Rodriguez v. Guignard, 2013 ONSC 146

COURT FILE NO.: FS-11-4773-00

DATE: 2012-01-23

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

MARCOS ANTONIO RODRIGUEZ

Gene C. Colman, for the Applicant

Applicant

• and -

RAYMONDE GUIGNARD

Stephen Gillies, for the Respondent

Respondent

HEARD: July 23, 2012,

at Brampton, Ontario

Price J.

Reasons For Order

NATURE OF MOTION

[1] Mr. Rodriguez and Ms. Guignard were romantic partners for two years. Their two and a half year old daughter, Ysabella Rosalie Rodriguez-Guignard, is the subject of this motion. Mr. Rodriguez has moved for interim joint custody of Ysabella, and equal parenting time with her. Ms. Guignard opposes the motion.

[2] The court must determine, pending the trial, who will have custody of Ysabella and what time Ysabella will spend with each parent. The court must make these determinations based on what will be in Ysabella’s best interests.

[3] Section 24(3) and (4) of the Children’s Law Reform Act directs the court to consider the parties’ past conduct only to the extent that it is relevant to their ability to act as parents. Both Mr. Rodriguez and Ms. Guignard describe altercations in which the other has been abusive toward them in Ysabella’s presence. The incidents do not appear to have resulted in any criminal charges, or even in a complaint to the police, and neither party appears to have summoned the Children’s Aid Society to investigate. However, the intensity of their conflict, evident in their allegations, casts doubt on their ability to co-operate in making custodial decisions for Ysabella without exposing her to physical violence or abusive language.

BACKGROUND FACTS

[4] Mr. Rodriguez is a 35 year old information technology officer with the Bank of Montreal in Scarborough (born October 19, 1977). Ms. Guignard is a 43 year old capital accountant with Mettko, a professional project management firm in Brampton (born September 14, 1969). Mr. Rodriguez and Ms. Guignard began living with each other in December 2009, when Ms. Guignard was seven months pregnant with Ysabella. Ysabella was born February 9, 2010.

[5] Beginning just before Ysabella was born, Mr. Rodriguez took a two month unpaid parental leave of absence from work in order to be at home with Ysabella. When Ms. Guignard underwent an emergency caesarean section delivery, and was unable to care for Ysabella immediately following her birth, Mr. Rodriguez’s mother, Ligia Gutierrez, who is now 59 years old, came to live with them, so that she could help care for Ysabella and her son could return to his employment.

[6] When Ms. Guignard returned to work in July 2011, when Ysabella was 17 months old, she and Mr. Rodriguez placed Ysabella in the care of an in-home babysitter, who cared for Ysabella and five other children each weekday morning from 8:00 a.m. to 12:30 p.m. Ms. Gutierrez remained in the family’s home and cared for Ysabella in the afternoons.

[7] The parties never married. They separated on February 12, 2012, three days after Ysabella’s second birthday. Ms. Guignard took Ysabella from the conjugal home at 174 Tiller Trail in Brampton, a house owned by Mr. Rodriguez, and moved temporarily to the home of a friend and co-worker. Two months later, on April 1, 2012, when the existing tenants’ lease of her own house at 16 Viceroy Crescent in Brampton expired, she moved in with Ysabella. They have lived there since then.

Deterioration of the relationship

[8] The causes of Ms. Guignard’s and Mr. Rodriguez’s separation are not directly relevant to the issues of custody and access, but they shed light on the context in which those issues arose and must be determined. The Court, in finding an arrangement that will be in Ysabella’s best interests, must seek to maximize the contact she has with each parent to the extent consistent with her best interests. In doing so, it must consider which of the parents is most likely to facilitate Ysabella’s contact with the other parent. In some instances, the factors that led to the deterioration of the parties’ relationship are closely intertwined with those that may impede one party or the other from facilitating Ysabella’s access to the other. It will therefore be helpful to discuss those factors here.

(i) The role of Ms. Gutierrez

[9] Ms. Guignard states that Mr. Rodriguez is very attached to his mother, and that her presence in their lives and home contributed to the tensions between them. She states:

Unfortunately, Ligia does not approve of me or our relationship. She is consistently critical of my housekeeping efforts, my relationship with her son, and my relationship with Ysabella.

[10] Mr. Rodriguez denies Ms. Guignard’s assertion, and says that his mother fully supported his relationship with Ms. Guignard. He says that his mother never criticized Ms. Guignard’s housekeeping or her care of Ysabella. Ms. Gutierrez’s own affidavit does not address her feelings toward Ms. Guignard or Ms. Guignard’s assertions about her.

[11] Without cross-examination of the parties and their affiants on their conflicting evidence, it is impossible for the Court to determine precisely what role Ms. Gutierrez played in the breakdown of the parties’ relationship. It is telling, however, that Ms. Gutierrez compares Ysabella’s affection for her with her affection for her parents, as if Ms. Gutierrez is competing with one or both of them for Ysabella’s affection. In an affidavit supporting her son’s motion, she states: “Ysabella calls me grandmother in Spanish, or “Ita”, and sometimes prefers to sleep with me and spend time with me than with her parents.”

(ii) The role of differences in family dynamics

[12] The family dynamic contributed to the tensions between Mr. Rodriguez and Ms. Guignard. Mr. Rodriguez describes his family as a large and close one. He has three aunts, two uncles, and seven cousins in Canada and the United States. As noted above, he invited his mother to become a member of his and Ms. Guignard’s household. His brother, Mario, lived five minutes away, and Mr. Rodriguez describes the relationship between Mario’s two daughters and Ysabella as “extremely close.”

[13] Mr. Rodriguez’s strong attachment to his family of origin, and his tendency to compare them to Ms. Guignard’s family, alienated Ms. Guignard. He contrasts his own family, whom he describes as very close, with Ms. Guignard’s, whom he describes as “a very distant people”, whose relationships with Ms. Guignard have been conflicted, and who “have not been involved in Ysabella’s life since birth.” Ms. Guignard has one sister, Lise Ann Guignard, and two half-brothers, Pierre and Eric Guignard. Mr. Rodriguez has never met Lise or Pierre, and has met Eric only briefly on three occasions. He states that Ms. Guignard had made only short visits with her disabled mother and grandmother, at Christmas, Easter, and birthdays, and she has not maintained contact with other members of her family.

[14] Mr. Rodriguez invited his mother to become a member of his and Ms. Guignard’s household and involved her in Ysabella’s care to an extent Ms. Guignard found intolerable and which made her feel excluded. When Ms. Guignard objected to his proposal to take Ysabella, at the age of one year and ten months, to Nicaragua to attend a reunion of his family of origin, he applied to the court to dispense with Ms. Guignard’s consent.

(iii) The role of financial priorities

[15] Differing attitudes toward finances also appear to have played a role in the breakdown of Mr. Rodriguez’s and Ms. Guignard’s relationship. Ms. Guignard states that Mr. Rodriguez paid the mortgage on the conjugal home, and that she paid all of the utilities and other household expenses, including groceries and supplies for Ysabella. Mr. Rodriguez acknowledges that Ms. Guignard paid the hydro, water, and gas bills from July to November 2011, but says that, from mid-2010 to February 2012, when Ms. Guignard moved out, she paid only a third of the grocery, toiletry, and household expenses. He and his mother paid the balance. He says that he alone paid for home internet and telephone, and that he and Ms. Guignard shared the expenses of Ysabella’s care.

[16] Mr. Rodriguez states that Ms. Guignard purchased diapers and some used clothing for Ysabella, but that all of her other expenses, including toys, linens, bed, cribs, strollers, bedroom furniture, jewellery, most medication, and swimming lessons were paid for by him and his family. Ms. Guignard replies that she bought new clothing, toys, books and other items for Ysabella, and that the items which Mr. Rodriguez claims to have bought were in fact gifts that others gave them at a baby shower.

[17] Again, until the parties cross-examine each other on their conflicting affidavits, there is an insufficient basis for determining precisely where the truth lies. It is evident, however, from the parties’ differing accounts, that Mr. Rodriguez and Ms. Guignard did not integrate their finances successfully and maintained a competitive or, at least, individualistic, view of the share of household expenses that each was paying.

(iv) Struggle over control of the home and of Ysabella’s care

[18] Ms. Guignard says that as their relationship deteriorated, Mr. Rodriguez told her that he considered her a mere tenant in his home, and that she was lucky he was not charging her rent. She says that he told her that she had no say in the household because she was not paying rent. Mr. Rodriguez denies these assertions and, in particular, denies telling Ms. Guignard that he considered her a mere tenant.

[19] Ms. Guignard asserts that Ms. Gutierrez labelled her own food with name tags in the couple’s refrigerator, and repeatedly asked Ms. Guignard to leave the house, and to leave Ysabella in her and her son’s care. On one occasion, she says, Mr. Rodriguez locked her out of the house.

[20] Mr. Rodriguez acknowledges that his mother labelled some of her food purchases, but says that this was a response to Ms. Guignard’s accusation during an argument on September 10, 2011, that his mother was eating Ms. Guignard’s food. He insists that his mother never told Ms. Guignard that she could not eat the food she had labelled, or that it was for her and her son alone.

[21] Whether or not Mr. Rodriguez’s explanation is accurate, it is not surprising, under the circumstances, that Ms. Guignard felt isolated in their household and ostracized by Mr. Rodriguez and his mother. Her feeling of displacement is evident in the dilemma that she faced when separating from Mr. Rodriguez. She says that Ms. Gutierrez “took over” the bedroom in which she slept, forcing her to sleep with Ysabella in a separate bedroom. Mr. Rodriguez, in response, says that Ysabella slept in her own bedroom until the parties separated, and that it was only then that Ms. Guignard chose to sleep in a separate room with Ysabella. Ms. Gutierrez concurs, adding that Ms. Guignard did not want to sleep in the room she occupied, and that Ms. Gutierrez slept there only as a matter of convenience.

[22] It is evident that after she separated from Mr. Rodriguez, Ms. Guignard did not feel entitled to lay exclusive claim to either the bedroom that she had formerly occupied with Mr. Rodriguez or the bedroom that Ms. Gutierrez occupied, with the result that the only room that remained for her was the one she began to share with Ysabella.

[23] The parties obviously view each other’s actions differently, insofar as the message that was intended to be communicated to Ms. Guignard about her presence in the house and the use of its amenities. The fact that these territoriality issues have become such a focus of their affidavits reflects the degree to which their differences, as well as, Ms. Gutierrez’s competition with Ms. Guignard for Ysabella’s, and perhaps her son’s, affections, have taken the form of a power struggle between Mr. Rodriguez and his mother on one hand and Ms. Guignard on the other.

[24] It is evident that Mr. Rodriguez aligned himself primarily with his mother, accepting the care she was willing to give Ysabella at a lower cost than a commercial daycare provider would have charged. While this saved him money in the short run, it came with the cost of his relationship with Ms. Guignard and escalated the conflict between them to the point that it required judicial intervention.

[25] Ms. Gutierrez has not applied for custody of Ysabella or access to her in her own right. However, Mr. Rodriguez advances the importance of her relationship with Ysabella as an important consideration which the Court should apply in granting him joint custody of Ysabella and equal parenting time with her. Ms. Gutierrez’s role must therefore be viewed as an aspect of the care which Mr. Rodriguez offers Ysabella. As will be discussed further below, her role must be assessed in relation to Ysabella’s best interests, including the objective of maximizing her contact with both her parents.

(v) Division of labour

[26] According to Ms. Guignard, Mr. Rodriguez divided the labour in their household according to gender, refusing to help with cooking or laundry, which he considered “women’s work”. Nevertheless, she acknowledges that he occasionally vacuumed and that he barbequed on weekends during the summer. Mr. Rodriguez denies these assertions, stating:

The weekday cooking was split equally amongst [Ms. Guignard], me and my mother, and I undertook most of the weekend cooking. With respect to laundry, I take ninety percent of my clothing to a dry cleaner and, while cleaning duties were divided equally among [Ms. Guignard], me and my mother, [Ms. Guignard] cleaned only occasionally, limiting her efforts to the kitchen.

[27] Reconciling these conflicting assertions is especially challenging because Mr. Rodriguez is apparently relying, in part, on information from his mother as to the proportions of housework that she and Ms. Guignard performed. The high degree of unresolved conflict between Mr. Rodriguez and his mother, on one hand, and Ms. Guignard, on the other, has clearly affected their views.

(vi) Physical violence and verbal abuse

[28] Both Mr. Rodriguez and Ms. Guignard complain of physical violence at the hands of the other, each alleging that the other was the aggressor. Ms. Guignard states that in June 2010, Mr. Rodriguez became so drunk that he shoved her, grabbed the phone from her hand as she tried to call her grandmother, screamed at her and her grandmother, and then slammed the phone down and stormed out of the house. On another occasion, Mr. Rodriguez injured his hand when he punched a tree out of frustration and anger.

[29] Ms. Guignard asserts that Mr. Rodriguez repeatedly called her names such as “bitch” and “useless piece of shit”, often in Ysabella’s presence. She says that he frequently denigrated her in the presence of his extended family members, telling her that she was a bad mother and housekeeper.

[30] Mr. Rodriguez asserts that on July 7, 2010, Ms. Guignard assaulted him with the end of a cordless phone while he was holding Ysabella, leaving bruises and scratch marks on his chest and arm, and a hole in the wall. He further states that on September 22, 2011, Ms. Guignard yelled at him in the Brampton Civic Hospital lobby, in the presence of Ysabella and others, and called him names such as “asshole”.

(vii) The dispute over daycare

[31] The conflict between Ms. Gutierrez and Ms. Guignard came to a head in a dispute over Ysabella’s daycare. According to Ms. Guignard, Mr. Rodriguez refused to pay for Ysabella’s daycare fees, insisting that Ms. Guignard pay his mother $40.00 per week to pick up Ysabella from daycare. Mr. Rodriguez notes that this was his mother’s only compensation for caring for Ysabella, and that it barely reimbursed her for the expenses she incurred for travel and minor necessities for Ysabella.

[32] Ms. Guignard states that Ms. Gutierrez refused to let Ysabella stay at daycare for the full day. Beginning in September 2011, Ms. Gutierrez picked up Ysabella from daycare at noon and took her to Mario’s home for the afternoon. Even when Ms. Guignard finished work at 5:00 p.m. and returned home by 5:30 p.m., Ms. Gutierrez would not allow Ysabella to return to her until 7:00 or 7:30 p.m. Finally, on December 5, 2011, Ms. Guignard instructed Ysabella’s babysitter, Theresa Stezaly, not to release Ysabella to Ms. Gutierrez. Mr. Rodriguez responded by having his lawyer send a letter to Ms. Guignard, who eventually reinstated Ms. Gutierez’s babysitting of Ysabella on weekday afternoons, with Ms. Guignard picking Ysabella up at 5:00 or 5:30 p.m.

(viii) The dispute over the Rodriguez family reunion

[33] The conflict between Mr. Rodriguez and Ms. Guignard was exacerbated by a dispute that developed when Mr. Rodriguez asked to take Ysabella to a family reunion in Nicaragua. Mr. Rodriguez was born in Nicaragua but has lived in Canada since his family immigrated here, when he was eight years old. Although his father returned to Nicaragua in 1992, after he and his wife separated, most of Mr. Rodriguez’s other relatives now live in Canada and the United States. In December 2011, Mr. Rodriguez asked Ms. Guignard for her consent to take Ysabella to Nicaragua for a reunion during the Christmas holidays. Ms. Guignard refused, so Mr. Rodriguez brought an urgent motion to the court for an order dispensing with Ms. Guignard’s consent. Ms. Guignard opposed the motion.

[34] In the affidavit that Ms. Guignard filed in opposition to Mr. Rodriguez’s motion, she noted Ysabella’s young age, the fact that she had not yet been vaccinated, that she had a recent respiratory infection, conditions in Nicaragua, including malaria, armed violence, and crime, and that Nicaragua was not a signatory to the Hague Convention on the Civil Aspects of International Child Abduction. In response, Mr. Rodriguez noted that Canada’s Foreign Affairs Department had not issued any official warning regarding travel to Nicaragua, and that the Centre for Disease Control and Prevention had assigned Managua, Nicaragua, a “Low” rating for the risk of malaria.

[35] Mr. Rodriguez stated that he had secured treatment for Ysabella’s cold, and that follow up visits with their family doctor on November 5 and 12 had pronounced her clear of infection. Apparently in response to Ms. Guignard’s expressed concern about the lack of vaccination (although Mr. Rodriguez insists that it was routine health care), Mr. Rodriguez took Ysabella to a walk-in clinic and had her vaccinated, about which Ms. Guignard later complained because he had done this without her consent.

[36] At a hearing on December 15, 2011, Snowie J. dismissed Mr. Rodriguez’s motion. Although Ms. Guignard had not brought a cross-motion for custody of Ysabella, Justice Snowie made an Order, on a “without prejudice basis”, granting her interim-interim custody of Ysabella pending a case conference that was scheduled to take place on March 27, 2012. She apparently did this to establish the jurisdiction of the Ontario courts over Ysabella, and to prevent Mr. Guignard from unilaterally removing her from Canada.

(ix) The dispute over Ysabella’s second birthday party

[37] After Mr. Rodriguez’s motion was dismissed, he made plans to celebrate Ysabella's birthday at his home on February 9, 2012. He invited Ms. Guignard to attend, but on February 8, she sent him an e-mail advising that she would be making other plans for herself and Ysabella on February 9th. Ultimately, Mr. Rodriguez and Ms. Guignard agreed to take Ysabella and Mario’s daughters, Erica and Adriana, to the McDonald’s Play Place for a time, and then to return home with them.

[38] According to Mr. Rodriguez, when they returned from McDonald’s, he brought the three children into the house for birthday cake and gifts with his family while Ms. Guignard stayed in her car outside, speaking on her cell phone. She joined the family in the house about twenty minutes later, he says, but declined to join the others for dinner or cake, or to have photographs taken of them all together.

[39] Ms. Guignard appears to have been suspicious of Mr. Rodriguez’s intentions with regard to involving her in the birthday celebration. He later used a photograph he took of her at the party as evidence of her acquiescence in the plans he had made. According to Ms. Guignard, she and Mr. Rodriguez had agreed that she would take Ysabella and the two nieces to McDonald’s for dinner and playtime, and it was Mr. Rodriguez who refused to eat with them there. She says that she only found out when they returned to the house that Mr. Rodriguez had arranged a birthday dinner there for Ysabella.

[40] On February 10, 2012, the day after Ysabella’s birthday, Ms. Guignard advised Mr. Rodriguez through counsel that she would be leaving the home with Ysabella on February 12th. At 7:30 p.m. on February 12th, she left with Ysabella over Mr. Rodriguez’s objections. Mr. Rodriguez says that Ysabella became distraught when her mother went to get Ysabella’s jacket from the closet and kicked, screamed, and cried as her mother carried her to the car.

(x) The aftermath of the parties’ separation

[41] A Case Conference took place before MacKenzie J. on March 27, 2012. As Mr. Rodriguez would not consent to an Order giving Ms. Guignard custody of Ysabella, Justice MacKenzie made an Order, on consent, continuing Ms. Guignard’s interim interim custody on a without prejudice basis, subject to further order of this Court. The Order gave Mr. Rodriguez access to Ysabella every Tuesday and Thursday, from when daycare ended until 8:00 p.m., and every weekend from Saturday at 6:00 p.m. to Sunday at 6:00 p.m. According to Ms. Guignard, this meant that Ysabella was with him approximately 20percent of the time.

[42] On April 1, 2012, after the Case Conference, Ms. Guignard and her friend/co-worker, Ms. Robinson, took Ysabella from their temporary residence to Ms. Guignard’s own home, where they now reside. Mr. Rodriguez and Ms. Guignard live in Brampton, a short car-ride from each other.

[43] A month and a half after the Case Conference, Mr. Rodriguez brought the present motion for joint custody of Ysabella and equal shared parenting time.

ISSUES

[44] The court must determine who will have custody of Ysabella, and what time Ysabella should spend with each parent pending the trial. As noted above, the Court must make these determinations based on what would be in Ysabella’s best interests.

PARTIES’ POSITIONS

[45] Mr. Rodriguez propose an arrangement whereby Ysabella would reside with him for 42 percent of the time over a two week period, as follows:

(a) On week one:

1. From Tuesday at 7:00 a.m. to Thursday at 8:00 a.m.

2. From Friday at 8:00 a.m. to Tuesday at 8:00 a.m.

(b) On week two:

1. From Thursday at 8:00 a.m. to Friday at 8:00 a.m.

[46] Mr. Rodriguez submits that the arrangement he proposes would have the following advantages:

(a) It would reduce the parties’ interaction with one another.

(b) It would allow Ysabella sufficient time to settle within each home.

(c) It would allow Ysabella full weekends with each parent.

(d) It would involve only three transitions per week between the parties’ homes, which is a short four kilometre drive from each other.

(e) It would minimize Ysabella’s time apart from each parent.

(f) It would allow Ysabella meaningful time with each parent and their respective families.

[47] Ms. Guignard opposes Mr. Rodriguez’s proposal. She submits that the conflict between her and Mr. Rodriguez is too intense for a joint custody regime to work. She argues that it is in Ysabella’s interests for stability to be maintained by continuing the current parenting arrangement with Ysabella residing primarily with her. Under the current arrangement, Mr. Rodriguez sees Ysabella every Tuesday and Thursday from the end of daycare (4:30 to 5:30 p.m., subject to his work schedule) to 8:00 p.m., and from Friday evening from the end of daycare to Saturday evening at 6:00 p.m.

ANALYSIS AND EVIDENCE

A. Legislative Framework

[48] The court makes orders concerning the custody of a child and access based solely on “the best interests of the child”. It determines what is in the child’s best interests by reference to the factors set out in section 24 of the Children’s Law Reform Act (“CLRA”).[^1]

[49] The Supreme Court of Canada in Young v. Young (1993) and Gordon v. Goertz (1996)[^2] held that a child’s best interests must be ascertained from the perspective of the child. Parental preferences and rights do not play a role in the analysis, except to the extent necessary to ensure the best interests of the child.

[50] Under sections 20 of the CLRA, both parents are equally entitled to custody of their child. Where the parents live separate and apart, and the child lives with one parent with the consent of the other, the parents’ entitlement to access continues, with each having the right to visit with the child and obtain information about the child’s health, education, and welfare.[^3]

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

Merits of application for custody or access

24. (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).

Best interests of child

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

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

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

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

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

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

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

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

(e) 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.

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.

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;

(c) a member of the person’s household; or

(d) any child.

[52] Consequently, I will review the evidence in relation to each of the above-mentioned factors, insofar as they are relevant to custody of Ysabella and access to her.

a) Love, affection, and emotional ties

[53] While Ms. Guignard disputes that Mr. Rodriguez was ever Ysabella’s primary caregiver, she does not deny that he took a two month leave of absence from work when Ysabella was born, or that her emergency caesarean section incapacitated her to some degree from caring for Ysabella following her delivery. She asserts, however, that it was Ms. Gutierrez who provided the greater part of the help with Ysabella’s care during those early months.

[54] Mr. Rodriguez’s siblings, Mario, Nadia, and Maria Rodriguez, and his friend, Byron Paz, all described Mr. Rodriguez’s close and affectionate relationship with Ysabella. For example, his brother Mario has described Mr. Rodriguez playing with Ysabella after a day’s work, lying on the floor and allowing her to jump on him and pull his hair. Neither parent denies that there is love and affection between the other parent and Ysabella.

b) Facilitating contact with the other parent

[55] The court, when making a custody and access order, whether pursuant to sections 20 and section 24 of the CLRA, or pursuant to section 16(10) of the Divorce Act, “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 parent 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 it conflicts with the child’s best interests.[^4]

[56] As for how the parties should share parenting of Ysabella, I refer to the comments of McLachlin J., as she then was, in Young v. Young, where she discussed the “maximum contact principle,” in the context of an application under the Divorce Act.[^5] Justice McLachlin, speaking for the majority of the Court, said:

... 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) (at pp. 117-18).

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

[58] Unlike the Divorce Act, which the Court applied in Young, the CLRA sets out specific factors that the court should consider when determining what is in a child’s best interests. The CLRA does not include the principle that a child should have as much contact with each parent as is consistent with the best interests of the child, as section 16(10) of the Divorce Act does. Nevertheless, s. 20(1) and (4) of the CLRA require the court, if it finds that maximum contact with both parents is not in the child’s best interests,[^6] to explain why this is so.

[59] A significant factor for the Court to consider in seeking to maximize each parent’s contact with Ysabella is the role that Ms. Gutierrez is likely to play under any parenting regime that the Court imposes. Ms. Gutierrez has clearly aligned herself with her son in his dispute with Ms. Guignard. Ms. Guignard says that Mr. Rodriguez’s family, and particularly Ms. Gutierrez, have denigrated her and tended to engulf Ysabella in the extent of their involvement in her life. Mr. Rodriguez, on the other hand, claims that Ms. Guignard marginalized him and his family from Ysabella’s life.

[60] While neither parent denies that there is love and affection between the other parent and Ysabella, I accept Ms. Guignard’s assertion that Mr. Rodriguez and his family, and particularly Ms. Gutierrez, denigrated her in Ysabella’s presence. If this continued, it would be increasingly detrimental to Ysabella’s regard for her mother, both as a role model and a source of security.

[61] I find, even based on Ms. Gutierrez’s own evidence, that she competes with Ms. Guignard, and perhaps even with her son, for Ysabella’s affections. She resisted releasing Ysabella to Ms. Guignard’s care in the past, as evidenced by the correspondence that took place between the parties’ lawyers. A repetition of this in the future would indeed marginalize Ms. Guignard in Ysabella’s life.

c) The child’s views and preferences

[62] At two and a half years of age, Ysabella is too young for her views and preferences to be ascertained in a meaningful way. While Mr. Rodriguez purports to extrapolate Ysabella’s preferences from her actions and demeanour, I find that he is projecting his own feelings onto her. He states that Ysabella and his brother Mario’s daughters have grown “inseparable”, that Ysabella “sensed that something was wrong” prior to Ms. Guignard’s moving her to her new home, that “she wishes to return to our home”, and that she is “clearly suffering from this new arrangement and it is apparent that she misses her family.” Having regard to Ysabella’s young age and limited capacity to understand the conflict in her family, I place little weight on these purported statements.

d) Length of time Ysabella has lived in a stable home environment

[63] Mr. Rodriguez asserts that his house is the only home that Ysabella has known, and that the Court should restore her to it in order to avoid unnecessary disruption of her routine. He argues that Ysabella should continue to be cared for by those with whom she is most familiar, namely, him and his mother, in the comfortable surroundings of his home.

[64] Ysabella has lived at her mother’s home at 16 Viceroy Crescent in Brampton since April 1, 2012. Mr. Rodriguez asserts that Justice Snowie’s interim interim order, which provided that Ysabella reside primarily with her mother, was without prejudice and should not be regarded as establishing a status quo in the true sense. I agree with this assertion.

[65] Mr. Rodriguez states that Ms. Guignard “has moved many times in her life, owning a number of properties along the way.” He asserts that her history indicates that she does not stay in one place for any significant amount of time, even with property ownership, and he fears that now that their romantic relationship is over, “she will continue her pattern of nomadism and take Ysabella away with her.”

[66] The evidence does not support Mr. Rodriguez’s fear in this regard. He acknowledges that Ysabella’s residence was stable while the two of them were together. Ms. Guignard has explained that she left the conjugal home because Mr. Rodriguez and his mother made life inhospitable for her there. When she left, she moved to the house that she owned when she and Mr. Rodriguez were together. While the usual Order will be made requiring Ms. Guignard to obtain Mr. Rodriguez’s consent or court approval before making a move that would affect Mr. Rodriguez’s access to Ysabella, there is no basis for concluding that Ysabella will not have a stable home with her.

[67] Mr. Rodriguez and his mother have remained in the former conjugal home, which was Ysabella’s home until Ms. Guignard left with her on February 12, 2012. I am satisfied that it provides an alternative stable home environment in which Ysabella will also be well cared for.

e) Ability and willingness of each parent to provide Ysabella with guidance and education, the necessaries of life, and to meet any special needs she has

[68] Mr. Rodriguez’s siblings, his mother, and his friend, Byron Paz, have described Mr. Rodriguez reading to Ysabella in Spanish and English, drawing with her, taking her bike riding, and attending her weekly swim classes. Mr. Rodriguez has obviously informed himself about Ysabella’s needs. He has taken a parenting course and encourages independence in her, causing her to internalize the message “Ysabella can,” and explaining to her how to dress herself and distinguish between right and wrong behaviour. I find that both parents are willing and able to provide Ysabella with guidance, education, and the necessaries of life.

f) Plans proposed for the child’s care and upbringing

[69] Ms. Guignard proposes that the parties’ current arrangement continue, with Ysabella spending time with her father twice per week from after daycare until 8:00 p.m., and each weekend from Saturday at 6:00 p.m. to Sunday at 6:00 p.m.

[70] Mr. Rodriguez has stated that when the family was together, he returned home from work daily to be with them. He says that he is able to maintain a flexible work schedule, leaving work by 4:30 p.m. daily, telecommuting once or twice a week, and taking off four weeks each year to spend more time with Ysabella.

[71] Mr. Rodriguez proposes a modified week-about arrangement, whereby Ysabella would be with each parent from one Tuesday to the next, on an alternating basis, with the exception of Thursdays at 8 a.m. to Fridays at 8 a.m., when she would spend time with the other parent.

g) Permanence and stability of each family unit

[72] As noted above, when Mr. Rodriguez returned to work two months after Ysabella was born, the parties arranged for Ysabella to be cared for by an in-home babysitter who cared for Ysabella and five other children each weekday morning from 8:00 a.m. to 12:30 p.m., and afterward by Mr. Rodriguez’s mother until Mr. Rodriguez and Ms. Guignard returned from work.

[73] Mr. Rodriguez and his mother now live together. Mr. Rodriguez asserts that there is a close bond between them and Ysabella, and between Ysabella and Mr. Rodriguez’s siblings and her cousins.

[74] Ms. Guignard lives alone with Ysabella and continues to employ the services of a babysitter, Theresa Stezaly, or a substitute babysitter when Ms. Stezaly is not available. I find that each family unit offers the requisite stability.

h) The ability of each person applying to act as a parent

[75] Mr. Rodriguez asserts that ever since Ysabella was born, when he stayed home with her for two months, he has been an active caregiver to her. Especially during those early months, he says, he was primarily responsible for changing, bathing, bottle feeding, and rocking her to sleep every day and night. He would also often get up with her at night, prepare her formula, and comfort her back to sleep. Once he returned to work, he says, he arranged for his mother to provide daily care for both Ysabella and Ms. Guignard. His siblings and his friend, Byron Paz, have described him routinely performing parenting tasks, including preparing food for Ysabella and feeding her, dressing her, taking her to the doctor, putting her to sleep, and changing her.

[76] Ms. Guignard disputes Mr. Rodriguez’s assertion that he cared for either Ysabella or Ms. Guignard. She states that she has been Ysabella’s primary caregiver, and that Mr. Rodriguez has relied heavily on his mother’s help at those times when Ysabella was in his care. It is clear that Mr. Rodriguez has involved Ms. Gutierrez heavily in Ysabella’s care. However, it is equally clear that he has been heavily involved himself.

[77] I find that each of the parties has been actively involved in caring for Ysabella and is a capable parent.

B. Jurisprudence

i) General principles

[78] “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.”[^7]

(ii) Three options for custody

[79] Traditionally, courts have awarded either sole custody or joint custody. The courts have generally declined to award joint custody where the conflict between the parents is so intense that it precludes effective co-operation between them.

[80] In recent years, the courts have developed a third option, which is referred to as “parallel parenting.” Courts have recognized that where an order for sole custody would result in one parent’s involvement with the child being minimized or eliminated, parallel parenting may be the most appropriate regime, in spite of the conflict existing between the parents.

[81] Because there has been a high level of conflict between Mr. Rodriguez and Ms. Guignard, it is appropriate that the Court consider which of the three custodial options is in Ysabella’s best interests. I will begin by reviewing the legal principles associated with each option.

(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.[^8] 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.”[^9] 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.

The Court of Appeal for Ontario in Kruger v. Kruger[^10] and Baker v. Baker[^11] 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 of Appeal has since dispensed with the requirement for consent, but has continued to require evidence that the parties are able to communicate effectively,[^12] since joint custody entails them making long-term decisions together regarding the child. While this requires some measure of communication and cooperation, courts are not to apply a standard of perfection. As Quinn, J. remarked in Brook v. Brook, “The cooperation needed is workable, not blissful; adequate, not perfect.”[^13] 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.[^14] 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.[^15] 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.”[^16] 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.[^17] 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.[^18]

[82] In the present case, I find that the level of conflict between Mr. Rodriguez and Ms. Guignard is too great, and the communication between them is too poor, to justify an order for joint custody. Such an order would increase the occasions for contact between them, with the potential for violence and the perpetuation of denigration of Ms. Guignard.. This would not be in Ysabella’s interests.

[83] In recent years, courts have made orders for “parallel parenting”. This can be “divided parallel parenting”, described in Hensel v. Hensel,[^19] 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[^20] and Ursic v. Ursic,[^21] 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.

[84] Parallel parenting has been ordered where both parents have been involved with the child and wish to retain their 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.[^22] As the Court of Appeal for Ontario pointed out in Ursic v. Ursic[^23] (2006), a parent cannot be the instigator of high conflict and then be awarded sole custody based on the existence of that conflict.

[85] Orders for parallel parenting have the benefit of maintaining each parent as a meaningful figure in the child’s life, over and above the time that each spends 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.

[86] In V.K. v. T. S. (2011), Chappel J. 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.[^24] She noted that the Court of Appeal has upheld a parallel parenting order that gave the mother ultimate decision-making responsibility over the child’s education and gave the father ultimate decision-making responsibility for the child’s physical health, despite the long history of conflict between the parties.[^25] She also referred to Ursic v. Ursic (2006), where Laskin J.A. suggested that the Court might support parallel parenting orders in appropriate circumstances, despite a high level of parental conflict:[^26]

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.); Mol v. Mol.

[87] Chappel J. noted that the existence of conflict between parties is always a relevant factor in determining custody and access issues, but that it is just one of many considerations that the court must weigh. Parental conflict 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.

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

a) 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.[^27] 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.

b) 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.[^28] 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.[^29]

c) 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.[^30] 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.

d) 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.[^31]

e) 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.[^32]

f) 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.

[89] I find that in the present case an order for parallel custody would not be in Ysabella’s interests. While both Mr. Rodriguez and Ms. Guignard have played important roles in Ysabella’s life, and are capable of making decisions that would be in her interests, I am not satisfied that Mr. Rodriguez and his mother are consistently able to place her needs and interests above their own. They have displayed such a negative attitude toward Ms. Guignard that I find that an arrangement for equal parenting time would be likely to marginalize Ms. Guignard’s role in Ysabella’s life. I do not have similar concerns about a likelihood that Ms. Guignard will marginalize Mr. Rodriguez’s and his mother’s involvement in Ysabella’s life.

j) Ysabella’s grandmother’s impact on her best interests

[90] Ms. Gutierrez has played an important role in Ysabella’s life and in the conflict between her parents. The Court must therefore consider the impact of any custody and access regime on Ysabella’s relationship with each of her parents, as well as on her relationship with her grandmother. In this analysis, it is Ysabella’s best interests, and not her parents’, or grandmother’s, interests that must be given paramount importance.

[91] In Khan v. Kong[^33] (2007), Nelson J. noted that the status of biological parents in disputes over custody of their children has undergone a significant change over the years. He described the movement from the “parental preference” doctrine to the “best interests of the child” doctrine. Traditionally, in cases involving custody disputes between biological parents and non-biological parents, including grandparents or other members of a child’s extended family, the courts were guided by a trilogy of decisions by the Supreme Court in the 1950s.[^34] Those decisions held that biological parents were prima facie entitled to custody, unless by reason of some act, condition, or circumstances affecting them, they were deemed to be “unfit”.

[92] More recently, in 1973, the Ontario Court of Appeal in Re Moores and Feldstein[^35] departed from the parental preference doctrine. In that case, a mother had delivered her daughter to the care of others a few days after the child’s birth, in the hope of reconciling with her husband, who did not want the baby. Four years later, she brought an action for the return of the child from the non-parents. The Court of Appeal found that the trial judge had erred in assuming that the child would benefit by being returned to her mother by virtue of their blood relationship, without fully considering the likely effect of such a return on the child. Dubin J.A., writing for the Court, held that the best interests of a child is the primary concern in determining custody, and that the wishes of biological parents must give way to a consideration of the child’s welfare. He held that the positive impact of the biological relationship is a question of fact that must be decided based on the facts of the particular case. A court is not bound to assume the importance of biological ties of affection.

[93] The Supreme Court confirmed the shift in the law away from the parental preference doctrine in 1983, in Racine v. Woods.[^36] In that case, the Court upheld the trial judge’s award of custody of a child to foster parents, which he based on the child’s best interests. Wilson J., delivering the judgment of the Court, stated:

It (the child’s tie with its natural parent) is obviously very relevant in a determination as to what is in the child’s best interests. But it is the parental tie as a meaningful and positive force in the life of the child, and not in the life of the parent, that the court has to be concerned about (p. 185).

[94] The love and care which may be provided by biological parents remains an important factor to be considered in assessing the child’s best interests. As Wilson J. stated:

It (the child’s tie with its natural parent) is obviously very relevant in a determination as to what is in the child’s best interests. But it is the parental tie as a meaningful and positive force in the life of the child, and not in the life of the parent, that the court has to be concerned about (p. 185).

[95] In Khan v. Kong, Mr. Kong, who was the child’s “psychological parent”, relied on Moores v. Feldstein to support his claim for custody. The court, however, distinguished Moores v. Feldstein on the basis that in that case, giving the child to her biological mother would be placing her in the custody of someone “who would likely be quite a stranger to her” (para. 51). In Khan v. Kong, the child had developed a strong relationship with both sets of parents, so that neither the biological parents nor the psychological parents were strangers to her.

[96] Justice Nelson considered the Supreme Court’s decision in King v. Low[^37] (1985). In that case, the appellant, an unwed mother, had given up her infant son for adoption to a carefully chosen couple a few days after his birth. Two and half months later, she sought the return of the child. In dismissing the appeal, the Supreme Court held that:

In exercising its parens patriae jurisdiction in questions of contested custody, including contests between a natural parent and adoptive parents, [the court] must consider the welfare of the child the predominant factor and give it effect in reaching its determination.

[97] The Supreme Court further stated at p. 101 that while “parental claims must be seriously considered,” they must be set aside “where the welfare of the child requires it.” In that case, the benefits to the child of maintaining ties with his biological mother were outweighed by the maintenance of his present home stability and his existing parental bonds to his adoptive parents. In King v. Low, the Court was also influenced by the biological mother’s heedlessness of her parental duties, as evidenced by her surrender of the child to adoptive parents. She had been, in effect, a stranger to the child; whereas, the child’s parents in Khan v. Kong were not strangers to her.

[98] In Frame v. Smith[^38] (1987), a father brought a civil action against his wife for interfering with his access rights. He based his claim for damages on his common law “parental right” to access. The Supreme Court stated that, in light of developments since the CLRA, “it can be said with some assurance that the concept of ‘parental rights’ has fallen into disfavour.”[^39]

[99] In Foster v. Allison[^40] (2003), Aston J. awarded custody of a child to the biological mother in a custody dispute between the mother, the biological father, and the paternal grandparents. He held that the ultimate test in awarding custody is the best interests of the child test. Justice Aston reasoned that while “any person” may apply for custody under section 21 of the CLRA, section 20 of the Act and case-law both supported the proposition that parents have a preferred status or preferential claim over others. The court found that while the child had thrived in his past arrangement with the paternal grandparents, a continuation of the stable status quo did not trump the mother’s prima facie right to custody.

[100] The court in Khan v. Kong noted that Foster was a parent versus grandparent case, and not one of competing parents. The grandparents had also marginalized the mother’s role and excluded her; whereas, the grandparents in Khan v. Kong had always been prepared to share their grandchild with the parents (while the reverse was not so).

[101] The court in Khan v. Kong interpreted sections 20 of the CLRA, which provides: “Except as otherwise provided in this Part, the father and mother of a child are equally entitled to custody of the child,” to mean that preference shall be given to the father and mother, but that this could include psychological mother and father, as well as biological father and mother. Foster involved a custody dispute primarily between the biological mother and the paternal grandparents, who provided daily care. In Khan v. Kong, because all parties were psychological parents, none were entitled to preferential treatment.

[102] In Vanderhoek v. Stark[^41] (1999), a father and maternal grandparents both claimed custody of two young boys whose mother had died. Vanderhoek was a dispute between a biological/psychological parent and grandparents. The case discussed how differing parenting styles did not allow for joint custody. The father was the biological father of one of the boys, who had begun living with the mother when the non-biological child was six weeks old. He had demonstrated a desire to assume responsibility for both boys immediately after their mother’s death. The court found that he was a parent to both boys, within the meaning of section 1 of the Family Law Act (“FLA”), and granted him custody of both, with specific access to the grandparents. Aston J. found, with regard to the specific factors enumerated in section 24(2) of the CLRA, that there was no basis for preferring one party over the other. This equivalency was offset by the fact that Mr. Vanderhoek was a parent (though this factor is not specifically enumerated in section 24(2)). He said:

I do not accept the proposition that there is any legal presumption in favour of the parent or any heavier onus or burden of proof on the grandparents. Notions of onus or presumption in custody cases have been expressly rejected in cases such as Carter v. Brooks (1990), 30 R.F.O. (3d) 53 (Ont.C.A.) and Gordon v. Goertz 1996 191 (SCC), (1996), 19 R.F.L. (4th) 177 (S.C.C.).

[103] Aston J. went on to recognize that the fact that parents are a degree closer to children than grandparents in the family constellation may be taken into account under the rubric of the “best interests of the child”, even if it is not specifically listed as a factor under section 24(2) of the CLRA.[^42] He noted that parents and grandparents are regarded differently when it comes to responsibilities for raising children. By stating that parents are one degree closer to children than grandparents, the court does not exclude non-biological parents, who may be as close or closer to children, psychologically. At para. 16, the court also noted the fact that the father to whom it awarded custody wanted to involve the grandparents in the children’s life.

[104] In Clapp v. Morin[^43] (1991), Conant J. awarded custody of an eight year old girl to her biological father in a dispute between the father and the girl’s maternal aunt. The child had lived the first half of her life with her biological parents until she moved with her mother to Belize. The aunt brought her back to Canada and received an order for interim custody. The child lived with the aunt and maternal grandmother for 21 months. The father had extensive access to the child. The court held that the paramount consideration was the best interest of the child, an important element of which is the child’s ties to the natural parent. Justice Conant further reasoned that the weight placed on these ties and all other factors enumerated in section 24(2) of the CLRA depends on the needs and circumstances of the particular child. Conant J. noted that courts have been prepared to set aside parental claims when they believed the child would not benefit from a blood tie. He initially considered the child’s best interests and found that both the father and aunt would provide an equally suitable home to the child. It was only after finding such equivalency that he concluded that the biological connection tipped the scale in favour of the child’s biological father.

[105] In K.E.J. v. D.L.J.[^44] (2002), the biological father who had interim custody of his two young boys sought permanent custody. The boys’ aunt and uncle also sought custody. This custody dispute arose in the context of a divorce application, and was thus decided under the Divorce Act. The court awarded custody to the biological father. Justice Burrows recognizes at para. 86 that in the context of a best interests of the child analysis, the authorities indicate that natural parenthood is an important factor. Therefore, in a contest between a natural parent and a legal stranger, the best interests assessment requires that consideration be given to the importance to the child of maintaining the relationship between the child and the natural parent. He cited Racine v. Woods for the proposition that it is the parental tie “as a meaningful and positive force in the life of the child and not in the life of the parent that the court has to be concerned about.”

[106] In MacDonald v. Hosking[^45] (2004), Marshman J. stated: “Parents have always had a greater right to custody of their children than extended family and strangers.”[^46]

[107] In the present case, Ms. Gutierrez’s divisive influence over the parties’ relationship and her participation in Mr. Rodriguez’s denigration of Ms. Guignard are factors that militate against a shared or parallel parenting arrangement, which would equalize each parent’s contact with Ysabella. The events leading to the parties’ separation satisfy me that such an arrangement would restore a power imbalance between Mr. Rodriguez and his mother, on one hand, and Ms. Guignard, on the other. In Rai v. Rai[^47] (2012), Seppi J. considered whether the grandparents had engaged in harmful, alienating behaviour while caring for the children, and whether the children, who were bonded with their grandparents as a result of being left in their primary care by the parents, would be harmed by an order removing them and granting custody to the mother. Justice Seppi stated:

The biological tie of a mother and father to the child is the most proximate of any other in their childhood. A child’s strong and healthy bond with a parent is crucial to his development. The bond Sumraat and Ariv have with their grandparents is important, but it does not replace the need to strengthen their bond with their mother who is a capable and loving parent.[^48]

[108] As Seppi J. noted, after reviewing the relevant authorities, a parent’s claim to custody takes precedence over that of a non-parent, including a grandparent, absent the unusual circumstance in which the parents lack parenting capacity. In support of this conclusion, she cited, among other authorities, the reasoning in C.(G.) v. V.-F.(T.),[^49] where the Supreme Court stated:

A third person who wishes to obtain custody of a child must rebut the presumption to the effect that the parent is in a better position to ensure his child’s well-being. He must establish on a balance of probabilities that the development of the child is likely to be compromised if he or she remains with the father or mother or returns to live with them. The third person must also show that, unlike the person having parental authority, he or she is able to provide the care and affection needed by the child.

[109] In S.H. v. M.E. (No. 1)[^50] in 2004, Baldock J. dismissed a father’s motion to change an order made on consent eight years earlier, which had granted custody of their son to his mother after protracted litigation following the parties’ separation and a brief period of cohabitation, when their son was a few months old. Justice Baldock found that the father seemed to be the under dominant influence of his mother, who had embarked on a subtle and insidious campaign to undermine the custodial mother’s parental role for the affections of the 11 year old boy. The grandmother showered the boy with material things that his mother could never afford, allowed him to make adult decisions, and gave him too much power, almost always granted his wishes, and was quick to exploit any of his complaints about his mother’s home with a flurry of activity and a flood of attention: lodging numerous complaints against the mother and her partner with children’s aid societies, police and other authorities, all of which proved groundless. The boy was clearly stating his preference to live with his father’s family and to have very limited access with his mother, but the evidence showed that the grandmother was effectively pulling strings to help the father gain access to his son.

[110] Justice Baldock concluded that if custody were to be transferred to the father, she would have no confidence in the father’s declared willingness or ability to foster ties between the boy and his mother. She believed that the change would most likely result in the elimination of the mother from the child’s life; the effect would be that the void would be filled by the grandmother, whose involvement would be all-encompassing and leave no room for others.

[111] Justice Baldock stated:

I accept that the father is genuine in his love for his son and that he is a kind and generous parent. Sadly however, he has not been able to withstand the influence of his mother. Were he to live and operate independently of his parents and be in a position to control and limit the opportunities for B.J.E.-H. to have contact with Mrs. K.H., I would have been inclined to accede to B.J.E.-H.’s wishes and grant custody to the father. At this time, however, Mr. S.H.’ daily life is inextricably bound to that of his mother. He has little if any control over the situation and readily allows her to assume a parenting role with respect to B.J.E.-H. He has failed to appreciate the extent to which this has damaged B.J.E.-H.’s other relationships, which should be reinforced, encouraged and supported, not undermined and subverted.[^51]

[112] In Tipping v. McNutt (2009), Zisman J. dismissed an application by an eight year old boy’s grandparents for custody of their grandson. She found that the custody dispute exposed the grandparents’ lack of respect for their daughter, for her partner, and for their lifestyle. Justice Zisman concluded that if the child were to reside with his grandparents, his mother’s role in his life would be marginalized, and he would have little contact with his sibling or his father. By contrast, leaving the child in his mother’s care would ensure that he had a meaningful relationship with his grandparents.[^52] She commented:

Austin’s emotional needs will not be met until the current conflict between the people he loves is resolved. The grandparents see themselves as caring and concerned, whereas the mother sees her parents as controlling and intrusive…. Unless and until the grandparents accept that the mother is able to parent, the mother will never be prepared to accept any assistance from her parents and she will deprive Austin of the material benefits that the grandparents can offer him.

I am confident that once this litigation is completed and the mother is secure in her role, she will be able to better appreciate and meet Austin’s emotional needs... [^53]

[113] I accept that Ms. Gutierrez has had a positive influence on Ysabella, apart from the divisive role she has played in the relationship between Ysabella’s parents, and her participation in Mr. Rodriguez’s denigration of Ms. Guignard. For this reason, I have concluded that it is important to preserve Ms. Gutierrez’s access to Ysabella as part of the parenting arrangement.

[114] In this regard, Justice Zisman’s comments in Kobow v. Kobow (2007) are apposite:

Given the level of hostility that has now arisen as a result of this motion, I am concerned that the mother’s role would be significantly marginalized by the grandmother. On the other hand, it is important that the grandmother’s contact with the child be preserved, as in the final determination, the custodial arrangements may change. In the case of McLaughlin and McLaughlin v. Huehn and Forget, 2004 426 (ONCJ), 141 A.C.W.S. (3d) 260, [2005] W.D.F.L. 4016, [2004] O.J. No. 5918, 2004 Cars­well­Ont 6539 (Ont. C.J.), the court noted that, although grandparents are entitled to access for the purpose of maintaining a relationship, they are not entitled to the type of access that a non-custodial parent would receive. However, in this case, I believe it is in the child’s best interests, at this stage of the proceeding, to maintain significant contact with the applicant.[^54]

k) Ysabella’s best interests

[115] No one factor in the statutory definition of a child’s “best interests” is given statutory pre-eminence, whether at an interim or a final determination. But the court pays particular attention to:

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;[^55]

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;[^56]

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

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.[^57]

[116] Generally, the status quo will be maintained on an interim custody motion, absent compelling reasons for a change to meet the child’s best interests. This is so whether the existing arrangement is de facto or de jure.[^58]

[117] In the present case, Ysabella’s interests are best served by departing from the current status quo. The present custody and access arrangement was created on a without prejudice basis, after Ms. Guignard had decided unilaterally to leave the conjugal home with Ysabella. While there still has not been cross-examinations on the parties’ affidavits, the court has had a better opportunity than on the initial return of the motion to review the affidavits and the law that the parties have submitted. I adopt the comments of the court in McEachern v. McEachern in this regard:

Maintaining the status quo may not be justified in every case in the best interests of the child, but I think there should be some compelling evidence to justify a change…[^59]

[118] While Ysabella’s weekly contact with her father will continue, Thursday access will be extended into the existing weekend access, as it was on one occasion with the parties’ consent. But access will be changed to alternate weekends in order to preserve Ms. Guignard’s home as Ysabella’s primary residence, and to avoid the potentially negative impact of tipping Ysabella’s parenting too much toward Mr. Rodriguez and his mother.

CONCLUSION AND ORDER

[119] Ysabella’s best interests will be served by Ms. Guignard having sole custody of her, with Mr. Rodriguez having access to her every Tuesday and Thursday, and on alternate weeks from Thursday to Saturday. This arrangement will maximize Mr. Rodriguez’s contact on the two days each week when his employer allows him to telecommute from home. On those days, Ms. Gutierrez will be able to care for Ysabella from 12:30 p.m., if Mr. Rodriguez is not available, until 8:00 p.m., when Ms. Guignard will resume her care. This arrangement will also provide two consecutive overnight access periods on alternate weeks, which will maximize the time each parent spends with Ysabella without tilting the balance toward Mr. Rodriguez and his mother in such a fashion as to compromise Ms. Guignard’s role in Ysabella’s life.

[120] The best way for Mr. Rodriguez to show love and respect for Ysabella is for him to show respect for Ysabella’s mother. Neither he nor Ms. Gutierrez have yet demonstrated an ability to do so. The interim custody and access arrangement that results from the present Order will be reviewed at trial, if the case proceeds to trial or in two years. At this time, the quality of communication between the parties, as well as the degree to which Ms. Guignard has facilitated contact between Mr. Rodriguez and his mother and Ysabella, will be considered.

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

1. Ms. Guignard shall, on a temporary basis, have sole custody of Ysabella Rosalie Rodriguez-Guignard, born February 9, 2010 (“Ysabella”), who shall reside primarily with her.

2. The parties shall confer with each other on all plans and arrangements relating to custody of and access to Ysabella and, generally, on all important matters relating to her health, residence, welfare, education, recreational activities, religious training and upbringing, including but not limited to the following:

(a) Choice of or change to Ysabella’s religious worship and instruction;

(b) Non-emergency health care for Ysabella;

(c) Choice of or change to Ysabella’s school; and

(d) All ultimate decisions regarding Ysabella’s education, religious worship, non-emergency health care, and extra-curricular activities shall be made by Ms. Guignard;

3. The parties shall, by February 15, 2013, confer with the Office of the Children’s Lawyer and obtain the names of qualified parenting coordinators. They shall, by March 15, 2013, agree upon and jointly retain a parenting coordinator to assist them with making parenting decisions in accordance with this Order. In the event arises over the selection of a parenting coordinator, either party may apply to me, on notice to the other, for directions. Such 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. Either or both parties shall attach evidence as to the qualifications and cost of the proposed parenting coordinator, and any other consideration relevant to the selection. If both parties are represented by counsel, the motion may be heard by telephone conference, between 9:00 and 10:00 a.m. on a date when I am presiding, to be arranged in advance with my judicial secretary.

4. To facilitate convenient travel with either party, any passports obtained for Ysabella shall be in her name, 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 Ms. Guignard, but will be temporarily given to Mr. Rodriguez when reasonably required for his travel with Ysabella outside of Canada.

5. Neither Mr. Rodruiguez nor Ms. Guignard shall purchase or rent a new residence for Ysabella more than five 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 Ysabella’s permanent residence is not intended to limit the parents’ ability to take Ysabella out of the jurisdiction for the purpose of travel for two weeks or less with Ysabella.

6. Ysabella shall reside with her parents on the following schedule:

(a) Ordinary weekly access as follows:

Beginning January 24, 2013, Mr. Rodriguez shall have access to Ysabella at the following times:

i. Every Tuesday and Thursday from 12:30 p.m. until 8:00 p.m. If Mr. Rodriguez is not personally able to care for Ysabella from 12:30 p.m. until 6:00 p.m., Ms. Gutierrez may care for her in his place. If neither of them is available, Ysabella shall remain in daycare until 6:00 p.m., at which time she will be with Mr. Rodriguez from then until 8:00 p.m., when he shall deliver her back to Ms. Guignard’s care.

ii. On alternate weeks beginning January 31, 2013, from Thursday at 8:00 p.m. until Friday morning, when Mr. Rodriguez shall drop Ysabella at daycare at 8:00 a.m., and from Friday at 12:30 p.m. until Saturday at 6:00 p.m. when he shall drop Ysabella at Ms. Guignard’s home. If Mr. Rodriguez is not personally able to care for Ysabella on Thursday or Friday from 12:30 p.m. until 6:00 p.m., Ms. Gutierrez may care for her in his place during those times. If neither of them is available during those times, Ysabella shall remain in daycare until 6:00 p.m., at which time she will be with Mr. Rodriguez until he returns her to daycare on Friday morning or to her mother on Saturday at 6:00 p.m.

iii. Pick-up shall be made by Mr. Rodriguez or, if he is not able to do so, by Ms. Gutierrez.

iv. If there is to be any change in location of the pick-up and/or 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. 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. Notice may be by regular or 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.

v. 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.

(b) Father’s Day – Mr. Rodriguez shall have access to Ysabella from Sunday at 9:30 a.m. until 6:00 p.m.

(c) Summer Vacation – Beginning in 2013, each of the parents shall spend up to one week of uninterrupted vacation with Ysabella each summer. Beginning in 2013, Mr. Rodriguez shall have first choice in odd-numbered years, and Ms. Guignard shall have first choice in even-numbered years. The parent whose turn it is to have 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 7 of that year. While Ysabella is on vacation with either parent in the months of July or August, the ordinary weekly access referred to above shall be suspended and resume upon the termination of such vacation.

(d) Easter Weekend

i. In odd-numbered years, Ysabella shall reside with Ms. Guignard from the Thursday prior to Easter weekend at 6:30 p.m. to Saturday at 10:00 a.m., and with Mr. Rodriguez from Saturday at 10:00 a.m. to Sunday night at 8:00 p.m.

ii. In even-numbered years, Ysabella shall reside with Mr. Rodriguez from the Thursday prior to Easter weekend at 6:30 p.m. to Saturday at 10:00 a.m., and with Ms. Guignard from Saturday at 10:00 a.m. to Sunday night at 8:00 p.m.

(e) Thanksgiving Weekend - Should this holiday fall on Mr. Rodriguez’s regular weekly access days, Ysabella shall reside with him as per the regular weekend schedule. Should this holiday fall on Ms. Guignard’s weekend with Ysabella, then Mr. Rodriguez shall have an access visit with her on the holiday Monday from 10:00 a.m. to 8:00 p.m.

(f) Christmas - Beginning in 2013:

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

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

(g) New Years – Beginning in 2013:

i. In even-numbered years: Ysabella shall reside with Ms. Guignard from December 30th at 6:30 p.m. to January 1st (of the following year) at noon, and with Mr. Rodriguez from January 1st at noon until the end of the year-end holiday.

ii. In odd-numbered years: Ysabella shall reside with Mr. Rodriguez from December 30th at 6:30 p.m. to January 1st (of the following year) at noon, and with Ms. Guignard from January 1st at noon until the end of the year-end holiday.

(h) Parties’ Birthdays - Ysabella 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.

(i) Ysabella’s Birthday – Each of the parents shall be entitled to spend at least three hours with Ysabella on her birthday or on the following day for the purposes of a birthday celebration. The parent with whom Ysabella would normally be resident on her birthday shall confirm her availability for such access with the other parent at least ten days prior to Ysabella’s birthday.

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

(k) When special opportunities for Ysabella 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 Ysabella prevail, and their own needs and convenience only gain secondary importance.

7. When Ysabella begins school, each parent shall have the right to information regarding her school progress, as well as her health and general well being. 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 being requested.

8. If either parent plans a vacation out of Ontario with Ysabella:

(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, such as address and telephone numbers, and details as to how to contact Ysabella during the trip.

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

Price J.

Released: January 23, 2013

COURT FILE NO.: FS-11-4773-00

DATE: 2013-01-23

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

MARCOS ANTONIO RODRIGUEZ

Applicant

• and –

RAYMONDE GUIGNARD

Respondent

REASONS FOR ORDER

Price J.

Released: January 23, 2013

[^1]: Children’s Law Reform Act, R.S.O. 1990, c. C-12, as amended, section 24.

[^2]: Young v. Young, 1993 34 (SCC), [1993] 4 S.C.R. 3, at pp. 47, 99; Gordon v. Goertz, 1996 191 (SCC), [1996] 2 S.C.R. 27, at pp. 67-68.

[^3]: CLRA, ss. 20(1), (4), and (5).

[^4]: Young v. Young, at pp. 46, 117-18.

[^5]: Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), as amended.

[^6]: Wiedrick v. LeMesurier (2006), 2006 919 (ON SC), 27 R.F.L. (6th) 312 (Ont. S.C.), per Wood J.

[^7]: Young v. Young, at p. 99, per L’Heureux-Dube J. (dissenting in the result).

[^8]: Kruger v. Kruger and Baun (1980), 1979 1663 (ON CA), 11 R.F.L. (2d) 52 (Ont. C.A.)

[^9]: Divorce Act, above, section 16(5)

[^10]: Kruger v. Kruger.

[^11]: Baker v. Baker (1979), 1979 1962 (ON CA), 8 R.F.L. (2d) 236 (Ont. C.A.).

[^12]: Kaplanis v. Kaplanis (2005), 2005 1625 (ON CA), 10 R.F.L. (6th) 373 (Ont. C.A.) ; Lawson v. Lawson (2007), 2006 26573 (ON CA), 81 O.R. (3d) 321 (C.A.). .

[^13]: Brook v. Brook, 2006 12294 (ON SC), at para. 66, per Quinn J.

[^14]: Kaplanis v. Kaplanis.; Ladisa v. Ladisa (2005), 2005 1627 (ON CA), 11 R.F.L. (6th) 50 (Ont. C.A.).

[^15]: Ladisa v. Ladisa.

[^16]: Warcop v. Warcop (2009), 2009 6423 (ON SC), 66 R.F.L. (6th) 438 (Ont. S.C.), at para. 94, per Gray J.

[^17]: Hildinger v. Carroll (2004), 2004 13456 (ON CA), 2 R.F.L. (6th) 331 (Ont. C.A.); Kaplanis v. Kaplanis; Ladisa v.Ladisa.

[^18]: Kaplanis v. Kaplanis.

[^19]: Hensel v. Hensel (2008), 2007 45911 (ON SC), 46 R.F.L. (6th) 343, at para. 29, per Smith J.

[^20]: Mol v. Mol, 1997 CarswellOnt 3693 (S.C.), per Kruzick J.

[^21]: Ursic v. Ursic (2007), 2006 18349 (ON CA), 32 R.F.L. (6th) 23 (Ont. C.A.), varying 2004 CarswellOnt 8728 (S.C.), per Donnelly J.

[^22]: M. (T.J.) v. M. (P.G.) (2002), 2002 49550 (ON SC), 25 R.F.L. (5th) 78 (Ont. S.C.), per Aston J.

[^23]: Ursic v. Ursic.

[^24]: V.K. v. T. S., 2011 ONSC 4305, [2011] O.J. No. 4046, at para. 81, per Chappel J.

[^25]: Cox v. Stephen (2004), 2003 18571 (ON CA), 47 R.F.L. (5th) 1 (Ont. C.A.), aff’g Cox v. Stephen (2003), 2002 78080 (ON SC), 30 R.F.L. (5th) 54 (Ont. S.C.), per Templeton J.; Andrade v. Kennelly 2007 ONCA 898, 46 R.F.L. (6th) 235, aff’ing (2007), 2006 20845 (ON SC), 33 R.F.L. (6th) 125 (Ont. S.C.), per Harvison Young J.

[^26]: Ursic v. Ursic.

[^27]: Hildinger v. Carroll.; Moyer v. Douglas, 2006 CarswellOnt 8268 (S.C.), per Perell J.; Caufield v. Wong, 2007 ABQB 732; 47 R.F.L. (6th) 144, per Sanderman J.; Ursic v. Ursic.

[^28]: Ryan v. Scott, 2011 ONSC 3277, [2011] O.J. No. 3032, per Maranger J.

[^29]: Moyer v. Douglas; Hajkova v. Romany, 2011 ONSC 2850, 5 R.F.L. (7th) 436, per Hambly J.; Scervino v. Scervino, 2011 ONSC 4246, 4 R.F.L. (7th) 363, per Walters J.

[^30]: Sgroi v. Socci, 2006 11674 (ON SC), per Bryant J.; Gorman v. Gorman, 2009 NBQB 203, 74 R.F.L. (6th) 170 (Fam. Div.), per Baird J.; Hensel v. Hensel.; A.L. v. C.M., 2010 NBQB 46, [2010] N.B.J. No. 34, per Baird J.

[^31]: Attia v. Garanna, 2010 ONSC 1261, [2010] O.J. No. 835, per Richetti J.

[^32]: Perron v. Perron, 2010 ONSC 1482, 91 R.F.L. (6th) 110, per Whitten J., aff’d 2012 ONCA 811, [2012] O.J. No. 5502.

[^33]: Khan v. Kong (2008), 2007 61091 (ON SC), 50 R.F.L. (6th) 31 (Ont. S.C. Fam. Ct.), per Nelson J., aff’d 2009 ONCA 21, 64 R.F.L. (6th) 241.

[^34]: Re Baby Duffeell: Martin v. Duffell, 1950 11 (SCC), [1950] S.C.R. 737; Hepton v. Maat, 1957 18 (SCC), [1957] S.C.R. 606; McNeilly v. Agar, 1957 22 (SCC), [1958] S.C.R. 52.

[^35]: Re Moores and Feldstein et al. 1973 535 (ON CA), [1973], 3 O.R. 921 (C.A.), rev’ng 1973 659 (ON SC), [1973] 2 O.R. 497 (H.C.J.), per Donohue J.

[^36]: Racine v. Woods, 1983 27 (SCC), [1983] 2 S.C.R. 173

[^37]: King v. Low, 1985 59 (SCC), [1985] 1 S.C.R. 87.

[^38]: Frame v. Smith, 1987 74 (SCC), [1987] 2 S.C.R. 99, per LaForest J. (Dickson C.J., Beetz, McIntyre, Lamer and La Forest JJ.).

[^39]: Frame v. Smith, at para. 32.

[^40]: Foster v. Allison (2004), 2003 2369 (ON SC), 44 R.F.L. (5th) 78 (Ont.S.C.J.), per Aston J.

[^41]: Vanderhoek v. Stark, [1999] O.J. No. 4479 (S.C. Fam. Ct.), per Aston J.).

[^42]: Vanderhoek v. Stark, at para. 7.

[^43]: Clapp v. Morin (1991), 1991 8329 (ON SC), 82 D.L.R. (4th) 353 (Ont. Gen. Div.), per Conant J.

[^44]: K.E.J. v. D.L.J., 2002 ABQB 188, 3 Alta. L.R. (4th) 353 (Q.B.), per Burrows J.

[^45]: MacDonald v. Hosking, 2004 48873 (ON SC), per Marshman J.

[^46]: MacDonald v. Hosking, at para. 22.

[^47]: Rai v. Rai, 2012 ONSC 4267, [2012] O.J. No. 3625, per Seppi J.

[^48]: Rai v. Rai, at para. 199

[^49]: Charron v. Vignaux-Fines, 1987 20 (SCC), [1987] 2 S.C.R. 244, at p. 280

[^50]: S.H. v. M.E. (No. 1), 2004 ONCJ 406, [2004] O.J. No. 5727, per Baldock J.

[^51]: S.H. v. M.E. (No. 1), at para. 80.

[^52]: Tipping v. McNutt, 2009 ONCJ 475, 74 R.F.L. (6th) 421, at para. 145, per Zisman J.

[^53]: Tipping v. McNutt, at para. 143-44.

[^54]: Kobow v. Kobow, 2007 ONCJ 514, 46 R.F.L. (6th) 455, at para. 23, per Zisman J..

[^55]: Greber v. Moskowitz, 1982 74 (Ont. Prov Ct. Fam. Div.), per Lalande J.; Tramble v. Hill (1987), 1987 1201 (ON SC), 7 R.F.L. (3d) 85, (Ont. U.F.C.), per Van Duzer J.; Milne v. Milne (1985), 1985 786 (BC CA), 44 R.F.L. (2d) 241 (B.C.C.A.); Wylde v. Wylde, 1984 91 (Ont. Prov. Ct. Fam. Div.), per Fisher J.

[^56]: Lusher v. Lusher (1988), 1988 1433 (ON CJ), 13 R.F.L. (3d) 201, (Ont. Prov Ct., Fam. Div.), per Main J.

[^57]: Salter v. Borden (1991), 1991 12943 (NS FC), 101 N.S.R. (2d) 171 (Fam. Ct.), per Sparks J.

[^58]: Grant v. Turgeon, 2000 22565 (ON SC), at para. 15, per Mackinnon J.; Dyment v. Dyment, 1969 438 (ON CA), [1969] 2 O.R. 748 (C.A.), per Laskin J.A.

[^59]: McEachern v. McEachern (1994), 1994 7379 (ON SC), 5 R.F.L. (4th) 115 (Ont. Gen. Div.), per Sheppard J., cited with approval in K.A.C. v. P.P., 2007 217 (ON CJ) per E.B. Murray J., at para. 48