Court File and Parties
COURT FILE NO.: FC-11-0612-00 DATE: 20140923
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
PAUL EDWARD KENNEDY Applicant
– and –
PHILIPPA KAY CHRISTIAN Respondent
COUNSEL: J. Powers, for the Applicant P. Mahdi, for the Respondent
HEARD: June 2, 3, 4, and 6, 2014
REASONS FOR DECISION
F. GRAHAM J.:
Introduction and Issues
[1] David is a nine year old boy who enjoys sports and is doing well in school. The parties are his parents. The parties married in May of 2004 and separated in May of 2009. Prior to trial, the parties were able to resolve their financial issues, leaving some issues involving David to be determined at trial.
[2] During the trial, each party testified that the other party is a good parent to David. The parties agreed to a joint custody regime and also agreed that David’s parental time sharing schedule during the school year should generally conform to his father’s shift work schedule.
[3] Since separation, until the end of the trial, David has generally been in the care of Mr. Kennedy on the days that Mr. Kennedy was not working and in the care of Ms. Christian the rest of the time, subject to some exceptions during school holidays. Mr. Kennedy currently works three shifts as follows: seven day shifts (6 a.m. to 4 p.m. or 7 a.m. to 5 p.m.), five days off, seven evening shifts (1 p.m. to 10 p.m.), five days off, seven night shifts (9 p.m. to 5 a.m.), and then four days off. The effect of that schedule is that David has been in his father’s care about forty percent of the time, including about forty percent of weekends, and he has been in his mother’s care about sixty percent of the time, including about sixty percent of weekends.
[4] A trial was necessary, despite the assistance of judicial conferences and mediation, because the parties were unable to reach a parental time sharing arrangement for David during school holidays, including the summer.
[5] They also were unable to resolve some issues about David’s extracurricular activities.
Summer Schedule
Positions of the Parties
[6] Mr. Kennedy’s initial position was that David’s summer care schedule should follow Mr. Kennedy’s work schedule except that each parent could choose, in advance, up to two weeks to have care of David during the summer. Mr. Kennedy proposed that the order of choosing those weeks should alternate between the parties each year. His employer requires employees, in order of seniority, to select their vacation weeks by November for the following year. As a result, each November, Mr. Kennedy must choose from a limited selection of summer vacation weeks. Mr. Kennedy’s proposal was a continuation of the status quo since separation. By November of 2013, for example, Mr. Kennedy and Ms. Christian had both chosen vacation weeks (one week and two weeks, respectively) for the summer of 2014. Mr. Kennedy chose a second summer vacation week in early May of 2014 when a work colleague left Mr. Kennedy’s shift and the colleague’s summer vacation week became available. Mr. Kennedy maintained that his proposed four week summer modification to the parties’ school year parenting schedule would maximize David’s time with each parent in the summer.
[7] Ms. Christian’s initial position was that parental care for David should follow the same “week about” schedule during the summer that governs her fourteen year old daughter, Kayla, as arranged with Kayla’s father (not Mr. Kennedy), including an agreement that access on long weekends include holiday Mondays. Ms. Christian maintained that this schedule would maximize David’s time with Kayla in the summer to make up for the fact that David and Kayla are both together with their mother only about one weekend per month during the rest of the year. Ms. Christian also submitted that a “week about” schedule would be less confusing for David.
[8] One result of Mr. Kennedy’s initial proposal and his selection of holiday time was that for the summer of 2014, David would be in his father’s care from the morning of July 10th until the evening of July 25th – a period of more than fifteen consecutive days. After this effect was underlined by Ms. Christian’s counsel, Mr. Kennedy altered his position by stipulating that David could be with Ms. Christian for the weekend of July 18th to 20th, 2014 in order to reduce the period of time that David would not see his mother.
[9] One result of Ms. Christian’s initial proposal was that David would be with his mother during both of Mr. Kennedy’s chosen summer vacation weeks and, in addition, David would be with his mother from August 24th to September 5th, 2014 – a period of twelve days. Another effect would be that David would be in his father’s care while his father was working night shift.
[10] Ms. Christian’s comment about the first effect was that Mr. Kennedy had chosen his weeks in order to maximize his own vacation time whereas she had selected her weeks in order to maximize David’s time with Kayla which she considered to be more important. With respect to the second effect, she suggested that Mr. Kennedy could have dinner with David sometime during the twelve day stretch. With respect to the third effect, she suggested that David could spend time with his paternal grandparents while Mr. Kennedy was sleeping or, in the alternative, Ms. Christian would be available to care for David during Mr. Kennedy’s parental time.
Analysis
[11] Section 16 (10) of the Divorce Act sets out the principle that a child should have as much contact with each parent as is consistent with the best interests of the child.
[12] In this case, given that it is common ground that both parents are good parents for David, and given that their residences are only fifteen minutes apart by motor vehicle, that principle is quite significant.
[13] Ms. Christian testified that after David had spent ten days with his father during the summer of 2013, he asked her why he had to be with his father for such a long period. Although it was agreed that this evidence should be given reduced weight because it is hearsay, it is some indication that it is difficult for David to spend an extended period away from a parent.
[14] While, in the court’s view, Mr. Kennedy’s initial proposal resulted in too long a period for a child of David’s age and sensibility to be away from his mother, the court finds that the modified proposal made by Mr. Kennedy is consistent with the principle of maximizing David’s contact with both parents and with David’s best interests.
[15] On the other hand, Ms. Christian’s proposal of breaking up a twelve day stretch without David seeing his father, by David having a dinner with his father, although an improvement over her original proposal, is less responsive to David’s needs. Furthermore, in the court’s view, it is not in David’s best interests to be with his mother during his father’s vacation weeks. Those weeks provide an opportunity for an extended but not too long, visit with his father that is not available to David during the rest of the year due to his father’s work schedule. Also, it should be kept in mind that David generally spends only about forty percent of his time in his father’s care compared to sixty percent with his mother. Additionally, as a result of Mr. Kennedy’s work schedule, David frequently spends periods of seven days with his mother throughout the year. Finally, spending time with his paternal grandparents or with Ms. Christian, in lieu of being with his father while in his father’s care, is contrary to the principle of maximizing David’s parental time and is contrary to David’s best interests.
[16] The court recognizes that much of the time that David is in Ms. Christian’s care she is working, but, on the other hand, as already noted, David is with her significantly more time than he is with his father during the school year and Ms. Christian’s working hours allow her to be present at a reasonable hour for David’s breakfasts and dinners whereas Mr. Kennedy’s work schedule does not allow him to do the same. Thus, it is best for David to be with Ms. Christian when both his parents are working and to be with his father when his father is not working. David also has considerably more time with his mother than with his father on weekends during the school year. Presumably, the parties considered these factors in arriving at the status quo for the school year - which neither of them sought to change – a position with which the court agrees.
[17] On the last day of the trial, the end of the school year was imminent. For that reason, the court made a temporary order setting out a parenting schedule for David from the last day of school until the last day of his summer vacation in 2014. That schedule was determined based on the considerations mentioned above and the considerations in the following paragraph.
[18] In the court’s view, it is clearly in David’s best interests to be with each parent for up to two non-consecutive weeks in the summer while that parent is on vacation and, therefore, available to be with David. Accordingly, the court’s 2014 summer schedule gave priority to David being with each parent during that parent’s summer vacation week(s). Further, the court’s schedule had David with his father when his father was not working, except during Ms. Christian’s vacation week and during the July 18th to 20th weekend (2 ½ days) when David was with his mother in order to significantly break up what would otherwise have been too long a stretch for David not to be in his mother’s care. Further, the court’s schedule had David with each parent for no longer than a continuous period of nine days. In the court’s view, that is long enough for David, given his age and sensibilities, to go without spending significant time with his other parent. The court’s schedule allowed David to be with his father for six periods during the summer and to be with his mother for six periods during the summer. The court’s schedule gave David two extended periods with his father – 8 ½ days and 7 ½ days – and three extended periods with his mother – 7 ½ days, 9 days, 8 days. In total, David was with his father 32 days and with his mother 34 ½ days which allowed David a higher percentage of time with his father to partially compensate David for the much lower percentage of time he is with his father during the school year, yet David still spent roughly half of the summer in his mother’s care –close to the ideal of an equal split. The court is aware that Mr. Kennedy would have been content with a single overnight with David during the last week of the summer but in the court’s view, that would not have been adequately significant to break up the 14 ½ day stretch that David would otherwise have been with his mother. The court is aware that Ms. Christian wanted David to be with her until the end of Monday on the long Civic holiday weekend. In the court’s view, however, the extra time was contra-indicated because it would have extended the period David went without being with his father beyond nine consecutive days, and Mr. Kennedy was not working, and, therefore, was available to be with David on the Sunday evening and Monday. The court is also aware that Ms. Christian wished to maximize David’s time with his sister, Kayla. The court’s schedule has David with his mother seven of the ten weekends during the summer which meant, given Kayla’s alternating week summer schedule, that David should have been with his sister for at least three weekends during the summer, and during Ms. Christian’s vacation week and on various other weekdays.
[19] The considerations that informed that court’s summer access schedule for 2014 shall inform the parties’ determination of future summer schedules.
[20] Before leaving this issue, the court notes that Ms. Christian suggested that October was unreasonably early for her to be required to select her summer vacation week(s) for the following summer. The court does not agree. It is not uncommon that some people are required to schedule their vacation well in advance due to the nature of their work. While that requirement may not be ideal, it is a reasonable requirement of some jobs – including Mr. Kennedy’s employment as a police officer.
[21] Accordingly, Ms. Christian shall continue to provide Mr. Kennedy with her choice of one or two summer vacation weeks to spend with David, in writing, in a timely manner, each October, for the following summer, so that Mr. Kennedy may continue to take her requested time into account when he chooses his one or two summer vacation weeks. The parties shall continue to alternate the order of choosing weeks as they have in the past.
[22] Ms. Christian suggested on more than one occasion, that Mr. Kennedy could request changes to his work schedule for various purposes in relation to spending time with David, she also testified that while they were together, Mr. Kennedy sometimes was able to obtain such changes but sometimes he could not, and she stated that she did not know how easy or difficult it would be for him to do so at present. The court finds no reason to doubt Mr. Kennedy’s testimony that obtaining a change in his work schedule depends on a number of factors beyond his control and is not a foregone conclusion.
[23] The court notes that Mr. Kennedy testified that he misses Kayla and that he would be quite agreeable to having Kayla spend time with him and/or with him and David. Given that Ms. Christian repeatedly testified that she would like David and Kayla to spend as much time together as possible, it follows that she should encourage Kayla to spend time with Mr. Kennedy and David. The logical first step would be for Ms. Christian to encourage and facilitate a re-establishment of communication between Mr. Kennedy and Kayla. The court hopes she does this – for the sake of the best interests of both of her children.
Christmas Schedule
Positions of the Parties and Analysis
[24] The parties have an oral agreement that, on alternate years, one parent has David from December 24th at 9 a.m. to December 25th at 8 p.m. and on January 1st at 8 p.m. until January 2nd at 8 p.m. In even years, David is with his father during these periods; in odd years, he is with his mother.
[25] Ms. Christian testified that she would prefer to split the Christmas school break in half – so that David would be with each parent for half the school break on an alternating basis.
[26] Mr. Kennedy testified that he sometimes is able to get a week of vacation during the Christmas break and he would like to have David when that happens. He also testified that he would agree to Ms. Christian having David for a solid week over the Christmas break.
[27] In the court’s view, there is nothing wrong with either of these arrangements from the perspective of David’s best interests.
[28] The court will leave in place the current arrangement for this year – thus, David will be with Mr. Kennedy during the two periods set out above.
[29] However, if either party is able to arrange a vacation during a Christmas break, that party may, at least six months in advance, notify the other party in writing that Christmas break will be split in half that year. If such a notification takes place, then during odd years, David shall be with his mother for the first half of the Christmas break, and, during even years, David shall be with his father for the first half of the Christmas break.
[30] By Christmas break, the court means the entire Christmas school holiday, including weekends at the start and the end.
March School Break Schedule
Positions of the Parties and Analysis
[31] Mr. Kennedy would like care of David during the March school break to alternate annually between the parties and to be defined as the period of Monday through Friday during the break. He is concerned that if the March break is defined to include the weekends at the start and end that he might not have any weekend time with David for an extended period, depending on his work schedule.
[32] Ms. Christian would also like the March break to alternate but she would like it defined to include at least one weekend so there is enough time to take David on a trip. She would prefer to be with David during even years.
[33] The court agrees with Ms. Christian that it is in David’s best interest to be able to go on a trip for a week during March break.
[34] Accordingly, the court orders that David will be with Ms. Kennedy for seven consecutive days during March break in even years and with Ms. Christian for seven consecutive days during March break in odd years. David will be in the care of the other parent for the remainder of the March break.
[35] By March break, the court means the entire March school holiday including weekends.
[36] The parent who has David for seven consecutive days during March break shall, at least two months in advance, give the other parent written notice of the precise seven consecutive day period David will be with that parent during the March break.
Easter Weekend Schedule
Positions of the Parties and Analysis
[37] Ms. Christian would like to alternate Easter weekend to accommodate extended family gatherings. She would like to have David with her on odd years.
[38] Mr. Kennedy is concerned that an alternative year regime for the entire Easter weekend could mean that he would not have David on occasions when Mr. Kennedy is on vacation over the entire Easter weekend.
[39] The court finds that a compromise is in David’s best interests.
[40] David shall be with each parent for the entire Easter weekend in alternating years – odd years with Ms. Christian and even years with Mr. Kennedy, except that if Mr. Kennedy has the entire Easter weekend (as defined below) free from work in any odd year, at his option, he may, by written notice, delivered at least three months in advance, require that the regular Easter schedule be varied for two years such that Mr. Kennedy will have David for Easter weekend that odd year and Ms. Christian will have David for Easter weekend the following even year, as make up time, and the next year the regular Easter schedule shall continue. For the sake of clarity, that means, if Mr. Kennedy exercised this option, he would have David for Easter weekend for two consecutive years (his regular even year followed by an exceptional odd year) and Ms. Christian would then have David for Easter weekend for two consecutive years (an exceptional even year followed by her regular odd year) and then the regular alternating schedule would continue with David with Mr. Kennedy in even years and with Ms. Christian in odd years.
[41] If the effect of this order is that David is with a parent for more than nine consecutive days, the parties shall arrange for David to spend some significant time (at least 24 consecutive hours) with the other parent to break up the stretch, unless the parties agree otherwise in advance and in writing.
[42] By the entire Easter weekend, the court means from after school on the Thursday before Good Friday until school commences on the Tuesday after Easter Monday.
Mother’s Day Weekend
Positions of the Parties and Analysis
[43] Ms. Kennedy asked to have David with her for every Mother’s Day weekend because of a special annual family gathering that weekend in honour of her mother’s birthday. She offered Mr. Kennedy the same arrangement for Father’s Day weekend in exchange.
[44] Mr. Kennedy initially took the position that the entire Mother’s Day weekend was too long and he suggested that David could be with Ms. Christian from the Saturday night before Mother’s Day until school starts the following Monday morning. During the trial, however, he changed his position and accepted Ms. Kennedy’s proposal. He did not request a reciprocal arrangement for Father’s Day.
[45] Accordingly, the court will make the order requested by Ms. Christian, on consent, but will add the proviso that if the effect of this order is that David is with Ms. Christian for more than nine consecutive days, the parties shall arrange for David to spend some significant time (at least 24 consecutive hours) with Mr. Kennedy to break up the stretch, unless the parties agree otherwise in advance and in writing.
[46] By Mother’s Day weekend, the court means from after school on Friday until school starts on Monday.
Thanksgiving Weekend Schedule
Positions of the Parties and Analysis
[47] Ms. Christian would like to alternate Thanksgiving weekends to accommodate extended family gatherings. She would like to have David with her on even years.
[48] Mr. Kennedy is concerned that an alternative year regime for the entire Thanksgiving weekend could mean that he would not have David when Mr. Kennedy is on vacation over the entire Thanksgiving weekend.
[49] The court finds that a compromise is in David’s best interests.
[50] David shall be with each parent for the Thanksgiving weekend in alternating years – even years with Ms. Christian and odd years with Mr. Kennedy, except that if Mr. Kennedy has the entire Thanksgiving weekend (as defined below) free from work in any year, at his option, he may be written notice, delivered at least three months in advance, require that the regular Thanksgiving schedule be varied for two years such that Mr. Kennedy will have David for Thanksgiving weekend that even year and Ms. Christian will have David for Thanksgiving weekend the following odd year as make up time and then the regular Thanksgiving schedule shall continue. For the sake of clarity, that means, if Mr. Kennedy exercised this option, he would have David for Thanksgiving weekend for two consecutive years (his regular odd year followed by an exceptional even year) and Ms. Christian would then have David for Thanksgiving weekend for two consecutive years (an exceptional odd year followed by her regular even year) and then the regular alternating schedule would continue with David with Mr. Kennedy in odd years and with Ms. Christian in even years.
[51] If the effect of this order is that David is with a parent for more than nine consecutive days, the parties shall arrange for David to spend some significant time (at least 24 consecutive hours) with the other parent to break up the stretch, unless the parties agree otherwise in advance and in writing.
[52] By Thanksgiving weekend, the court means from after school on the Friday immediately before Thanksgiving until school commences on the Tuesday immediately after Thanksgiving.
Family Day, Victoria Day, Civic Holiday, and Labour Day Weekends
Positions of the Parties and Analysis
[53] Ms. Christian takes the position that if David is with a parent for the weekend immediately preceding any of these holiday Mondays, then David should remain with that parent for the holiday Monday.
[54] Mr. Kennedy suggests that an exception to the regular schedule should not be made for these Mondays.
[55] The court accepts Ms. Christian’s position, with the proviso that the extension of the weekend to include the holiday Monday will not occur, absent advance consent in writing from the other parent, if the effect would be to extend David’s time without spending significant time (i.e. in the context of this case – at least 24 consecutive hours) with the other parent for a period exceeding nine consecutive days. If a parent wishes to have David over one of these weekends, including the holiday Monday, and the effect would be that David would be with that parent for more than nine consecutive days, then that parent should contact the other parent to obtain advance written consent or to arrange for the other parent to have some significant time with David (at least 24 consecutive hours) during what would otherwise be a period exceeding nine consecutive days, so that the weekend extension may occur.
[56] The purpose of this arrangement is to increase the number of statutory holidays David can spend with a parent who is on vacation.
Canada Day
Analysis
[57] The parties did not address Canada Day but the court will do so in an effort to assist the parties.
[58] The court finds that Canada Day should be treated as a normal day within the summer schedule if it falls on a Tuesday, Wednesday, or Thursday.
[59] If Canada Day falls on a Friday or a Monday, however, the court finds that it should be treated the same as Victoria Day, except the reference to the immediately preceding weekend (which will apply if Canada Day is on a Monday) is modified to refer to the weekend immediately following Canada Day if Canada Day is on a Friday.
Other Days
[60] The parties made no reference to any other special days such as birthdays, so the court will presume that the parties can work those occasions out amongst themselves.
Extracurricular Activities
[61] Both parents agreed that David enjoys various sports including: ice hockey, ball hockey, baseball, football, and soccer. He also enjoys swimming lessons. It is, therefore, in his best interests for him to be involved in sports and swimming as much as reasonably possible without unduly interfering with his academic progress.
[62] During the trial, the parties agreed that either of them, without the other parent’s consent, may enrol David in extracurricular activities (including camps, lessons, or other activities) that take place exclusively while David is in the care of the enrolling parent as long as the enrolling parent pays all of the costs for such activities. The court will add the proviso that the enrolling parent shall forthwith inform the other parent in writing of the details of David’s enrollment.
[63] The court also has determined that, with the exception of ice hockey, David shall not be enrolled in any activity that takes place during David’s time with both parents without the advance written consent of both parents.
[64] The parties also agreed that any extracurricular activities they agree upon in advance and in writing, whether during one parent’s time with David or during both parents’ time with David, will be funded by both parents in proportion to their incomes (calculated pursuant to section 7 of the Child Support Guidelines (CSG)). The court will add the proviso that if the parties consent in this manner to David participating in an activity then the party having care of David at any given time shall ensure that he attends the activity in a timely manner, subject to a medical or transportation emergency, unless the other party agrees otherwise in advance and in writing. The court requires that David shall be taken to such activities by the parent having care of him at that time, or, alternatively, the party with care of David at that time may arrange for an approved person (defined below) to transport David on that parent’s behalf.
[65] With the exception of ice hockey, neither party shall discuss with David, the possibility of David’s involvement in an extracurricular activity, if the other parent’s consent will be sought for the activity, without first discussing the potential involvement of David in the activity with the other parent in writing and obtaining the other parent’s consent, in advance and in writing, to discuss the potential activity with David.
[66] In the past, some problems have occurred surrounding David’s participation in ice hockey. David played rep hockey as a goalie for a period of time and subsequently played a season as a goalie on a select team and, during the same season, in a different position, on a house league team. Ms. Christian found the combined schedule for select and house league practices, games, and tournaments to be too demanding. She is content that David play ice hockey but not at two levels at the same time.
[67] Given that both parents state: David enjoys ice hockey, they support him playing ice hockey, and they will take him to his hockey events when he is in their care; the court will require the parties to determine in advance of each ice hockey season whether David wants to play ice hockey that season and, if he does, the parties shall allow him to choose whether to try out for rep or select, on the understanding, unless the parties agree otherwise in advance and in writing, that by the end of November each season he must choose only one team to play on for rest of the season.
[68] In order to facilitate David’s interest in ice hockey, each parent, while caring for David, will be required to take David to all of his ice hockey try outs, practices, warm ups, games, and all tournaments his team(s) is playing in, in a timely manner (as determined by David’s coach), or, alternatively, the party with care of David may arrange for an approved person (defined below) to do so on that parent’s behalf.
[69] By approved person, the court means David’s other parent, one of his grandparents, or anyone else approved in advance and in writing by the both parents.
[70] The parties shall pay the costs of David’s ice hockey activities in proportion to their incomes (calculated pursuant to section 7 of the CSG).
[71] By ice hockey activities, the court means ice hockey equipment, fees, and tournament costs.
[72] By tournament costs, the court means tournament fees and the reasonable cost of transportation, meals, and accommodation for David and one accompanying adult.
[73] A party seeking reimbursement for the other party’s share of a section 7 CSG expense shall, within 45 days, provide the other party with a copy of the receipt for the expense along with a written explanation for the expense. The other party shall reimburse the party seeking reimbursement for their share of a reasonable expense within 30 days of receiving the receipt. Any such reasonable expense not reimbursed within 30 days may be enforced as child support. A support deduction order shall issue for that purpose.
Parenting Co-Ordinator
[74] At the end of the trial, the court raised the possibility of the parties retaining a parenting co-ordinator to assist them decide issues surrounding David when they are unable to reach an agreement, rather than having to resort to the greater expense, time, and stress involved in communicating through legal counsel or commencing a court action.
[75] The court foresees, for example, that there may be some difficulty establishing a summer schedule in future years despite the court’s attempt to provide guidance by fully explaining the reasons for the 2014 summer schedule. If the court could set a schedule for future years it would do so, but there significant unknowns at present, including Mr. Kennedy’s precise work schedule and which one or two summer vacation weeks will be chosen by each of the parties. Similarly, the court foresees that there may be some difficulty reaching agreement about extracurricular activities sufficiently well in advance to register David without difficulty. Reasonable parents can disagree about these types of decisions and the parties have demonstrated that they can have difficulty resolving such disagreements. In the court’s view, it would, therefore, be quite helpful to the parties to have a readily available dispute resolution method in place.
[76] Both parents stated that they were in favour of retaining a parenting co-ordinator as long as the service could speak to David separately from the parties so that his true views and preferences could be made known to the co-ordinator without undue influence from either parent.
[77] The court was informed that Family TLC in Barrie is one agency that offers such service. Ms. Christian wished to meet with someone from Family TLC before deciding whether she would agree to jointly retain Family TLC.
[78] More than three months have passed since the end of the trial and the court has not heard from Ms. Christian’s counsel whether Family TLC is agreeable to her client. Without any evidence having been called about Family TLC, and without the consent of the parties, the court is not prepared to order the parties to retain Family TLC in particular.
[79] The court orders, therefore, that the parties shall make their best efforts to jointly retain a parenting co-ordinator to assist them in resolving future disagreements surrounding David.
[80] The cost of a parent co-ordinator service shall be shared by the parties proportional to their incomes in accordance with s. 7 of the CSG.
Divorce
[81] The court granted the parties a divorce, on consent, on the last day of the trial.
Orders
[82] Final order to go as follows:
a. The parties shall have joint custody of David.
b. David’s parental time sharing schedule during the school year shall generally conform to his father’s shift work schedule, as it has in the past, subject to other provisions of this order.
c. The considerations that informed the court’s summer parenting schedule for 2014 shall inform the parties’ determination of future summer parenting schedules.
d. Ms. Christian shall provide Mr. Kennedy with her choice of one or two summer vacation weeks to spend with David, in writing, in a timely manner, each October, commencing in October, 2014 for the summer of 2015.
e. The parties shall continue to alternate the order of choosing summer vacation weeks as they have done in the past.
f. David shall be with Mr. Kennedy from December 24th at 9 a.m. until December 25th at 8 p.m., 2014, and from January 1st at 8 p.m. until January 2nd at 8 p.m. 2015. During the balance of the upcoming Christmas school break, David’s parenting schedule shall conform to the parenting arrangement made in past years.
g. David’s parental time sharing schedule during Christmas school break shall continue to be as it has been in the past subject to the proviso that if either party is able to arrange a vacation during a Christmas school break, that party may, at least six months in advance, notify the other party in writing that Christmas school break will be split in half that year. If such a notification takes place, then during odd years, David shall be with his mother for the first half of the Christmas school break, and, during even years, David shall be with his father for the first half of the Christmas school break. By Christmas school break, the court means the entire Christmas school holiday, including weekends at the start and the end.
h. David shall be with Ms. Kennedy for seven consecutive days during March school break in even years and with Ms. Christian for seven consecutive days during March school break in odd years. David will be in the care of the other parent for the remainder of the March school break. By March school break, the court means the entire March school holiday including weekends.
i. The parent who has David for seven consecutive days during March school break shall, at least two months in advance, give the other parent written notice of the precise seven consecutive day period David will be with that parent during the March school break.
j. David shall be with each parent for the entire Easter weekend in alternating years (odd years with Ms. Christian and even years with Mr. Kennedy) with the proviso that if Mr. Kennedy has the entire Easter weekend free from work in any odd year, at his option, he may, by written notice, delivered at least three months in advance, require that the regular Easter schedule be varied for two years such that Mr. Kennedy will have David for Easter weekend that odd year and Ms. Christian will have David for Easter weekend the following even year, as make up time, and the next year the regular Easter schedule shall continue. For the sake of clarity, that means, if Mr. Kennedy exercised this option, he would have David for Easter weekend for two consecutive years (his regular even year followed by an exceptional odd year) and Ms. Christian would then have David for Easter weekend for two consecutive years (an exceptional even year followed by her regular odd year) and then the regular alternating schedule would continue with David with Mr. Kennedy in even years and with Ms. Christian in odd years. If the effect of this order is that David is with a parent for more than nine consecutive days, the parties shall arrange for David to spend some significant time (at least 24 consecutive hours) with the other parent to break up the stretch, unless the parties agree otherwise in advance and in writing. By the entire Easter weekend, the court means from after school on the Thursday before Good Friday until school commences on the Tuesday after Easter Monday.
k. David shall spend every Mother’s Day weekend with his mother provided that if the effect of this order is that David is with Ms. Christian for more than nine consecutive days, the parties shall arrange for David to spend some significant time (at least 24 consecutive hours) with Mr. Kennedy to break up the stretch, unless the parties agree otherwise in advance and in writing. By Mother’s Day weekend, the court means from after school on Friday until school starts on Monday.
l. David shall be with each parent for the Thanksgiving weekend in alternating years (even years with Ms. Christian and odd years with Mr. Kennedy) subject to the proviso that if Mr. Kennedy has the entire Thanksgiving weekend free from work in any year, at his option, he may be written notice, delivered at least three months in advance, require that the regular Thanksgiving schedule be varied for two years such that Mr. Kennedy will have David for Thanksgiving weekend that even year and Ms. Christian will have David for Thanksgiving weekend the following odd year as make up time and then the regular Thanksgiving schedule shall continue. For the sake of clarity, that means, if Mr. Kennedy exercised this option, he would have David for Thanksgiving weekend for two consecutive years (his regular odd year followed by an exceptional even year) and Ms. Christian would then have David for Thanksgiving weekend for two consecutive years (an exceptional odd year followed by her regular even year) and then the regular alternating schedule would continue with David with Mr. Kennedy in odd years and with Ms. Christian in even years. If the effect of this provision is that David is with a parent for more than nine consecutive days, the parties shall arrange for David to spend some significant time (at least 24 consecutive hours) with the other parent to break up the stretch, unless the parties agree otherwise in advance and in writing. By Thanksgiving weekend, the court means from after school on the Friday immediately before Thanksgiving until school commences on the Tuesday immediately after Thanksgiving.
m. When David is with a parent for the weekend immediately preceding Family Day, Victoria Day, Civic Holiday, or Labour Day, David shall remain with that parent for the holiday Monday subject to the proviso that the extension of the weekend to include the holiday Monday will not occur, absent advance consent in writing from the other parent, if the effect would be to extend David’s time without spending significant time (i.e. in the context of this case – at least 24 consecutive hours) with the other parent for a period exceeding nine consecutive days. If a parent wishes to have David over one of these weekends, including the holiday Monday, and the effect would be that David would be with that parent for more than nine consecutive days, then that parent should contact the other parent to obtain advance written consent or to arrange for the other parent to have some significant time with David (at least 24 consecutive hours) during what would otherwise be a period exceeding nine consecutive days, so that the weekend extension may occur. The purpose of this provision is to increase the number of statutory holidays David can spend with a parent who is on vacation.
n. Canada Day shall be treated as a normal day within the summer schedule if it falls on a Tuesday, Wednesday, or Thursday. If Canada Day falls on a Friday or a Monday, however, it shall be treated the same as Victoria Day, except the reference to the immediately preceding weekend (which will apply if Canada Day is on a Monday) is modified to refer to the weekend immediately following Canada Day if Canada Day is on a Friday.
o. Either party may, without the other parent’s consent, enrol David in extracurricular activities (including camps, lessons, or other activities) that take place exclusively while David is in the care of the enrolling parent as long as the enrolling parent pays all of the costs for such activities subject to the proviso that the enrolling parent shall forthwith inform the other parent in writing of the details of David’s enrollment.
p. With the exception of ice hockey, David shall not be enrolled in any activity that takes place during David’s time with both parents without the advance written consent of both parents.
q. Any extracurricular activity for David that is agreed upon in advance and in writing by the parties, whether it takes place during one parent’s time with David or during both parents’ times with David, shall be funded by both parents in proportion to their incomes (calculated pursuant to section 7 of the Child Support Guidelines (CSG)). If the parties consent in this manner to David participating in an activity then the party having care of David at any given time shall ensure that he attends the activity in a timely manner, subject to a medical or transportation emergency, unless the other party agrees otherwise in advance and in writing. David shall be taken to such an activity by the parent having care of him at that time, or, alternatively, the party with care of David at that time may arrange for an approved person to transport David on that parent’s behalf. By approved person, the court means David’s other parent, one of his grandparents, or anyone else approved in advance and in writing by the both parents.
r. With the exception of ice hockey, neither party shall discuss with David, the possibility of David’s involvement in an extracurricular activity, if the other parent’s consent will be sought for the activity, without first discussing the potential involvement of David in the activity with the other parent in writing and obtaining the other parent’s consent, in advance and in writing, to discuss the potential activity with David.
s. The parties shall determine, in advance of each ice hockey season, whether David wishes to play ice hockey that season and, if he does, the parties shall allow him to choose whether to try out for rep or select, on the understanding, unless the parties agree otherwise in advance and in writing, that by the end of November each season he must choose only one team to play on for rest of the season.
t. Each parent, while caring for David, shall be take David to all of his ice hockey try outs, practices, warm ups, games, and all tournaments his team(s) is playing in, in a timely manner (as determined by David’s coach), or, alternatively, the party with care of David may arrange for an approved person to do so on that parent’s behalf. By approved person, the court means David’s other parent, one of his grandparents, or anyone else approved in advance and in writing by the both parents.
u. The parties shall pay the costs of David’s ice hockey activities in proportion to their incomes (calculated pursuant to section 7 of the CSG). By ice hockey activities, the court means ice hockey equipment, fees, and tournament costs. By tournament costs, the court means tournament fees and the reasonable cost of transportation, meals, and accommodation for David and one accompanying adult.
v. A party seeking reimbursement for the other party’s share of a section 7 CSG expense shall, within 45 days, provide the other party with a copy of the receipt for the expense along with a written explanation for the expense. The other party shall reimburse the party seeking reimbursement for their share of a reasonable expense within 30 days of receiving the receipt. Any such reasonable expense not reimbursed within 30 days may be enforced as child support. A support deduction order shall issue for that purpose.
w. The parties shall make their best efforts to jointly retain a parenting co-ordinator to assist them in resolving future disagreements surrounding David. The cost of a parent co-ordinator service shall be shared by the parties proportional to their incomes in accordance with s. 7 of the CSG.
Costs
[83] If either party wishes to seek an order for costs that party shall serve and file a brief submission as to costs, along with a bill of costs, within 21 days of the release of this decision. The other party shall then have 21 days to serve and file a brief response. The initial party shall then have 10 days to serve and file a very brief reply restricted to new issues raised in the response.
F. Graham J.
Released: September 23, 2014