COURT FILE NO.:001/13

DATE: 2014 April 14

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

S. B.

Applicant

– and –

C. C.

Respondent

John Pietrykowski, for the Applicant

Self-represented

HEARD: March 31, April 1, 2, 3 and 4, 2014 at Napanee

MacLeod-Beliveau, J.

REASONS FOR DECISION

[1] This is a custody and access dispute between two parents who both claim sole custody of their four year old daughter, H. C. (H.) born […], 2009. If the applicant (mother), S. B., obtains an order for sole custody, the court has been asked to decide whether or not the mother will be allowed to relocate with the child to [named city] Alberta and if so, what access should the father have? If the respondent (father), C. C., obtains an order for sole custody, what access should the mother have if she decides to move to Alberta? If the mother obtains an order for sole custody but is prevented from relocating with the child to Alberta, what should the access be? Each party also claims from the other, child support pursuant to the Child Support Guidelines, section 7 extraordinary expenses, and costs.

THE ISSUES:

[2] The issues in this case are as follows:

Custody and Access:

1. What custody order is in the best interests of the child?

2. If the mother obtains an order for sole custody, will the court allow her to relocate to [named city] Alberta with the child?

3. If the mother obtains an order for sole custody, and is allowed to relocate to [named city] Alberta with the child, what order should be made for the father’s access to the child?

4. If the mother obtains an order for sole custody, and is not allowed to relocate to [named city] Alberta with the child, what should the father’s access be?

5. If the father obtains an order for sole custody, what should the mother’s access be: (a) if she remains in Napanee; or (b) she relocates without the child to [named city] Alberta?

Child Support, S. 7 Expenses and Arrears:

6. If the mother obtains an order for sole custody and is allowed to relocate to [named city] Alberta with the child, what order should be made for child support from the father, recognizing any access costs to see his child?

7. If the mother obtains an order for sole custody and is not allowed to relocate to [named city] Alberta with the child, what order should be made for child support from the father?

8. If the father obtains an order for sole custody, what order should be made for child support from the mother: (a) if she remains in Napanee; or (b) she relocates without the child to [named city] Alberta?

9. What amount of child support arrears is owed by the father to the mother for child support for the period December 28, 2012 to November 2013?

10. Costs

[3] The position of the mother is that she is entitled to an award of sole custody of H., access to the father as determined by the court, an order for child support and s. 7 expenses and an order fixing the arrears of child support owing at $2,700.00, payable at the rate of $100.00 per month.

[4] The mother’s position is that the father does not take responsibility for his own life, he disregards court orders and he has failed to provide for the safety and security of H. The father is not suitable as a full-time parent and should not have the care of H. in a community that will offer her little opportunity. The father has a history of criminal convictions for assaults against his domestic partners, often in the presence of children. He has not responded to counselling and has attended the probation program PARS for anger management twice, but he still commits assaults in spite of that counselling.

[5] The mother submits that moving to [named city] Alberta is in the best interests of the child. If she is forced to live in Napanee, the child will be made to live in poverty, be witness to further violence, and lack the opportunities that exist for her in a community where the mother can obtain work to support herself and her children. Further, the mother is most likely to facilitate access as the father has a history of failing to abide by court orders.

[6] The position of the father is that he is entitled to an award of sole custody, as he has been an active part of the child’s life and an involved father. The father submits that there is a strong bond of affection between himself and the child and his extended family. The father’s position is further that it is not in the child’s best interests if the mother were to obtain sole custody, to allow the mother and child to relocate to [named city] Alberta. The father’s position is that the child should continue to reside in Napanee regardless of what custody or access order is made.

RELATIONSHIP AND LITIGATION HISTORY

[7] The mother, born […], 1987, and the father, born […], 1986 are currently 27-years-old. The parties began dating in May of 2008 when they were 21-years-old. On January 24th, 2011, their relationship permanently ended. Throughout their relationship, they actually never resided together, but did spend significant amounts of time together as boyfriend and girlfriend. At the beginning of the relationship, the mother had her own apartment in Napanee and the father lived with his parents. The mother worked part-time and went to school and the father worked in the auto repair industry.

[8] When the parties met, the mother was living with her one and a half year old son, G., in an apartment on John Street in Napanee. G., who is currently 7, was born on […], 2006 as a result of a former relationship in high school. The mother has sole custody of G. and his biological father has no involvement in his life and pays no child support. The mother was forced to interrupt her high school education as a result of her pregnancy. Ultimately, the mother returned and finished her high school education and was later accepted and graduated from Loyalist College in Belleville with a diploma in the Correctional Law program.

[9] The father, at the beginning of their relationship, and currently, works as an automobile technician apprentice for a garage repair shop in Napanee. The father had relatively consistent employment during their relationship. The father continues to work on a full-time basis at a good job earning $16.00 per hour.

[10] After they first met, the mother gave up her apartment and stored her belongings in the father’s parents’ garage. The mother and father then lived with their respective parents in the Napanee area to save money. They broke up in the summer of 2008. They would argue about bills and how badly the father treated the mother. They reconciled in October of 2008 and spent time between their two parents’ homes.

[11] The mother has always been a hard worker and held many part-time jobs in Napanee, but was paid minimum wage for these positions. In order to better her life for herself and her child, the mother was very driven to succeed academically and she wanted to be a correctional officer. She was able to obtain student loans to attend Loyalist College, which she began in September of 2008. In March of 2009, the mother became pregnant with H., the child involved in this case. She left school as she was quite ill as a result of her pregnancy. During that period of time, the relationship between the mother and the father deteriorated. The mother testified that the relationship between them was never great, but it was particularly bad after she became pregnant.

[12] They decided to get their own apartment in March of 2009. That time period has a lot of bad memories for the mother. During that time, the mother’s evidence was that the father acted irresponsibly, and often stayed out late drinking, and was never at the place and location that he said he would be at. She would have to go out and look for him out of fear that he was injured. The father failed to change his ways and continued to drink. When she was pregnant, there was an argument between them and the father threw the mother back on to the freezer in their apartment which G. observed. She did not report this incident to the police. On another occasion, she was so worried that she called the police, and the father got so angry that he tore the bedroom curtains off the wall, ripped the phone cord out of the wall, told her to get out of his face, grabbed her collar and kept cursing and swearing at her. G. witnessed this incident. There were other incidents where the father’s behaviour made the mother fearful. The mother was laid off from her part-time job and had to go on public assistance.

[13] In November of 2009, she moved to Marysville, out in the country. The father spent a lot of time there, but never moved in. A friend of C.’s named B. gave her some furniture to use. On […], 2009, H. was born and the mother stayed home and was the primary caregiver for H. and G. The relationship continued to deteriorate with daily verbal abuse by the father. The father would also often leave the mother without any transportation which frightened her. In May of 2010, the mother decided to go back to school at Loyalist College. The father was working full-time at Woodcock Auto in Napanee.

[14] In July of 2010, the mother decided to move to Selby to be near her mother. The mother completed the balance of her first year between May and the end of August 2010, and then immediately in September 2010, commenced her second year at Loyalist College. The mother graduated with her diploma from Loyalist College in June of 2011.

[15] After the mother returned to school, the father took six months paternity leave, and left his job at Woodcock Auto to care for the child. His evidence was this lasted eight months, but the preponderance of evidence which I prefer is that it was for a six month period. The mother’s evidence was that when she would return home from school, that she would still have to prepare the meals for the family, do the housecleaning, bathe and prepare the children for bed. During that time, the mother testified that the father would not look after the children properly or prepare them proper meals. Ms. L. B., the maternal grandmother, confirmed in her evidence that the house was not looked after by the father and that they would be playing video games, and everyone would be in their underwear when she would drop by.

[16] While in Selby, the father continued to spend a lot of time at the mother’s residence. She paid all her bills for rent, heat, hydro and gas and the father would sometimes pick up groceries, formula and baby wipes. The relationship continued to deteriorate.

[17] During the relationship, there were other acts of physical violence between the mother and the father. The mother’s course at Loyalist College required her to do placements at different locations in order for her to get her diploma. In November of 2010, she left their residence and went outside to get into her car to drive to her placement position. The father was angry that he had been left without a vehicle, and came out and gouged her hand with his fingers and continually hit the mother in the face with his elbow, trying to obtain the keys from her. Her nose was bleeding. This incident was not reported to the police and was seen by G. It resulted in the mother not being able to go to her work placement that day. Her mother Mrs. L. B. showed up and had words with the father. She warned the father to stop the physical contact. He said nothing and walked right past her. Two months later, on January 24, 2011, the mother and father ended their relationship and separated for good.

[18] The mother continued to go to school and the children were in day care. The father was getting his own apartment and he and his friend B. came and took all the furniture that B. had given the mother to use: the bedframe, dresser, and dining room table. She did not have a table to eat at until her father passed away seven months later. The father began seeing the children, both H. and G., on Wednesday afternoons and every other weekend. Even though he was working full-time, the father never paid any child support. At this time, the topic of Alberta came up for the first time. The father said the mother could go to Alberta if she decided to be with him, and she could go to Alberta with the children for a couple of years and then move back to Ontario. He then said they could go to Alberta together, but they never reconciled.

[19] By March of 2011, the father was dating his current girlfriend D. B. D. has a daughter, P., who is close in age to H. D. lived with her parents and the father was again living with his parents. The father and D. have never resided with one another. They still continue to reside with their respective parents. D. is eight months pregnant with the father’s child. They hope to get a house together in the future.

[20] After their separation, there were more incidents of physical violence between the mother and the father. In April or May of 2011, the father called the mother demanding clothing for H., in particular socks, and he would not listen to reason. He came over to the mother’s residence and bashed in her front door causing serious damage. He repeatedly opened and shut the door, hitting the mother with the door. The door trim came off, and the door frame was on the sidewalk. Her step father had to come over and repair the door so that she could close it that night. This time, the mother had had enough of the father’s abusive behaviour and called the police. On June 16, 2011, the father was convicted of assault and mischief, as reflected in his criminal record and was subject to a no contact order by the Children’s Aid Society. After this assault, the father stopped seeing G. He had no access to H. from May of 2011 to June of 2011. He eventually began seeing H. on Wednesdays and every other weekend after the Children’s Aid Society told the mother it was O.K. for him to see her. He started paying child support for H.

[21] By this point in time, the mother was residing with K. S., her current partner, and was eight to ten weeks pregnant. She believes, as a result of the assault, when she was hit by the door being opened and closed repeatedly by the father, that she miscarried the twins that she was carrying. The mother testified that she had known K. since she was 4 years old and that he was incredible with the children. He took wonderful care of them and helped get them on and off the school bus regularly and made meals for them. The mother testified that the children love him.

[22] School ended in April of 2011 and in June of 2011, the mother graduated from Loyalist College. In November of 2011, the mother first indicated her desire to move to the Province of Alberta as K. had been offered work there. By January 14, 2012, Mr. S. had relocated to Alberta, and was employed on a full-time basis at a very remunerable job. The mother had attempted to find full-time work in the Napanee area after her graduation. She testified that she was interested in working in the corrections field, but there was absolutely no work in the Napanee area other than low paying minimum wage jobs.

[23] She had accumulated a significant amount of student debt to obtain her diploma from Loyalist College. The mother owed Canada Revenue Agency Student Loan Repayment Plan the sum of $23,523.18, plus an additional Provincial Student Loan in the amount of $10,000, for a total of $33,523.18. The mother was quite aware that a minimum wage paying position in the Napanee area would be insufficient to support herself, her son G., and her daughter H. let alone reduce her debt. For these basic economic reasons, she wished to move to Alberta where the job opportunities were significantly better, and where she could obtain a wage in the $16.00 to $18.00 range per hour, rather than minimum wage at $10.25 in Ontario. The mother also wished to join her romantic partner Mr. S. in Alberta.

[24] The mother talked to the father about the move at the end of November, or early December 2011. The father was absolutely adamant that H. could not go to Alberta. The mother was then left in a very difficult position of having to decide whether to put the economic well-being of her family first and joining Mr. S. in Alberta or put her caregiving role for H. first. There was never any issue that her son G. would be always be with her. The mother never thought to seek any legal advice and she relied on the father to be reasonable about H.

[25] As a result of the conversation with the mother about her desire to move to Alberta, the father sought legal advice, unbeknownst to the mother. The mother trusted the father at that point in time in relation to their child, and they decided to enter into their own form of written agreement. Prior to doing so, however, the mother had consulted with the Children’s Aid Society about the reasonableness of her moving to Alberta and leaving H. with her father for a short period of time, and was encouraged by the Society to do so. The agreement that the mother and father signed and had witnessed on December 31, 2011 has the following terms:

a. This document serves as a binding agreement between C. C. and S. B. and is in regards to custody, support, and visitation of H. C.

b. As of January 1, 2012, C. C. will obtain temporary custody of H. C., as S. is moving to [named city] Alberta for a duration of approximately two years. Upon returning to Ontario, there will be a 14 day transition period and then H. will return to S.’s care full-time. During the six months, S. will not be responsible for child support payments.

c. Visitation will be as follows, one month in the summer, preferably August, one week in December and two weeks in March and April. S. agrees to return home for H.’s birthday.

d. Should S. return home before the two years stated in the agreement, H. will return to her care after a 14 day transition period. Should the arrangement in this agreement work in favour of both parties for a longer period of time, a new agreement will be made.

[26] Relying on this agreement, the mother eventually left for Alberta on February 29, 2012, a decision that she now clearly very much regrets. At that point in time, the mother felt that H. would be safe in her father’s care. She set up an apartment with K. and G., and made all the appropriate school and daycare arrangements and she went out and got work. She was hired at a good paying job as the Assistant Manager of three group homes for adults with disabilities and she contacted H. regularly by phone. She then got a better paying job at Independent Advocacy at $18.00 an hour and she loved her work. Unfortunately, the mother became very ill in June of 2012 as a result of an ectopic pregnancy. She was off work for 6 weeks and lost her job. K. had to take two months off work to care for her and for G. The mother had little money and fell behind in her financial obligations.

[27] When the mother attempted to enforce her two week visit in March or April of 2012 as provided for in the agreement, which would involve H. coming to Alberta to visit, the father refused. He advised the mother that he had torn up the agreement, and that she would never get custody of her child, and that he would get custody of H. and that H. could not go to Alberta at all. This left the mother in a very difficult position not knowing exactly where she stood legally in relation to H. and she did not ever get a copy of the agreement.

[28] The father cared for H. for approximately eight months. The father was working full-time and required caregivers during the day for H. as well as daycare. Those caregivers were his girlfriend, D. B., and his mother, Mrs. S. J. H.’s behaviour after the mother left for Alberta initially was fine. She did well at daycare. She visited her maternal grandmother, Mrs. L. B., who had no difficulty with H. while in her care. She did, however, exhibit very severe behavioural difficulties while in the care of her father, and particularly, in the care of D. B. The situation had become difficult in that the father and D. could not handle H.’s behaviour, and they sought help on June 20, 2012, by going to the Hotel Dieu Hospital for a referral. H.’s behaviour included self-harm and serious anxiety. She would hit her head on the floor. They were referred to Pathways in July of 2012, which is a counselling service for children in difficulty and had six sessions. The mother was in Napanee at that time and attended the first session. The father and D. were told to enforce a very strict routine with H., which they attempted to put into practice. The evidence is that the child was suffering from separation anxiety from her mother. They also found that H. was coping with a new step-sister, P. and a new step-mother, D. I find that she was, in addition, reacting to the negative treatment she was receiving from D. B. as a caregiver.

[29] The mother began to experience severe difficulties in maintaining contact with H. She was only allowed to call her on the phone at 8:00 pm as otherwise she was told she would “ruin” her day. The mother spoke to her mother L. often to find out what was going on as she would help look after H.

[30] Some serious caregiving issues arose during the time that the father had H. in his care. The father sought to place the child, as I have said, either with his girlfriend D. B. or his mother, Mrs. J. In July of 2012, the mother received a phone call from D. that H. had burned her fingers. She was told that this had happened on a light bulb. The truth was that H. had burned her fourth and fifth fingers on a curling iron, while in the care of D. B. It was a severe burn to two of her fingers which eventually healed. I note that no explanation was given to Dr. M. who treated the burn as to how it happened.

[31] The mother was able to get a ride back to Napanee from [named city] in July of 2012 and she told the father she was coming to see H. The father said he had to be there for the mother to see her. The mother went over to the house at D.’s invitation and when the father arrived and found the mother there, he grabbed H. off the lawn, took her into the house and locked the door. H. was crying in his arms. The mother saw H. the next day and then had her for the next ten days until she flew back to Alberta. She moved into a new house and again got work at $18.00 an hour as an office administrator in Alberta.

[32] In August of 2012, another much more serious burn happened while H. was in the care of D. B. H. was seriously burned on her hip, and was subsequently taken to be cared for by her maternal grandmother, Mrs. L. B. Mrs. B. noticed the burn and also that some of H.’s hair was ripped out in a small circle area of her head. She photographed the burn, which can be seen in exhibit #1, Tab #2. In the three pictures provided, you can see a clear imprint of the wheel type shape of the side of the hairdryer on the child’s hip, which indicates that she had the very hot hairdryer on her skin for a significant period of time to obtain such a serious burn. Ms. Broderick testified that the hairdryer was on the top of a stair and H. “sat on it”. This explanation is not worthy of belief. I do not believe her evidence as to how this burn happened when H. was in her care. The burn appears to have been deliberately inflicted.

[33] On August 16, 2012, the father failed to take H. to an important medical appointment. H. was scheduled to be examined by an ear, nose and throat specialist as she was having a significant number of painful ear infections. The referral from the family doctor, Dr. M., was made on November 11, 2011 and the waiting list was long. The mother later asked the father about the outcome of that appointment. The father lied to the mother and said he took her to the appointment. It was not until the mother checked with the family doctor that the doctor showed her a note from the specialist that H. was a “no show” for the appointment. The mother then had to make all new appointments for H. who eventually required surgery for her tonsils and adenoids.

[34] The father and D. B. were reported to the police on March 3, 2012, July 28, 2012 and September 11, 2012 following verbal domestic disputes. No charges were laid in relation to these three incidents.

[35] In September of 2012, Mrs. L. B. noticed bruising around the eye area of H., which she also took a picture of, which is Ex. #1, Tab #3. The mother became increasingly concerned about the nature of the care that H. was receiving while with her father, his girlfriend D., and the father’s mother. Mrs. L. B. did not report these incidents to anyone as she was afraid that the father would not let her see H.

[36] The mother returned home to Napanee for a Christmas visit on December 24th, 2012. She saw H. on Christmas Day from 11:00 until 2:00 pm which was less time than she was promised. On December 26, 2012, she underwent emergency surgery in Kingston for a second ectopic pregnancy as a result of her relationship with Mr. S.

[37] On December 28, 2012, around 10:00 a.m. while at her mother’s home recovering, the father phoned and asked if she would like to have H. for the New Year’s Eve weekend from Friday until the following Tuesday. The father brought H. over within the hour. D. B. was with him. The mother barely recognized D. B. and was shocked at her appearance. According to the mother, D.’s face and lips were swollen, she had four teeth missing, and ‘her face was a mess’.

[38] D. told her that she had fallen down the stairs. When bending down, the mother looked at the father’s knuckles and noticed that they were swollen. She mouthed silently to D., “Are you alright?” and D. shook her head “No”. H. was fixated on D.’s mouth and the fact that she had no teeth. The father was later arrested for assault causing bodily harm. He was released on bail and then called the mother on December 29, 2013 and threatened to take H. back.

[39] This very significant and serious incident affected not only the parties in this case, but the child H. As a result of the events that took place that day, the father eventually pled guilty to the charge of assault causing bodily harm, and received a 12 month probationary sentence. There was much dispute in the evidence as to what took place that day. The allegation is that the father and D. B. got into a major argument as to how they were going to deal with the mother being back in Napanee, and the disruption that this would likely cause to H.’s routine. The disagreement escalated and became physically violent, and the allegation is that the father punched D. in the face several times and cracked or broke a number of her front teeth. It is clear that the children, H. and G. were present as well as D.’s daughter P. They were in their bedrooms when this took place, and because of the disruption, came out to see what was going on.

[40] There were several stories given by D. and the father about the facts of this incident. When the police arrived, they noticed severe swelling around Miss B.’s face and red marks on her neck. She told them that she had fallen down the stairs. She was also very uncooperative, and refused to give a statement to the police. She refused to allow the police to photograph her face. She initially lied to the police when they came to her door and told them that the father was not there. When the police advised her they would be seeking a warrant and would remain there until they obtained the warrant to search her premises, she let them in and the father was there. The father states that he was not there when any of these incidents happened as he had already left for work. He stated he received a phone call to return home because Ms. B. had fallen down the stairs.

[41] The father was cross-examined extensively about what happened, not only in relation to the incident itself, but also as to what happened in the Ontario Court of Justice before Mr. Justice Griffin. The father testified before this court that he pled guilty to this offence, ultimately in March of 2013, because he had not seen his child or his girlfriend for 51 days. I find this explanation not worthy of belief as the temporary order of Justice Minnema on February 19, 2013 granted him supervised access. The father either lied to Mr. Justice Griffin about what happened, or he is lying to this Court about what happened. In cross-examination, the father testified that he lied to Justice Griffin but that at this trial, he was “not lying now”. Based upon the evidence before me including the detailed police notes produced and the cross-examination on those notes, I find both the father and Ms. B. to be completely untruthful and unreliable about what happened in this assault in an effort to present a false image to this Court that the father is not physically violent. This was the third assault on one of the father’s domestic partners, each one more serious than the last. There is no issue that the father assaulted Ms. B. causing her bodily harm for which he was arrested by the police and ultimately convicted by the court.

[42] After his arrest on December 29, 2012, the Children’s Aid Society placed H. in the sole care of the mother where she has remained ever since. H., then 37 months old, was not toilet trained while in the father’s care which is unusual for a child of that age. The mother had H. fully toilet trained in two weeks.

[43] The mother did not trust that the child was safe in the father’s care as she learned more about the details of H.’s injuries. On January 7, 2013, H. was interviewed by the police, in particular, Officer Tracy Brown, as to the nature of her physical injuries that she experienced while in the father’s care, namely the hairdryer burn, the bruise to her face, her burned fingers, and missing hair. Due to the passage of time, the mother understood that the prospect of a conviction was unlikely and that H. was too young to testify. H. was also interviewed by the Children’s Aid Society.

[44] On January 14, 2013, the mother brought an emergency motion before this Court, and obtained an order for temporary sole custody of the child, with access to the father being at the discretion of the Children’s Aid Society. The society wanted H. to have no contact with the father as they believe her to have witnessed the assault on D. by the father. The custody order was made in favour of the mother without prejudice to the father to argue the issue of temporary custody on the merits at a later date. That motion was heard by Mr. Justice Minnema on February 19, 2013. Justice Minnema granted the mother primary care of the child, and provided supervised access to the father every Wednesday from 2:00 p.m. until 4:00 p.m. and weekend access, which ultimately became from Saturday at 10:00 a.m. to Sunday at 6:00 p.m. The supervisor was the father’s mother, Mrs. S. J. and all access exchanges were only to be between the mother and Mrs. J.

[45] The parties, by agreement in writing, have agreed pending this trial that as of January 4, 2014, the father’s access would become unsupervised based on the recommendations made in the Children’s Lawyer’s investigator’s report, and that the father pay the amount of $303 per month in child support, based on his annual income of $35,000. The current period of time therefore that he has paid support is from November of 2013 until April of 2014, and the father is current in his payments. I also note that the parties, by agreement, had changed the time for the visits on Wednesday from 4:00 until 6:00 p.m.

[46] The mother continued to have concerns about H. as the problems concerning H.’s care while with the father and his chosen caregivers persisted. Mrs. J. was picking up H. using an improper car seat and the mother contacted the Children’s Aid Society to require Mrs. J. to use an appropriate seat for H.’s height and weight. On another occasion, Mrs. J. came to pick up H. and the mother was sure that she was under the influence. Mrs. J. was stumbling and was side stepping and her eyes were ‘really red’. Her husband P. J. was driving. The mother called the Children’s Aid Society to report that she thought Mrs. J. was impaired by drugs and that she had care of her child during the father’s access. Nothing happened.

[47] On another occasion, the mother dropped off H. early as she had to attend a medical appointment with her son G. Mrs. J. had always asked her into the kitchen, but not this time. The mother noticed from the doorway that the entire kitchen smelled heavily of marihuana. Again the mother called the Children’s Aid Society out of concern for the care of her child. The mother insisted that H. be tested for exposure to illicit drugs. The Children’s Aid Society finally agreed. On May 29, 2013, a hair sample was collected from H. and sent in for testing for cocaine, marijuana, opiates, amphetamine and oxycodone. The sample collected was sent to Motherisk Labs and covered the period mid-February 2013 to mid-May 2013.

[48] H., at 3½ years of age, had tested positive for marijuana. This is interpreted in the test result dated June 25, 2013, Ex #1, Tab #6, that H. had been exposed “repeatedly/routinely to marijuana environmentally, bud did not ingest/use the substance directly.” “H. was exposed to marijuana in her environment on a daily-to-weekly basis consistently for the duration of the three month sample collected.” The concern is that the person looking after H. in that environment may be “inhibited from performing caregiver responsibilities presenting risk to the child due to inappropriate supervision”.

[49] The father and D. B. denied use of illicit drugs or marijuana to the Children’s Aid Society and the Children’s Aid Society was not able to verify that they were responsible. The Children’s Aid Society issued a warning to everyone including the mother. The mother had her entire family tested for drugs: Mr. S., her mother, her step-father and herself. All of those results were negative. The father, Ms. B., S. J. and P. J. did not get themselves tested. The overall inference that I draw from all of this evidence is the child H. was continually exposed to marijuana at these levels while in the father’s care or in the care of others that he entrusted with the child’s care, namely Ms. B. and Mrs. J.

[50] In March of 2013, when H. was returned to the mother from the care of the father by Mrs. J., the mother noticed the filthy nature of H.’s underpants. The two photographs at Ex. #1, Tab #4 show a significant fecal discharge in the area of H.’s anus that rubbed off on her underwear. The mother testified that H.’s buttocks were red and raised up and raw. The mother treated H. for her skin rash.

[51] The mother testified that the father breached Justice Minnema’s order numerous times and was doing the exchanges of the child himself in direct contravention of the court order. The mother also testified that in August of 2013, the father failed to show up for an access visit.

[52] K. S. returned to Napanee in February or March of 2013. He worked, but could not find any sustainable employment. K. left again to work in Alberta in January of 2014 and went back to [named city]. The mother wants to return to [named city] as well to start work and form a family unit with K., herself, G. and H.

ANALYSIS

Custody and Access

[53] Section 24 of the Children’s Law Reform Act governs what the Court shall consider in an award of custody or access. Section 24 reads as follows:

24. 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).

(2) BEST INTERESTS OF CHILD - 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.

(3) PAST CONDUCT - 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.

(4) VIOLENCE AND ABUSE - 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.

(5) SAME - For the purposes of subsection (4), anything done in self-defence or to protect another person shall not be considered violence or abuse.

[54] The mother submits that she is and has been the child’s primary caregiver, and that the father has exposed the child to acts of violence, failed to provide appropriate medical care, and failed to ensure her safety while in his care or the care of others with whom he has placed the child. The mother submits that the father’s current girlfriend has demonstrated that she is not fit to care for the child and that the child’s paternal grandmother has exposed the child to illicit drugs, namely marijuana. Based on the totality of the evidence at this trial, I agree that these submissions are supported by the evidence.

[55] The first issue that the Court must determine is what custody order is in the best interests of H. The Children’s Lawyer’s investigator report, which is before the Court as Ex #4, details information about the child’s relationship with both parents and was completed by a qualified social worker. The investigator confirmed in her evidence that damage is caused to children due to serious parental conflict and that their brains can be affected by the stress response of experiencing and seeing violence. She deferred to the Children’s Aid Society on the issues of actual past physical harm that was done to the child. She recommended that H. remain in the primary care of the mother and have unsupervised access to her father on Wednesday afternoons and every second weekend. In addition she recommended the father have H. for two consecutive weeks in the summer, and for the parents to share Christmas holidays. She made numerous other ancillary recommendations as set out in the Recommendations section of her report including the recommendation that both parents were to make major medical decisions jointly.

[56] The Children’s Lawyer investigator was asked to assess the parties as if they were all remaining in the Napanee area, and she specifically declined to opine on whether or not H. should be allowed to relocate to Alberta. The relocation issue is a legal issue. The Children’s Lawyer’s report was never designed to investigate or consider the scenario where the child would be located in Alberta and the father would remain in Napanee. The evidentiary weight I give to the investigator’s report is therefore very little, but it does confirm that H. should remain in the primary care of her mother. There is no issue on the evidence before me that the child is more closely bonded to her mother and has a meaningful relationship with her mother and extended family. The child as well has a meaningful relationship with the father and some of his extended family.

[57] The investigator noted that H. reacted very poorly to the separation from her mother and in my view she cannot be separated from her mother again without causing her irreparable harm. The father and the mother have very poor communication skills and at this point, distrust one another. There have been a number of reports to child protection authorities and to the police about this family. After hearing the evidence in this case, I find the mother had good reason to make her reports to the child protection and police authorities.

[58] The mother’s concerns are real, appropriate and still continue to exist today. She has done everything I would have expected her to do to demonstrate that her household, her care, and her family members are not the problem. I cannot fault her for the calls she made. She was acting as a concerned and caring parent. Regrettably, many of her concerns were not followed up. The father takes this to mean that nothing is wrong with his care of the child as the complaints about him, D. and his family were “never substantiated” by the Children’s Aid Society or police. At this trial, several of the mother’s concerns were in fact substantiated and established on a balance of probabilities by the evidence.

[59] I find that the record of physical violence and the record of physical and emotional injury to H. in this case are highly significant. The father has now been convicted on three occasions of criminal activity with his domestic partners. The violence has escalated as follows: from threatening, possessing a prohibited firearm x 2 counts, and criminal harassment where he received a sentence on in 2007 of 12 months of probation and a 5 year weapons prohibition; to Assault and Mischief, for which he received a sentence in 2011 of 12 months of probation; and to assault causing bodily harm, for which he received a sentence in 2012 of 1 year of probation and a 5 year weapons prohibition. In addition, he has a conviction in 2012 for driving with a hand held wireless device and a fine of $155.00 under the Highway Traffic Act. This escalation in violence towards his domestic partners is of concern to the court as it continues to escalate in spite of the father completing 2 probation and parole PARS programs for anger management and anger control. The evidence supports the finding that H. witnessed some or all of the serious assault by her father on Ms. B.

[60] There is a substantiated history of harm being done to H. while in D. B.’s care. I do not accept D. B.’s explanations, which have been different for the same event, as to how these injuries happened. H. had serious burns to her hip, two burned fingers, a bruise to her face, and her hair pulled out, all while in the care of Ms. B. Ms. B. is now eight months pregnant with the father’s child. She was unable to care for H. as well as her own daughter P. without causing injury to H. The risk of harm and lack of proper care for H. is likely to increase after the birth of Ms. B.’s child. I cannot find that Ms. B. is an appropriate caregiver or an appropriate supervisor for H. such that H.’s safety can be assured.

[61] There is a substantiated history of harm being done to the child in Mrs. S. J.’s care. I do not accept the explanations which have been varied, as to how H., as a 3½ year old child, tested positive for environmental marijuana. Ms. B. and the father each testified that they did not know how the child was exposed to marijuana. Specifically, the father testified that “I do not know where the marijuana came from”. He testified in cross-examination that the ‘allegation’ was that his parents, Mr. and Mrs. J., were under the influence of marijuana.

[62] I accept the evidence of the mother that she saw Mrs. J. under the influence and that her kitchen smelled of marijuana. I am satisfied that H.’s exposure to marijuana happened at Mrs. J.’s residence while H. was in her care. This also happened when Mrs. J. was a supervisor of the father’s access as ordered by Justice Minnema to ensure the child’s safety and is a breach of her duties as a supervisor. I cannot find that Mrs. S. J. is an appropriate caregiver or an appropriate supervisor for H. such that H.’s safety can be assured. The level of illicit marijuana use would have to be staggering for H. to have a positive test result. This demonstrates a wanton disregard for not only the law but the health and safety of the child. Mrs. J. also returned H. to her mother’s care in a filthy state. Her hygiene and personal care needs were completely ignored when she was returned from a visit with filthy underwear.

[63] The mother has amply demonstrated that she cares best for the child’s needs and requirements. She ensures the child’s physical needs are met and that she gets proper and appropriate medical care. She is very loving and emotionally bonded with H. and H. is closest to her mother. I have no concerns that the mother would ever harm H. or leave her with anyone that has the potential of causing H. harm.

[64] H.’s past history demonstrates how closely bonded she is with her mother. When her mother made the difficult decision to relocate to Alberta in February of 2012 for what she thought would be the advancement of her entire family, H.’s behaviour deteriorated. The mother has demonstrated and established that she is the primary caregiver of H., that she is a fully competent parent, and that she provides for the best interests of H.

[65] The father has not demonstrated that he provides for the best interests of H. While the father may be well intentioned and there is no issue that he loves his daughter, his parenting abilities lack basic essential elements. The father does not fully appreciate what is required to ensure the safety and well-being of a child in his care, either physically or emotionally. The father does not take responsibility for his own actions. He does not put the best interests of H. first.

[66] The father minimized his past acts of violence, his criminal record of violence with his domestic partners and his violence in front of H. He was questioned about essential facts in this case that he could neither explain nor overcome. I find that his answers to the difficult questions of the marijuana use within his family, and the serious assault causing bodily harm on Ms. Brodrick witnessed in part by H., to be untruthful and not worthy of belief.

[67] The father has failed to ensure proper and adequate medical care for the child. The father failed to attend to H.’s basic and necessary medical care by failing to show up for an important ear, nose and throat specialist appointment which included hearing testing. H. has a severe speech impediment, and one of the factors the doctors wanted to rule out was her hearing, and why she had a number of ear and throat infections on a regular basis.

[68] The father lied to the mother about taking H. to this appointment, and advised her that he had in fact taken her. It took nine months to get that specialist appointment. Much later and after the fact, the mother’s family doctor, Dr. M. confirmed in writing that the father was a “no show” for this appointment. The mother then took the child for a full assessment and ultimately for surgery on her tonsils and adenoids, which were determined to be the source of the problem.

[69] The father has also left H. with caregivers that do not keep her safe. I find Ms. D. B.’s evidence to be untruthful and not worthy of belief. I am concerned that so many incidents of harm happened to this child during such a short period of time when H. was either in the father’s care, Ms. B.’s care or the care of the paternal grandmother, Mrs. S. J. I find that that the child is unsafe in their care.

[70] H., a 3½ year old toddler, tested positive for environmental marijuana exposure during the time the father had care of H. These results were interpreted by a professional at the lab, and indicated H. had been exposed to marijuana in her environment on a daily to weekly basis consistently for the duration of the three month sample collected. H. would have to be in close proximity to marijuana use for the hair sample to detect these high levels of marijuana, and the levels reflect that her caregiver may have been inhibited from performing caregiving responsibilities, and presenting risk to the child due to inappropriate supervision.

[71] The father and Miss B. denied any marijuana use. I draw a negative inference against the father, due to the fact that Mrs. J. did not testify at this trial. She would have been an important witness for the father in the circumstances as she was a caregiver for the child, but she would have been cross-examined on the issue of marijuana use in her home and the positive test result for H. The mother testified that she smelled a strong smell of marijuana when attending at Mrs. J.’s home, and on one access exchange, she felt that Mrs. J. was impaired from the use of marijuana. I accept the evidence of the mother as being credible and reliable.

[72] The mother, her partner Mr. K. S., Mrs. L. B., and her husband, all voluntarily got tested for illicit drug use and all of their reports were negative. I therefore draw the inference that the significant and overwhelming exposure to marijuana was at Mrs. J.’s home while she had care of the child. As Ms. B. has a criminal conviction for possession of marijuana, she is also a potential source of the drug, but there is no direct evidence that she used marijuana in the presence of the child. She also has a criminal conviction for public mischief and obstruction of justice.

[73] The father, in his pleadings, failed to disclose the full extent of his criminal record and he did not provide a CPIC check. Neither did Ms. B. or Mrs. J. The mother’s counsel had to obtain and order for the police to provide the court with the details of the father’s criminal record. The mother and Mr. S. provided not only a CPIC check, but a Vulnerable Sector Record which showed no criminal history whatsoever for either of them.

[74] The mother made a number of complaints to the Children’s Aid Society about the care of H. when with the father. It was at the mother’s insistence that H. was tested for exposure to illicit drugs. The mother’s complaints and concerns were well founded. The mother did everything she could to bring the lack of care and lack of safety of her child to the attention of the authorities, about which nothing much was done.

[75] The mother is more willing to facilitate access with the father and to ensure and assess the child’s safety. She is better able to provide the child with the necessaries of life and the child’s special needs than the father. The mother has cared for H. in an exemplary fashion. I find the mother’s evidence to be a credible and reliable.

[76] This trial may be the first time that someone has looked at all the surrounding circumstances of H.’s life and what would be in her best interests. The preponderance of evidence before me amply satisfies me that H. has and will continue to be at risk of harm, including physical, psychological and emotional, in her father’s care, and in the care of the caregivers that he entrusts with H.’s care on a regular basis. The evidence amply satisfies me that the mother will provide a stable, safe, supportive and loving home for H. and ensure that she maintains contact with both sides of her extended family. The mother is the primary caregiver of the child and is her true psychological parent.

[77] I have carefully considered all of the factors in section 24 of the Children’s Law Reform Act in coming to this decision. It is in the best interests of H. that the mother be granted an order for sole custody.

Relocation to [named city] Alberta

[78] The next issue the Court must determine is whether or not the mother will be allowed to relocate to Alberta with the H. The leading mobility case is from the Supreme Court of Canada in Gordon v. Goertz, [1996] 2 S.C.R. 27, pages 60-61. In that case, the Court outlined several factors which the Court must consider before allowing the child to relocate. The law can be summarized as follows:

1. The parent applying for a change in the custody or access order must meet the threshold requirement of demonstrating a material change in the circumstances affecting the child.

2. If the threshold is met, the Judge on the application must embark on a fresh inquiry into what is in the best interests of the child, having regard to all the relevant circumstances relating to the child's needs and the ability of the respective parents to satisfy them.

3. This inquiry is based on the findings of the Judge who made the previous order and evidence of the new circumstances.

4. The inquiry does not begin with a legal presumption in favour of the custodial parent, although the custodial parent's views are entitled to great respect.

5. Each case turns on its own unique circumstances. The only issue is the best interest of the child in the particular circumstances of the case.

6. The focus is on the best interests of the child, not the interests and rights of the parents.

7. More particularly the Judge should consider, inter alia:

(a) the existing custody arrangement and relationship between the child and the custodial parent;

(b) the existing access arrangement and the relationship between the child and the access parent;

(c) the desirability of maximizing contact between the child and both parents;

(d) the views of the child;

(e) the custodial parent's reason for moving, only in the exceptional case where it is relevant to that parent's ability to meet the needs of the child;

(f) disruption to the child of a change in custody;

(g) disruption to the child consequent on removal from family, schools, and the community he or she has come to know

[79] I incorporate my earlier reasons for granting the mother an order of sole custody of H. into what is in the best interests of H. on the relocation issue. My focus on this issue is on what is in the best interests of H., not the interests and rights of her parents.

[80] The mother is H.’s primary caregiver and her sole custodial parent. H. deserves the opportunity to live in a happy family environment with her mother. The attachment that H. has to her mother is exceedingly strong and is even more so now that she has gone through an eight month period of care with her father that was fraught with difficulties including physical violence and then returned to her mother. The mother knows that she cannot rely on the father to keep H. safe and she will never leave H. in his primary care again. It is critically important that H. not be separated from her mother for any significant period of time.

[81] The mother is in a stable and loving relationship with K. S., and their relationship has been tested by these legal proceedings and by their forced separation for economic reasons. They want to form a family unit together in Alberta where Mr. S. has work. The mother seeks permission to relocate to join her partner in [named city] Alberta.

[82] While she recently lost a job opportunity in [named city] because of the delay in the trial of this case, I have no hesitation in finding that the mother will quickly obtain remunerative employment in [named city]at a significantly higher wage than she would receive if she stayed in Napanee. The mother’s work ethic is impressive. She is a hard and dedicated worker. She sincerely does want to better her life and that of her children and begin a career. The economic reality is that the mother is able to get remunerative employment in Alberta and begin that career, something she is unable to do in Napanee. This is a positive factor for the mother and important for the mother’s self-esteem.

[83] It is also critically important to H. that she see her mother happy and thriving. It is in H.’s best interests to be given the opportunity to live in a happy home environment, free from physical and emotional violence, where she can thrive.

[84] H. is entitled to the opportunity to form a life-long attachment to her sibling and half-brother G. A sibling relationship is one of the longest relationships she will have and that relationship should be encouraged. H. deserves the opportunity to be part of a happy, stable and secure family unit. That family unit includes her mother’s partner K. S. as well. The mother’s evidence is that H. loves K. and misses him. K. has been in H.’s life as a live-in partner of her mother since 2011, except when he was working in Alberta. The mother has as well extended family from her father’s side that reside in Alberta.

[85] I am satisfied that because of her strong bond with H., and the fact that the mother is the primary, psychological parent of H., that it would not be in H.’s best interest to be separated from her mother for any significant period of time. Taking into consideration all of the factors outlined in Gordon v. Goertz, and the totality of the evidence in this case, I find the preponderance of evidence favours H. relocating with her mother to Alberta. I find it is in H.’s best interests to relocate to Alberta.

[86] I appreciate that this will have a significant impact on the father’s contact with H. I am satisfied the mother will ensure that H. maintains a healthy and meaningful relationship with her father and his extended family. I am satisfied that the mother will facilitate that contact provided always that the mother is assured that the child is safe during that contact.

[87] There will be an order made that the mother is allowed to immediately relocate with the child H. to Alberta.

The Father’s Access

[88] The goal of any access regime is to maximize the time spent with the other parent provided the safety and well-being of the child is ensured. The limiting factor in this case is that I have serious and genuine concerns about the child’s safety while in the father’s care and in the care of Ms. B. and Mrs. J. for reasons as stated earlier in this decision.

[89] While I agree with the Children’s Lawyer’s investigator that the child should remain in the primary care of her mother, I specifically reject the balance of the recommendations made as not being in the child’s best interests. In particular, I decline to order that the father’s access be unsupervised. Having had the benefit of all of the evidence at this trial, I find it is unsafe for the child to have unsupervised access.

[90] I will require that the father’s access be supervised to ensure the child’s safety and well-being. The supervisors shall not include Ms. D. B. or Mrs. S. J. The supervisors must be approved of by the mother. As it is not in the child’s best interests to be away from her mother for long periods of time, a schedule that leaves the child with the father for most of the summer holidays and half of the Christmas holidays is not appropriate. This case is not one of those cases where extended time over holiday periods will benefit the child. In this case, I find it will cause her harm.

[91] The mother has demonstrated that she ensures that H.’s best interests are met and that she is safe. The mother’s ability to provide visits in Ontario will depend on her work schedule, the vacation time she has available, the financial resources of the mother and the father, the ability to obtain appropriate supervisors for the access in Ontario and other important considerations in the life of the child.

[92] The father shall have supervised access for a minimum of one week (seven days) per calendar year commencing with the year 2014. The parties shall attempt to agree upon the dates for the visit but failing agreement the mother shall decide the dates of the visit. The supervisors shall not include Ms. D. B. or Mrs. S. J. The supervisors must be approved of by the mother. During periods of the father’s supervised access, the child shall not be exposed to any illicit drugs, including marijuana.

[93] Any additional periods of supervised access to the father shall be at the mother’s sole discretion and as she deems advisable and in the best interests of H. The father shall pay to the mother 30 days in advance, the cost of airfare for H. for any visits to Ontario for access. The mother, or her designate accompanying H., shall pay her own airfare.

[94] The father shall have electronic access to H. by telephone, Skype, e-mail, computer or any other electronic means available to the parties, a minimum of three times per week at his expense. Any additional electronic access of the father shall be at the mother’s sole discretion and as she deems advisable and in the best interests of the H.

[95] The father shall have the right to mail letters, parcels and other items to H. as he deems fit.

[96] The mother shall advise the father of all important aspects of H.’s health and education.

Child Support and Extra-ordinary Expenses

[97] The mother has abandoned her claim for any child support for G. I would not have found the father to be in loco parentis to the child G. at this point in time in any event.

[98] The father’s current child support of $303.00 per month for H. is being paid on the basis of an estimated income of $35,000 per annum. The father did not file an updated financial statement in this matter. His financial statement sworn February 7, 2013 confirms his 2009 line 150 income of $19,665.00; his 2010 line 150 income of $16,174.00; his 2011 line 150 income of $24,516.00. I estimate his 2012 at $26,000.00 and his 2013 income at $21,000.00. The father himself estimated his 2013 income at $25,000.00. His current employment pays him $16.00 per hour for a 40 hour week or $33,280.00 per annum.

[99] In the absence of income tax information from Canada Revenue Agency, I fix his income for support purposes at $30,000.00 for 2013 which equates to a monthly child support payment of $245.00 per month for one child according to the Child Support Guidelines.

[100] The father will have certain access costs and he is entitled to a percentage reduction in his monthly child support payments to reflect this fact. He will have the cost of electronic access as well as airfare for the child. Commencing May 1, 2014 and the 1st of each month thereafter, the father shall be entitled to deduct each month 40 % of the table child support amount as set out in the Child Support Guidelines as reflecting his access costs. Based upon the father’s annual income of $30,000.00, his child support payment is $245.00 per month less 40 % for his access costs of $98.00 per month for a net child support monthly payment of $147.00 per month. In future years, his child support payment shall be based on his line 150 income from his income tax return, less 40% for his access costs.

[101] While there are no extra-ordinary expenses at the present time, there will be expenses for daycare, school trips, and other like expenses in the future. The mother and the father shall share those expenses in proportion to their respective line 150 incomes and reimburse the owed parent every four months.

Arrears of Child Support

[102] The mother claims retroactive child support from December 28, 2012 until November of 2013. The parties had various support arrangements in the past and during the time period in question, the matter was before the courts. A temporary order for child support could have been requested. In all the circumstances of this case, I will not order any arrears of child support to be paid by the father. Similarly as the child support payment has now been reduced, I will not order any re-imbursement of over payment of support to be paid by the mother. The new child support payment shall commence May 1, 2014.

COSTS

[103] If the parties are unable to agree on the issue of costs by April 30, 2014, I will receive brief written submissions from the Applicant mother on or before May 16, 2014, and from the Respondent father on or before May 30, 2014. The applicant mother may reply on or before June 10, 2014, after which time, I will determine the issue of costs based upon the material filed.

FINAL ORDER MADE

[1] The Applicant mother, S. B. shall have sole custody of the child H. C., born […], 2009.

[2] The Applicant mother, S. B. is allowed by this Court to immediately relocate and reside in the Province of Alberta with the child H. C., born […], 2009.

[3] The Respondent father, C. C., who is resident in the Province of Ontario, shall have access to the child H. C., born […], 2009 as follows:

[4] The father shall have supervised access for a minimum of one week (seven days) per calendar year commencing with the year 2014. The supervisors shall not include Ms. D. B. or Mrs. S. J. The supervisors must be approved of by the mother. The parties shall attempt to agree upon the dates of the visit but failing agreement, the mother shall decide the dates of the visit.

[5] Any additional periods of supervised access to the father shall be in the mother’s sole discretion and as she deems advisable and in the best interests of H.

[6] During periods of the father’s supervised access, the child shall not be exposed to any illicit drugs, including marijuana.

[7] The father shall pay to the mother 30 days in advance, the cost of airfare for H. for any visits to Ontario for access. The mother, or her designate accompanying H., shall pay her own airfare.

[8] The father shall have electronic access to H. by telephone, Skype, e-mail, computer or any other electronic means available to the parties, a minimum of three times per week at his expense.

[9] Any additional electronic access of the father shall be in the mother’s sole discretion and as she deems advisable and in the best interests of the H.

[10] The father shall have the right to mail letters, parcels and other items to H. as he deems fit.

[11] The mother shall advise the father of all important aspects of H.’s health and education.

[12] Commencing May 1, 2014 and the 1st of each month thereafter, the father shall pay to the mother child support of $245.00 per month less 40% of that amount being $98.00 per month for his access costs for a net amount of $147.00 per month in accordance with the Child Support Guidelines based upon the father’s annual income of $30,000.00.

[13] In future years, the father shall pay monthly child support based on his line 150 income from his income tax return, less 40% for his access costs. If the father does not have access costs, the 40% reduction shall cease.

[14] The mother and the father shall share section 7 extraordinary expenses in proportion to their respective line 150 incomes from their income tax returns and reimburse one another every four months.

[15] There are no arrears of support owing. There are no overpayments of child support that have been made.

[16] If the parties are unable to agree on the issue of costs by April 30, 2014, I will receive brief written submissions from the Applicant mother on or before May 16, 2014, and from the Respondent father on or before May 30, 2014. The applicant mother may reply on or before June 10, 2014, after which time, I will determine the issue of costs based upon the material filed.

[17] The temporary order of Justice Minnema made on February 19, 2013, as varied by the agreement of the parties, is set aside.

[18] Approval of this order by the father is dispensed with. The order shall be signed by MacLeod-Beliveau, J.

The Honourable Madam Justice Helen MacLeod-Beliveau

Released: April 14, 2014