COURT FILE NO.: 155-2011 (Goderich)

DATE: 20141001

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Ashley Suzanne Austin

E. L. Reid, for the Applicant

Applicant

• and -

Philip Raymond Austin

M. E. Armstrong, for the Respondent

Respondent

HEARD: March 25, 26, 27, 28, 31 and April 1 and 2, 2014 at Goderich.

REASONS FOR JUDGMENT

MITCHELL J.:

Introduction

[1] At the heart of this litigation are the best interests of Ella Rae Suzanne Austin, born February 13, 2008 (“Ella”), the parties’ only child and the love and light of their lives.

[2] While the parties have succeeded in resolving the myriad of other issues which typically flow from the breakdown of a marriage, they have been unable to resolve issues relating to custody and access of Ella and matters incident thereto.

Overview

Background Facts

[3] The parties were married on May 28, 2005 and separated on October 22, 2008.

[4] Ella was born on February 13, 2008 and was eight months of age at the time her parents separated. By the time this matter reached trial, Ella was six years of age.

[5] Since the date of separation, Ella’s primary residence has been with her mother, Ashley Suzanne Austin and Ella’s father, Philip Raymond Austin, has enjoyed frequent weekly access visits each of relatively short duration.

[6] At the time of trial, Ashley was 30 years of age and Philip was 31 years of age.

[7] Shortly after separation, the parties began negotiating issues of custody, access, equalization of net family property, child support and spousal support.

[8] Since separation and but for a brief period (March 2013 through February 2014) when the father was unrepresented, the parties have had the benefit of legal representation to assist with a resolution of the issues.

[9] During the period 2009 through February 2011, the applicant was represented by Cheryl Masson. During this same period the father was represented by Sheryl Feagan.

Litigation History

[10] This litigation has been outstanding for several years, during the course of which the parties have pursued and obtained various orders and relief.

[11] As at the date of trial, the following orders were extant:

(a) The final order of Heeney J. dated November 21, 2012 varying certain terms of the separation agreement dated February 18, 2011 (as varied, the “Separation Agreement”) to deal with issues relating to child support and payment of s. 7 expenses;

(b) The temporary order of Donohue J. dated December 19, 2012 made on a without prejudice basis prohibiting Samantha Maxwell being present during periods of access between Philip and Ella and setting the father’s 2012 Christmas access schedule (the “Carey J. Order”);

(c) The temporary order of Carey J. dated January 23, 2013 dismissing the motion to add Samantha as a party to the proceedings and on consent of the parties, requiring the Huron-Perth Children’s Aid Society (“CAS”) to produce its files regarding Samantha to the parties subject to certain conditions regarding disclosure and redaction, permitting questioning of Samantha and revising the terms of access under the Carey J. Order to permit Samantha to be present during access provided; however, a prohibition was placed on any conflict, physical violence or discipline of any kind and the consumption of alcohol by Phillip and Samantha while Ella is residing with them (the “Carey J. Order”);

(d) The temporary order of Heeney J. dated February 20, 2014 arising from the applicant’s motion, whereby the father was ordered to obtain a written report from Dr. Lau (sic) addressing (i) the status of the father’s acquired brain injury; (ii) confirmation of treatment and/or rehabilitation, if any being received; (iii) confirmation of any recommended treatment and/or rehabilitation in connection with the father’s brain injury; and (iv) confirmation of any restrictions on the father’s lifestyle including use of alcohol and participation in sports. Heeney J. also ordered that each party shall advise the other should Ella be spending the night other than at the parties’ respective residences (the “Carey J. Order”).

Issues at Trial

[12] This application was commenced by the mother on October 6, 2011. A number of issues in the application relating to the care of Ella were resolved by the parties pursuant to minutes of settlement filed at the commencement of trial. The parties have also agreed to an uncontested divorce.

[13] The only issues which remain and require the court’s intervention are custody and access together with relief relating to repayment of funds alleged to have been misappropriated by the father from a bank account established for Ella’s education.

[14] The mother seeks sole custody of Ella with weekly and holiday access to the father subject to numerous terms and conditions. The mother also seeks an order requiring the father to repay to Ella’s bank account the sum of $3,200 plus interest.

[15] The father asks that joint custody of Ella be maintained with liberal weekly and holiday access of Ella with few conditions and restrictions associated with such access. The father claims any monies misappropriated from Ella’s bank account with Scotiabank have been repaid to a separate account and are being held in trust for the benefit of Ella and, therefore, no order is required to deal with that issue.

[16] The following issues require determination:

(a) What type of custodial arrangement is in the best interests of Ella and what weight should the court give to the parties’ agreement to share joint custody of Ella as provided for in the Settlement Agreement?

(b) What access arrangements (regular, holiday and telephone) are in the best interests of Ella?

(c) Should any restrictions or conditions be placed on the manner in which the father exercises his access to Ella?

(d) Should the terms of the Carey J. Order form part of the final order dealing with terms and conditions of access?

(e) Is the father liable for repayment of monies withdrawn from Ella’s education account?

The Evidence at Trial

Events Leading Up To Separation

(i) The Early Years

[17] The parties began dating in 2001. In the early stages of their relationship, the parties enjoyed spending time with friends and at each other’s homes. On most occasions, alcohol was consumed. Ashley testified that during this period she did not view the father’s consumption of alcohol as problematic and did not observe any change in his behaviour after he had been drinking.

[18] The parties were married in Goderich in 2005. Ashley and Phillip were both 21 years of age.

(ii) The Accident

[19] On December 14, 2005, the father was involved in a near fatal car accident in which he was the driver. He suffered a brain injury in the accident and was taken to London for medical care and treatment. The father received extensive and prolonged treatment and rehabilitation at Parkwood Hospital in London. As a result of his brain injury, the father was restricted from consuming alcohol for a year so as to reduce the chance of further bleeding on the brain and was restricted from engaging in contact sports to avoid a further head injury.

[20] Drinking was a factor in the accident and the father was charged with impaired driving and his license was suspended for a year. He was required to have a “blower” attached to the ignition of his vehicle for a further year. The father complied with all terms of his sentence.

[21] Ashley testified that subsequent to the one-year mark following the accident, Mr. Austin returned to drinking on a regular basis; however, the effects of alcohol on his behavior and personality were markedly changed. She observed him to anger quickly. In her view, he had become “a sloppy, messy drunk”. In addition, Ashley testified that his drinking increased in frequency and that he would “get drunk” once or twice a week.

(iii) Arrival of Ella

[22] The applicant became pregnant with Ella in 2007 and in December 2007 the parties learned they were expecting a girl. Ashley testified that Phillip appeared disappointed that he was having a daughter rather than a son and became disinterested with the balance of the pregnancy.

[23] The applicant described the father’s behaviour the night of Ella’s birth. Ms. Good’s family was in attendance. The applicant testified that on the night of Ella’s birth, Mr. Austin left the hospital and did not return for approximately three hours. The applicant testified that the father’s behavior and conduct the night of Ella’s birth was very upsetting to her. She felt that he showed no compassion for her and little interest in the arrival of Ella.

[24] The applicant testified that this same lack of interest and apathy towards their new baby continued once she returned home from the hospital. She testified that on most nights of the week, the father would leave home to attend a social event such as baseball or poker and such events would usually involve drinking. The applicant testified that during this time their relationship was on shaky ground due to the father being rarely at home while she was left to care for Ella.

(iv) The Separation

[25] In the fall of 2008, the mother went on a “girls” weekend leaving Ella in the care of the father. Ella was eight months of age and to this point in Ella’s young life, the applicant had not spent a night away from her. The mother arrived home at approximately 4:00 p.m. Sunday afternoon to an empty house finding Ella in the care of her parents where the father had left her that morning.

[26] The applicant testified that she had suspicions the father was having an affair and shortly after returning home from her weekend away, the father admitted to having been unfaithful. Ashley asked the father to leave their home. The father left the home and went to live with his parents who also reside in Goderich.

Events Post-Separation

(i) Access Immediately Following Separation

[27] Following the separation, the father had access visits with Ella in the home. The applicant testified that in the months following their separation, the father would text or call asking when he could come home. During this time, the father had access to Ella approximately two to three times per week for a couple of hours on each occasion.

[28] The applicant gave evidence of a number of examples from this time which, in her view, shows the father was unable to properly care for Ella. The mother testified to the following:

a) The father turned down the heat in the house in November 2008 and put Ella to bed in only a thin sleeper. The applicant observed Ella was “shaking cold” while sleeping;

b) the father used Vicks bubble bath as shampoo, which the applicant claims should never be applied directly to the skin of a child;

c) the applicant returned home to find the father lying on the couch with his eyes closed while Ella, then one year of age, was awake and playing nearby with seemingly no parental supervision;

d) in August 2011, the father returned Ella after a day at the beach in a wet bathing suit with dried sand on her skin. The applicant testified that she observed Ella was “shaking cold”; and

e) during the aftermath of the August 2011 tornado, the father telephoned the mother and spoke with Ella; rather than attending in Goderich to see Ella.

(ii) Legal Representation

[29] In the spring of 2009, the applicant retained Cheryl Masson to deal with issues relating to the sale of the matrimonial home as well as custody and access. The mother testified that during the initial meeting with Ms. Masson she had indicated her desire for sole custody.

[30] The applicant testified that she wanted sole custody as a result of incidents when Ella was in the father’s care that concerned her for Ella’s health and safety. The applicant claims that she was told by Ms. Masson that she should not request sole custody as “the other parent will get their back up” and that there was little practical difference between joint custody and sole custody. The applicant testified that she was assured by Ms. Masson that joint custody arrangements could be changed if they were not working out. Ms. Masson did not testify at trial and her files were not made part of the evidentiary record.

[31] At or about the same time, the father retained Cheryl Feagan to represent his interests and to deal with the outstanding matrimonial issues, including custody and access. The applicant testified that in the Spring/Summer of 2009 the access arrangements were changed and an overnight visit with the father was introduced on Fridays. This change was negotiated by the parties through their lawyers. At the time, the father was living with his parents and Friday night access visits with Ella were exercised in his parents’ home.

[32] The matrimonial home was sold in November 2009 and Ashley moved with Ella into an apartment in Goderich. The father continued to live with his parents after the sale of the home with frequent weekly access visits including Friday overnight.

[33] In September 2011, the applicant mother terminated her relationship with Ms. Masson and hired Ms. Reid, her counsel at trial.

(iii) Attempts to Reconcile

[34] The applicant testified that the father continued his efforts to reconcile going so far as to describe his efforts as “stalking” and gave as an example a text message wherein he indicated he knew she was home because her lights were on. The applicant testified she found this behaviour “eerie and uncomfortable”. The applicant testified that she perceived the efforts of the father to reconcile and his threats that without reconciliation she would see less of Ella, as evidence of the father’s motive to exert control over the applicant and to use Ella as a “pawn” in his desire to reconcile.

[35] On cross-examination, the applicant acknowledged that the texts read into evidence by the applicant were only select ones chosen for the court to consider and that other emails relevant to the issues were not introduced into evidence.

[36] The father admitted that he did want to reconcile for a period of time after separation. He claimed to love his wife and daughter and admitted to making a “major mistake” which caused the break-up. The father further testified that in recent years and since meeting Ms. Maxwell he has had no desire to reconcile with the mother.

(iv) The Father and Samantha Co-Habitating

[37] In March 2010, the father moved out of his parents’ home into a two-bedroom apartment in Goderich. At this time Ella was two-and-a-half years of age. The applicant testified that she was upset she had not been given advance notice of the move.

[38] Sometime in the fall of 2010, Samantha, the father’s then partner, and her 10-year-old son Jacob (“Jake”), moved into the father’s apartment. Immediately, following this development, Ms. Masson wrote to the father’s lawyer to indicate that the applicant was not happy with the current living arrangement and that Ella required a room of her own for overnight access visits. In response, the father’s lawyer advised that the arrangement was temporary and assured the applicant that if the situation should become permanent, the father intended to relocate to a larger residence. With respect to the applicant’s concern regarding Ella not having her own bedroom, counsel for the father responded:

I see no reason for your client to be concerned. Unless your client can identify and substantiate specific protection concerns with regards to the current short-term living arrangements, she should not be dictating how my client spends his time with Ella.

[39] Protection concerns were ultimately identified by the mother and are described later on in these reasons.

The Separation Agreement

[40] Negotiation of the Separation Agreement continued throughout 2010 and into 2011.

[41] Despite the tension between the parties caused by the father’s new living arrangements, on February 18, 2011 and after more than two years of separation, the parties entered into the Separation Agreement which deals with all outstanding issues between them, including custody and access.

[42] Pursuant to the terms of the Separation Agreement, the father was permitted access to Ella four nights during the week and one day on the weekend. The access schedule required the father to pick up Ella from school at 4:00 p.m. on Monday, Tuesday and Wednesday and to return Ella to the applicant’s home on Monday and Tuesday by 6:00 p.m. and by 8:00 p.m. on Wednesday. In addition, the father was required to pick up Ella from school or daycare at 4:00 p.m. on Friday and return Ella by 7:30 p.m. on Saturday.

[43] To address the concerns of the applicant with respect to the living arrangements for Ella, the following provision was added to the Separation Agreement:

Each party shall keep the other informed of their current residence and of anyone sharing the residence with them. Each party shall ensure that Ella has her own bedroom while in their respective residences.

[44] At the time the Separation Agreement was signed, both parties resided in Goderich and the father commuted to his employment in Seaforth. Samantha and her son, during his access visits with Ms. Maxwell, were both residing with the father in his apartment.

[45] Pursuant to the terms of the Separation Agreement, the primary residence of Ella was with the mother and the father paid monthly child support of $293.00 per month based on his stated income of $32,000.

[46] The mother testified that the Separation Agreement took two years to negotiate and that she had approximately 15 in-office meetings with Ms. Masson and many letters were exchanged by the parties’ lawyers.

[47] The Settlement Agreement is a comprehensive document which deals with all issues between the parties including issues of custody and access and matters incidental thereto.

[48] At the time the Separation Agreement was entered into by the parties, Ella was three years of age and attending daycare on a full-time basis.

[49] The provisions of the Separation Agreement related to the issues of custody and access are as follow:

3. The parties will have joint custody of Ella. Ella’s day-to-day residence will be in the Wife’s home and she will make the day to day decisions regarding Ella’s care.

4. The parties agree that, as Ella matures, changes may be necessary to the foregoing visitation schedule, to take into account Ella’s age and change in needs and to take into account her best interest. The parties will therefore regularly review the terms related to the parties’ care of Ella and the terms related to “Holidays and other Occasions”.

CUSTODY (GENERALLY)

Right to Information

6. Each party shall have the right to be fully advised of Ella’s school progress (including the right to have direct communication with all school authorities and to receive copies of report cards and notices of school events) and to be advised by the other party and by health care providers about the health and general welfare of Ella, and to obtain all medical records. If he requests, the Wife will give written directions to school personnel and health practitioners to provide whatever information the Husband wishes about Ella.

Confer on Important Matters

7. The parties shall confer with each other on all plans and arrangements relating to access to and custody of Ella and generally, on all important matters relating to Ella’s health, residence, education, religious training and upbringing.

Encouraging Respect and Affection

8. Each party recognizes that each may be ill-disposed towards the other and tempted to express hostility towards the other. They recognize, however, that it is in the interests of Ella (and probably in the interests of both parents) that such feeling not be made known to Ella. Each party, therefore, agrees that regardless of his or her feeling towards the other, neither will at any time say or do anything which might come to Ella’s attention and which is critical or contemptuous of the other party or which suggests that there is any reason why Ella may not look forward, with enthusiasm, to spending time with that other party. Each will try hard to encourage Ella in the belief that the other party is a loving and effective parent who acts in Ella’s best interests and is vitally concerned with Ella’s welfare.

Smoking

9. Neither party shall smoke in the presence of the child and each party shall ensure that Ella is not in the presence of other persons who are smoking or that she is present where smoke is detected.

Residence

10. Each party shall keep the other informed of their current residence and of anyone sharing the residence with them. Each party shall ensure that Ella has her own bedroom while in their respective residences.

Flexibility in Access

13. When special opportunities for Ella arise or when unusual problems for the parties occur in relation to access, neither party will unreasonably insist on strict adherence to the foregoing arrangements. Instead, they will co-operate in making reasonable alternative arrangements so that the interest of Ella prevail. If either party requires a change to the current visitation schedule that request shall be made at least 48 hours in advance.

General

49. The Husband and Wife intend this agreement to be final as to all claims. They release all claims other than to enforce this agreement) arising out of their marriage, past events and financial dependency. They acknowledge that each may encounter drastic changes in their respective incomes, assets and debts, in the cost of living or in their health, or changes of fortune by reason of unforeseen factors. Except as provided in this agreement, the Husband and Wife agree that under no circumstances will any change, direct or indirect, foreseen or unforeseen, in the circumstances of either of them, give either the right to claim any alteration of any of the terms of this agreement or the terms in any other agreement between them or of the terms of a divorce judgment.

[50] Both parties received independent legal advice and each party signed a certificate of independent legal advice confirming they understood their respective rights and obligations under the Separation Agreement including the nature and consequences of the agreement.

Events Post-Separation Agreement

(i) CAS Involvement – First Incident

[51] Soon after Samantha and Jake moved into the father’s apartment, any modicum of trust and respect held by the mother for the father quickly vanished.

[52] Ironically (and sadly), it was shortly after the Separation Agreement was signed that CAS became a regular (albeit reluctant) participant in the lives of the parties, Ella, Samantha and her son.

[53] The first CAS involvement came following an overnight access visit by the father with Ella in April 2011. The applicant contacted CAS to report that following an overnight Friday access visit with her father, Ella had told her that she and Jake were sleeping in the same bed. Jake was 10 years of age and Ella was three-and-a-half years of age at the time.

[54] The applicant testified that she was very concerned that Ella might be sharing a bed with Jake. The applicant admitted on cross-examination that the information she received regarding the living and sleeping arrangements at the father’s apartment was obtained from Ella and not the father.

[55] The father disputes the allegation that Ella and Jake have ever shared a bed. The father testified that Ella and Jake watched movies and played together in the same bedroom from time to time but that a mattress would be pulled out for Jake to sleep on.

[56] In response to the applicant’s complaint, a CAS worker spoke separately with each of Ella, Samantha and the father to discuss the concerns of the mother. Ultimately, the CAS notified the applicant on June 30, 2011 that it did not identify any child protection concerns and closed its file.

(ii) Move to Egmondville

[57] Shortly after the Separation Agreement was signed, the father moved to Egmondville, a small town directly adjacent to Seaforth and a 30-40 minute drive to Goderich.

[58] The father testified that he moved to Egmondville to be closer to his place of employment in Seaforth and to make appropriate living arrangements for Ella, Samantha and Jake. The house in Egmondville allowed Ella and Jake to each have their own bedroom.

[59] The father testified that by March 2011, his relationship with Samantha was serious and he proposed marriage to Samantha in or around that time.

[60] The applicant testified that she first learned of the father’s change of residence in June 2011. The applicant testified that she was upset that the respondent had not advised her of the move prior to the Separation Agreement being signed or before CAS involvement in the spring of 2011.

[61] The applicant admitted in cross-examination that the father was required to obtain employment outside of Goderich as a result of Volvo shutting down its manufacturing plant in Goderich. The mother further agreed that the move by the father to Egmondville was as a consequence of obtaining employment out-of-town and not for personal reasons.

[62] Ella’s paternal grandparents were not approved to pick up Ella from school. In order for the father to exercise weekday access on Monday, Tuesday and Wednesday, he testified he was required to leave work by 3:30 p.m. in order to pick up Ella from school by 4:00 p.m. On days when Ella had dance lessons, the respondent was required to have her to dance by 5:45.

[63] On cross-examination, the mother acknowledged that following the father’s move to Egmondville, the access schedule set forth in the Separation Agreement, together with the extra-curricular activities in which Ella was engaged at the time, made the numerous weekly access visits for short periods of time largely unworkable for the father.

[64] Not surprisingly, after the father moved to Egmondville, he wanted a change in the access schedule. The applicant testified that the father would often send a text to the applicant close in time to the end of the access visit to advise that if she wanted to get Ella that she should “come and get her”. The mother or her mother would then have to drive to Egmondville to retrieve Ella.

(iii) Mediation to vary access schedule

[65] As a result of the move to Seaforth, the applicant sought to change the access schedule and address transportation issues relating to the access. The Separation Agreement required the parties to mediate any disputes first and only once negotiations had exhausted all reasonable possibilities of resolution was litigation permitted.

[66] Curiously, mediation in the summer of 2011 did not involve a request by the mother to vary the joint custodial arrangement.

[67] The issue of transportation was raised in a letter sent by the lawyers for the mother to Norman Pickell on August 10, 2011. Mr. Pickell was the mediator selected by the parties to address issues arising under the Separation Agreement as a result of the father’s move to Egmondville.[^1]

[68] With respect to the responsibility for pick up and drop off, the Separation Agreement provides that on each weekday access visit the father is responsible to pick up Ella from school or daycare, as the case may be, and to return Ella to the applicant’s residence. The Separation Agreement is silent as to who is responsible for returning Ella to the care of the mother on Saturday evenings.

[69] Regrettably, the mediation conducted on August 11, 2011 proved unsuccessful and this application was commenced by the mother on October 6, 2011 seeking to vary the terms of the Separation Agreement relating to both access and custody. As earlier noted, the issue of a change of custody had not been the subject of mediation as required by the Separation Agreement.

(iv) The Second CAS Incident

[70] Two months following the first CAS incident, another incident involving CAS arose. The applicant testified that she was advised that Samantha had only her G1 license preventing her from transporting children. The mother contacted the police to attempt to verify the information; however, the police refused to provide her with any information on grounds of privacy.

[71] On August 25, 2011, the father dropped off Ella to the mother’s house. He and Ella were passengers in a truck being driven by Samantha. The mother’s sister, Kelsey Good, is a case worker for Owen Sound CAS. Kelsey confronted the father with the information supplied by the applicant and a conflict ensued between Kelsey and Phillip in front of Ella and Jake. Kelsey contacted CAS to report the incident. CAS investigated the matter and sent correspondence to each of Phillip and Ashley on August 29, 2011 cautioning them not to engage in adult conflict in front of the children. CAS then closed its file in relation to this incident.

(v) Changes to the Access Schedule – Fall 2011

[72] In summer and fall of 2011, the father changed his work schedule such that he had Fridays off for a period of time. He requested that he be permitted to spend these Fridays with Ella. Ms. Austin refused this request on the basis that if Ella was not in daycare full-time, she would lose her spot. The father testified that the mother’s aunt was the daycare provider.

[73] The mother’s lawyers wrote to the father’s lawyers advising that “attending daycare on Fridays in (sic) part of Ella’s routine. It is not child-focused of your client to decide to disrupt the child’s routine simply because he temporarily has Fridays off and this works for him. If you (sic) client intends to pick up Ella tomorrow at 8:30 a.m. Ms. Austin will not be releasing her to him and he will be in breach of the Agreement.”[^2]

[74] In September 2011, another access issue arose. The mother testified that she asked the father to switch access dates to allow Ella to participate in a friend’s wedding as a flower girl. Ella was required the Friday evening for the wedding rehearsal dinner and the following day for the ceremony. The mother proposed the father could have Ella on Sunday.

[75] The mother testified that the father claimed he wasn’t aware of the wedding or that Ella had been asked to be a flower girl and instead of the proposed switch, the father offered through his lawyers to switch the whole weekend rather than have Ella on Sunday.

[76] The applicant testified that while it was important to have Ella at the wedding, a switch of an entire weekend resulting in the father having Ella for the following weekend was not acceptable to the applicant. In the end, the mother agreed to the weekend switch and in her testimony pointed out that on Friday night Ella spent the evening at Samantha’s parents’ house and that Ella was returned to the mother on Sunday by Samantha’s mother.

[77] The father testified that the wedding involved mutual friends and that the applicant refused to participate in or attend the wedding if the respondent father was invited.

[78] Another access issue arose in November 2011. The mother requested Ella be returned early on a Saturday so she could take her to the Santa Claus parade. The father refused and advised he would drop her off at 7:30 p.m. at the applicant’s house as required by the terms of the Separation Agreement.

[79] The father did not drop Ella at the mother’s house and instead texted the mother to advise her that Ella was with him at the parade and to come and get her there. The mother testified that the father became upset when the mother refused to watch the parade with him and Ella and insisted on Ella coming with her.

[80] A further access issue arose on Thanksgiving weekend of 2012. The mother texted the father advising that Ella had a fever and requested that Ella stay with her until she was better and proposed a switch of days. In response, the father suggested full weekend exchange and a change to the access schedule rather than switch days.

[81] Variations to access requested by the father were refused by the mother. The father testified that the mother refused the father’s request to have Ella on Sunday for a family dinner with his very ill grandfather shortly before his grandfather’s passing.

[82] The mother refused the father an extra evening to allow him to take Ella to the Toronto Zoo.

[83] The mother refused the father’s request to have Ella overnight on a Saturday so he could take her to Marineland in Niagara Falls.

[84] The applicant testified to the most recent access issue which occurred in Winter 2014. The father had contacted the mother to let her know that he might be late returning Ella as they were headed skating in London and snow was predicted. During this call, the father mentions again that it would be easier for both parties if access were changed to alternate weekends.

[85] The mother did not agree with the request to extend the time for Ella’s return and threatened to call the police if Ella was not returned by 7:30 p.m. Upon the call ending, the mother contacted the police to advise of the anticipated breach. A police officer attended at the applicant’s home and advised her that they could do little to assist but would call the father and tell him to have her home by 7:30 p.m. The police contacted the father while he was en route to London.

[86] The applicant acknowledged Ella was returned by 7:30 p.m. that evening as required by the terms of the Separation Agreement.

[87] On cross-examination, the applicant acknowledged that despite the terms of the Separation Agreement, she never goes beyond the express terms of the agreement unless a court orders otherwise. She further acknowledged that this was her approach despite instances over the years where, due to flexibility of the father’s work schedule, he has had additional time off during the week to spend with Ella.

[88] Lastly, the mother agreed with the suggestion that Ella would have a stronger connection with her father if he had fewer access exchanges but for longer periods of time.

(vi) Third CAS Incident

[89] In the summer of 2012, CAS contacted the applicant with regards to an incident in the father’s home. The incident involved the father, Samantha and Jake. Ella was not present during the incident. The incident led to Samantha being charged with assault.

[90] The father advised the mother of the incident and further that CAS wished to speak with Ella regarding any domestic violence in the father’s home. Ms. Shayne Reinhart, a child protection investigator with the CAS, spoke with Ella. The applicant testified that despite requesting information, the CAS would not provide details about the incident since Ella was not in the house at the time of the incident.

[91] At trial, Ms. Reinhart testified that she conducted an investigation of the incident including interviews with Ella and Jake. She expressed the view that the “non-association” order made against Samantha with respect to the father coupled with counselling by both Samantha and the father alleviated the risk of any safety concern of the CAS regarding Ella. No further steps were taken by the CAS with respect to Ella as a result of this incident. In cross-examination, Ms. Reinhardt testified that any knowledge or information she had regarding the father’s brain injury and his alcohol use would have been provided by the mother or the father. She had no first-hand knowledge and did not review any medical reports relating to the father.

[92] In December 2012, the parties returned to court and the Carey J. Order was made granting a holiday access schedule and requiring, on an interim, without prejudice basis, that Samantha not be present during access.

[93] The applicant brought a motion seeking disclosure of the CAS files regarding the 2012 incident and seeking to add Samantha as a party to these proceedings. The Carey J. Order was made on consent of the parties and required that CAS produce its file relating to Samantha subject to redaction for privilege and payment of costs. No restrictions were imposed on Samantha’s participation in the father’s access provided there was no exposure to any conflict between the father and Samantha while Ella was in his care. The father agreed that he and Samantha would not consume alcohol while Ella was in his care.

[94] The mother received the CAS files and testified that she was very alarmed by the contents of the files. She was unaware that the father had slapped Jake and that alcohol had been involved. Moreover, she was unaware of the statements taken by the CAS from Ella. The applicant testified to being very concerned that Ella was being exposed to domestic violence in the father’s home.

[95] On cross-examination, the mother acknowledged that the father had not been charged with assault and the only restraining order in place was one issued against Samantha - not the father.

[96] The father testified that he made a mistake and has since undergone counselling to control his emotions. He has completed the “Caring Dads” program and testified to seeing Jake now and again and confirmed that his relationship with Jake remains positive.

(vii) Fourth CAS Incident

[97] The fourth incident occurred in 2012 involving Jared, Ella’s paternal cousin, who was four to five years of age at the time of the incident. Ella is approximately the same age as her cousin. The applicant testified that Ella had told her following an access visit spent at the father’s sister’s home that Jared had exposed himself to Ella. The mother testified to being very upset and speaking with the father who initially appeared alarmed. The father assured the mother that he would speak to his sister about the incident. The applicant testified that the father changed his mind and in her view “blamed it on Ella”. The applicant believed the father was “throwing Ella under the bus”.

[98] The applicant testified that she reported the incident to the CAS claiming she felt she had exhausted all other avenues and the father was not taking the issue seriously. The applicant testified that the CAS did not investigate or report back to the applicant with respect to this incident.

(viii) October 2013 Fire

[99] The applicant testified that in October 2013 the father contacted the applicant at work and told her that there had been a fire at his residence and he could no longer reside there as a result of the extensive damage to the home.

[100] No one was present at the time of the fire.

[101] The father moved into his parents’ home in Goderich while his home was reconstructed and the damage repaired. The father testified that during this time Ella spent her overnight access visits either at her grandparents’ home or at her aunt’s home.

[102] The applicant testified that she was very concerned with Ella being in a random bed every week and not knowing where she would be sleeping on any given Friday. The applicant testified that Ella told her that she has slept on the couch at her aunt’s home, in her cousin’s bedroom and, on one occasion, in the basement.

[103] The applicant testified that she believes these locations include not only the father’s parents’ and sister’s homes but also the home of Samantha, Samantha’s parents’ and Samantha’s sister. On cross-examination, the applicant acknowledged that Ella was unable to sleep at her father’s home until the house was habitable.

[104] The father testified that the reconstruction and repair of his home is nearing completion and he expected to be able to move back into the house sometime in June 2014. Once he has returned to the home, Ella’s overnight access visits will take place in his home.

(ix) Father’s Acquired Brain Injury

[105] Following the December 2005 car accident, the father subsequently hit his head in two separate incidents in 2008 and 2010.

[106] The applicant testified that she was upset that the father did not advise the applicant of these injuries directly and that she had to hear about them through mutual friends.

[107] The father testified that he continues to use tools to improve his word retrieval and communication skills.

[108] The father testified to receiving counselling on a regular basis to deal with the stressors in his life including this litigation.

(iii) Report of Dr. Loh

[109] On February 20, 2014 on motion of the mother, the Heeney J. Order was made requiring Dr. Loh to provide a written report confirming what, if any, ongoing treatment or rehabilitation was required for the father’s acquired brain injury and what, if any, lifestyle restrictions should be placed on the father because of his acquired brain injury resulting from the 2005 car accident.

[110] As required by the terms of the Heeney J. Order, Dr. Loh prepared a report.[^3] In his report, Dr. Loh made findings and provided opinions with respect to the father’s acquired brain injury as follows:

When I last saw him in January of 2014 he had no specific concerns with regards to this cognition. He has a number of psychological stressors as well which would impact his recovery. As he has learned to manage these stressors, he has found that his cognitive symptoms have improved…His last documented MOCA was on March 27, 2013 where he scored 27 out of 30 which is within normal limits.

He is not on any other medications for his brain injuries outside of Advil as needed for headaches.

The patient is functioning well at this time. There are no specific therapies that would be recommended at this time, outside of continued psychological counselling with regard to his mood. The only treatment that would be necessary, at this time, is for ongoing headaches.

At this time, there are no specific restrictions with regards to use of alcohol or participation in sports. He has been advised to protect himself from further injury. Avoidance of any contact sport would be ideal as subsequent concussions or head injuries could be more difficult to recover from and may leave him with chronic and unresolving symptoms…At this time, there is no specific restriction on alcohol intake.

Father’s Parenting Ability

[111] The applicant testified to numerous incidents which, she believes, establish that Ella’s health and safety are at risk as a result of the father’s lack of good judgment and/or sense of responsibility. Examples are as follow:

(a) In fall 2009, Ella vomited after having eaten a scrambled egg for lunch. When dropping Ella off for an access visit with the father, the mother requested the father not feed eggs to Ella. While he agreed initially to do as she asked, he decided to feed Ella eggs. The applicant viewed this behaviour as treating Ella “as an experiment”. The father suggested allergy testing; however, the applicant was opposed to allergy testing given Ella’s young age. On cross-examination, the mother admitted that she did not allow the testing and an egg allergy has never been confirmed.

(b) An incident occurred in February 2010 when the father returned Ella to the applicant with a fever and Ella was taken to the hospital. At the hospital, the applicant contacted the father to advise him of Ella’s condition. It upset the applicant that the father did not come to the emergency room or follow up with her. It was later discovered that Ella had an ear infection which required medication.

[112] The mother acknowledged that the father took Ella to have a flu shot although she did not agree that a flu shot was necessary.

[113] The mother testified as to her concern with Ella’s exposure to second-hand smoke. During her testimony, the paternal grandmother admitted to smoking inside her home but never in the presence of Ella. The father and Samantha both smoke but testified that at no time do they ever smoke in the home in the presence of Ella. The Separation Agreement requires that neither party smoke in the presence of Ella.

[114] On cross-examination, the mother admitted that she was upset that at times the father appeared to take little interest in health and safety issues relating to Ella and at other times was engaged in the issue but did not advise her and give her an opportunity to participate in the plan of treatment and care.

[115] The mother gave evidence as to various incidents where the mother believed Ella’s safety while in her father’s care was a concern. The mother testified to the following:

(a) an incident when Ella was returned to the mother`s care with a bump over her right eye. The father testified that Ella and her cousin had been playing and bumped heads.

(b) an incident in May 2012 when Ella suffered scratches to her face after being with the father.[^4] The mother took photographs of Ella’s face immediately upon the father returning Ella to her home. The applicant testified she was worried about permanent scarring and was upset by the father’s nonchalant reaction saying that Ella got into a fight with the cat and “it wasn’t a big deal”. The applicant testified that there was still scarring today. Photographs of any “permanent scarring” were not introduced as evidence at trial.

(c) In the summer 2012, photographs were taken by the mother immediately upon the return of Ella showing red marks or welts on Ella’s skin.[^5] The mother testified that when asked the father advised that he did not know what had caused them. The applicant testified that she never did find out what caused the welts and if they were only bug bites, she would not have otherwise been concerned but for the number of them.

(d) In the summer of 2012, the mother took a picture of Ella’s finger immediately upon the return of Ella. The applicant testified that she enquired of the father as to the cause of the burn and he responded that Ella had been dragging her finger along the brick of the house.

[116] On cross-examination, the applicant admitted that the injuries she has observed on Ella’s body are fully documented by the evidence and that she has no evidence of other injuries suffered by Ella while in the father’s care beyond those evidenced by the photographs.

[117] The applicant acknowledged that the only issue she has with Ella spending time with the father’s family or with Samantha and Jake is with respect to Ella’s safety.

[118] The mother admitted that the court did not make a finding that Ella was in need of protection when it issued the Carey J. Order in December 19, 2012.

[119] The applicant testified to numerous instances where the father did not exercise access himself rather, Ella spent this time with others. The applicant feels that the respondent failing to spend all access time with Ella is evidence that the respondent only seeks to take time away from the mother rather than spend time with Ella himself.

[120] The applicant submitted into evidence a calendar for the period December 2011 through April 2012 and a calendar for the period January 2013 through the week prior to trial.[^6] On these calendars the mother indicated all access visits where the father did not exercise access at all, did not exercise access himself or returned Ella early.

[121] The father testified that while he and Ella spent most of the weekday access time with his parents and/or his sister and her children, he was always with Ella and rarely left Ella with them other than for appointments. Typically, if the father had an errand to run or an appointment to attend Ella wanted to and would accompany him.

[122] During the latter part of 2011 and early 2012, the father worked afternoons and nights catching chickens in order to supplement his income. Some days he would return at 5:30 a.m. only to start his day at Progressive Turf in Seaforth.

[123] The mother testified to various instances where the father acted unreasonably and was uncooperative. This evidence was given to support her request for sole custody. She gave the following examples:

(a) When Ella was four years of age, the father wanted to sign Ella up for figure skating and the mother wanted to sign her up for dance. The mother testified that Ella preferred dance and so refused the father’s request for figure skating and signed her up for dance despite the wishes of the father. The applicant acknowledged that when she initially signed up Ella for dance lessons. These lessons were Mondays between 5:45 and 6:30 p.m.[^7] Dance classes are in Clinton, a 15-minute drive from Goderich. Parents are not permitted to be in the room during the dance lesson.

(b) The mother opposed the father signing up Ella for swimming lessons at the Goderich YMCA because a child had drowned in the pool. On cross-examination, the applicant acknowledged that Goderich is a beach town and it is important that Ella learn how to swim.

(c) The applicant testified that she refused the father’s request to sign Ella up for soccer at age four. On cross-examination, she acknowledged that soccer would have occurred on a night when Ella was with her and not the father. Ella now plays soccer during the summer season.

[124] In contrast to the testimony of the mother, the father testified as to the types of activities he and Ella participate in when she is with him such as playing board games, skating, reading, watching movies and doing homework. He spoke of the bond between Ella and Jake. He spoke of the bond between Ella and his family, including his parents and his sister, Michele.

[125] The father spoke of visiting with Samantha’s parents at their farm just north of Goderich. Often, Samantha’s sister and her children would be there as well and the children would play together. If Ella sleeps overnight, she sleeps on a mattress in a room with the other female children.

[126] The father explained that most of his weekday evening access is spent at either his parents’ home or his sister’s home in Goderich because he has insufficient time each visit to take her to his home in Egmondville and return her to Goderich by 6:00 p.m. When Ella sleeps at his parents’ home, she has her own room. At his sister’s home, she sleeps by herself on a mattress on the floor.

[127] The father testified to examples of cooperation between him and the mother. He spoke of sending the mother a picture of Ella jumping off a diving board and the mother sending photos of “big events”. The father testified to examples of flexibility he has shown with regards to the access schedule to accommodate the mother’s requests. The father testified to instances where he has had to deal with medical issues regarding Ella and he would promptly inform the mother. The father spoke of doing homework with Ella on Saturday morning every other weekend to give the mother an opportunity to do the same. Both attend soccer games on Thursday nights. Both attended a recent parent teacher interview.

[128] The father believes that the reason he and Samantha broke up was due to the stress caused by the situation with the applicant. He described the stress of having to be in Goderich five times a week and the difficulty of building a family when he is never around. He described attempts to change the schedule to accommodate his needs and the changing needs of Ella and the mother’s refusal to accommodate these requests.

Removal of Funds from Education Account

[129] The mother testified with respect to the father’s removal of funds from Ella’s bank account at Scotiabank. The account had been set up for Ella`s education. Both the mother and father had access to the account. The account had been funded from gifts to Ella from various family members. The Savings Account History[^8] was filed as an exhibit at trial. The statement indicates the aggregate sum of $3200 was removed from the account during the period February – October 2010.

[130] The father does not dispute that he took the money but explained that he took the money because he was in a rough spot at the time and wanted to provide a lifestyle that Ella enjoys with the mother. The funds were used in part to pay for utilities and mobile phone expenses. The father admitted he made a mistake.

[131] The father explained that he was prepared to repay the money to the account but the mother refused to allow him access to the account. Instead, the father has placed approximately $5000 from insurance proceeds in a mutual fund for Ella’s education. Only the father has access to this account.[^9] The father is unable to set up an RESP for Ella as the mother refuses to provide him with Ella’s social insurance number.

Evidence of Non-Parties

(i) Evidence of Shayne Reinhardt – CAS Investigator

[132] Ms. Reinhardt is a child protection investigator with Huron Perth CAS. She was directly involved in the July 2012 incident involving domestic violence between Samantha and the father. She was contacted by the police following the incident to conduct an investigation including interviews of the parties involved and also an interview of Ella and the mother as being parties affected by the incident and any protection measures taken by the CAS. Ms. Reinhardt was uninvolved in the other incidents reported to CAS.

(iii) Evidence of Kelsey Good

[133] Kelsey Good is the mother’s younger sister. In large part, Ms. Good provided evidence of the father’s character. She testified that her relationship with the father was like “brother/sister”. She testified as to her observations of incidents where the father had been drinking. Ms. Good testified that the father was quick to anger after he had been drinking. Not surprisingly, Ms. Good’s evidence echoed the evidence of the mother on all issues including the father’s behaviour after consuming alcohol, attempts to reconcile, the father’s conduct during the birth of Ella and the father’s behaviour dropping off Ella following access visits. Ms. Good testified to observing on a couple of occasions the father acting in an appropriate fashion when dealing with Ella.

[134] Ms. Good is an intake worker with Owen Sound CAS and at the time of the August 2011 incident had been working in that position for six months. She testified that she felt it was her duty to contact CAS based on the information provided by the mother regarding Samantha driving without a proper license and the father using inappropriate language in front of Ella and Jake.

(iv) Evidence of Samantha Maxwell

[135] Samantha testified that she and Jake had moved out of the father’s home in Egmondville in March 2013. She blamed the break-up on the mother claiming the stress of the situation between the mother and the father was no longer tolerable. She also blamed two miscarriages on the stress caused by these court proceedings and the ongoing custody and access battle between Ashley and Phillip.

[136] Samantha testified to taking part in the Group Delta program which focusses on building healthy relationships. She confirmed that the father took part in the “Caring Dads” program to assist him in parenting Jake. She considers the father an “amazing” parent to Ella and step-parent to Jake. She testified that he was Ella’s “protector”. She described her former relationship with the respondent and the activities they would do together as a family including visiting her parents’ farm. She testified that most of their time was spent with the children when they were with them.

[137] Samantha is of the view that while the father is flexible with respect to access schedule changes, it is not reciprocated by the mother and gave as an example the mother’s refusal to allow Ella to spend time with the father’s grandfather when he was terminally ill.

(v) Evidence of Beverly Good

[138] Beverly Good is the applicant’s mother. Similar to both of her daughters, she also testified as to her observations regarding the father’s character. Not surprisingly, her evidence echoed the evidence of the mother with respect to the birth of Ella, the events of the weekend in October 2008 leading up to the separation, events post-separation and, in particular, observing Samantha’s vehicle present at the father’s home despite the no-contact order. She testified to a couple of occasions where she had to pick up Ella from the father’s house in Egmondville on a Saturday when he refused to drop her off to the mother.

[139] Beverly Good testified to an incident on June 26, 2013 when she ran into the father at a gas station and observed Ella in the truck alone. The father was inside the store purchasing lottery tickets. Ms. Good testified that it was a hot day and the windows were rolled up. She expressed concern with Ella being left alone inside the truck for three to five minutes as somebody could have taken her.

[140] On cross-examination, she confirmed that she was authorized to pick up Ella from daycare and school but that the paternal grandparents were not. She further confirmed that she was unaware of any “no-contact” order made between Samantha and Ella.

(vi) Evidence of Kimberly Anne Austin

[141] Kimberly Austin is the mother of Phillip. She resides in Goderich with Phillip`s father. Ms. Austin works at Zehrs and also takes care of her six grandchildren from time to time. She resides in a three bedroom home with a finished basement. Since the house fire, the father has lived with his parents. On Friday nights, Ella sleeps in a single bed in the computer room by herself. Ms. Austin testified as to the loving relationship between her son and Ella. She spoke of the routine on an average Saturday which included breakfast, swimming lessons, sometimes homework and playtime.

[142] Prior to separation, Ms. Austin would care for Ella while the mother went to bingo with her mother or the father was working or playing baseball. Ms. Austin commented that she was not approved to pick up Ella from school despite being a five minute walk from the school. She spoke of her son`s ability to care for and parent Ella. She explained that Phillip had been raised to look after children having grown up in a large family. She acknowledged that it was difficult for her son to connect with Ella when she was very young as she liked tea parties and dressing up and preferred her mother. Ms. Austin observed that as Ella got older, her son was able to interact with her more such as by playing games, swimming and skating. Ms. Austin testified that she will play with Ella but that her son is a “grown man” and can care for his own daughter by making her meals and putting her to bed, and does.

[143] Ms. Austin testified that after suffering the brain injury, her son requires more time to think and speak when he is tired. She observes that he drinks occasionally but he is not permitted to drink in front of Ella in her home. She does not drink. While she and her son smoke in her home, she does not allow smoking in the home when Ella is present and three hours before any access visit.

(vii) Evidence of Michele Austin

[144] Michele Austin is the father`s sister. She resides in Goderich with her partner and five children. She gave testimony regarding the amount of time which Ella spends at her home and where she sleeps when she spends the night. She described how the father typically spends his access time with Ella on Wednesday nights at her home. Michele testified that Ella has her own room on the nights she sleeps over.

[145] Michele spoke of the father helping to prepare meals for Ella. She has observed the father supervising, playing with and disciplining all of the children. She testified that her son Cody, 11 years of age, is permitted to supervise all of the younger children in the backyard otherwise an adult is present.

[146] Michele testified that smoking is not allowed in the home; however, smoking is permitted on the front and back porches.

[147] With respect to the incident involving an allegation that her son, Jared, had exposed himself to Ella, she testified that since speaking with CAS about the issue, Jared and Ella are never left alone together. She does not recall a discussion regarding this incident with her brother and testified that the first she heard about the incident was from CAS.

[148] With respect to her observations of her brother`s brain injury, she testified that she has not observed any issues which affect his abilities to care for the children. She leaves her five children with him every Saturday morning because both her and her partner are working. She has never observed him to drink around the children or to excess.

[149] She believes her brother is a capable, responsible, loving parent to Ella.

Applicable Law

The Legislation

[150] This is an application under the Divorce Act (the “Act”). Section 16 of the Act provides that a court may make an order respecting custody of or access to the child of the marriage on application by a spouse or by any other person. Pursuant to subsection 16(4) of the Act, the court may make an order granting custody of a child to any one or more persons. The only factor that a court shall take into consideration when making an order under section 16 is the best interests of the child as determined by the conditions, means, needs, and other circumstances of the child.

[151] Under s. 16(9) of the Act, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the ability of that person to act as a parent of a child. Further, in s. 16(10), the court shall give effect to the principle that a child should have as much contact with each spouse as is consistent with the best interests of the child and, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact.

[152] Courts in Ontario routinely refer to s. 24 of the Children’s Law Reform Act[^10] (the “CLRA”) as a guide when conducting a “best interests” analysis under the Act.

[153] Section 24 of the CLRA provides as follows:

Merits of application for custody or access

24. (1) The merits of an application under this Part in respect of custody of or access to a child shall be determined on the basis of the best interests of the child, in accordance with subsections (2), (3) and (4).[^11]

Best interests of child

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

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

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

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

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

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

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

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

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

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

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

(h) the relationship by blood or through an adoption order between the child and each person who is a party to the application[^12]

Past conduct

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

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

(b) if the court is satisfied that the conduct is otherwise relevant to the person’s ability to act as a parent. [^13]

Violence and abuse

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

(a) his or her spouse;

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

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

(d) any child.[^14].

Jurisprudence - General Principles

[154] In Young v. Young,[^15] the Supreme Court of Canada elaborated on the concept of the best interests of the child. The court concluded that in determining what is in the best interests of the child regard must be had to “the age, physical and emotional constitution and psychology of both the child and his or her parents and the particular milieu in which the child will live."[^16]

[155] In cases involving disputes over custody and access of a child, the sole question to be determined is what custodial and/or access arrangement is in the best interests of the child?

[156] In resolving this question, regard must be had to s. 16(10) of the Divorce Act which mandates that the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child.

[157] The “maximum contact” principle is mandatory but not absolute.[^17] Giving effect to the “maximum contact” principle is only appropriate where it is in the best interests of the child.

[158] For a court to award joint custody, there must be sufficient evidence before the court demonstrating that the parties are able to cooperate and to communicate effectively with one another with regards to the parenting of the child.[^18]

Analysis

Issue #1: What type of custodial arrangement is in the best interests of Ella and what weight should the court give to the parties’ agreement to share joint custody of Ella as provided for in the Settlement Agreement?

[159] Although, at first blush, it would appear these parties cannot communicate and cooperate effectively, a more in-depth analysis of the evidence is necessary in order to resolve the issue. It has been almost six years since the marriage ended and almost three years of litigation yet somehow this young girl has thrived despite the parents’ ongoing acrimony. Clearly, the situation has evolved. Ella is thriving because along the way there has been a degree of communication and cooperation between the parties.

[160] This is not a case where a determination of what is in the best interests of Ella requires the court to make findings of credibility.

[161] The evidence given by the mother, her sister and the maternal grandmother as to what they observed of the father’s conduct prior to and post separation was largely uncontroverted by the father and witnesses called by him. Similarly, the evidence of the father, his sister and mother was largely undisputed by the mother and witnesses called by her.

[162] Text messages between the parties are helpful but the weight to be given these messages when the entire exchange has not been placed into evidence rather only self-serving excerpts of the exchange, is significantly reduced. On cross-examination, the mother admitted that there were many text exchanges between the parties that did not make it into the evidence. One can only draw the inference they were innocuous at best and quite likely positive in nature reflecting cooperation between the parties.

[163] My task is to assess the totality of the evidence and determine whether (i) there is evidence of cooperation and communication sufficient to justify maintaining the present joint custodial arrangement as being in the best interests of Ella; and (ii) to fashion an access arrangement that is in the best interests of Ella.

[164] Not unexpectedly, the mother seeking sole custody presented only the most egregious examples of the parties’ conflict over the past six years. In contrast, the father spoke to instances of cooperation and communication and pointed to decisions made jointly in recent years regarding Ella’s extracurricular activities. I find that over the years these parties have arrived at mutual decisions regarding the health and welfare of Ella and recently have reached agreement on Ella’s participation in extracurricular activities. More importantly, the parties have not demonstrated a fundamental disagreement on significant matters such as her education, religious upbringing and/or medical care.

[165] Pointing to incidents that occurred years ago, is not helpful. In fact, s. 16(9) of the Act mandates that the court shall not take into account the past conduct of a party unless that conduct is relevant to the ability of that person to parent the child.

[166] The mother urges me to find that the father is not fit to co-parent the child on grounds that the father has a drinking problem, regularly places Ella in unsafe situations, has a history of violence and regularly exercises poor judgment and common sense as a result of his acquired brain injury.

[167] Curiously, the mother does not seek to restrict his access on these grounds and has not sought to take away his Friday overnight access for these reasons. The mother has been content to have Ella remain in the care of the father for one overnight a week despite the perceived issues with the father’s mental and emotional state. No temporary order was made, let alone sought by the mother, to restrict the father’s access as provided for in the Separation Agreement. The draft order presented by the mother at the end of trial expands that access to alternating weekend access with the sole issue being the return time on Sunday. Query why alternating weekend access was not agreed to long ago as being in Ella’s best interests?

[168] Turning now to the Separation Agreement. On February 18, 2011, after extensive negotiation between the parties spanning in excess of two years, Ashley and Philip entered into the Separation Agreement. As already noted, the parties were represented by counsel during the negotiation and execution of the Separation Agreement.

[169] Earlier in these reasons, all of the provisions of the Settlement Agreement relating to the issues of custody and access were reproduced.

[170] The parties currently share joint custody of Ella as agreed by them in February 2011 and which custodial arrangement is embodied in the Separation Agreement. The mother is seeking to alter that custodial arrangement and is asking for sole custody of Ella. The grounds for this requested relief are two-fold: first, the mother claims there has been a material change in circumstances since the father moved from Goderich to Egmondville; second, the mother claims she did not understand the implications associated with joint custody and what that concept entailed when she signed the Separation Agreement. Presumably, a non est factum argument is being advanced.

[171] The mother’s evidence that she did not understand the import of joint custody when she signed the Separation Agreement is not supported by the evidence. A year before the Separation Agreement was signed and almost a year after retaining Ms. Masson and in the midst of negotiating the Separation Agreement, the mother writes to Ms. Masson on January 24, 2010[^19] and expresses her concerns with respect to the then most recent changes to the agreement and states her concerns with respect to the father’s ability to care for Ella due to his head injury. The mother goes on to state as follows:

I would love sole custody of Ella but would agree to joint as long as I am main care giver and decision maker.

[172] More than a year later after further negotiation, the mother signed the Separation Agreement containing the following terms:

The parties will have joint custody of Ella. Ella’s day-to-day residence will be in the Wife’s home and she will make the day to day decisions regarding Ella’s care.

The parties shall confer with each other on all plans and arrangements relating to access to and custody of Ella and generally, on all important matters relating to Ella’s health, residence, education, religious training and upbringing.

[173] Not surprisingly, the father is asking the court to uphold the agreement of the parties on this issue claiming there has been no change of circumstances which would justify a change of the parties’ agreement.

[174] The mother’s evidence that she did not understand the concept of “joint custody” and that she was misled by her counsel when she signed the Separation Agreement is not tenable. The Certificate of Independent Legal Advice is clear. There was no evidence led that the mother did not have capacity to understand the acknowledgements contained in the ILA Certificate. What a sorry state the law would be in if these certificates could be ignored at whim.

[175] The mother presented as diligent throughout these proceedings with respect to every issue including the long and tortured negotiations leading up to the signing of the Separation Agreement. I have no doubt that before signing the Separation Agreement the mother ensured that she received full and proper legal advice as to the legal ramifications in respect of each and every provision. If she did not understand the concept of joint custody when negotiations first began, I have no trouble concluding that she understood the concept when she signed the Separation Agreement. The Certificate of Independent Legal Advice leaves no doubt.

[176] The mother is bound by her agreement to share joint custody of Ella with the father in accordance with the terms of the Separation Agreement (see paragraphs 6 through 14 of the Separation Agreement portions of which are reproduced above). The parents stand in the best position to determine what is in the best interests of their child. Where they come to an agreement on that issue, the court should not interfere absent compelling evidence that a failure to do so would not be in the best interests of the child.

[177] The parties’ agreed that it was in the best interests of Ella they share joint custody. There is no basis on the evidence presented to cast aside that agreement. Permitting parties to disregard their obligations and agreements negotiated and entered into in good faith would set a dangerous precedent. It would discourage parties to settle their differences - the very antithesis to a successful joint custodial arrangement. Simply because the issue involves custody of a child does not change my view. Absent a manifest change in the circumstances of a parent which make that parent unable to make sound decisions and choices regarding the child’s health and welfare, education and religious upbringing, the parties’ agreement to a joint custodial arrangement freely and willingly entered into shall prevail.

[178] The mother attempts to justify a change of the custodial arrangement by pointing to the parties’ inability to cooperate and communicate on issues affecting Ella’s interests following signing of the Separation Agreement. The mother submits that the many examples of conflict between the parties since February 2011 constitute the necessary “material change”.

[179] Assuming a lack of communication and cooperation between the parties, the law clearly favours a sole custody arrangement in these circumstances.[^20] As noted above, the case law relied upon by the mother to support her request for sole custody goes so far as to say that the court cannot award joint custody when the parties are unable to cooperate and communicate in respect of decision making.[^21]

[180] The situation before me is far from analogous. What distinguishes this case from other cases where joint custody was deemed inappropriate is the mother’s agreement to joint custody three years ago – mid-way through the period since separation. This issue was resolved in February 2011. Should the mother be permitted to go back on that agreement? Has there been a material change in circumstances which would suggest that the present joint custody arrangement is not in the best interests of Ella?

[181] The mother points to the common law relationship between Philip and Samantha which commenced in the fall of 2011 which directly or indirectly resulted in numerous calls to the police and CAS for various reasons. At or about this same time, Philip moved to Egmondville approximately 45 kilometers southeast of Goderich.

[182] In her testimony, the mother referred to paragraph 22 of the Separation Agreement which states:

The material change need not relate to circumstances or events which are consequences of the parties’ cohabitation. The Husband obtaining new employment will be considered to be a material change in circumstances.

[183] That material change provision relates only to child support and does not relate to a variation of access or custody. The Separation Agreement does not contain a material change clause for either the custody section or the section dealing with access.

[184] Instead, with respect to access the Separation Agreement mandates cooperation as follows:

13. When special opportunities for Ella arise or when unusual problems to the parties occur in relation to access, neither party will unreasonably insist on strict adherence of the foregoing arrangements. Instead, they will cooperate in making reasonable alternative arrangements so that the interests of Ella prevail. If either party requires a change to the current visitation schedule that request shall be made within 48 hours in advance.

[185] Similarly, with respect to changes to the holiday access schedule, the Separation Agreement contains the following provision:

The parties agree that, as Ella matures, changes may be necessary to the foregoing visitation schedule, to take into account Ella’s age and changing needs and to take into account her best interests. The parties will therefore regularly review the terms related to the parties’ care of Ella and the terms related to ‘Holidays and other Occasions’”.

[186] How the father’s move to Egmondville, a town 45 minutes from Goderich, has any bearing on the ability of the parties to make joint decisions regarding Ella’s health and welfare including medical care and treatment, education and religious upbringing, is unclear. In my view, this is not a material change which supports an award of sole custody in favour of the mother.

[187] I will now consider the instances of conflict between the parties since February 2011. The mother has taken a very aggressive approach to this litigation and to the issues between her and Philip since the date of separation. The mother has been vigilant in ensuring that her interests have been protected. I observed the mother as someone so emotionally invested in Ella that her own good judgment has eroded over the many years of conflict and litigation.

[188] In Kaplanis the Court of Appeal overturned the trial judge’s decision to award joint custody where the evidence was insufficient to establish the parties were capable of cooperating and communicating effectively. Different from the case at hand, Kaplanis involved a child less than two years of age and who had never had an overnight access visit with her father. At the time of trial, the parties had been separated for one-and-a-half years. There was far less history from which to draw evidence of cooperation and communication. Moreover, the tender age of the child elevated the level of communication and cooperation which was required to support an order for joint custody.

[189] In Roy, the trial judge’s decision to award “shared parenting” was overturned as there had been overwhelming evidence at trial and during interim proceedings of a fundamental mistrust between the parties and a “horrible rift” in terms of communication as noted by the judge. I am unable to make any such finding here.

[190] The applicant further relies on 1979 decision of the Court of Appeal in Baker v. Baker[^22] In that case the court overturned an award of joint custody having found, on the evidence, the parties unable to co-parent. The court concluded that joint custody should be awarded in only exceptional circumstances. Mercifully, the world has evolved since the Baker decision. Given the rise in the number of marital breakdowns over the past 35 years, courts are seeing more and more parents falling into the category of “exceptional” as described in Baker making joint custodial arrangements less the exception and more the norm. Of course, evidence of the parties’ ability to communicate and cooperate effectively remains a prerequisite to any award of joint custody.

[191] Each case will turn on its particular facts. For example, in M. (M.) v. K. (R.L.)[^23] the court found that the mother suffered from mental health issues which impacted on her ability to make sound decisions regarding the care of the child.

[192] The mother points to the parties’ inability to communicate and cooperate as justification for setting aside the current custody arrangement. The mother has created an environment which is not conducive to open communication. She has, without little, or any, justification contacted CAS on three occasions and pre-emptively contacted the police in anticipation of a breach of the access terms of the Separation Agreement[^24] - a breach which never came to pass. The toxic environment is one of her own making and is in direct violation of the spirit of paragraph 8 of the Separation Agreement. If the parties abide by their obligations pursuant to paragraph 8, communication and cooperation will prevail.

[193] While the applicant believes that her actions were motivated by a desire to protect Ella, they have had the opposite effect. Shielding Ella from life’s moments, both good and bad, is not in her best interests. The father has done the best he can in difficult circumstances. No understanding was given by the mother when the father was laid off from his job in Goderich and forced to find employment out-of-town to ensure he could provide for Ella’s support. To supplement his income, he would catch chickens after his day shift thus further reducing his time available to spend with Ella. The applicant declined to offer any flexibility in the access schedule when the father’s home was severely damaged by fire. Instead, she seized on both events as opportunities to add to the heap of evidence she was compiling for trial to support her bid for sole custody.

[194] The mother alleges that the father is using Ella as a “pawn”. The evidence suggests it is the mother who has used this child to wage war against the father under the guise of her concern for Ella’s safety. The only evidence of ‘harm” suffered in the father’s care over the past six years are pictures showing bug bites, a bumped head, a superficial burn to a finger and scratches to Ella’s face.

[195] The totality of the evidence at trial supports a finding that the father is a responsible, hard-working, caring, loving parent of Ella who has over the years put the interests of his child ahead of his own.

[196] The father is not seeking sole custody; rather, asking that the mother respect the agreement they made. The Separation Agreement reflects the agreement of the parties. That agreement requires the parties to work together and specifically to agree to requests for flexibility in the access schedule as Ella grows and develops. Over the course of the past three years, the applicant has ignored the terms of the agreement. This cannot continue.

[197] A party cannot contrive a situation in order to support a change in custody. There is no rational basis for the mother’s fixation on the “safety” of Ella while she is in the care of the father. I am not persuaded on the evidence that there is any risk to Ella’s safety when in the care of the father.

[198] There is no material change in circumstances upon which the mother relies to establish that any lack of cooperation and communication was caused by decisions or conduct of the father. The mother’s complaints and issues with regards to the relationship between and among Philip, Samantha, Ella and Jacob were ill-founded and misguided.

[199] I am mindful of the case law which cautions against awarding joint custody based on a belief that a resolution of the litigation will promote cooperation and communication between the parties.[^25] That is not what I am purporting to do. There has been no material change in the circumstances or in the ability of the parties to cooperate and communicate. The best interests of Ella require that the parties abide by their respective obligations under the Separation Agreement.

[200] The joint custody arrangement shall be upheld.

Issue #2: What access arrangements (regular, holiday and telephone) are in the best interests of Ella?

[201] The mother is unable to appreciate that Ella is no longer a very young child. Over the past five-and-a-half years, she has gained independence and requires a different type and level of care. At the same time as Ella has been maturing and developing and becoming a well-adjusted, happy child, the father has developed into a mature, responsible caring father to Ella. What started off as a 26-year-old father caring for his eight-month-old daughter following the abrupt end of his marriage, has evolved into a 31-year-old father caring for his six-year-old daughter after many years of having been separated from her mother. It has been years since the father has indicated a desire for reconciliation. Other relationships have intervened. At this point, the length of separation has far exceeded the length of the marriage.

[202] The mother appears to have largely ignored her obligations and agreements contained in the Separation Agreement. She has admitted that she has not demonstrated flexibility in the access schedule and, instead, has chosen to rigidly adhere to paragraph 5 of the Separation Agreement despite the requirement for flexibility.

[203] The mother has resisted any flexibility or variation to the access schedule despite her admission that Ella would benefit from less frequent access visits with father but of longer duration.

[204] The “maximum contact” principle requires that Ella have as much contact with both parents as is consistent with her best interests. The father has shown he is willing to parent Ella and seeks as much time with Ella as his work schedule permits and is fair to the mother.

[205] It is beyond question that it is in the best interests of Ella to see not only her father during her access visits but also his extended family. The paternal grandparents provide the father with a ready source of care and love for Ella in Goderich. So, too, does his sister, Michele. As earlier noted, Ella is no longer a baby or a toddler. She remains a young child but is gaining independence with each passing day. Ella is presently enrolled in Grade one. Ella no longer needs the level of care and attention she did when the parties separated and when the parties signed the Separation Agreement.

[206] A significant portion of the parties’ inability to cooperate revolved around issues of access and, in particular, flexibility in connection with the access schedule. Both parties agree that less frequent access of longer duration per access visit is in the best interests of Ella. By amending the access schedule to reduce the commuting time during the week and to provide for alternating weekend access should permit both parties to plan for overnight weekend travel and other activities where such travel plans and activities could not be accommodated by the existing access schedule.

[207] Presumably, Ella’s bedtime is later now than it was when the current access schedule was agreed to by the parties. It is appropriate that the return time be 8:00 p.m. on both Sundays and Wednesdays.

[208] With respect to Ella’s two months’ summer vacation, the father seeks four weeks with Ella during the summer. I do not find it appropriate that Ella spend one-half of her summer vacation without access to the other parent. That said, there is no reason the father should not enjoy the same amount of vacation time with Ella as the mother. Both the mother and father work full time. The father has a scheduled two-week shutdown each summer. The father’s vacation time should, therefore, include this two-week shutdown period.

[209] The applicant refuses to participate in any of the transportation of Ella to facilitate the father’s access pointing to the father’s decision to move to Egmondville. The applicant refers me to the decision in MacMillan v. MacMillan[^26] as support for an order requiring the father to pay for the cost of transportation for pick up and drop off and to remain solely responsible for the transportation of Ella.

[210] MacMillan involved a physician father who moved four hours from the mother’s residence and set up practice which resulted in him making substantially less income. He requested an order requiring the mother to share the driving. The court denied the request noting that in most cases the access parent does not have to undertake mundane activities (such as grocery shopping, laundry and driving to and from activities) in a proportionate share with the other parent.

[211] In this case, the father moved 45 kilometers from Goderich to be closer to his place of employment in Seaforth. Had the Volvo plant not closed, I have no doubt he would continue to reside in Goderich. The relatively minor cost and aggravation to the mother associated with sharing the transportation of weekend and holiday access is reasonable in the circumstances. The father agrees to be responsible for all weekday access transportation.

[212] To date, the mother has refused to place Ella’s paternal grandparents on the approved list of persons approved to pick up Ella from school and daycare. This is an entirely unreasonable position. Kimberly Austin and Michele Austin are approved to pick up Ella from school and daycare.

[213] Scheduling a specific time during the week to exercise telephone access is not required. The parties have agreed to telephone access and to facilitate and promote reasonable telephone access between Ella and the parent with whom she is not residing at the time. That is sufficient to meet the needs of the non-resident parent.

Issue #3: Should any restrictions or conditions be placed on the manner in which the father exercises his access to Ella?

[214] I found the testimony of the Kimberly Austin to be frank, candid and above all truthful. Her evidence and the evidence of Michele Austin support a finding that the father is responsible in his alcohol consumption when caring for Ella. Dr. Loh does not recommend any restriction on his alcohol use as a result of his acquired brain injury. Dr. Loh does not recommend any restrictions on the father’s lifestyle at all. I am not persuaded that the father has any issues with alcohol that would necessitate the court’s intervention.

[215] No evidence of violence towards the mother or Ella whether pre or post separation was placed into evidence. Aside from his conviction for impaired driving in 2005, I am unaware of any other criminal convictions or restraining orders that have been issued in respect of the father.

[216] By the time this decision is released, the father will have returned to living in his home in Egmondville thus addressing the mother’s concerns of Ella not having a stable and consistent place to sleep during overnight access visits. While the father will most likely continue to spend time with Ella at the home of his parents and the home of his sister, I am satisfied that appropriate sleeping arrangements for Ella have been made in these homes.

[217] All medical assessments conducted on the father with respect to his brain injury suffered in 2005, including the assessment conducted by Dr. Loh pursuant to the order of Heeney J., have concluded that the father does not suffer any permanent impairment requiring restrictions on alcohol consumption or activities.

[218] The applicant stresses that the only reason she has resisted additional access time with the father or his extended family is as a result of safety concerns for Ella.

[219] None of those concerns stretch beyond what is normal and to be expected in the circumstances. The CAS, whose role it is to protect vulnerable children, does not share the mother’s concerns.

[220] CAS has investigated each complaint made by the mother and in each instance has, after a short or no investigation, closed its file. If there are proven health and safety issues relating to the father’s ability to care for Ella, presumably the Office of the Children’s Lawyer would have gotten involved in this litigation. The Office of the Children’s Lawyer chose not to get involved in these proceedings.

[221] There is no evidence upon which to find that restrictions need to be placed on the manner in which the father exercises his access time with Ella.

Issue #4: Should the terms of the order of Heeney J. form part of the final order dealing with incidents of access?

[222] The Heeney J. Order was made prior to the preparation of Dr. Loh’s report. Having considered all of the evidence, including the report of Dr. Loh and the testimony of the witnesses, I am of the view that the provision of the Heeney J. Order requiring the parties to notify the other should Ella sleep other than at their residence to be unworkable. I am confident that the parties are capable of ensuring Ella has suitable sleeping arrangements should she stay overnight in a home other than her parents’ homes. The evidence suggests that to date those arrangements have been put in place. There is no reason to doubt that will continue and as such an order is not necessary.

Issue #5: Is the father liable for repayment of monies withdrawn from Ella’s trust account?

[223] Simply stated – yes. The father withdrew monies from Ella’s education account without the approval of the mother and those monies were used for unauthorized purposes. Those monies must be returned. The father testified that he is holding $5000 from insurance proceeds in a bank account for the benefit of Ella’s education. That account is to be closed and those monies deposited to Ella’s bank account. It is appropriate that the father remain as a signatory on the account, together with the mother; however, any withdrawals or other dealings with these monies will require the signature of both the father and the mother.

[224] Once the mother obtains a social insurance number for Ella, I recommend that the parties set up an RESP for Ella using these funds.

Conclusion

[225] While perfection in parenting is a laudable objective, it is unachievable on any realistic basis. Parents falter from time to time. Parents make mistakes in the carrying out of their parental duties and responsibilities despite their best intentions. This is to be expected.

[226] A fresh start beckons. I am hopeful that these parties will find that with this decision and the end of this litigation they can focus not on what led to the breakdown of their relationship; but rather, on building their relationship with Ella in a cooperative fashion. They each possess the tools and, most of all, the desire to raise a happy, secure and well-adjusted child. I have every confidence they will succeed.

Disposition

[227] Therefore, a Final Order shall issue as follows:

1. The Applicant, Ashley Suzanne Good (formerly Austin) (the “mother”), and the father, Philip Raymond Austin (the “father”), and together with the mother, the “parties”), shall share joint custody of the child of the marriage, Ella Rae Suzanne Austin, born February 13, 2008.

2. Each party shall assume responsibility and decision-making authority for the child during times when the child is in their care.

3. The parent, who has care of the child at the relevant time, shall attend to all emergency needs and shall notify the other parent immediately.

4. Neither party may unilaterally change any of the child’s existing relationships with schools, daycare providers, medical personnel or recreational facilities.

5. The paternal grandmother, Kimberly Austin, and the paternal aunt, Michele Austin, are authorized to pick up the child from school and/or daycare.

6. The father shall be entitled to attend any and all appointments and events and trips related to the child and to receive disclosure and information directly from the child’s school(s), tutor(s), daycare(s) or other childcare providers, doctors, dentists, teachers, counselors, coaches, and/or any other professional or individual involved with the child including but not limited to, calendars and schedules, notification of appointments, events, trips, documents, reports, letters and report cards.

7. The mother shall execute any and all consent forms or provide any authorization required to effect this access by the father.

8. The child shall have her primary residence with the mother.

9. The child shall be in the care of the father as follows:

a. Every other weekend from Friday pick up at school, or 3:30 p.m. if the child is not in school, until Sunday at 8:00 p.m.; and where such weekend coincides with a school professional development day, the father’s access shall be extended to include such additional day(s).

b. Every Wednesday from pick up at school, or 3:30 p.m. if the child is not in school, until 8:00 p.m.

10. The child shall be in the care of the parties during holiday and vacation periods as follows, which shall supersede the regular schedule set out in paragraph 9 above:

a. Each of the parties shall be entitled to three weeks’ vacation with the child each calendar year, which in the case of the father shall include any summer employer shutdown period, and shall not be exercised during the holiday periods set out at paragraphs d., e. and f.

b. The father shall provide the mother with advance notice of the dates of any summer employer shutdown within five days of receiving notice from his employer as to when the summer employer shutdown will be occurring.

c. Each party shall provide 60 days’ advance notice of the first date of the commencement of their vacation week(s) with the child.

d. Easter weekend shall be split equally between the parties. If the child is scheduled to be in the care of the mother on Easter weekend, the father shall have access from Thursday at 3:30 p.m. until Saturday at 2:00 p.m. If the child is scheduled to be in the care of the father on Easter weekend, the father shall have access from Saturday at 2:00 p.m.. until Monday at 8:00 p.m.

e. Thanksgiving weekend shall be split equally between the parties. If the child is scheduled to be in the care of the mother on Thanksgiving weekend, the father shall have access from Sunday at 2:00 p.m. until Monday at 8:00 p.m. If the child is scheduled to be in the care of the father on Easter weekend, the father shall return the child to the mother on Sunday by 2:00 p.m.

f. The child shall be in the care of the mother in even years from December 24th at 3:00 p.m. to December 25th at 3:00 p.m. The child shall then be in the care of the father from December 25th at 3:00 p.m. until December 26th at 3:00 p.m. In odd years, the child shall be in the care of the father from December 24th at 3:00 p.m. to December 25th at 3:00 p.m. The child shall then be in the care of the mother from December 25th at 3:00 p.m. until December 26th at 3:00 p.m.

g. Notwithstanding the regular access schedule, the child shall always be with the mother on Mother’s Day from 10:00 a.m. until 8:00 p.m. and with the father on Father’s Day from 10:00 a.m. until 8:00 p.m.

11. Both parties shall be entitled to reasonable telephone access with the child when the child is in the other parent’s care.

12. The child shall be permitted to contact the other parent via telephone, when in the care of the other parent, in accordance with the child’s wishes.

13. The mother shall provide the father with Notarial copies of the child’s Health Card, Birth Certificate and Passport.

14. The mother shall apply for a Social Insurance Number for the child and shall provide the father with a Notarial copy of the card once it is received by her.

15. If either party proposes a trip with the child, all details of the trip, including but not limited to, a detailed travel itinerary with dates, times and specific details regarding accommodations, and contact information, shall be provided to the other parent at least 30 days before the proposed trip. The parent receiving the detailed travel itinerary shall provide a travel consent form to the other parent, such consent not to be unreasonably withheld.

16. The parties shall share equally all travel in relation to the child’s weekend and holiday access, with the father travelling to pick up the child at the start of any weekend and holiday access period and with the mother travelling to pick up the child at the end of any weekend and holiday access period.

17. The father shall be solely responsible for all travel and expenses related to the weekday access provided for in paragraph 9b.

18. Each party shall keep the other informed of their current residence and of anyone sharing their residence with them.

19. Each party shall encourage the child to have a positive, respectful attitude toward the other party, and the other party’s family and friends. Neither party shall allow the child to be exposed to any negative comments about the other party, or the other party’s family and friends.

20. Each party shall ensure that the child has her own bedroom in their respective residences.

21. The parties shall not permit any other individual to, and they shall not themselves, piece or tattoo the child’s body or significantly change the child’s hairstyle in such a way that would significantly alter her appearance.

22. A divorce shall proceed on an uncontested basis.

23. By no later than October 31, 2014, the father shall deposit the sum of $5000 to the account of the child with Scotiabank in full reimbursement of all amounts removed by the father and interest on those amounts. Both parties shall be named as signatories on the account; however, all withdrawals from the account shall require the signatures of both the mother and the father and the parties shall sign all paperwork necessary to give effect to this requirement.

[228] The parties are encouraged to resolve the issue of costs. If an agreement on costs cannot be reached, the parties shall file written submissions, not exceeding five pages in length, in accordance with the following timeline:

a. The applicant shall serve and file her submissions within 21 days;

b. The respondent shall serve and file his submissions within 14 days of receipt of the applicant’s cost submissions; and

c. Any reply submissions shall be served and filed within 7 days thereafter.

“Justice A. K. Mitchell”

Justice A. K. Mitchell

Released: October 1, 2014.

COURT FILE NO.: 155-2011 (Goderich)

DATE: 20141001

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Ashley Austin

Applicant

• and –

Philip Austin

Father

REASONS FOR JUDGMENT

Mitchell J.

Released: October 1, 2014

[^1]: Exhibit 1, Tab 1, p. 20 [^2]: Exhibit 1, Tab 1, p. 28. [^3]: Exhibit 16, Report of Dr. Eldon Loh dated March 12, 2014. [^4]: Exhibit 2, Tab 6, pp. 25 and 26 [^5]: Exhibit 2, Tab 6, p. 18 [^6]: Exhibit 2, Tab 3, pp. 19-24, December 2011 through April 2012 identifying the days on which the father’s mother utilized the fathers access visits; Exhibit 12, January 2013 through March 2014 [^7]: Presently Tuesdays from 6:30 to 7:15 p.m. [^8]: Exhibit 4, Savings Account History. [^9]: Exhibit 20, Account Statement. [^10]: R.S.O. 1990, c. C-12 [^11]: 2006, c. 1, s. 3 (1). [^12]: 2006, c. 1, s. 3 (1); 2009, c. 11, s. 10. [^13]: 2006, c. 1, s. 3 (1). [^14]: Ibid. [^15]: 1993 34 (SCC), [1993] 4 S.C.R. 3. [^16]: Ibid. at p. 66. [^17]: Gordon v. Goertz, 1996 191 (SCC), [1996] S.C.J. No. 52 (S.C.C.) at 29. [^18]: Ibid; Kaplanis v. Kaplanis, 2005 1625 (ONCA); Roy v. Roy, 2006 15619 (ON CA), [2006] O.J. No. 1872 (C.A.). [^19]: Exhibit 1, Tab 1. [^20]: See Kaplanis v. Kaplanis, 2005 1625 (ONCA); Young v. Young, 1993 34 (SCC), 1993 4 S.C.R 3; [^21]: Roy v. Roy 2006 15619 (ON CA), 2006 O.J. No. 1872 (Ont. C.A.) [^22]: (1979), 1962. [^23]: 2008 BCSC 1042 (S.C.). [^24]: A parent’s first reaction to a request from the other parent for flexibility in an agreed access schedule should not be to contact the police. Such flagrant disrespect for the other parent’s situation is appalling not to mention police involvement in private domestic matters is a waste of community resources. [^25]: Kaplanis v. Kaplanis, supra, at para. 11. [^26]: 2002 2685 (OSCJ).