Jackson v. Arthur, 2015 ONSC 1140

CITATION: Jackson v. Arthur, 2015 ONSC 1140

COURT FILE NO.: FS-11-0477-00

DATE: 20150223

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Kurt Delroy Jackson, Applicant/Father

AND:

Vida E. Arthur, Respondent/Mother

BEFORE: Ricchetti, J.

COUNSEL: R. Fernandes, for the Applicant/Father

J. Layne, for the Respondent/Mother

HEARD: May 28, 29 and 30, September 29 and 30, December 15 and 16, 2014

JUDGMENT

CONTENTS

OVERVIEW... 3

THE PARTIES and BACKGROUND.. 4

THE ISSUES TO BE DECIDED.. 7

THE TRIAL.. 7

THE POSITION OF THE PARTIES. 8

The Father’s Position. 8

The Mother’s Position. 9

THE RULE IN BROWN V. DUNN.. 10

THE CREDIBILITY AND CONDUCT OF THE PARTIES. 12

The Mother 12

The Father 15

CREDIBILITY OF THE WITNESSES. 17

Ms. Ahea Williams (Peel CAS) 17

Police Officer Tejinder Cambo. 17

Mr. Conray Palmer 18

Ms. Helen Kostopoulous. 18

Dr. Donald Baumander 18

Ms. Erin Cote. 19

Ms. Rachel Maveneka. 19

Ms. Burnadette Nwaubani 20

Mr. Roy Kenealy. 22

THE FACTS. 23

The Father As a Caregiver 23

The Mother As a Caregiver 24

Parenting and Access since Separation. 25

The Children’s School 27

Changing schools without consulting the Father 27

Janayah and French Immersion. 28

Pickup at School 29

Surnames, Health Cards and Birth Certificate. 30

Surnames. 30

Health Cards and Birth Certificates. 31

Janayah's Birth Certificate. 32

The Peel Children’s Aid Society. 35

The Separation’s Impact on the Children. 42

ANALYSIS ON CUSTODY AND ACCESS. 43

JOINT OR SOLE CUSTODY?. 43

WHICH PARENT SHOULD HAVE SOLE CUSTODY?. 44

The Position of the Parties. 44

Allegations of Father’s abusive nature and domestic violence. 45

Taking responsibility for the conflict 48

The Father’s work schedule. 49

The Father’s complaints to Peel CAS. 49

The Law.. 50

Conclusion on Custody. 52

PARENTING SCHEDULE.. 54

THE CHILDREN’s SURNAMES. 56

INCOME AND CHILD SUPPORT.. 57

Imputing income to the Mother 57

Retroactive Child Support (August 21, 2010 to JULY 1, 2014) 61

Child Support arrears July 1, 2014 to February 1, 2015. 61

Child support prospectively. 62

Conclusion on Child Support Arrears. 62

Section 7 Expenses. 63

OTHER FINANCIAL ISSUES. 65

The Stable Gate Property. 65

Contributions to acquire the Property. 65

Mortgage contributions. 66

Delays in the sale of the Property. 69

Occupation Rent 71

The Father’s Personal Belongings. 72

Ancillary Orders. 73

CONCLUSION.. 74

SCHEDULE A.. 75

OVERVIEW

[1] This was a difficult trial. The trial was to be heard in its entirety in May 2014. The trial could not proceed continuously and had to be heard over many months. Written closing submissions were received at the end of January 2015. There has been and continues to be conflict between the parties. For 4½ years the parties have been unable to communicate. They couldn't agree on matters regarding the Children. The Children have suffered as a result of the inability to communicate and conflict between the parties. This became a concern of the Peel Children's Aid Society (Peel CAS) which has been involved with the family for years. This has been a difficult situation for the Children.

[2] Both parents deeply care for the Children. Unfortunately, their deeply rooted anger towards each other has overshadowed this and resulted in behaviour which has not been in the Children’s best interests.

[3] The Children have been the battleground between these parties for far too long. Both parties agree that one or the other must have sole custody of the Children and primary parenting time. As a result, a long overdue determination must now be made with the Children’s best interests as the guiding principle.

THE PARTIES and BACKGROUND

[4] The parties started their relationship in 2002.

[5] There are two Children of the relationship. Jaymeson Delroy Jackson is 12 years old (born March 19, 2002). Janayah Akeilah Julissa Jackson is 9 ½ years old (born October 30, 2005).

[6] The parties commenced to live together in October 2005 when they jointly purchased 13 Stable Gate, Brampton, Ontario (the Property).

[7] Their relationship ended on August 21, 2010 when the Mother alleged the Father had assaulted her. The police were called. The Father was charged. He was prohibited from returning to the Property by the terms of his release. He couldn’t communicate with the Mother directly. Access to the Children had to be arranged through a third party. The Father was to use police assistance to retrieve his personal property.

[8] Shortly after the separation, the Peel CAS became involved with the family and continued, with some interruptions, up until August 2014.

[9] When the parties separated, for financial reasons, they agreed that the Property had to be sold. After separation, communication between the parties became worse. Access was sporadic for the first few months after separation.

[10] The Father commenced this Application. An interim order for access was granted to him. Over the years, the court has granted some changes to Father’s access. However, essentially, until June 2014, the Children resided primarily with the Mother with the Father’s access was alternate weekends and some weekday access.

[11] Both parties have had joint custody of the Children to date as there has been no interim custody order.

[12] By court order, on February 28, 2011, the Property was to be listed and sold within a certain time frame. The Property was sold and closed on June 30, 2011. The proceeds of sale, except for some payment out to the parties, remain in trust.

[13] On July 13, 2011, the Father was acquitted of the assault charge.

[14] There have been a number of contentious issues between the parties over the years including school transfers for the Children, academic issues, availability of health cards/birth certificates, and Peel CAS involvement regarding allegations of inadequate child care/neglect. What has remained constant is the inability of the party’s to communicate on any issue, particularly those involving the Children.

[15] In June 2014, this court ordered “week-about” parenting time with the Children.

[16] The Father is 39 years old. He owns a home. He has a new partner. His parents live in the area. He has been employed by Mississauga Transit for the past 4 ½ years. He works for Mississauga Transit as a bus driver. He has stable employment. He has some flexibility with his work schedule to accommodate the Children’s needs. He earns approximately $69,600 per annum. He was involved in the Children’s care before separation and has demonstrated a continued concern for the Children’s wellbeing and desire to be a significant part of their lives after separation. He recognizes that the Mother must be a part of the Children’s lives but submits that the best interests of the Children would be served by him having custody and having primary residence of the Children.

[17] The Mother is 37 years old. She rents a two bedroom condominium. She was employed until May 2013 when she quit her job to return to college in September 2013. Her parents live in the area. The Mother enrolled in a two year program at Humber College starting September 2013. She is not employed during the school year. She receives OSAP which is used to pay tuition. In 2014, she earned $6,642. She receives some financial assistance from her father. In 2012 she earned approximately $33,666. 2013 was only a partial year for employment since the Mother quit her job in May 2013. The Mother submits she has been the Children’s primary caregiver throughout and that it would be in the Children’s best interests for her to have custody and primary residence.

THE ISSUES TO BE DECIDED

[18] There are several issues to be decided:

a) Custody of the Children;

b) Access or Parenting time;

c) the surname of the Children;

d) Child Support, including arrears; and

e) Financial issues which include contributions to the acquisition of the Property, mortgage payments, and the Father’s property allegedly disposed of by the Mother.

THE TRIAL

[19] This application was issued on February 1, 2011.

[20] The Trial started on May 28, 2014. The Father was represented by counsel. The Mother was self-represented for this portion of the trial.

[21] After the Father had completed his evidence, the trial was adjourned to the next morning to commence the Mother’s case, which was to be solely her evidence. The Mother failed to attend the next day for the continuation of the trial. Considerable attempts were made to contact the Mother that morning. No messages were received by the courthouse advising of any issue encountered by the Mother. The trial was completed without any evidence from the Mother. The Father was to file written submissions the following week. The trial was over.

[22] Or so the court thought.

[23] The following week, the Mother advised that she had gone to the hospital the morning the trial was to have continued and had been too ill to appear. She apparently had an anxiety attack. The Mother decided to retain counsel to complete the trial. The Mother brought a motion to re-open the trial. The Father consented to re-opening the trial to permit the Mother to present her case. A significant adjournment was necessary. I granted the relief on certain terms; the most significant was that the Children reside with the parents on a week-about basis pending completion of the trial. This parenting arrangement has continued since June 2014 to date.

[24] The trial continued in the fall and winter of 2014. When the trial continued in September 2014, the Mother filed an extensive affidavit as her evidence in-chief, prepared with the assistance of counsel three months after the Father’s evidence had been completed. She did not give viva voce evidence in-chief. The Mother was cross-examined on her affidavit. The Mother also called a number of witnesses.

[25] There was no reply evidence. The trial was completed in December 2014.

[26] Counsel proposed written submissions. Written submissions were received by this court on January 26, 2015 – approximately 4½ years after the separation.

THE POSITION OF THE PARTIES

The Father’s Position

[27] The Father seeks:

a) a final order for sole custody of the Children;

b) the primary residence of the Children with the Mother having access, during the school year, every Tuesday afternoon after school, every Thursday night and alternating weekends;

c) child support from the Mother on the imputation of $29,600 annual income;

d) contribution by the Mother for Section 7 expenses;

e) judgment for the loss of certain property the Mother took upon separation, unequal contribution to the acquisition of the Property, and unequal contribution to the mortgage; and

f) number of ancillary orders such as medical coverage, life insurance and so on.

The Mother’s Position

[28] The Mother seeks an order for:

a) sole custody of the Children;

b) primary residence of the Children with access by the Father alternating weekends from Thursday after school until Tuesday morning school drop off. In the “off” week, the Father would have access Thursday nights;

c) child support and s. 7 expenses from the Father both prospectively and retrospectively;

d) a dismissal of the Father’s financial claims; and

e) various ancillary orders.

[29] Both Children are referred to in the Father's Application and the Mother's Answer with a surname of “Jackson”. No relief was sought by the Mother to change the Children’s surnames.

THE RULE IN BROWN V. DUNN

[30] During the first part of the trial the Father gave evidence, and was cross examined by the Mother. The Father also called other witnesses as part of his case. The Mother was self-represented at that time. The Mother’s cross-examinations were brief. She did not challenge the Father and the Father’s witnesses in many areas of their evidence in-chief. When the Mother, with the assistance of counsel, presented her evidence three months later, through her affidavit and other witnesses, some of the evidence in the Mother’s case was directly contrary to the evidence in the Father’s case on essential areas where witnesses were not challenged or given an opportunity to provide clarification or an explanation. No objection was taken by Father’s counsel during the Mother’s case until Mr. Roy Kenealy gave evidence. Then the issue of Brown v. Dunn arose. The Father testified he had considerable flexibility with his work schedule. The Mother sought to elicit from Mr. Kenealy that there was little flexibility with the Father’s work schedule. Despite the objection, the Mother was permitted to adduce Mr. Kenealy’s evidence in its entirety.

[31] In her closing submissions the Mother’s counsel made reference to the rule in Brown v. Dunn. The Mother’s counsel suggests that this “rule” should be relaxed as the Mother was self-represented during the presentation of the Father’s case.

[32] The fundamental purpose of the rule in Brown v. Dunn is trial fairness, and in particular, fairness to witnesses. The “rule” is not inviolate and does not necessarily require an inclusion or exclusion of the evidence. The “rule” requires the trial judge to consider all the circumstances and determine whether or how the “rule” should be applied to achieve trial fairness.

[33] However, trial fairness and witness fairness must be jealously guarded for both parties. There is potential unfairness to the Father to permit the Mother to lead contrary significant evidence as part of her case which she didn’t challenge during the Father's testimony without having given him or his witnesses an opportunity to respond or explain. To suggest that the Father could and should have called reply evidence on the same unchallenged evidence and allow a second cross examination (this time by the Mother's counsel) on the same area again, would be unfair. It would require much, if not all, of the Father’s case to be recalled. It would reward the Mother who chose to proceed to trial without counsel, a second chance at a trial with counsel. Such extensive reply would also unnecessarily prolong the trial and increase the expense to both parties.

[34] This is not a case of exclusion of evidence. The Mother’s entire evidence, including other witness’ testimony, was fully admitted in evidence.

[35] In my view, in these highly unusual circumstances, the failure to cross examine the Father and his witnesses on contrary significant evidence led by the Mother in her case, is only one of the factors to be considered in assessing all of the evidence in this case. The fact the Father had an opportunity to call reply evidence is another factor to be considered. The fact the Mother was self-represented when the Father and his witnesses testified is another factor to be considered.

[36] In this case, trial fairness for both parties requires that all the trial evidence be considered including all of the viva voce evidence and the extensive documentary evidence, along with all the circumstances, in determining how much, if any, of any witness’ evidence is to be believed and how much, if any, of the witness’ evidence is to be relied upon in the final determination of the issues in this trial.

THE CREDIBILITY AND CONDUCT OF THE PARTIES

[37] Both the Father and Mother testified at the trial.

The Mother

[38] With respect to the credibility and reliability of the Mother’s evidence, I do not accept much of her evidence. There are a number of reasons for rejecting her evidence:

a) The Mother made false representations to Human Resources and Skills Development Canada in 2006 by failing to report all her income. She was fined and penalized under the Employment Insurance regulations. When confronted with this, she simply said “they were wrong”;

b) The Mother falsely stated on her 2006 Income Tax Return that she was single despite having a child with the Father and living in the same home as the Father. This report as “single” would allow the Mother to obtain a greater tax benefit. When confronted with this at trial, she blamed this error on her tax advisor. That explanation doesn’t explain her letter advising CRA that she and the Father were simply “roommates”. When pressed in cross-examination, she responded she couldn’t recall how she had reported her marital/spouse status to CRA in 2006 and professed that she didn’t know there were financial benefits by reporting herself as single;

c) The Mother was prepared to and did wilfully disregard court orders and her production obligations. A few examples will suffice: First, the Mother consented to an order to allow repairs to the Property so that it could be listed and sold. However, the Mother deliberately and flagrantly failed to comply with the order and did her utmost to delay the listing and sale of the Property. Secondly, despite Mother’s obligations under the Family Law Rules and counsel's requests for her to file her most recent Tax Returns/Notices of Assessments, the Mother had not, by the beginning of the trial, produced her 2011, 2012 and 2013 Tax Returns or Notices of Assessments. Her updated financial statement was only served the day before trial. She finally produced her most recent Notices of Assessment (without tax returns) in September 2014, approximately 3 months after the Father’s case had closed. Lastly, the Father’s bail terms required the police to accompany him to pick up his personal property at the Property. The Mother deliberately and flagrantly disregarded the police’s attempts to arrange the Father’s attempts to pick up his personal property;

d) The Mother lied in her prior affidavits. For example, as described above, the bail terms required Father to arrange, through the police, to attend at the Property to pick up his personal property. The Mother deposed in her April 4, 2011 affidavit that she “had no contact with Officer Campbell or Cambol, whichever is his correct name, with respect to [the Father] picking up his belongings from home. My phone shows no missed calls, have no messages and no note has ever been left at my door”. This was false. Police Officer Cambo gave evidence at trial that he had spoken to the Mother and had made arrangements to attend at the Property with the Father at a specific time to pick up his personal belongings. The Mother was not home at the agreed upon time. The Father and Officer Cambo had to leave without the Father’s personal property. Officer Cambo further testified that he tried again, several times, to speak with the Mother. He left messages on the Mother's phone and his card in her door. The Mother didn’t respond to any of his efforts. Officer Cambo was forced to conclude “Police investigation revealed that the second party is avoiding the police … and not giving time for property removal”. The Father was never able to retrieve his personal belongings. All of Officer Cambo’s efforts were diarized in notes made contemporaneously with the events. At trial, the Mother’s position was that the Father had left no personal belongings at the Property. The Mother also suggested it was the Father who deliberately avoided picking up his personal property at the Property – a not believable explanation given Officer Cambo’s clear and unchallenged evidence. In another example, the Mother stated in an affidavit filed with this court that she was taking French lessons to assist Janayah in her French Immersion School. At trial, the Mother admitted this was false. She attempted to blame her lawyer for this “mistake”. The only conclusion is that the Mother does not take an oath seriously and is prepared to say whatever she believes will benefit her position;

e) The Mother was required by court order to produce a copy of the Children’s health card/birth certificate by a certain date. She failed to do so. For the reasons set out below, I am satisfied the Mother changed the surname of Janayah to the Mother’s surname, excluded the Father’s surname and didn’t want to disclose what she had done to the Father. The Mother used one implausible excuse after another to withhold this documentation from Father;

f) The Mother changed the Children’s school a number of times without discussing with or getting the Father’s agreement on the school transfers. The Father found out about the school transfers after the fact;

g) The Mother testified that she tried to communicate with the Father by way of emails and messages on various issues. However, the Mother did not produce any such documents because she alleges she “doesn’t know how to print them”. Given that Mother had a number of counsel prior to trial and had counsel for the Respondent’s portion of the trial, this is simply not a credible explanation; and

h) The Mother was at times evasive and unresponsive to questions in cross-examination. It appeared that the Mother was making up excuses or explanations as required to explain her conduct and actions.

The Father

[39] As for the Father’s credibility, his position in this matrimonial proceeding appeared to have been reasonable throughout. He complied with all court orders. He appears to have a deep interest in the personal care, medical care, schooling, and religious upbringing of the Children.

[40] There have been allegations by the Mother of the Father’s abusive behaviour. There are several issues which have raised questions about the Father's conduct:

a) There was a reference that the Children had told the Peel CAS workers that both the Children “referred to seeing the father assault the mother while he was still in the home”. The circumstances of what happened are not known. There is no basis to determine whether the Children were telling the truth. There was also a reference in the Peel CAS file that the Father had used a belt to discipline the Children. This inappropriate “discipline” was verified by the Peel CAS. This is of concern. However, subsequently, the Peel CAS appeared to satisfy itself that this was not a continuing issue and concluded that either parent could provide for the Children’s needs;

b) There are alleged assaults by the Father on the Mother in 2007 and 2010. As detailed below, I am not persuaded that either of these allegations have been proven or raise concerns regarding the Father’s ability to parent the Children; and

c) Near the end of the trial, the Husband had an outburst of angry yelling just outside the courtroom after the end of the day. His anger was directed at the Mother and her counsel. This outburst continued into the courtroom. This was brought to my attention the next morning by Mother’s counsel. There was no denial of this conduct by the Father. There was an apology, in open court, on the record, by the Father to the Mother’s counsel and the Mother. This is a concern regarding the Father's potential for angry outbursts and whether such outbursts could in the future be directed towards the Children.

CREDIBILITY OF THE WITNESSES

Ms. Ahea Williams (Peel CAS)

[41] Ms. Williams testified for the Father. She is a social worker with the Peel CAS. This case was transferred to Ms. Williams in August 2011. Ms. Williams confirmed that the Children were being impacted by the custody battle. She testified that she had difficulty meeting or speaking with the Mother despite the fact it was important for the Mother to participate in the CAS evaluation. On the other hand, she found the Father responsive, cooperative, and concerned about the Children’s welfare. After Peel CAS had had more than a year’s involvement with the family, her recommendation, supported by her supervisor at Peel CAS, was for the Father to seek custody because Peel CAS was satisfied that he could meet the Children’s needs and the Mother could not. I accept Ms. Williams’ evidence in its entirety. Her evidence was clear, unbiased and consistent with her case notes.

[42] The suggestion that Ms. Williams’ evidence is not reliable because she did not interview the Mother is completely unfounded. The reason Ms. Williams didn’t interview the Mother is because the Mother ignored Ms. Williams repeatedly for a number of months and failed to meet with Ms. Williams to discuss the Children. It is ludicrous to suggest that the deliberate Mother’s failure to meet Ms. Williams should be the basis for discounting Ms. Williams’ evidence.

Police Officer Tejinder Cambo

[43] Officer Cambo testified. He tried to arrange for the Father’s recovery of his personal property from the Property. Officer Cambo had detailed contemporaneous notes of his involvement with the parties. He testified about the scheduled meeting with the Mother at her home, her failed attendance and her failure to return his calls or contact him, despite his repeated efforts. I accept his evidence which demonstrates that the Mother deliberately avoided the return of the Father’s personal property.

Mr. Conray Palmer

[44] Mr. Palmer testified. He was a neighbour of the Father. He testified that he saw the Father involved in the daily care of his Children and the Father’s concerns about the Children’s personal care and lack of lunches. I accept this evidence which demonstrates the Father's continuing involvement and concern with the Children's care.

Ms. Helen Kostopoulous

[45] Ms. Kostopoulous testified. She was the listing agent for the Property. She testified as to the difficulties obtaining the Mother's signature on the listing agreement. She also testified that the Mother had not done the agreed upon repairs, grass cutting, landscaping or kept the Property neat and ready for prospective buyers. Eventually, it was Ms. Kostopoulos who had to arrange for the necessary repairs to the Property. She also testified as to the average rental for a property comparable to the Property. I accept this evidence.

Dr. Donald Baumander

[46] Dr. Baumander testified. He is the family doctor for the Children. He testified that the Children were in good health and that both Children had received appropriate medical attention over the years. Dr. Baumander couldn’t recall who brought the Children in for their medical visits but agreed the Father had shown great interest in the Children. This evidence was not challenged by either party. I accept this evidence.

Ms. Erin Cote

[47] Ms. Cote testified. She is a teacher at Dorsett School. She was Janayah’s grade 4 teacher. She testified that Janayah was a well behaved student who works hard and desires to do well at school. She testified that Janayah was having difficulty in the French Immersion program. She met with the Mother to discuss her recommendation to remove Janayah from the French Immersion School. She dealt with both the Mother and the Father on this issue. I accept this evidence.

Ms. Rachel Maveneka

[48] Ms. Maveneka testified. She is a social worker for Peel CAS. She confirmed some of the Peel CAS reports which are set out below. After the referral in early 2011, after investigation, on March 1, 2011 Ms. Maveneka concluded that there was an appropriate supervision plan for the children and there were no other child protection concerns. When Ms. Maveneka dealt with the family again in May 2011, she had difficulties contacting the Mother but concluded that the Children were safe with the parents. Again, the file was closed in May 2011. But in June 2011 the file was reopened an assigned to another worker who wrote:

“Previous referrals to the Society suggest that the father has reported the above concern to the Society before. In previous investigation the mother was not receptive to meeting with the Society. Further assessment is required and there should be consideration to have the case to be transferred to ongoing given the number of referrals regarding similar concerns”.

[49] Ms. Maveneka’s involvement was fairly brief with this family. Clearly, based on the subsequent Peel CAS recommendation, it is difficult to conclude much from Ms. Maveneka’s evidence except that she did find the Children were safe with the parents.

Ms. Burnadette Nwaubani

[50] Ms. Nwaubani testified. She is a social worker for Peel CAS. She was involved with the family from August 2012 until August 2014 when the Peel CAS file was closed. She testified that both parents were protective and dedicated to the Children. She concluded that there was a serious inability to communicate between the parties. She stated that her major concern was the impact the conflict between the two parties would have on the Children behaviourally, emotionally and psychologically. She testified that the Father was more forceful with his frequent complaints to Peel CAS. She had no concerns regarding either party's ability to properly care for the Children. This much of her evidence I accept as it is consistent with the evidence of the other social workers and the Peel CAS reports.

[51] However, I do not accept the rest of Ms. Nwaubani’s evidence. I specifically reject it. There were several major problems with her evidence:

a) She was biased in favour of the Mother – a fatal flaw for a social worker who should remain independent, objective and focused on the Children. Bias in favour of one parent undermines the other parent’s relationship with the Children and reduces the value of her observations, conclusions and recommendations. For example, she presented gifts for the Mother to give the Children. She paid for and assisted the Mother to register the Children in extra-curricular activities without the knowledge or consent of the Father. She did not do any of this for the Father. She didn't even tell the Father that she was doing this for the Children. Over the entire time she was involved, Ms. Nwaubani visited the Mother and Children 13 times. She only visited the Father with the Children once. As the social worker for the family, I am not persuaded this would give her a balanced view of both parents and their roles with the Children;

b) She supported Mother’s decision to keep Janayah in French Immersion when it was apparent from the documents and the teacher’s recommendation that Janayah would do much better, and it was in Janayah’s best interest, to move her to an English school. The school teacher’s (Ms. Cote) concerns were that a child's difficulty in the French Immersion School could lead to developing attitudinal and behaviour problems. No explanation was offered by Ms. Nwaubani as to why Ms. Cote’s concerns were not, at the very least, considered;

c) Ms. Nwaubani agreed that it was important for both parents to have health cards for the Children for medical emergencies. She knew the Father was insistent on this and he had reported to her his inability to have the Mother provide him with a health card. Yet, Ms. Nwaubani did nothing to follow up on this issue;

d) Ms. Nwaubani registered Janayah as “Janayah Arthur” in one program, completely oblivious to the discrepancy with the name “Janayah Jackson” as shown in the Peel CAS files;

e) The initial referral, which Ms. Nwaubani was asked to investigate, came from Jaymeson’s teacher, Ms. Katie Aspen. Ms. Nwaubani chose not to speak to Ms. Aspen about the concerns in her referral. She could not explain why not. I cannot imagine a more important person for the Peel CAS social worker to follow up with than the person who made the referral; and

f) Despite the Peel CAS file being replete with the difficulties to communicate with the Mother, including the Mother’s own admission that she had at times been difficult to get a hold of, Ms. Nwaubani said that Peel CAS had “no challenges” meeting with the Mother.

[52] It is clear from the authorities that an assessor should not have a personal bias for or against one of the parties. See R.(M.) v. H.(S.) (1997), 1997 CanLII 24471 (ON CJ), 32 R.F.L. (4th) 127 (Ont. Prov. Div.) Such bias or point of view affects the ability of the assessment of the children’s needs and the parenting abilities. See Toonders v. Toonders, [2000] O.J. No. 1386 (Sup. Ct. J.). Courts should also consider the appropriate weight, if any, to be given where an assessor had limited opportunities to observe one parent with the children. There is no basis to suggest that the impartiality expected of a social worker should be any different than an assessor. The social worker makes observations, conclusions and recommendations with respect to the matters referred to the Peel CAS. The cornerstone of the reliability of the social worker's evidence is premised on independence, impartiality and even handedness to both parents with a primary focus on the welfare of the Children.

Mr. Roy Kenealy

[53] Mr. Kenealy testified. He is the Superintendent of Operations at Mississauga Transit. He testified how bus drivers select their work schedule. I am not persuaded that his evidence brought any clarity as to the extent or degree to which the Father can arrange his work schedule. Simply, selecting work shifts is a bidding process where seniority of the employee determines who gets the shift. There are thousands of shifts. The Father is in the middle range of seniority at Mississauga Transit. How often the Father gets the shifts he wants was not clear. I am not persuaded that the Father can only or primarily get evening shifts as the Mother would suggest.

THE FACTS

The Father As a Caregiver

[54] I am satisfied the Father was a caregiver to the Children prior to separation. Both parents worked. Both parents cared for the Children. He coached Jaymeson’s soccer team. He was involved in decisions regarding schooling. He helped the Children with their homework. He was involved in the Children’s medical appointments. He was attentive and concerned about the Children’s lives.

[55] After separation, the Father did not want to be marginalized as a parent and sought a continued role in raising the Children. He raised concerns that the Mother was not properly caring for the Children in a number of areas such as being chronically late for school, lack of lunches, inappropriate clothing for the weather, medical checkups and so on. He attended at the Children’s school as needed including to bring lunches and to attend parent teacher interviews. The Mother suggests that this court should have concerns that he regularly and routinely reported issues to Peel CAS. However, given his inability to communicate with the Mother and her lack of responsiveness to teachers and the Peel CAS, his continued referrals to Peel CAS were to a large extent understandable. The Father’s referrals to Peel CAS did not rise to the level of abusing the CAS process. Some of the concerns he raised were either confirmed by Peel CAS or consistent with issues raised by the school officials directly with Peel CAS.

[56] At present, the Father has a stable life. He has a new partner. He has a new home which can accommodate the Children. He has employment which provides medical coverage and life insurance. He has flexibility with his work schedule – as is apparent from his ability to respond immediately with missed lunches or meetings at the school officials or meeting with Peel CAS’ social workers.

[57] On the one hand, the Father has used inappropriate discipline with the Children. On the other hand, after investigation, verification and meeting with the Father to deal with the issue, Peel CAS appeared to be satisfied that the Father’s inappropriate discipline was not a continuing issue as to the Father’s ability to properly parent and care for the Children into the future.

[58] The Father seeks to provide the Mother with considerable access. The Father recognizes the importance of permitting the Children to complete the school year in the same school and under the current parenting schedule. This demonstrates his focus on the Children’s best interests.

[59] The Father has not sought to exclude the Mother from decisions regarding the Children’s welfare. His draft order proposes prior consultation with the Mother on major issues before he makes a decision.

The Mother As a Caregiver

[60] The Mother was involved in the Children’s care until separation. She was involved in decisions regarding education, medical appointments, and personal care.

[61] After separation, the Mother was the primary caregiver for the Children. The Mother has made questionable decisions regarding the Children’s schools and personal care such as the failure to ensure the Children had lunches, her inability to get the Children to school on time and letting Jaymeson go to school with inappropriate clothing for the weather. She has shown a lack of cooperation with Peel CAS and teachers. This raises a number of serious concerns as to whether the Mother’s focus is on the Children.

[62] After separation, the Mother excluded the Father in such areas as school transfers and change of surname for Janayah. This raises serious concerns whether the Mother would, in the future, encourage and foster a relationship between the Children and the Father.

[63] The Mother admits she has made mistakes. Her “mistakes” have continued for years – since her issues with Revenue Canada and Employment Insurance in 2006. There is a risk that these “mistakes” will continue in the future if she had custody of the Children.

[64] The Mother chose to quit her job in May 2013 while she had primary parenting time with the Children. She chose not to work that summer and returned to school in September 2013. She is now in school with no employment and no significant income. She is dependent on government services and her father to support her. She is renting a two bedroom condominium. Jaymeson, 13 ½ years old, is sharing a room with his 9 ½ year old sister.

[65] The Mother says that her present situation may continue for 3-5 years. There is little hope that the Mother’s life will become more stable and nurturing for the Children for some considerable period of time.

Parenting and Access since Separation

[66] Access for the Father, shortly after the separation, was difficult. There was no interim order for access until February 28, 2011.

[67] The Father’s difficulty with parenting time in the first few months after separation was in part due to his bail terms and in part due to the Mother’s attitude towards the Father. The Mother says that the Father’s mother didn’t call to request access regularly. The Mother denies she deliberately withheld access to the Children. However, the Father’s concerns regarding the Children care was immediate after the assault charges. The Father had to commence the application to obtain an order for interim access to the Children. The Mother has a pattern of not responding to calls or requests for meetings to discuss her Children. These facts suggest that the Father did want additional parenting time after the separation but it was not forthcoming.

[68] Eventually, there was a consent order on February 28, 2011 allowing Father parenting time on alternating weekends from Friday after school until Monday morning before school.

[69] Unfortunately, the February 28, 2011 interim access order didn’t deal with holidays, school breaks and Xmas break. These times continued to be areas of conflict between the parties. The Mother determined what additional access, if any, the Father would get. For example, in 2011 and 2012, the Father did not get any additional access during the summer holidays. In 2013, the Father had only an additional 2 weeks access during the summer holidays.

[70] The Father had to bring motions to expand his access to include overnight access. The Mother opposed.

[71] The Children’s ability to make telephone calls also became an issue in early 2011. The Father alleged that the Mother prevented the Children from calling him and, when he did speak to them, the Mother listened in on the conversation. Eventually, the court had to make an order permitting the Children to call the Father on Tuesday and Thursday evenings without her involvement.

[72] I conclude that the Mother did not cooperate with the Father to have reasonable parenting time with the Children. The Mother was predominantly granting access only in strict accordance with the court order. The Mother had no interest in ensuring the Father had a meaningful role in the Children’s life.

[73] In June 2014, this court made an interim access order essentially ordering parenting on a strict week about basis. That interim access order continues to date.

The Children’s School

Changing schools without consulting the Father

[74] At the date of separation, Jaymeson was in a French Immersion school, William Gage School. Eventually, he was moved to Dorsett School, then to Birchbank School and eventually to Balmoral School. The Father was not consulted or told of Jaymeson’s school transfers. The Father only became aware of the school transfers after the fact.

[75] At the date of separation, Janayah was in Burt Elm Public school. Janayah was transferred to Dorsett French Immersion School. The Father was not consulted or told about this transfer. The Father became aware of this school transfer after the fact. As will be discussed below, the transfer of Janayah into French Immersion has not gone academically well for Janayah and continues to be a problem.

[76] In her affidavit, the Mother admitted that she did not consult with the Father regarding the school transfers. The Mother’s explanations at trial made very little sense. The Mother felt that the Father wouldn’t agree to the school transfers and, it was "ok" as she was only following the advice of teachers. Then she suggested that the school made the decision, along with her, and she had no choice but to agree with the school officials. This doesn’t explain why the Mother would not have consulted on or told the Father of the school transfers in advance or at the time of the school transfers. Then, at times the Mother would respond that she “didn’t know” if she had told the Father about a school transfer. The Mother's responses were not consistent. I am satisfied the Mother deliberately didn’t tell the Father about the school transfers as she was going to do whatever she decided to do regardless of the Father’s views or input.

Janayah and French Immersion

[77] The Father raised specific concerns about Janayah struggling in French Immersion. This concern had been expressed by Janayah’s teacher. Janayah’s teachers have also expressed this concern to the Mother, on several occasions. Janayah’s teacher recommended that it might be best for Janayah to be in an English speaking school. For example, on August 28, 2013 Janayah’s teacher wrote to the Mother with her concerns about Janayah continuing in a French Immersion school. The Mother was resistant to any change for Janayah. At one point, to support her decision to keep Janayah in a French Immersion school, the Mother stated in an affidavit that she was taking French classes so she could help Janayah in French with her homework. At trial, the Mother admitted this was false but blamed the “mistake” in her affidavit on her lawyer. However, fundamentally, the Mother disregarded the teacher’s recommendations despite the teacher's concerns about the potential negative impact on Janayah. The Mother offered no valid reason for ignoring this recommendation.

[78] Like many other issues, the Mother’s closing submissions suggest that it was the Father’s failure to support Janayah’s continuing in French Immersion that has somehow contributed to Janayah’s present difficulties in French Immersion. I do not accept this explanation given that Mother had primary care and exercised control over Janayah’s choice of school and tutoring.

[79] Let me make this perfectly clear. The issue is not whether Janayah should be in French Immersion. The concern is that Janayah’s teacher made a recommendation to the Mother who didn’t appear to consider the advice, or if she did and rejected it, explain why she considered keeping Janayah in French Immersion to be in Janayah’s best interest.

Pickup at School

[80] Another issue arose as a result of the Father having difficulty picking up the Children from school; the Mother had registered the Children but did not put the Father’s name on the school registry. As the Mother admits in her affidavit: “they wouldn’t release her to Kurt because they didn’t know him”. They didn’t know the Father because the Mother had registered Janayah in a new school without the Father’s knowledge or telling the school about the Father. This required the Father’s lawyer to intervene by letter dated September 20, 2011with the school to clarify that both parties continued to have joint custody of the Children.

[81] I conclude that the Mother’s behaviour has been to minimize the Father’s role in decisions regarding the Children’s schooling despite the fact she did not have sole custody. Further, she deliberately withheld school information regarding the Children from the Father.

[82] On the other hand, since separation, the Father has been diligent and responsive in dealing the Children’s schooling needs by attending to their educational needs and teacher concerns.

Surnames, Health Cards and Birth Certificate

Surnames

[83] At birth, both of the parties agreed on the Children's surnames – Jackson.

[84] The Children were born with surnames “Jackson”. Both the Application and the Answer refer to both Children’s “Full Legal Name” as Jaymeson Delroy Jackson and Janayah Akeilah Julissa Jackson.

[85] For Janayah, the Father and Mother both signed the birth certificate application. On the Baby Dedication at church on July 29, 2006, she was referred to as Janayah Akeilah Julissa Jackson. The Peel CAS reports show the names of the Children as Jaymeson Jackson and Janayah Jackson. This evidence is also consistent with other documents such as prescriptions issued to “Janayah Jackson”. I am satisfied that the parties agreed the Children’s surnames were to be “Jackson”.

[86] The Mother now seeks to have the Children’s surnames hyphenated with both the parties’ names. The Mother does not explain why it would now be best for the Children to change their surnames to have hyphenated surnames. The Mother has one more difficulty. The Mother has not sought any relief for a change of the “Full Legal Name” of the Children.

[87] The Mother’s proposal regarding the Children’s surnames is also negatively impacted by her actions. I will set out the evidence as to the Mother’s unilateral change of Janayah’s surname to “Arthur” below.

[88] I conclude that the surnames of the Children shall continue to be "Jackson".

Health Cards and Birth Certificates

[89] As would be expected, after separation, the Father requested copies of the Children’s birth certificates and health cards from the Mother. The documents were not forthcoming. The Father was concerned that medical care for the Children might be jeopardized unless he had a copy of their health cards. A very legitimate concern.

[90] The Father, directly, through counsel and through Peel CAS, continued to make repeated requests for copies of the Children’s health cards and birth certificates into 2011. Still no health cards or birth certificates were forthcoming from the Mother or the Mother’s counsel.

[91] This continued to be a problem into August 2011.

[92] As a result of the Mother’s continued failure or refusal to provide these documents to the Father, on August 11, 2011, Justice Del Frate ordered that the Mother furnish the Father with notarized copies of the children’s health cards (current or expired) by August 15, 2011. The Mother’s response was a written note on August 11, 2011 which said “Cannot find Janayah’s expired health card, but will keep looking”.

[93] Justice Del Frate’s order didn’t help the Father to get copies of the documents. The Father persevered in his efforts to get a copy of Janayah’s health card.

[94] A renewal health card was issued for “Janayah Arthur” on January 10, 2012. Despite the Father’s repeated requests, it was not provided to him until March 20, 2012 more than a year after the Father first requested a copy.

[95] The Mother’s explanation for not complying with Justice Del Frate’s order was that she didn’t have money to notarize a copy of the health card. I do not accept her explanation.

Janayah's Birth Certificate

[96] The problem with Janayah’s birth certificate goes much further and is more troubling.

[97] When Janayah’s birth certificate was not forthcoming, after Justice Del Frate’s order, the Father completed an application for Janayah’s birth certificate in October 2011. The Office of the Registrar General required the Mother’s consent to the application. The Father’s counsel sent a copy of the consent to the Mother’s counsel for the Mother to sign. The Mother did not sign the consent. The Mother’s counsel wrote to the Father’s counsel on November 30, 2011 advising that “With respect to the Birth Certificates, Ms. Arthur advised me that she has made an application but unfortunately the certificates were sent to her previous address”. At trial, the Mother testified that she received Janayah’s birth certificate in September or October, 2011. By the end of November, the Mother had Janayah’s birth certificate but chose not to provide it to the Father.

[98] I conclude that the Mother deliberately delayed and chose not to disclose a copy of Janayah's birth certificate because she arranged for a different surname for Janayah - "Arthur" - the Mother's surname.

[99] The history of Janayah’s birth certificate is complex. The initial request for a birth certificate was made on February 8, 2008 for “Janayah Akeillah Julissa Jackson”. Both the Father and the Mother signed the appropriate documents to obtain the birth certificate. For whatever reason, no birth certificate was issued for Janayah.

[100] When no birth certificate had been issued, several packages for “delayed” registration of birth were sent by the Ministry to the Mother over the course of the next two years. There was no response by the Mother. What is important to note is that the letters from the Ministry requesting the Mother to complete the birth certificate application referred to “Janayah Akeilah Julissa Jackson”. The correct name. The Mother never told the Father that a birth certificate application had to be completed for Janayah.

[101] An application was apparently completed by the Mother in 2010. On December 13, 2010 this application was rejected for not complying with the instructions on the application. Another application was completed by the Mother. This time the Mother applied for a birth certificate with Janayah having a hyphenated surname. The Mother did not tell the Father she was doing this. The Father believed that a birth certificate had been issued for Janayah “Jackson” and he wanted a copy from the Mother. The Mother’s application for a birth certificate with a hyphenated surname was not what had been agreed to when Janayah was born. On March 17, 2011 the Ministry rejected this application for a number of reasons including the dual surname. The application for a birth certificate with a dual surname requires the consent of both parents and, since the Mother had not told the Father and obtained his consent, this application was rejected.

[102] A further application was completed by the Mother. On August 26, 2011 the Ministry accepted a birth certificate for “Janayah Akeillah Julissa Arthur”. Janayah's birth certificate was sent to the Mother on September 15, 2011. The Mother’s evidence is that it was the Ministry which decided to register Janayah’s last name as “Arthur”. This is clearly false. The Mother knew that by not having the Father's consent she couldn’t get dual surname for Janayah and by not completing the Father's information on the application, the birth certificate would be issued with the Mother’s surname as "Arthur". The instructions sent to the Mother included:

Each parent listed on the form must sign the form. If one or both parents do not sign this form the father’s/other parent’s particulars must be left blank, and the child must be registered under the mother’s surname or her former surname.

[103] The Mother’s implausible explanation is that she completed the application the last time with “Arthur-Jackson” but the Ministry simply decided to change the surname to “Arthur”. The Mother says “. I wanted it to be Jackson or at least Arthur-Jackson”. I reject this explanation. Further, this explanation doesn’t explain the Mother’s actions to hide the fact Janayah’s surname was changed to “Arthur”.

[104] It is clear why the Mother responded as she did through counsel on November 30, 2011, why she did not sign the Consent to the Father’s birth certificate application for Janayah and why the Mother would have said, through her counsel, that Janayah’s birth certificate was not available.

[105] Not knowing this, in December 2011, the Father continued to attempt to obtain Janayah’s birth certificate from the Ministry. Not surprisingly, the Ministry rejected his continued efforts. On March 20, 2012 the Mother finally produced a copy of Janayah’s health card and birth certificate. The Father finally discovered that Janayah was registered as Janayah Arthur.

[106] Changing the name to “Arthur” was no accident. Failure to get the Father to sign the birth certificate application was no accident. The Mother’s failure to tell the Father what was going on, despite his repeated requests for copies of the birth certificate, was no accident. The Mother’s delay disclosing Janayah’s birth certificate was no accident.

[107] A number of registrations for extra-curricular activities by the Mother were produced where she registered Janayah as “Janayah Arthur”. The Mother registered Janayah as “Janayah Arthur” for Dorset Drive School as can be seen from Janayah’s report card. The Mother went so far as to suggest in her evidence that it was the extracurricular program provider (Making Waves) that decided to register Janayah as “Janayah Arthur” - not her. I do not accept her explanation.

[108] The only conclusion to be drawn is that the Mother deliberately changed Janayah’s surname to “Arthur” and did her utmost to keep it from the Father, despite repeated demands and despite a court order.

[109] Further and most importantly, the Mother’s actions show a pattern of her attitude towards the Father; disregard him, his views and do whatever the Mother wants with the Children, whether it is birth certificates, schools, extra-curricular activities and so forth.

The Peel Children’s Aid Society

[110] The Peel CAS has had significant involvement with this family since 2007. However, the more significant Peel CAS involvement began in August 2010.

[111] The entire Peel CAS records were produced and marked as Exhibit 9 to the trial as proof of the contents of the records.

[112] The Mother has set out a summary of portions of the Peel CAS records on which she relies. I am not persuaded that this summary demonstrates a balanced view of the findings by the Peel CAS or fairly reflects the Peel CAS’s concerns. For example, the Mother cites a comment by the school principal that the Father had been calling the school and attending at the school. The Mother submits this shows “Father’s campaign against the mother”. However, to me, this demonstrates the Father was concerned and following up with the school given the teacher’s referral to Peel CAS regarding the Children’s lateness, lack of lunches and being left alone. The closing submissions also refer to portions of the Peel CAS reports which repeat the Mother’s allegations or comments. In my view, given the credibility and reliability issues identified above, Mother’s unverified allegations to Peel CAS have very little evidentiary value.

[113] There were many Peel CAS workers involved. In some cases, the views of one social worker conflicted with another’s view. In some cases, a social worker’s views changed over time. Some concerns, which initially were of no concern to a social worker, became a concern at a later date to another social worker.

[114] I summarize some of the portions of the Peel CAS records.

[115] Peel CAS received a referral on August 22, 2010 as a result of the alleged assault. The Peel CAS attempted to contact the Mother on August 24, 2010 but received no response. The Peel CAS attended the Mother’s home on August 25, 2010 and found no one home but left a sealed envelope for the Mother to call them. There was no response from the Mother. Peel CAS followed up again on August 27, 2010 with the Mother, couldn’t reach her and left a voicemail message. The Mother responded by voicemail on August 31, 2010 asking the Peel CAS to call next day at a specified time. Next day, the Mother advised she did not want to deal with the Peel CAS.

[116] The matter came before the Peel CAS again in January 2011. This time the referral was initiated by a school teacher of the Children. The teacher was concerned that the Mother was not providing food for the Children at school, breakfast at home and the Children were being left alone at home. The teacher was able to rely on the Father to assist with the Children when necessary. One example was that the school would, from time to time, contact the Father advising that the child did not have a lunch and the Father would come to the school with a lunch for the child. Another example is that the Father left money at the school with the child’s teacher for the child’s lunch “just in case he comes to school without a lunch”. Again there was difficulty getting in touch with the Mother to deal with these issues. As a result, Peel CAS confirmed the neglect by the Mother as alleged by the teacher.

[117] The Mother in her September 22, 2014 affidavit, states that she first learned of Peel CAS’s involvement in or around January 27, 2011 despite the fact Peel CAS had been involved since August 24, 2010. What did the Mother do when she learned of Peel CAS’s involvement in January 2011? The Mother states she did nothing in the early part of 2011 because she thought the case was closed. When it re-surfaced, she says her lawyer told her to focus on this case. So, she ignored the Peel CAS again. Essentially she ignored Peel CAS and thought it had “gone away” in May 2011. I do not accept this evidence.

[118] The Mother knew there were issues raised by the Peel CAS regarding her Children as early as August 2010 and she deliberately chose not to deal with Peel CAS. To simply say that she was too busy, the lawyer told her to focus on the matrimonial proceeding or she thought the file was closed is consistent with the Mother’s behaviour and actions throughout: her failure to respond to issues involving her Children, suggesting she was too busy or to blame others for her failings.

[119] For example, there was considerable evidence that the Children were consistently late for school throughout the 2010/2011 school year. It is simply not good enough for the Mother to say “we were going through a lot as a family and the mornings were hard” or to blame the Children for causing the late attendance at school. The Mother failed to realize the seriousness of the issues identified by the school and Peel CAS.

[120] The Peel CAS reports provide that in early 2011 the file was closed but the Father raised additional concerns. The Peel CAS attempted to contact the Mother to investigate the concerns and again, “she did not respond to the messages left on her voicemail or to a letter sent to her. During this time, the school made no calls to the Society regarding any protection or safety concerns. With no response from the mother and no further contact from the father, the file is recommended for closure”. The Peel CAS report concluded without input from the Mother: “…and the mother declined to meet. The investigation closed February 2011 did not verify any concerns.” By letter dated March 1, 2011, the Peel CAS was satisfied that “an appropriate supervision plan is in place for the children and that the children always have enough food to eat. No other child protection concerns were observed”.

[121] In March 2011, a further referral was made to the Peel CAS by the Father reporting poor living conditions for the Children when in the Mother’s care (i.e. sleeping on floors) as well as poor personal care for the Children, no snow clothing for the weather, being unkempt, and so on. The Father raised concerns that Janayah did not have a birth certificate or a health card. The Peel CAS again had difficulty contacting the Mother. On March 30, 2011 the Peel CAS wrote to the Mother advising “I have attempted to contact you on several occasions, however, I have been unable to connect with you.” The Father’s concerns were not verified. The Father’s concerns regarding the Children’s birth certificates and health cards weren’t resolved.

[122] Again in May, 2011 the Father raised concerns with the Peel CAS that the Mother was behaving inappropriately with the Children. In essence, the Mother was moving out of the jointly owned home and the Father had concerns regarding what was being said to the children by the Mother regarding the custody battle. After investigation, the Peel CAS decided on May 18, 2011 to close its file. However, the Peel CAS remained concerned about the impact the conflict was having on the Children.

[123] In June 2011 the Father again reported to Peel CAS concerns regarding the wellbeing of the Children. The concerns were similar to those which he previously had raised with Peel CAS. When Peel CAS undertook this investigation, it determined that there was a “definite pattern of lateness” with Jaymeson and that about once a week Jaymeson did not have his lunch (and the school had a difficult time contacting the Mother). The Mother acknowledged there was a lateness and lunch problem.

[124] However, the Children reported some physical discipline by the Father by the use of a belt. This was investigated by the Peel CAS. Peel CAS concluded that the Children were “deemed safe” and concluded that “the children both reported feeling safe with their mom and dad”.

[125] The Peel CAS concluded that:

a) “it is verified that the children’s basic physical needs are being neglected”;

b) It was not verified of any medical issues or concerns;

c) It was verified that the Children were at risk of mental and emotional harm due to conflict over custody;

d) It was verified that physical discipline has been used on the Children by the Father; and

e) There were concerns that the Mother was not working with the school in order to ensure the academic needs of Jaymeson were met.

[126] The Father denied the physical discipline. The Mother denied any problems at school. As she has at the trial, the Mother gave a number of reasons why she had been difficult to contact or why she was not home when the Peel CAS sought to reach her.

[127] Peel CAS continued to follow up with the family.

[128] The Peel CAS update October 20, 2011 provided:

Mr. Jackson has worked cooperatively with the Society and has met all goals outlined in the plan of service with no concerns. The matter of custody remains in court for resolution. Ms. Arthur has not participated in the service plan and only met with the Society worker for the transfer meeting in August 2011. Since then she cancelled a scheduled visit in September and has not returned any calls to reschedule or meet with the worker. Mr. Jackson has ensured that the children were seen monthly by the Society worker. The children have not reported any new concerns of parental conflict in their presence and state that they are comfortable at both of their parents’ homes.

(emphasis added)

[129] On November 3, 2011 on the Supervision Case Note, the case worker wrote:

“… I consulted with my team leader and he should follow through with seeking full custody of the children as our assessment is he is focused on meeting the children’s needs and the mother is not”

(emphasis added)

[130] On March 5, 2012 the Peel CAS wrote to the parties to advise that the CAS had closed its file.

[131] On June 8, 2012 again the school reported to Peel CAS concerns regarding Janayah. Janayah reported to the Peel CAS that the Mother was not giving the Children breakfast. However, the social worker then assigned “sensed” that the Father had put Janayah up to reporting this. The Social worker concluded: “In summary the caller is concerned that the mother is getting her older son to care for his sister. He is also concerned the mother is not meeting the immediate needs of the children.”

[132] On July 19, 2012 the Peel CAS wrote: “Mother was provided and encouraged to cooperate with ongoing services but has not responded with a decision despite efforts by the worker. Worker will complete the documentation, notify father and send a closing letter to the mother.”

[133] The Peel CAS continued to work with the family until August 2014.

[134] The Mother’s evidence was that she didn’t recall the efforts or difficulties that the Peel CAS had in speaking or meeting with her. There were simply too many efforts made by the Peel CAS to contact the Mother and her repeated failure to respond. This is a disturbing pattern to the Mother’s lack of responsiveness to persons who need to speak or meet with her, whether it is regarding the Children or other issues such as the police, the listing agent or the repairman.

[135] There were many referrals to Peel CAS by the Father. I agree that there were a number of unconfirmed concerns raised by the Father. Perhaps, the Father saw this as a way of advancing his claim for custody of the Children. However, what is clear is that the Mother did cause or contribute to some of the concerns by her care or lack of care of the Children as some of the concerns were verified. Two of the referrals came from the school officials. Further, if the Father’s concerns were unfounded, it would have been easy for the Mother to simply deal with the Father’s “unfounded and repetitive” concerns by cooperating with the Peel CAS investigations and the school teachers. She didn’t. In light of these circumstances, the Mother’s submission that the Father was abusing the CAS process is not accepted.

The Separation’s Impact on the Children

[136] From all accounts, the Children have weathered their parent’s custody battle without a great deal of harm. They appear to be well adjusted and happy to be with either parent. There are no behavioural or emotional problems noted. There are no medical issues. There are some educational issues but not so serious that they cannot be dealt with.

[137] Clearly, based on the Peel CAS conclusion, the Children love both parents and are comfortable with both parents. Both parents can properly care for the Children.

[138] There was no direct evidence on the views and preferences of the Children.

ANALYSIS ON CUSTODY AND ACCESS

JOINT OR SOLE CUSTODY?

[139] Sole custody denotes one parent having sole authority in respect of decision-making and sole care and control of the child, unless otherwise stipulated. See Dowling v. Hill (1990), 4 OFLR 6 (Ont. H.C.J.) and Abbott v. Taylor (1986), 1986 CanLII 131 (MB CA), 41 Man. R. (2d) 173 (C.A.). A person who is granted “custody” is responsible for the child on a day-to-day basis. He or she makes the day-to-day as well as the major decisions on behalf of a child. See Gordon v. Goertz, supra; Abbott v. Abbott (2001), 2001 BCSC 323, 13 R.F.L. (5th) 233 (B.C.S.C.). If the other parent is granted access, he or she has the right to parenting time with the child and be kept informed about a child’s health, educational and social problems and progress. However, the right to be kept informed does not include the right to decide or interfere with a custodial parent’s responsible decisions.

[140] The Mother’s written submissions succinctly and accurately describes the degree and level of conflict between the parties which requires, in the best interests of the Children, that one party or the other have sole custody:

This is a high-conflict custody and access case. The evidence of the intractable conflict was laid bare before the court by the evidence of both parties, by the evidence contained in the CAS File, and by the workers who testified. It is submitted that given the level of conflict in this case, it is inappropriate, and contrary to the best interest of the children to make an award of joint-custody. Therefore, this Honourable Court must decide which of these two parents should be awarded custody.

[141] The Father’s written submissions make the same point – given the history of conflict and non-communication between the parties, the only reasonable order would be to grant sole custody to one parent or the other.

[142] Conflict between the parties was identified as one of the areas of concern for the Children identified by the Peel CAS early in its involvement with the family. That concern continues to date.

[143] I conclude that joint custody is simply not appropriate or workable and it would not be in the best interest of the Children.

[144] The question is which party should have sole custody of the Children.

WHICH PARENT SHOULD HAVE SOLE CUSTODY?

The Position of the Parties

[145] The Father states that the evidence in this case establishes that he is the more stable parent; he is the more financially stable parent; he cares for the Children and responds to their needs; he will encourage access and a relationship with the Mother; he has taken a primary role with the school, religion and Peel CAS; he has not demonstrated any actions to alienate or exclude the Mother from the Children; he has a home which better accommodates the Children’s needs; and he is prepared to consult with the Mother on all major decisions.

[146] The Mother submits that this court should determine which party was primarily responsible for driving this conflict. The Mother suggests that it has been the Father who, through his anger and rage, has driven the conflict. The Mother submits the Father is abusive. The Mother submits that she has been the primary caregiver of the Children. She submits she has learned from her “mistakes”. The Mother states that primary residence of the Children with her will promote stability and continuity of care for the Children.

[147] I will not repeat the respective roles of the parents as caregivers which is set out above. However, let me deal with certain issues raised at trial.

Allegations of Father’s abusive nature and domestic violence

[148] There is no “history” of domestic violence. The Mother’s affidavit goes on pages of alleged abuse, anger and rage by the Father. A review of the Mother’s Answer (prepared with the assistance of counsel) does not set out the repeated abusive behaviour by the Father or the level of abuse the Mother now alleges. Some of the Mother’s affidavits from the Continuing Record have been entered as evidence at this trial. The alleged abusive nature of the Father is not significant in those affidavits even where the subject at issue was access.

[149] The Mother had no difficulty allowing the Father weekend access with the Children after separation without a court order (See para 11 of the Mother’s Answer). Why would she do this if the Father was a person who demonstrates highly explosive anger, rage and abuse the Mother alleges?

[150] Allegations of domestic violence are serious allegations. If true, they raise very serious concerns about the abusive parent’s ability to parent or care for children. However, such allegations can also be easily made because of anger towards the partner or to get an advantage on separation such as exclusive possession of a home or custody of the children. As a result these allegations must be very carefully scrutinized by the court.

[151] Let me deal with what specific evidence there is regarding the alleged domestic abuse.

[152] The evidence does not establish what occurred in 2007. No charges were laid and the Father was not asked about this incident during his examination in-chief. There is no other evidence as to the alleged assault in 2007. There was a report to the police in 2007. The Mother says it was a physical assault by each of them on the other. The Peel CAS records appear to refer to it as a verbal argument.

[153] Then, there is the alleged assault on August 21, 2010. The police were called. The Father was charged with assaulting the Mother. The Father was acquitted. On the evidence before me, I cannot determine whether the assault occurred. What is troubling is that after the alleged incident, the Peel CAS wanted to investigate potential impact on the Children. The Mother could have raised the Father’s alleged abusive nature. Surprisingly, she refused to speak or meet with the Peel CAS to deal with what had occurred. The Mother advised that she would deal with the situation elsewhere. There is no evidence that the Mother went elsewhere for assistance for her or the Children regarding the alleged assault or the Father’s alleged abusive nature. If the Father was as abusive as the Mother alleges, why wouldn’t the Mother raise these concerns with the Peel CAS as it would impact the Father's ability to parent or become a potential risk to the Children? By the August date, the relationship had ended and they had arranged for a listing agent to attend on August 23, 2010 to sell the Property but as a result of the allegations, the Mother remained in the Property and it wasn't sold until ordered to be sold by the court. This raises serious doubt about what happened, if anything, on August 21, 2010.

[154] The Children reported to Peel CAS that the Father used a belt for discipline – clearly not appropriate discipline under any circumstance. The Peel CAS dealt with the Father on this issue. This was verified. The Peel CAS was satisfied this was dealt with and after 4 years of dealing with the family, concluded that either parent could properly care for the Children. In other words, this was not a continuing concern for the Peel CAS.

[155] There was also reference to the Children reporting some domestic violence prior to separation. The Peel CAS did not verify any domestic violence or abuse by the Father against the Mother. The Father was not asked about this alleged violence when he testified. It is unknown when this allegedly occurred and how old the Children were at the time they say this happened. Was it true? Did someone put them up to saying this? As above, the Peel CAS in 2014 concluded that either party was a fit parent to care for the Children.

[156] It is difficult to imagine that the numerous social workers from Peel CAS, the teachers, the doctor, the neighbour or some other person would not have observed and raised concerns about the Father’s alleged abusive nature.

[157] The Father’s anger was evident during the course of the trial. There was no physical violence. There was a verbal assault against the Mother. There was clearly frustration and anger. While some of the anger can be explained on the conflict between the parties over the past 4 ½ years and the allegations the Mother has made against the Father, this is no excuse. It is important to note that this anger was not directed at the Children.

[158] Considering all the evidence, I cannot and do not conclude the Father has a history of domestic violence against the Mother.

[159] I do conclude that the Father’s inappropriate disciplining of the Children has been dealt with by the Peel CAS and is not a significant factor weighing against the Father having custody of the Children.

[160] The Mother points to the Father as the driving force behind the conflict. The facts in this case paint a very different picture as to the driving force of the conflict – the Mother’s actions in failing to deal with matters involving the Children promptly, properly and her unilateral decisions with respect to the Children's lives.

Taking responsibility for the conflict

[161] The Mother’s counsel submits that the Mother has taken responsibility for some of the conflict and her “mistakes”. I disagree. In my view, the Mother has done her best to avoid responsibility for her actions. She blamed the Father, her lawyer, CRA, EI officials and the Children.

[162] She explained she was too busy for the Peel CAS, the police, the real estate agent, the repairman and the teachers. When the Mother testified as to why she didn’t meet the Peel CAS social worker despite numerous attempts, the Mother's submission explained that “She attempted to arrange meetings on a number of occasions but at the time she was responding to numerous issues in court, she was in the process of selling her home and moving twice, and she was juggling all of that with a constantly changing work schedule and caring for children”. This is not a reasonable excuse. The Peel CAS’s responsibility is the Children’s welfare. The Mother’s responsibility is to the Children. The Mother had time to go on a holidays in the fall but, she says, she didn’t have time to speak or meet with Peel CAS during that period? I do not accept her explanation.

[163] When all else failed, the Mother submitted: “it is very puzzling to her why the school would have reported [no lunches] otherwise”.

[164] In some cases, the Mother blamed the Children. For example, she blamed Jaymeson for going to school in a snowstorm without boots in January 2014 despite her telling him not to go. Jaymeson got frostbite on his feet. Fortunately, there was no permanent harm. She also blamed Jaymeson for causing the late attendances at school.

[165] I conclude that the Mother did not and does not take responsibility for her actions.

The Father’s work schedule

[166] I do not accept that the Father’s employment is an impediment to him having custody of the Children. Mother’s submissions speculate on the Father’s schedule and its impact on his ability to care for the Children in the evenings or to assist them with homework. It appears to me that over the past few years, when the Father needed to be involved with Peel CAS, the school, medical appointments and help with homework, the Father was there. That is more than can be said for the Mother. There is no reason to think this will change going forward.

The Father’s complaints to Peel CAS

[167] The Mother points to the number of complaints the Father made to Peel CAS as a further example of the Father’s abusive nature and his desire to discredit the Mother as a caregiver.

[168] I agree that the Father’s numerous complaints to the Peel CAS are a factor to consider. But this must be balanced with the findings of the Peel CAS. The Peel CAS findings did not dismiss all of the Father’s concerns. A number were verified. The Peel CAS’ primary concern was the Children witnessing the conflict between the parties. In addition, two of the referrals originated from the Children’s teachers. In summary, the list of “complaints” by the Father in Tab B of the Mother’s closing submissions do not suggest the Father was “making up” complaints to discredit the Mother but raising issues, perhaps some which were minor and some repetitive, some of which were verified by the Peel CAS, some were not.

[169] In addition, repeated complaints to the Peel CAS could have been avoided, or at least reduced, if the Mother had cooperated by speaking with or meeting with the Peel CAS social workers and the teachers to respond to the Father’s concerns instead of Mother’s constant “unavailability”.

[170] I am not satisfied this is a significant concern regarding the Father’s ability to parent the Children.

The Law

[171] Section 20 (1) of the Children’s Law Reform Act (CLRA) provides:

Except as otherwise provided in this Part, the father and the mother of a child are equally entitled to custody of the child.

[172] Under subsection 24(2) of the, in determining what is in the best interests of a child, the court, SHALL consider all the child’s needs and circumstances, including:

(2)(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 care and upbringing of the child;

(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) any plans proposed for the child’s care and upbringing;

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

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

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

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

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

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

(4) 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.

[173] The following are some of the factors which are relevant to determining the best interests of a child in this case:

• the physical well-being of the children;

• the emotional well-being and security of the children;

• the plans for the education and care of the children;

• the fulfillment of the religious or ethical upbringing of the children;

• the sensitivity of the parents to their role as parents and, in particular, their understanding and appreciation of the needs of the children – this includes the need of the children to continue his relationship with the other parent;

• the willingness of the parent to promote the relationship of the children with the other parent;

• the psychological needs of the children.

[174] The courts have traditionally given weight to the parenting arrangements in place at the time of the court’s determination of the issue, be it at the interim stage or the final stage. Generally, courts are reluctant to change existing child care arrangements that are working to a child’s benefit. See N. (M.) v. B. (M.) (2000), 2000 CanLII 22543 (ON SC), 9 R.F.L. (5th) 359 (Ont. Sup. Ct. J.). The Mother submits that the status quo, the Mother as a primary caregiver, should continue. First, I am satisfied that both parents have been caregivers to the Children. Secondly, the Father has had a very significant role in the Children’s care since separation and, particularly, since June 2014. Thirdly, the status quo is only one factor to consider in the context of the best interests of the Children.

Conclusion on Custody

[175] After considering all of the evidence, I conclude the Father is the better parent to make the major decisions for the Children. I am satisfied that he will put the needs and best interests of the Children first. Therefore, it is in the best interests of the Children that the Father be granted sole custody of the Children.

[176] I come to this conclusion for a number of reasons which include:

a) The Father has consistently been involved in the Children’s lives and he deeply cares for them. The Father has been involved in all aspects of the Children’s lives – school, medical and religious and is in a position to make the major decisions affecting the Children’s lives;

b) The Peel CAS has concluded that either parent could provide for the needs of the Children, including their physical and emotional well being;

c) The Father has put the needs of the Children first, particularly in the last 4 ½ years and continues to do so;

d) Aside from the disciplining the Children with a belt, there is little fault or concern that can be attributed to the Father or decisions made by the Father with respect to the Children. As I stated above, the Peel CAS was satisfied that, after dealing with the Father on this issue, the Father’s discipline was no longer a concern to the Peel CAS regarding the Father’s ability to parent the Children;

e) Because the Father's priority has been the Children, he has made time to speak to and meet with those persons involved in the Children's lives such as teachers and the Peel CAS. The Mother has a pattern of failing to attend or communicate with persons involved in the Children’s lives, even when it was important for the Mother to participate. This negatively impacts on the Mother’s ability to receive information from professionals and others involved in the Children’s lives and make informed decisions;

f) The Mother has failed to devote the necessary time and priority to the Children as was required since separation. A parent may be too busy to meet with persons, such as teachers or the Peel CAS social workers on one or two occasions. However, a pattern of missing or avoiding these persons is indicative that the parent is not making the Children’s best interests a priority in their life. The Mother, when confronted with her prior actions, repeatedly stated that she was overwhelmed and too busy to respond to the Peel CAS, the police officers, the repairman, the listing agent, the real estate lawyer and so on. There is no basis to believe that this lack of focus and dedication of the Mother will change in the future if the Mother has custody of the Children;

g) I am satisfied that the Father will permit a relationship between the Mother and the Children to develop. The Mother will not encourage a relationship with the Father. The Mother was reluctant to provide the Father with access, telephone access and summer access unless it was by court order. She chose not to involve the Father in decisions involving the Children such as the choice of schools and extracurricular activities. The Mother unilaterally made major decisions regarding the Children’s lives without including the Father. In my view, the Mother has deliberately excluded the Father from significant decisions regarding the Children. I am not persuaded that she will encourage a meaningful relationship between the Children and the Father; and

h) The Mother’s life, at this time, is much more uncertain and lacks stability. It raises a question of ongoing stability for the Children given her financial status, her employment status, and the home she can provide for the Children. For example, the Mother presently resides in a two bedroom condominium. The Children share a bedroom. Jaymeson is 13 ½ years old. Sharing a room with his sister is, or will become, an issue but the Mother’s financial status would make it difficult to move to a larger home.

[177] As a result, I order that the Father shall have sole custody.

PARENTING SCHEDULE

[178] The Mother suggests that the current week-about doesn’t work. She raises a number of reasons but none appeared to me significant (i.e. missing pets, friends) all of which reasons would be equally applicable when the Children are not with the Father. In my view, the following sentence captures the Mother’s motivation “in the end the children are more bonded with me”. Even if I accepted this statement, the test is what is in the Children's best interests not which parent has the better bond with the Children.

[179] While the current week about parenting schedule is a possibility, given the many concerns regarding the Mother’s parenting set out above, I am satisfied that continuing a week-about parenting time is not in the Children’s best interests.

[180] The Father’s current life is more stable than the Mother’s life. The Father is a long standing employee of Mississauga Transit. He has a new partner. He has roots in the community with a home and parents nearby.

[181] The Father’s home will provide a better environment for the Children. On the other hand, the Mother has decided to return to school. She has no present employment. She quit her job in May 2013 and took the summer off. It is unknown whether she will finish school. It is unknown when or where she will find employment. She rents an apartment but is financially dependent on social programs and her father to continue to be able to do so. There is considerable uncertainty in the Mother’s life at the present and for the foreseeable future.

[182] I agree with the Father that now is not the time to disrupt the Children’s schooling or parenting time. It is best for the Children to continue at their current schools and current parenting schedule until the end of the school year; June 26, 2015. After June 26, 2015 and during the summer holidays, the parents shall have a week about schedule until the commencement of school in September, 2015 so as to permit them to equally have time with the Children over the summer holidays. To be perfectly clear, while equal parenting time continues for a number of months, sole custody to the Father commences immediately.

[183] Upon return to their schools in September 2015, the Children’s primary residence will be with the Father. The Father’s proposed access schedule for the Mother provides considerable parenting time to the Mother and, in my view, will permit and foster a healthy and beneficial relationship between the Children and the Mother. The Mother shall have access as follows during the school year:

i. Every Tuesday afternoon after school until 7:30 p.m. The Mother shall pick up the Children from school and the Father shall pick up the Children from the Mother’s residence;

ii. Every Thursday afternoon after school until Friday morning school drop off. The Mother shall pick up the Children from school and drop the Children at their respective schools the next morning; and

iii. Every alternating weekends, starting September 4, 2015, from Friday after school until Monday morning school. The Mother shall pick up the Children from school and drop the Children at their respective schools on Monday;

[184] Summer holidays shall be equally divided as set out in the attached Schedule A.

[185] Other holidays shall be as set out in the attached Schedule A.

THE CHILDREN’s SURNAMES

[186] The parties had agreed to have the Children surnames be “Jackson”. The Mother has changed Janayah’s surname to “Arthur” without the Father's consent. As a concession, she now seeks to have the Children’s surnames to “Arthur-Jackson”.

[187] No good reason has been advanced why the Children’s surnames should be changed from Jackson to be hyphenated.

[188] The Father shall have the right to apply for a change of the Children’s birth certificates to change Janayah’s surname to “Jackson”. This application may be made without the Mother’s signature or consent. Similarly, the Father may apply for passports or other government documentation for the Children without the need for the Mother’s signature or consent.

INCOME AND CHILD SUPPORT

Imputing income to the Mother

[189] The Mother’s income has been as follows:

• 2011 $29,600;

• 2012 $33,666;

• 2013 $16,306 (part work year/part school year); and

• 2014 $6,642 (summer employment during school year).

[190] Prior to the Jaymeson’s birth, the Mother worked as a paralegal. However, when she returned to work, she required a paralegal’s license which meant she needed to take a course and pass a licensing exam. The Mother chose not to return to employment as a paralegal. The Mother obtained employment at a call centre for the Bank of Montreal. In May 2013, the Mother quit her Bank of Montreal employment, decided to take the summer off and return to school in September 2013. In September 2013 the Mother went to Humber College in the social work programme. She states she intends to return to university when she completes Humber College. The entire student program, if she continues with this program, may require another 3-5 years. The Mother isn’t employed during the school year but does work during the summer months. She supports herself with OSAP and financial assistance from her father.

[191] No real explanation was given to explain why the Mother decided to return to school aside from telling her mother before her death that she would go back to school and finish school.

[192] Having determined that the Father is to have primary residence with the Children, the next difficult question is whether the Mother should have to pay child support. Using the Mother’s line 150 from her Notice of Assessment would result in no child support payable under the Guidelines. The Father seeks an order that the Mother pay child support based on imputed income of $29,600 per annum.

[193] Should the court impute income to the Mother?

[194] The relevant portion of s. 19 of the Child Support Guidelines provides as follows:

19. (1) The court may impute such amount of income to a parent or spouse as it considers appropriate in the circumstances, which circumstances include,

(a) the parent or spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of any child or by the reasonable educational or health needs of the parent or spouse;

[195] The onus is on the Father to establish that the Mother is intentionally under-employed. See Homsi v. Zaya, 2009 ONCA 322. In this case, the Father has established this as the Mother was previously employed and she quit her job. But for the Mother’s return to school, she would have reasonable employment and income.

[196] Once the Father has established the Mother’s under-employment, the onus shifts to the Mother to establish whether her return to school is "reasonable educational needs". See Drygala v. Pauli (2003), 2002 CanLII 41868 (ON CA), 61 O.R. (3d) 711 (Ont. C.A.) In other words, are the Mother’s educations needs reasonable?

Reasonable Educational Needs

[38] There is a duty to seek employment in a case where a parent is healthy. As a general rule, a parent cannot avoid child support obligations by a self-induced reduction of income. Thus, once it has been established that a spouse is intentionally unemployed or under-employed, the burden shifts to that spouse to establish what is required by virtue of his or her reasonable educational needs.

[39] There are two aspects to this stage of inquiry. The trial judge must first determine whether the educational needs are reasonable. This involves a consideration of the course of study. A spouse is not to be excused from his or her child support obligations in furtherance of unrealistic or unproductive career aspirations.

[40] But, s. 19(1)(a) speaks not only to the reasonableness of the spouse's educational needs. It also dictates that the trial judge determine what is required by virtue of those educational needs. The spouse has the burden of demonstrating that unemployment or under-employment is required by virtue of his or her reasonable educational needs. How many courses must be taken and when? How much time must be devoted in and out of the classroom to ensure continuation in the program? Are the academic demands such that the spouse is excused from pursuing part-time work? Could the program be completed over a longer period with the spouse taking fewer courses so that the spouse could obtain part-time employment? If the rigours of the program preclude part-time employment during the regular academic school year, is summer employment reasonably expected? Can the spouse take co-operative courses as part of the program and earn some income in that way? These are the types of considerations that go into determining what level of under- employment is required by the reasonable educational needs of a spouse.

[41] The burden of proof is upon the spouse pursuing education as he or she is the person with access to the requisite information. The spouse is in the best position to know the particular requirements and demands of his or her educational program. He [page721] or she will have information about the hours of study necessary to fulfill such requirements, including the appropriate preparation time. He or she is in the best position to show whether part-time employment can be reasonably obtained in light of these educational requirements.

(emphasis added)

( See Drygala at paras 38-41)

[197] In this case, the Mother has provided no evidence regarding her “educational needs” and whether they are reasonable. She was 35 years old when she decided to return to school. She had a stable job, reasonable pay, with a good employer – a bank. Aside from her statement that she wanted to finish school, there is little else.

[198] The Mother has not adduced any evidence as to other options available. Can she take the program by way of part-time or evenings? Can she work part-time during the school year? These and many similar questions were not addressed by the Mother.

[199] There is no evidence as to how the Mother is doing in college. There is no evidence whether the Mother has applied or continues to seek to proceed to university or how reasonable that prospect is. There is no evidence detailing whether the Mother could pursue any higher education by part-time or evening studies.

[200] In these circumstances, I am not satisfied that the Mother has satisfied the onus on her to establish that her under-employment arises from reasonable educational needs.

[201] As a result, I am prepared to impute income to the Mother. The amount of imputed income sought by the Father, $29,600 per year appears to be very reasonable and is significantly lower than the Mother’s actual income in 2012 or what she would have earned in 2013 if she had worked the full year. This is the best information available as to what the Mother would have earned but for returning to school.

[202] The amount of $29,600 per year is imputed to the Mother’s income.

Retroactive Child Support (August 21, 2010 to JULY 1, 2014)

[203] Both parties produced calculations showing the retroactive child support to date.

[204] The Father submits that there should be a set off commencing July 2013 when the court ordered that he have overnight access with the Children in addition to the alternating weekend access. I disagree. The Father’s parenting time with the Children was less than 40 per cent of the time. I am not prepared to exercise my discretion to vary the amount of child support as per the Child Support Guidelines prior to June 2014.

[205] The calculations prepared by the Mother are more accurate as they reflect the actual income set out in the Father’s Notices of Assessment.

[206] I calculate the Father’s child support arrears to July 1, 2014 to be $9,659.

Child Support arrears July 1, 2014 to February 1, 2015

[207] The Mother correctly sets out that the Father’s child support obligations at $1,030 per month from July 1, 2014 to February 1, 2015.

[208] However, during this period of time the parties were equally sharing parenting time with the Children. There appears to be no reason to deviate from the usual set-off in this case.

[209] The Mother’s Child support obligation based on the imputed income of $29,600 is $429 per month.

[210] As a result, the Father’s child support obligation (i.e. set off amount) during this period was $601 per month.

[211] The Father’s child support arrears from July 1, 2014 to February 2015 is $4,207.

Child support prospectively

[212] Commencing March 1, 2015 the Father shall continue to pay child support to the Mother $601 per month. This shall continue until the August 1, 2015 payment.

[213] Commencing September 1, 2015, on an annual basis, the Father will have parenting time with the Children in excess of 60 per cent. As a result, on September 1, 2015 and each month thereafter on the first of each month, the Mother shall pay to the Father, child support in the amount of $429 per month. This amount is to be adjusted annually, if and when the Mother’s income exceeds $29,600. Reporting income is to be made in accordance with the provisions of the Child Support Guidelines.

Conclusion on Child Support Arrears

[214] The Father shall pay to the Mother $13,866 ($9,659 plus $4,207) on account of child support arrears to March 1, 2015. This amount to be paid by the Father from his share of the proceeds of sale of the Property as set out below.

Section 7 Expenses

[215] The following provisions of the Child Support Guidelines are relevant:

7. (1) In an order for the support of a child, the court may, on the request of either parent or spouse or of an applicant under section 33 of the Act, provide for an amount to cover all or any portion of the following expenses, which expenses may be estimated, taking into account the necessity of the expense in relation to the child's best interests and the reasonableness of the expense in relation to the means of the parents or spouses and those of the child and to the spending pattern of the parents or spouses in respect of the child during cohabitation:

(f) extraordinary expenses for extracurricular activities.

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

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

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

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

(emphasis added)

[216] The Guidelines use the word “may”. The court has discretion whether to grant a retroactive award for special or extraordinary expenses.

[217] The Mother now seeks contribution from the Father for past extracurricular activities. However, there is no evidence that the Mother ever consulted with the Father before putting the Children in the extra-curricular activities. This alone is not a basis for disentitling the Mother reimbursement of s. 7 expenses but it is a factor.

[218] The invoices the Mother seeks to be reimbursed were produced just before the commencement of trial.

[219] There is no evidence that the Father was ever asked to reimburse the Mother for these until trial. I reject the Mother’s hearsay evidence that her lawyer asked for contribution to s. 7 expenses and it was refused – no letter was produced and it was inconsistent with un-contradicted evidence during the Father’s case. Again, this was an attempt by the Mother to blame someone else, her lawyer, for the position she now finds herself in.

[220] Further, some of the extra-curricular activities were paid by Peel CAS but it is not known which invoices were paid by the Peel CAS or which were paid by the Mother, if any.

[221] In my view, it would be unfair to require the Father to reimburse the Mother for these s. 7 expenses in the circumstances of this case. The reasons include:

a) The Mother did not advise or consult with the Father regarding these extra-curricular activities;

b) The Mother did not seek re-imbursement of s. 7 expenses until trial;

c) The Mother didn’t produce the receipts for the s. 7 expenses until shortly before trial;

d) As testified by Peel CAS, some of the extra-curricular expenses were paid by Peel CAS. The Mother’s affidavit doesn’t disclose which invoices were paid by the Peel CAS and which were paid by her;

e) The Mother acknowledges that the Father did pay for some s. 7 expenses such as the Children’s soccer.

[222] There shall be no order for reimbursement of retroactive s. 7 expenses.

[223] Except for expenses which relate to school, including supplies, trips and so forth, on a go forward basis, the parties must agree in advance on any extra-curricular activities in the future. If agreed in advance, the expenses shall be paid by the parties in accordance with the proportion of the incomes set out above for child support purposes, as may be varied from year to year. If there is no agreement in advance, the party registering the Children for the new extra-curricular activity shall pay for the activity.

[224] If the parties are unable to agree in advance on a s. 7 expense, either party may seek a court order declaring that the proposed expense is a s. 7 expense which must be paid by the parties in proportion to their incomes.

OTHER FINANCIAL ISSUES

The Stable Gate Property

[225] During cohabitation, the parties kept their financial affairs separately. The exceptions were their joint acquisition of a home and a joint bank account, where each contributed monies for the expenses relating to the Property.

Contributions to acquire the Property

[226] The parties bought the property at 13 Stable Gate, Brampton in 2005 (the “Property”). The Father contributed $13,449.56. The Mother contributed $5,000. The Mother did not dispute this during the Father's cross-examination. However, when the Mother filed her affidavit in September 2014, the Mother sought to add a further $5,000 contribution by way of a gift from her Father for the initial deposit. There is no documentary evidence to support this additional contribution. I find the Father contributed $13,449.56 and the Mother contributed $5,000 to the Property’s acquisition. However, as will be discussed below, the unequal contribution to the acquisition of the Property, does not impact on the respective ownership or the entitlement to the proceeds of sale.

[227] With knowledge of the disproportionate contribution, the parties nevertheless decided that the Property should be registered as equal joint tenants. This leads to a presumption that the parties intended to share in the Property equally.

[228] The Father claims payment of the $8,449 being the amount he contributed above the amount contributed by the Mother for the acquisition of the Property. The evidence does not support any agreement that this disproportionate payment was to be repaid if the relationship ended. There is no evidence to support any trust claim, unconscionable or equitable claim which requires the equalization of the disproportionate contribution 5 years after the acquisition when the relationship ended. The mere fact that the Father contributed more to the Property than the Mother does not, by itself, entitle the Father to the relief sought.

[229] I find the Mother does not have to reimburse the Father for the initial unequal contribution to the acquisition of the Property.

Mortgage contributions

[230] Upon separation, the parties agreed that the Property needed to be sold and, until then, they would each pay 50 per cent of the mortgage expense. This became a problem when the mortgage went into arrears starting in November 2010. It was clear that the parties, because of their financial condition and their matrimonial dispute, needed to sell the Property quickly. Because of the Mother's failure to contribute to the mortgage, the Father had to make payments himself and bring a motion requiring the Mother to make her contributions to the mortgage. This equal contribution to the mortgage became part of a consent court order dated February 28, 2011. The same court order also required that:

a) the Mother pay the utilities;

b) the parties were to sign a listing agreement by a specified date;

c) the parties cooperate to sell the Property;

d) prior to the listing for sale, repairs be done to the Property by Mr. Dayton Johnson.

[231] The account used to pay the mortgage was short of funds. Some cheques "bounced". The bank continually demanded payment to bring the mortgage into good standing. By letter dated March 2, 2011, the Father’s counsel demanded that the Mother pay her share of the February and March payment which the Father had to cover. There is confirmation of the Mother’s failure to contribute to the mortgage in an email from the Mother’s lawyer to the Mother dated March 10, 2011 imploring the Mother to make her share of the mortgage payments and asking “when do you intend to make the payments and how? Will you be able to pay off your portion of the arrears”.

[232] The Father brought this matter before the court in April 2011. He set out in his affidavit of March 21, 2011 that he was making the mortgage payments and the Mother was not. The Mother responded by affidavit dated April 4, 2011 stating that she paid more than the Father for the mortgage payments. This is repeated in her affidavit of September 22, 2014.

[233] The Mother says she made the entire mortgage payments on March 21, 2011 and April 1, 2011. I do not accept the Mother’s evidence. What the Mother fails to include is contributions by the Father into the Mother’s account. The Mother takes credit for the full amount of the payment. The Father's materials show that he deposited into the Mother's account $800 on April 4, 2011 as his portion of the mortgage payment. The Mother does not credit the Father for this contribution. As a result, simply looking at the money coming out of the Mother’s account is not an accurate reflection of their contributions. Further the Mother’s position is inconsistent with what is set out in her affidavit of April 1, 2011 that her payments in March and half of the April payment had not be taken by the bank. She said that as of April 1, 2011:“I will be instructing the bank to withdraw my halves of the March and April installments and putting them towards a March payment”.

[234] On June 10, 2011, the Father’s counsel was still seeking confirmation from the Mother’s counsel that the Mother had paid her portion of the arrears on the Mortgage. There was no response by the Mother’s counsel.

[235] The respective contributions to the mortgage are complicated to follow given that both parties were contributing to a joint account. Both parties provided reconciliations. However, the period of time of the Father’s reconciliation is different from the reconciliation period the Mother reviews. In some cases the payments were to cover the arrears in previous months. In some cases, the Father was making the full payment. In some cases, the Mother was making the full payment. The respective contributions to each other’s accounts also complicate a thorough review.

[236] The Mother's viva voce evidence did not add any clarity to her position. The Mother blamed much of what occurred as a “lot of confusion” or that a payment made “could have been mine”. The Mother’s evidence is simply not convincing that she paid more, or even her half, of the amount of the mortgage payments. The Father's viva voce evidence of his over-contributions was much clearer and consistent.

[237] I have reviewed the banking documentation and the affidavits of the parties several times. I conclude, on a balance of probabilities, that the Father contributed $1,638.75 (one month’s payment) to the mortgage more than the Mother did. This amount shall be paid by the Mother to the Father.

Delays in the sale of the Property

[238] The parties agreed to sell the Property upon their separation in August 2010. An agent was called, went to the Property on August 23, 2010 and suggested a listing price. The Mother told the agent that she would have the Property ready for listing in a week. Despite the agent trying to contact the Mother to list the Property throughout September and October 2010, the Mother did not return the agent’s calls.

[239] The Mother did nothing to advance the sale of the Property after the separation. She essentially had exclusive possession given the Father’s bail conditions. One of the reasons the Father commenced this application was to seek the sale of the Property.

[240] By consent order dated February 28, 2011, the parties were to list the Property by March 18, 2011 and have the Property repaired by Mr. Dayton Johnson, the designated repairman under the court order.

[241] The Mother didn’t want the Property sold. She resided in it. The Father was paying a significant part of the expenses. The first problem arose when the Mother cancelled the meeting with the listing agent, with the result that the consent order which required that the Property be listed by March 18, 2011 could not be accomplished. Again, the Mother says she was too busy and “too much was going on”. The Mother did not sign the listing agreement until May 11, 2011 (almost 2 months after the date specified in the order).

[242] The next problem arose when the Mother wouldn’t let Mr. Johnson, who was specifically identified by the order, attend to do the repairs on the Property. According to the Mother's lawyer, the Mother wanted a detailed estimate from Mr. Johnson but he couldn’t provide one because she wouldn’t let him into the Property. The Father was able to have Mr. Johnson agree to do the repairs for a flat fee of $75 for labour. The Mother’s position didn’t change. The Mother's position is that she was busy and couldn't make arrangements to meet Mr. Johnson. The result was that the listing agent had to retain someone to do the work at a significantly higher cost. The Mother’s explanation that “a lot was going on at the time” is not a satisfactory explanation for failing to comply with an order she had consented to. I accept none of her explanations. I conclude she was deliberately delaying the sale of the Property as she was residing in the Property and wanted to continue to do so.

[243] The Mother’s evidence that she wanted to sell the Property is simply not believable. She had months to organize and prepare for the sale of the Property. Even after the Property had been sold, the Mother continued to attempt to delay the closing by ignoring “multiple requests” by the real estate lawyer to sign the closing documents. The suggestion she was too busy is not believable.

[244] The Mother alleges that she made certain payments to get the Property ready for sale. The Mother produced an expense receipt of $668 for the costs of the replacement of the carpet. This repair was specifically asked for by the Father’s lawyer. The Mother was not challenged on this document.

[245] The Mother’s actions resulted in the real estate agent having to arrange for other repairs at a higher price than what the repairman designated by the court order would have cost, which higher costs were charged against the proceeds of sale.

[246] As a result, given the Mother’s cost of the carpeting and the higher repair costs, neither party shall be entitled to a credit.

[247] The Property closed on June 30, 2011.

[248] After closing expenses, there remained approximately $62,000 in trust from the sale of the Property. Each of the parties received $10,000 from the trust monies. Approximately $42,000 remains to be disbursed.

Occupation Rent

[249] The Father claims occupation rent. The factors to be considered in determining the appropriateness of an award for occupation rent are set out in Higgins v. Higgins (2001) 2001 CanLII 28223 (ON SC), 19 RFL (5th) 300 (SCJ).

[250] In this case, the Mother’s conduct including her failure to proceed to sell the Property after separation, failure to contribute to the mortgage, deliberate delays in facilitating the repairs, delays in listing the Property, failing to keep the Property in a reasonable condition for potential purchasers, all in the face of a consent court order, results in a legitimate claim for occupation rent to the Father for the delays to the sale of the Property deliberately caused by the Mother’s actions. In other words, the Mother's motivation and improper actions resulted in her receiving the benefit of an extended stay in the Property while the Father, residing elsewhere, received nothing but additional expense and a delay in the realization of his equity.

[251] The Father did not contribute to the delay. He did everything to move the sale forward. The listing agent was at the Property within days of separation. When nothing happened, the Father brought this application. There was no inordinate delay by the Father in demanding the Property be sold or advancing the claim for occupation rent.

[252] The Father seeks occupation rent from September 2010 to June 2011. Occupation rent should not be paid for a reasonable time after separation for the sale and closing of the Property as both parties would have been expected that, even if the listing agent in August 2010 had put the Property on the market, it would have taken a reasonable time to sell and close.

[253] I am satisfied and a reasonable period of time for the occupation rent is from February 2011 (when the Application was issued) until the Property closed on June 30, 2011. In my view, this reasonably and accurately reflects the delays caused by the Mother’s actions.

[254] The uncontested evidence is that the rental for such a home was about $1,400 to $1,450 per month. There is no reason to reject this evidence at this stage.

[255] Occupation rent is fixed at $7,000 (5 months from February to June, 2011 X $1,400 per month). The Mother shall pay 1/2 this amount to the Father from her portion of the proceeds of sale of the Property. See paragraph 56 Higgins.

The Father’s Personal Belongings

[256] The Mother submits that the Father’s claim for payment of his personal property not returned to him is not set out in the Father’s application. The Father does make property claims in his application. The Father did seek in his application to recover his personal property from the Property. The Mother prevented this from occurring. The Father’s claim is properly before this court.

[257] I conclude that the Mother should pay the Father for the personal property the Father wanted to recover from the Property but was unable to recover as a result of the Mother’s deliberate actions to frustrate the police and the Father. The Mother’s position has changed over time. In her affidavit of April 11, 2011 she stated the Father did retrieve his belongings on April 10, 2011. At trial, she said there was no such property belonging to the Father.

[258] There are three items at issue: a PS4, a sports jersey and a sofa.

[259] As for the sofa, the Father charged the sofa on his Brick card. However, the Mother produced documents showing that she made some payments to the Brick for the sofa. It therefore, appears that while the sofa was charged by the Father on his credit card, it became a joint liability of the parties and was paid by the parties jointly. In these circumstances, the cost of the sofa should be excluded from any recovery by the Father.

[260] Turning to the PS4 and the sport jersey, I agree with the Mother that a significant discount is necessary as the value of this property would have been significantly reduced as used property. I assess the value of these two items at $400. This amount shall be paid to the Father from the remaining proceeds of sale of the Property.

[261] The Mother shall pay to the Father the sum of $400.

Ancillary Orders

[262] Neither party made written submissions on ancillary orders other than to include various paragraphs in the draft proposed orders.

[263] I have included in Schedule A those ancillary orders which I have ordered.

CONCLUSION

[264] The parties shall divide equally the balance of the monies from the sale of the Property.

[265] From the Father’s share, there shall be paid to the Mother the sum of $4,827.25 which I calculated as follows:

• $13,866 (child support arrears) to the Mother.

• LESS $1,638.75 (mortgage payment recovery) to the Father;

• LESS $3,500 (occupation rent) to the Father;

• LESS $400 (personal belongings) to the Father;

TOTAL $8,327.25 to the Mother from the Father’s share of the proceeds of sale.

[266] The judgment shall include the custody, access and ancillary orders (including provisions relating to Janayah’s surname) set out in Schedule A hereto.

[267] This judgment replaces all interim orders presently outstanding.

[268] As for costs, if counsel cannot agree on costs, they may arrange for an appointment through the Trial Coordinator’s Office to make oral submissions on costs. Alternatively, if both counsel agree, I will entertain written cost submissions.

Ricchetti, J.

Date: February 20, 2015

SCHEDULE A

1. Communications between the parties shall only take place by email, text, or communication book unless it is an emergency in which case a telephone call may be used. All exchanges between the parties regarding the Children shall not be deleted nor shall they be forwarded to third parties without the other parent's consent. Messages shall be brief, respectful, related solely to the Children, with no reference to either of the parties or their activities.

2. The Applicant/father, Kurt Delroy Jackson (hereinafter, “Kurt”), effective immediately, shall have sole custody of the children, Jaymeson Delroy Jackson, a boy, born March 19, 2002 (hereinafter, “Jaymeson”), and Janayah Akeilah Julissa Jackson (also known as Janayah Akeilah Julissa Arthur), a girl, born October 30, 2005 (hereinafter, “Janayah”) (Jaymeson and Janayah are collectively referred to herein as the “children”).

3. Kurt shall consult with the Respondent/mother, Vida E. Arthur (“Vida”) with respect to any proposed major decisions involving the Children and provide Vida an opportunity to provide input into the proposed decision. If the parties cannot agree, Kurt shall have the final decision making authority.

4. The children shall continue to attend their current school until the end of the current school year. Thereafter, the parties shall communicate by way of emails whether and which schools the children shall attend in September 2015. If the parties are unable to agree, Kurt shall have the final decision making authority as to which school the children shall attend in September 2015.

5. Each party shall be entitled to receive copies of all medical, dental, school and other reports related to the Children and shall be entitled to consult with the Children's teachers, caregivers, physicians, dentists, and other health care providers concerning the general well-being of the Children. Each party shall be listed on all documents pertaining to the Children and shall be entitled to attend any of the Children's scheduled appointments. Both parties are to execute consents or authorizations to all persons, including teachers, doctors, dentists and others involved with the Children to speak fully and openly with both parties.

6. Each party shall be responsible for making decisions for emergency medical care while the Children are in his/her care, and shall keep the other party fully informed, by email, of any minor illnesses, emergencies, treatments, medications administered or prescribed while the Children are in his/her care. If the emergency is in the nature of a serious illness, accident or other misfortune involving either or both of the Children, the party then having the Children in their care shall immediately and promptly notify the other party. During any period of illness or recovery, each party shall have generous and reasonable contact with the child, consistent with the conditions of this order and the welfare and happiness of the child.

7. Any discussions between the parties at transition times, activities or other special events where the Children are present or nearby shall be limited to brief and cordial interchanges. If one party considers that the discussion is not courteous, both shall discontinue the conversation and shall take up the issue later using email.

8. The children may make telephone calls during reasonable hours, as they wish to the other non-custodial parent. The custodial parent shall not discourage or prevent any such telephone calls.

9. The children shall continue to remain resident in the Region of Peel, in the Province of Ontario save and except for written agreement of the parties or a court order.

10. Janayah’s surname shall be, and the same is hereby, changed from “Arthur” to “Jackson”. Kurt shall be, and he is hereby, allowed to apply to the Ontario Registrar General to obtain an Amended Statement of Live Birth for Janayah to confirm that: (1) he is the child’s biological father; and (2) the child’s surname is “Jackson”. The Vida's approval or consent to, or signature upon, any documentation necessary to facilitate Kurt obtaining an Amended Statement of Live Birth for Janayah shall be, and the same is hereby, dispensed with.

11. Kurt shall be entitled to obtain passports or any other government documentation for the Children without the consent or signature of the Mother.

12. Kurt shall retain the original copies of the children’s Statements of Live Birth. He shall furnish Vida with notarized copies thereof upon receipt of same.

13. Upon his receipt of an Amended Statement of Live Birth for Janayah from the Ontario Registrar General, Kurt shall forthwith apply to have Janayah’s name corrected on all of her other government documentation, including, but not limited to, her Ontario Heath Insurance (OHIP) card, Social Insurance card and Canadian passport, and Vida’s approval or consent to, or signature upon, any documentation necessary to facilitate this name change shall be, and the same is hereby, dispensed with.

14. Kurt shall retain the original copies of the children’s Ontario Heath Insurance (OHIP) cards, Social Insurance cards and Canadian passports in his possession, and he shall furnish Vida with notarized copies thereof upon receipt of same. He shall release the original copies of these documents (or any of them) to Vida whenever she requires them for any reasonable purpose, and she shall promptly return these documents to Kurt when she no longer requires them.

15. Either party shall also be allowed to travel with the children (or either of them) outside of Canada for short vacations not exceeding 14 days in length, provided that they obtain notarized consent at least 14 days prior to the anticipated date of departure (which consent shall not be unreasonably refused). For any travel outside of Canada, the party travelling with the children shall provide the other party a detailed travel itinerary, to include (without limitation) particulars of where the children will be staying throughout the duration of the trip, and a contact number (or numbers) where they can be reached. The travelling party shall be responsible for the cost to notarize any travel letter required.

16. Until September 1, 2015, the parties shall continue to have parenting time with the children in accordance with paragraph 3 of the Temporary Order of Ricchetti J., dated June 30, 2014.

17. Commencing September 1, 2015:

18. The children shall have their primary residence with Kurt;

19. Vida shall have access with the children:

i. Every Tuesday afternoon, starting September 1, 2015 after the children finish school, to 7:30 p.m. Vida shall be responsible for retrieving the children from their respective schools at the start of the access visit, and Kurt shall retrieve the children directly from her at the end of the access visit;

ii. Every Thursday afternoon, starting September 3, 2015, after the children finish school, to Friday morning, with Vida being responsible for retrieving the children from their respective schools at the start of the access visit, and returning them to their respective schools at the end of the access visit;

iii. Every alternating weekend, starting September 4, 2015, from Friday afternoon, after the children finish school, to Monday morning, with Vida being responsible for retrieving the children from their respective schools at the start of the access visit, and returning them to their respective schools at the end of the access visit;

iv. The following additional holiday access (which shall supplant the regular timesharing schedule set out above):

1. March Break: The children shall reside with Kurt in all odd-numbered years, starting in 2015, and with Vida in all even-numbered years, starting in 2016, from when the children leave school at the start of the March Break until their return to school following the Break;

2. Easter Weekend: The children shall reside with Vida in all odd-numbered years, starting in 2015, and with Vida in all even-numbered years, starting in 2016, from when the children leave school on the Thursday before the Easter Weekend until their return to school on the following Tuesday;

3. Mother’s Day: If the children are not otherwise with Vida on this weekend, they shall reside with her from Saturday, at 6:00 p.m., until their return to school on Monday. The Saturday access exchange shall take place at The Brampton Soccer Centre, located at 1495 Sandalwood Parkway East, Brampton, Ontario, L6R 0K2;

4. Father’s Day: If the children are not otherwise with Kurt on this weekend, they shall reside with him from Saturday, at 6:00 p.m., until their return to school on Monday. The Saturday access exchange shall take place at The Brampton Soccer Centre, located at 1495 Sandalwood Parkway East, Brampton, Ontario, L6R 0K2;

5. Summer Holidays: For the months of July and August of each year, starting in 2015, the children shall reside with each party on an alternating week basis, from Friday, at 3:30 p.m., to the following Friday, at 3:30 p.m. This schedule shall take effect on the Friday following the children’s last day at their respective schools. Vida shall have the first week, and Kurt shall have the second week, and so forth. This summer timesharing arrangement shall automatically conclude on the Friday proceeding Labour Day Monday, at 3:30 p.m. The children shall always be with Kurt during the Labour Day weekend, and the regular timesharing schedule shall resume after the children start school. Unless the parties agree otherwise, all access exchanges shall take place at The Brampton Soccer Centre, located at 1495 Sandalwood Parkway East, Brampton, Ontario, L6R 0K2;

6. Christmas Break: In all odd-numbered years, starting in 2015, the children shall be with Vida from 12:00 p.m. (noon) on Christmas Eve, to 12:00 p.m. (noon) on Christmas Day, and then with Kurt from 12:00 p.m. (noon) on Christmas Day, to 12:00 p.m. (noon) on Boxing Day. This schedule shall be reversed in all even-numbered years, starting in 2016. The remainder of the children’s Christmas School Break shall be divided equally between the parties. If they are unable to agree on how the Christmas School Break is to be divided between them, Kurt shall be allowed to determine how the remainder of the School Break is to be divided in all odd-numbered years, starting in 2015, and Vida shall be allowed to determine how the Break is to be divided in all even-numbered years, starting in 2016. Unless the parties agree otherwise, all access exchanges shall take place at The Brampton Soccer Centre, located at 1495 Sandalwood Parkway East, Brampton, Ontario, L6R 0K2; and

v. Parenting time shall only be altered on written consent of the parties or by court order.

vi. There shall be no make-up time for missed parenting time, unless the parties agree otherwise.

vii. Neither party will arrange activities for the Children when the Children are scheduled to be with the other parent without that parent's consent.

viii. Both parties shall be at liberty to attend scheduled school events and extracurricular activities whether or not they occur during their parenting time.

3. Neither party shall speak in a disparaging or negative manner about the other party or allow or encourage others to do so in the presence of the child.

4. Neither party shall discuss with the Children, or with another party in the presence of the Children, present or past legal proceedings or issues between the parties related to present or past legal proceedings, including any outstanding property or financial issues relating to the parties or the Children, or regarding conflicts between the parties relating to parenting issues. Each parent may respond briefly, in a reasonable manner, to questions with respect to such matters initiated by one of the Children.

5. Neither party shall leave out or accessible to the Children information or documents pertaining to any issue arising from the parties' separation and divorce, including any material that pertains to the matters referred to in paragraph 16 above, and neither will permit the Children access to their personal email where communications regarding these matters are stored. Both parties shall ensure that the Children will not have access to information regarding the parties' separation and divorce by password-protecting any area of their personal computers that hold such information.

CHILD SUPPORT:

21. For March 1, April 1, May 1, June 1, July 1 and August 1, 2015, Kurt shall pay to Vida the amount of $601 per month in support for the Children which amount is calculated based on a set off using the Child Support Guidelines for shared custody using $29,600 imputed income for Vida and $$69,549 for Kurt.

22. Starting September 1, 2015, Vida shall pay to Kurt the sum of $429.00 per month in support for the children, which is an amount calculated with reference to her imputed annual income of $29,600.00 and the Child Support Guidelines.

23. Starting September 1, 2015, the parties shall proportionately contribute towards the following special/extraordinary expenses:

24. All uninsured medical and/or health-related expenses for the children which are equal to or greater than $100.00;

25. Any school related additional expenses such as school related activities or school trips;

26. Any s. 7 expense the parties have agreed in advance for the Children;

27. Any other s.7 expense ordered by the court.

28. For the purposes of determining their respective contributions to these s. 7 expenses based on current incomes (actual or imputed): Kurt’s Guideline income shall be deemed to be $$69,549, and Vida’s Guideline income shall be deemed to be $29,600.00. Therefore, absent a change in either party’s annual income, Kurt shall be responsible for 70.1 per cent of these expenses, and Vida shall be responsible for the remaining 29.9 per cent. The parties shall exchange documentation evidencing what they have paid towards section 7 expenses during the previous six month period via email. A party who has not contributed towards his or her share of such expenses shall directly pay his or her proportionate share to the other party within 30 days of the review date. In determining a party’s contribution towards these expenses, a party shall deduct any income tax benefit or other subsidy received by the other party for the said expenses.

29. Both parties shall be under a continuing obligation to name the children as the irrevocable beneficiaries of any medical, dental and/or extended health coverage which may be available to them, through employment or otherwise.

30. This Order bears post-judgement interest at the rate of 3.0 per cent per annum effective from the date of this Order. Where there is a default in payment, the payment in default shall bear interest only from the date of default.

31. Unless this Order is withdrawn from the Director’s Office, it shall be enforced by the Director and amounts owing under the Order shall be paid to the Director, who shall pay them to the person to whom they are owed.

32. For so long as child support is paid, the payor and recipient, if applicable, must provide updated income disclosure to the other party each year, within 30 days of the anniversary of this Order, in accordance with section 24.1 of the Child Support Guidelines.

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Date of signature

Signature of judge or clerk of the court