended to be evaluative, and they do not include the clinical investigation which would occur in a section 112 Report. They do not involve meetings with the parties or the collection of collateral information.

[43] However, the VOC Report is an important way in which a child can be heard in a judicial proceeding affecting the child’s future. It is important to recognize the agency of children, and where possible, to hear their voice before decision-making and parenting time decisions are made. If the child is capable of forming views and communicating them, then generally, they should be allowed to express them in a judicial proceeding affecting their interests. In many cases, including high conflict cases, the key issue will be the weight to be given to the child’s views in light of the child’s age and maturity and other factors which form the judicial assessment of a child’s best interests. Medjuk v. Medjuk, 2019 ONSC 3254.

[44] I am satisfied that the VOC Reports accurately reflect Grayson’s views and preferences. Grayson’s views were canvassed in two separate Reports, prepared before and after the change in residency. The same clinician met with Grayson four times. Grayson’s views and preferences during the first two meetings outlined in the first Report vacillated between wishing to maintain a shared residency arrangement and residing primarily with his father during the school week. He was clear that he loved both his parents and enjoyed spending time with each of them. However, he was also clear that he found the shared arrangement confusing and that he felt more supported with his schoolwork at his father’s home.

[45] His views and preferences outlined in the second Report, after his primary residence had changed, reiterated that he found it easier to do his homework at his father’s home, and that he was very happy the schedule had been changed. He was clear and consistent that while he loved his parents and enjoyed time with each of them, he wished to remain residing primarily with his father during the school week. Grayson felt he was doing better in school, which was consistent with the general improvement in his marks from grade 3 to grade 4.

[46] Grayson’s views and preferences were expressed in clear terms and there were no concerns raised in the Reports that he was unduly influenced by either parent, or that he did not understand the nature and purpose of his meetings with the clinician. To the contrary, the clinician found Grayson to be a happy and talkative boy who presented as very open and honest.

[47] Overall, I conclude that Grayson’s views and preferences as expressed to Ms. Dyszuk were honestly held and independently formulated.

Analysis

[48] The onus is on the moving party to establish a material change in circumstances on a motion to change. This may be met based on a single event or change, or combination of changes in circumstances. J.T. v. E.J., 2022 ONSC 4985.

[49] For the following reasons I find that there has been a material change in circumstances since the order of February 27, 2017.

[50] The particular shared arrangement was made to accommodate a continental shift that Mr. Benjamin worked at the time and the fact that Grayson was not yet in school. The order under review was made when Grayson was three years old. Mr. Benjamin now works a regular schedule and Grayson is approaching his 11th birthday and in grade 5.

[51] Both parties agreed that the schedule which included several exchanges during the school week was not working and that it contributed to the high level of conflict between them.

[52] The aging of a child does not automatically constitute a material change in circumstances. However, it can be a significant factor when combined with the child’s views and preferences.

[53] Grayson was clear in the VOC Reports that he found the shared schedule confusing and that he wanted it changed. He was also consistent that he felt better able to do his schoolwork at his father’s home during the week.

[54] The high level of conflict and lack of meaningful cooperation was confirmed by both parties. Ms. Johnson acknowledged that there were times she had not shared important information. Further, despite the final order containing detailed terms, they nonetheless maintained a high level of conflict particularly concerning the holiday schedule.

[55] These changes since the last order are material to the child and the parent’s ability to meet his needs. Grayson was not in school when the order was consented to, and Mr. Benjamin’s work schedule which was the basis for that order no longer applies. The parties acknowledged a high level of conflict regarding the schedule and that it was not working for Grayson. These factors combine to establish a material change in circumstances.

[56] On the basis of this finding the court must conduct a fresh inquiry into the best interests of the child on the issues of decision-making and parenting time, while taking into consideration the entirety of the circumstances.

[57] With respect to decision-making Mr. Benjamin seeks to vary the order and have sole decision-making authority and Ms. Johnson seeks to maintain joint decision-making. Mr. Benjamin also seeks to maintain the order restricting Grayson’s contact to Mr. DeVries, which was not opposed.

[58] While there has been at times a high level of conflict between the parties, I find that this conflict was focused primarily on the challenges with the shared schedule in place. When the parenting time order was changed on a temporary basis on October 19, 2022 the parties agreed that the level of conflict had significantly reduced along with the need for the parents to interact as frequently. Mr. Benjamin conceded in cross-examination that relations with Ms. Johnson are now the best they have ever been and that they are interacting “fairly well” at this point.

[59] Since October 19, 2022 the parties have been able to agree on Grayson attending Boy Scouts and have been at an event together without issue. They have also agreed to adjust the schedule when circumstances required. This improvement was also observed by Mr. Benjamin’s partner. Ms. Johnson also confirmed that any information she has requested regarding Grayson has been provided by Mr. Benjamin without issue.

[60] While the level of communication could be improved, I am satisfied that there is at present a reasonable measure and capacity to communicate when needed. The following additional factors also support maintaining the joint decision-making order:

1. Until now all the substantial orders, both final and temporary, have been made on consent, and the parties were able to consent on several issues at the beginning of trial and filed partial minutes of settlement.
2. There was no evidence provided of frequent police involvement or any ongoing CAS involvement. Neither party has a criminal record or outstanding criminal charges.
3. There was no evidence that the child has been significantly impacted by the conflict between the parents. The VOC Reports refer to a happy and positive boy who feels loved by both his parents. Despite the areas of conflict, they appear to have largely been successful in shielding Grayson from it.
4. There is no evidence that either party has actively undermined the child’s relationship with the other parent. The VOC Reports establish that Grayson is bonded with both his parents.
5. The parties agreed to a shared parenting arrangement in July and August and implemented it successfully in the summer of 2023.

[61] Overall, the best interests of Grayson support a continuation of the joint decision-making order.

[62] With respect to the parenting schedule, Mr. Benjamin seeks to maintain primary residency and Ms. Johnson seeks a week-about shared schedule.

[63] While I am satisfied that Grayson enjoys the love and support of both parents, a shared parenting plan is not in his best interests at this time for the following reasons:

1. Despite the shared parenting plan that was in place for several years, it was clearly not working for the parties or Grayson. Grayson has lived in the primary care of his Mr. Benjamin since October 2022 which has resulted in improvements in his academic performance at school, and a reduction in the conflict between the parties.
2. Grayson is almost 11 years old and has expressed clear views and preferences that he wishes to maintain residing primarily with his father during the school week. He felt more confident and better able to complete his schoolwork at his father’s and there was a general improvement in his marks between grades three and four.
3. His views and preferences were clear and consistent and showed a level of maturity in all the circumstances. They ought to be given significant weight.
4. Mr. Benjamin has remained in the same residence since separation. Ms. Johnson has moved her residence five times in the last six years. Ms. Johnson’s circumstances have not been as stable, although she has maintained the same residence since 2021.

[64] While Grayson is clearly bonded with both his parents, his need for stability, particularly during the school week, support maintaining the current parenting schedule of primary residence with Mr. Benjamin.

[65] However, while Grayson feels more comfortable and confident with his schoolwork residing at his father’s during the week, both parents are nonetheless capable. Regardless of the parenting schedule Grayson has always attended school regularly and on time and his work habits and learning skills were noted in the report cards as being as high or higher when there was a shared schedule.

[66] As such, I am satisfied that the alternate weekend parenting time in Ms. Johnson’s care remain extended to Monday mornings with a return to school. Grayson shall also continue to be in his mother’s care on Wednesdays from after school to 8 PM.

[67] During closing submissions Mr. Benjamin conceded that there should be a week-about parenting schedule during the school summer holiday and that the parties alternate Christmas. Even had he not done so the court would have made these orders. Grayson enjoys spending time with both parents, and specifically outdoor activities including fishing with his mother. The summer holiday is the ideal time to facilitate these activities. The parties also consented to a week-about schedule last summer and were able to implement it successfully.

[68] The parties are agreeing to alternate who has the whole Easter or Thanksgiving weekend. They are also agreeing to a sharing of the Christmas holiday by splitting it into two equal parts and alternating who has the first half which includes Christmas day. They both agreed that parenting exchanges on Christmas Day or over holiday weekends were not successful or in Grayson’s best interest.

[69] As Grayson has not been with his mother on Christmas Day for the last two years, Ms. Johnson shall have the first half of the Christmas break including Christmas Day in 2024, and shall maintain this in even years going forward.

[70] The issue is not to reward or punish either parent but to put an arrangement in place that will best serve the interests of Grayson. Having considered all the factors outlined herein, and in s.24 (2) of the CLRA, the best interests of the child support an order for joint decision-making and primary residence with Mr. Benjamin during the school week with an equitable sharing of other times.

Child Support

[71] Based on the parenting order Ms. Johnson has an obligation to pay child support. The parties consented to various orders filed as Exhibit 1 at trial, including an agreement on child support depending on the parenting order. They consent to an order that the applicant pay child support in the amount of $288 per month commencing March 1, 2024 based on an annual income of $33,600.

[72] Ms. Johnson also acknowledged an obligation to pay child support following the temporary order of October 19, 2022. During trial the parties consented that the child support owing from November 1, 2022 to February 29, 2024 should be calculated on the basis of Ms. Johnson’s imputed income of $21,700 contained at paragraph 8 of the order of February 27, 2017. This creates arrears in child support of $2784. Ms. Johnson did not oppose the submission by Mr. Benjamin that this be repaid at a rate of $200 per month.

[73] On the basis of the foregoing a final order shall issue as follows:

1. The order of February 27, 2017 shall be vacated.
2. The parties shall have joint decision-making with respect to the child, and they shall confer on major decisions impacting the child’s health, education, and welfare.
3. Ms. Johnson shall be listed with the school as the alternate contact.
4. The child shall reside in the primary care of Mr. Benjamin with parenting time with Ms. Johnson as follows unless otherwise agreed between the parties: a. alternate weekends from Friday at 4:30 PM to Monday morning with a return to school. This shall be extended to Thursday at 4:30 PM if Friday is a PD day and to Monday at 4:30 PM if it is a PD day. The alternate weekends shall coincide with the weekends when Ms. Johnson has her other child, Colton, in her care. b. Wednesdays from after school to 8 PM. c. A week about parenting schedule during the summer holiday with exchanges occurring on Fridays at 4 PM. This schedule shall begin the first Friday after the school year finishes with the parent who’s weekend it is to be under the regular schedule having the first full week. d. Christmas holiday to be shared equally by splitting the school break into two equal time periods, with the parties alternating who has Christmas Day each year. If the midpoint in the school Christmas break falls on Christmas Day, the exchange shall occur on December 26 at noon. For 2024 Ms. Johnson shall have the first half of the Christmas break including Christmas Day, and shall maintain this in even years going forward. e. The parties shall alternate Easter and Thanksgiving holidays such that the applicant shall have the child in her care for the Easter holiday and the respondent shall have the child in his care for the Thanksgiving holiday in odd-numbered years, to alternate in even numbered years. These uninterrupted holidays will start on the last day of school before the weekend at 4:30 PM and extend to a return to school on the first day following the weekend. f. Ms. Johnson shall ensure that Grayson has no contact with Kody DeVries except for incidental contact in the community. g. Additional terms related to decision-making, holidays, and parenting time as outlined in the partial Minutes of Settlement filed as Exhibit 1 at the beginning of trial.
5. The applicant shall pay to the respondent child support for one child in the sum of $288 per month commencing March 1, 2024 and on the first day of each month thereafter based on an annual income of $33,600.
6. Arrears in child support owed by the applicant to the respondent for the period November 1, 2022 to February 29, 2024 are hereby fixed in the amount of $2784, and repayable at a rate of $200 per month commencing March 1, 2024 and monthly thereafter.
7. Additional terms related to the proportionate sharing of section 7 expenses and the maintenance of the child on benefits available to the parents as outlined in the partial Minutes of Settlement filed as Exhibit 1.

[74] Given the divided success, the parties are strongly encouraged to agree on the issue of costs, if any. However, if either party is seeking an order for costs and the parties are not able to agree, the party seeking an order for costs shall serve and file written submissions, not to exceed three pages, excluding attachments which shall include a bill of costs and any offers to settle by April 30, 2024. The responding party shall file written submissions, not to exceed three pages, excluding attachments which shall include a bill of costs and any offers to settle by May 14, 2024. If no submissions are received from the party seeking costs by the deadline there shall be no order as to costs.

Released: April 15, 2024 Signed: “Justice S. E. J. Paull”