NATURE OF PROCEEDING

[1] Paul and Quareen Grindley have reached a turning point in their lives. They are putting behind them their troubled eight-year marriage, which ended with their separation in 2006 and divorce in 2008. Mr. Grindley has established a new household in Pickering with Lydia Koduah and her nine year old daughter, Nailah. He wants to integrate Othniel and Odane, his two children from his marriage to Ms. Grindley, into that household. Ms. Grindley has established a household in Brampton with two of her sisters and their families, who gave her moral support following her separation from Mr. Grindley. She wants Othniel and Odane to be an active part of that household.

[2] The court’s task is to craft a custody and access arrangement that is in the children’s best interests. Othniel and Odane are adjusting well to their new school in Pickering, and also enjoy the time they spend with their mother and extended family in Brampton. The children’s doctor has no concerns about their health and well-being, and the Children’s Lawyer, following investigations in 2009 and 2012, concluded that Mr. and Ms. Grindley are both competent parents.

[3] The Grindleys’ conflict has made it difficult for them to make decisions together concerning their children. The court must therefore consider alternatives to joint custody, to relieve the Grindleys of a form of decision-making that would bring them into unnecessary conflict.

[4] The main issue that emerged at trial is whether it is in the children’s best interest that sole custody be given to one or other of the parents, and what changes can be made to the access schedule to make it work better for all concerned. Each of the parents seeks sole custody of the children. Mr. Grindley argues that he should be given sole custody because Ms. Grindley uses excessive physical force when disciplining the children. Ms. Grindley argues that she should be given sole custody because Mr. Grindley’s need for control, which caused their separation, now threatens to alienate the children from her.

[5] The roots of the Grindleys’ conflict are as deep as their marriage. Paul Grindley was twenty-seven years old and Quareen Mitchell was nineteen when they met in 1997. The differences in their age, experience, and maturity, which may have contributed to their early attraction to one another, became divisive factors following their wedding a year later. Mr. Grindley often cast himself in the role of a parent toward his wife, castigating her, when she displayed immaturity, for her perceived transgressions. For eight years, the marriage was fraught by his anger over what he considered her excessive disciplining, early in their marriage, of his daughter from a previous relationship, and his suspicion that she was having an affair with her childhood boyfriend, which she continues to deny.

[6] In 2006, the Grindleys went on a vacation to Jamaica, where they visited Ms. Grindley’s relatives. During the visit, Ms. Grindley was profoundly humiliated by the way Mr. Grindley treated her. Soon after they returned, the Grindleys separated in circumstances that have shaped their access to Othniel and Odane in the intervening years.

[7] For the six years that have followed the Grindleys’ separation, and, in particular, following a temporary order that this Court made, with the consent of the parties, in August 2007, Othniel and Odane have been with their father most weekdays, and with their mother most weekends, and Ms. Grindley has been required to pay child support to Mr. Grindley on the basis that Othniel and Odane are “primarily resident” with their father.

[8] The current arrangement is unsatisfactory to both the Grindleys and the children, for different reasons. Mr. Grindley would like to spend more time with the children on weekends, and Ms. Grindley would like to do more of the day-to-day parenting during the week. The children, and especially Othniel, want more flexibility in the access schedule, and more influence over when they spend time with each of their parents. The child support that Ms. Grindley pays redistributes the Grindleys’ income in a way that diminishes Ms. Grindley’s ability to maintain a viable household for the children, and adds to the resources of Mr. Grindleys, who shares expenses with his fiancée.

[9] After a week-long trial, in which both parties testified and called witnesses, I adjourned the proceeding until June 18, 2012, and asked the Office of the Children’s Lawyer to up-date a report it had issued three years earlier, in 2009. I have now reviewed the up-dated report, and what follows are my reasons for disposition regarding the issues in dispute.

BACKGROUND FACTS

Family backgrounds

[10] Paul Grindley is forty-one years old (born […], 1970); Quareen Grindley is thirty-four (born […], 1978). Both were born in Jamaica, where each of them experienced the death of a parent at an early age.

[11] Mr. Grindley is the youngest of six children. He was four years old when his father died. He and his siblings were adopted by their father’s sister and her husband. Three years later, they moved to Trinidad, their adoptive father’s homeland. Their biological mother remained behind in Jamaica, although Mr. Grindley says that he still maintains a relationship with her. Mr. Grindley earned a degree in Electronic Engineering in Trinidad and then came to Canada in 1997, at the age of twenty-seven, and finished his Engineering Associates Degree at Devry College. His adoptive mother died of Leukemia in 2003 and his adoptive father still lives in Trinidad. Mr. Grindley is currently employed by Bell Canada.

[12] Ms. Grindley (or Mitchell, as she was known before she married) is the youngest of ten children. She was four years old when their mother died. Their father immigrated to Canada two years later, in 1984, and for the next eight years, she and her siblings were raised by relatives, with help from their older siblings. In 1992, Ms. Grindley, then fourteen years old, and four of her siblings, came to Canada to join their father. Ms. Grindley completed high school in Toronto and earned a degree in Executive Office Administration at Seneca College. Her father died in 2008. Ms. Grindley is now employed by Bell Express View TV. Three of her siblings now live in Brampton and one lives in Toronto. They are a close knit family and Ms. Grindley now lives in Brampton with her two closest sisters, Noreen and Diane, and their respective families.

Marriage and separation

[13] Mr. and Ms. Grindley met in 1997, a few months after Mr. Grindley arrived in Canada from Trinidad. He was twenty-seven and in Canada on a student visa; Ms. Grindley was nineteen and a Canadian citizen. They dated for a year, and were married on September 5, 1998. Ms. Grindley then sponsored her husband as a permanent resident in Canada.

[14] The Grindleys’ marriage had difficulties from the beginning. The two principal sources of conflict were Nikile, Mr. Grindley’s daughter from a previous relationship, and Patrick, Ms. Grindley’s childhood boyfriend from when she was fourteen, before she came to Canada:

(i) Nikile, at the age of four years old, came to Canada in the summer of 1999, nine months after the Grindleys’ wedding. She returned to Trinidad in 2001, when she was six. Mr. Grindley alleges that the reason she returned was that Ms. Grindley used excessive force disciplining her. Ms. Grindley, whose evidence is supported by her sister Noreen Henry, denies this and says that Nikile returned to Trinidad because her visitor’s visa had expired and her application for citizenship was denied because she had exceeded the stay permitted by her visa.

(ii) After Ms. Grindley and her three sisters came to Canada to live with their father, Ms. Grindley’s childhood boyfriend, Patrick, also came to work on the farms in southwestern Ontario. Mr. Grindley alleges that his wife went in search for him there. He suspects her of having had an affair with him, an allegation that she denies.

[15] The Grindleys’ marriage deteriorated, in spite of temporary improvements in 2000 and 2005, when Othniel and Odane were born. Their conflict culminated in violence during a vacation to Jamaica in the summer of 2006, which led to their separation shortly after their return to Ontario. I will examine the circumstances of their separation in greater detail below, when discussing the ability of each of parent to care for the children, and the Grindleys’ conflicting allegations as to whether Ms. Grindley is violent or Mr. Grindley is controlling.

Early history of the present proceeding

[16] Mr. Grindley began the present proceeding by an Application he made on August 24, 2006, which he served on Ms. Grindley the same morning, together with a motion for a temporary restraining order and temporary custody of Othniel and Odane. Later the same day, he appeared before Seppi J. and asked her to add his motion to the day’s court docket.

[17] Justice Seppi noted Mr. Grindley’s assertion that Ms. Grindley, with the help of her sister and brother-in-law, had tried to remove the children unilaterally from their home on August 21, 2006, which had led to her sister and brother in law being charged with assault and attempted kidnapping. She noted that Ms. Grindley was not in attendance, but observed that this might be explained by the fact that the motion was not on the court docket.

[18] Justice Seppi wisely concluded that it would not be appropriate for her, in the absence of evidence from Ms. Grindley, to make a substantive order. She therefore adjourned the motion to September 1, 2007, and gave the following directions:

Mr. Grindley was to serve the Order on his wife.
The children were not to be removed from the matrimonial home without Mr. Grindley’s consent.
Neither party was to harass, annoy or molest the other, and both were to refrain from negative verbal or physical confrontations, particularly in the presence of the children. Neither party obeyed that direction.

Criminal proceedings

[19] In the year that followed Justice Seppi’s Order, further violence erupted between the Grindleys and criminal proceedings ensued, culminating in both Mr. and Ms. Grindley entering Peace Bonds which restricted their contact and communication with one another.

[20] On Monday, August 28, 2006, Mr. Grindley sought to forcibly recover eggs from Ms. Grindley that he had bought at the grocery store and that she had removed from their refrigerator to cook breakfast for their children. In the altercation that followed, an egg was broken on Mr. Grindley’s head, which he reported to the police, causing his wife to be arrested for assault and detained overnight until she could be released on bail to her father. The assault charge against her was withdrawn on October 20, upon her entering into a Peace Bond.

[21] In December 2006, Mr. Grindley followed the van in which his wife was a passenger into a gas station and confronted his wife. He left the station after a physical altercation with her, in which her cell phone, which she says she was using to try to call police, was thrown to the ground and broken. Mr. Grindley was later arrested and charged with assault. That charge was also withdrawn upon his entering into a Peace Bond.

[22] In the meantime, Mr. Grindley’s motion for temporary custody and a restraining order resumed before Sproat J. on September 1, 2006. Justice Sproat noted that Ms. Grindley had not yet filed material, and that she and Mr. Grindley had only just spoken to duty counsel that morning. He continued Justice Seppi’s Order pending an urgent case conference, which he scheduled for October 10, 2006. He ordered that, in the meantime, Ms. Grindley would have access to the children, with pick-up and delivery by a mutual friend of the Grindleys at the matrimonial home.

[23] Riopelle J. presided at the Case Conference on October 10, 2006. He advised Ms. Grindley to file responding material or bring a cross-motion for custody or access. In the meantime, he granted custody of the children to her every Friday from 7 p.m. to Sunday at 5 p.m., with pick-ups and drop-offs to be supervised by the children’s Godmother, Mara. He ordered Mr. Grindley not to communicate with his wife except through her father, and directed the Grindleys to retain a Supervised Access Centre for future exchanges of the children.

[24] Ms. Grindley delivered her Answer on April 16, 2007. In it, she claimed custody of the children, as well as child support.

[25] On August 16, 2007, the Grindleys consented to an Order by Wein J., confirming that Mr. Grindley would continue to have custody of the children from Sunday at 7 p.m. to Friday at 5 p.m., and that Ms. Grindley would continue to have custody of them from Friday at 5 p.m. to Sunday at 7 p.m. Justice Wein concluded that retroactive support was not appropriate but ordered Ms. Grindley to pay temporary child support in the amount of $364.00 per month, based on her then income of $31,488.00, plus a monthly contribution of $350.00 to child care, for a total of $814.00 per month beginning September 1, 2007. She ordered Mr. Grindley to pay his wife’s costs, on the basis that his claim for interim custody of the children had been unnecessary.

The road to trial

[26] Justice Wein granted Mr. Grindley leave to amend his application. On September 7, 2007, he delivered an amended application in which he added his own claim for child support, as well as for spousal support and sale of the matrimonial home.

[27] On October 28, 2008, Baltman J. made a request that the Office of the Children’s Lawyer become involved. She adjourned the issues of custody, access, child support, and equalization to a Case Conference on January 19, 2009.

[28] On April 2, 2009, after several adjournments, Van Melle J. noted that Mr. Grindley had not filed a conference brief and had only just that week provided disclosure that was to have been provided six months earlier. She stayed Ms. Grindley’s obligation to contribute to the children’s section 7 expenses until it was determined whether or not Mr. Grindley had been employed in 2008. She also ordered Mr. Grindley to pay Ms. Grindley’s costs and directed that a settlement conference take place when the parties were ready.

[29] On August 9, 2011, Mr. Grindley moved to vary the existing orders. Justice Lemon dismissed that motion, without prejudice to Mr. Grindley’s right to bring it back based on better evidence. Justice Lemon also ordered both parties to file up-dated financial statements, and directed that a settlement conference take place on an urgent basis. On September 2, 2011, he presided at a settlement conference where he directed that the case proceed to a trial management conference, and then to a trial that fall. He granted the parties leave to bring further motions, if necessary.

[30] On November 17, 2011, both Mr. and Ms. Grindley brought emergency motions for custody and access based on conflicting affidavits concerning disputes that had erupted between them on October 22 and 26, 2011. Daley J. dismissed the motions, finding that the Grindleys’ conflicting and untested allegations could not be reconciled at a hearing of their motions and that a trial with testimony from witnesses was required. He stated:

The parties are clearly unable to work co-operatively in the interests of their children. This matter requires a determination at trial as soon as possible as the interests of the children must be addressed.

[31] The trial took place before me from March 12 to 19, 2012. I then adjourned the trial for an up-date of a report which the Office of the Children’s Lawyer had made in 2009. Following release of the up-dated report on June 13, the trial resumed on June 19, 2012, at which time Mr. and Ms. Grindley responded to the report and made their final submissions.

The Children’s Lawyer’s Reports

[32] The Office of the Children’s Lawyer assigned a clinical investigator, Janace King-Watson, BA, MSW, RSW, to assess the children’s needs. She issued an initial report on March 23, 2009, which she later up-dated on June 8, 2012.

[33] Ms. King-Watson concluded, in 2009, that both the Grindleys love their children and are capable of providing care for them. She stated that the Grindleys needed to build on their skills in providing appropriate discipline for the children, and to be educated about the negative emotional impact which their conflict could have on the children. She recommended counselling and a parenting program for them.

[34] Ms. King-Watson described the relationship between Ms. Grindley and her children as affectionate. In her follow-up report three years later, she observed that during her visit to the home, Ms. Grindley and the boys related well to each other, and the children were relaxed and comfortable.

[35] Ms. King-Watson spoke to the pastor at the Church where Ms. Grindley served as “young People’s Director” and president of the Young People’s Department. The Pastor told her that Ms. Grindley was well liked at the Church and “very committed and dedicated to the young people.” Ms. Grindley and the Pastor provided programming for the young people on Friday nights and Sundays every month. The Pastor had observed Ms. Grindley and her children interacting together every week and described her as a good mother.

[36] When Ms. King-Watson interviewed the parties in January 2009 for her first report, Mr. Grindley was in a relationship with Charmaine Roberts, whom he had met two months earlier. Ms. Roberts had come to Canada from Jamaica in 1992 to attend school, had a child born in 1994 from another relationship, and had later been married to another man until that marriage ended in 2003. She was a licensed insurance advisor and Mr. Grindley was self-employed at that time on a part-time basis.

[37] Ms. King-Watson observed that Ms. Roberts, when calling Odane, said “Come to “Mommy,” and that Odane referred to her as “Mommy” and to his mother as “Aunty Norrett.” Othniel told Ms. King-Watson that Ms. Roberts was like his “friend” and that he loved her son, Jordan, who was like a big brother to him. Ms. Roberts told her that she planned to give up her own apartment and move in with Mr. Grindley and his children on February 1, 2009 and that she and Mr. Grindley planned to marry. Ms. King-Watson stated in her report:

The writer has expressed concern to Mr. Grindley that Odane refers to his live-in girlfriend, Ms. Roberts, as “Mommy”. This is complicated for a number of obvious reasons, including the fact that the relationship has only been in effect since the end of November 2008. If the relationship were to fail, this can be viewed as another significant loss for the child. In the future, Mr. Grindley is encouraged to consider the impact of his new relationships on the children. It will be in their best interest to wait until a relationship is stable and established before introducing the children to that person and before that person begins to cohabit with him.

[38] By the time Ms. King-Watson did her follow-up investigation in May 2012, Mr. Grindley had ended his relationship with Ms. Roberts and moved in with his present girlfriend, Lydia Koduah, in a house that she shared with her daughter, Nailah, in Pickering. Ms. King-Watson states:

Ms. Koduah said she and Mr. Grindley were platonic friends for a couple of years prior to becoming romantically involved. As a result, she stated, their children knew each other.

[39] Ms. King-Watson observed, in her 2012 report, that during her visit to Mr. Grindley’s home, Mr. Grindley and Ms. Koduah appeared to have a loving relationship. Both gave directions to all three children and the children demonstrated respect for their authority. The children got along well with Ms. Koduah, whom they referred to as “Mom,” and Nailah referred to Mr. Grindley as “Daddy.” Nailah fit in well with Othniel and Odane and described Othniel as a good big brother. The children were apparently comfortable in the three-bedroom home that Mr. Grindley and Ms. Koduah shared until July, when they were to move to a four-bedroom house. They both spoke of having many friends in the neighbourhood and shared stories about their adventures with their friends.

[40] Ms. King-Watson, in her 2012 report, describes Othniel, at almost twelve years of age, as a calm, mature boy with an open manner of communication, who is compassionate and sensitive towards others. He achieves above average grades in most of his subjects at school. She describes Odane as a playful, talkative, and precocious six-year old. He is easily engaged and shares information frankly about his preferences. He continues to struggle with his aggressive behaviour both at home and at school.

[41] Ms. King-Watson states that when the Durham Children’s Aid Society consulted the family physician, Dr. Peng, he had said that he has no concerns about the children’s health and well-being.

[42] In 2009, Ms. King-Watson recommended that the Grindleys have joint custody of their children. She stated that the children should continue to be primarily resident with Mr. Grindley, and that Ms. Grindley should have access to them three weekends out of four (or four out of five, in months where there were five weekends). She recommended that the holidays be equally divided between the parents.

[43] In her 2012 report, Ms. King-Watson stated:

… the writer found no reason to change the children’s primary residence. The parents have not been able to communicate with each other and their quarrels often occur in the presence of the children. The current custodial arrangement may not be in the children’s best interests. Nonetheless, it is the writer’s opinion that the children should continue to have the benefit of quality time with both parents playing an active role in their lives. Further, any parenting plan should allow for limited contact between the parents in order to reduce their opportunities for dispute in the children’s presence.

[44] For the above reasons, Ms. King-Watson recommended that Mr. Grindley should have sole custody of the children, with the children’s primary residence with him, and that Ms. Grindley should have the children in her care on alternate weekends from after school until Monday morning and on alternating Wednesdays from Wednesday after school until Thursday morning. Again, she recommended that vacations be equally divided between the parents.

THE GRINDLEYS’ POSITIONS

[45] As Ms. King-Watson noted in 2009, the Grindleys acknowledge that they both love their children and that they both should be actively involved in the children’s lives. Mr. Grindley stated that he would like Ms. Grindley to take care of the children when he is travelling on business or vacation without the children, and would also give her additional time for special occasions. He stated that he was seeking sole custody for the following reasons:

(a) He was concerned that Ms. Grindley would take the children out of the country and hide them from him. Ms. Grindley denied this, asserting that Mr. Grindley had only made that allegation in order to prevent her from obtaining custody of the children. If Mr. Grindley once had this concern, it seems to have abated.

(b) He wanted more time with the children on weekends.

[46] Ms. Grindley stated that she was seeking sole custody for the following reasons:

(a) She wanted time with the children during the week, and to be able to do more of the day-to-day parenting.

(b) She wanted to ensure that Mr. Grindley did not make unilateral decisions about her access to the children, or about their care, noting that he sometimes denied her access to them and, at other times, changed the transfer location arbitrarily.

[47] In her 2012 report, Ms. King-Watson states:

Mr. Grindley is seeking sole custody of the children. He reported that there has been ongoing acrimony between him and Ms. Grindley because she “abuses” their sons. Mr. Grindley said CAS has been involved on a number of occasions over the years due to complaints from the children about Ms. Grindley’s assaults against them. Mr. Grindley said he wants the children to continue having access to their mother. However, he added, he wants her to refrain from hitting them.

[48] Ms. Grindley told Ms. King-Watson, in response to Mr. Grindley’s allegation of assaults by her, that Mr. Grindley initiates arguments with her in the presence of the children, which she usually ignores. She acknowledged that she spanks the children or holds them firmly when disciplining them. However, in consultation with Ms. King-Watson and the CAS, she has agreed to find alternate disciplinary strategies.

[49] Ms. King-Watson notes in her 2012 report that Ms. Grindley believes that the children want to live with her. When invited at trial to respond to the statements that the children had made to Ms. King-Watson, indicating that they prefer to live with their father, she replied that she believed that Mr. Grindley had influenced the children to say this.

ANALYSIS AND EVIDENCE

1. Custody and Access

A. Legislative Framework

[50] Mr. Grindley began this proceeding under the Divorce Act.[^1] The court’s determination of the custody and access issues is therefore governed by section 16 of the Divorce Act. Section 16(1) provides that a court may make an order respecting custody of or access to a child of the marriage on application by a spouse or any other person. Section 16(4) provides that in making an order under section 16, the court may grant custody and/or access to more than one person. Section 16(6) of the Act gives the court a broad discretion to include any terms, conditions or restrictions in a custody and access order that it considers fit and just.

[51] Section 16(8) of the Divorce Act provides that the sole criterion for determining custody and access issues is “the best interests of the child of the marriage, as determined by reference to the conditions, means, needs and other circumstances of the child.” The Supreme Court of Canada in Young v. Young (1993) and Gordon v. Goertz (1996) held that these interests must be ascertained from the perspective of the child rather than of the parents. Parental preferences and rights do not play a role in the analysis, except to the extent that they are necessary to ensure the best interests of the child.[^2]

[52] No one factor in the statutory definition of a child’s “best interests” is given statutory pre-eminence in the court’s determination of custody and access. But the court pays particular attention to:

(i) The level of hostility between the parties, the extent to which that hostility could undermine the stability of the child and what measures, if employed, would likely strip the hostility from the environment;[^3]

(ii) the extent to which the person seeking access has laid down a track record of using contact to the child for a purpose entirely collateral to the child’s best interests; for example, to try to control or denigrate the parent or the parent’s partner;[^4]

(iii) the extent to which the person displaying the objectionable conduct has the ability and the motivation to alter the behaviour; and

(iv) whether the parent is acting responsibly, reasonably and in a child-focused fashion in her own assessment of what is in the child’s best interests.[^5]

[53] Section 16(10) of the Divorce Act provides that, in making a custody and/or access order, the court “must give effect to 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”. To that end, the court is required to consider the willingness of each spouse who is claiming custody or access to facilitate such contact. The goal of maximum contact with each parent is not absolute, but the legislation is clear that maximum contact can only be restricted to the extent that contact conflicts with the best interests of the child.[^6]

[54] The Divorce Act does not set out a detailed list of other factors to be considered when determining the best interests of a child. In an effort to apply the best interests test with greater precision and consistency, however, courts have considered the criteria set out in provincial and territorial legislation. The relevant provisions in Ontario are sections 20 and 24 of the Children’s Law Reform Act (“CLRA”).[^7]

[55] Under section 20 of the CLRA, both parents are equally entitled to custody of a child. Where the parents live separate and apart and the child resides with one parent with the consent of the other, the entitlement to access continues, along with the right to visit with and be visited by the child, and to make inquiries and be given information as to the child’s health, education and welfare (see sections 20(1), (4) and (5) of the CLRA.)

[56] Section 24(1) of the CLRA provides as follows:

Merits of application for custody or access

(1) The merits of an application under this Part in respect of custody of or access to a child shall be determined on the basis of the best interests of the child, in accordance with subsections (2), (3) and (4). 2006, c. 1, s. 3 (1).

Best interests of child

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

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

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

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

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

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

(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 of or access to the child to act as a parent; and

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

Past conduct

(3) A person’s past conduct shall be considered only,

(a) in accordance with subsection (4); or

(b) if the court is satisfied that the conduct is otherwise relevant to the person’s ability to act as a parent. 2006, c. 1, s. 3 (1).

Violence and abuse

(4) In assessing a person’s ability to act as a parent, the court shall consider whether the person has at any time committed violence or abuse against,

(a) his or her spouse;

(b) a parent of the child to whom the application relates;

(d) any child. 2006, c. 1, s. 3 (1).

[57] I will review the evidence in relation to each of the above-mentioned considerations insofar as they pertain to the Grindleys and their children.

Love, affection and emotional ties

[58] As noted by Ms. King-Watson, the Grindleys acknowledge that they both love their children and that they both should be actively involved in the children’s lives. As she also noted, both children have strong emotional ties with both parents.

[59] As noted above, Ms. Grindley complained to Ms. King-Watson that Mr. Grindley sometimes denied her access and, at other times, changed the transfer location arbitrarily, thereby interfering with her ability to exercise access. Mr. Grindley, on the other hand, testified that the children had reported that their mother and her family continually denigrate him to the children, advising them that he is the devil and not their father. He still complains that several years ago, Noreen’s husband, Raymond Henry, told Odane that Patrick was his real father and would be coming from Jamaica to get him, which had caused Odane great distress.

[60] Mr. Grindley submits that Othniel and Odane are full of energy and that if this is not recognized, they will use their energy in negative ways and act out inappropriately. He argues that the punishment Ms. Grindley imposes on the children, at times unfairly, creates frustration and anger in them. He asserts that he has seen the women in his life make a greater effort with his children and give them more attention than they receive from their mother.

[61] I find that Mr. Grindley and his fiancée, Ms. Koduah, are attentive to Othniel and Odane and engage them by helping them with their studies, taking them to activities, and conversing and relating warmly with them.

[62] I find that Ms. Grindley is also attentive to her children and relates well with them, with the exception of instances in the past when she has resorted to physical force in an effort to manage their behaviour. I find that Mr. Grindley has also resorted to physical force toward his children. I will address this issue in greater detail below, when discussing the competence of the Grindleys to parent their children.

The children’s views and preferences

(i) Othniel

[63] In 2009, Othniel reported being pleased that he was able to spend time with his mother on afternoons after school. He said that he enjoyed both the time he spent with her and the time he spent with his father. He said that the best part about being with his mother was seeing their extended family and the opportunity it gave him and his cousins to play together. He also enjoyed going to activities such as skating, movies and eating out at restaurants. He complained, however, that his mother did not have a working computer at her home and that there was not much to do there except watch television and play video games.

[64] Othniel reported in 2009 that the best part about being at his father’s home was that he got to play with his father and his friends. He loved Jordan, the son of Mr. Grindley’s then-girlfriend, Charmaine Roberts, who was like a big brother to him. He also wanted to spend more weekend time with his father.

[65] Ms. King-Watson reported in 2012 that Othniel was consistent, at both his mother’s and his father’s home, in saying that he loves both his parents and his step-mother, Ms. Koduah. For the most part, he enjoys his visits with his mother and her family. However, he feels frustrated that his access is so structured and rigid that he often has to miss social events, such as his friends’ birthday parties, because of scheduling. He said that he would prefer to have a more flexible access schedule that would allow him to spend more time with either parent, depending on extra-curricular activities and social events.

[66] Othniel was firm in stating that he wants to continue living with his father while having regular access to his mother. He views himself as having a closer relationship with his father than with his mother, mainly because he and his father share the same interests. He also states that when he feels sad or hurt, he feels more comfortable sharing his feelings with his father. He said that he had spoken to his mother about his feelings and made it clear that he wanted to remain with his father.

[67] Ms. King-Watson writes of Othniel’s response to his mother’s anger in these terms:

Othniel said that he has had difficulties coping with his mother’s anger. At times, she has hit him or grabbed him roughly by the wrist or the scruff of his neck. The last time she grabbed him and hit him was during Mother’s Day weekend 2012. When his mother spanks him, he said, it does not really hurt him. However, when she is angry and hits him or puts her knees on him, “It really hurts.” Othniel has made it known that he does not like to be treated that way and the CAS has spoken to Ms. Grindley about it. Othniel believes that his mother has issues with anger management. He disclosed that he also had such issues and that he saw a counsellor at his old school who assisted him with it. He thinks such counselling would help his mother in managing her anger.

[68] Othniel informed Ms. King-Watson that his mother was worried that she was being a bad mother to him but that he had reassured her that he loves her and that she is not bad.

(ii) Odane

[69] In her 2009 report, Ms. King-Watson described Odane as “an attractive and wilful three year old.” He liked skating and playing with his mother and watching television and practicing counting with his father. He also enjoyed spending time with Jordan, the son of Mr. Grindley’s then-girlfriend, Charmaine Roberts, whose relationship with Mr. Grindley has since ended.

[70] In her 2012 report, Ms. King-Watson states that Odane also prefers to continue living with his father. He stated that he wanted to visit his mother and spend time with her “but not too much”. He stated that he hates it when she hits him “when she’s mad,” although he believes that he sometimes “deserves” a spanking when he is “acting up”. Usually, he said, his parents’ spankings do not hurt him, but he adds that when his mother is angry, “she hits harder and she grabs.” Ms. King-Watson continues:

With a mischievous tone and smile, Odane stated that, in the past, he kicked and punched his maternal uncle and his cousins when he was angry with them. Odane expressed love for his step-sister Nailah and referred to her as “really cool”. He said they always play together. Odane said he has fun with his cousins at his mother’s home as well and that he enjoys his visits there. Apart from his cousins, Odane said he does not have friends in his mother’s neighbourhood. He said he has many friends at his father’s home and most of them attend the same school. Odane described Ms. Koduah as “very nice.”

[71] Ms. King-Watson spoke with Sue Draper, a records disclosure worker at the Durham Children’s Aid Society. Ms. Draper stated that in March 2011, Odane reported being happy at his father’s home but “not at Mom’s”. He said that his mother sometimes slapped him on the bum and that he did not always know why he was being spanked. He said that his father spanked him also, sometimes.

[72] Mr. Grindley claims that Othniel would prefer to go to his mother on his own terms, when he feels like it. From what he said, he would be with his mother one or two weekends per month. He claims that Odane expresses the same wishes as Othniel, with whom he is very close. Mr. Grindley claims that Odane cries and gets into a mood when he has to go to his mother’s on a weekend. Sometimes, he says he hates his mother and hates going by her.

[73] Noreen Henry testified and stated that the children were happy when they were with their mother, which is consistent with the observations that Ms. King-Watson made of the children while visiting Ms. Grindley’s home. Ms. Henry also said that the children sometimes expressed reluctance over returning to their father’s home after access visits with their mother.

[74] There is no doubt that Othniel and Odane are influenced by their father in what they say their preference is. This is not surprising. They have lost the security they previously derived from an intact family. They are now heavily dependent on their father for support, especially in their schoolwork, where their success matters most. They have witnessed their parents compete for sole custody and know that their father expects them to vindicate him in where they say they want to live.

[75] I am mindful, however, of the fact that the children have expressed to Ms. King-Watson, in both households, their preference for maintaining their primary residence with their father. While I find that their preference has been influenced by their father, who is overly controlling and a skilled manipulator, it would be counter-productive to disregard their preferences by changing their primary residence to their mother’s home at this time. This would tend to engender resentment in them and a belief that they have not been heard. I also take into account the fact that Othniel is reaching an age where his preferences, however formed, must be given greater weight.

Length of time the children have lived in a stable home environment

[76] Mr. Grindley asserts that he has had “custody” of the children since August 24, 2006, when Seppi J. ordered that the children not be removed from the matrimonial home at 60 Kesteven Crescent in Brampton without his consent. He claims to have been “the sole parent for Othniel from when he was 5 years old and the sole parent of Odane from when he was 8 months old.” He states that he has provided a stable and safe home and neighbourhood environment for them. He contrasts this with what he characterizes as the instability of Ms. Grindley’s home.

[77] The reality is that Othniel and Odane have been in Mr. Grindley’s custody on week days, with the exception of one Wednesday each month, when they are with their mother, and in their mother’s custody on most weekends, as well as on the Wednesdays after the weekends they have spent with their father. It is revealing that Mr. Grindley continues to assert that the children are in his sole custody in spite of it having been pointed out to him that this is not what the court orders have provided since October 2006.

[78] The children resided with their father initially because of the bail conditions that Mr. Grindley contrived to be imposed on his wife on August 28, 2006, as a result of his complaint that she had “assaulted” him with the egg that he was trying to wrest from her hands in their basement apartment. One of the bail conditions prohibited Ms. Grindley from being within 100 metres of the matrimonial home. The practical effect of this was that the children were in their father’s care until Riopelle J. made his Order on October 10, 2006, giving custody to Ms. Grindley every Friday from 7 p.m. to Sunday at 5 p.m.

[79] Wein J. then made her Order dated August 16, 2007, which gave Mr. Grindley custody of the children every week from Sunday at 5 p.m. to Friday at 7 p.m. and one weekend per month, and gave Ms. Grindley custody from Fridays at 7 p.m. to Sundays at 5 p.m., three weekends per month (or four weekends on months with five weekends) and for three hours on Wednesdays on weekends they had spent with their father.

[80] While the charge against Ms. Grindley was withdrawn on October 20, 2006, upon her entering into a Peace Bond, she continued to live with her father after that, while Mr. Grindley continued living in the matrimonial home until 2008, when it was sold. At that point, Mr. Grindley moved to a semi-detached house at 58 Fandango Drive in Brampton. In November 2008, Mr. Grindley met Charmaine Roberts, a sister of one of his wife’s sister-in-laws, and by January 26, 2009, Ms. Roberts was Mr. Grindley’s “live-in girlfriend” and planned to give up her own apartment and move, with her seventeen year old son, to Mr. Grindley’s home. That relationship ended about five months later.

[81] In July 2009, Mr. Grindley met his current partner, Lydia Koduah, while helping a mutual friend move her from her condominium to a three bedroom home which Ms. Koduah had bought in Pickering. Ms. Koduah, a Canadian citizen, was employed as a business analyst for Telus Communications, where she earned between $38,000.00 and $40,000.00 per year. She had sole custody of her daughter, Nailah, from a previous relationship, whose father paid child support pursuant to a court order.

[82] Mr. Grindley and his sons moved into Ms. Koduah’s home in August 2011. Mr. Grindley secured his current employment at Bell in 2010 and he and Ms. Koduah then bought a new four bedroom home, also in Pickering, to which they were to move this month. They plan to be married on August 31, 2012.

[83] In 2009, Ms. Grindley lived in a two-bedroom basement apartment in central Brampton. The apartment was clean and adequately furnished. The children shared a bedroom but had separate beds. By 2012, Ms. Grindley was sharing a house in Brampton with her two sisters and their families. As her brother-in-law, Donovan, works the night shift, she has arranged for him to bring the children home and provide care for them in the evening.

Ability and willingness of each applicant to provide the children with guidance and education, the necessaries of life and any special needs of the children

(i) Necessaries of life

[84] Ms. Grindley is employed by Bell Express View TV in North York, where she worked from 7 a.m. to 4 p.m. She earns $52,431.00 per year.

[85] Mr. Grindley is employed by Bell Canada, where he earns $38,336.16 per year. He shares a household with Ms. Koduah, who earns $38,000.00 to $40,000.00 at Telus Communications.

[86] While the home that Ms. Grindley shares with her two sisters and their families is clean and adequate, it is crowded and lacks some of the amenities that the children enjoy at Mr. Grindley’s home. Mr. Grindley has been able, with his own resources, those of Ms. Koduah, and the child support he has received from Ms. Grindley, to provide a three-bedroom home for the children, from which he has moved in July 2012 to a four bedroom home very close to the children’s school. While the prosperity of a parent’s household should not be determinative of where the children have their primary residence, it no doubt affects the children’s preference, as is demonstrated by Othniel’s complaint that his mother’s home, in 2009, did not have a working computer that he could use for his schoolwork.

(ii) Education

[87] Othniel and Odane have attended Westcreek Public School in Pickering since September 2011. Othniel’s grade six report cards indicate that he has been doing consistently well in school. His attendance, punctuality, academic performance and social development are good. Odane’s grade one report cards indicate that his learning and work habits “need improvement.” They continue:

Odane has to work on following the classroom rules and routines. In addition, he needs reminders to cooperate with his peers in the classroom and on the playground. He is encouraged to ask questions to gain understanding before becoming frustrated.

[88] The Oxford Learning Centre completed an educational assessment on Odane on May 1, 2012, with the goal of developing appropriate classroom programming for him. His educational assessor reported:

Odane exhibited a relatively slow cognitive tempo and work habits. As a result, this may make it difficult for him to complete his school work in the time given in the classroom. He was articulate and utilized appropriate syntax. In most areas of intelligence, Odane scored in the average range. He scored below average in tests that were delivered orally and which measured his auditory processing and memory. Students who score below average in these areas face challenges in the classroom. They often have difficulty hearing the entire lesson and often require clarification. Such deficits may also cause distractibility and difficulties developing reading fluency. Therefore, accommodations would have to be made for Odane in the classroom for Odane to experience academic success.

[89] Mr. Grindley testified that the teachers at Westcreek Public School write notes in the children’s agenda books or call him directly. They have commented on the fact that the children, after spending weekends with their mother, have not completed their homework. He said that he had not shared this information with Ms. Grindley.

[90] I have reviewed the boys’ agenda books. While there is a notation in Othniel’s agenda on Monday, September 12, 2011, that he did not finish his homework, there are also notations on Tuesday, October 4, while he was residing with his father, that he was not prepared for class and did not have any books for his project, and on Friday, October 7th, that he had not brought any resources to class that week for his project. On Thursday, November 10, there is a note that Othniel still had not completed his assignments in writing that were due the previous Monday. Also, on Thursday, November 24th, a writing assignment due on Monday was still not complete, as well as seven “teachings”. Written homework was not completed on Monday, January 23rd, but so also was it not completed on Friday, March 3rd. In summary, I do not see any consistent failure by Othniel to complete his homework on weekends when he was with his mother and I see just as many incomplete assignments when he had been at his father’s home the previous night.

[91] Both children’s agenda books also contain several notations by Mr. Grindley to the children’s teachers, criticizing Ms. Grindley for her transgressions. For example, on Monday, October 24th, Mr. Grindley writes:

Good Morning Mr. Haines. Just wanted to give you a quick update that Othniel and Odane were again in a physical abusive situation with their mother on Saturday and Sunday so I had to have them make a report at the Brampton Police Station. If you need to contact me please feel free. Thank you.

[92] On Thursday, October 27th, he writes:

To Whom it may concern, Please excuse Othniel for not completing his assignment due to a breach in the access pertaining to his mother who took him from home at 4:10 p.m. and did not want to bring him home at 7:00 p.m., I had to get the police involved to have my children returned to me. Please feel free to contact me. Respectfully,

[93] Mr. Grindley states that from January to June 2012, Othniel was doing extra lessons after school in all his subjects. His teacher, Ms. Green, with whom he usually stayed after school for a half hour to an hour, provided these lessons. She expressed the view that Othniel is very intelligent and that she wanted to help him in areas of weakness to help bring him up to the expected standards.

[94] Mr. Grindley states that he had a couple of meetings with Odane’s teacher and the principal. They informed him that the school had tested Odane and determined that he has an identified learning disability and that his reading was not at grade one level. They therefore assigned him to a reading class for students who have difficulty reading and assigned special reading books for him.

[95] Mr. Grindley states that he has demonstrated that he can provide guidance to the children as he is involved in their lives and participates in their activities, such as swimming and soccer. He claims that that Ms. Grindley goes out when the children are in her care, and leaves them with her sister. He claims that she does not attend functions at the school and rarely contacts the boys’ teachers to find out if there are issues.

[96] I find that while Mr. Grindley has been more actively involved in the boys’ schooling than their mother, this is explained in large part by the fact that the boys have been with him most weekdays. I find that Ms. Grindley has continued to show interest in the boys’ schooling and has attended events at the school when she is notified of them and given the opportunity to attend.

(iii) Guidance

[97] The children’s school report cards and the report of the Children’s Lawyer discloses that Odane, at age seven, has difficulty with impulse control. This creates a disciplinary challenge for both his teachers and his parents.

[98] In her visit to the Grindleys’ respective homes in 2009, Ms. King-Watson observed that each of the parents had difficulty managing Odane’s behaviour. At Ms. Grindley’s home, when Odane wanted to wear his ice skates in the house and Ms. Grindley told him that he could not do so, he threw himself on the floor and screamed in high-pitched tones. He continued when Ms. Grindley tried to talk to him and asked him to stop. When she tried to encourage him to behave by asking if he wanted to go and see his cousins, he replied that he did not want to and said “I don’t like Mommy” and that she was mean and was not nice. After about five minutes, Ms. Grindley tickled Odane and told him that she would eat him up, whereupon he laughed out loud and seemed to forget the ice skates.

[99] On another occasion, Ms. Grindley asked Odane to clean up the mess he had made with his paper and crayons, he refused to do so, stating, “I don’t clean up.” Toward the end of the home visit, Odane wanted to play video games and became frustrated and threw the game controller across the room when it did not work for him. His mother responded, “Odane, now you broke it. You can’t play with it.” Odane then picked up the game controller and began to play. When Ms. Grindley took it from him, he began hitting, kicking and biting her. He said, “I don’t like Mommy.” When she held him to make him sit, he continued and he tried to kick her. His behaviour escalated with her attempts to manage him. After his high-pitched screaming and aggressive behaviour had continued for approximately twenty minutes, Ms. Grindley put him in his room where he was heard banging on the door and on other objects in his room. When Ms. King-Watson spoke with Ms. Grindley about appropriate disciplinary action, Ms. Grindley seemed receptive to learning new strategies.

[100] When Ms. King-Watson conducted a home visit with Mr. Grindley in 2009, Mr. Grindley stated that he had never observed any “tantrum” behaviour from either of his sons. However, Odane began to scream and kick at others and when Mr. Grindley attempted to discipline him by using a firm voice, Odane responded, “I don’t like you and Aunty Norrett!”, and began punching and hitting Ms. Roberts’ son, Jordan, and screamed in the same high pitched voice he had used at his mother’s house.

[101] When Mr. Grindley tried to discipline Odane, Ms. Roberts told him to leave him alone and kept trying to snuggle with Odane. Mr. Grindley grabbed Odane from her and firmly stated, “This behaviour is not acceptable.” He put Odane in a time-out and told him he could rejoin everyone else when he was ready to apologize. Odane sat in the corner for close to forty-five minutes. When offered candy in return for an apology, he refused and at one point, yelled out, “I want to be a bad boy.” Eventually, he returned when Mr. Grindley agreed to change the television channel to a program that Odane wanted to watch.

[102] According to Mr. Grindley and Ms. Roberts, they had never witnessed this kind of behaviour from Odane. I doubt this. It is evident from Ms. King-Watson’s observations that Odane acted out equally in each of his parents’ homes and each of his parents was having equal difficulty managing his behaviour.

[103] Othniel informed Ms. King-Watson during her 2012 investigation that his father and Ms. Koduah discipline the children in the home. Sometimes, he said, Odane used to get spanked with an open hand when he was being naughty. However, he stated that the spanking has stopped. I find that “usually” is the operative. He told Ms. King-Watson that: “[H]is father usually remains calm when correcting their behaviour.” I find that “usually” is the operative word. While Ms. Grindley is more likely than Mr. Grindley to use physical force with the children, Mr. Grindley is capable of applying greater force when he wishes and the threat of his doing so would be a greater deterrent to the children than the a similar threat from their mother. On April 23, 2012, the Vice-Principal of Westcreek Public School called the Children’s Aid Society because Odane had threatened another student with a pair of scissors and had been sent home. He told the teacher that “he was scared that his father would ‘beat him’.

[104] At Ms. King-Watson’s visit to Ms. Grindley’s home in 2012, Odane’s behaviour was playful with Othniel and their mother. At times, Ms. Grindley used a firm tone in setting limits for the children. For example, Othniel wanted to take a hair pick with him to school and she said no. He mildly protested before giving up.

[105] At one point, Ms. King-Watson asked the children about their friendships in the neighbourhood. Odane interrupted Othniel and remarked, “We don’t have friends around here because they’re all Indians.” He had a distasteful tone and his facial expression was one of scorn. Ms. King-Watson thought that this could have been a teachable moment for Ms. Grindley to educate Odane about cultural sensitivity and respecting differences, but she said nothing ho him about his remark. There was no equivalent exchange during Ms. King-Watson’s visit to Mr. Grindley’s home, and no evidence before me that Mr. Grindley is any more effective than Ms. Grindley in teaching cultural sensitivity or respect of differences to their children.

[106] I am frankly concerned about Mr. Grindley’s controlling and manipulative manner and the example that this sets for his children. The children clearly value their relationship with their father and feel protective toward him. This was most clearly demonstrated during the incident at the swimming pool they attended with their mother in March 2007, when the children remained with their father when their mother went to the police station to report their father’s breach of his bail, and expressed the fear that he would be arrested.

[107] I am also mindful of Mr. Grindley’s and Ms. Koduah’s attentiveness to the children and the fact that they are living in a neighbourhood they like, with friends whose company they have enjoy, and are doing well at school. It would not be in their best interest to disrupt their lives at this point by a drastic change in their primary residence. At the same time, the children enjoy spending time with their mother, who is also attentive to their needs and, I find, is a better moral influence on them than their father. They also benefit from the contact they have with their mother’s extended family.

Plans proposed for the children’s care and upbringing

[108] Mr. Grindley says that the hours of his employment with Bell Canada are flexible hours and that he is often home in the afternoons by the time the children return from school. Ms. Koduah says that her employment with Telus Communications also has flexible hours. Approximately two days per week, she works from her home office.

[109] Ms. Koduah says that she and her daughter and Mr. Grindley and his two sons have blended well and that their children get along. They are moving this month to a four bedroom home, where each of the children will have a separate bedroom. The school is located across the street from the children’s school.

[110] Ms. Grindley proposes to continue sharing the residence with her extended family. Eventually, she hopes that Othniel and Odane will each get their own room. She would like to enrol them in the neighbourhood school and drive them to school in the morning. Her brother-in-law, Donovan, works the night shift and has agreed to bring the children home and provide care for them in the evenings.

[111] In the home that Ms. Grindley shares with her two sisters and their families, three adults occupy three of four bedrooms in the upper storey, Ms. Grindley in one bedroom, Othniel and Odane in another bedroom, and Ms. Grindley’s sister, Noreen Henry, and her husband, Raymond, in a third bedroom. Two more adults, Ms. Grindley’s sister, Diane, and her husband, Donovan, reside with their three children in the two-bedroom basement apartment.

[112] The house that Ms. Grindley has been sharing with her sisters is more crowded than the house that Mr. Grindley and Ms. Koduah have purchased. This is due, in part, to the fact that Mr. Grindley and Ms. Koduah are pooling their combined resources and also have the benefit of child support being paid by Ms. Grindley. This leaves Ms. Grindley at a disadvantage in the accommodation she is able to offer her children, which contributes to an undesirable preference in the children of one parent’s household over the other’s.

Permanence and stability of the family unit in which the children are to live

[113] It is still early to assess the permanence of Mr. Grindley’s relationship with Ms. Koduah. Ms. Koduah stated in her testimony at the trial in March 2012 that she intended to wait, before marrying Mr. Grindley, until he had finished resolving issues with his first wife. She apparently re-considered by the time Ms. King-Watson interviewed her two months later, on May 31, 2012, as she and Mr. Grindley had by then decided that they would be married on August 31, 2012.

[114] Mr. Grindley is now a Canadian citizen, and has applied, he says, for citizenship for his daughter, Nikile. He and Ms. Koduah plan to have Nikile live with them at their new home in Pickering. It remains to be seen whether this will prove to be as much of a stressor for their relationship as it was for the Grindleys’ marriage a decade ago.

[115] Ms. Grindley has known her current partner, Juan, whom she met on the internet, for several years. As of the date of the Children’s Lawyer’s report in 2012, they were not living together. Mr. Grindley testified that, contrary to Ms. Grindley’s assertion that she Ms. Grindley buys clothes for the children, clothes are usually bought by aunts and god-parents when the children are in her care. Whether or not this is the case, it is evident that Ms. Grindley has created a functional household with her sisters and their families that offers an extended family unit for Othniel and Odane when they are in her care.

The ability of each person applying to act as a parent

[116] The Grindleys, while acknowledging that both of them love Othniel and Odane, and asserting that they support each other’s continued role in the children’s lives, challenge each other’s competence as parents. Mr. Grindley bases his criticism primarily on the physical force that Ms. Grindley has used when disciplining the children. Ms. Grindley bases hers on Mr. Grindley’s controlling behaviour, which she says led to their separation and divorce and now threatens to alienate the children from her.

[117] The Grindleys’ allegations about each other are derived, in part, from the differing perceptions they have of the occasions when they have come into conflict. The fact that they were self-represented at trial and conducted no out-of-court questioning of each other before trial limited the “testing” of their respective evidence. That said, I make the following observations of the incidents they described.

(i) Alleged assaults on Nikile (1999-2001)

[118] Mr. Grindley submits that Ms. Grindley demonstrated her propensity for violence toward children when she mistreated Nikile, his daughter from a previous relationship. In 1999, shortly after Mr. and Ms. Grindley were married, Nikile, who was then four years old (born […], 1995), came and stayed with them. Mr. Grindley claims that Ms. Grindley used excessive physical force when disciplining Nikile, as when she refused to eat the food that Ms. Grindley had prepared for her. After two incidents involving the police and the Children’s Aid Society, who warned Ms. Grindley, according to Mr. Grindley, but laid no charges, Nikile returned to Trinidad and resumed living with Mr. Grindley’s adoptive parents.

[119] Ms. Grindley denies Mr. Grindley’s allegation that she mistreated Nikile or that this was the reason Nikile returned to Trinidad. She supports her position with testimony from her sister Noreen Henry, who used to baby-sit Nikile when she lived with the Grindleys. She describes Nikile as a happy and talkative child who never expressed discontent to her. She was happy when she came to Canada, Ms. Henry says, and happier still at the end of her stay. According to Ms. Henry’s understanding, Nikile was in Canada on a visitor’s permit and had to return after the permit expired. Ms. Grindley states that Mr. Grindley’s application for citizenship for Nikile failed because he had allowed her to over-stay her visitor’s permit.

[120] Mr. Grindley tendered a one page unsworn statement from Nikile. Ms. Grindley consented to its admission into evidence, subject to her right to comment on its contents. The statement was not subject to cross-examination, however, and I place little weight on it as evidence of Nikile’s recollection of events when she was four to six years old.

[121] The incidents involving Nikile did not result in the removal of Nikile from the Grindleys’ care or in any criminal charges against Ms. Grindley. Ms. King-Watson was unable to secure Nikile’s consent to her obtaining information about her from the Children’s Aid Society or police. In these circumstances, I do not find that Ms. Grindley used excessive physical force toward Nikile.

(ii) Vacation in Jamaica (July 2006)

[122] Mr. and Ms. Grindley were already having difficulties in their marriage when Ms. Grindley decided to take the children to visit her elder sister Sharon and her husband in Jamaica from July 4 to August 3, 2006. Mr. Grindley initially planned to take a separate trip, himself, to visit his family in Trinidad. He then changed his mind and decided to accompany his wife and children to Jamaica.

[123] Mr. Grindley agreed that her husband could accompany her, provided he was on his “best behaviour.” Sharon, with whom Ms. Grindley had arranged to stay, had helped raise her after their mother’s death. Ms. Grindley told her husband that she did not want to pretend to Sharon that things between them were better than they were, but she also did not want to visit their marital problems on Sharon and her family. Mr. Grindley insisted that the trip would give them a chance to get closer and to get fresh support from family.

[124] During the trip, Mr. Grindley continued to express his concerns about Ms. Grindley’s communication with Patrick. Patrick was Ms. Grindley’s brother’s best friend. He had been Ms. Grindley’s boyfriend before she came to Canada at the age of fourteen. He later came to southwestern Ontario during the summers to work on farms near Simcoe. Mr. Grindley claims that on one occasion, Ms. Grindley took Odane with her to Simcoe to look for Patrick when he was working on a farm there. He suspected that she carried on an affair with Patrick throughout their marriage and that she had even passed a sexually transmitted disease to Mr. Grindley that she had contracted from Patrick, all of which Ms. Grindley denies.

[125] At the time of the Grindleys’ trip to Jamaica in July 2006, Patrick no longer lived in Ms. Grindley’s old neighbourhood, where the Grindleys were staying, but Mr. Grindley would still frequently ask his wife if she had seen Patrick or talked with him. He claimed to have had “visions” in a dream, in which she and Patrick were on a bed having sex.

[126] From Ms. Grindley’s point of view, there was no reason for her not to speak with Patrick, who had been a friend since childhood and was her brother’s best friend. She told her husband unapologetically that she had seen Patrick and spoken with him, but that Mr. Grindley’s fears were unfounded. Mr. Grindley then insisted on being at her side continuously.

[127] Finally, Ms. Grindley accompanied her sister to work and arranged to leave at mid-day to meet with Patrick. Her intention, she says, was to tell him that because of the problems in her marriage, she could no longer communicate with him. She did not inform her husband of her intention.

[128] Ms. Grindley’s brother in law, who is a taxi driver, drove Ms. Grindley and Patrick from their meeting back to the neighbourhood where the Grindleys were staying. Patrick got out a block or so away and Ms. Grindley and her brother-in-law then continued to Ms. Grindley’s sister’s home. When they arrived, Mr. Grindley, who had seen Patrick get out of the taxi up the street, angrily confronted his wife, shouting that she had gone to see Patrick.

[129] Mr. Grindley regards his wife’s meeting with Patrick, and her failure to disclose it to him, as conclusive evidence of her infidelity. Having heard both Mr. and Ms. Grindley testify, I am not persuaded that this is necessarily so, although it is impossible, based on the evidence, to make a finding one way or the other. Ms. Grindley appears to me to have been young and sexually inexperienced, even at the age of 19, when she married Mr. Grindley, let alone at the age of 14, when she left Jamaica and came to Canada. Mr. Grindley’s suspicions may reflect his own past relationships as much as his wife’s behaviour during their marriage.

[130] Ms. Grindley was naïve to have expected her husband to tolerate her continued friendship with Patrick. Additionally, there was a fundamental incompatibility between Mr. Grindley’s desire for control and his wife’s desire for autonomy. In the context of the present dispute over custody and access, what is of concern to the court is not whether they could or should have accommodated each other’s wishes, but the way they expressed their unwillingness to do so.

[131] Ms. Grindley tried to calm her husband down and suggested that they go for a walk. Mr. Grindley refused. Ms. Grindley told him that he would wake up the next day and regret his anger. Mr. Grindley was undeterred. Ms. Grindley says that he walked up the street to confront Patrick, then returned, grabbed her, and began pulling her up the street with him. A number of her sister’s neighbours came out of their houses and laughed at the private quarrel, which had become a public spectacle. Ms. Grindley felt humiliated and believed that she had brought shame to her sister, to whom, she says, she had never acted disrespectfully. Mr. Grindley eventually released his wife, armed himself with a machete, and proclaimed that he was going to kill Patrick.

[132] Mr. Grindley offers a different account of the incident. He says that when he went to confront Patrick, his wife had grabbed his arm. He says that he armed himself with a machete in response to a threat that Patrick had made to him on the telephone that he would come and shoot him with a gun. I find this explanation implausible. Even if Patrick had uttered such a threat, it is unlikely that anyone, including Mr. Grindley, would regard a machete as an effective deterrent to a gun.

[133] Other people in Ms. Grindley’s sister’s home tried to calm Mr. Grindley down and he eventually relented and returned to their home. Ms. Grindley’s sister spoke with them, asking Ms. Grindley whether she wanted her husband to continue staying with them. Ms. Grindley said that she had brought her husband there and thought that he should stay. A couple of days later, however, Mr. Grindley resumed arguing with her and her sister finally told him to leave. He left and took Othniel and Odane with him, although Ms. Grindley had asked him not to do so. He told her that she should come with him, but she refused.

[134] Two or three days later, Mr. Grindley brought Odane back with pink eye and left him with Ms. Grindley. He said that Othniel was having a good time with his family in another parish and would remain there. Odane remained with Ms. Grindley for the remainder of their trip and they all met at the airport for their flight back to Canada. By that time, Ms. Grindley says, everyone in her family in Ontario had heard about what had happened in Jamaica.

[135] I find that what occurred in Jamaica, like other incidents described below, does disclose that Mr. Grindley has a controlling manner. At the same time, I find that Ms. Grindley also contributed to the incident with poor judgment in maintaining her contact and communication with Patrick during what was to have been a family vacation, and in failing to inform her husband of her intended meeting with Patrick in the face of his stated fears about the relationship.

(ii) Alleged kidnapping of children (Aug. 20, 2006)

[136] Ms. Grindley testified that it was a difficult time for her after she and her husband returned from Jamaica on August 3rd. She “shut herself in,” telling Mr. Grindley that she didn’t want anything more to do with him. He made entreaties to her but she told him that she did not want to discuss what had happened. Her father and sisters also called, telling her that she needed to get on with her life, but she refused to see them also.

[137] On Sunday, August 20, 2006, Ms. Grindley accused her husband of pulling Othniel, causing him to cry, and she threatened to call the police. Mr. Grindley told her that if she called the police, he would sue her for defamation. There was a physical altercation between them and Ms. Grindley says that her husband “locked her in a closet” until she agreed not to call the police. Mr. Grindley denies this, pointing out that the closets had no locks. I find that there was a physical altercation between the Grindleys and that Mr. Grindley restrained his wife, perhaps by closing her inside a closet and holding the door shut, until she agreed not to call the police.

[138] Ms. Grindley says that she went to Church later that day. When she returned, neither Mr. Grindley nor the children were home. Ms. Grindley went to her sister’s home and when she returned later, Mr. Grindley had locked the door and refused to let her in. She therefore stayed at her sister’s home until the following day, when she went to the police and asked them to contact Mr. Grindley to make him to open the door, which he then did.

[139] On August 21, 2006, Ms. Grindley asked her sister and brother in law to drive her and her children to see her Church Pastor, and then to her father’s home in Toronto to visit another of her sisters, who was visiting Canada from the United States. She advised Mr. Grindley that she was going out with the children for the day and took the clothing the children would need for the day but did not tell him where she was going.

[140] Ms. Grindley took Odane out of his crib and gave him to her sister Noreen and her husband, Raymond Henry. They took Odane out to the car. When Mr. Grindley saw that Odane was not in his crib, he went downstairs and saw Ms. Gridley standing at the open side door of their house. He says that he then “decided to leave the home” and take Othniel with him. When Raymond Henry got in his way, Mr. Grindley forced his way past him, and Ms. Grindley and Mr. and Ms. Henry then took Othniel from him, got into Mr. Henry’s car and drove off.

[141] Mr. Grindley states that, in the commotion outside their home, he was “physically assaulted” on his front lawn by Noreen Henry and her husband. As Mr. Grindley saw it, they were trying to kidnap Othniel and Odane. Noreen hit him on the head with a cell phone, Ms. Grindley also hit him, and Raymond pushed him to the ground.

[142] As Mr. Henry was driving away, Mr. Grindley telephoned the police. Mr. Henry was arrested in a neighbour’s driveway. When cautioned by the police, he drove Odane back to the Grindley residence. Ms. Grindley and her sister were later asked to come to the police station, where they were advised not to return to the Grindleys’ home.

[143] Noreen Henry testified at the trial. She stated that on the day in question, Ms. Grindley had asked her and her husband for a ride, as they were going to visit her father, step-mother, and sisters, in Toronto for the day. They were unable to make the visit because Mr. Grindley called the police and reported that they had kidnapped the children, with the result that the police detained Noreen’s husband for questioning.

[144] Ms. Henry spoke with the police, who told her that they had detained her husband because Mr. Grindley had accused him of kidnapping his children. She explained that they had simply planned to visit Ms.’ Grindley’s family in Toronto, and that the children were in their car. Mr. Grindley had not wanted them to take the children, she said, because of his argument with his wife the previous night.

[145] Ms. Henry testified that she and her husband were never charged with kidnapping or assault. Mr. Grindley did not produce evidence of a conviction of the Henrys for either of these offences. However, Ms. Henry stated that she and her husband, as well as Mr. Grindley, later entered into Peace Bonds, with terms prohibiting them from entering onto each other’s property.

[146] The fact that the Henrys later entered into Peace Bonds suggests that they may have been charged with assault, perhaps on the basis that they had applied force to Mr. Grindley in preventing him from interfering with their plan to take Othniel and Odane to Toronto. However, I find that if there was such a charge, it was withdrawn upon their entering into Peace Bonds.

[147] I find that, as with the incident in Jamaica, Mr. Grindley over-reacted to her wife’s taking Othniel and Odane with her that day and was overly controlling, since it should have been clear to him from the fact that she was not taking the children’s belongings that she was not planning to take them for more than the day. I find, however, that Ms. Grindley’s failure to tell her husband where she was going also contributed to the conflict between her and Mr. Grindley that day.

(iii) Alleged assault on Mr. Grindley (Aug. 28, 2006)

[148] Ms. Grindley testified that on Sunday, August 27, 2006, after finishing work at Toys R Us, her place of employment at the time, she went to visit her father in Toronto. When she returned that night, she found that there was a dead bolt on the front door of the house. She therefore used the side door to enter their basement apartment of the house and slept there that night.

[149] On Monday morning, Othniel, who was then five years old, asked his father where his mother was and Mr. Grindley states that he advised him that she was in the basement. Ms. Grindley states that Othniel came to the basement, where she was, and asked her to make breakfast for him and that she agreed to do so.

[150] Ms. Grindley states that she went and got eggs from the refrigerator on the main floor and returned to the basement apartment to cook them. She states that Mr. Grindley followed her into the basement, demanding that she return the eggs, which he said he had bought for himself and their sons. He told Ms. Grindley to “stop playing mom.”

[151] Mr. Grindley states that he was attending to Odane upstairs when he heard Othniel scream. He went downstairs and found Othniel curled up between two couches. When he asked him what had happened, Othniel replied that his mother was “beating him.” He asked why, and Othniel replied that he had dropped the cordless phone on the ground. Mr. Grindley told Othniel to go upstairs, whereupon Mr. Grindley went to the basement.

[152] According to both Mr. and Ms. Grindley, Mr. Grindley followed his wife to the basement and confronted her there, demanding the return of the eggs, which he says he had bought at the grocery store. Mr. Grindley says that he had noticed that his wife had taken the groceries he had bought and had gone to the basement with them.

[153] Ms. Grindley states that when Mr. Grindley got to the basement, a physical altercation ensued between them, in which one of the eggs broke and got onto Mr. Grindley. Mr. Grindley says that he confronted his wife and demanded that she give him back the eggs and that the altercation ensued and she broke one of the eggs on his head. While it is possible that Ms. Grindley intentionally broke the egg, I am unable to make any finding on this issue, one way or the other. Whether she did or not, the parties are in agreement that Mr. Grindley went to the basement and confronted his wife, which I find precipitated the altercation that ensued.

[154] Mr. Grindley says that he got the remaining eggs and returned upstairs. He says that his wife ran past him and that he told her “she was not to be upstairs.” He says that he put her in a bear hug and “put her on the landing of the stairs.” He claims that she tore his clothes and “scraped” him, and that the children witnessed this. He removed his shirt, he says, to get out of her grasp. The children were crying.

[155] I find that the incident, even on Mr. Grindley’s evidence, discloses overly controlling behaviour by him. The evidence also discloses a high degree of immaturity in both Mr. and Ms. Grindley in their readiness to resort to physical violence toward each other in the presence of their children.

[156] Mr. Grindley asserts that his wife had been “required” to remain in the basement apartment. I find no evidence to support this assertion. I find it likely, from the sequence of events, that Ms. Grindley was not under any judicial restraint when the altercation occurred, and I doubt that the police would have advised her to remain in the basement of her own home. I find that Mr. Grindley is embellishing the facts in order to justify his conduct in bolting the front door and in following his wife to the basement to demand the return of an egg from their refrigerator.

[157] Mr. Grindley says that he cleaned the egg off of himself and made the children something to eat. In the process, he says, the police arrived and took his report. It is not clear who called the police, but when they arrived, Mr. Grindley reported that his wife had assaulted him with an egg and the police apparently arrested her either for this or for using excessive force in the altercation on the stairwell. The police detained her in custody until the following day, when she was released on bail, with terms prohibiting her from being within 100 metres of the matrimonial home, or communicating with Mr. Grindley, and requiring her to exercise access to the children through a mutually agreed upon third party or valid court order.

[158] Ms. Grindley was required to attend court on September 4, 2006. Eventually, on October 20, 2006, the charge against her was withdrawn upon her entering into a Peace Bond for twelve months, with terms prohibiting her from contacting or communicating with Mr. Grindley, and requiring access to her children to be arranged through a mutually agreed upon third party or family court order.

(iv) Altercation at Gas Station (Dec. 28, 2006)

[159] Ms. Grindley testified that in December 2006, she and her sister, Noreen Henry, were living at a house on Hudson Drive. Ms. Grindley had just finished working a twelve hour shift at work and Ms. Henry had picked her up there because Ms. Grindley did not have a car of her own. After stopping briefly at a friend’s house on Queen Street, they travelling south on Main Street toward their home on Hudson Drive. When they reached Norwood Drive, Ms. Grindley saw a van next to them. She turned to her sister and asked whether it was Mr. Grindley and Ms. Henry looked and saw that it was.

[160] Ms. Henry pulled in to a gas station, in part, apparently, in the hope that Mr. Grindley would stop following them, and in part, to get gas. Mr. Grindley’s van pulled in behind them. They waited in their car to see what he would do and eventually, he came up to the driver’s side of the van, where Ms. Henry was in the driver’s seat, and started yelling. He was “carrying on,” according to Ms. Grindley, claiming that she had recently hurt Odane when he had been in her care. Ms. Henry got out of her van and got gas and when she finished, Ms. Grindley went toward the kiosk to pay.

[161] When Ms. Grindley started toward the kiosk, her husband began swearing and yelling at her. Ms. Grindley said that she was going to call the police and dialled 911. As soon as the police operator came on the line, Mr. Grindley took the cell phone and threw it to the ground. Ms. Henry then went to go into the kiosk herself. Mr. Grindley tried to block her from doing so, but Ms. Henry pushed past him.

[162] Ms. Henry called 911 from inside the Kiosk, but by the time the police arrived, Mr. Grindley had left. The police took statements from them and then spoke to the clerk at the gas station. The clerk told the officer that he hadn’t seen what had happened. The officer told the women that he would as going to call Mr. Grindley and ask him to go to the police station. Ms. Grindley and Ms. Henry went to the police station and were questioned, leaving very late that night.

[163] Mr. Grindley testified that he had driven his car into the gas station to get gas. It was only after he had pulled in, he says, that he saw Ms. Grindley there. He states that he got out of his vehicle and spoke with her about information he had received from the children about an incident that had occurred when they were in her care, in which he believed she had abused them. He says that he told her “to take care of the children when they were in her care, and not to abuse them.” He acknowledges that while he was speaking with Ms. Grindley, there was a physical altercation in which Ms. Grindley’s cell phone was broken.

[164] Ms. Henry, in her testimony, confirmed Ms. Grindley’s account of the incident, although she was unclear about a number of the details, including the date, which she thought was in 2007 or 2008. She stated that she saw Mr. Grindley take his wife’s cell phone and throw it to the ground, breaking it. She said that she asked the gas station attendant to call the police and that Mr. Grindley then left. She confirmed that the police told them that they would contact Mr. Grindley.

[165] I do not accept Mr. Grindley’s account of this incident. His statement that it was a mere coincidence that he went to the same gas station as his wife, at the same time, and when he had wanted to question her about the information he had received from the children about her treatment of them, is too coincidental to be believed. His conduct in approaching Ms. Henry’s van is consistent with his having followed it there, and his throwing Ms. Grindley’s cell phone to the ground is consistent with his conduct toward her in August, when he had also used force to prevent her from calling the police. If the police did not charge Mr. Grindley as a result of the incident at the gas station, it is likely because Ms. Grindley and her sister were subject to peace bonds, which may have diminished the officer’s estimation of their credibility.

[166] I find that Mr. Grindley’s conduct was a further instance of controlling behaviour toward his wife. It is especially troubling that he again engaged in physical violence toward her in the presence of their children, who were in his van at the time.

(v) Breach of bail (March 2007)

[167] On Saturday, March 10, 2007, while exercising her weekend access, Ms. Grindley was confronted by Mr. Grindley in a parking lot as she left Othniel’s weekly swimming lesson. Mr. Grindley later maintained that he had attended at the community centre to renew Othniel’s registration for swimming lessons, not realizing that Ms. Grindley and the children were still there. An altercation ensued, in which Mr. Grindley demanded Othniel’s swimming card and ultimately took possession of a bag containing Ms. Grindley’s cell phone and car keys. Ms. Grindley went to the police station. Mr. Grindley maintains that “she abandoned the children in the parking lot.” The police eventually arrived at the scene, asked him to attend at the police station with the children, whereupon he was arrested and charged with breaching his recognizance of bail. Mr. Grindley maintains that the reason he was charged was that Ms. Grindley had a scratch on her thumb, which he insists he did not cause. After spending three days in custody, he was released on a new recognizance, this time to his pastor. The charge of breaching his bail was later withdrawn upon his making a payment to charity. Mr. Grindley maintains that he was “found not guilty” and told to make a donation to charity. In the absence of other evidence, I do not accept Mr. Grindley’s characterization of the outcome of the proceeding. Although I accept Mr. Grindley’s assertion that he was not found guilty of the charge, I find it unlikely that he would have been found not guilty and nevertheless ordered to make a payment to a charity. I make no finding as to whether Mr. Grindley had attended at the community centre in the knowledge that his wife would be there, or as to whether he assaulted her. However, the fact that he demanded Othniel’s swimming card, while she was exercising court-ordered access, supports Ms. Grindley’s assertion that he is overly controlling.

(vi) Arrest of Edward Mitchell (Summer 2009)

[168] A police detective contacted Mr. Grindley in the summer of 2009. He told Mr. Grindley that police had attended at the home Ms. Grindley was sharing with her sister, Noreen, and Noreen’s husband, Raymond, and had arrested Ms. Grindley’s older brother, Edward Mitchell, whom the family refer to as “Uncle Willy.” Mr. Mitchell had been staying at the house since the recent death of their father. The police told Mr. Grindley that they had charged him with four counts of attempted murder.

[169] The detective told Mr. Grindley that his children had been in the home when the police had arrested Mr. Mitchell. Mr. Grindley’s understanding from what the detective told him was that the sisters may have tried to interfere with their brother’s arrest. In any event, the detective asked Mr. Grindley if he would bring Othniel to the police station to give a statement as to what had happened and Mr. Grindley agreed to do so.

[170] Mr. Grindley took Othniel to the police station, where he was questioned, in the presence of his father, about what had happened. Othniel confirmed that he had been present at the time of the arrest but said that he had been in a darkened bedroom at the time. Mr. Grindley testified that he later learned that Mr. Mitchell had been convicted and sentenced for at least one of the offences for which he had been arrested and was expected to be deported back to Jamaica.

[171] Ms. Grindley and Ms. Henry testified regarding the circumstances of their brother’s arrest. They state that when the police arrived, the children were directed to a bedroom and that the arrest took place without incident. There was no evidence before me that either Ms. Grindley or her sister were charged with any wrongdoing in connection with this incident and I find no basis for concluding that the arrest of their brother reflects on their own characters.

(vii) Alleged exposure of Othniel to adult sex (Dec. 2009)

[172] Mr. Grindley testified that Ms. Grindley refused to return the children as required on December 25, 2009, and that he had to enlist the police to secure their return. When the children returned, Othniel told his father that a man whom his mother had met on the internet had picked Ms. Grindley and the children up at her home and taken them to a hotel in Quebec, where Othniel and Odane had shared one bed and Ms. Grindley and her partner had shared the other.

[173] Othniel told his father that he had been awoken one night by noise from the other bed, leading Mr. Grindley to believe that Ms. Grindley and the man had engaged in sexual relations while in the same room as Othniel and Odane. Mr. Grindley asserts that Othniel had nightmares following the incident, so he had reported it to the Children’s Aid Society and police, and obtained a referral from his family physician, Dr. Alexander, for Othniel to undergo counselling with a psychologist, Donna Gould.

[174] Mr. Grindley tendered a letter dated March 1, 2010, from the Peel Police Service, in response to a request made under the Municipal Freedom of Information Act. The letter was entered, with Ms. Grindley’s consent, as an exhibit. A letter dated February 22, 2010 from Dr. Alexander, and one dated March 9, 2012, from Ms. Gould, were not admitted, as Ms. Grindley objected to them and Mr. Grindley had not served the requisite notice or expert report.

[175] Ms. Grindley asserts that she and her friend, Juan, were simply watching television. She denies that there was any sexual activity. I make no finding in this regard, given that Mr. Grindley’s evidence is hearsay, based on what he was told by Othniel, who was nine years old at that time. Ms. King-Watson reports that Othniel did not feel comfortable talking about the incident with her, and has not reported any similar experiences since then when he has been in his mother’s care. Noreen Henry testified that Othniel told her about the trip to Quebec, mentioning only the food and the fact that he had been able to translate from French to English for his mother.

[176] While sharing a hotel room with a male friend in the presence of her children, even if no sexual activity took place, was unwise, especially as the children had only just been introduced to the friend. At the same time, Mr. Grindley’s disapproval of Ms. Grindley over the incident is incongruous, having regard to his own precipitous invitation to Ms. Roberts to become his live-in partner at the home he shared with his children, which engendered Ms. King-Watson’s admonition to him.

[177] Mr. Grindley’s moralizing discloses an attitude of superiority toward Ms. Grindley, and a misplaced belief in the need to “protect” his children from her. This has encouraged the children to report even trivial incidents to him, in the apparent expectation that he will attach importance to them, as evidence of their mother’s poor parenting. For example, they once reported that their mother had a “different man” for every occasion, as when she needed someone to drive her to an activity for the children, or a companion with whom to shop for clothes, or someone to lend or give her money. Mr. Grindley acknowledges that he never discussed his concern about this “report” with Ms. Grindley, but he professed “shock” in relating it to the court, without specific information about either the men the children were referring to, or the specific occasions when their mother had associated with them, or the nature of her relationships with them. This can only diminish the children’s respect for their mother and undermine their sense of security when in her care.

(viii) Dog bite on January 16, 2011

[178] Mr. Grindley testified that on January 16, 2011, when the children were returned to him after an access visit with their mother, Odane told him that he had been bitten by a dog at his mother’s home. Odane showed his father the bite, whereupon Mr. Grindley contacted the police and the Children’s Aid Society. A letter dated January 25, 2011, from Andre Blasutig from Health services and statement from witness Animal services, with an attached witness statement from Odane was entered as an exhibit.

[179] A dog bite can occur without parental neglect. I find no evidence in this incident of neglect by Ms. Grindley and I find that Mr. Grindley’s reporting of it to the Children’s Aid Society and police was an over-reaction and an effort to capitalize on a minor incident to discredit Ms. Grindley’s parenting.

(ix) Alleged assault on Odane (October 22, 2011)

[180] Ms. Grindley was scheduled to exercise access to the children from Friday, October 21, to Sunday, October 23, 2011. Because Othniel’s eleventh birthday had fallen on October 10th, Ms. Grindley arranged for him to celebrate his birthday with his cousins at a party on October 22nd. After the arrangements were made, Othniel’s school scheduled a qualifying soccer tournament at Othniel’s school on the same date. Because his team was participating in the tournament, Othniel asked his father for permission to attend. Because it was Ms. Grindley’s weekend to exercise access, he advised Othniel to telephone his mother.

[181] When Othniel called his mother, she offered to cancel the party so that he could attend the tournament or, alternatively, to take Othniel from the tournament at mid-day so that he could attend the party if he still wished to do so. Othniel chose the latter option.

[182] Ms. Grindley took Othniel and Odane to the soccer tournament on the morning of Saturday, October 22nd. Mr. Grindley was serving as a volunteer linesman at the tournament. By noon, four of the six qualifying games had been played, and another two teams were playing a game that would last for twenty minutes, followed by a break, before Othniel’s team would play again. Ms. Grindley took that opportunity to ask Othniel and Odane to leave with her, so that she would have time to pick up Othniel’s birthday cake and drive them to their birthday party on time.

[183] Othniel asked to be allowed to stay for another of his team’s games. Ms. Grindley said “No, we discussed it and we agreed.” She testified that she had informed Othniel’s coach that he would have to leave early.

[184] Ms. Grindley insisted that Othniel leave, taking him by the arm and leading him from the field in the presence of other parents and teachers. Odane, then six years old, refused to leave. Mr. Grindley did not instruct the children to go with their mother. Instead, he urged Ms. Grindley to let Othniel remain. He testified that he did not know that the coach was aware of the arrangement. I accept Ms. Grindley’s testimony that he called her an “absentee mother” and said that this was an example of why the children didn’t want to be with her. When the argument between them grew louder, the coach told them to go elsewhere, because they were arguing on the side of the field, which was embarrassing the boys.

[185] Finally, Ms. Grindley picked Odane up and carried him to her car. Mr. Grindley testified at the trial that when Odane began screaming, he observed Ms. Grindley bend his wrist back to prevent him from doing so, which caused him to scream even louder. When Ms. Grindley put him into the car, Mr. Grindley could hear his screams from the field. He felt powerless, he said, “to protect him” from his mother.

[186] When Mr. Grindley picked the boys up on Sunday after their access with their mother, Odane told him that when his mother picked them up from the tournament on Saturday, she had punched him in the leg and grabbed his shoulder to prevent him from moving around in the car and trying to get out. Odane said his wrist was sore, although Mr. Grindley conceded that it was not swollen. Nevertheless, Mr. Grindley reported this incident, also, to the police.

[187] Mr. Grindley tendered, with Ms. Grindley’s consent, a police report of the incident. The report, dated October 24, 2011, was filed by P.C. Thakur of the Durham Regional Police Service. P.C. Thakur states that he attended at Mr. Grindley’s home and spoke to him there about the incident on two days earlier, which he had reported. Mr. Grindley reported that after his wife had asked Odane several times to come with her, she grabbed his arms and dragged him to her vehicle. Mr. Grindley stated that he and his wife had not gotten into an argument, and that he had been observing the incident from a distance. P.C. Thakur telephoned Ms. Grindley and cautioned her, as he noted, “even though section 43 in the Criminal Code allows parents to use force for correction reasonable under the circumstance.”

[188] Mr. Grindley says that, in contrast to the children’s defiance of their mother, they have always done whatever he has asked them to do. If this is true now, it was not always the case. In her 2008 report, Ms. King-Watson wrote:

The writer asked about the children’s behaviour at this home and the father stated that he has never observed any “tantrum” behaviour from either one of his sons. During this discussion, Odane began to scream and kick at others. His father attempted to discipline him by using a firm voice…Odane’s aggressive behaviour continued and he began punching and hitting Jordan. He was screaming in the same high-pitched tone he used at his mother’s home...According to Mr. Grindley and Ms. Roberts, they have never witnessed this kind of behaviour from Odane.

[189] I find that Odane has, at times, been defiant toward each of his parents and that both have had difficulty managing his behaviour. What is significant about the incident at the soccer field is Mr. Grindley’s failure to support Ms. Grindley’s instructions to the boys to leave the tournament as Othniel had previously agreed, and his readiness, instead, to undermine Ms. Grindley’s authority by urging her to let them remain. This set an unfortunate example for the boys and created an additional challenge for Ms. Grindley in her efforts to maintain a close relationship with her sons while they have their primary residence with their father.

(x) Alleged failure to return children (Oct. 26, 2011)

[190] Mr. Grindley complains that on Wednesday, October 26, 2011, Ms. Grindley refused to return the children to his home after exercising access to them, and that it was necessary for him to get the police involved again. This incident illustrates the dynamics of the Grindleys’ conflict and the way in which Mr. Grindley seeks to present it to the court.

[191] As noted above, Justice Wein ordered on August 16, 2007, that Othniel and Odane reside with Mr. Grindley most weekdays and with Ms. Grindley three weekends each month, as well as one Wednesday each month, on the week after they have spent the weekend with their father. Until August 2011, Ms. Grindley exercised her Wednesday access to the children by picking them up at their school in Brampton and returning them at 7 p.m. to Mr. Grindley’s home at 58 Fandango Drive in Brampton.

[192] On May 16, 2011, Mr. Grindley’s lawyer, Sidoney Howden, notified Ms. Grindley’s lawyer, Dwight Williams, that Mr. Grindley was engaged and that, once the wedding had taken place, he would be moving out of Peel Region and closer to Ajax, if not to Ajax itself. On June 26, 2011, Mr. Williams replied, asking where Mr. Grindley actually planned to live so that he could determine the true impact on access. On July 8, 2011, Mr. Howden wrote to Mr. Williams, advising that Mr. Grindley would be moving to Pickering on August 13, 2011 and that his address would be 1773 Westcreek Drive, Pickering. On August 5, 2011, Mr. Grindley served on Ms. Grindley a Cross-motion requesting leave to move to Pickering with the children and seeking an order reducing Ms. Grindley’s regular access to alternate weekends. He swore an affidavit in support of the motion, in which he attached the above-mentioned correspondence.

[193] On August 18th, Ms. Grindley faxed a letter dated August 17th to Mr. Howden in which she pointed out that Mr. Grindley’s new address was not 1773 Westcreek Drive in Pickering, as had been stated in his affidavit. She asked to be provided with his new address within five days. Later that same day, Mr. Grindley served a supplementary affidavit in which he re-stated that on August 13th, he and the children had moved to Ms. Koduah’s home at 1773 Westcreek Drive in Pickering.

[194] In the new affidavit, Mr. Grindley stated that the children would be attending Westcreek Public School, which was less than 30 minutes from the offices of Bell Canada, Ms. Grindley’s place of employment, located at 100 Wynford Drive in North York, and 50 minutes from her home at 35 Faywood Drive in Brampton. He proposed, if Ms. Grindley wanted the time to be flexible on Wednesdays, that the pick-up and drop-off location be the Fairview Mall in North York, which was a 35 minute drive from her home in Brampton and 20 minutes from Mr. Grindley’s new home in Pickering.

[195] Mr. and Ms. Grindley both testified that they had later agreed that when the children began attending school in Pickering in September, Ms. Grindley would exercise her Wednesday access by picking them up from their school and returning them to a designated location at the Fairview Mall. Mr. Grindley acknowledged that Ms. Grindley exercise her Wednesday access in this manner in September.

[196] According to Ms. Grindley, Mr. Grindley failed to appear at 7 p.m. on October 26, 2011, at the designated location at the Fairview Mall. After waiting for an hour, Ms. Grindley returned with the children to her home in Brampton. At about 9:15 p.m., she received a telephone call from Mr. Grindley, who asked her to return the children to his home in Pickering. She refused, on the basis that it was Mr. Grindley’s failure to pick up the children at the Fairview Mall that had caused her to take them back to her home in Brampton. She told Mr. Grindley that if he wanted to pick the children up from her home in Brampton, he was free to do so.

[197] When Ms. Grindley refused to drive the children to Pickering, Mr. Grindley made another complaint to the Durham Regional Police. The police report from P.C. Thomas Broadfoot of that police service states that he was dispatched to 1833 Westcreek Drive in Pickering at 9:40 p.m. that night (Wednesday, October 26, 2011), where he received information from Mr. Grindley that Ms. Grindley was refusing to return the children to his residence after an access visit. P.C. Broadfoot telephoned Ms. Grindley and asked her why she had not returned the children. She replied that she and Mr. Grindley had agreed to meet at Fairview Mall at 7 p.m. and that Mr. Grindley had not attended, so she had left and returned to her residence. P.C. Broadfoot advised Mr. Grindley that he could drive to Brampton and pick up the children at his wife’s home.

[198] Mr. Grindley explained his complaint to the police by stating that his understanding with Ms. Grindley on October 26th had been that she was to return the children to their school after her access visit and that she failed to return them. He stated, initially, that for Ms. Grindley’s mid-week access in September, he had already been in the vicinity of the Fairview Mall, so he called her to arrange to get the children there. It was not, he stated, an ongoing arrangement. He later sought to retract his evidence, saying that he did not remember whether it was before or after October that Ms. Grindley had returned the children to the Fairview Mall. He then claimed that he did not remember where she returned the children in January or February, 2012.

[199] I reject Mr. Grindley’s explanation. I accept his initial testimony that, in September, Ms. Grindley had returned the children to the Fairview Mall. This was the alternative location that Mr. Grindley had proposed in his August affidavit. As he had pointed out at that time, the Mall was closer to Ms. Grindley’s home than the children’s school.

[200] Mr. Grindley did not offer any explanation as to why, in October, Ms. Grindley would have returned the children to their school at 7 p.m. at night, when school was obviously long over and that location was fifteen minutes further away from her home than the Fairview Mall.

[201] I note that P.C. Broadfoot’s report states, in part: “Paul explained that Quareen failed to return the children after the completion of the three hours; however, he decided to give her the ‘benefit of the doubt’, and wait until 21:00 hours to call.” I find that Mr. Grindley was well aware that he had failed to attend at the mall in accordance with the standing arrangement. It is unlikely that, if he had attended either at the mall or at the school, he would have given his wife ‘the benefit of the doubt’ if she had failed to return them to one of those locations, as he could not have expected to wait for two hours at either of those locations and Ms. Grindley had never been to his home and, indeed, had been misinformed as to the address of his home.

[202] I find that Ms. Grindley was within her rights to refuse to drive the children back to Pickering and that Mr. Grindley was misusing the police service and misleading the court by providing a false explanation in an effort to enlist the help of the police to force Ms. Grindley to drive the children to his home and to create the impression that she had violated the access order. I find that this incident supports Ms. Grindley’s assertion that Mr. Grindley has been unreasonably controlling toward her.

(xi) Alleged Assault on Othniel October 26, 2011

[203] After Mr. Grindley was required to drive to Brampton to pick up the children on October 26, 2011, he swore a further affidavit dated November 8, 2011, in support of his continuing effort to gain sole custody of the children. In this affidavit, he alleged that his wife had assaulted Odane at the soccer game on October 22, 2011, and had “attacked the children” on October 26th, when she had picked them up at their school for her Wednesday access. He stated:

The second event (after the incident at the soccer field on October 22, 2011) took place on Wednesday October 26, 2011, on the Respondent’s 3 hours mid week access where the Respondent again attacked the children after she picked them up at the school. The Respondent got upset because the children refused to tell the Respondent where the Applicant and the children reside. The Respondent pressed Othniel to tell her where they lived and she grabbed him around the left bicep and squeezed it while threatening him with physical punishment if he doesn’t tell her where they lived.
The Respondent took the children to Brampton where she threatened them with physical punishment with a belt which she got and showed the children to enforce her projected fear to the children. She continued to use physical force on Othniel while threatening that things are going to change. She was poking Othniel as he was falling asleep still pressing to find out where the Applicant and the children lived. I had to travel to Brampton to pick up the children because the respondent failed to return the children at the respective time.

[204] At trial, Mr. Grindley acknowledged that when he moved to Pickering in August 2011, he gave an incorrect address for himself in the court documents that he served on Ms. Grindley and her lawyer. He also acknowledged telling his sons that they did not have to give any information about their new address to their mother, as she had already been given this information through the court. It is surprising, in these circumstances, that he would fault Ms. Grindley, on one hand, for failing to drive the children to an address she did not have on October 26th and, on the other, for pressing them to disclose their correct address.

[205] I am not prepared to find, based on Mr. Grindley’s hearsay as to what the children told him when he finally picked them up late at night on October 26th, about the degree of force their mother had used in an effort to ascertain where they were living, and whether it exceeded permissible force for purposes of discipline. The exchange between Ms. Grindley and her children could not and should not have been necessary at all, had Mr. Grindley given his wife the correct information about their new address and had he not instructed the children that they did not have to disclose their new address to her. It is particularly troubling that Mr. Grindley would seek to gain advantage from his own misconduct by characterizing Ms. Grindley as the wrongdoer and seeking to invoke sanctions against her by the police and the court.

[206] Section 16 of the Divorce Act provides, in part:

(10) In making an order under this section, the court shall give effect to 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 access.

[207] In resolving custody disputes, emphasis must be placed on the critical importance of bonding, attachment and stability in the lives of young children.[^8] Where there is friction between equally competent spouses, custody should be awarded to the parent who is more likely to ensure that the children reap the benefit of both households.[^9]

[208] In Young v. Young,[^10] McLachlin J. (as she then was) discussed the “maximum contact principle” in the context of an application under the Divorce Act.[^11] Speaking for the majority of the Court she said at para. 204:

... s. 16(10) provides that in making an order, the court shall give effect "to 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." This is significant. It stands as the only specific factor which Parliament has seen fit to single out as being something which the judge must consider. By mentioning this factor, Parliament has expressed its opinion that contact with each parent is valuable, and that the judge should ensure that this contact is maximized. The modifying phrase "as is consistent with the best interests of the child" means that the goal of maximum contact of each parent with the child is not absolute. To the extent that contact conflicts with the best interests of the child, it may be restricted. But only to that extent. Parliament's decision to maintain maximum contact between the child and both parents is amply supported by the literature, which suggests that children benefit from continued access: Michael Rutter, Maternal Deprivation Reassessed (1981), Robin Benians, "Preserving Parental Contact: a Factor in Promoting Healthy Growth and Development in Children", in Jo Tunnard, ed., Fostering Parental Contact: Arguments in Favour of Preserving Contact Between Children in Care and Their Families (1982).

[209] The principle of maximum contact is an important consideration under either legislative regimen when determining the best interests of children. Contact with both parents is the children’s right, not the parents’ and where, as in this case, a parent objects to a child’s increased contact with the other parent, the onus is on that parent to rebut the presumption.

B. Jurisprudence

[210] “Custody” refers to parental decision-making and authority respecting a child. As the Supreme Court of Canada stated in Young v. Young, “the custodial parent is responsible for the care and upbringing of the child, including decisions concerning the education, religion, health and well-being of the child.”[^12]

[211] Traditionally, courts have awarded either sole custody or joint custody. In recent years, the courts have developed a third option, referred to as “parallel parenting.” It is appropriate that the Court consider which of these three custodial options is in Othniel’s and Odane’s best interests. I will begin by reviewing the legal principles respecting each.

(a) An award of sole custody to one parent grants decision-making rights to that parent, generally to the exclusion of the other parent to interfere in carrying out these rights and responsibilities.[^13] An award of sole custody to one parent is often accompanied by an order of access to the other. Access often entails short-term decision-making by the parent exercising access regarding the health or well-being of the child while the child is in the parent’s care, as well as “the right to make inquiries, and to be given information, as to the health, education and welfare of the child.”[^14] Custody, however, involves the making of longer-term decisions affecting the child, such as what school the child will attend, what place of worship the child will attend, and what medical treatment the child will be given for an ongoing disease or illness.

(b) Section 16(4) of the Divorce Act authorizes the court to make an order for custody in favour of more than one person. When the court orders “joint custody,” it gives both parents full decision-making authority and responsibility in all areas respecting the child. The Act does not set out any specific criteria for determining whether a joint custody order is in a child’s best interests. In Kruger v. Kruger[^15] and Baker v. Baker,[^16] the Court of Appeal for Ontario held that joint custody should generally be ordered only in exceptional circumstances, where the parties consent and demonstrate co-operation and an ability to communicate. The court has since dispensed with the requirement for consent, but has continued to require evidence that the parties are able to communicate effectively,[^17] since joint custody entails them making long-term decisions together regarding the child. While this requires some measure of communication and cooperation, the court does not apply a standard of perfection. As Quinn, J. remarked in Brook v. Brook, “The cooperation needed is workable, not blissful; adequate, not perfect.”[^18] A mere statement by one party that there is an inability to communicate will not preclude an order for joint custody. The court must carefully consider the parties’ past and present parenting relationship as a whole, and not place undue emphasis on their allegations of conflict, or on the conflict existing at the time of trial.[^19] If the parties have been able to communicate when necessary, putting the children’s interests ahead of their own, an order for joint custody may still be appropriate, in spite of conflict.[^20] 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.”[^21] Where an objective review of the historical and more recent evidence clearly indicates that there has never been an ability to cooperate or communicate effectively, or that one or both of the parties is/are unable to put the needs of the child before their own, joint custody is not an appropriate order.[^22] A mere hope that communication between the parties will improve once litigation is over is not a sufficient basis for an order of joint custody.[^23]

(c) In recent years, courts have made orders for “parallel parenting.” This can be “divided parallel parenting”, described in Hensel v. Hensel,[^24] in which each party is given separate, defined areas of parental decision-making, independent of the other, or “full parallel parenting”, described in Mol v. Mol[^25] and Ursic v. Ursic,[^26] in which both parents are given the right to make major decisions respecting the child in all major areas of parental authority while the child is with them, without the consent of the other parent.

[212] The Court of Appeal for Ontario has repeatedly held that joint custody requires a mutual commitment between parents to cooperate on matters pertaining to the raising of their child, and an ability of the parents to put their own interests behind those of the child.[^27] In the present case, however, an order giving Mr. Grindley sole custody of the children would create a real risk that Ms. Grindley’s involvement with them would be minimized or eliminated. Courts have recognized that in such situations, parallel parenting may be the appropriate regime, in spite of the conflict between the parents. As the Court of Appeal for Ontario pointed out in Ursic v. Ursic,[^28] (2006), a parent cannot be the instigator of high conflict and then argue in favour of sole custody.[^29]

[213] There has been an increasing willingness in recent years to order joint custody rather than sole custody where necessary in order to preserve the balance of power between the parties, particularly in cases where both parties are caring and competent parents but one party has been primarily responsible for the conflict between the parties.[^30]

[214] Parallel parenting has been ordered where both parents have been involved with the child and wish to retain decision-making rights, but where the conflict between them is such that a joint custody order is not feasible or in the child’s best interests.[^31] Orders for parallel parenting have the benefit of maintaining each parent as a meaningful figure in the child’s life, over and above time-sharing with the child. At the same time, by delineating clear areas of decision-making between the parties, such orders have the potential, in appropriate cases, to disengage the parents and reduce their conflict.

[215] In V.K. v. T. S., in 2011, Chappel J., after reviewing the relevant case law, concluded that the jurisprudence does not preclude trial courts from making orders for “divided parallel parenting” in high conflict cases that would not meet the criteria for a joint custody order.[^32] She noted that:

(i) In Cox v. Stephen, in 2003, the Court of Appeal upheld Templeton, J.’s parallel parenting order, with terms giving decision-making responsibility respecting education to the mother, and decision-making respecting the child’s physical health to the father, despite the longstanding history of conflict between the parties. Justice Templeton held that parallel parenting did not require a cooperative working relationship or even good communication. The objective of parallel parenting was to give the parents equal status, each with distinct rights and responsibilities in relation to specific topics.[^33]

(ii) In Ursic v. Ursic,[^34] in 2006, the Court of Appeal had upheld a joint custody order, and Laskin, J. had made the following statement, suggesting that the Court might support parallel parenting orders in appropriate circumstances, despite a high level of parental conflict:

Also, importantly, the trial judge did not merely order joint custody. He included with it a parallel parenting order. Many trial courts have recognized that joint custody under a parallel parenting regime may be suitable where both parents love the child and should play an active role in the child’s life, yet have difficulty communicating or reaching consensus on the child’s upbringing. See M.(T.J.) v. M. (P.G.), (2002), 2002 49550 (ON SC), 25 R.F.L. (5th) 78 (Ont. S.C.J.) and Mol v. Mol, [1997] O.J. No. 4060 (Ont. Gen. Div.).

(iii) In Roy v. Roy,[^35] in 2006, the Court of Appeal, in setting aside what was essentially a joint custody order, in a case involving a long history of high conflict between the parties, made a general comment suggesting that both joint custody and parallel parenting orders required, as an essential foundation, co-operation and effective communication between the parties.

(iv) In Andrade v. Kennelly,[^36] however, the Court of Appeal, later in 2006, upheld a parallel parenting regime ordered at trial, which gave the mother final decision-making on education matters and the father final decision-making on medical care and treatment, despite the trial judge’s finding that “It is an understatement that this matter has been characterized by high levels of acrimony.”

[216] Chappel J. held that the existence of conflict between parties, while relevant, is only one of many considerations that the court must weigh when determining custody and access issues. Parental conflict, she stated, is relevant where parallel parenting is requested, but potentially less so than in joint custody situations, given that the purpose of parallel parenting is to disengage the parents by allowing them to operate in independent spheres of decision-making. She noted that the Court of Appeal’s views on parallel parenting appear to be evolving, consistently with the Supreme Court of Canada’s message in Young v. Young respecting the importance of flexibility, rather than rigidity, in custody and access cases.

[217] Justice Chappel set out the following factors that, based on the case-law, are particularly relevant in determining whether a parallel parenting regime, rather than sole custody, is appropriate:

(i) The strength of the parties’ ties to the child, and the general level of involvement of each parent in the child’s parenting and life.[^37] In almost all cases where parallel parenting has been ordered, both parents have consistently played a significant role in the child’s life on all levels.

(ii) The relative parenting abilities of each parent, and their capacity to make decisions that are in the child’s best interests. Where one parent is clearly more competent, responsible and attentive than the other, this may support a sole custody arrangement.[^38] On the other hand, where there is extensive conflict between the parties, but both are equally competent and loving parents and are able at times to focus jointly on the best interests of the child, a parallel parenting regime may be ordered.[^39]

(iii) Evidence of alienation by one parent. If the alienating parent is otherwise loving, attentive, involved, competent and very important to the child, a parallel parenting arrangement may be considered appropriate as a means of safeguarding the other party’s role in the child’s life.[^40] On the other hand, if the level of alienation is so significant that a parallel parenting order will not be effective in achieving a balance of parental involvement and will be contrary to the child’s best interests, a sole custody order may be more appropriate.

(iv) Where both parties have engaged in alienating behaviour, but the evidence indicates that one of them is more likely to foster an ongoing relationship between the child and the other parent, this finding may tip the scale in favour of a sole custody order.[^41]

(v) The extent to which each parent is able to place the needs of the child above their own needs and interests. If one of the parties is unable to focus on the child’s needs above their own, this may result in a sole custody order, even if that parent is very involved with the child and otherwise able to meet the child’s day to day needs.[^42]

(vi) The existence of any form of abuse, including emotional abuse or undermining behaviour, which could impede the objective of achieving a balance of roles and influence through parallel parenting.

[218] I find, based on the above-mentioned factors, that an order for parallel parenting is appropriate in the present case. Othniel’s and Odane’s ties to both parents are strong and each parent’s general level of involvement in the children’s parenting and life has been high. Both parents have consistently played a significant role in the children’s lives on all levels. Each of the parents is capable of making decisions that are in the children’s best interests. Mr. Grindley, in particular, has demonstrated a high level of interest and concern about the children’s education. Ms. Grindley, on the other hand, has demonstrated a greater capacity for attending to their moral and religious up-bringing (although the evidence, particularly of Cora Tracy, disclosed that Mr. Grindley is also heavily involved in his Church). While there is extensive conflict between the Grindleys, both are equally competent and loving parents and are able, at times, to focus jointly on the best interests of the children. All of these considerations favour a parallel parenting regime.

[219] The evidence discloses repeated efforts by Mr. Grindley and, to a lesser degree, by Ms. Grindley, to undermine the children’s perception of the other parent. However, each parent is otherwise loving, attentive, involved, competent and very important to the children. The level of alienation is not so significant that a parallel parenting order will not be effective in achieving a balance of parental involvement and I do not find any abuse, either physical or emotional, which would impede the objective of achieving a balance of roles and influence through parallel parenting. Such an arrangement will safeguard each parents’ role in the children’s lives.

[220] This is not a case like Graham v Bruto,[^43] in 2007, where the trial judge found that a joint custody and parallel parenting regime made little sense since it would put the “children in the middle of conflict every few days” and “the parents' inability to cooperate in such cases may result in frequent visits to court which would present a greater opportunity for conflict. In that case, both parties sought sole custody of their two young children and were unable to agree on many important decisions such as school, health and dental care, religious training, method of communication, summer scheduling and use of a parenting coordinator, and they required frequent court intervention.

[221] This case is also unlike Perron v. Perron,[^44] in 2010, where Whitten J. declined to consider parallel parenting as an option where the parents were unable to agree on the language of their children’s education. In the present case, while each parent would like the children to attend a school near them, there are not major differences between them as to whether the children should attend a public or private, or public or separate school, or whether they should receive instruction in French or English, or as to whether an individualized education program is appropriate. There are no major differences as to educational philosophy or religious faith or observance.

[222] In Izyuk v. Bilousov,[^45] in 2011, Pazaratz J. reviewed the more recent case law on parallel parenting:

(i) In Moyer v. Douglas[^46] in 2006, Perell J. ordered parallel parenting despite finding that joint custody was not an option since the parents could not work together in their children’s best interests. Both parents were perceived as being motivated to parent in the best interests of the children, but they had difficulty cooperating with one another. Justice Perell found that parallel parenting (with a detailed parenting schedule) was a viable solution as it did not require the same co-operation that joint custody demanded. Each parent was given an exclusive domain of responsibility, and in the case of a conflict, one parent had the final say.

(ii) In Garrow v Woycheshen,[^47] in 2008, McKay J. held that the best interests of the child required a parallel parenting regime to ensure the father remained involved in the child’s life. In rejecting an award of sole custody the Court noted that while both parties were motivated and capable parents, there was a real risk the mother would minimize or eliminate the father’s involvement with the child.

(iii) In Madott v Macorig,[^48] in 2010, Blishen J. held that in situations where parents have been distrustful, hostile and uncooperative, joint custody can still be an appropriate disposition if crafted as "parallel parenting" instead of "cooperative parenting." In that case, the parents’ relationship lacked trust and the mother had tried to marginalize the father and prevent access to the child. Despite this conduct, both the father and the mother had an ability to communicate with each other through text messaging and would place the child’s needs and interests first.

(iv) In Hajkova v Romany,[^49] in 2011, Hambly J. awarded parallel parenting where the parents were incompatible with each other but there was no evidence of conflict over important decisions.

(v) In Scervino v Scervino,[^50] in 2011, Walters J. awarded parallel parenting where the two parents were capable and did not disagree with respect to important decisions about their children’s lives. The Court found some evidence of alienating behaviour by the father, and warned that if this behaviour continued, the mother’s relationship with the children would continue to deteriorate. However, since the parents agreed on schooling, religious practice, extra-curricular activities, and medical care, parallel parenting was seen as viable.

[223] The best interests of Othniel and Odane require measures that will ensure that both parents are actively involved in their lives. A shared, or parallel, custodial arrangement will best accomplish this, while maximizing the time that Othniel and Odane spends with each parent.

[224] There will be an order granting the parties shared (parallel) custody of Othniel and Odane, with the children residing with Mr. Grindley from Tuesday night until Saturday night, and with Ms. Grindley from Saturday night until Tuesday night. Decisions with respect to education will be made by Mr. Grindley. Decisions with respect to religion and health care will be made by Ms. Grindley. Decisions with respect to extracurricular activities will be jointly made by the parties, subject to the dispute resolution process provided for below.

2. Child Support

Objectives

[225] The Federal Child Support Guidelines state in section 1 that their purpose is:

(i) to establish a fair standard of support for children that ensures that they continue to benefit from the financial means of both spouses after separation;

(ii) to reduce conflict and tension between spouses by making the calculation of child support orders more objective;

(iii) to improve the efficiency of the legal process by giving courts and spouses guidance in setting the levels of child support orders and encouraging settlement; and

(iv) to ensure consistent treatment of spouses and children who are in similar circumstances.

Support following an order for shared custody

[226] The Guidelines require me to award an amount for child support set out in the applicable table, according to the number of children under the age of majority to whom the order relates and the income of the spouse against whom the order is sought. The applicable table where the spouse lives in Canada is the table for the Province in which the spouse ordinarily lives, in this case, Ontario. (FCSG, s. 3 (3) (a)), and the amount, if any, under s. 7 of the Guidelines, dealing with extraordinary expenses. (FCSG, s. 3)

[227] In the present case, the custody/access order results in Ms. Grindley having the children in her care more than 40% of the time. I must therefore determine the amount of child support payable by applying s. 9 of the Guidelines. Section 9 provides:

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

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

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

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

[228] In Contino v. Leonelli-Contino,[^51] in 2005, the Supreme Court of Canada held that once the 40% threshold is met, s. 9 requires the court to determine the amount of child support based on the three listed factors. The court emphasized that the specific language of s. 9 demands flexibility and fairness to ensure that the economic reality in the particular circumstances of each family are properly accounted for. The Court held that under s. 9, there was no presumption in favour of either the Guidelines amount established under s. 3 or reducing a parent’s child support downward from the Guidelines amount.

[229] The Supreme Court held that, in applying s. 9(a) to (c), it was useful to take the following steps:

Start under s. 9(a) with set-off calculation as means of obtaining a starting point for reasonable solution, taking into account separate financial contribution from each parent. Multipliers and pro-rated approaches were not appropriate.
Initial set-off calculation must be followed under s. 9(b) by examination of budgets and expenditures of both parents in addressing a child’s needs and determining whether shared custody had resulted in overall increase in costs. These expenses should be apportioned between parents in accordance with their respective incomes.
Finally, under s. 9(c), a court could exercise discretion to analyze resources and needs of both parents and children, including a child’s standard of living. In order to do this, financial statement and/or child expense budgets were necessary. Did the additional time devoted to parent one result in a decrease to parent two’s costs or an increase to parent one’s costs?

[230] I will now proceed to apply the Contino analysis to the facts of the present case.

Set-off Calculation

[231] A spouse’s income under s. 2 means his or her annual income by applying s. 15 to 20. Those sections provide that, unless the parties agree in writing on the amount, I should determine the amount using the sources of income set out under “Total income” in the spouse’s Income Tax Return, as adjusted in accordance with Schedule III. I must use the most current information. (FCSG, s. 16, s. 2 (3)). If that would not be the fairest way of determining the income, I can determine a fair and reasonable amount having regard to the average of income over the last three years (s. 17).

[232] As each of the parents now has a stable income, I find that the method provided for in Section 16 of the Guidelines is the fairest way of determining the Grindleys’ respective incomes. Ms. Grindley is currently employed by Bell Express View TV, and earns $52,431.00 per year. Mr. Grindley is employed by Bell Canada, and earns $38,336.16 per year.

[233] The table amount for child support for two children in the case of a parent earning $52,431.00 per year, according to the Guidelines as amended December 31, 2011, is $779.20 ($773 plus 1.44% of amount over $52,000.00), which I round up to $780.00. The table amount of child support in the case of a parent earning $38,336.16 is $551.64 ($546 plus 1.68% of amount over $38,000.00), which I round up to $552.00. If Ms. Grindley paid $780.00 per month to Mr. Grindley and Mr. Grindley paid $552.00 to Ms. Grindley, the set off amount is $228.00 payable by Ms. Grindley.

Will shared custody result in overall increase in costs

[234] An examination of the budgets and expenditures of both parents in addressing a child’s needs leads me to the conclusion that Mr. Grindley does not require child support exceeding the set-off amount. In his most recent Financial Statement, sworn August 18, 2011, Mr. Grindley states that he has no current expenses for childcare or babysitting. He incurs the following monthly expenses in connection with the children:

$50.00 Entertainment and recreation (including the children)

$20.00 School fees and supplies

$50.00 Global Education Trust Plan

$33.33 Clothing for the children

$100.00 Children’s activities

$33.33 Summer camp expenses

$286.66

[235] In his claim for a contribution from Ms. Grindley for the children’s s. 7 expenses, Mr. Grindley claims the following, which the court is allowing as s. 7 expenses:

$190.00 Outdoor educational activity camp

$340.00 Swimming

$30.00 Annual school year books

$26.00 Trip to Toronto International Film Festival

$586.00 Total

[236] There is an overlap between these amounts. I infer that the outdoor activity camp is what comprises “summer camp expenses”, although the actual cost is $190.00, whereas the $33.33 monthly expense for “summer camp expenses”, annualized, would total $400.00. I also infer that the children’s swimming is what comprises “children’s activities”, although the actual cost of the swimming is $340.00, whereas the $100.00 per month claimed for “children’s activities”, annualized, would total $1,200.00. I find that the expenses that Mr. Grindley incurs for the children, over and above those for which he claims a s. 7 contribution from Ms. Grindley, are modest.

[237] Ms. Grindley claims $20.00 per month for babysitting costs, $50.00 per month for entertainment/recreation (including children), $50.00 per month for clothing for the children, and $35.00 per month for children’s activities. These are roughly comparable to Mr. Grindley’s child-related expenses, apart from s. 7 expenses.

[238] I find, based on the foregoing, that shared custody is not likely to result in an increase of child-related expenses. To the extent that there is an increase, it is likely to be incurred by Ms. Grindley, since the present order will result in her having the children with her for a greater proportion of the time.

Resources and needs of parents and children

[239] Mr. Grindley moved into Ms. Koduah’s house in Pickering in August 2011. He has therefore listed his housing expenses in his most recent financial statement, sworn that month, as “to be determined”. He provided no further evidence about these expenses at trial. In any event, his housing expenses are likely changing, since he and Ms. Koduah moved to a new, four-bedroom house in July 2012, and he will be sharing the expenses of that household with Ms. Koduah. Further information would be required to enable me to compare Mr. Grindley’s housing expenses to those of Ms. Grindley.

[240] The Grindleys’ other expenses can be compared as follows:

Household Transp’n Health Clothing & Vacations Debt

Expenses Hair Care Payments

Mr. Grindley $700.00 $786.50 $80 $300.00 $333.33 Nil

Ms. Grindley $389.16 $1,193.92 $48.71 $80.00 $125.00 $456.66

Ms. Grindley’s transportation expense is likely greater as she commutes from Brampton to her employment in Scarborough and to the children’s school in Pickering when she is exercising access. A major expense in Ms. Grindley’s budget is the child support payment that she makes to Mr. Grindley, which amount to $464.00 per month.

[241] Ultimately, the goal in addressing child support issues is to ensure that children benefit from the support they are owed when they are owed it, and any incentives for payor parents to be deficient in meeting their child support obligations should be eliminated. In the present case, I conclude that it is not in the children’s interests that Ms. Grindley be required to pay more child support to Mr. Grindley than the set off amount of $228.00, and her contribution to the section 7 expenses, which will be addressed below.

Contribution to Special and Extraordinary Expenses

[242] Mr. Grindley states that he incurred the following special expenses on behalf of the children for which he claims a contribution from Ms. Grindley:

(i) Babysitting expenses: $200.00 per week paid to Cora Tracy x 34 weeks (January to August 2008) and $200.00 per week paid to Dian x 11 weeks from September 1 to November 26, 2008, and two further amounts of $160.00 and $120.00, respectively, paid to Dian during the same period.

= $9,280.00

(ii) Pizza Days: $16.00 per week x 28 weeks (From two weeks past Labour day to now) less Christmas week and March break

= $16 x 26 weeks = $416.00.

As a charity event, the school, commencing two weeks into the academic session sells pizza slices to students twice per week at a price of $2.00 per slice. Othniel and Odane buy two slices each on each occasion for a total of $8.00 for the two boys on each occasion, or $16.00 per week. No receipts are given for these purchases.

(iii) Outdoor educational activity camp = $190.00

Othniel attended this once-only camp February 6 to 8, 2012, at a cost of $190.00. The receipt was entered as Exhibit 17.

(iv) Swimming = $80.00 x 2 boys = $170 x 2 sessions = $340

Both children participate in swimming at a cost of $80.00 for a three month program from September to November 2011 and from April to July 2012. Progress Reports for Othniel and Odane were entered as Exhibit 18 A and B.

(v) Annual school year book = $15.00 x 2 boys = $30.00

The receipt for the year books was entered as Exhibit 19.

(vi) Trip to Toronto International Film Festival = $26.00

Odane has been registered for this trip. The receipt dated February 20, 2010 was entered as Exhibit 20.

(vii) Milk shakes = $4.00 per week from March 2012 = $ 8.00

The boys buy $2.00 per week for milk shakes for a total of $4.00 per week. No receipt is provided for these amounts, paid since the beginning of March 2012.

(i) Babysitting expenses

[243] The greatest of the expenses claimed, by far, is for babysitting expenses. Mr. Grindley called Cora Tracy as a witness to testify about the majority of the expenses he was claiming under this category. The payments he said he had made to Ms. Tracy accounted for $6,800.00 of the total.

[244] Ms. Tracy was living outside Ontario at the time of trial. With Ms. Grindley’s consent, she testified by teleconference.

[245] Ms. Tracy, who is from Antigua, in the West Indies, stated that she was a sixty year old retiree, living in Toronto, when her daughter told her of a notice that Mr. Grindley had posted on the internet saying that he was looking for a babysitter for his children. Mr. Grindley was working occasionally at night and Ms. Tracy was looking for accommodation, so they made an arrangement whereby from October 2006 to December 2007, Ms. Tracy would stay at his home at 58 Fandango Drive in Brampton in return for babysitting and cooking.

[246] In January 2008, Mr. Grindley secured employment five nights per week, beginning at 10 p.m. On weekends, he delivered newspapers at night. From January to August 2008, Ms. Tracy continued to babysit at times when Mr. Grindley was at work. He took the children to day care in the morning, after Ms. Tracy made them breakfast, and she picked them up from day care and was with them all night. If he had a day off from work and did not require her baby-sitting services, she would still cook for them.

[247] Ms. Tracy continued to work for her accommodation. If he paid her extra for her babysitting, she paid some of it back to him for long distance telephone charges she was incurring on his telephone when her mother called collect from the West Indies.

[248] Ms. Tracy stated that at some point in 2008, Mr. Grindley told her that he was getting help from Ontario Works, meaning social assistance, and required receipts for the amounts he had paid for babysitting. He therefore gave pre-printed receipts to Ms. Tracy, which she signed and returned to him.

[249] Ms. Tracy stated that Mr. Grindley sent her the receipts on a monthly basis by e-mail and that, after signing them, she returned them to him in the same manner. She said that she assumed the amounts varied according to how much time he was working and when she had to look after the children, but she doesn’t remember filling out any of the receipts did not even read them. She assumed that whatever he wrote on the receipts was the amount she owed him for her accommodation and telephone bills. They had agreed to the breakdown of rent and babysitting.

[250] Ms. Tracy thought that a couple times, the amount might have been $200.00 per week, and sometimes less. They may have been between $800.00 and $1,000.00 in total per month, but she really can’t remember. He told her that the receipts were required for Ontario Works and she was prepared to sign for whatever amounts he had written on the receipts.

[251] At the end of August 2008, Ms. Tracy went to Calgary to visit her daughter. When she returned, she did not resume living at Mr. Grindley’s house or babysitting his children.

[252] Under cross-examination, Ms. Tracy stated that on three occasions from January to August 2008, she travelled to Antigua because it was thought that her mother was dying. She was away for a week or two each occasion, and for three weeks in March. On the third occasion, in April, her mother did die. She was unable to say whether the amounts on the receipts which Mr. Grindley gave her to sign declined for those weeks when she was away and not doing any babysitting.

[253] In answer to questions from the court, Ms. Tracy stated that she did not know why Mr. Grindley sent the receipts to her by e-mail when both she and Ms. Grindley were living in the same house at the time. She stated, in answer to a further question, that it wasn’t all the time that she went on her computer. She did not have internet, she said, but whenever she could get a signal, an e-mail was there and she always just sent it back to him.

[254] Because Ms. Tracy was testifying by teleconference, she did not have an opportunity to see the receipts that Mr. Grindley said he had received from her, and that he tendered in evidence. They consist of thirty-four “receipts”, in identical form, with the exception of the dates of the receipts and the week of babysitting that each refers to. The receipts bear the dates of every single week from Friday, January 11 to Friday, August 29, 2008, and each describes the week which ends on the Friday when the receipt purports to be dated. Each bears an identical printed signature of Cora Tracy but is neither in the form of an e-mail nor is accompanied by an e-mail. Each of the receipts is for $200.00.

[255] Mr. Grindley tendered these thirty-four receipts with thirteen others, also in identical form, for the period from September 1st to November 26, 2008, with the printed signature of the first name, “Dian”, of another person Mr. Grindley says performed babysitting for him, in the identical font as the signature of Ms. Tracy on the earlier receipts.

[256] I reject Mr. Grindley’s claim for a contribution to the payments he says he made to Ms. Tracy for babysitting expenses for the following reasons:

According to the testimony of Ms. Tracy, he did not make any actual payments to her;
The receipts tendered, purporting to be “signed” by Ms. Tracy, were not signed at all, but printed, complete with signature.
The receipts were never received by Ms. Tracy, nor returned by her. She claims to have received them from Mr. Grindley by e-mail on a monthly basis, and returned them to him in the same manner, when there was no reason, for most of the period, for Mr. Grindley and Ms. Tracy to have been communicating by e-mail at all, since they were occupying the same house. There were also no e-mails tendered to the court to support Ms. Tracy’s testimony that she received any from Mr. Grindley or that she sent any to him.
The receipts are for identical amounts of $200.00 each, when Ms. Tracy testified that they varied from less than $200.00 to $1,000.00;
The receipts cover every week from January to August 2008, including weeks when Ms. Tracy acknowledges that she was out of the country and providing no babysitting services, for a week or two on two occasions, and for three weeks in March.
Even if Mr. Grindley had made the payments, which I find that he did not, Ms. Tracy testified that he obtained receipts for the payments from her so that he could submit them to Ontario Works, from which I would conclude that he was reimbursed for these expenses already and would therefore not be entitled to contribution from Ms. Grindley.

[257] I also reject Mr. Grindley’s claim for contribution to the payments he says he made to Dian for babysitting expenses. The receipts he has tendered for those payments are identical to those he submitted for payments to Ms. Tracy. The signatures on them are in the identical font as those purporting to be signed by Ms. Tracy. I find that Mr. Grindley fabricated all of the receipts, likely at one time, in the same manner, and for the same purpose, of misleading the court.

(ii) to (vii): Other Expenses

[258] I find that the expenses incurred for pizza days and milk shakes are not extraordinary expenses and should be covered by the table child support which Ms. Grindley was required to pay to her husband.

[259] I find the following to be properly claimed as extraordinary expenses to which Ms. Grindley should be required to contribute pursuant to section 7 of the Federal Child Support Guidelines:

$190.00 Outdoor educational activity camp

$340.00 Swimming

$30.00 Annual school year books

$26.00 Trip to Toronto International Film Festival

$586.00 Total

[260] Ms. Grindley will be required to pay 58% of the above expenses (based on her income of $52,000 being 57.76% of the parties’ collective income, for a total of $340.00 (rounded up from $339.88).

CONCLUSION AND ORDER

[261] Based on the foregoing, it is ordered that:

Mr. and Ms. Grindley shall have shared (parallel) custody of the Children of the Marriage, namely, Othniel Nathan Paul Grindley, born […], 2000, and Odane Nathanial Grindley, born […], 2005 (“the children”). Each shall be responsible for day to day decisions and expenses arising at times when the children are residing with them.
The parties shall confer with each other on all plans and arrangements relating to custody of and access to the children and, generally, on all important matters relating to the children’s health, residence, welfare, education, recreational activities, religious training and upbringing, including but not limited to the following:

a) Non-emergency health care for the Children;

b) Choice of Children’s school, or any change thereto;

c) Choice of the Children’s religious worship and instruction, or any change thereafter.

All ultimate decisions regarding the children’s education (not including extra-curricular activities) shall be made by Mr. Grindley. All ultimate decisions regarding the children’s religious worship and instruction and health care shall be made by Ms. Grindley. All ultimate decisions regarding the children’s extra-curricular activities shall be made jointly by the parties, subject to the conditions and dispute resolution process described below.

The parties shall, by August 16, 2012, confer with the Office of the Children’s Lawyer and obtain from that office the names of qualified parenting coordinators and shall by August 30, 2012, agree upon and jointly retain a parenting coordinator to assist them to make parenting decisions in accordance with this order. In the event of a dispute as to the selection of a parenting coordinator, either party may apply to me, on notice to the other, which notice may be given by regular and registered mail, deemed to be effective five days after the date of the last mailing, and sent to my judicial secretary by fax, with evidence as to the qualifications, cost, and any other consideration relevant to the selection, for a hearing as to directions in this regard, at a telephone conference to be arranged by my office.
To facilitate convenient travel with either party, any passports obtained for the children shall be in the children’s names (rather than being on the passport of a party). Each party will give any consent required for such a passport and will not unreasonably withhold consent. The passport will normally be kept by Mr. Grindley, but will be temporarily given to Ms. Grindley when reasonably required for her travel with the Children outside of Canada.
Neither Mr. nor Ms. Grindley shall purchase or rent a new residence for the children that is further than 5 kilometres from that parent’s current address without giving the other parent at least 60 days prior written notice of his/her intention to do so and details of the proposed move and address. He/she shall also provide the other parent with the new telephone number within 24 hours of the move. The above-noted restriction on moving the children’s permanent residence is not intended to limit the parents’ ability to take the children out of the jurisdiction for the purpose of travel for two weeks or less with the children.
The Children of the marriage, namely, Othniel Nathan Paul Grindley, born […], 2000, and Odane Nathanial Grindley, born […], 2005, shall reside with their parents on the following schedule:

d) Ordinary weekly access as follows:

i) Beginning Tuesday, September 4, 2012, the children shall reside with:

(a) Mr. Grindley from Tuesday evening at 6:00 p.m., to Saturday evening at 6:00 p.m.

(b) Ms. Grindley from Saturday evening at 6 p.m. to Tuesday evening at 6 p.m.

ii) Pick-up shall be made by the parent with whom the children are about to begin to reside. When the children are about to begin to reside with Ms. Grindley, pick-up and drop-off shall be at the Fairview Mall, at a location which the parties shall agree upon in advance and in writing. When the children are about to begin to reside with Mr. Grindley, pick-up and drop-off shall be at Ms. Grindley’s residence in Brampton.

iii) If there is to be any change in location of pick-up and drop-off, it shall be agreed to by both parents in writing at least 24 hours in advance. If a dispute arises as to the location, it shall be mediated by the parenting coordinator who, if the parties are unable to agree, and the dispute concerns a single date only, shall make a final decision. If there is a dispute concerning a requested permanent change of location, it shall be mediated by the parenting coordinator and, if the parties are unable to agree, either party may apply to me for a resolution of the dispute, by a motion which shall be on notice to the other party, which notice may be by regular and registered mail, deemed effective on the fifth day after the last date of mailing, with appropriate attachments, and for hearing by teleconference on a date to be arranged with my judicial secretary.

iv) It shall be the responsibility of the parent with whom the children are residing to transport them to their extra-curricular and social activities. Neither parent shall schedule any extracurricular activities for the children that require attendance when the children are to be residing with the other parent or that requires financial contribution from the other parent without that other parent’s prior written consent and without providing the details of the activities at least two weeks in advance.

v) If there is a dispute concerning extra-curricular activities, it shall be mediated by the parenting coordinator and, in the event of a dispute, decided by the parenting coordinator if it is an extra-curricular activity on a single day only. If it is an ongoing activity, it shall be mediated by the parenting coordinator and, in the event of a dispute, either party may apply to me for a resolution of the dispute, by a motion which shall be on notice to the other party, which notice may be by registered and regular mail, deemed effective five days after the date of last mailing, with appropriate attachments, and for hearing by teleconference on a date to be arranged with my judicial secretary.

vi) Apart from extra-curricular activities, Othniel and Odane may attend such appropriate social events with their respective friends as they may choose while they are residing with either parent. It shall be the responsibility of the parent with whom the children are residing at the time to ensure that arrangements are made for the transportation and supervision of the children for such events.

vii) Neither parent shall use or permit any corporal punishment of the children whatsoever.

viii) In the event that either parent is unable to exercise his/her regularly scheduled access, he/she shall provide the other parent with a minimum of one week written notice in this regard.

ix) Each of the parents shall, within 10 days of the date of this Order, provide the other with a valid email address where the parent can receive communications and it shall be the responsibility of that parent to check his/her e-mail on a daily basis.

e) Father’s Day - If the Children are not otherwise with Mr. Grindley on this weekend, they will reside with him on Father’s Day, from Sunday at 9:30 a.m. until 6:00 p.m.

f) Mother’s Day - If the children are not otherwise with Ms. Grindley on this weekend, the children will reside with her on Mother’s Day from 9:30 a.m. until their return to school on Monday.

g) Summer Vacation – In 2012, Ms. Grindley shall have the children in her care from Tuesday, August 7th at 6 p.m. to Tuesday, August 21st at 6 p.m. Mr. Grindley shall have the children in his care from Tuesday, August 21st at 6 p.m. to Tuesday, September 4th at 6 p.m. Beginning in 2013, each of the parents shall spend up to two weeks of uninterrupted vacation with the children each summer, with the option of taking 1 week at a time or two weeks consecutively. Ms. Grindley shall advise Mr. Grindley by July 16th of her chosen weeks with the children and Mr. Grindley shall advise Ms. Grindley by July 23 of his chosen weeks with the children. Beginning in 2013, Ms. Grindley will have first choice in odd-numbered years and Mr. Grindley shall have first choice in even-numbered years and the parent having first choice shall notify the other by March 31st of the year in which summer vacation access is to be exercised and the other parent shall give his/her notification by April 7th. While the children are on vacation with either parent in the months of July or August, the ordinary weekly access referred to above shall be suspended, resuming upon the termination of such vacation.

h) March Break and Easter Weekend – In even-numbered years:

(i) The children will reside with Ms. Grindley during March break, from the close of school to the resumption of school; and

(ii) The children shall reside with Mr. Grindley from the Thursday prior to the Easter weekend at 6:30 p.m. to Saturday at 10:00 a.m. and with Ms. Grindley from Saturday at 10:00 a.m. to the resumption of school.

In odd-numbered years:

(i) The children will reside with Mr. Grindley during March break, from the close of school to the resumption of school.

(ii) The children shall reside with Ms. Grindley from the Thursday prior to Easter weekend at 6:30 p.m. to Saturday at 10:00 a.m. and with Mr. Grindley from Saturday at 10:00 a.m. to the resumption of school.

i) Thanksgiving Weekend - Should this holiday fall on Ms. Grindley’s regular weekly access days, the children shall reside with her as per the regular weekend schedule. Should this holiday fall on Mr. Grindley’s weekend with the children, then Ms. Grindley shall have an access visit with the children on the Monday from 10:00 a.m. to 6:00 p.m.

j) Christmas - Beginning in 2012:

i) In even-numbered years, the children shall reside with Ms. Grindley from December 23rd at 6:30 p.m. to December 25th at noon and with Mr. Grindley from December 25th at noon until December 26th at 8:00 p.m.;

ii) In odd-numbered years, the children shall reside with Mr. Grindley from December 23rd at 6:30 p.m. to December 25th at 12 noon, and with Ms. Grindley from December 25th at noon until December 26th at 8:00 p.m.

k) New Years – Beginning in 2012:

i) In even-numbered years, the children shall reside with Mr. Grindley from December 30th at 6:30 p.m. to January 1st (of the following year) at noon and with Ms. Grindley from January 1st at noon until the commencement of school.

ii) In odd-numbered years, the children shall reside with Ms. Grindley from December 30th at 6:30 p.m. to January 1st (of the following year) at noon and with Mr. Grindley from January 1st at noon until the beginning of school.

l) Parties’ Birthdays - The children shall spend time with each party on their respective birthdays. The times shall be agreed upon by the parties at least one week in advance. In the event of a dispute, it shall be mediated by the parenting coordinator and, if the parties are unable to agree, decided by the parenting coordinator.

m) Children’s Birthdays – Each of the parents shall be entitled to spend at least three hours with the child on the child’s birthday or on the following day for the purposes of a birthday celebration. The parent with whom the children would normally be resident on the child’s birthday shall confirm the Child’s availability for such access with the other parent at least ten days prior to the child’s birthday.

n) Each of the parents shall have the right to communicate with the children and the children shall have the right to communicate with either parent in private by e-mail or Skype at any reasonable time when they are residing with the other parent, and each parent shall, by August 16, 2012, equip the room which the child will be occupying when residing with them with a computer and internet access for this purpose. Each parent shall ensure that the other is kept informed of the children’s e-mail address and telephone number whenever they change;

o) Such other and additional access as may be agreed upon between the parties from time to time.

p) When special opportunities for the children arise or when unusual problems for the parties occur in relation to access, neither party will unreasonably insist on strict adherence to the foregoing arrangements. Instead, they will co-operate in making reasonable alternative arrangements so that the interests of the children prevail and will give their own needs and convenience only secondary importance.

Each parent shall have the right to information regarding the children’s school progress, as well as the health and general well being of the children. Each parent shall sign a direction authorizing the other to contact teachers, school officials, doctors and dentists to provide such information directly to the other. These authorizations shall be provided within 30 days after requested.
If either parent plans a vacation out of Ontario with the children:

a) that parent will give the other a detailed itinerary at least 14 days before it begins, including the name of any flight carrier and flight times, accommodations, including address and telephone numbers, and details as to how to contact the children during the trip.

b) the other parent shall provide a notarized travel letter authorizing the children to travel. Neither party will unreasonably withhold his/her consent to the other’s travel with the children. The consent must be provided no later than ten days before any proposed travel by the other.

Ms. Grindley shall pay monthly set-off child support to Mr. Grindley in the amount of $228.00 per month on the first of every month commencing August 1, 2012.
Ms. Grindley shall pay to Mr. Grindley a contribution to the children’s section 7 expenses in proportion to her share of the parties’ collective income, based on Line 150 of their respective Notices of Assessment for the preceding year. In 2012, Ms. Grindley shall pay, within 30 days, $340.00, based on 58% of the allowable section 7 expenses claimed by Mr. Grindley, which I fix at $586.00.
Beginning in 2013, each of the parties shall produce to the other by June 1st a copy of his/her income tax return for the preceding year, including all schedules and attachments, and shall, in addition, produce to the other, forthwith upon receipt, a copy of his/her Notice of Assessment and Re-Assessment from the Canada Revenue Agency. Within 30 days of their receipt of their respective Notices of Assessment, the parties shall calculate the set off child support payable by one to the other, and their proportionate contribution to s. 7 expenses and exchange with each other their calculations by e-mail.
Unless this support order is withdrawn from the office of the Director of the Family Responsibility Office, it shall be enforced by the Director and amounts owing under the order shall be paid to the Director, who shall pay them to the person to whom they are owed.
This order bears post judgment interest at the rate of 3.0 % per annum effective from the date of this order. Where there is default in payment, the payment in default shall bear interest only from the date of default. Where sufficient deductions are not being made by Support Deductions Order payments may be remitted to the Director, Family Responsibility Office, P.O. Box 2204, Station P Toronto, Ontario M5S 3E9.
If either of the parties asserts a claim for costs against the other, they shall confer and attempt to resolve the issue. If they are unable to agree, the parties may submit their arguments to me within 30 days, in three pages or less, with a costs outline.

Price J.

Released: August 3, 2012

COURT FILE NO.: FS-06-2923-00

DATE: 2010-08-03

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

PAUL ANDREW GRINDLEY

Applicant

and –

QUAREEN NORRETT GRINDLEY

Respondent

REASONS FOR JUDGMENT

Price J.

Released: August 3, 2012

[^1]: Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.). [^2]: Gordon v. Goertz (1996), 1996 191 (SCC), 19 R.F.L. (4th) 177 (S.C.C.); Young v. Young 1993 34 (SCC), (1993), 49 R.F.L. (3d) 117 (S.C.C.) [^3]: see Greber v. Moskowitz, 1982 74 (ON CJ), 1982 74, [1982] W.D.F.L. 1249, [1982] O.J. No. 595, 1982 CarswellOnt 1844 (Ont. Prov Ct., Fam. Div.), per Provincial Judge Roch Lalande; Tramble v. Hill, 1987 1201 (ON SC), 1987 1201, 7 R.F.L. (3d) 85, [1987] O.J. No. 1450 (Ont. U.F.C.); Milne v. Milne 1985 786 (BC CA), (1985), 44 R.F.L. (2d) 241, [1985] B.C.J. No. 1853, 1985 CarswellBC 508 (B.C.C.A.); Wylde v. Wylde, 1984 91 (ON CJ), 1984 91, 28 A.C.W.S. (2d) 404, [1984] W.D.F.L. 1671, 3 & 4 O.L.W.C.D. 229, [1984] O.J. No. 764, 1984 CarswellOnt 1693 (Ont. Prov. Ct., Fam. Div.), per Provincial Judge F. Stewart Fisher. [^4]: see Lusher v. Lusher and Lusher, 1988 1433 (ON CJ), 1988 1433, 13 R.F.L. (3d) 201, [1988] O.J. No. 2391, 1988 CarswellOnt 221 (Ont. Prov Ct., Fam. Div.), per Provincial Judge David R. Main. [^5]: see Salter v. Borden, (1991), 1991 12943 (NS FC), 101 N.S.R. (2d) 171, 275 A.P.R. 171, 31 R.F.L. (3d) 48, [1991] N.S.J. No. 543, 1991 CarswellNS 47 (N.S. Fam. Ct.). [^6]: Young v. Young, above, at para. 18. [^7]: Children’s Law Reform Act, R.S.O. 1990, c. C-12, as amended, section 24. [^8]: Barnes v. Parks, 2001 24146 (ON CA), [2001] O.J. No. 643 (C.A.) [^9]: Huisman v. Stefaniw (1997), 1997 24463 (ON SC), 26 R.F.L. (4th) 406 (Ont. Gen. Div.); Boukema v. Boukema (1997), 1997 12247 (ON SC), 31 R.F.L. (4th) 329 (Ont. Gen. Div.). [^10]: Young v. Young, 1993 34 (S.C.C.), [1993] 4 S.C.R. 3 [^11]: Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) [^12]: Young v. Young, above, para. 243 [^13]: Kruger v. Kruger (1979), 1979 1663 (ON CA), 11 R.F.L. (2d) 52 (Ont. C.A.). [^14]: Divorce Act, above, section 16(5). [^15]: Kruger v. Kruger, above. [^16]: Baker v. Baker (1979), 1979 1962 (ON CA), 8 R.F.L. (2d) 236 (Ont. C.A.). [^17]: Kaplanis v. Kaplanis, 2005 1625 (ON CA), 2005 CarswellOnt 266 (Ont. C.A.); Lawson v. Lawson, 2006 CarswellOnt 4736 (Ont. C.A.). [^18]: Brook v. Brook, 2006 12294 (ON SC), [2006] O.J. No. 1514 (Ont. S.C.J.). [^19]: Kaplanis v. Kaplanis, Supra.; Ladisa v. Ladisa, 2005 1627 (ON CA), 2005 CarswellOnt 268 (Ont. C.A). [^20]: Ladisa v. Ladisa, 2005 1627 (ON CA), 2005 CarswellOnt 268 (Ont. C.A). [^21]: Warcop v. Warcop, 2009 6423 (ON SC), 2009 CarswellOnt 782 (S.C.J.). [^22]: Hildinger v. Carroll, 2004 CarswellOnt 444 (Ont. C.A.); Kaplanis v. Kaplanis, above; Ladisa v.Ladisa, above. [^23]: Kaplanis v. Kaplanis, above. [^24]: Hensel v. Hensel, 2007 CarswellOnt 7010 (Ont. S.C.J.), at para. 29 [^25]: Mol v. Mol, 1997 CarswellOnt 3693 (Ont. Gen. Div.) [^26]: Ursic v. Ursic, 2004 CarswellOnt 8728 (Ont. S.C.J.); aff’d 2006 18349 (ON CA), 2006 CarswellOnt 3335 (Ont. C.A.) [^27]: Kaplanis v. Kaplanis 2005 1625 (ON CA), (2005), 249 D.L.R. (4th) 620 (Ont. C.A.), (2005), 249 D.L.R. (4th) 620 (Ont. C.A.). [^28]: Ursic v. Ursic, 2006 18349 (ON CA), 2006 18349, 32 R.F.L. (6th) 23, [2006] O.J. No. 2178, 2006 CarswellOnt 3335. [^29]: Lawson v. Lawson, above; Ursic v. Ursic, 2004 CarswellOnt 8728 (Ont. S.C.J.); aff’d 2006 18349 (ON CA), 2006 CarswellOnt 3335 (Ont. C.A.); Andrade v. Kennelly, 2006 CarswellOnt 3762 (Ont. S.C.J.); aff’d 2007 ONCA 898, 2007 CarswellOnt 8271 (Ont. C.A.). [^30]: Garrow v. Woycheshen, 2008 ONCJ 686, 2008 CarswellOnt 8193 (Ont. C.J.); Bromley v. Bromley, 2009 ONCA 355, 2009 CarswellOnt 2210 (Ont. C.A.); R.K.K. v. B.M.M. and R.S., 2009 CarswellYukon 38 (Yuk. S.C.); Hsiung v. Tsioutsioulas, 2011 CarswellOnt 10606 (Ont. C.J.). [^31]: M. (T.J.) v. M. (P.G.), 2002 CarswellOnt 356 (Ont. S.C.J.). [^32]: V.K. v. T. S., 2011 4305 (ONSC), at para. 81. [^33]: Cox v. Stephen, 2003 CarswellOnt 4554 (Ont. C.A.). Cox v. Down 2003 18571 (ON CA), [2003] O.J. No. 4371 (Ont. C.A.) [^34]: Ursic v. Ursic, 2006 18349 (ON CA), 2006 CarswellOnt 3335 (Ont. C.A.). [^35]: Roy v. Roy, 2006 15619 (ON CA), 2006 CarswellOnt 2898 (Ont. C.A.). [^36]: Andrade v. Kennelly, 2006 CarswellOnt 3762 (Ont. S.C.J.); aff’d 2007 ONCA 898, 2007 CarswellOnt 8271 (Ont. C.A.). [^37]: Hildinger v. Carroll, 2004 CarswellOnt 444 (Ont. C.A.); Moyer v. Douglas, 2006 CarswellOnt 8268 (Ont. S.C.J.); Caulfield v. Wong, 2007 732 (ABQB), 2007 ABQB 732; Ursic v. Ursic, above. [^38]: Ryan v. Scott, 2011 ONSC 3277, 2011 CarswellOnt 5924 (Ont. S.C.J.). [^39]: Moyer v. Douglas, [2006] O.J. No. 5124 (Ont. S.C.J.); Hajkova v. Romany, 2011 ONSC 2850, 2011 CarswellOnt 3237 (Ont. S.C.J.); Scervino v. Scervino, 2011 CarswellOnt 7845 (Ont. S.C.J.). [^40]: Sgroi v. Socci, 2007 CarswellOnt 8526 (Ont. S.C.J.); Gorman v. Gorman, [2008] N.B.J. No. 516 (N.B.Q.B.); L.(A.) v. M. (C.), 2010 CarswellNB 58 (N.B.Q.B.); Hensel v. Hensel, 2007 CarswellOnt 7010 (Ont. S.C.J.). [^41]: Attia v. Garanna, 2010 CarswellOnt 1168 (Ont. S.C.J.). [^42]: Perron v. Perron, 2010 CarswellOnt 6948 (Onr. S.C.J.). [^43]: Graham v Bruto, [2007] OJ No 656 (Ont. S.C.J.) aff’d at 2008 260 (ONCA) [^44]: Perron v. Perron, 2010 1482 (ONSC) [^45]: Izyuk v. Bilousov, 2011 6451 (ONSC) [^46]: Moyer v. Douglas [2006] OJ No 5124 (Ont. S.C.J.) [^47]: Garrow v Woycheshen, 2008 686 (ONSC) [^48]: Madott v Macorig, 2010 ONSC 5458, [2010] OJ No 4371 (ONSC) [^49]: Hajkova v Romany, 2011 ONSC 2850, 2011 2850, 2011 CarswellOnt 3237 (ONSC) [^50]: Scervino v Scervino 2011 4246 (ONSC) [^51]: Contino v. Leonelli-Contino, [2005] S.C.J. No. 65, 2005 CarswellOnt 6281, 2005 CarswellOnt 6282, 204 O.A.C. 311, 341 N.R. 1, 80 O.R. (3d) 480 (note), 2005 SCC 63, 19 R.F.L. (6th) 272, 259 D.L.R. (4th) 388, [2005] 3 S.C.R. 217

Paul Andrew Grindley v. Quareen Norrett Grindley, 2012 ONSC 4538

Case Summary

NATURE OF PROCEEDING

BACKGROUND FACTS

Family backgrounds

Marriage and separation

Early history of the present proceeding

Criminal proceedings

The road to trial

The Children’s Lawyer’s Reports

THE GRINDLEYS’ POSITIONS

ANALYSIS AND EVIDENCE

1. Custody and Access

Love, affection and emotional ties

(ii) Alleged kidnapping of children (Aug. 20, 2006)

(ix) Alleged assault on Odane (October 22, 2011)

(x) Alleged failure to return children (Oct. 26, 2011)

(xi) Alleged Assault on Othniel October 26, 2011

2. Child Support

Objectives

CONCLUSION AND ORDER

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Expert Witnesses

Issues

Statutory Provisions 3

Legal Tests 3

Legislation 3

NATURE OF PROCEEDING

BACKGROUND FACTS

Family backgrounds

Marriage and separation

Early history of the present proceeding

Criminal proceedings

Consent Order for custody and access

The road to trial

The Children’s Lawyer’s Reports

THE GRINDLEYS’ POSITIONS

ANALYSIS AND EVIDENCE

1. Custody and Access

Love, affection and emotional ties

(ii) Alleged kidnapping of children (Aug. 20, 2006)

(ix) Alleged assault on Odane (October 22, 2011)

(x) Alleged failure to return children (Oct. 26, 2011)

(xi) Alleged Assault on Othniel October 26, 2011

2. Child Support

Objectives

CONCLUSION AND ORDER

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Expert Witnesses

Issues

Statutory Provisions 3

Legal Tests 3

Legislation 3