BRACEBRIDGE COURT FILE NO.: FC-10-248-00

DATE: 20120222

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

CINDY LYNN

Applicant

– and –

KEVIN LYNN

Respondent

M.A. Reid, for the Applicant

S.J. Greenberg, for the Respondent

HEARD: November 28, 29, 30, December 1, 2011 and January 20, 2012

MULLIGAN J.

REASONS FOR JUDGMENT

[1] This is family law matter in which the parties seek a divorce and the resolution of the following issues: child custody, child support, equalization of property and exclusive possession of the matrimonial home.

FACTUAL BACKGROUND

[2] Cindy and Kevin Lynn were married on August 27, 2005. Prior to marriage they entered into a common-law relationship and began living together in Bobcaygeon in 1996. Both prior to and after the marriage the parties had a number of separations. They finally separated in late September or early October 2010. At the time of separation they resided in Huntsville together with their son Preston Robert Lynn, born January 10, 2005. A temporary order provides joint custody to Cindy and Kevin. The parties have a matrimonial home on Rock Lake near Huntsville. The home is registered to Kevin. Cindy has a residential property in Newcastle which is a rental property. Cindy has a small business, a video rental store, in the Bobcaygeon area. She attends there on weekends to run her business. Kevin has recently started his own business, doing rock blasting. Pursuant to the temporary order, as varied by the parties, their son Preston resides at the father’s residence at Rock Lake on weekends and at the mother’s residence, a rented condominium in the Huntsville area, during the week. Preston attends a French immersion school in the Huntsville area.

[3] In addition to a divorce, Cindy seeks sole custody of Preston together with the ability to withdraw him from the French immersion school and to relocate with him to the Bobcaygeon area. Alternatively she seeks joint custody with the proviso that she be entitled to make decisions on her own about the school Preston goes to and the community he resides in. She also seeks child support in accordance with the Child Support Guidelines. She is not seeking spousal support. Kevin opposes sole custody to Cindy and any order which would enable her to move Preston from the Huntsville area. Both parties are seeking equalization of net family property. Kevin seeks an order for exclusive possession of the matrimonial home. This relief is not opposed by Cindy.

[4] At the time of trial Kevin was 38 years of age and Cindy was 35.

LITIGATION HISTORY

[5] A review of the endorsements, orders and related consents will assist in understanding the context of this matter.

(i) October 4, 2010 – order without notice enabling Preston to reside with Cindy pending service on Kevin.

(ii) October 7, 2010 – contested motion – the parties were granted joint custody with a nesting arrangement enabling Preston to reside in the matrimonial home with his mother from Monday to Friday and with his father from Friday to Monday. Parties were required to retain a social worker to conduct an assessment.

(iii) July 14, 2011 – The motions brought, including Kevin’s contempt motion, adjourned sine die on the undertaking of Cindy not to return to live in the former matrimonial home. Parties were required to re-engage the social worker to update her report.

FAMILY HISTORY

[6] Cindy completed high school in 1998 and resided with her parents in Bobcaygeon. Bobcaygeon is located in the Municipality of Kawartha Lakes and is about twenty minutes from Lindsay. Bobcaygeon is just over an hour south of Huntsville and both communities are within the catchment area for the Trillium Lakelands District School Board. Cindy and Kevin met in Bobcaygeon. His family resided there as well. They started dating and began living together in a cottage. Before they met, Kevin acquired a cottage on Rock Lake in the Huntsville area. They both moved out west to seek employment but returned after several months. While they were out west Kevin’s cottage burned down and in the years that followed he rebuilt the cottage as a permanent home using the insurance proceeds together with his own labour. When they returned from out west they resided in the Huntsville area but they separated in 2000 when Cindy moved back to the Bobcaygeon area. They re-partnered in 2001 and Kevin moved back to Bobcaygeon. They rented a house from Kevin’s mother. Cindy pursued employment with the Red Cross and other service providers operating a nursing call centre. For a time she worked at call centres but eventually was able to work from her own home using a computer based program.

[7] During this period Kevin worked very little and had some difficulty with drugs and was arrested on two occasions. In 2001 he was found guilty of simple possession of marijuana. In 2004 he received a conditional sentence of seven months house arrest after a conviction for possession of marijuana for the purpose of trafficking. Cindy picked him up from the North Bay jail on one occasion. She also drove him to court several times in North Bay in connection with his legal proceedings.

[8] On January 10, 2005 their son Preston was born. At that time they were residing in Bobcaygeon. Cindy took a maternity leave from her employer and they relocated to his home on Rock Lake in Huntsville. They were married on August 27, 2005.

[9] In 2006 they moved back to Bobcaygeon so that Cindy could continue her employment working by computer from home. While in Bobcaygeon they enjoyed support from both parties’ parents. Cindy’s parents resided in Bobcaygeon and often assisted with babysitting as did Kevin’s mother, Janet Taylor who resided there as well.

[10] Cindy became pregnant again but tragically miscarried in January of 2007. She spent four days in hospital before being released. Kevin did not visit her hospital and could not be located. This put a strain on their marriage and they separated again. In April 2007 she moved back to Huntsville. It was her evidence that she did so because Kevin promised to leave the drug trade. It was their agreement at the time that she would be a stay-at-home mom. She left her employment with the nursing call centre.

[11] From November 2008 to May of 2009 they separated again and Cindy resided with Preston in rental accommodation in Fenelon Falls. Cindy purchased a video rental store which provides her with modest income. With the assistance of her parents and Kevin’s mother she was able to continue her work at the video store while they provided daycare for Preston. Kevin visited occasionally.

[12] During this period while they were separated they worked out an interim parenting agreement to provide for access during the holiday period. Cindy continued to be the primary caregiver of Preston.

[13] In 2009 they reconciled again and had some marriage counselling. In April 2009 she moved back to Huntsville. Cindy would travel to Bobcaygeon to work in her video store and often took Preston with her to be looked after by either Cindy’s parents or Kevin’s mother.

[14] In the fall of 2009 Preston started French immersion at Riverside Public School in the Huntsville area. It was Cindy’s view that French immersion would be an advantage for Preston and Kevin supported this decision. During this period of time Cindy would often go to Bobcaygeon for the weekend to work at her video store and would take Preston with her. The home at Rock Lake was isolated; it was accessed by a private road and there were not a lot of other children around for Preston to play with especially in the winter months.

[15] By the summer of 2010 although they were together they were frequently having verbal disagreements. There was no physical violence in their relationship except for one pushing and shoving incident in the kitchen. Cindy worked two or three times a month on weekends by going to her video store in Bobcaygeon. Her business was not profitable enough to hire employees except for Cindy’s mother who helped in running the business.

[16] By the end of September 2010 the marriage was over and Cindy left the residence. Her application for child custody led to the temporary order previously referred to which was a nesting arrangement. This enabled Preston to stay in the matrimonial home and remain in the same school. Cindy resided in the home during the week and Kevin resided in the home on the weekend.

[17] In November 2010 Cindy made a unilateral decision to move out of the home with Preston and reside at separate residential accommodation in Huntsville. She had a moving van attend at the residence and took a considerable amount of the couple’s personal property with her. Thereafter Preston continued to go to the same school and the parties made the necessary adjustments required for his transportation.

[18] As a result of this move Kevin brought a contempt motion. When the matter returned before Wood J. on December 16, 2010 the contempt motion was withdrawn on consent and in its place it was ordered that the residence of the child remain within the Town of Huntsville until further court order. Cindy did not give any notice to Kevin about her plan to move out of the matrimonial residence nor did she seek any variation of the previous order providing for the nesting arrangement. Her evidence at trial was that she moved out because she felt the home was isolated, and accessed by a private road maintained by Kevin. She thought it would be difficult and perhaps unsafe to reside there all winter.

[19] In June of 2011 Cindy unilaterally decided to move back into the matrimonial residence. Without notice or consultation she appeared at the residence with her aunt. She made her way into the residence and waited for Kevin’s return. Kevin returned with his girlfriend and later Kevin’s father attended. There was an altercation involving Kevin’s father and Cindy. The police were called and charges were laid against Kevin’s father. Kevin was also arrested but released without charges after a few days in custody. Kevin’s father also brought charges against Cindy. That matter is still before the court. Cindy’s attendance at the residence led to motions by both parties which returned before Justice Wood on July 14, 2011. The motions were adjourned sine die on the undertaking by Cindy that she would not return to live in the matrimonial home without a court order.

TRIAL ISSUES

[20] There are two major issues to be determined as a result of the evidence heard at trial. The first is a determination of the equalization payment that ought to be paid. The second issue is custody and child support for Preston, leading to a determination of where he will reside and which school he will attend.

NET FAMILY PROPERTY CALCULATIONS

[21] At the conclusion of the trial both parties filed updated net family property statements (“NFP”). There is a substantial disagreement as to the claims made against one another. Cindy claims that she is owed an equalization payment of $115,037.00. Kevin claims that he is owed an equalization payment of $17,144.00. In order to make a determination for equalization purposes it is necessary to review the evidence or lack thereof with respect to issues in dispute. I will review matters keeping in mind the onus on each party, so that decisions can be made on the balance of probabilities.

[22] Before dealing with a line by line analysis I will focus on certain debts or deductions claimed by Kevin. Kevin claims a pre-payment of equalization of $42,555.28 as against Cindy. The basis of this is the refinancing of the matrimonial home which took place in mid-September of 2010, prior to their separation. The refinancing paid out an existing mortgage with the Police Credit Union and the payment of various credit card debts for both parties. According to the direction re funds filed as exhibits Kevin had the benefit of the payout of $52,982.00 towards his debts. Cindy had the benefit of a payout of $42,553.00 towards her debts. After these payouts they were each still left with significant credit card debts. Both parties had independent legal advice and there was no agreement between them that this payout was to be a pre-payment of any equalization. They did not in fact separate until the first day of October 2010. I accept Cindy’s clear and unequivocal evidence about this date especially in contrast with Kevin’s qualified evidence about the actual date of separation.

[23] Although Cindy’s debts were converted to a mortgage on property registered to Kevin, Kevin has the benefit of this transfer of debt on his NFP because it became part of his mortgage debt on the matrimonial home which he claims is $185,000.00. I would therefore disallow this claim by Kevin.

[24] Similarly I would disallow his claim that Cindy owes him a debt of $21,920.00 with respect to contents of the home taken by her and replaced post-separation. That issue is more properly dealt with under general household items and vehicles.

[25] Kevin also claims as a debt the notional cost of real estate commissions of $22,440.00 plus legal fees of $1,500.00 if the matrimonial home were sold. In addition he claims the disposition cost of $508.00 for an RRSP. There was no evidence that he would be required to or intended to dispose of these assets. I would disallow all three of these items: see Sengmueller v. Sengmueller (1994), 1994 CanLII 8711 (ON CA), 17 O.R. (3d) 208 (C.A.).

REAL PROPERTY

[26] Both parties have agreed on the value of the real property for the matrimonial home registered to Kevin and the rental property registered to Cindy. It is agreed that Cindy’s real property value is $230,000.00 and Kevin’s value is $374,000.00.

GENERAL HOUSEHOLD ITEMS AND VEHICLES

[27] Kevin submits that the household goods and furniture that each party has at valuation day are valued at $35,000.00 which would yield a neutral adjustment. Cindy submits that her furnishings are $5,000.00 and his $20,000.00 which would result in a credit in her favour of $15,000.00. Part of her claim was chattels owned by Kevin and left at the Bobcaygeon home. The parties moved from that home some time ago. It was rented from his mother. It is now occupied by someone else. I am not satisfied that there are any chattels there owned by Kevin. After separation Cindy chose to move out of the matrimonial home unilaterally and brought a moving van to remove many household items. Kevin’s evidence consisted of photographs showing that there was only a very small amount of furniture left behind. Kevin further submitted that he was required to refurnish the house to provide proper accommodation for himself and Preston who resided there on weekends. There is no evidence to suggest that any of the household goods and furniture had a high value. The parties had acquired them over a period of time. There was no appraisal evidence. I am satisfied on all the evidence that the value of the items in Cindy’s hands should be valued at $15,000.00 and the items remaining in Kevin’s hands be valued at $5,000.00.

Vehicles

[28] Cindy submits that at the time of separation she had a truck, a four-wheeler and a skidoo valued at $5,441.00. She submitted that the items Kevin had, totalled $58,400.00. The difference between these two figures would leave her with a credit of $52,959.00. Kevin’s figures for vehicles would attribute a value to Cindy of $10,630.00 and a value to himself of $16,650.00 for a net differential to Cindy of about $6,000.00. Based on the evidence I make the following findings:

Cindy’s Vehicles

I. 2005 Ford Truck

[29] Cindy stated that her truck was worth $2,641.00. Kevin submitted that it was worth $9,130.00. Both parties produced black book values to attempt to establish the value of this vehicle. I am satisfied that $5,000.00 is a proper allowance for this vehicle.

II. Four-Wheeler and Skidoo

[30] Cindy says that the value of these items is $2,800.00. Kevin attributed a value to this of $1,500.00. I am satisfied that $2,800.00 is an appropriate figure.

Kevin’s Vehicles

I. Ford Truck

[31] Kevin submitted that his truck was worth $16,650.00. Cindy submitted that is was worth $25,000.00. Both parties provided retail black book values. I am satisfied that the figure of $16,650.00 is a reasonable value for this vehicle.

II. 1979 Pontiac Trans-am

[32] Kevin owned this vehicle prior to the marriage at which time it was inoperable. Cindy showed a value of $20,000.00 supported by internet ads for a similar vehicle restored and in working condition. Kevin’s evidence was that the vehicle was still not operational and had no value. No appraisal was provided for this vehicle and I am satisfied that a value of $1,000.00 is fair and reasonable.

III. Yamaha Four-wheeler

[33] Cindy submits that Kevin’s four-wheeler is worth $4,000.00 and she submitted evidence that he acquired it for $4,500.00 in 2008. I am satisfied on the evidence that Kevin had a four-wheeler at the time of separation. I would attribute a value of $2,000.00 to it based on his evidence that it needed work.

IV. 1999 Skidoo

[34] Cindy submitted that Kevin’s skidoo is worth $2,500.00 based on internet advertisements. Kevin’s evidence was that he sold it after separation for $1,000.00. I am satisfied that $1,000.00 is a reasonable figure for this item.

V. Ford Tractor

[35] Cindy submitted that Kevin owned a ford tractor worth $6,900.00. Kevin’s evidence was that he did not own the tractor, and it belonged to his father. However, he used it frequently to maintain the access road from the main road to his residence. His father has a cottage nearby. His father gave evidence that he did in fact own the tractor but Kevin had access to it. I am satisfied on the evidence that Kevin does not own the tractor and no value should be included for this item.

[36] I find that the total value of Cindy’s household goods and vehicles is $28,808.00 and Kevin’s value is $25,650.00.

BANK ACCOUNTS AND SAVINGS

[37] The parties have reasonably close figures for each other’s bank accounts and savings. Cindy indicates that the value of her accounts at separation was $8,062.00 and Kevin’s was $3,669.00. Kevin submits that the value of her accounts was $7,926.00 and his was $2,910.00. Cindy’s statement noted that there was CIBC deficit, in Kevin’s bank account but did not quantify the amount. Kevin’s statement showed a deficit of $851.00. I am therefore satisfied that the value of bank accounts and savings should be $8,062.00 for Cindy and $2,910.00 for Kevin.

BUSINESSES

[38] At the time of separation both parties had businesses. Cindy had a video store which she valued at $19,555.00. This was based on an appraisal that she obtained, although Kevin submitted that the value of the business was $25,000.00. I accept the appraised value of Cindy’s business at $19,555.00.

[39] Kevin started a business called Rock Blasters Muskoka in the year prior to separation. He is self employed, has no employees and no equipment. Kevin submits that he now derives an income of $35,000.00 a year from this business. He works on a contract basis with municipalities or other contractors who need rocks fractured or removed from construction sites. Cindy submits that the value of this business is $50,000.00 but acknowledges that there is no foundation for this figure. Kevin indicates that the business has no resale value given that it has recently started up and is a sole proprietorship. Although no appraisal was provided I am satisfied that an appraisal of this business would provide no valuable insight into its value and I am satisfied that it had no value at separation so I would attribute zero to the value of Kevin’s business.

DEBTS AND OTHER LIABILITIES

[40] There are a number of debts and liabilities at valuation day. There is no disagreement that the mortgage on Kevin’s matrimonial home was $185,000.00 and the mortgage on Cindy’s rental property was $182,849.00. The parties also agreed that Cindy had the following debts:

TD Canada Trust $ 1,035.00

MBNA $ 9,491.00

BMO $13,314.00

[41] The parties also agreed that Kevin had the following debts as of separation:

BMO MasterCard $ 8,454.00

CIBC Visa Select $19,007.00

[42] There is a disagreement about the following debts of Kevin.

VISA Classic

[43] The parties agreed that Kevin also had a VISA Classic credit card debt but disagreed on the value at the time of separation. Kevin submitted that it had a value of $18,864.00. Cindy stated that the value at separation was $16,864.00. The statement provided as an exhibit for the period September 25 to October 25 indicated a balance on October 25 of $19,300.00. On the date of separation, October 1, 2010, Kevin incurred a charge of $2,000.00 to Cougar Sales and Service, Collingwood. No evidence was provided as to whether this was a newly acquired asset for Kevin or repair of some piece of equipment. I am not satisfied that this should be credited to him to increase his debt. I would therefore allow the debt at $16,164.00, the figure at the opening period of the statement.

VISA CIBC Gold - $10,258.00

[44] The statement filed by Kevin as an exhibit covered the period August 23 to September 22, 2010 and showed a balance at that time of $10,258.00. I am satisfied that this was not one of the credit cards paid out by the re-financing in mid-September and I accept Kevin’s evidence that this was still an outstanding debt as of the date of separation.

Capital One Credit Card - $5,512.00

[45] The statement filed by Kevin indicated that the balance as of October 26 was a credit balance of $162.00. The statement noted a previous balance of $5,512.00 and a payment of $5,730.00. I am satisfied that this was one of the credit cards paid off or paid down from the re-financing in mid-September and not a debt at valuation day.

MBNA Credit Card - $6,625.00

[46] The statement filed covered the period September 14 to October 14, 2010, showing a credit balance of $305.00. The statement recorded a previous balance of $6,625.00 and a payment credit of $7,038.00 during this period of time. I am satisfied that this also was one of those credit cards paid out in the re-financing which the parties agreed to in mid-September and was therefore not a debt at valuation day.

[47] The findings and adjustments with respect to debts and liabilities can be summarized as follows:

Cindy

Mortgage $182,849.00

TD Canada Trust $ 1,035.00

MBNA $ 9,491.00

BMO $ 13,314.00

Total: $206,689.00

Kevin

Mortgage $185,000.00

Royal Bank VISA Classic $ 16,864.00

BMO MasterCard $ 8,454.00

CIBC VISA Select $ 19,007.00

CIBC VISA Gold $ 10,258.00

Total: $239,583.00

PROPERTY, DEBTS AND OTHER LIABILITIES ON MARRAIGE

[48] The parties agree that at the date of marriage Cindy had household items and vehicles worth $11,500.00 and bank accounts and savings of $3,987.00 giving her a total of $15,487.00. Cindy submits that Kevin’s assets had no value at the date of marriage. Kevin submits that he had $31,500.00 of general household items and vehicles. I am satisfied that Kevin had some property value at the time of marriage in 2005. I am satisfied that he had a four-wheeler worth approximately $2,500.00, and a 1978 Camero Trans-am, which was not in working order, valued at $1,000.00. He also has some miscellaneous furniture located in the Rock Lake residence which he refurnished after the fire loss using the insurance proceeds. I would allow a total value of items owned by him of $15,000.00 at the date of marriage.

Equalization Claim

[49] Based on the foregoing determinations the total net family property for each party is as follows:

	Applicant (Cindy)	Respondent (Kevin)
Value of Property	$230,000.00	$374,000.00
General Household Items and Vehicles	$22,800.00	$25,650.00
Bank Accounts and Savings	$8,062.00	$2,910.00
Business Interests	$19,555.00	$0.00
Value of Property on V Day	$283,662.00	$402,560.00
Debts and Other Liabilities	$206,689.39	$239,583.00
Assets on Date of Marriage	$15,487.41	$15,000.00
Debts and Property Owned at Marriage	$222,176.00	$254,583.00
Value of Property at V Day	$283.622.00	$402,560.00
Net Family Property	$61,486.00	$147,977.00

Net Family Property $147,977.00 - $61,486.00 = $86,491.00 ÷ 2 = $43,245.50

[50] The result is an equalization payment by the respondent Kevin to the applicant Cindy in the amount of $43,245.50 which I have rounded to $43,245.00.

CUSTODY AND ACCESS

[51] At the core of this dispute is whether both parents should continue with joint custody of Preston or whether Cindy should have sole custody with liberal access to Kevin. Both parties gave evidence on their own behalf and called other witnesses in support. In making a determination my focus is on the best interests of Preston who is now seven years of age and in grade one of a French immersion program. Preston is caught in the middle of the high-conflict relationship between his parents. The evidence of his teacher and the social worker who did an assessment for both parties indicates that this conflict may be having an effect on Preston.

Evidence of Cindy Lynn

[52] Cindy gave evidence about the stormy relationship she had with Kevin both prior to marriage and after marriage. I have already reviewed some of the facts and the interim court orders to date. I am satisfied that during Preston’s primary years, Cindy was the primary caregiver. In the pre-school years the parties resided in Bobcaygeon. Cindy primarily worked from home but when she was working away from home she enlisted the aid of her parents or Kevin’s mother to provide child care. Kevin pursued his own lifestyle and was generally not employed. Cindy was the primary income earner in the family. On one occasion when they separated while living in Huntsville she and Preston moved back to the Bobcaygeon area so that she could work in her video store. Once again she enlisted the aid of relatives to provide child care. To the parties credit they were able to work out an access arrangement over the holiday period at the end of December 2007. Preston spent time with both parents by mutual agreement.

[53] When the marriage broke down in October of 2010 Cindy’s initial plan was to move back to the Bobcaygeon area with Preston. Her ex parte motion was unsuccessful and an interim order led to a temporary joint custody order with a nesting arrangement. This enabled Preston to stay in the matrimonial home and remain in the same school. Cindy resided in the home during the week. On the weekend Kevin moved in and Cindy moved out; usually returning to Bobcaygeon to tend to her video store.

[54] In November of 2010 Cindy moved out of the matrimonial home with Preston. She determined that the house on Rock Lake, accessible by a private laneway, was too isolated for her to reside there during the winter. She had safety concerns. She made this decision unilaterally and it speaks to the level of conflict between the parties that they could not discuss this issue.

[55] Cindy moved to rented premises elsewhere in the Huntsville area. Kevin brought a motion for contempt. The matter was resolved on an interim basis. A new arrangement resulted whereby Preston lived with his mother during the week in the rented premises and with his father on the weekend at the Rock Lake residence. The temporary order ensured that Preston was required to remain living in the Huntsville area.

[56] In June of 2010 Cindy went back to the matrimonial residence with her aunt to discuss moving back in. In her view she had a right to do so. Once again she made this decision unilaterally without discussing it with Kevin or seeking an amendment to the court order. As a result of this attendance at the house there was a confrontation. Kevin’s girlfriend Alisha Lamb was there. She called Kevin’s father who lived in another cottage nearby. There was a confrontation between Cindy and Kevin’s father and the police were summoned. Both Kevin and his father were charged. Charges against Kevin were dropped but charges against his father are still before the court.

[57] Since the date of that incident the parties have continued to exchange Preston in accordance with the court order. Both parties gave evidence about negative conduct about the other at the time of these exchanges. This is the atmosphere that Preston is subjected to when he sees both parents together.

[58] Cindy gave evidence about Kevin’s second drug conviction which resulted in a conditional sentence of house arrest. It was her evidence that he is still involved in the drug trade although there was no evidence called in support of that allegation. She did speak about one incident which was troubling. It was her evidence she received a telephone call from Kevin requiring her to drive by the local hospital in a pick-up truck so that he could jump in the back of the truck to vacate the area. She followed his instructions and did so. There were no charges against Kevin in connection with that night’s activity.

[59] Cindy also gave evidence about her truck being seized by the OPP because it was in possession of one of Kevin’s friends and allegedly involved in some sort of drug transaction. Her truck was returned to Ford Credit and she launched a civil action to get her truck back. Based on her affidavit evidence, which she now admits was untruthful, she got the truck back. She was required to pay a substantial amount of money to recover the truck and she acknowledges that most of the funds were provided by Kevin.

[60] In spite of the difficulties between them Cindy acknowledges the importance of Kevin in Preston’s life. She is supportive of the time that Preston spends with Kevin. Kevin’s residence on Rock Lake, although isolated in the winter provides a unique atmosphere for Preston in the summer. Preston loves swimming and Kevin says that he will swim 10 or 12 times a day and enjoys other recreational activity around the property. Preston keeps some chickens on the property. In addition he has the benefit of his grandfather, Kevin’s father, who resides nearby at a cottage on Rock Lake. Kevin’s father keeps some horses there during the summer. Kevin’s father and his spouse spend summers on Rock Lake but go south for the winter. During the time that Kevin’s father is at the cottage Kevin’s sister also visits with her children. They live in the Bobcaygeon area. While they are at the cottage Preston enjoys a wonderful relationship with his two cousins.

[61] Kevin’s father Douglas Lynn gave evidence on Kevin’s behalf. I am satisfied that he has a close and loving relationship with his grandson Preston and Preston benefits from this relationship during the summer months when Douglas Lynn is at his cottage with his spouse Judith Lowes.

Preston at School

[62] Preston is presently in grade one of the French immersion program at Riverside Public School. He has been in the French immersion program since junior kindergarten. Riverside is the closest school where French immersion is available but outside the catchment area if Preston were to be enrolled in the English program. To enroll in English at Riverside one of his parents would have to move into the catchment area for this school. Otherwise he would have to move to another school in the Huntsville area. It is not disputed that it was Cindy’s idea to enroll Preston in French immersion. Her view was that he would be better positioned as an adult to obtain employment if he was bilingual. Kevin supported this decision. Neither parent has any fluency in French or the ability to help Preston with French language learning.

[63] Preston’s grade one teacher, Pam Steeves, gave evidence about her observations about Preston. She is his grade one teacher and has a great deal of experience. I was impressed with her evidence and her genuine concern for the welfare of Preston. She has observed him from September until the trial in November when she gave evidence. The essence of her evidence was that Preston should not be in French language education and would benefit by being in an English only school. The following excerpts from her evidence will provide context:

A: As a student, I don’t think he’s doing very well. Would you like me to elaborate on that?

A: So, I was concerned because he’s in a program that might not best be suited for him. …

[64] After trying to arrange a meeting with the two parents to discuss issues she said:

And I pursued it because this is in the best interest of Preston, and no matter what the adults are thinking and feeling, I was going to fight for Preston, and I felt, in the conversation, that Kevin was perturbed with me, and he talked a lot, and I couldn’t get a word in edgewise, but I kept pursuing and, at one point, I said Kevin this is about Preston. Let’s make it clear. It’s about Preston and the topic that we were discussing was that Kevin did not want Preston taken out of the French immersion program, so when I asked why, he said it was basically to do with bussing, that because they both live out of the area, for Preston to go another – to go to an English immersion – excuse me – English, he would not be able to continue at Riverside, and so it’s convenient for the bus to go to both places of where they live. …

[65] Ms. Steeves also gave evidence about trying to arrange for professional intervention by the school board on Preston’s behalf.

[66] Ms. Steeves made the following observations about Preston in the classroom:

I found that I really couldn’t ascertain his abilities at that moment because he wasn’t really giving anything. He was not there. That’s the best way I can put it. He would stare off into space. He was not engaged with the rest of the class, and he was quite isolated from them.

[67] Ms. Steeves also gave evidence about some frustration in attempting to arrange a meeting with Kevin to discuss Preston’s schooling. She also confirmed that the social worker engaged by both parties, Katherine Moran-McAlpine, sat in on her classroom to observe Preston relating to instruction and to other students.

[68] Cindy acknowledges that Preston is not doing well in the French immersion program. Her evidence was that she sat in for several weeks at the beginning of the term to act as a volunteer. She has not been able to reach an agreement with Kevin about moving Preston to an English school.

[69] Kevin’s assessment is that Preston should remain in the school with assistance to be provided by the school board. He views as positive Preston’s interim report card sent home by Ms. Steeves in November 2011. However I prefer the vive voce evidence of Ms. Steeves who was able to elaborate on the difficulties she has observed of Preston in the classroom.

Assessment Report

[70] Prior to the trial both parties engaged Katherine Moran-McAlpine MSW to provide an assessment report. Ms. Moran-McAlpine prepared an assessment report and an updated report which was filed as an exhibit. In addition she testified at trial. Ms. Moran-McAlpine has been employed by the Simcoe County Children’s Aid Society since 1998 and is presently a Branch Service Manager. She also is in private practice and conducts 12 to 15 assessments per year often at the request of the Office of the Children’s Lawyer. In preparing her report Ms. Moran-McAlpine interviewed the parents and observed Preston with his mother and with his father. She observed him with Kevin’s new partner Alisha Lamb. She also had an opportunity to observe Preston in his classroom in grade one in Ms. Steeves class. Her updated report recommends that Cindy have custody and primary care of Preston with liberal access for Kevin on weekends, holidays and/or the summer months. She is supportive of Cindy’s desire to move to Bobcaygeon and concludes that it would not interfere with Preston’s time with Kevin.

[71] Ms. Moran-McAlpine’s evidence was that Preston was bright, capable and did not appear to have any developmental delay issues. But she wondered if his lack of achievement was based on issues concerning his emotional or mental health. She recommended a professional intervention and stated in her evidence:

Certainly a professional therapist of some kind, who has expertise in working with children who have come from, you know, separation who have experienced loss, disruptions, and also someone that had strong knowledge because I think it’s a combination of many things he’s struggling with.

[72] As to the move to Bobcaygeon Ms. Moran-McAlpine observed:

she reported that her circle of supports are in the Bobcaygeon area, so all of those things, if they increase her quality of life, one would presume that it would increase Preston’s quality of life, so that they would have a place they could call their home. Ms. Lynn gave- certainly was consistent in what she was saying to me that she was supportive. She absolutely acknowledges that Preston needs to see his dad. It’s important for Preston. Preston loves his dad. She wants Mr. Lynn to be able to do that.

[73] Ms. Moran-McAlpine spoke about Kevin’s relationship with his new partner. As she indicated in her testimony “I think Preston up to this point – I mean, Preston’s been through a lot in a year right? ... I mean, it was clear he was struggling with – particularly with what was going on with his dad and his dad’s new partner”.

[74] Before making recommendations Ms. Moran-McAlpine noted in her report:

The issue of relocation remains the primary issue in this matter. Ms. Lynn would like to move to the Bobcaygeon area to carry on with her business in that area, to be closer to her family and supports and to settle into a house for her and Preston. Ms. Lynn remains committed to and supportive of Preston’s spending ample time with his father on weekends and during the school holiday as previously noted.

With respect to the issue of custody, it was previously recommended that Ms. Lynn and Mr. Lynn have joint custody of their son and engage in parallel decision making in specific areas of their son’s life. However, the parents relationship post-separation is much more adversarial now with no direct contact which has significantly impaired their ability to even agree to hold a school meeting to talk about their son’s needs or to agree to make a referral for therapy to address his apparent mental health struggles and this is unlikely to change for some time particularly for Mr. Lynn who appears quite invested in the fight. As such, Preston needs a parent who is going to be consistently focused on and responsive to his needs and ensure that he receives the needed services to repair the damage caused by all that he has experienced.

Ms. Lynn has consistently demonstrated her ability to do this.

[75] Ms. Moran-McAlpine has made a number of useful recommendations for a parenting plan in her report. I have considered those recommendations and modified or adopted a number of them in my reasons that follow. However three recommendations warrant mentioning now:

Preston should not be cared for or exposed to any adult that is under the influence of alcohol or drugs. The parent responsible for Preston should remove Preston from such a situation immediately.

Preston should not be exposed to any further incidents of adult issues, conflict, and/or negative comments made by the parents and/or their extended family about the other parent and/or their extended family.

Preston should be referred immediately to a mental health professional with expertise in working with young children and parental separation in order to work through his feelings related to all.

Michael Lacano

[76] Michael Lacano is Cindy’s father and resides in Bobcaygeon with his spouse, Cindy’s mother. He is retired. They have a close relationship with Cindy and Preston and his evidence was that he and his wife provided daycare services for Cindy often by looking after Preston when Cindy was working at her video store. It was his evidence that he and his wife continue to support Cindy and Preston.

Kevin’s Evidence

[77] Kevin gave evidence to maintain the status quo, being both parents have joint custody with Preston and spend time with him on weekends and summer holidays. He acknowledged his previous criminal record but pointed to Cindy’s conduct in leaving and then returning to the matrimonial residence unilaterally as having a negative impact on their relationship. He acknowledged that there was an occasion when he left Preston in the care of other family members so he could take a boat cruise despite the fact that Preston was supposed to be in his care. During this period Preston called his mother and apparently was upset. It was Kevin’s evidence that this was an isolated incident.

[78] I accept Kevin’s evidence that he has a close and loving relationship with Preston. I also accept that he enjoys times with Preston at his home at Rock Lake on the weekends especially in the summer months. In the summer Preston has the advantage of using all of the outdoor amenities including swimming the lake, looking after his chickens and visiting his grandfather who lives nearby in another cottage. Kevin acknowledges that the home is somewhat isolated. It is accessible by a private road and Preston has no other playmates in the area except when Preston’s cousins come to visit their grandfather during some weeks in the summer. Kevin’s evidence was that he disagreed with the assessment of Preston’s teacher and felt that he was not included in discussions. He acknowledged that there has been some CAS involvement with respect to matters between him and Cindy but confirmed that there is no current involvement and no open file with the CAS.

[79] Kevin acknowledged that he and Cindy could not reach an agreement with respect to moving Preston to an English only school. In addition he expressed frustration that homework that Preston may have had was not sent home with him so that he could review it or assist Preston. He acknowledges now that he would support any sort or psychological intervention for Preston.

[80] He denied that his new partner Alisha Lamb was involved in any discipline of Preston. He denied that there was an incident where he may have been intoxicated while Preston was in his care during a weekend.

[81] Kevin does not support the assessment done by Lorraine Moran-McAlpine. He noted that she only observed Preston in school on one occasion and he disagreed with her interpretation of the dynamics between him and Preston when she observed them at his residence.

[82] He agreed that there were many periods of separation in their relationship both pre-marriage and after marriage. He acknowledged that there were difficulties between him and Cindy at times of exchange of Preston and testified that Cindy yelled and made a bad situation worse.

Alisha Lamb

[83] Kevin’s new partner Alisha Lamb gave evidence at trial. They first met when she was babysitting for Kevin’s friends Guy and Mel Dubreil. Alisha Lamb is 19 years old. She is not employed and is not attending school. They have been in a relationship for about nine months but the stability of this relationship has not been ascertained. Her evidence at trial was that they recently separated for a time after an argument. She called her friend Guy Dubreil and stayed at his residence for a day or two before returning to resume cohabitation with Kevin.

[84] Alisha’s evidence was that she gets along well with Preston and indicates that she does not get involved with disciplining except for taking away privileges or sending Preston for a time out.

Guy Dubreil

[85] Guy Dubreil gave evidence as a friend of Kevin Lynn. He has worked with Kevin on some subcontracts in connection with Kevin’s job. He and his wife have a child about the same age as Preston. The children became friends at Riverside School. However it was interesting to note that Mr. and Mrs. Dubriel removed their child from the French immersion program at Riverdale School and moved her to an English school. It was their view that their daughter was not doing well in the French immersion program.

Family Support in Bobcaygeon

[86] In addition to those that testified it is clear that Preston has other family support in Bobcaygeon. Kevin’s mother Janet Taylor resides there. I accept Cindy’s evidence that Ms. Taylor provided daycare to Preston when Cindy was living in the Bobcaygeon area. There is no evidence to suggest that Cindy’s difficult relationship with Kevin has interfered with Ms. Taylor’s relationship with Preston. As indicated Kevin use to live in Bobcaygeon. His sister still resides there with her two children. Preston enjoys a warm and loving relationship with his cousins when they are at the cottage at Rock Lake. There is no reason why this relationship couldn’t continue if Preston spent more time in Bobcaygeon.

JOINT CUSTODY vs. SOLE CUSTODY

Legal Principles

[87] Both parents currently enjoy joint custody pursuant to a temporary order. The issue for determination is whether or not Cindy should have sole custody and the right to move Preston to Bobcaygeon. In Perron v. Perron, 2010 O.J. No. 6053 (S.C.), Whitten J. summarized the applicable law at para. 106 as follows:

The original claim for custody of the children of the marriage, advanced by Ms. Waring, is both pursuant to s.16 of the Divorce Act, S.C. 1985 c.3 (2nd sup.) as amended, and the Children’s Law Reform Act, R.S.O. 1990 c. C.12 as amended s. 16(a) to the Divorce Act reiterates the well established principle that a court determines custody only in the best interest of the child of the marriage, which requires referencing the conditions, means, needs and other circumstances of the child. In other words, the court must focus on the individual child. Pursuant to subsection 9, the past conduct of a parent is not considered unless it is relevant to the ability of that person to act as a parent of a child. The Divorce Act, in s. 16(10) recognizes the principle that “a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact.” [Emphasis in original].

[88] The Children’s Law Reform Act indicates the following factors that a court ought to consider in determining the best interests of the child at para. 24(2):

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

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

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

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

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

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

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

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

(e) the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing;

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

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

(h) the relationship by blood or through an adoption order between the child and each person who is a party to the application. 2006, c. 1, s. 3 (1); 2009, c. 11, s. 10.

[89] The “maximum contact principle” is often used as a reference guide for determining the child’s best interests based on the Divorce Act, sections 16(10) and 17(9) which require that:

… the court shall give effect to the principle that a child of the marriage should have as much contact with the former spouse as is consistent with the best interests of the child…

[90] However in Bjornson v. Creighton (2002), 2002 CanLII 45125 (ON CA), 62 O.R. (3d) 236 (C.A.) the Ontario Court of Appeal issued a note of caution. As Austin J.A. stated at para. 34:

While the “maximum contact” principle does apply and is an important one, it is not absolute and it remains one factor in the whole of the analysis. It ought not to be treated as the governing factor. In Gordon at para. 24 McLachlin J. noted that:

The “maximum contact” principle, as it has been called, is mandatory, but not absolute. The Act only obliges the judge to respect it to the extent that such contact is consistent with the child’s best interests; if other factors show that it would not in the child’s best interests the court can and should restrict contact. [citation omitted]

[91] In Izyuk v. Bilousov, 2011 ONSC 6451 Pazaratz J. recently reviewed case law regarding various forms of custody including joint custody and parallel parenting. As he noted at para. 504:

But joint custody will only work if the parents have the desire and the capacity to make it work. It is not a risk-free option in the wrong family circumstances, a joint custody order can perpetuate hostilities, indecision, and power struggles. Children – particularly children already exposed to the upset of family breakdown – look to their parents for love, guidance, stability, protection, and consistency. They need to have confidence that adult decisions will be made quickly, properly and uneventfully. [Emphasis in original]

[92] Pazaratz J. defined parallel parenting at para. 507:

Parallel parenting is a form or subcategory of joint custody where the court attempts to carve out the incidents of custody, providing each parent with an inclusive domain of responsibility so that one parent has the final say in the case of conflict.

But as Pazaratz J. noted at para. 518:

Courts have declined to order parallel parenting where parents were unable to agree on important decisions and their lack of cooperation meant that parallel parenting would cause conflict for the children.

[93] In the event that Cindy is successful in her application for sole custody her desire to move to Bobcaygeon must be considered. Although this is not a pure mobility case because the parties do not seek a variation of a permanent custody order, the principles set out in Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27 are of assistance to the court in considering these issues.

[94] These principles have been applied in other cases that did not constitute pure variation applications. In Nunweiler v. Nunweiler, 2000 BCCA 300, [2000] B.C.J. No. 935 the British Columbia Court of Appeal reviewed this issue. As Saunders J.A. stated at para. 27:

On behalf of Mr. Nunweiler it is argued that Gordon v. Goertz is not applicable to these circumstances because it concerned a variation application, not an initial custody determination such as this case. I do not agree. While the first stage inquiry (requirement of the material change in circumstances) clearly is not applicable to a case of an initial custody order, the discussion of the second stage determination of custody and access, is in my view, instructive, and the factors enunciated by Madam Justice McLachlin should be considered, with the appropriate modifications.

[95] In Burgoyne v. Kenny 2009 NSCA 34 the Nova Scotia Court of Appeal came to a similar determination. As Bateman J.A. stated at paras. 20-21:

Obviously, in the case of an original custody order, as is sought here, it is not necessary to demonstrate a material change in circumstances because there is no prior order…the factors relevant to the second stage of the inquiry as enumerated by Gordon v. Goertz, supra, are nonetheless applicable to the determination of the children’s best interests. [citation omitted]

[96] In Berry v. Berry, 2011 ONCA 705 the Ontario Court of Appeal also applied Gordon v. Goertz principles in a case where there was no previous custody order to vary. As Juriansz J.A. stated at para. 9:

Here, there is no threshold issue of whether there has been a change of circumstances since a previous custody order, and there is no relationship between the child and an access parent to consider. With the necessary adjustments, then, the principles from Goertz apply to this case.

[97] In Berry Juriansz J.A. went on to list the applicable Goertz factors that ought to be considered in mobility cases where there is no previous order to consider. At para. 10 he stated:

In Goertz, the Supreme Court emphasized that the superordinate consideration in a mobility case is the best interests of the child determined from a child-centered perspective. The court set out, at para. 14, a number of factors to be considered. Taking into account that this case involves two custodial parents, those factors can be stated as follows:

• the existing custody arrangement and relationship between the child and each of the custodial parents;

• the desirability of maximizing contact between the child and both parents;

• the views of the child (when applicable);

• the parent’s reason for moving, only in the exceptional case where it is relevant to that parent’s ability to meet the needs of the child;

• disruption to the child of a change in custody; and

• disruption to the child consequent on removal from family schools, and the community the child has come to know. [Emphasis in original.]

The Principles Applied

[98] After considering the evidence of the parties and the other witnesses including Preston’s teacher and the social worker who prepared the assessment report I am satisfied that it is in Preston’s best interests that Cindy have sole custody of Preston with liberal access to Kevin. I make this determination not to diminish Kevin’s role in Preston’s life but rather to enable Cindy to make sole determinations about Preston’s educational and psychological needs and requirements.

[99] Kevin’s parenting plan involves the maintenance of the status quo which would see Preston remaining in the French immersion school. It is clear that French immersion is not appropriate for Preston. His teacher Ms. Steeves has observed him for many months. She was clear and unequivocal in indicating that Preston should be in an English school. Her attempts to arrange a meeting with Kevin and Cindy were thwarted. Kevin has put his own interests ahead of Preston. He has no particular connection to French language education. His reason for continuing at the school appears to be for the convenience of bussing. Kevin is in a new relationship that has not yet proved stable. His new partner is considerably younger than he is and has not demonstrated that she has any parenting skills that would be of assistance to Kevin and Preston.

[100] It is clear that Kevin is a loving father and Preston enjoys time at Kevin’s house with all the amenities that it has to offer especially during the summer months. Continuing and encouraging this access arrangement will enable Preston to enjoy time with his father. In addition he will enjoy time with his grandfather, who resides on the same lake during summer months, and his two cousins from Bobcaygeon who visit in the summer at their grandfather’s cottage.

[101] Cindy’s parenting plan involves enrolling Preston in an English language school. She initially thought that French immersion would best for Preston. He has been enrolled in this school since junior kindergarten. However it is clear that it is not in his best interests to stay there but she has been thwarted in her effort to move him to an English only school because she and Kevin have not been able to agree. The evidence of the teacher indicates that Preston has not bonded well with any particular children in his class and has not made many friends so moving him to an English school will not be disruptive. In addition he will have a chance to make a fresh start.

[102] I am also satisfied that Cindy will continue to encourage a strong relationship between Preston and Kevin. In spite of the differences between Cindy and Kevin she has encouraged and supported Preston’s times with his father.

[103] The hostility between Kevin and Cindy which appear to continue even during access visit exchanges is troubling; it indicates that these two parents are not suitable candidates for a joint parenting agreement. Although I do not order it I would strongly encourage both parents to retain the service of a parenting coordinator to assist with the implementation of the details of access arrangements.

Move to Bobcaygeon

[104] Having determined that Cindy is the appropriate parent to have sole custody I am satisfied that she should be able to move with Preston to Bobcaygeon. In making this determination I have considered the Gordon v. Goertz principles as summarized in Berry v. Berry.

1. The existing custody arrangements and relationship between the child and each of the custodial parents

[105] The current arrangement sees Preston residing with his father on weekends and with his mother during the week. Bobcaygeon is over one hour away from Huntsville. Both parents have vehicles. I am satisfied that Preston can still enjoy similar but modified weekend access with his father and extended periods of time over the summer months and during other holidays. Preston enjoys doing things with his father and being at the residence at Rock Lake especially in the summer months. In my view this relationship should be encouraged and supported by generous access arrangements.

2. Desirability of maximizing contact between the child and both parents

[106] An access arrangement as indicated will provide considerable contact between Preston and his father. During the weekend Kevin is not working and Preston is not in school. Therefore they can spend a considerable amount of time together. During the week Kevin is involved in his newly established business.

3. Views of the child

[107] Preston is seven and no representative of the Office of the Children’s Lawyer was appointed to seek his views.

4. The parent’s reason for moving, only in the exceptional case where it is relevant to that parent’s ability to meet the needs of the child

[108] Cindy desires to move to Bobcaygeon because her business is located there and she has family support. Under the current arrangement she can only work at the business on weekends when Preston is with his father. If she is residing in Bobcaygeon she will be able to devote more time to her business and if the business succeeds then she will be able to achieve a higher standard of living for herself and Preston. She had deep roots in the community. Her parents reside there. She met Kevin there and they resided together there for several years before moving to Huntsville. Preston spent much of his primary years there. Kevin’s mother also resides in Bobcaygeon. It is clear that both sets of grandparents have been of assistance to Cindy for child care when they both resided in Bobcaygeon. In addition Preston’s cousins also reside in Bobcaygeon.

5. Disruption to the child of a change in custody

[109] If Cindy moves to Bobcaygeon and Kevin has access to Preston on weekends and on extended holiday periods there would be very little disruption to Preston.

6. Disruption to the child consequent on removal from family, schools, and the community the child has come to know

[110] Moving Preston from Huntsville to Bobcaygeon does not represent a removal from extended family. The only family he has in Huntsville is his grandfather who only resides there in the summer months. Preston can continue to enjoy that relationship while he has access with his father during periods in the summer. There is no evidence that Preston has any peer group of friends either in the vicinity of Kevin’s home or in the school community. Preston does not appear to be involved in any community activities such as sports or cultural activities. The change of his school is not a factor because it is imperative that Preston moves from the French immersion school to an English school. By moving to Bobcaygeon he will still be within the same school board - Trillium Lakelands District School Board. To the extent that the school board has begun an intervention or to assist him with his educational needs those supports can be provided to him when he changes to a school in the Bobcaygeon area.

CONCLUSION

[111] In conclusion I am satisfied it is in Preston’s best interest that Cindy be granted sole custody with liberal access to Kevin. As sole custody parent Cindy is entitled to make final decisions as to Preston’s educational and health needs. At the same time Cindy is required to continue to encourage a strong relationship between Preston and his father and to provide information about Preston’s educational and emotional developments.

[112] I am not satisfied that it is in Preston’s best interest to remain in the French immersion school until the end of this academic year. Provided that Cindy has found appropriate accommodation in the Bobcaygeon area and can arrange an appropriate school transfer she can move Preston to a new school there at a suitable opportunity such as the March break or the Easter long weekend. In the meantime the current access arrangements shall remain in place. At the time of access exchange and other times each parent shall support the important role that other parent plays in Preston’s life so that Preston is not exposed to hostility between the parties. As previously indicated the parties should consider the use of a parenting coordinator.

[113] At a minimum Cindy should give Kevin at least ten days notice of her intention to relocate to Bobcaygeon along with information to confirm that the proposed residence provides suitable accommodation for Preston.

THE ORDER

[114] The applicant mother, Cindy Lynn, shall have sole custody of the child, Preston Robert Lynn born January 10, 2005. As the custodial parent Cindy Lynn may relocate with Preston to the Bobcaygeon area upon ten days notice to Kevin Lynn when she has found suitable accommodation for herself and Preston. Such move should take place at a suitable break in the academic year such as March break, the Easter long weekend or, at the end of this academic year.

[115] The respondent father shall have liberal and generally access on the following terms:

(a) In the interim and before Cindy and Preston move the current access arrangements shall remain in place, that is Preston shall reside with his father from Friday evening to Monday morning with the following exceptions:

i. If there is a long weekend because of a statutory holiday or a professional development day which falls on a Friday or Monday Preston shall spend that additional day with his father;

ii. Parties shall continue to exchange Preston as before but in a way that minimizes conflict between the parties and limits Preston’s exposure to such conflict.

(b) When Preston relocates to Bobcaygeon Kevin shall have access to Preston every other weekend from Friday evening to Sunday evening with a view to having one long weekend each month. The long weekend would consist of statutory holiday, such as Family Day or the Victoria Day long weekend or a professional development day if it falls on a Friday or a Monday.

[116] The parties equally share the responsibility for driving Preston back and forth between access visits. The respondent father will pick up Preston on Friday after school, if he notifies the applicant at least 24 hours in advance that he is able to do so. In the absence of notification he shall pick up Preston from the applicant’s residence at 4:00 p.m. unless the parties make alternative arrangements. At the end of the access visit Cindy shall pick up Preston in Huntsville at 6:00 p.m. at the same access exchange the parties are presently using unless they mutually agree to a different location.

Summers

[117] Commencing this summer the respondent shall be allowed to have Preston with him every other week from the July 1st weekend until the Labour Day weekend when school commences. This “week about” arrangement shall commence Sunday evening with Preston in his father’s care and finish the following Sunday evening when Preston returns to reside with his mother. Kevin shall be responsible to pick up Preston at the beginning of the visit and Cindy shall be responsible for picking him up at the end of the visit.

[118] Commencing in the summer of 2013 the respondent shall be allowed to have Preston with him for two week periods to be followed by one week with the applicant so that Preston will be with the respondent for two weeks from the July 1st weekend followed by one week with the applicant and continuing on a two week, one week rotation through the balance of the summer.

Christmas

[119] Irrespective of the weekend access visit, in even numbered years, Preston shall be with the applicant from December 24th 1:00 p.m. to December 25th 1:00 p.m. and with the respondent December 25th 1:00 p.m. to December 26th 1:00 p.m. In odd years this shall be reversed. Whichever parent does not have Christmas Eve overnight with the child, shall have December 31st 1:00 p.m. to January 1st 1:00 p.m.

March Break

[120] If March break is two weeks long the summer access schedule shall prevail that is the respondent shall have Preston with him for the first week and the applicant shall Preston with her for the second week. If the March break is only one week then the total number of days including weekends shall be divided equally with the respondent father having access during the first half.

Easter Weekend

[121] Preston shall be with the applicant mother from Thursday 5:00 p.m. to Saturday at 7:00 p.m. in even numbered years and with the respondent father from Saturday 7:00 p.m. to Monday 7:00 p.m. In odd numbered years this shall be reversed.

Father’s Day/Mother’s Day

[122] Irrespective of any other scheduling, the child shall always be with the applicant on Mother’s Day weekend and with the respondent father on Father’s Day weekend.

Child’s Birthday

[123] If the ordinary schedule would result in the child being with one party during the entire day on his birthday, the other party shall have the option of having the child on either their choice of the previous weekend or following weekend.

Telephone Access

[124] If one of the parties has Preston for two or more overnights in a row on the second, fourth and sixth overnight, that party shall initiate Preston having telephone access to the other party at approximately 7:00 p.m. for at least five minutes.

Regular Communications

[125] Unless parties agree otherwise in writing all ordinary communication by email shall be restricted to one email per day and confined to necessary issues regarding Preston. Parties shall retain a log of emails sent or received. Parties should only communicate by telephone in the event of matters that are sensitive or urgent. The parties will check emails at least once day and provide a prompt response to issues raised.

Positive Communication

[126] The parties shall refrain from making personal or negative comments about each other or about extended family members or partners. The child shall not be used to relay messages between the parents. The parents shall not communicate about issues or arrangements when Preston is present or nearby.

[127] Preston should not be cared for or exposed to any adult that is under the influence of alcohol or drugs. The parent responsible for Preston should remove Preston from such a situation immediately.

[128] Preston should not be exposed to any further incidents of adult issues, conflict, and/or negative comments made by the parents and/or their extended family about the other parent and/or their extended family.

[129] Preston should immediately be referred to a mental health professional with expertise in working with young children and parental separation in order to work through his feelings related to all.

Communication Book

[130] The respondent mother shall establish a communication book in the form of a daily diary so that significant and important events in Preston’s life can be recorded on a daily basis. This may include school issues, medical issues and the ups and downs of daily life for Preston. This communication book should be sent with Preston on access visits with his father so that the respondent can similarly complete a brief daily report about Preston’s activities. Such a report by either parent need not exceed three or four sentences per day.

Dealing with Third Parties

[131] Both parties shall be equally entitled to communicate with all educational, medical, dental, recreational and social service providers for Preston. Each party shall keep the other fully informed of any communications they have such service providers, and particulars of any new providers. Both parties shall be entitled to attend all meetings with such providers. Both parties shall execute consents or authorizations which any professionals or service providers may require, to facilitate equal communication and access to information by both parents.

Extracurricular Activities

[132] Parents are encouraged to register Preston in extracurricular activities provided that they do not conflict with the access arrangements set out herein.

Attendance at Events

[133] Each parent may attend any extracurricular activities open to the public, including sports, practices, games, competitions, concerts, performances, recitals, etcetera. The parties shall remain cordial during these occasions and not use them as an opportunity to discuss child related arrangements and issues.

Scheduling Changes

[134] If a change in the regular and/or holiday schedule is requested due to special event, celebration or unforeseen circumstances a written request shall be provided to the other parent in order to permit that parent to make a reasonable effort to accommodate the request. A response shall be provided within 48 hours of receiving the request. The request and change shall be confirmed in writing by email.

Ongoing Medical Care

[135] As a custodial parent the applicant shall arrange and decide medical issues for Preston. The respondent shall be provided with advance notice of all medical appointments or procedures as soon as they are arranged. Both parties shall be permitted to attend any medical appoints and events.

Emergency Medical Care

[136] Each party shall have authority to arrange emergency medical treatment for Preston but in such event, the party arranging treatment shall make reasonable efforts to notify the other party immediately, to allow the other party to attend at the emergency treatment facility as quickly as possible.

Contact Names

[137] Both parents shall be listed as contact persons with all medical, educational, recreational and social agencies involving Preston.

Child’s Name

[138] Neither party shall change the child’s name – either formally or informally without the written consent of the other party or further court order.

Passport

[139] The applicant shall obtain a Canadian passport for Preston at her expense. The respondent shall cooperate with respect to any paperwork or information required. The passport shall remain in the possession of the applicant subject to being released to the respondent for such travel as may be agreed upon or authorized herein. Neither party shall obtain any other passport for the child, and neither party shall name the child under their own or any other person’s passport.

Travel

[140] Neither party shall be permitted to remove the child from Canada without the written consent of the other party or further court order.

[141] Preston may travel within Ontario for vacation purposes with either parent, which travel will not require the consent of the other party. However the parent shall notify the other in advance whenever Preston will be sleeping away from the other party’s ordinary residence.

Health Coverage

[142] Both parties shall maintain for the child any health care coverage available through any current or future employment. They shall keep each other informed as to any changes in relation to the availability or terms of such coverage.

Parenting Coordinator

[143] The parties shall make reasonable efforts to retain a parenting coordinator to assist them in relation to the parenting and access issues.

Documents

[144] The parties shall provide one another with copies of all relevant child related documents such as the OHIP card, birth certificate, SIN documents et cetera.

Financial Disclosure

[145] The parties shall provide one another with copies of their income tax returns and notice of assessment annually by June 30th.

Personal Disclosure

[146] The parties shall notify one another immediately upon experiencing any change in their employment or education status. They shall keep one another fully informed of any changes to their residential address or telephone number or email.

Child Support

[147] The respondent shall pay to the applicant support for the child in the sum of $303.00 per month based on his income of $35,000.00 per year commencing February 1, 2012.

Spousal Support

[148] The applicant is granted leave to withdraw her claim for spousal support.

Exclusive Possession

[149] The respondent is granted exclusive possession of the matrimonial home.

Divorce

[150] Either party is granted leave to apply for divorce upon filing an affidavit for divorce.

Equalization

[151] The respondent is ordered to pay an equalization payment to the applicant in the amount of $43,245.00 within 30 days of the release of this judgment.

Costs

[152] The parties are encouraged to resolve the issue of costs. In the event that the parties cannot resolve the issue then the applicant can make written submissions as to costs not exceeding five pages within twenty days from the release of this judgment. The respondent will then have ten days to respond with costs submissions not exceeding five pages.

MULLIGAN J.

Released: February 22, 2012