CITATION: Sutej v. Sutej, 2015 ONSC 2064

COURT FILE NO.: FS-11-71552-00

DATE: 2015 03 30

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

IVAN JOHN SUTEJ

Robert A. Fernandes, for the Applicant

Applicant

• and -

LILJANA LILY SUTEJ

Daniel R. Furlan, for the Respondent

Respondent

HEARD: May 13-16 & 20, 21, 2014

REASONS FOR DECISION

EMERY J

[1] At the centre of this dispute is a little boy named Adam. Adam is six years old. There can be no doubt that Adam is loved by his father, the applicant Ivan John Sutej (referred to throughout the trial as John or Ivan, but who I shall refer to as “John”) and his mother, the respondent Liljana Lily Sutej (“Lily”).

[2] John and Lily each have strong views on the custody and access arrangements for Adam. To their credit, neither has shown an intention of depriving Adam of the parenting the other can provide to him. Despite the tensions and the tug-of war between the parents, this court must find the custody and access arrangement that is in the best interests of Adam as he grows up.

[3] The matrimonial home at 4 Leneck Avenue in Brampton Ontario has been sold since John and Lily have separated, and the net proceeds of sale were divided between them in early 2014. All property issues, including any equalization between net family properties, have been resolved.

[4] Further, Lily, who earns less income than John, claims no spousal support.

[5] I granted a divorce order to John and Lily on December 5, 2014.

[6] The remaining issues are therefore:

a) while Adams primary residence will be with Lily, whether John and Lily shall have joint custody of Adam, or if Lily shall have sole custody of Adam with a fixed access schedule for John and established decision-making powers for Adam between them;

b) whether John shall pay monthly child support to Lily for Adam;

c) whether John owes retroactive child support to Lily for Adam; and

d) To what extent should John and Lily contribute towards section 7 expenses for Adam.

[7] The main evidence at trial focused on what access John should be given to Adam having regard to John’s work schedule and his views on how best to make decisions about Adam.

Background

Facts and Figures

[8] John and Lily dated for approximately one year as teenagers while they each attended different high schools. They did not encounter one another again until the summer of 2004 when they met at a park in Milton. John describes seeing Lily again like he was meeting an old friend.

[9] John and Lily caught each other up about their lives over the last 17 years and resumed their friendship through the exchange of email. They started dating again in late 2005.

[10] John was living in his own condominium in Brampton at the time. Lily was living in a town house in Stony Creek. Lily had married after high school. When she met John again, she was separated at the time from her first husband. She had two children, Nicole who was nine years old at the time, and Alex, who was 7.

[11] John testified that he did not want to get involved if Lily was still married.

[12] Lily and John commenced living together on July 27, 2006 when he moved into her townhouse in Stony Creek. Subsequently, Lily and John relocated to Brampton. This was a mutual decision. Lily did so because she wanted to bond with John’s mother, Darinka Sutej (“Darinka”) who lives with John’s father, Mr. Ivan Sutej Senior in a condominium apartment at 30 Mill Street South in Brampton.

[13] Lily and John purchased the home at 4 Leneck Avenue in Brampton shortly thereafter. They were married on November 3, 2007.

[14] Adam was born on April 6, 2008.

[15] Two weeks after Adam was born, Lily and John made arrangements for Darinka to look after him. Darinka looked after Adam every weekend, or when Lily needed her rest.

[16] John took five weeks of paternity leave when Adam was born to help Lily around the house.

[17] John is currently employed at Cooper Automotive in Georgetown. Cooper Automotive is an automotive supplier. At Cooper, John is responsible to make sure that the production line does not go down. He also performs preventative maintenance. This requires him to be a jack of all trades. He described his function at Cooper as being “the blacksmith of today”.

[18] John has been employed with Cooper for over 10 years. John is covered for benefits under a collective labor agreement through his employment with Cooper.

[19] John’s income in 2007 according to line 101 of his income tax return was $53,672. He earned another $1,479.28 from disability for weeks he was not working due to disability that year. His total line 150 income for 2007 was $56,118.63.

[20] In 2008, his line 101 income was $54,694. He received another $2,961 for paternity leave, for a total line 150 income of $57,655.96. John testified that he took five weeks for paternity leave to care for Lily and “our son”, and to tend to household chores.

[21] In 2009, John’s line 101 income was $47,950.26. He received another $4,209 in employment insurance benefits when he was temporarily laid off, for a total line 150 income of $52,167.

[22] In 2010, John received line 150 income of $61,284.

[23] In 2011, John received line 101 income of $61,067.28. He also earned $72 in interest and other investment income for a total line 150 income of $61,139 for 2010.

[24] In 2012, John earned line 150 income of $61,471.

[25] In 2013, John earned line 101 income of $66,309.19 and an additional $50.30 from interest and other income for a total line 150 income of $66,359.49.

[26] John gave evidence that after his return to work in 2008, he worked dayshift for two weeks from 6:30 a.m. to 2:30 p.m., and afternoon shifts for two weeks from 2:30 p.m. to 10:30 p.m. He agrees that Lily was at home during this time. However, he does not agree with her allegation contained in her answer that she was Adam’s primary caregiver. John is unequivocal in his evidence that after Adam was two weeks old, Darinka started to look after him.

[27] John is also adamant that he gave all the spare time he had to give to the family. This included after he got home when he was on dayshift, and before he went to work on afternoon shift.

[28] Lily was employed at Hydro. After her contract with Hydro expired, she stayed home with Adam. However, John states that he took an equal part in parenting Adam. Darinka continued to take care of Adam as and when required, especially on days that Lily was not feeling well or searching for employment. During those occasions, Adam would stay with Darinka at Darinka’s home.

[29] John disagrees with Lily’s description in her answer that throughout Adam’s life she looked after most of the feeding and clothing of Adam. He disagrees that she was more or less the default bedtime parent for Adam.

Separation

[30] In 2009, John believed that his relationship with Lily was good. They had no discussions about separating until November 22, 2009.

[31] I heard extensive evidence about the lead up to, and breakdown of John and Lily’s relationship that resulted in their separation. The discussions about separation started again on February 13, 2011 when Lily declared “we are separated”. She followed this with the question “would you rather have a court do it and cost you every penny you have?”

[32] The discussion about separation intensified on February 20, 2011. It is Lily’s position that Adam heard these discussions. John does not believe that Adam was a witness to the conversation. Adam may have been on the same level in the house, but was not in the same room.

[33] By February 26 and 27, 2011 John and Lily were in crisis. John was arrested later on March 13, 2011 for allegedly assaulting Lily on February 27, 2011. John’s evidence on what unfolded with Lily during those two days, to his mind, formed the foundation of what became the terms of the recognizance imposed on him. John feels that Lily gained an unfair advantage in the custody fight as a result.

[34] The argument between John and Lily on February 27, 2011 about scheduling issues ignited their emotions. Although there is an allegation of an assault that day, Lily does not take the position that John posed a danger to Adam. John and Lily recorded their argument on consent for the purpose, as Lily put it, “for your safety, my safety and Adams safety”.

[35] It was at this time that John states that he was done trying to save the marriage. Lily proposed that they sell the house and split the assets of the marriage. John states that Lily had taken all the paperwork and she cleaned out the family records.

[36] On February 27 2011, Lily alleges that John assaulted her during the kitchen incident. The police were not called at the time.

[37] On the morning of the assault, Adam was up at between 7:00 a.m. and 8:00 a.m. John had changed his diapers and was preparing his strawberry milk drink in the kitchen. According to John, Lily always stayed in bed.

[38] That day, the Lily shot out of bed and appeared at the kitchen entrance. According to John, the first thing Lily said was “give me Adam”. John states that he answered quote no, I don’t want to play these games.” John then turned around carrying Adam and one arm, his other arm out for protection. As he turned around, he felt his extended arm grace something, even though he was a distance of 6 feet from Lily.

[39] After this contact, Lily purportedly blurted out repeatedly “you assaulted me”. John states that he would respond “no I didn’t”.

[40] The day than unfolded with John and Adam enjoying time together, including a session tobogganing at the park.

[41] Despite all of the recording by each Lily and John during the breakup process, no recording was made of the alleged assault on February 27, 2011.

[42] Lily never contacted the police about the alleged assault between February 27 and March 13, 2011.

[43] John was arrested by the police on March 13, 2011. The entire incident was taped by John with Lily’s knowledge. John was preparing to feed Adam and went to hold him when Adam began to cry. The day before, Adam had been with Lily and had stayed up until midnight. John states that ever since January 2011, his time with Adam had been forcibly limited even though Adam chose to spend time with his father. After a month of this behavior, the seeds of conflict were sown and John was sure that more conflict would follow.

[44] John made a video of the standoff that occurred in the basement of the home of the parties at 4 Leneck Avenue on March 13, 2011. The children Nicole, Alex and Adam were all sitting together on the couch watching cartoons. Lily alleged that John was intimidating and bullying the children, and threatened to call child services she stated that they would remove him from the home. Lily then called the Peel Regional Police. She stated that her husband was belligerent and frightening her children. She told them that he was “not in his right mind”. She then asked him where his guns were as John owns guns as a hobby. John answered that the guns were not in the house.

[45] Lily advised John that she had nowhere to go, but that he could move to his parents. They discussed the logistics of the separation. According to Lily, he ignored these discussions.

[46] John was arrested on March 13, 2011 outside of the residence where he waited quietly for police to arrive after Lily had placed the 911 call. Prior to his arrest, John can never be incarcerated. On the occasion of his arrest, he was incarcerated for two days and one night. He was released on his own recognizance, with his sister Emily Paquin and his mother Darinka Sutej as sureties.

[47] John was ultimately arrested by the Peel Regional Police for allegedly assaulting Lily on February 27, 2011 and removed from the home late in the afternoon on March 13, 2011. The charges were disposed of with no criminal conviction entered against John. Instead, he consented to a peace bond.

[48] John takes the position that the circumstances surrounding his arrest and the terms of his release under the recognizance are relevant to the custody and access issues at this trial. John claims that those terms held him back from making his claim for joint custody of, or liberal access to Adam from the outset.

[49] The terms of release also provided that access to Adam was to be arranged through a mutually agreed to third-party, and in the presence of his surety or an adult approved of by his surety or a valid court order. This impacted on his access to Adam.

[50] For the purpose of custody and access, John takes no issue with the date of separation being either February 27, 2011 or March 13, 2011. However, once he was prevented by a court order from exercising unsupervised access to Adam by the bail conditions placed on him, he was careful about where he went so that he would not breach the order of the court. The terms of his release included in order to abstain from communicating directly or indirectly with Lily except through legal counsel, and do not attend within 100 m of 4 Leneck Avenue in Brampton. The order made it next to impossible to communicate with Lily.

[51] On August 3, 2011, John entered into a peace bond on consent. There is no evidence that John broke the terms of this peace bond, and no notice was given by Lily or her lawyer that John ever breached any terms.

[52] John has lived in the same condominium on Mill Street in Brampton with his parents since March 14, 2011 when he was released from custody. The condominium apartment on Mill Street is owned by Darinka and Ivan Sutej Senior. It consists of 1250 square feet. The condominium was initially a two-bedroom unit. It now has three bedrooms because the solarium has been converted into a bedroom for Adam.

Peekaboo Day Care

[53] The litigation between the parties regarding Adam started in the summer of 2011. Lily has deposed in an affidavit that in December 2011 she was offered a full-time spot for Adam at the Peekaboo day care center in Brampton. Peekaboo Day Care is located on Mill Street South, less than one block from Darinka’s home. Lily wanted to spend more time with Adam to transition into full-time preschool and therefore decline the spot.

[54] John was of the view that no one should provide any care for Adam outside of himself and Lily except for Darinka. In his evidence, John agreed with paragraph 10 of an affidavit Lily swore on September 27, 2011. (except the last line of that paragraph):

In the summer of 2011 I was offered a full-time spot for Adam at Peekaboo. I wanted more time for Adam to transition into full preschool and therefore decline the spot. John was advised to counsel about my plans. He has always taken the position that no one should provide any kind of care for Adam save and except his mother. He believes this should continue until Adam is enrolled in full-time school. I believe this is just one more opportunity for John to try to exercise control over me.

[55] When Lily decided to place Adam at Peekaboo Day Care, Peekaboo could only accept Adam for two days a week until further time became available.

[56] John commenced this application on March 2, 2011. Instructed counsel to seek an early case conference date which was scheduled for April 11, 2011. He agreed to adjourn that early case conference to a later date to show that he was acting reasonably in his approach to the issues.

[57] John subsequently brought a motion with respect to Lily’s decision to enroll Adam at Peekaboo. On September 29, 2011, Justice Mossip heard that motion and identified the motivation behind it in the opening sentences of her endorsement which read:

The motion before me is solely about the amount of time the father will spend with Adam who turned three in April of this year. Really, the issue is about Adam being in day care, either part-time or full-time. The father is opposed to Adam being in daycare at all, though he would not vehemently oppose the child being in day care, Monday to Wednesday, as long as he could have the child with him or his family and out of daycare on Thursday and Friday.

[58] Later in the endorsement, Justice Mossip writes:

I hope this is the last time the parties are in court over Adam as I am sure they are both aware, all of their love for Adam cannot undo the harm caused by them fighting over him. They should get the professional help they need to solve the issues that will come up constantly regarding Adam… Reading books and going to counselors will only result in reaching agreement if both parties are able to put their own needs and preferences aside and focus only on Adam and what will bring him joy and peace, which is his parents not fighting.

[59] Justice Mossip made a temporary order on September 29, 2011 that Adam shall reside primarily with Lily, and the terms of access granted to John as follows:

2. The child, Adam Tomas Sutej, born April 6, 2008 shall be with the Applicant, Ivan John Sutej, every second weekend from Friday after daycare at 3:30 p.m. until Monday, or Tuesday if the Monday is a holiday, at 8:30 a.m. to the daycare.

3. The child, Adam Tomas Sutej, born April 6, 2008 shall be with the Applicant, Ivan John Sutej, in the alternate week, each Tuesday and Thursday from after daycare at 3:30 p.m. until the next day at 8:30 a.m. at the daycare.

4. The child, Adam Tomas Sutej, born April 6, 2008 may be with the Applicant, Ivan John Sutej, any other night during either of the weeks from 3:30 p.m. from the daycare until 5:30 p.m. by agreement of the parties. These times may be extended at the sole discretion of the Respondent, Liljana Sutej, by her notifying the Applicant, Ivan John Sutej.

[60] On October 4, 2011, Regional Senior Justice Van Melle (as she then was) heard a further motion made by John and ordered him to pay $569 a month in temporary child support for Adam. Justice Van Melle also ordered John to pay an additional temporary sum of $335 a month commencing on September 1, 2011 for his proportionate share of Adam’s day care costs. The support payable by Justice Van Melle’s order was based on a grossly yearly income to John of $61,284 and a grossly yearly income to Lily of $52,000.

[61] John states that when he was released from custody after his arrest on March 13, 2011, he first saw Adam on March 17, 2011. He next saw Adam on March 21, 2011.

[62] At first, John did not take the time to visit Peekaboo for a number of weeks. Finally, John paid a visit to Peekaboo in June 2011 to show that he could be fair and flexible. He found Peekaboo to be a very nice facility, well-run and that the children there seemed happy. He ultimately agreed that it was a suitable place for Adam at the time.

[63] John had resisted the idea of enrolling Adam in Peekaboo because of his belief that Adam is happy being cared for by his Darinka while his parents are at work. He believed firmly that Lily was content that Darinka look after Adam as she had before the separation. In fact, Lily has always been happy to have Darinka look after Adam after separation, except when she came to believe that Adam should have exposure to new experiences and people.

[64] John has also been resistant to enrolling Adam in day care because of the cost. He was steadfast in saying that he could not afford to contribute to the daycare expenses. He maintained a resentment over having to pay legal fees for a lawyer to represent him when he was arrested. It was particularly irritating to him that Lily had withdrawn $25,000 in savings from their joint account when they separated.

[65] To his credit, John agreed in testimony to the following paragraph that appeared in a letter from Lily’s lawyer dated May 6, 2011 that was parked as Exhibit 1, tab 44P:

My client obviously will not be removing Adam from his preschool. He is doing extremely well there. He enjoys his time interacting with his peers. The professionals involved at the preschool will be providing us with information regarding their program and the progress of Adam for the three days he attends per week. Adam really is getting the best of both worlds. He gets to interact with children his own age. He is learning to socialize and adapt to a learning environment for three days of the week. He also gets to enjoy the continuity of his connection with the paternal grandparents on Thursdays and Fridays.

[66] John further testified that the following statement that appeared in the letter from his lawyer dated June 22, 2011 accurately represented his view at the time:

Although I may be a tad overly semantic with this restatement of Mr. suited his position. However, for the sake of clarity, I simply wish to confirm as follows: Mr. suited is not agreeable to Adam attending at the Peekaboo day care center (and certainly not on long-term basis). However, he is committed to exploring the day care center option at further length, in order to determine, objectively, whether or not Adam’s ongoing attendance at this facility is in the child’s best interests. To this extent, he will acquiesce to the current status quo, where Adam attends at the day care center on Monday, Tuesday and Wednesday, it is with Darinka on Thursday and Friday.

[67] In summary, John did not agree that Adam should be enrolled for Junior kindergarten at the Peekaboo Day Care in September 2011. However, because of Justice Mossip’s order on September 24, 2011, Adam would go on to attend Junior Kindergarten at Peekaboo Day Care center until June 29, 2012. I have described this issue about Adam’s day care with considerable detail to highlight the different approaches between John and Lily for Adam’s upbringing. This divergence of opinion will be relevant later.

[68] Lily pushed John to recognize opportunities for Adam to become socialized to other children and to interact with others in a stimulating environment. Unfortunately, day care cost money. John opposed that idea, preferring Adam to be cared for by his Darinka in a traditional setting. This also provided free day care for Adam.

[69] The Peekaboo Day Care issue also illustrated John’s intransigence to change, and his opposition to any suggestion that Lily’s ideas might have merit. The Peekaboo situation also set the tone for the litigation to come. I will deal with two further examples that stand in high relief to the general relations between the parties up to trial.

[70] The first those instances arose during John’s cross examination. It involved the morning of June 21, 2012 when Adam was scheduled to take a field trip with his school class to Center Island in Toronto.

[71] Lily had informed John about a trip Adam’s school was planning for June 21, 2012. It was important that Lily have Adam on the 8:21 a.m. train to Toronto to meet the class on time.

[72] June 21, 2012 was a morning when John was exercising access to Adam under Justice Mossip’s order. Lily had asked John if she could pick up Adam from the condominium on Mill Street the night before to make it easier to get Adam up the next morning to catch the train. John was insistent that Adam stay overnight at Darinka’s, even though he would be at work that morning when Adam got up. To him, the morning time was “precious time” even though he was not even there.

[73] It was not until the lawyers were involved, and correspondence was exchanged that John finally capitulated.

[74] The second instance occurred when John was exercising access to Adam on July 3, 2012. Adam had been diagnosed with a mild allergy. Lily had informed John about the diagnosis and had written out the entire treatment plan in an email dated March 29, 2012 that was marked as Exhibit 4 at trial. John took him to Dr. Singara, a physician John had seen on one or two previous occasions, at a walk in clinic because he believed Adam was suffering allergy symptoms at the time. Adam is regularly seen by Dr. McCallion, his family doctor who also happens to be Lily’s doctor. Because Adam suffers from a moderate peanut allergy, as well as a mild allergy to chocolate and two cats, Dr. McCallion had referred Adam to Dr. Cheema, an allergy specialist.

[75] John admits that he did not tell Dr. Singara what medication Adam had been prescribed by his treating doctors. He was seeking further medication to administer to Adam. This was a treatment that may have been incompatible with the medication Adam had already been prescribed by Dr. McCallion and that he was already taking.

[76] John also opposed Lily’s intention to enroll Adam at St. Ursula Elementary School. He preferred that Adam be enrolled at Bishop Francis Allen Catholic School because it is only 600 m away from Darinka’s condominium building on Mill Street in Brampton. It was only after considerable legal time and emotional toll that John agreed that Adam could attend St. Ursula’s. Now, John considers St. Ursula’s to be a very good school for Adam.

[77] Much of John’s access plan concerns maximizing the time he has with Adam and, directly or indirectly, maximizing the time that Adam has with his grandparents, notably Darinka. A great deal of trial was taken up with evidence about John’s shifts at Cooper, and how access should be woven around his shift schedule.

[78] John’s shifts at Cooper changed from two weeks of dayshift followed by two weeks of afternoon shifts in 2013 to rotating two-week shifts of a day/night/afternoon combination. John would depend on Darinka to care for Adam when his shiftwork prevented him from being available personally for Adam. I will deal more with John’s shiftwork and what it means for time with Adam later in these reasons.

[79] John called his mother, Darinka Sutej, as a primary witness. Darinka was 71 years old at the date of trial and resides in the condominium apartment on Mill Street with her husband, Ivan Sutej Senior, and John. Mr. and Mrs. Sutej have lived in their condominium for 15 years.

[80] Darinka’s first language is Croatian. Although she can speak English, she gave her evidence through a Croatian interpreter.

[81] The purpose of calling Darinka was to show that Adam and Darinka have a strong bond as grandson to grandmother. She testified that her time spent caring for Adam increased from the days John and Lily would have her look after Adam when they moved to Brampton, to the time that John was arrested in March 2011. After that, she looked after Adam on Thursday and Friday when he was not attending at Peekaboo Day Care, and when Adam spend every second week with his father at the condominium.

[82] Mrs. Sutej testified that she speaks with Adam in both English and Croatian when she is caring for him.

[83] John also called his sister, Emily Patriquin as a witness. Ms. Patriquin described how she acted as a surety with Darinka for John when he was released on bail conditions in March 2011. Ms. Patriquin also described how she assisted John when he moved personal items from the matrimonial home subsequent to his release from custody. It is from Ms. Patriquin that the court learned that Lily expressed to her at the time that she was sorry “this is happening”, and that she was doing it “to protect Adam and her children”. Lily spoke to Emily of placing Adam in day care three times a week until a full-time place became available, and asked her to relay this information to John.

[84] Ms. Patriquin also described the time she spent to supervise John’s access to Adam. She testified that father and son had a wonderful time with each other inside the condominium where they would read and play together, and outside when they visited parks and played at other outdoor activities.

[85] John called Daniel Premus, a friend John has known for over 30 years. Mr. Premus has two children, Maddalena and Ethan with whom Adam is friendly. John also called Sandy Getty, a friend to John has known for 40 years. Ms. Getty has a son, Michael, who she described as having a strong bond with Adam. Ms. Getty testified that John has a loving relationship with Adam, and that she and John would have discussions about parenting their sons as young boys. I take it that John called Mr. Premus and Ms. Getty as witnesses to show that John has maintained long-standing friendships with people who have good parenting skills. He also called these witnesses to show they have children of ages comparable to Adam, and with whom Adam shares interests and experiences in a circle of friends he and his father share.

[86] John offers at whole network of family and friends to provide a social environment for Adam while he is with him. This consists of his mother Darinka and his sister Emily, his friend Chris and wife Natalie and their two sons who are around Adam’s age, Daniel and Michelle Premus and their two children and Sandy Getty, with her son Michael.

[87] Lily gave evidence that she lives in her own townhouse on cul-de-sac with her daughter, Nicole. Her son, Alex, visits every other weekend. Lily makes a home for Nicole and for Adam when he is with her. With friends who live nearby, notably Danielle Smith, she is able to raise Adam in a loving, stable and stimulating environment.

[88] Lily called her daughter, Nicole as a witness to describe the neighborhood in which they live. Nicole described the neighbourhood as a happy environment in which Adam is growing up when he lives with his mother and sister. Nicole was 19 at the time of trial, and will turn 20 on April 16, 2015.

[89] Nicole took a babysitting course when she was 13 years old. She is employed as a cake decorator at a bakery. She testified that she is going to school for baking pastry and that she is in an apprentice or program at Humber College. She stated that she plans to live at home for another two years.

[90] Nicole answered questions about the occurrence at the family home on March 13, 2011. This was the incident when John and Lily had their heated argument that started in the basement of the home at 4 Leneck Avenue where the children were watching television, and resulted in John sitting on the steps outside when the police arrived to arrest him.

[91] Nicole admitted that she was afraid of John while living in the family home. However, she also agreed that he has never caused her any physical harm.

[92] Lily also called her friend, Danielle Smith. Danielle lives across the street from Lily on the cul-de-sac. She has two children who go to school at St. Ursula with Adam.

[93] Danielle described the cul-de-sac as a number of families who are closely knit. On the cul-de-sac, there is only local traffic and this permits the children to play freely between houses. Danielle described how Lily’s backyard faces the playground. Lily and Danielle can sit in Lily’s backyard and watch the children play in the playground. She described how well Adam plays with all the kids and there appears to be no age barriers between the younger and the older children.

[94] Danielle describes Lily as being dedicated to the children. She describes how they have movie nights, family events and trips to the park.

[95] Danielle also described how she and Lily serve as a backup for each other when raising the children on a day by day basis. They make arrangements to drop-off and pickup children from school and activities between them.

[96] John has never met or spoken with Danielle Smith.

Analysis

[97] The decision about custody for Adam will determine what parenting roles each of the parties proposes for his upbringing, and what access the noncustodial parent shall have if joint custody is not ordered. The answers to these issue shall also determine what, if any, ongoing child support one party may be ordered to pay to the other for Adam, and the proportionate contribution or other payment one or both of them may be ordered to make towards section 7 payments for his extracurricular activities.

Custody

[98] John seeks an order granting joint custody of Adam to himself and to Lily, with a comprehensive parenting plan for decision-making for Adam in almost every aspect of his life. John’s plan also sets out in great detail the time-sharing arrangements each parent would have with Adam, having regard to John’s shiftwork and Darinka’s availability to care for Adam if and when John is at work. Lily seeks an order for sole custody of Adam, with an access proposal for John to spend time with Adam on regular basis, also with specific regard to his shiftwork.

[99] John has brought his application under the Divorce Act. Section 16 of the Divorce Act applies to the custody issue. For the benefit of the parties, section 16 is set out below in its entirety:

16. (1) A court of competent jurisdiction may, on application by either or both spouses or by any other person, make an order respecting the custody of or the access to, or the custody of and access to, any or all children of the marriage.

Interim order for custody

(2) Where an application is made under subsection (1), the court may, on application by either or both spouses or by any other person, make an interim order respecting the custody of or the access to, or the custody of and access to, any or all children of the marriage pending determination of the application under subsection (1).

Application by other person

(3) A person, other than a spouse, may not make an application under subsection (1) or (2) without leave of the court.

Joint custody or access

(4) The court may make an order under this section granting custody of, or access to, any or all children of the marriage to any one or more persons.

Access

(5) Unless the court orders otherwise, a spouse who is granted access to a child of the marriage has the right to make inquiries, and to be given information, as to the health, education and welfare of the child.

Terms and conditions

(6) The court may make an order under this section for a definite or indefinite period or until the happening of a specified event and may impose such other terms, conditions or restrictions in connection therewith as it thinks fit and just.

Order respecting change of residence

(7) Without limiting the generality of subsection (6), the court may include in an order under this section a term requiring any person who has custody of a child of the marriage and who intends to change the place of residence of that child to notify, at least thirty days before the change or within such other period before the change as the court may specify, any person who is granted access to that child of the change, the time at which the change will be made and the new place of residence of the child.

Factors

(8) In making an order under this section, the court shall take into consideration only the best interests of the child of the marriage as determined by reference to the condition, means, needs and other circumstances of the child.

Past conduct

(9) In making an order under this section, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the ability of that person to act as a parent of a child.

Maximum contact

(10) In making an order under this section, the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact.

[100] John makes it the foundation of his case that he should have maximum contact with Adam as mandated by section 16 (10). It is his case that he should have maximum contact with Adam whether he is granted joint custody or if he is not the custodial parent, for any access to Adam that he is granted.

[101] From time to time, courts refer to section 24 of the Children’s Law Reform Act when deciding questions relating to the custody of or access to a child in Ontario. Section 24 provides that the merits of an application in respect of custody of or access to a child shall be determined on the basis of the best interests of the child, in accordance with subsections (2), (3) and (4). Again, for the benefit of the parties, I am setting out the entirety of post parts of section 24 that apply to the current facts:

Best interests of child

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

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

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

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

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

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

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

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

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

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

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

(h) the relationship by blood or through an adoption order between the child and each person who is a party to the application. 2006, c. 1, s. 3 (1); 2009, c. 11, s. 10.

Past conduct

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

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

(b) if the court is satisfied that the conduct is otherwise relevant to the person’s ability to act as a parent. 2006, c. 1, s. 3 (1).

Violence and abuse

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

(a) his or her spouse;

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

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

(d) any child. 2006, c. 1, s. 3 (1).

[102] A logical starting point for the custody analysis is section 20 of the Children’s Law Reform Act. Section 20(1) states that, except as otherwise provided in this part, the father and the mother of a child are equally entitled to custody of the child.

[103] I take this as the starting point in these reasons because there is no comparable section in the Divorce Act. It means that this is the dominant legislative intent, subject to what orders this court might make in the best interests of the child. The court may exercise powers under section 16 of the Divorce Act, with guidance provided by section 24 of the Children’s Law Reform Act, to determine what those orders might be as to custody and access on the facts of this case.

[104] I have been referred several cases to assist me in my determination on the custody and access for Adam. In A.A. v. G.G., [2010] O.J. No. 835 the court awarded sole custody of the children to the father in a case where the mother had deliberately and negatively affected the father’s role in the family and his relationship with the children. The court in A.A. v. G.G., mindful of the mandatory requirement for providing an order allowing maximum contact with each child under section 16 (10) of the Divorce Act, recognized that the court shall give effect to the principle that a child of the marriage should have as much contact with each parent as is consistent with the best interests of the child.

[105] The court, informed with the best interests of the child, shall take into consideration the willingness of the custodial parent to facilitate the child’s contact with the noncustodial parent. The court in A.A. v. G.G. recognized that the “maximum contact principle”, as it has been called, is mandatory but it is not absolute. The powers of a judge on the custody or access claim is subject to awarding such contact as is consistent with the child’s best interests. Any other arrangements not in the best interests of the child should be restricted accordingly to the extent that the child’s best interests are served.

[106] In A.A. v. G.G., the evidence that the mother had conducted herself to minimize the father’s role in the children’s lives. Conversely, the willingness of the father to accommodate the mother’s access to the children supported the conclusion of the court that there was a greater likelihood that the father would actively support generous and liberal access to the mother. This was a contributing factor for the court to award sole custody of the children to the father.

[107] The Court of Appeal in B.V. v. P.V., [2012] O.J. No. 1778 (Ont. C.A.) also recognized that a custodial parent is acting responsibly and in the best interests of the child by ensuring maximum contact of the child with the noncustodial parent.

[108] Communication barriers are often real barriers to finding that joint custody will serve the best interests of a child. The Court of Appeal in Kaplanis v. Kaplanis, 2005 CanLII 1625 (ON CA), [2005] O.J. No. 275 recognized that the professed inability of one parent to communicate with the other parent does not alone suggest that a joint custody order cannot be considered. However, hoping the communication will improve between the parties does not provide a sufficient basis for making an order of joint custody. It is the reasonable prospect that the parents will be able to communicate effectively with one another to meet the needs and circumstances of the child that makes joint custody even worthy of consideration. At paragraph 11 of Kaplanis, the Court of Appeal stated that:

The fact that one parent professes an inability to communicate with the other parent does not, in and of itself, mean that a joint custody order cannot be considered. On the other hand, hoping that communication between the parties will improve once the litigation is over does not provide a sufficient basis for the making of an order of joint custody. There must be some evidence before the court that, despite their differences, the parents are able to communicate effectively with one another. No matter how detailed the custody order that is made, gaps will inevitably occur, unexpected situations arise, and the changing developmental needs of a child must be addressed on an ongoing basis. When, as here, the child is so young that she can hardly communicate her developmental needs, communication is even more important. In this case there was no evidence of effective communication. The evidence was to the contrary.

[109] The Court of Appeal in Kaplanis explained that family law cases are by nature fact-based and orders for custody and access are by their nature discretionary. In my view, this means that every case turns on its particular facts, subject to adherence to legal principles of fundamental importance.

[110] This Court in Warcop v. Warcop, 2009 CanLII 6423 (ON SC), [2009] O.J. No. 638 (SCJ) took the opportunity to review the cases since the law changed from the view that joint custody should be limited to the exceptional circumstances which rarely present themselves in cases where custody is disputed. Justice Gray had this to say with respect to the elements required to find that joint custody shall be in the best interests of the child:

In the final analysis, in my view, an order for joint custody is not to be rejected based on any rigid standard as formerly reflected in Baker, supra. The focus is simply on the best interests of the child. The best interests of the child will obviously not be fostered if the parents are unable to communicate and cooperate in making decisions that affect the child. However, a standard of perfection is not required, and is obviously not achievable. The issue is whether a reasonable measure of communication and cooperation is in place, and is achievable in the future, so that the best interests of the child can be ensured on an ongoing basis. In making this assessment, the Court must be governed by the evidence that has been presented as to the communication and cooperation between the parties to date; the mechanisms that are in place to ensure that it will continue; and the assessment of the judge as to the capabilities of the parties to do so in the future.

[111] Unfortunately, I find that the required level of communication between Lily and John is not present to consider joint custody in this case, even on the modern standard. To John, every issue to be decided for Adam is a battleground. This is not conducive to a joint decision making relationship, or in Adam’s best interests.

[112] John admits that he has now lived at the condominium on mill Street with his parents for over three years. He testified that he intended to find a house to purchase where he would make a home for Adam. However, he admits that as of the time of trial he had not yet met with a realtor to find a house, or met with a bank to discuss financing arrangements.

[113] John also admitted that he is borrowed approximately $80,000 from Darinka over the years. From this amount, he has repaid her $35,000 for legal fees he has incurred in his family law case with Lily. I take it from this evidence that John has not saved any significant amount toward a down payment.

[114] At trial, John testified that he intends to invite his parents to live with him when he purchases his own home. In this way, Darinka will always be available for Adam when he is there with them. During cross-examination, John conceded this was a plan he had not proposed prior to trial.

[115] I have considered all the evidence relating to Adam’s needs and circumstances, as well as the applicable factors under section 24(2) of the Children’s Law Reform Act. I find that there is an equal amount of love, affection and emotional ties between Adam and his mother and members of her family on one hand, and his father and members of his family on the other. Those family members have all played an important role to date in Adams care and upbringing. Although I have not been informed of Adam’s views and preferences, I have no doubt from the objective evidence I have seen that he loves his parents and is equally loyal to them both. However, I also take the view that Adam has resided primarily with his mother a stable home environment since 2011 and that Lily, along with Adam’s sister Nicole, brother Alex and Lily’s friends and neighbors, can provide the permanence and stability in which Adam will primarily live.

[116] I find that John does not possess as much of the ability and willingness to readily provide Adam with the guidance and education, as well as the extracurricular and recreational activities he appears to enjoy as readily with Lily.

[117] Further, John’s shiftwork impedes his ability to provide full-time parenting. It is not sufficient for John to depend upon Darinka to serve as his proxy to care for and parent Adam on an equal basis, or ad hoc when circumstances require. I have reviewed John’s shiftwork and the three sets of shifts he works in two-week blocks. I consider Lily has the better ability to offer the stability Adam requires for parenting in his early school years.

[118] I do not consider granting joint custody of Adam to both John and Lily to be in Adam’s best interests because their views on how Adam should be raised are diametrically opposed. They have shown that they cannot communicate effectively. There is no reasonable prospect that they will develop an ability to communicate in order to make joint decisions in Adams best interests. The authorities do not support an award of joint custody in such circumstances, and I declined to do so now.

[119] I find that the home life Lily can provide Adam will allow him to socialize with other children in the greater world. I am taking into consideration that Nicole lives with them and that they have the support of friends and neighbors where Adam’s needs are met. By contrast, living with John at the home of his parents, while loving and supported by family, does not offer the socialization and flexibility Adam requires to grow up in an ever-changing world.

[120] I wish to make it clear that I have reached this decision without regard or reference to the Lily’s complaint of an alleged assault by John on February 27, 2011. Section 24(3) of the Children’s Law Reform Act does not allow for past conduct to be considered when assessing a person’s ability to act as a parent unless there is proper evidence that person has committed violence or abuse against a spouse, parent or the child to whom the application relates. I find no evidence of such circumstances on the record before me. However, I have found facts since the date of separation that show John to be recalcitrant in nature and deed. These facts amount to past conduct for the purposes of deciding what custody order would be in Adams best interest. I have considered that past conduct under section 24(3)(b) as conduct otherwise relevant to John’s ability to act as a parent for the purpose of deciding against making a joint custody order for Adam.

[121] Therefore, I award sole custody of Adam to Lily, with generous access to John.

Access

[122] Access to a child is often seen as the consolation prize to an order granting sole custody to the other parent. However, it would be more positive for the noncustodial parent to view generous access as complementary to an award of custody to the other parent. The more generous that award of access is, the more the access parent should grasp the reality of parenting a child and taking the role of being a parent with access seriously and, hopefully, to make as meaningful a contribution to the child’s life as possible.

[123] The Divorce Act provides in section 16 (5) provides that a spouse who is granted access to a child has the right to make inquiries, and to be given information, as to the health, education and welfare of the child, unless the court orders otherwise. This is a right given to John under the Divorce Act. I find no good reason to take away this access to information as an ancillary benefit to his right of access to Adam.

[124] When deciding the scope and form of access that John shall be given to Adam, I must again consider the factors set out in section 24(2) of the Children’s Law Reform Act. I have also kept the maximum contact principle under section 16(10) of the Divorce Act firmly in mind.

[125] John’s shifts at Cooper had been traditionally two weeks on days, followed by two weeks on afternoon shifts on a revolving basis. In 2013, his work shifts changed to three different shifts of two weeks on dayshift from 6:30 a.m. to 2:30 p.m. followed by two weeks a night shift from 10:30 p.m.to 6:30 a.m., followed by two weeks of afternoon shift from 2:30 p.m. to 10:30 p.m.. Each work week consisted of five days and would start on a Sunday and end on a Friday. I heard evidence that John’s work shifts have changed three times since he and Lily separated in 2011.

[126] I also heard evidence that when John is on dayshift, he calls Adam between 8 o’clock and 8:15 each morning to wish him a good day. John retrieves Adam from school at 330 in the afternoon and they have father and son time together, sometimes to go biking, swimming or to enjoy other activities.

[127] When John is on night shift, he is home by 7 a.m. to assist Adam when he gets up and to get ready for school. He delivers Adam to school and he will retrieve Adam from school. When John is on that shift, he states that he is one hundred percent available for Adam.

[128] When John is on afternoon shift, he acknowledges that he is not physically at home after school for Adam. It is John’s position that when he is working on the afternoon shift, Darinka retrieves Adam from school and spends time with him in the park or at home. John states that on those days Adam has the whole condominium to himself and that Darinka feeds Adam and puts him to bed. John states that there is nothing better than a grandmother’s love.

[129] John also testified that he works the weekends when he does not have Adam.

[130] John favours the time sharing schedule he has proposed, which is based on his work weeks, over the time sharing schedule Lily has proposed. Lily’s schedule recognizes the shifts that John works and the time available to Adam because of those shifts.

[131] In view of John’s shiftwork, I prefer the plan proposed by Lily because it is more realistic and in keeping with Adam’s best interests. I appreciate that John does not see Adam at all during week six. That is regrettable, but to be expected when a father is working shiftwork. It is not sufficient to provide for access to John when it is actually Darinka who would exercise that access while John is at work. Adam’s interests are better served by remaining at home with his mother during that week. Although Darinka is available to care for Adam while John’s at work, access to a child is about providing time with a parent and not necessarily to his extended family in his absence.

[132] Counsel advised me during closing submissions that the court had the choice between the parenting plan provided by Lily as Exhibit 18, or the parenting plan set out in the draft order by John marked as Exhibit 19 at trial, or to fashion a parenting plan that I saw fit Adam’s best interests. While I prefer Lily’s parenting plan over John’s terms of access because Lily’s parenting plan is more workable and realistic have regard to John shiftwork, I have expanded his access in ways described below. This modified parenting plan gives John the greatest access to Adam on a practical level for maximum contact with Adam having regard to Adam’s best interests.

[133] I have also added many features from John’s draft order with respect to his right to information and to attend Adam’s school and extracurricular activities, and built-in safeguards with respect to ensuring proximity of both parents to Adam.

[134] I wish to make comments about certain expanded access I have given to John. First, I am giving John four weeks of time with Adam during summer vacation. This should make up in some measure for the first week of John’s afternoon shift every six weeks when he does not see Adam at all during that week. I have given John the choice of spending summer vacation time with Adam for an entire block of four weeks or into blocks of two weeks at a time during July and August except for the first week and the last week in August. This choice provides father and son with the opportunity to have enjoyable and memorable time together each summer at home or on trips.

[135] I am ordering this modified access plan on the basis that Adam requires one home base where he sleeps and where he leaves from each weekday morning, every week during the school year. The schedule builds in a routine that is flexible enough to spend time with John to the extent his shiftwork allows, yet gives Adam the structure to his week he needs when going to school. In this way, Adam will have a regular schedule he can use to make plans with friends and family. I am confident that John will come to recognize that as his son grows up, it is necessary to respect the fact that the school year is the school year, and the summertime is the summertime.

[136] I have limited the call John or Lily may make to Adam once during any day he is not residing with that parent to be made before 8:00 p.m. I do so because that is an arbitrary time after which he will either be going to bed or getting ready to go to bed.

[137] I have also adjusted the Christmas schedule so that the first half of Adam’s Christmas school break with one parent in a given year is divided between the second half of the school break he will spend with the other parent at 12 noon on December 26 each year. I do so because Christmas is a complete experience, made up of Christmas Eve, Christmas morning and Christmas dinner. No child should go through the excitement a Christmas morning with the anticipation of the day ahead, complete with Christmas dinner, only to be bundled up and transported to another place to be with the other parent. In this case, that would seem to be serving the needs of the parents more than the best interests of Adam.

[138] I would be disappointed to learn, as would Adam, that the reason John was seeking greater than 40 percent of parenting time with Adam was to avoid having to pay child support for him.

Child Support

[139] John’s salary for 2013 was $66,309 less union dues of $855, for a total of $65,454. Given that the access schedule I have determined to be in at his best interests gives John less than 40% of the parenting time with Adam, he is therefore ordered to pay child support in the amount of $598 per month under the Child Support Guidelines based on a 2013 income of $65,454, effective January 1, 2014.

[140] John shall commence paying child support in the amount of $598 on an ongoing basis on the first day of each and every month, commencing April 1, 2015.

[141] John shall pay retroactive child support to Lily in the amount of $3,138 up to and including December 31, 2013 on consent.

[142] John shall also pay the difference between $598 a month and $569 each month he was ordered to pay by Justice Van Melle, for the months between January 1, 2014 and March 31, 2015.

Section 7 expenses

[143] John has contested his responsibility to contribute to section 7 expenses since the commencement of this litigation. Justice Van Melle ordered that he pay $335 towards the daycare expenses for Adam’s enrollment in the Peekaboo Day Care center that would have ended in June 2012.

[144] He has provided even greater resistance to pay for extraordinary expenses for extracurricular activities in which Lily has enrolled Adam. Lily has enrolled Adam in soccer, both in season and soccer centre camp in the summer, and other activities including gymnastics. There is no evidence that these activities are in any way “special” or that meet any special need Adam may have.

[145] In Dalglish v. Pfannenstiel, [1999] O.J. No. 3976, Justice Aston found that the cost of school busing to transport the child to attend a special school outside of the school district boundaries where he lived qualified as one instance of additional support under section 7 of the Child Support Guidelines. Other costs to enroll the child in summer camp or in a theater group did not meet the test of being “extraordinary” under section 7. The trial judge find them to be “reasonably necessary” and therefore declined to order the father to contribute to those expenses.

[146] I do not consider the cost of enrolling Adam in soccer or related activities to be “extraordinary” and as enjoyable and instructive as they may be, I do not consider them to be “reasonably necessary” to require John to contribute to them. John may wish to do so voluntarily, but that is between John and Lily, and ultimately, John and Adam.

[147] John also takes issue with the prospect that Lily exercises control over what extracurricular activities she enrolls Adam in without checking first or obtaining the consent of John. John relies upon the decision of Justice Vogelsang in Forrester v. Forrester, 1997 CanLII 15466 (ON SC), [1997] O.J. No. 3437 to assist the court with defining the ability of the custodial parent to involve the child with extracurricular activities without consultation with the non-custodial parent and then seek contribution from him.

[148] Justice Vogelsang had before him the main issue of section 7 “add-ons” that the applicant had enrolled the child in a great number of activities. He stated that the applicant mother does not have an absolute right to enroll a child in the number of activities she chooses, and then to seek contribution. In the words of Justice Vogelsang, “the guidelines do not grant a license to a custodial parent to inject a child into lavish additional activities and demand automatic payment.”

[149] In the final analysis, Justice Vogelsang explained that an extracurricular activity expense must meet the threshold tests of necessity and reasonableness. The activity expense must also represent unusual costs not otherwise covered or subsumed in the ordinary payments paid by family members of the same means and abilities as the parties.

[150] I can think of no other way to limit, if not to eliminate parental skirmishes between John and Lily about extraordinary expenses Lily may incur on Adam’s behalf for what she may consider extracurricular activities that John may not, than to set a fixed amount for John to pay for section 7 expenses. In today’s changing world, Lily may find that Adam would benefit from new and changing experiences to open the world up to him. Subject to any further order John may seek as to what those experiences should or should not be, rather than give vent to either party and their respective personalities with respect to each activity as it comes up, I order John to pay $50 a month for section 7 expenses to meet his responsibility for making contributions to Adam’s extracurricular activities. If other section 7 expenses for Adam arise in the future that may require a significantly greater contribution from each Lily and John, a motion may be made at that time to recognize those section 7 expenses and to increase John’s contribution towards them.

Orders

[151] I therefore make the following orders:

1. Lily shall have sole custody of the child, Adam Tomas Sutej (“Adam”), born April 6, 2008.

2. Adam will have access visits with the John in accordance with the following six week schedule (based on John’s two week rotating day/night/afternoon shift schedule):

Week One of John’s DAY shift

a. Monday through Thursday 3:30 p.m. until 6:00 p.m. (pick up at Adam’s school and delivery to Lily’s residence, unless Adam is required to attend extra-curricular activities, in which case delivery shall be to that location at the required time.) Friday from 3:30 p.m. (pick up at Adam’s school) until 6:00 p.m. the following Sunday, delivery to Lily’s residence.

Week Two of John’s DAY shift

b. Monday through Friday 3:30 p.m. until 6:00 p.m. (pick up at Adam’s school and delivery to Lily’s residence, unless Adam is required to attend extra-curricular activities, in which case delivery shall be to that location at the required time.)

Week One of John’s NIGHT shift

c. Monday through Thursday 3:30 p.m. until 6:00 p.m. (pick up at Adam’s school and delivery to Lily’s residence, unless Adam is required to attend extra-curricular activities, in which case delivery shall be to that location at the required time.) Friday from 3:30 p.m. (pick up at Adam’s school) until 6:00 p.m. the following Sunday, delivery to Lily’s residence.

Week Two of John’s NIGHT shift

d. Monday through Friday 3:30 p.m. until 6:00 p.m. (pick up at Adam’s school and delivery to Lily’s residence, unless Adam is required to attend extra-curricular activities, in which case delivery shall be to that location at the required time.)

Week One of John’s AFTERNOON shift

e. No visitation can be accommodated due to John’s afternoon schedule.

Week Two of John’s AFTERNOON shift

f. Saturday from 9:00 a.m. until 6:00 p.m. the following Sunday, pick-up and delivery to Lily’s residence.

3. When a school PA day or holiday occurs on a Friday, Adam will remain with Lily during the day, and the regular schedule will apply to the weekend. If Adam is scheduled to be with John, pick-up will occur at Lily’s residence according to the access schedule. If John wishes, and only if he can arrange to be at home with Adam on a Friday PA day or school holiday, then the Friday can be added as an extension into a regular access weekend with pick-up to occur on a mutually agreed time between John and Lily, and then the regular access schedule will apply.

4. When a school PA day or holiday occurs on a Monday, Adam will remain with Lily during the day. If Adam is scheduled to be with John during the preceding weekend, and only if John can arrange to be at home with Adam on the Monday PA day or school holiday, then the Monday can be added as an extension into a regular access weekend, and delivery to Lily’s residence can occur at 6:00 p.m. on the Monday.

5. The following holiday residence schedule overrides the regular residence schedule pursuant to paragraphs 2 through 4 above:

New Year’s Day (January 1)

Adam will reside with the party in accordance with the regular schedule.

Valentine’s Day (February 14)

Adam will reside with the party in accordance with the regular schedule.

Family Day (February)

Adam will reside with the party in accordance with the regular schedule.

School March Break

In odd-numbered years, Adam will reside with Lily for March Break from 3:30 p.m. on the last day of school until the first day school resumes, and then the regular access schedule will resume. In even-numbered years, Adam will reside with John from 3:30 p.m. on the last day of school until 6:00 p.m. the day before school resumes, and then the regular access schedule will resume. The parties agree to be flexible regarding March Break, based on their own vacation schedules and vacation plans. If they both agree, they may divide the March Break as they deem appropriate.

Easter Weekend

Adam will reside with Lily in even-numbered years and with John in odd-numbered years, from after school on the evening before Good Friday until 6:00 p.m. Easter Sunday when the regular schedule will resume.

Mother's Day

If Adam is not otherwise with Lily on this weekend, Adam will reside with Lily on Mother's Day weekend, from Saturday at 6:00 p.m.

Victoria Day

Adam will reside with Lily in odd-numbered years and with John in even-numbered years on Victoria Day weekend, from after school on the Friday until 6:00 p.m. on the Monday when the regular schedule will resume.

Father's Day

If Adam is not otherwise with John on this weekend, Adam will reside with John on Father's Day weekend, from Saturday at 6:00 p.m. until Sunday at 6:00 p.m.

Canada Day (July 1)

Adam will reside with John in odd-numbered years and with Lily in even-numbered years on Canada Day weekend, from 6:00 p.m. on the Friday until 6:00 p.m. on the Monday when the regular schedule will resume.

August Civic Holiday

Adam will reside with John in even-numbered years and with Lily in odd-numbered years on the August Civic Holiday weekend, from 6:00 p.m. on the Friday until 6:00 p.m. on the Monday when the regular schedule will resume.

Labour Day

Adam will reside with John in odd-numbered years and with Lily in even-numbered years on the Labour Day weekend from 6:00 p.m. on the Friday until 6:00 p.m. on the Monday when the regular schedule will resume.

Thanksgiving Weekend

Adam will reside with John on Thanksgiving in even-numbered years and with Lily in odd-numbered years, from leaving school on the Friday before Thanksgiving until 6:00 p.m. Monday when the regular schedule shall resume.

Christmas

The parties will share equally Adam's Christmas school break. Adam will reside with John for the first half of the break in odd- numbered years and with Lily for the first half in even-numbered years. The first half will start on Adam’s last day of school in December at or around 3:30 p.m. and end at 12:00 noon on December 26th. The second half will start at 12:00 noon on December 26th and end at 12:00 noon on December 31, after which, the regular schedule will apply. The parties may agree to alter the times and arrangements for Christmas on mutual consent.

Summer Vacation

John shall be entitled to up to four weeks (28 days) of vacation time with Adam to be taken either as two 14 day terms or one 28 day term per year aside from the above holiday provisions. John and Lily will advise each other by May 31st every year of their chosen weeks. Any requests beyond this date will only be considered upon mutual consent of both parties. Vacation days may not be accrued year over year. John to have first choice in odd-numbered years and Lily to have first choice in even-numbered years. In making plans, each parent will take into account Adam's summer camp and other scheduled activities. John will have first option to choose the first two weeks in July of each year and Lily will have first option to choose the first and last week in August of each year.

6. Any changes to the access schedule must be confirmed by both parties, in writing. E-mail or text messaging shall be an acceptable mode of communication for the parties to confirm these changes.

7. John and Lily will at all times maintain a reasonable and flexible position respecting the residency arrangements for Adam and at all times the best interests of Adam shall prevail. Accordingly, if special occasions, extracurricular activities, holidays, excursions or other opportunities become available to Adam, or to John or Lily, both shall be flexible in adjusting the residency arrangements set out herein.

8. John will be entitled to access all medical, educational and religious reports upon request, and Lily will deliver same upon request.

9. If Adam needs emergency medical care while with either parent, that parent will promptly notify the other of the emergency.

10. Adam’s primary medical physician will continue to be Dr. Alexander McCallion, or his successor(s), at the North Peel Family Health Team, and any other specialist referred to Adam from there.

11. John and Lily may telephone Adam on a once daily basis before 8:00 p.m. when Adam is not residing with that parent. Adam may telephone, e-mail or, if agreeable by both parents, video conference (ie: Skype, FaceTime) Lily or John when he wishes.

12. Both parents may attend all school functions. The parents may attend parent-teacher meetings together by mutual agreement, or separately.

13. Each parent may obtain his or her own school calendar and school notices from Adam’s school.

14. Both parties may attend all of Adam’s school events and functions, lessons, extracurricular activities and practices, etc.

15. If Lily or John proposes to change his or her residence, he or she will give his or her new telephone number and address to the other as soon as practicable.

16. Lily will not move Adam's residence from the Greater Toronto Area without first providing 90 days written notice to John.

17. Lily will keep and maintain Adam’s passport and give it to John when he needs it for travel. John will return the passport promptly.

18. If either parent plans a vacation with Adam, that parent will give the other a detailed itinerary at least seven days before it begins, including the name of any flight carrier and flight times, accommodation, including address and telephone numbers, and details as to how to contact Adam during the trip. The travelling parent will allow a brief collect telephone conversation with Adam within a reasonable time after arrival at the destination.

19. If either parent plans a vacation outside Canada with Adam, the travelling parent will execute a notarized travel consent (to be provided by the travelling party and returned by the non-travelling party within 3 days of delivery and/or no later than 3 days prior to travel) authorizing Adam to travel.

20. John and Lily will not change Adam's surname without the other's written consent.

21. The parties shall live near each other so that Adam will have frequent contact with both of his parents. Neither party shall relocate their primary residence outside of the Regional Municipality of Peel without first obtaining the other party’s express written consent to the proposed relocation. In the event of a dispute, they shall mediate the relocation request prior to either of them taking court action against the other. The mediation shall be an “open mediation”, and the parties shall equally share the costs thereof (i.e., on a 50:50 basis). A party proposing to relocate his or her primary residence outside of Peel shall provide the other party with at least 90 days written notice of his or her proposed relocation.

22. Both parties shall be under a continuing obligation to ensure that the other party is fully apprised of his or her current contact information, including his or her current address and emergency contact number.

23. Both parties shall be under a continuing obligation to ensure that the other party is fully apprised of the emergency contact information for all designates whom they appoint to care for Adam in their absence.

24. Both parties shall be listed as the emergency contact persons for all third-parties involved with Adam.

25. As much notice as possible – at a minimum, 48 hours’ notice – shall be given with respect to any pre-scheduled medical appointments for Adam. Unless directed otherwise by any of Adam’s health care provider(s), both parties shall be responsible for obtaining and maintaining their own supply of prescription medication for Adam. Otherwise, the parties shall share Adam’s medications in accordance with the direction of the responsible health care provider(s).

26. The parties shall not harass or speak ill of each other. Each party shall communicate with each other only in regards to parenting-related issues pertaining to Adam. The parties shall be polite, courteous and respectful to each other in all conversations.

27. Neither party shall disparage or discredit the other party (and his or her family members) in Adam’s presence.

28. Neither party shall attend at the other party’s place of employment, without the other party’s approval.

29. Absent the other party’s approval, neither party shall attend at the other party’s home, except for the purpose of picking up or dropping off Adam.

30. Except in cases of emergency, the parties shall communicate with each other – in regards to parenting-related issues only – in writing, through either e-mail or text messaging.

31. Neither party shall leave out, or accessible to Adam, information or documents pertaining to any issue arising from the parties’ separation, including any material that pertains to the matters referred to herein. Neither party shall permit Adam access to their personal e-mail where communications regarding these matters are stored. Both parties shall ensure that Adam will not have access to information regarding the parties’ separation by password protecting any area of their personal computers that holds such information.

32. John shall pay child support for Adam in the amount of $598 each month, based on his income for 2013 of $65,454, effective January 1, 2014 on the first day of each and every month commencing April 1, 2015.

33. John shall pay retroactive child support to Lily for Adam in the amount of $3,138 up to and including December 31, 2013, on consent. John shall also pay the difference of $29 a month between $569 he was ordered to pay each month pursuant to Justice Van Melle’s order dated October 4, 2011 and $598 a month he is now ordered to pay between January 1, 2014 and March 31, 2015 in the amount of $435 for retroactive child support.

34. John shall pay section 7 expenses fixed at $50 a month, effective April 1, 2015 to June 30, 2016, at which time section 7 expenses will be reviewable.

35. John and Lily shall each produce a copy of their income tax returns for tax year 2014, with attachments to each other by April 30, 2015, and shall provide each other with a copy of any Notice of Assessment they receive from Canada Revenue Agency forthwith upon receipt. In each and every year thereafter, they shall provide each other with a copy of their income tax return for the previous tax year, with attachments by April 30, and shall provide each other with a copy of any Notice of Assessment they receive from Canada Revenue Agency for that year forthwith upon receipt.

36. The parties shall negotiate any increase or decrease in child support John is to pay Lily by June 30, 2016 based on John’s income for 2015, and shall negotiate any increase or decrease by June 30 in each and every year thereafter based on his income from the previous year, failing which either John or Lily shall be at liberty to bring a motion to review and adjust child support for that year according to the Child Support Guidelines.

37. 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, under sub-paragraph [151] 35 above, in accordance with section 24.1 of the Child Support Guidelines.

[152] I want to thank counsel and the parties for the patients they have shown in waiting for this decision. I invite further submissions in writing or by a further court attendance to be arranged through the trial coordinator if there are any consent matters that have overtaken these reasons, or any corrections the parties can agree upon that I should make, provided they are substantially consistent with my findings and conclusions.

[153] The parties are encouraged to discuss and resolve the costs of this trial between them. In the event that either John or Lily seek costs, the party claiming costs is invited to make written submissions consisting of no more than five (5) double spaced, typewritten pages, not including a bill of costs or dockets, by April 22, 2015. The responding party shall then be entitled to make written submissions in response of the same length by May 12, 2015. All written submissions shall be served on the lawyer for the other party and filed with my judicial assistant, Sherry McHady at Judges Chambers at the Grenville and William Davis Courthouse in Brampton, or faxed to her at (905) 456-4834.

EMERY J

Released: March 30, 2015