Izyuk v. Langley, 2015 ONSC 2409

Court File No.: F 1473/13 Date: 2015-04-22 Ontario Superior Court of Justice

Between: Dmytro Izyuk, Applicant – and – Margaret Christina Langley, Respondent

Counsel: Self-Represented, for the Applicant Chris Etherden, for the Respondent

Heard: November 17-21, 2014; January 12-19, 2015 Before: The Honourable Madam Justice Deborah L. Chappel

Reasons for Judgment

Part I: Introduction

[1] This trial involved the issues of custody, access and child support respecting two young children, namely Nicholas Richard Henry Langley, born January 26, 2012 (“Nicholas”) and Aubree Terri Lynn Langley, born August 9, 2013 (“Aubree”). The Applicant Dmytro Izyuk (hereinafter referred to as “the Applicant” or “the father”) is the father of the children, and the Respondent Margaret Christina Langley (hereinafter referred to as “the Respondent” or “the mother”) is their mother. The parties have been separated since September 2013 and have been involved in this litigation since that time.

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

a. What custodial arrangement is in the best interests of the children?

b. What time-sharing arrangement is in the children’s best interests?

c. Should the Applicant be required to pay child support to the Respondent? and

d. If the Applicant is liable for child support, what is the appropriate quantum of child support?

[3] For the reasons that follow, I have granted the Respondent sole custody and primary residence of the children. I have ordered a time-sharing arrangement that allows the Applicant father gradually increasing access, progressing to two weeknight visits each week and full alternate weekend access. I have determined that the Applicant is liable for child support, and have ordered him to pay an adjusted amount of child support effective December 1, 2013, based on the actual income which he has earned since that time.

Part II: Background and Overview of Court Proceedings

[4] I make the findings respecting the parties’ background and the history of these court proceedings set out in this section based on the evidence adduced at trial.

[5] The Applicant and Respondent met in approximately 2009 and had an on again/off again relationship for several years. They never cohabited with each other. They were engaged for a very brief period of time in 2009 or 2010, but the Respondent broke off the engagement. The parties nonetheless continued to be involved in a casual relationship, and Nicholas was conceived in approximately April 2011. The Respondent was enrolled in her first year of a Medical Administration program at Mohawk College at that time, and the Applicant was working as a Patrol Supervisor with Sheprott Security Services Inc. (“Sheprott”). The parties separated again soon after Nicholas was conceived and lost contact with each other for several months. The Respondent attempted to contact the Applicant through Blackberry Messenger during her pregnancy to advise him that she was pregnant, but the Applicant denied her request for contact. She was unable to connect with him through Facebook because he removed her as a Facebook friend. The Respondent also attended the Applicant’s former residence during her pregnancy in an attempt to locate the Applicant, but she learned that he had moved from that residence.

[6] Nicholas was born on January 26, 2012. Shortly after Nicholas’ birth, the Respondent attempted once again to connect with the Applicant to advise him of the birth by leaving a message for him with a false name at work. This attempt to establish contact was unsuccessful, and therefore she tried once again to connect through Facebook and Blackberry Messenger. The Applicant finally accepted her Blackberry Messenger contact request and the parties met shortly thereafter. The Respondent advised the Applicant that she had given birth to Nicholas, but the Applicant questioned whether Nicholas was in fact his son since the Respondent had been involved in an on again/off again relationship with another man during the period leading up to Nicholas’ conception. The parties cooperated in obtaining DNA testing of Nicholas in approximately March 2012, which confirmed that the Applicant is the child’s biological father. The parties resumed their relationship in early 2012, but they continued to maintain separate residences. The Respondent returned to her studies in the spring of 2012. She became pregnant with Aubree in approximately November 2012.

[7] In February 2013, the Applicant injured his ankle at work. He went on modified duties until April 2013, and then stopped working altogether because of his physical limitations. He began to collect Workers’ Safety Insurance Board (“WSIB”) benefits at that point. The parties agreed that the Respondent should apply for Ontario Works benefits to assist with the support of Nicholas and the child that they were expecting. Aubree was born on August 9, 2013. Soon thereafter, on September 5, 2013, the Respondent met with her Ontario Works representative and told her that the Applicant was the father of both children. This led to discussions between the Respondent and the representative about the Applicant’s obligation to support the children. The Respondent texted the Applicant later on September 5, 2013 to advise him that she had attended this meeting and had talked with the Ontario Works representative about child support. The Applicant called the Respondent after receiving this text message to talk about the meeting. He recorded this conversation without the Respondent’s knowledge. During this conversation, the Respondent indicated that Ontario Works would be sending the Applicant a letter soon to address the child support issue, and explained what Ontario Works was requesting in terms of financial disclosure from the Applicant.

[8] The parties had several more communications during the day on September 6, 2013. The Respondent felt that the Applicant was upset about the fact that she had raised the child support issue. However, it was her understanding that the parties were still in a relationship as of that date. Unbeknownst to the Respondent, at some point on September 6, 2013, the Applicant attended court and issued the application that is the subject of these proceedings. Later that day, while the parties were texting each other about their wishes regarding time-sharing with the children, the Respondent answered a knock on her front door and found the Applicant’s sister, Ms. Lyubov Izyuk, on her front porch. Ms. Izyuk served her with the application. The parties separated at that point.

[9] The Respondent was shocked and dismayed about being served with court papers because she thought that she was still in a relationship with the Applicant. She had Aubree in her arms when she answered the door and was holding a medicine dispenser, because she had been administering gripe water to Aubree. The Respondent acknowledged in her testimony that she became agitated about being served with court papers. She handed Aubree over to her mother, went outside and began yelling at the Applicant’s sister. She stated that Ms. Izyuk simply walked away and was talking to her in Ukrainian, which made her angrier. She acknowledged that she threw the medicine dispenser in the direction of Ms. Izyuk, but stated that the dispenser simply rolled down the driveway and did not hit Ms. Izyuk.

[10] In his application, the Applicant requested sole custody, an equal time-sharing arrangement respecting the children, and child support in accordance with section 9 of the Child Support Guidelines (Ontario) (O. Reg. 391/97, as am.) (the“Guidelines”) based on a shared parenting arrangement. In her Answer and Claim dated October 1, 2013, the Respondent requested an order for sole custody and primary residence of Nicholas and Aubree, access to the Applicant on alternate weekends and each Wednesday evening, child support, and contribution towards the children’s section 7 expenses.

[11] Before the Respondent was able to respond to the application, the Applicant brought an ex parte motion on September 10, 2014, requesting an order for no access to the mother, or in the alternative supervised access. He based his motion on alleged concerns about the mother’s mental health, her aggressive nature and her conduct towards Ms. Izyuk on September 6, 2013. Ms. Izyuk had reported that the mother had assaulted her with a syringe or needle. Brown, J. declined to deal with the matter on an ex parte basis, and adjourned the motion to October 29, 2013. She again declined on that date to deal with the motion, as she concluded that the matter should proceed first to a case conference.

[12] On or about September 12, 2013, two days after the ex parte motion was dismissed, the Applicant made a report of alleged child protection concerns respecting the Respondent to the Catholic Children’s Aid Society of Hamilton. The report was based on the same concerns which he had raised in his motion. A Society worker attended the mother’s home and commenced an investigation. The case was transferred to the Children’s Aid Society of Hamilton soon thereafter, as it was determined that the children were not of the Roman Catholic faith. Society worker Ms. Brandy Lantz carried out an investigation of the Applicant’s concerns. On October 24, 2013, Ms. Lantz sent correspondence to the parties confirming that the Society had no protection concerns respecting the Respondent and that the Society’s file had been closed.

[13] The case conference in this matter proceeded on November 12, 2013. On that date, Brown, J. made a temporary order in accordance with Minutes of Settlement which the parties executed, providing as follows:

a. The Respondent mother was granted primary residence of the children;

b. The Applicant father was granted access to the children every Tuesday, Thursday and Saturday from 3:00 p.m. until 6:00 p.m.

c. The Applicant was required to pay child support to the Respondent in the amount of $300.00 per month commencing November 1, 2013, based on his annual WSIB benefits grossed up to $19,600.00 for child support purposes. This order was without prejudice to the Respondent’s right to claim retroactive support.

d. Both parties were granted the right to speak directly with and receive information directly from all third party professionals involved with the children and regarding the children, including doctors, teachers and dentists.

e. Access exchanges were to occur at the Terryberry Public Library in Hamilton.

[14] In addition, the temporary order of November 12, 2013 required the Applicant to provide the Respondent with copies of any and all documentation related to his injury and his WSIB income.

[15] The case proceeded to a settlement conference on January 30, 2014. At that time, the parties negotiated an increase in the Applicant father’s access. The temporary order of November 12, 2013 was amended to provide that the father would have access with the children every Tuesday and Thursday from 3:00 p.m. until 7:00 p.m., and one day every weekend from 2:00 p.m. until 7:00 p.m. The weekend access was based on a two week rotating schedule, with the visit in the first week occurring on Saturday and the subsequent weekend visit occurring on Sunday. The January 30, 2014 order further stipulated that access exchanges were to occur at the Westcliffe Mall, unless otherwise agreed to between the parties. This is the access order that was in effect as of the commencement of trial.

[16] Broad, J. held a second settlement conference in this matter on May 13, 2014. Broad, J. made an order on that date for financial disclosure to assist in resolving the child support issues. He directed the Applicant to provide particulars of his WSIB claim, including the nature of his injury, status and amount of compensation being paid, as well as his 2013 Income Tax Return and Notice of Assessment.

[17] At the commencement of the trial on November 17, 2014, the parties advised that they had resolved a number of issues. On that date, I made a final order which addressed the following issues:

a. The parties were granted the equal right to obtain and share information respecting the children without the consent of the other party;

b. The parties were granted the equal right to communicate with all educational, medical, dental, recreational and social service providers involved with the children without the consent of the other party;

c. Each party was granted the right to make daily decisions respecting the children when the children are in their care;

d. In the event of a medical emergency, the parent having care of the children is to contact the other party as soon as is reasonably possible.

e. The order provided that neither parent shall make plans for the children when they are scheduled to be with the other parent, without first obtaining the written consent of the other party.

f. Each party was granted the right to attend the children’s extracurricular activities open to the public.

g. Each party was granted one week of non-interrupted time in the summer with Nicholas in 2015. Commencing in the summer of 2016, each party was granted two non-consecutive weeks of summer access with both children. The parties are required to give one month’s notice if they intend to exercise this summer access.

h. The parties were granted equal time with the children from December 24th until December 26th each year, according to a schedule that alternates on a yearly basis.

i. The parties were granted specified time with the children on Mother’s Day, Father’s Day and the children’s and parties’ birthdays.

j. The parties were directed to be polite and cordial and to behave maturely during access exchanges, and to prepare the children mentally and physically for transitions between the parties.

k. Telephone contact between the parties was limited to urgent situations, or for the purpose of facilitating telephone contact between the other parent and the children.

l. The issues of custody, further time-sharing and child support were adjourned to trial.

[18] Several days into the trial of this matter, it became apparent that the Applicant had not yet produced certain items of financial disclosure that were critical to a proper determination of the child support issues. In particular, he had not disclosed proof of his year to date 2014 income, all expenses which he had claimed against rental income for 2013 and 2014 and all relevant documentation in support of his claim that his current ability to work or increase his income is impaired as a result of an ankle injury which he sustained at work in February 2013. On November 21, 2014, I made an order requiring him to serve and file a full and complete Financial Statement with these materials attached by November 28, 2014.

Part III: Credibility

[19] The parties both testified at trial. The only other witness was the Respondent’s mother, Terri Lynn Ford. The Applicant called Ms. Ford as a witness, despite the fact that most of her evidence supported the Respondent’s case. The evidence of Ms. Ford and her daughter, the Respondent, was generally consistent. However, their evidence differed significantly on a number of important issues from that of the Applicant. The credibility of the parties and Ms. Ford is therefore a very important issue. For the reasons that follow, I found the Respondent and Ms. Ford to be much more credible than the Applicant, and I have therefore preferred their evidence over that of the Applicant where the evidence was conflicting.

[20] Dealing first with Ms. Ford, I had no concerns whatsoever respecting her credibility. She was calm and respectful in giving her testimony, and had an excellent recollection of events and details. She freely provided some evidence that was favourable to the Applicant, despite her obvious support for her daughter. There were no inconsistencies in her oral evidence, or between her oral evidence and the evidence set out in her affidavit sworn November 1, 2013, which was filed as Exhibit 63 at trial.

[21] The Respondent was also very credible. She remained calm throughout her testimony, even when the Applicant subjected her to vigorous and difficult cross examination. Like Ms. Ford, she freely gave much evidence that was positive for the Applicant’s case. For instance, she acknowledged a number of the Applicant’s parenting strengths and many voluntary support payments which the Applicant made to her prior to the commencement of these court proceedings. There were no inconsistencies in her oral testimony or between her oral evidence and the documentary evidence that was submitted at trial. Her evidence was not undermined in any significant way on cross examination.

[22] By contrast, I have numerous concerns about the Applicant’s reliability and credibility. The reasons for my concerns in this regard are as follows:

a. The Applicant had very little positive to say at trial about the Respondent and her parenting, despite the fact that he had voluntarily allowed her to be the children’s primary daily caregiver until he commenced these court proceedings in September 2013.

b. Based on the evidence adduced at trial, it is clear that many comments which the Applicant made in his Reply filed in this proceeding were inaccurate, and that some of the allegations which he made regarding the Respondent were malicious. For instance:

i. He alleged in the Reply that the Respondent is obese and that this impacts on her ability to meet the children’s needs. I find that the mother has never been diagnosed as being obese, nor does she appear to be obese based on my direct observations of her at trial. Furthermore, the Applicant acknowledged in his testimony at trial that the Respondent’s weight was not actually a problem from his perspective.

ii. In addition, the Applicant alleged in his Reply that the Respondent is “not mentally stable, visits her Psychologist, and takes antidepressants. It’s obvious that her mind in not sane/clear.” He further submitted that the Respondent was unable to properly care for the children as a result of her mental health difficulties. As I will discuss in further depth below, I find that the Respondent does suffer from depression for which she takes medication. However, she is under the care of her physician for this problem, and there is no evidence that her depression has ever interfered with her ability to care for either herself or the children.

iii. The Applicant also stated in his Reply that he was a Supervisor with Sheprott, and attached a letter dated August 7, 2012 from the Director of Human Resources with Sheprott which indicated that the Applicant is “regularly scheduled for 40 hours per week and is paid on a bi-weekly basis.” In fact, I find that the Applicant was not working and was receiving WSIB benefits when he signed the Reply. This information is not reflected in the pleading.

iv. The Applicant further alleged in his Reply that the Respondent was attempting to exclude him completely from the children’s lives. With respect to his access, he suggested in his Reply that the Respondent resisted his attempts to see his children, and stated that “after numerous attempts, hysterics and threats from the Respondent, he gave up asking and went to court.” However, at trial, he testified about having had regular and frequent access with the children. Furthermore, as I will discuss in further detail below, I find that the Respondent actively encouraged the Applicant to have regular and frequent contact with the children, but that the Applicant often did not take advantage of access opportunities that the Respondent offered him.

c. In assessing the Applicant’s credibility, I have considered the evidence respecting his compliance with orders. This evidence provided me with a sense of his respect for the court process, including the significance of the oath which he took to tell the truth at trial. There were three orders made in this proceeding requiring the Applicant to disclose information relevant to his income and the nature of his injuries which he alleges have impaired his ability to work since February 2013. These orders were dated November 12, 2013, May 13, 2014 and November 21, 2014. The Applicant did not comply with many aspects of these orders. In particular:

i. He did not provide documentary proof of all expenses which he claimed against his 2013 and 2014 income.

ii. Although he had seen a number of doctors in relation to his ankle injury which he incurred in February 2013, and had undergone imaging and surgery on his ankle, he provided the bare minimum disclosure respecting his injury and treatment. The Applicant acknowledged during his testimony that he has a WSIB file consisting of approximately 60 pages, and that much of the documentation in that file relates to his injury and the likelihood of him being able to return to work. However, the only documentation which he disclosed relating to these issues were one Form 26- WSIB Health Professional’s Progress Report dated April 11, 2013, two WSIB Follow-Up Appointment Letters, and an ultrasound report and worksheet dated September 26, 2014. The Appointment Letters did not include any information whatsoever about the Applicant’s injury, prognosis or capacity to work. The ultrasound report set out details regarding the nature of the Applicant’s injury but did not provide any information regarding the prognosis for recovery or the Applicant’s current ability to work. The Applicant’s explanation for failing to provide copies of reports from the various doctors who he has seen is that the reports are with the doctors and not in his possession. He clearly did not make any attempts whatsoever to obtain copies of most of the relevant medical records so as to comply with the three disclosure orders that were made in this proceeding.

iii. During his testimony, the Applicant initially said twice that he had only completed one Form 26 Health Professional’s Progress Report relating to his ankle injury. However, when the Respondent’s counsel cross examined him about his suspensions and subsequent reinstatements of WISB benefits, the Applicant acknowledged that he had completed a second Form 26 in June 2014, which he did not produce. His only explanation for failing to produce this was that it was in the possession of the WSIB. He rationalized his failure to produce the document by stating that he had told the Respondent about the report.

iv. The Applicant only attached proof of his income up until October 10, 2014 to his Financial Statement sworn December 16, 2014. He did not provide a reasonable explanation for failing to provide more up to date information.

d. There were numerous difficulties with respect to the Applicant’s financial disclosure in addition to those referred to in subparagraph (c) above that also undermined his overall credibility. Specifically:

i. The Applicant testified that he was receiving rental income of $400.00 per month from his sister from 2013 until August 2014, but he did not include this income in his Financial Statement sworn September 6, 2013. His explanations for failing to do so were that he was waiting for his Income Tax Return to be completed, that this was the first time he had completed this form, that he did not have legal advice, and that he was simply using his previous year’s income amount to complete the income portion of the form. However, it is clear that he did not simply insert his 2012 income in the Financial Statement, because he noted his annual 2013 income to be $17,952 whereas his 2012 income as set out in his Income Tax Return for that year was actually $30,797.00. Furthermore, he noted in the September 6, 2013 Financial Statement that his income consisted of WSIB benefits, which he was not receiving in 2012.

ii. The Applicant testified that although his sister has continued to reside with him, she ceased paying rent in August 2014 because she began to attend school at that time. However, he included the rental income in his Financial Statement which he swore on December 16, 2014. Of further concern in regard to his credibility is that he claimed only $300.00 per month of rental income in that Financial Statement, whereas he testified that his sister paid $400.00 per month in rent.

iii. In his Financial Statement sworn September 6, 2013, the Applicant indicated that he had been unemployed since February 2013. However, I find that he actually continued to work for Sheprott carrying out light duties until sometime in mid-April, 2013. In fact, in the Applicant’s Financial Statement sworn December 16, 2014, he noted that he had been unemployed since April 2013.

iv. The Applicant failed to declare his employment income from Sheprott for the period from January 2013 until April 2013 in his 2013 Income Tax Return. His only explanation for this was that Sheprott went bankrupt and he did not receive a T4 slip relating to this income. He shifted responsibility for not including this income on the professional who completed his Income Tax Return, stating that that person had said that they would try to obtain the T4. The Applicant stated that he was aware that his Income Tax Return was inaccurate and that he intended all along to file an amended 2013 Income Tax Return. I do not accept this evidence, given that he never advised the Respondent about the inaccuracy in the Return during this proceeding and that almost twenty months had already elapsed since the due date for the Income Tax Return with the Applicant having not made any efforts to resolve the problem to date.

v. The Applicant declared rental income of $4,800.00 in his 2013 Income Tax Return, but claimed $7,500.00 in maintenance and repair expenses against that income resulting in an income loss. Those alleged maintenance and repair expenses related to his residence. However, he did not provide any documentary proof of those expenses, and he did not note those expenses under the heading “Repairs and Maintenance” in the Housing section of his Financial Statement sworn September 6, 2013. His only explanation for not including the expenses in the Financial Statement was that he did not know how to complete the Financial Statement properly. His explanation for failing to provide proof of the expenses was that he had paid cash for the repairs and maintenance.

vi. When counsel for the Respondent questioned the Applicant about whether he had carried out any further maintenance and repairs on his home in 2014, the Applicant replied that he had built a shack at the back of the house, which he stated cost approximately $7,000.00 or $8,000.00. This obviously raised questions as to how he had obtained this amount of cash, given his evidence that his sole source of income is WSIB benefits and that his Financial Statements sworn September 6, 2013 and December 16, 2014 do not show any savings. When the Applicant was questioned about this issue, he stated that his mother’s boyfriend, Jerry Kopr, had built the shed for him and contributed $3,000.00 to the cost because he owed the Applicant $27,000.00. The Applicant alleged that he had received settlement funds as a result of a car accident approximately ten years ago, and that he had loaned Mr. Kopr the money from those proceeds. This evidence raised even more concerns about the Applicant’s credibility, since he did not show this debt owed to him in the section “Money Owed to You” in the two above-noted Financial Statements.

vii. Counsel for the Respondent questioned the Applicant about a number of deposits in his bank account. With respect to one deposit in the amount of $2,952.06 on March 21, 2013, the Applicant stated that he believed that this was a cash deposit which he made from funds that he had at home and which he had received from the personal injury suit referred to above. However, the precise number of this deposit, right down to the cents, raises serious doubt about the Applicant’s credibility on this issue.

e. I find that there were significant inconsistencies in the Applicant’s evidence respecting his physical limitations. His testimony regarding the severity of his ankle injury and its impact on his functioning shifted depending on the topic that was being addressed. In testifying about his ability to work and earn income for child support purposes, he described still having difficulty doing all of the physical activities that he stated he could not do in his Form 26 dated April 11, 2013, although he noted that the aircast boot that he now wears has helped somewhat. In the Form 26, he stated that he could not bend, twist, climb, kneel or lift. He also indicated that he was unable to stand. The Applicant further testified that he was unable to continue with modified duties at Sheprott as of April 2013 due to concern that his condition would deteriorate if he continued to work, even though the modified duties involved office tasks that did not require physical exertion. He testified that his WSIB benefits have been continued due to the ongoing seriousness of his physical limitations. However, he changed his tune significantly regarding the severity of his medical issues when discussing his request for equal time-sharing of Nicholas and Aubree and his ability to manage two very active young children. At that point, he described being able to kneel down on one knee, lift the children several times in a day, bend and twist and walk quickly. He was confident that he would be able to handle the two children for extended periods of time without any difficulty, and that he would be able to tolerate any pain that would result from physical exertion in caring for the children. In the context of his evidence respecting parenting, he indicated that he had a considerable amount of functionality in his upper body.

f. I also had concerns about the credibility of the Applicant’s testimony relating to the tape recording which he made of his telephone conversation with the Respondent on September 5, 2013, the day before he issued the application. As already noted, the Applicant asked the Respondent a number of questions during this conversation about her meeting with the Ontario Works representative earlier that day, and discussed many issues relating to child support. He inquired about whether the Respondent had told the Ontario Works representative about his voluntary contributions to the support of the children. The Applicant alleges that he did not intentionally record this conversation, and that the recording occurred because of a program that he had placed on his cell phone for work purposes to automatically record work-related calls. He testified that he did not realize that he had forgotten to turn this application off until sometime in November 2013, when he ran out of storage on his phone and realized that the phone had automatically recorded 2500 calls. I do not accept this version of events for a number of reasons. First, a disc containing the recording in question was attached to the Applicant’s Reply which he filed in this proceeding dated October 8, 2013. When the Applicant was cross examined on this point, he changed his testimony to state that perhaps he had discovered that the phone application was still operative in September 2013. Second, the Applicant stopped working at Sheprott in April 2013, five months before this recording was made. If there was in fact an automatic recording application in operation, it is difficult to believe that the Applicant would have forgotten about it for five months. Third, even if I accept that there was an automatic recording application in operation for the Applicant’s work activities, it is difficult to accept that the Applicant would have carefully sifted through and reviewed the estimated 2500 calls in the early fall of 2013 and unwittingly happened upon this call with the Respondent. I have considered all of these concerns in conjunction with the fact that the Applicant issued his application to seek custody the very next day after this conversation occurred. Taking all of these factors into consideration, I find that the Applicant deliberately recorded this conversation to obtain evidence that he hoped would support his custody and child support case.

g. Finally, in assessing the Applicant’s credibility, I have taken into consideration the fact that in a previous court case in the Superior Court of Justice involving the Applicant’s sister, Harper, J. found that the Applicant had fabricated evidence to support his sister’s case. When counsel for the Respondent cross examined the Applicant on whether such a finding had been made, the Applicant’s initial response was “I can’t recall.” However, as cross examination on this point continued, it became apparent that the Applicant was well aware of this finding.

[23] Based on all of the foregoing considerations, I have approached the Applicant’s evidence in this trial with considerable caution. Furthermore, where his evidence conflicted with that of the Respondent and Ms. Ford, I have preferred the evidence of the Respondent and her mother over that of the Applicant.

Part IV: Custody and Access Issues

I. Positions of the Parties

[24] The Applicant seeks an order for sole custody of Nicholas and Aubree. He submitted that he has been an attentive and involved parent, and that he is more competent than the Respondent to make appropriate decisions for the children. He alleged that he is also more respectful of the role of both parents in the children’s lives, and that the Respondent has consistently attempted to undermine his status as a father by limiting his time with the children and excluding him from important decision-making respecting them. He has concerns that the Respondent would continue to marginalize his role with the children if she were granted sole custody. In addition, he argued that an order for custody in his favour would enable him to ensure that the children remain connected with their Ukrainian language and culture which they derive from the paternal side of the family. In the alternative, the Applicant seeks an order for joint custody.

[25] With respect to time-sharing, the father was very unclear about his position. He requested an order for equal time-sharing in his application. In his Opening Submissions at Trial, he suggested that the allocation of time with the children should be based entirely on whether either party was working or not. Currently, neither party is working. In this situation, the father’s position was that he should have primary residence of the children during the work week, and the mother should have them every weekend from Friday at 5:00 p.m. until Sunday at 8:00 p.m. If at any point he begins to work again, the Applicant’s opening position at trial was that the time-sharing arrangement should be reversed, with the mother having the children during the work week and him having them every weekend. Finally, he sought an order that if the mother begins to work, there should be what he referred to as a “2-2-3” split, with one parent having the children on Monday and Tuesday, the other parent having them on Wednesday and Thursday, and weekends being alternated between the parties. In his Closing Submissions, the Applicant suggested that exchanges of the children should occur each Monday, Wednesday and Friday at 6:00 p.m. This would result in a two week rotating schedule which would give the parties alternate weekends as well as equal time with the children during the work week.

[26] The Respondent seeks an order for sole custody and primary residence of the children. She stated that she has been the children’s primary caregiver since birth, that the Applicant played a minimal role in the children’s lives until she raised the issue of child support in September 2013, and that she has done an excellent job as the primary decision-maker and caregiver for the children to date. She submits that an order for joint custody would not be workable due to the Applicant’s lack of respect for her and her role with the children, his constant criticism of her parenting, his intimidating attitude towards her, the lack of trust between them due to numerous false allegations which the Applicant has made against her and his inability to appreciate the children’s needs. The Respondent agrees to a gradual increase in the Applicant’s time with the children, as follows:

a. For the first month, she proposes that the father have children every Tuesday and Thursday from 3:00 p.m. until 7:00 p.m., and every Saturday from 10:00 a.m. until 6:00 p.m.

b. For the second month, she proposes that the Applicant have access according to a rotating two week schedule. In week #1, the Applicant would have the children from Tuesday at 3:00 p.m. overnight until Wednesday at 9:00 a.m. and on Thursday from 3:00 p.m. until 7:00 p.m. In week #2, his access would consist of a visit on Thursday from 3:00 p.m. until 7:00 p.m. and a weekend visit from Saturday at 10:00 a.m. until Sunday at 6:00 p.m.

c. Commencing the third month and thereafter, the Applicant’s access would be in accordance with a new rotating two week schedule. In week #1, he would have the children from Tuesday at 3:00 p.m. until Wednesday at 9:00 a.m. and on Thursday from 3:00 p.m. until 7:00 p.m. In week #2, he would have the children from Tuesday at 3:00 p.m. until Wednesday at 9:00 a.m. and from Friday at 5:00 p.m. until Sunday at 7:00 p.m.

II. The Law

A. Legislative Framework and General Principles

[27] The applicable legislation in this case in regard to the issues of custody, residence and access is the Children’s Law Reform Act (R.S.O. 1990, C. C-12, as amended) (“the Act”). Section 20 of the Act stipulates that except as otherwise provided for in Part III, the father and mother of a child are equally entitled to custody of the child. Section 20(2) provides that the entitlement to “custody” encompasses the rights and responsibilities of a parent in respect of the person of the child. Custody has been described as a “bundle of rights and obligations,” referred to as “incidents of custody” in the Act, which includes the right to physical care and control of the child, to determine the child’s residence, to discipline the child, and to make decisions about the child’s education, religion, medical care and general health and activities (Young v. Young (1993), 1993 34 (SCC), 49 R.F.L. (3d) 117 (S.C.C.); Chou v. Chou, 2005 11195 (ON SC), [2005] O.J. No. 1374 (S.C.J.); Harsant v. Portnoi, 1990 6703 (ON SC), [1990] O.J. No. 1144, 74 O.R. (2d) 33 (H.C.J.)).

[28] An award of sole custody to one parent grants decision-making rights to that parent, generally to the exclusion of the other parent to interfere in carrying out these rights and responsibilities (Kruger v. Kruger (1979), 1979 1663 (ON CA), 11 R.F.L. (2d) 52 (Ont. C.A.)). The term “joint custody” is used to describe situations where both parents are given full decision-making authority and responsibility in all areas respecting the child. Section 20(3) of the Act provides that where more than one person is entitled to custody of a child, “any one of them may exercise the rights and accept the responsibilities of a parent on behalf of them in respect of the child.”

[29] The entitlement to “access” is defined in section 20(5) of the Act as including “the right to visit with and be visited by the child and the same right as a parent to make inquiries and to be given information as to the health, education and welfare of the child.”

[30] Section 21 of the Act provides that a parent or any other person may apply for an order respecting custody of or access to a child, or determining any aspect of the incidents of custody of the child. Section 24(1) directs that the merits of an application dealing with these issues must be determined on the basis of the best interests of the child. The factors which the court is required to consider in carrying out the best interests analysis are set out in section 24(2):

Best interests of child

24(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).

[31] The list of factors set out in section 24(2) is not an exhaustive outline of the relevant considerations in carrying out the analysis of the best interests of the child. The best interests determination is based on a multiplicity of factors, and must be tailored to the unique facts and dynamics of each case. The court is not required to specifically enumerate and analyze the specific criteria set out in section 24(2) of the Act, but rather must consider all of the factors that are relevant to the analysis in the particular case that it is called upon to decide (Walsh v. Walsh, 1998 7134 (ON CA), [1998] O.J. No. 2969, 39 R.F.L. (4th) 416 (C.A.)). The overarching principle in carrying out the analysis is that the child’s best interests must be ascertained from the perspective of the child rather than the parents; parental preferences and rights do not play a role in the analysis except to the extent that they are necessary to ensure the best interests of the child (Gordon v. Goertz (1996), 1996 191 (SCC), 19 R.F.L. (4th) 177 (S.C.C.); Young, supra).

[32] The court may as part of a custody order impose such terms, conditions and restrictions as it considers appropriate and necessary to foster the best interests of the child (Reeves v. Reeves, 2010 CarswellNS 265 (C.A.)).

B. Sole Custody vs. Joint Custody

[33] The Applicant has requested sole custody of the children, but advanced and alternative claim for joint custody. The Act does not set out any specific criteria to assist in determining whether an order for sole or joint custody is appropriate, apart from the general “best interests” test. However, the case-law provides guidance regarding the factors to consider in deciding between the two options.

[34] The Ontario Court of Appeal’s approach to joint custody has evolved over the years. In Kruger, supra., and Baker v. Baker (1979), 1979 1962 (ON CA), 8 R.F.L. (2d) 236 (Ont. C.A.) the court held that joint custody is an exceptional remedy that should only be granted in circumstances where the parties demonstrate co-operation and appropriate communication, and are willing to try a joint custodial arrangement. Since that time, the court has dropped the requirement of consent to a joint custody order, but has maintained that in order to grant joint custody, there must be some evidence before the court that despite their differences, the parties are able to communicate effectively with each other (Kaplanis v. Kaplanis, 2005 1625 (ON CA), 2005 CarswellOnt 266 (C.A.); Lawson v. Lawson, 2006 CarswellOnt 4736 (C.A.)). The rationale for this principle is that the best interests of the child will not be advanced if the parties are unable to make important decisions regarding the child under a joint custody regime.

[35] While some measure of communication and cooperation between the parties is necessary to support a joint custody order, the court is not required to apply a standard of perfection in assessing the parents’ ability to work together. As Quinn, J. remarked in Brook v. Brook, 2006 12294 (ON SC), [2006] O.J. No. 1514 (S.C.J.), “the cooperation needed is workable, not blissful; adequate, not perfect.”

[36] A mere statement by one party that there is an inability to communicate will not be sufficient to preclude a joint custody order. The court must carefully consider the parties’ past and current parenting relationship and reach its own conclusions respecting the parties’ ability to communicate, rather than simply relying on allegations of conflict by one or both of the parties (Kaplanis supra.; Ladisa v. Ladisa, 2005 1627 (ON CA), 2005 CarswellOnt 268 (C.A)). Furthermore, the existence of conflict and strife between the parties from time to time, and at the time of trial, will not necessarily preclude the court from making an order for joint custody. The question to be determined is whether the nature, extent and frequency of the conflict between the parties is such that it is impacting or likely to impact on the well-being of the children. If the evidence indicates that the parties, despite their conflict with each other, have been able to shelter the child from the conflict reasonably well and put the child’s interests ahead of their own when necessary, an order for joint custody may be appropriate (Ladisa, ibid.). The question for the court to determine 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” (Warcop v. Warcop, 2009 6423 (ON SC), 2009 CarswellOnt 782 (S.C.J.)).

[37] Where an objective review of the historical and more recent evidence clearly indicates that there has never been an ability to cooperate or communicate effectively, or that one or both of the parties is/are unable to put the needs of the child before their own, joint custody is not an appropriate order (Hildinger v. Carroll, 2004 CarswellOnt 444 (C.A.); Kaplanis, supra.; Ladisa, supra.). In these circumstances, hoping that communication between the parties will improve once the litigation is over does not provide a sufficient basis for making an order of joint custody (Kaplanis, supra.).

[38] In analyzing the ability of the parties to communicate, the court must delve below the surface and consider the source of the conflict. The Ontario Court of Appeal has clearly stated that one parent cannot create conflict and problems with the other parent by engaging in unreasonable conduct, impeding access, marginalizing the other parent, or by any other means and then claim sole custody on the basis of lack of cooperation and communication (Lawson, supra.; Ursic v. Ursic, 2004 CarswellOnt 8728 (S.C.J.), aff’d 2006 18349 (ON CA), 2006 CarswellOnt 3335 (C.A.); Andrade v. Kennelly, 2006 CarswellOnt 3762 (S.C.J.), aff’d 2007 ONCA 898, 2007 CarswellOnt 8271 (C.A.)).

[39] There has been an increasing willingness in recent years to order joint custody rather than sole custody where necessary in order to preserve the balance of power between the parties, particularly in cases where both parties are caring and competent parents but one party has been primarily responsible for the conflict between the parties (Garrow v. Woycheshen, 2008 ONCJ 686, 2008 CarswellOnt 8193 (O.C.J.); Bromley v. Bromley, 2009 ONCA 355, 2009 CarswellOnt 2210 (C.A.); R.K.K. v. B.M.M. and R.S., 2009 CarswellYukon 38 (S.C.); Hsiung v. Tsioutsioulas, 2011 CarswellOnt 10606 (O.C.J.)).

[40] Although the foregoing comments outline the various factors and considerations which the courts have taken into consideration in deciding between sole vs. joint custody, the analysis must at all times remain firmly grounded in the best interests of the child or children before the court. While both parents may be attentive and loving, a joint custody order may not coincide with the child’s best interests. As Pazaratz, J. stated in Izyuk v. Bilousov, 2011 ONSC 6451, 2011 CarswellOnt 12097 (S.C.J.) at para. 504, “[I]n the wrong family circumstances, a joint custody order can perpetuate hostilities, indecision, and power struggles. Children- particularly children already exposed to the upset of family breakdown- look to their parents for love, guidance, stability, protection, and consistency. They need to have confidence that adult decisions will be made quickly, properly and uneventfully.”

III. Analysis

A. Custody

[41] As I have already indicated, the Applicant seeks an order for sole custody of Nicholas and Aubree, or in the alternative, an order for joint custody. The Respondent requests an order for sole custody. For the reasons that follow, I conclude that an order for joint custody of the children is not appropriate in this case, and that it is in the children’s best interests that the Respondent be granted sole custody.

[42] One of the factors which weighed heavily in my decision respecting custody is the significant historical and ongoing conflict between the parties. The intensity and longstanding nature of the conflict in their relationship has led me to conclude that they would have tremendous difficulty problem-solving and making decisions about the children together in a manner that would ensure that the children’s needs are met in a meaningful and timely manner. The parties were in a relationship for a number of years prior to separating in 2013, but the relationship was always on again/off again in nature due to the differences between them. The conflict initially centred around the Respondent’s romantic involvement with another man. However, as the relationship evolved and the parties became parents, other sources of conflict emerged. On a positive note, neither of the parties felt a need to initiate court proceedings respecting the children for a period of approximately twenty months after the birth of Nicholas. The children resided primarily with the Respondent, and the parties were able to arrange outings together so that the Applicant could see the children. However, I find that the relationship between the parties nonetheless remained highly conflicted and rocky. The Respondent testified that the Applicant was critical of her appearance following the birth of Nicholas and made embarrassing comments about her weight in the presence of her family. The Applicant denied that he humiliated the Respondent about her weight. I accept the Respondent’s evidence on this issue, based on my conclusions respecting the credibility of each party. The Applicant’s description of the Respondent as being “obese” in his Reply also supports the Respondent’s evidence that the Applicant made negative comments about her weight. The parties were unable to agree on basic issues such as the type of home which they would like to share as a couple, and they never cohabited. They had many arguments about financial issues and how to reduce expenses so that they could move forward as a family unit.

[43] Following Nicholas’ birth, the conflict between the parties mushroomed to include issues relating to parenting. The Respondent and Ms. Ford testified, and I find, that the parties argued frequently about the Applicant’s long work hours and the limited amount of time that he devoted to the Respondent and the children. The tension between the parties intensified during the summer of 2013, during the period leading up to Aubree’s birth, as the parties began to discuss how they would financially support two children. The Applicant was off work and receiving WSIB benefits, and therefore the Respondent applied for Ontario Works benefits. The Respondent testified the Applicant pressured her into misrepresenting to her Ontario Works representative that she did not know the identity of the children’s father, so that the question of child support from the Applicant would not complicate the application process. The Applicant denied that he pressured the Respondent to lie in this manner. I accept the Respondent’s evidence on this point. She presented as honest and genuinely distressed when she testified about the pressure which she felt the Applicant had placed on her. The Respondent eventually told the Ontario Works representative that the Applicant was the father. This led to discussions about drafting an agreement about time-sharing and the Applicant’s obligation to make regular support payments to the Respondent. The parties were unable to work effectively together to resolve these issues. Instead of cooperating with the Respondent and the Ontario Works representative to resolve the child support and time-sharing issues, the Applicant commenced this court proceeding.

[44] The manner in which the Applicant commenced these proceedings was extremely insensitive to the Respondent. I accept the Respondent’s evidence that the parties were still in a relationship as of September 6, 2013, when the Applicant’s sister showed up unexpectedly on the Respondent’s doorstep and served her with the court papers. The recording of the parties’ conversation on September 5, 2013 demonstrates that the Respondent wished to work through the issues of child support and time-sharing amicably. The Applicant gave the Respondent the clear impression that he was going to think about his position on these issues and that the parties would have further discussions. While the Respondent admits that she became agitated when she was unexpectedly served with the court papers, it is understandable that she would have been shocked and distressed by the turn of events.

[45] The Applicant’s conduct after September 6, 2013 escalated the conflict between the parties. The Applicant relied in part on the Respondent’s emotionally charged response to being served on September 6, 2013 as grounds for an ex parte motion in which he sought an order granting him care of the children and either no access or supervised access only to the Respondent. He alleged that the Respondent had mental health difficulties which were impacting on her ability to parent the children. When Brown, J. decided that there was insufficient evidence upon which to proceed on an ex parte basis, he made a report of alleged child protection concerns respecting the mother to the Children’s Aid Society of Hamilton. The Society carried out an investigation respecting the Respondent and the children and did not verify any of the concerns which the Applicant reported. As I will discuss in further detail below, I find that the mother was not experiencing mental health problems that were affecting her ability to meet the children’s needs. In or around the same time, the Applicant met with an Ontario Works representative and made allegations about the Respondent which resulted in Ontario Works carrying out an investigation respecting the Respondent’s Ontario Works benefits. I find that this investigation also resulted in the Respondent being exonerated of any wrongdoing.

[46] The behaviour of the Applicant towards the Respondent in the fall of 2013 demonstrates an extremely concerning ability on his part to turn against the Respondent when necessary to further his interests and to achieve his own goals. I find that the Applicant allowed the Respondent to have primary care of the children up until the fall of 2013, while he worked long work hours and he and the Respondent were still a couple. Furthermore, the issue of custody did not appear to be a pressing one to the Applicant prior to September 2013. A draft Child Support and Visitation Agreement which the Applicant prepared in the spring of 2012 spoke only about visitation for the Applicant, and proposed that his visits occur three times per week for daytime access only. It was only when the issue of regular child support payments from the Applicant became a live issue as a result of the involvement of Ontario Works in September 2013 that the Applicant initiated court proceedings requesting primary residence and no access to the Applicant and made reports of concerns about the Respondent to the Children’s Aid Society and Ontario Works.

[47] The events described above provide an important backdrop for the analysis of the parties’ relationship post-separation. In particular, the Respondent’s attitude towards the Applicant and her responses to various situations must be evaluated keeping in mind the distress which she experienced due to the Applicant’s behaviour around the time of the separation. I find that after the above-noted events, the Respondent was justifiably very anxious that the Applicant would continue to engage in tactics to undermine her role as a parent and bolster his case for custody. She has understandably had great difficulty trusting the Applicant, and her relations with him have been clouded by a sense of having to “watch her back” and protect herself.

[48] The parties’ relationship has continued to be conflict-ridden since September 2013, and I find that they have been unable to cooperate with each other with respect to any important issues involving the children. Some examples of their conflicts around parenting issues are as follows:

a. There has been significant conflict between the parties about Nicholas’ behavioural issues. The Respondent and Ms. Ford have both had serious concerns about Nicholas’ behaviours at home since 2013. They both testified that these behaviours include tantrums, head banging and hitting and lashing out at people. The Applicant has refused to accept that Nicholas has difficulty managing his behaviours. I accept the evidence of the Respondent and Ms. Ford relating to Nicholas’ behavioural challenges.

b. The conflict around Nicholas’ behaviour has been fuelled in part by allegations by the Applicant that the Respondent has not kept him informed about the particulars of the child’s concerning conduct. However, I find that the Respondent has been relaying her concerns about Nicholas’ behaviour to the Applicant since long before the parties separated. Further tension developed around this issue as a result of the Applicant accusing the Respondent of pressuring the family physician, Dr. Milroy, and pediatrician Dr. Pinto to make a diagnosis of Attention Deficit Disorder (“ADD”) without his knowledge and input. The evidence does not support this allegation. I find that the Respondent consulted with Dr. Milroy about Nicholas’ behaviours, and on July 7, 2014, she asked Dr. Milroy about the early signs of ADD because her brother had been diagnosed as having ADD in the past. There is no evidence to suggest that she ever pushed either Dr. Milroy or Dr. Pinto to diagnose Nicholas with ADD.

c. The doctors involved in addressing Nicholas’ behavioural difficulties have been drawn into the conflict between the parties around this issue. For example, the parties had a major argument prior to an appointment with Dr. Pinto on August 21, 2014 because the Applicant wanted to attend the appointment and the Respondent did not want him to attend. The Applicant has accused the Respondent of trying to prevent him from meeting with Dr. Pinto and sharing his observations and views with her. However, I find that the Respondent in fact encouraged the Applicant to make a separate appointment with the doctor to discuss his concerns and provide his input, because she felt that a joint appointment would be unproductive due to the conflict between the parties. The Applicant attended a separate meeting with Dr. Pinto on August 21, 2014.

d. Instead of acknowledging Nicholas’ behavioural difficulties and working with the Respondent on resolving the issues, the Applicant has persisted in trying to prove that no problems exist. As recently as November 6, 2014, he suggested to Dr. Milroy that the Respondent was making up issues about Nicholas’ behaviour in order to undermine his case for overnight access.

e. There has also been a tremendous amount of conflict between the parties regarding Nicholas’ speech and language development. The Respondent has had concerns respecting Nicholas’ development in these areas and has discussed this issue with Dr. Milroy. On July 7, 2014, Dr. Milroy noted that Nicholas’ language development is slow. In response to these concerns, the mother contacted Early Words, which is a speech and language service agency in Hamilton. Based on the information which the Respondent provided, Early Words arranged for Nicholas to undergo a speech and language assessment. Nicholas is now on a waiting list to receive speech therapy through the Early Words Program. Because of the concerns regarding Nicholas’ speech and language delays, the Respondent asked the Applicant to speak with Nicholas primarily in English during access visits. The Applicant and his family had been speaking to the children in Ukrainian. The Applicant has not acknowledged any concerns respecting Nicholas’ speech and language, and he and his family members have continued to communicate with the children primarily in Ukrainian despite the Respondent’s request.

f. There has been ongoing strife between the parties regarding the exchange of information about the children. Examples of conflict in this area include the following:

i. The Applicant states that the Respondent has not kept him apprised of medical and other issues relating to the children, including issues relating to Nicholas’ behaviour, speech and language, and emergency room attendances. This allegation has been a major source of contention because the Respondent alleges that she has generally kept the Applicant informed of significant issues in a timely manner. I find that although the Respondent did not advise the Applicant of all appointments and issues respecting the children, she made a reasonable effort to keep the Applicant informed of significant appointments and concerns and advised him of the outcome of important appointments. The recorded telephone conversation between the parties on September 5, 2013 evidences that the Respondent was informing the Applicant about medical issues. During that call, the Respondent told the Applicant that she was taking Nicholas to the doctor due to concerns about his feet turning inward and problems with the child’s testes. She assured the Applicant that she would inform him about the doctor’s recommendations on these issues. I found the Respondent credible when she testified that she informed the Applicant many times even before the parties separated about Nicholas’ behaviour issues, and that she also addressed the concern regarding Nicholas’ speech delay with him. In any event, it is significant that the temporary order dated November 12, 2013 provided that both parties had the right to speak directly with and receive information directly from all third party professionals involved with the children and regarding the children, including doctors, teachers and dentists. The Applicant should have been aware as of that time that he had the right to obtain any information which he sought respecting the children directly from any professionals who were involved with them.

ii. By way of example of the conflict which the parties have had around the exchange of information regarding medical appointments, the Applicant sent the Respondent an angry email on September 25, 2014 asking why she had not informed him about an appointment for Nicholas with Dr. Pinto on that day. I find that the appointment had actually been set at the time of the previous appointment with Dr. Pinto on August 21, 2014, and that the Applicant was actually in attendance at Dr. Pinto’s office on that date. In addition, the Respondent attempted to communicate with the Applicant at the time of the access exchange following the August 21, 2014 appointment, but the Applicant disregarded her and chose not to engage in meaningful communication. Similarly, on November 6, 2014, the Applicant sent the Respondent a sharp email asking why she had not notified him that Aubree had been to the emergency room a few days earlier. I find that the Respondent had in fact attempted to call the Applicant many times from the hospital on this occasion to apprise him of the situation, but that she was unable to connect with him due to constant busy signals on the Applicant’s phone. This email from the Applicant and many other emails from the Applicant to the Respondent have a condescending tone to them. The Applicant chastised the Respondent in the email for consenting to Aubree having an x-ray, stating “Don’t you know it is not healthy to have so many x-rays done for babies.” This led to an exchange of numerous more angry emails which clearly left both parties angry and exasperated with each other but which ultimately did not achieve any appreciable purpose.

iii. The parties have also had conflict with each other due to criticisms by the Applicant about the Respondent cancelling medical appointments for Nicholas. The mother did cancel some medical appointments, but I find that she had legitimate reasons for doing so. She cancelled an appointment with Dr. Pinto on June 12, 2014 because she had a very bad chest infection. She also cancelled an appointment with Dr. Pinto on September 25, 2014 because Nicholas was expected to have blood taken prior to that appointment but he could not get his blood test due to illness. Finally, the Respondent cancelled an appointment with Dr. Pinto on October 30, 2014 because the trial of this case had been scheduled to commence and she did not want to pay a cancellation fee for missing the appointment.

g. The parties have had tremendous difficulty communicating with each other around the children’s basic needs, activities, well-being and safety. Examples of the difficulties which they have experienced in this regard include the following:

i. I find based on the evidence of both the Respondent and her mother that the Applicant typically does not communicate at the time of access exchanges, and appears to show no interest in listening to what the Respondent or her mother wish to tell him about the children’s needs.

ii. The Respondent has asked the Applicant after visits for information such as what the children ate during the visit and whether they napped, but the Applicant has generally not been forthcoming with this information.

iii. The Respondent has attempted to discuss her concerns about the Applicant’s sister having contact with the children, but the Applicant has not engaged in discussions aimed at addressing and resolving these concerns. The Respondent’s concerns are based on her understanding from the sister’s court proceeding that Ms. Izyuk has threatened to abduct her child in the past. An example of the communications that occur respecting this issue is an email exchange that began with a message from the Respondent to the Applicant dated June 21, 2014, in which the Respondent raised concerns about the fact that Ms. Izyuk had attended Nicholas’ daycare with the Applicant. The Respondent indicated that she had concerns about Ms. Izyuk knowing the location of the daycare having regard for the abduction concerns. The Applicant’s response simply confirms that he attended the daycare, spoke to the daycare provider and confirmed that Nicholas was doing great in the daycare program. He blatantly dodged the issue of the Respondent’s concern respecting his sister, which was the sole subject of the Respondent’s initial email.

iv. On the few occasions when the Applicant has sent the Respondent emails informing her about the children’s activities during access, the Respondent has reacted negatively. For instance, in response to one such email from the Applicant dated July 1, 2014 in which the Applicant talked about the children’s developmental progress, the Respondent criticized the Applicant for conveniently sending her information after she had complained about him not telling her anything. In addition, she perceived the message as “talking down to her” or as a means of trying to prove how well the children are doing in his care as opposed to her care.

v. On occasion, the Respondent has sought explanations from the Applicant about a mark or rash which she has seen on Nicholas after a visit. Efforts by the parties to work through these issues with each other have also generally turned ugly very quickly, with the Applicant usually denying that anything happened. For instance, on June 21, 2014, the Respondent sent an email to the Applicant asking whether Nicholas had been in the water or eaten something different during the visit that day, because he had broken out into a rash. The Applicant replied by insisting that Nicholas had had the rash for several days, and telling the Respondent to call the doctor. This response led to a series of further exchanges which ended with the Applicant suggesting that the Respondent was making up things about Nicholas getting hurt in his care. On another occasion, the Respondent inquired about a mark on Nicholas’ back after a visit. The Applicant again denied that anything had happened to the child, and he criticized the Respondent for allegedly inspecting the children’s bodies after visits. These exchanges exemplify how attempts by the parties to address issues regarding the children typically spiral downward at lightning speed. The Respondent is so distrustful of the Applicant that she keeps a log of any marks or injuries which she feels the children have sustained during visits with their father in order to protect herself against false allegations.

vi. When the Applicant makes inquiries about issues pertaining to the children, the Respondent is often defensive and interprets the inquiries as a criticism of her parenting or an attempt by the Applicant to put himself in a good light. For example, on August 17, 2014, the Applicant told the Respondent in an email that Nicholas was no longer using a pacifier at his home during visits, and asked the Respondent if there was a reason why the Respondent was still giving it to him. The Respondent replied in a sarcastic tone, asking how the Applicant knew Nicholas used a pacifier if he does not use it at his home, and adding the comments “kinda strange.”

h. The parents have had disputes over such basic things as the children’s clothing and diapers during visits. For example:

i. I find that although the Applicant has had only daytime visits, he and his family change all of the children’s clothing during access, right down to the socks, underwear, footwear and outerwear. The Applicant returns the clothing that the children wear to the visits in large garbage bags at the time of the access exchange at the Terryberry Public Library. The Respondent has asked the Applicant to refrain from stripping the children down and changing all of their clothing during the visits, because it is disruptive for the children for such a short period of time and it is inconvenient to transport large bags of clothes back and forth. The Applicant has not paid any heed to the Respondent’s request.

ii. On one occasion, the Respondent sent Aubree to a visit in a snowsuit that said “I love mommy” on it, and this was returned to the Respondent with the word “mommy” blocked out.

iii. On another occasion, the Respondent received an email from the Applicant after a visit sharply criticizing the Respondent about the quality of the snowsuit that she sent Aubree in for the visit. He attached a picture to the email of the snowsuit which he had purchased for Aubree placed beside the one which the Respondent had provided for the child, and attaching a link to the weather network showing the temperature for that day. In his email, he criticized the Respondent for dressing Aubree in spring gear.

iv. The parties have argued as well about the fact that the Applicant has sent Nicholas home in pull-up diapers. The Respondent has requested that Nicholas be sent back in a diaper to avoid soiling accidents in the car, but the Applicant has not respected this request.

i. Even Nicholas’ first haircut caused a major blow-up between the parties. The Applicant and his family decided to take Nicholas for his first haircut during an access visit, and this infuriated the Respondent because she felt that she had been excluded from an important event and she wanted to keep a piece of Nicholas’ hair. This situation was the subject of an angry exchange of email messages.

j. Religion has been another source of major conflict between the parties. The Applicant has wished to have the children baptized in the Ukrainian Orthodox Church, but the Respondent has not agreed to baptize the children in that church. The parties have also disagreed about the Applicant using holy water on the children. The Respondent has asked that he refrain from doing so, since this practice represents the washing away of an individual’s sins, and she has difficulty with the notion that children as young as Nicholas and Aubree could have sinned.

k. The conflict between the parties has been fuelled by many allegations which the Applicant has made against the Respondent’s mother and stepfather, who have supplied a home for the Respondent and the children and provided a great deal of day to day support to them. These unsubstantiated allegations include the following:

i. That Ms. Ford deliberately incited Nicholas at an access exchange by trying to comfort him when he was upset about going to the Applicant;

ii. That the Respondent’s stepfather smokes marijuana in the home; and

iii. That the Respondent’s maternal grandmother, who also lives in the home, is an alcoholic.

There was no evidence adduced at trial substantiating any of these allegations.

[49] All of the difficulties described above in the parties’ relationship and their inability to cooperate respecting the children form the basis for my conclusion that an order for joint custody is not in the best interests of the children. Nicholas and Aubree are young, and Nicholas has special needs with respect to his behaviour and speech. There are many significant decisions respecting the children that will have to be made in the future, and it is in their best interests that these decisions be made quickly and with minimal conflict. Having regard for the personal dynamics between the parties to date, I am satisfied that a joint custody arrangement would simply create a breeding ground for further and even more intense conflict between the parties, which is not in the interests of the children or the parties themselves. The children require parents who are emotionally and physically stable and healthy. The type of conflict which has marred the parties’ relationship to date is destabilizing to them and to the children. It is in the children’s best interests that one parent be granted sole custody.

[50] I am satisfied that the children’s best interests will be most strongly fostered by an order granting the Respondent sole custody. In reaching this decision, I have considered the source of the protracted conflict which I have described above. While both parties have played a part in the difficulties which have characterized their relationship, I find that the Applicant has been the primary initiator of the conflict around parenting issues. I have also considered the evidence respecting the parenting responsibilities which each party has assumed and the history of decision-making respecting the children. The children’s primary residence has been with the Respondent since birth, and I find that the Applicant agreed to this arrangement until Ontario Works raised the issue of child support with the Respondent in September 2013. The parties were still involved in a relationship until that time. Although the Applicant requested custody of the children and equal time-sharing in his application, the children have continued to reside primarily with the Respondent. As the children’s main caregiver, the Respondent has been responsible for attending to their daily physical, emotional and developmental needs. She has also been the parent who has identified issues of concern and has taken the initiative to address those issues. I am satisfied that she has done an excellent job in carrying out these responsibilities. Specifically, I find as follows:

a. The Respondent has ensured that the children have received regular and appropriate medical attention from Dr. Milroy. She was the parent who scheduled and attended all medical appointments for the children with Dr. Milroy with the exception of one appointment on November 6, 2014 which the Applicant scheduled for Nicholas to deal with the child’s drooling.

b. The Respondent was diligent in identifying that Nicholas had unusual leg twitching when he was a few months old, and sought medical attention for this issue because of her concern about a history of epilepsy in the family. Dr. Milroy referred Nicholas to a pediatrician, Dr. Gambarotto, to address this problem. The Respondent brought Nicholas to his appointments with Dr. Gambarotto and took him for an EEG as directed by the doctor. No concerns were identified and the twitching disappeared by the time Nicholas was approximately five months old.

c. The Respondent has also been attentive in seeking medical attention for a skin condition which Nicholas has had since he was a few months old. Dr. Gambarotto dealt with this issue in the spring of 2012, but Dr. Milroy subsequently made a further referral for Nicholas to see a dermatologist, Dr. Shukla. The Respondent followed through in bringing Nicholas to see Dr. Shukla.

d. The Respondent has taken responsible and appropriate measures to address issues regarding Nicholas’ challenging behaviours and concerns about his feet turning inward. She promptly discussed these issues with Dr. Milroy when they arose, and followed through in bringing Nicholas to all appointments with Dr. Pinto to seek assistance in resolving the problems. Although she cancelled two appointments with Dr. Pinto, as discussed earlier in these Reasons, I am satisfied that she had sound reasons for doing so.

e. The Respondent also raised concerns with Dr. Milroy at an early stage respecting Nicholas’ speech development. On November 28, 2013, Dr. Milroy advised her to connect with CONTACT Hamilton and to consider enrolling Nicholas in therapeutic daycare to address the concerns regarding the child’s behaviour and speech. The Respondent followed through in enrolling Nicholas in daycare on a part time basis, and accessed the services of the Early Words Program through CONTACT Hamilton to address Nicholas’ speech issues.

f. The Respondent has been attentive in seeking emergency medical attention for Nicholas and Aubree when appropriate.

g. There have been no concerns respecting the children’s nutrition, hygiene or supervision while in the mother’s care.

h. The mother took the necessary steps to obtain financial assistance from Ontario Works so that she could meet the children’s basic needs. She has also accepted the generous emotional and financial support which her mother and stepfather have offered, which has allowed her to maintain a stable home for herself and the children.

[51] I have considered the role which the Applicant has had in the children’s lives. The Applicant has been involved with the children on a consistent basis. It is clear that he loves them very much and that he is committed to having a strong relationship with them. Furthermore, although there is disagreement about the extent of his financial support of the children prior to the fall of 2013, the Respondent acknowledges that he purchased items for the children and provided her with between $160.00 and $200.00 every couple of months. However, I find that the Applicant was content with the Respondent assuming primary responsibility for the children’s basic needs and being the main decision-maker respecting the children until he commenced these proceedings in September 2013. Until that time, there is no evidence that he objected to the Respondent making medical appointments for the children, taking the children to appointments on her own or making decisions about the children’s care. The recording of the telephone conversation between the parties on September 5, 2013, the day before the Applicant commenced this proceeding, reflects the status quo that had evolved respecting decision-making about the children. The Respondent advised the Applicant during that conversation that she had to take Nicholas to the doctor that day because of concerns about his feet and his testes, and advised him that Nicholas may require surgery on his testes. She provided him with the details about these concerns. The Applicant discussed the issues with the Respondent, but did not request to be present for the appointment and presented as quite content that the Respondent had taken the initiative in dealing with these matters. With respect to the possible surgery, the Applicant concluded the conversation by asking the Respondent to let him know what she planned to do so that there would be no surprises for him.

[52] The Applicant began to demand greater involvement in appointments and decision-making respecting the children in the fall of 2013. It is significant that this development occurred after the Applicant commenced this court proceeding. As previously noted, he began to insist in being present for all appointments for the children and to request updates on issues relating to the children. The Applicant states that he made similar requests prior to September 2013 by way of text messages, but that he could not access those texts because he had given the cell phone in question to the Respondent and her mother to use. The Respondent denies having ever received such requests from the Applicant prior to the fall of 2013. Based on my assessment of the parties’ credibility, I prefer the Respondent’s evidence over the Applicant’s on this point.

[53] Despite the Applicant’s requests to be involved in appointments and for timely information regarding the children after September 2013, he nonetheless continued to take a back seat with respect to parenting responsibilities. The November 12, 2013 order clearly authorized him to receive information directly from professionals involved with the children, and there was no order granting the Respondent temporary custody. However, the Applicant only consulted once with Dr. Pinto about Nicholas, and only booked and attended one medical appointment with Dr. Milroy for Nicholas. He did not schedule or attend any medical appointments for Aubree. Furthermore, the evidence indicates that he has only attended Nicholas’ daycare on one occasion, very soon after Nicholas started at the daycare. There is no evidence that he has maintained regular communication with the daycare to obtain updates about Nicholas’ progress in the program. I find that the Applicant continued to rely on the Respondent to be the primary parent in addressing the children’s basic needs after the fall of 2013. By way of example only, during the Applicant’s visit with the children on October 14, 2014, the Applicant noticed that Aubree had a rash all over her body. He emailed the Respondent to inquire about this, and the Respondent replied that she thought the rash was from teething. She sent an email attaching an article about teething that she had found on the internet to share what she had learned about the topic. The Applicant responded by stating that the health of the children should not be judged based on articles from the internet. Instead of calling Dr. Milroy’s office himself to discuss the concerns and make an appointment, the Applicant directed the Respondent to call Dr. Milroy’s office as soon as possible to make an appointment for Aubree to be assessed.

[54] In support of his request for sole custody of the children, the Applicant argued that the Respondent lacks insight into the importance of raising the children in a religious faith and fostering a connection with their Ukrainian heritage. He alleged that the Respondent lacks knowledge about religion, and that she has tried to undermine his efforts to teach the children the Ukrainian language and culture. The Applicant testified about his strong connection with the Ukrainian Orthodox faith and how he has taught the children the Ukrainian language. His position is that he is better suited than the Respondent to have sole custody based on his appreciation of the importance of exposing the children to religion and their cultural heritage.

[55] I do not accept the Applicant’s submissions respecting the Respondent’s attitude towards religion and the children’s connection with their cultural heritage. I find that the Respondent sees value in exposing the children to religion and to their Ukrainian culture. She is of the Baptist faith and she testified that she intends to introduce the children to her religious faith once they are old enough to appreciate the meaning of religion. She is also very supportive of the father exposing the children to the Ukrainian Orthodox faith. Furthermore, the evidence does not support the Applicant’s allegation that the Respondent has interfered with his efforts to foster the children’s ties to their cultural heritage. Although she encouraged the Applicant to speak to the children primarily in English during visits, I find that she did so out of legitimate concern about Nicholas’ speech and language delays in English, which is his primary language. There is absolutely no evidence of the Respondent attempting to prohibit the Applicant from teaching the children the Ukrainian language.

[56] The evidence respecting the extent of the Applicant’s involvement in the day to day lives of the children since their birth has also guided my decision to grant the Respondent sole custody. The evidence of the Applicant on this issue contrasts starkly with that of the Respondent and the maternal grandmother Ms. Ford. The Applicant testified that prior to the commencement of these court proceedings, he saw Nicholas between three to six times each week, and in addition took the Respondent and Nicholas on regular shopping outings. He indicated that the visits occurred in the presence of the Respondent, with the exception of one unsupervised visit which he had with Nicholas in August 2013. He alleged that he requested additional time with Nicholas, and later with Aubree, but that the Respondent resisted his requests for increased and unsupervised access, and for access on special occasions. For instance, he alleged that the mother denied him access on Father’s Day in 2012 and on Aubree’s birthday in 2014.

[57] The Respondent and Ms. Ford testified that the Applicant’s contact with the children was very limited prior to the commencement of the court proceedings. I accept their evidence over that of the Applicant based on my assessment of their credibility as compared to that of the Applicant. I make the following findings respecting the father’s contact with the children prior to September 2013 based on their evidence:

a. The parties were still in a relationship until September 2013, and therefore there was no set schedule for visits between the Applicant and the children. The Applicant saw the children when the parties arranged time to see each other, and his visits always occurred in the presence of the Respondent with the exception of one unsupervised visit with Nicholas in August 2013.

b. In 2012, the Applicant had long and erratic work hours. He typically saw Nicholas once a week and sometimes once in a two week period. When visits occurred, he would often leave early due to work commitments. These visits usually took place at the parties’ respective homes, and the parties sometimes spent the night together.

c. The parties took Nicholas to a local park on occasion, and the Applicant took the Respondent shopping for Nicholas approximately once per month. However, the Respondent was often disappointed because she wished to arrange special family outings and the Applicant did not make time for such excursions.

d. The parties often made arrangements for the Applicant to see Nicholas on weekends in the morning, prior to Nicholas’ nap time, but the Applicant frequently chose to sleep in and did not attend those visits.

e. The Respondent became extremely frustrated and disappointed by the Applicant’s failure to spend more time with her and Nicholas, and this became a major source of conflict between the parties.

f. The Applicant sustained an ankle injury at work in February 2013, and this development also impacted on the frequency of his contact with Nicholas because he experienced significant pain and began taking pain medication. Throughout 2013, the Applicant continued to see Nicholas on average once a week or once every two weeks.

g. With respect to Aubree’s birthday in 2014, the Applicant asked for time with the child four days before her birthday. The Respondent had already made plans for Aubree by that time, but she made arrangements for the Applicant to see the child the next day for a birthday celebration.

[58] There was a period of approximately two months following the commencement of these proceedings when communication between the parties broke down and the Applicant did not see the children. The Applicant’s decision to pursue an ex parte motion and his reports of concerns respecting the Respondent to the Children’s Aid Society of Hamilton and Ontario Works resulted in a loss of trust between the parties. The Respondent initially requested that the Applicant’s access to the children be supervised, given that the children had not seen their father for several weeks and that he had only had one unsupervised visit with Nicholas up to that time. However, she agreed to unsupervised access following the case conference, and the temporary access order which Brown, J. granted on that date was made with the Respondent’s consent. The Applicant has continued to have only daytime visits with the children throughout these proceedings.

[59] The Applicant has raised concerns respecting the Respondent’s mental health in support of his claim for sole custody. As I have already noted, the mother suffers from depression, for which she takes medication. She is under the regular care of her family physician, Dr. Milroy, and a Mental Health Nurse at Dr. Milroy’s office for this condition. She accessed additional mental health support following the birth of Nicholas through the Women’s Health Clinic at St. Joseph’s Hospital, where she saw a psychiatrist, Dr. Steinberger. I find that the Respondent has been proactive in addressing her mental health challenges, and that she has responsibly followed through with all recommendations which have been made to manage her depression. I am satisfied that her mental health status has been stable and that her condition has not impacted her parenting of the children in any way.

[60] Having regard for the considerable conflict between the parties around whether the Applicant should have the right to attend all appointments for the children, I consider it necessary to specifically address this issue in the custody order. I agree with the Respondent that the level and consistency of the conflict between the parties is such that it is not in the best interests of the children that they attend appointments together. There is a high likelihood that joint attendances would result in disagreements and tension between the parties, which would in turn interfere with effective information sharing and decision-making respecting the children. Accordingly, I am specifying in the order that the Respondent’s right to custody shall include the right to schedule and attend any appointments respecting the children on her own. The final order dated November 17, 2014 provides that both parties have the right to obtain information respecting the children directly from any professionals involved with the children.

B. Access

[61] With respect to the Applicant’s access, I am satisfied that the plan which the Respondent has proposed is in the children’s best interests. This plan provides for a gradual increase in the Applicant’s access over the next three months, culminating in alternate weekend access, an overnight visit every Tuesday night and an evening visit on alternate Thursdays when the Applicant does not have the children on the weekend immediately following the Thursday visit. This arrangement is sensitive to the needs of the children, as it takes into consideration the fact that the children have never had overnight access alone with the father to date. Nicholas and Aubree are still very young and are accustomed to being in the primary care of their mother. They will require time to gradually adjust to increased time away from her.

[62] A gradual progression of access is also appropriate having regard for the fact that the Applicant has never been in a sole care-giving role with respect to the children. As I have already noted, prior to the commencement of these proceedings, the Applicant always saw the children in the presence of the Respondent, with the exception of one visit with Nicholas. I find based on the evidence of the Respondent and Ms. Ford that the Respondent assumed primary responsibility for the children during those visits, and that the Applicant would typically hand the children over to the Respondent if they began to fuss. Since this court proceeding began, the Applicant has always had either his mother, his sister or most often both present during his time with the children. The paternal grandmother and paternal aunt have assisted him in caring for the children during these visits. Accordingly, to date, the Applicant has not demonstrated an ability to meet the children’s needs on his own for an extended period of time This is a factor which has weighed significantly in my decision that an equal time-sharing arrangement is not in the children’s best interests.

[63] My findings set out above respecting the Applicant’s limited involvement with the children before the issue of child support came to a head in September 2013 have also influenced my decision regarding access. The Respondent has been the parent who has consistently and diligently attended to the children’s day to day needs since birth, and it is in the children’s best interests that they continue to benefit from the security and consistency which they have enjoyed in her primary care.

[64] The Respondent has raised concerns that the Applicant’s physical limitations as a result of his ankle injury would impair his ability to care for the children on his own for more time than she has proposed. I find that the Applicant is competent in carrying out day to day parenting tasks such as changing, feeding and bathing the children. However, the evidence satisfies me on a balance of probabilities that his ankle injury impacts his ability to carry out parenting tasks that require lifting, bending, twisting and moving quickly. I have concerns respecting his ability to manoeuver quickly when necessary to properly supervise the children and keep them safe on his own. These are considerations that I have factored into my decision respecting the Applicant’s access. As previously noted in these Reasons, the Respondent ceased working in April 2013 because his employer was no longer willing to keep him on modified duties, and his doctor felt that even modified duties could aggravate his condition. The only medical evidence before the court respecting his condition and his functional abilities is the Form 26 Health Professional’s Progress Report which Dr. Taraszewicz prepared on April 11, 2013, which indicates that he is unable to bend, twist, climb, kneel or stand. As previously noted, when the Applicant testified about his ability to earn income for support purposes, he stated that his limitations were much the same as described in this report. He only backtracked on this evidence when he was challenged about his physical ability to care for two young children. The Applicant underwent surgery on his ankle in July 2014, and the surgeon, Dr. Lathem, is still monitoring his progress. An ultrasound report dated September 26, 2014 indicated that as of that date, he had a partial tear of the antero-taler fibular ligament. He was referred to Dr. Lau for a second opinion regarding his ankle due to ongoing problems with his functioning, and he had an MRI on the ankle on January 19, 2015. As of the end of this trial, he was awaiting the results of the MRI and the opinion of Dr. Lau as to whether a second surgery would be required. Throughout the trial, the Applicant was observed limping on his left ankle. He testified that he uses a cane if he walks more than 500 or 600 meters. The Applicant’s physical limitations give rise to concerns regarding his ability to effectively meet the children’s needs under an equal time-sharing regime.

[65] The existing access order involves three exchanges of the children per week. These exchanges have been occurring at the Terryberry Public Library, and the maternal grandmother, Ms. Ford, has assisted with the actual physical exchange of the children due to the level of conflict between the parties. I find that the exchanges are stressful to the parties, primarily because the Applicant typically refuses to acknowledge the Respondent or to discuss issues about the children. In addition, as already noted, the Applicant insists on taking the children out of the clothes which the Respondent provides and changing them into clothes which he has purchased. For these reasons, I find that three exchanges per week are not in the best interests of the children. The time-sharing arrangement which I am ordering provides for only two exchanges per week, which is more appropriate in the circumstances of this case.

[66] The general level of conflict between the parties and their inability to cooperate effectively in parenting the children, as described earlier in these Reasons, are further factors which support the time-sharing regime which I have ordered rather than an equal time arrangement. As I have stated, I find that the Applicant’s behaviour and attitude towards the Respondent are the main contributing factors to the conflict. While the Respondent acknowledged some of the Applicant’s strengths as a parent, the Applicant had nothing positive to say about the Respondent’s parenting. I am satisfied that the Applicant in fact used the child protection system in the fall of 2013 as a tool against the Respondent to solidify his position in these proceedings. He is regularly critical of the Respondent’s daily parenting and decision-making and often sends emails to the Respondent that are condescending in tone. He alleges that the Respondent does not share critical information respecting the children, yet he refuses to communicate with the Respondent and her mother about the children’s basic day to day needs and circumstances. My concern is that granting the Applicant equal time with the children would provide more opportunity for him to criticize and undermine the Respondent, and would ultimately increase the level of conflict between the parties. Nicholas and Aubree are still very young and in their formative years, and it is imperative for their overall development that their exposure to parental conflict be minimized.

[67] I have considered the evidence respecting the parents’ interactions with the children and the attachment that exists between them and the children. This evidence included photographs and video clips which the Applicant submitted as Exhibits at trial. I find that both parents love Nicholas and Aubree very much, interact well with the children, are nurturing towards them, and are able to meet the children’s emotional needs. They both engage the children in stimulating activities, and the Applicant has done an excellent job of teaching the children the Ukrainian language. Both parties have fostered relationships between the children and extended family members. These are factors which I have considered in deciding to keep the children’s primary residence with the mother, but to gradually expand the father’s access to move towards full alternate weekend visits.

[68] Finally, I have considered the plans which each parent has presented for the children. I am satisfied that the Respondent has a stable home with suitable living accommodations for the children. She has the support of her mother and stepfather. She is working on her education and is currently supporting the children through Ontario Works benefits. She has a sound plan for the care of Aubree and Nicholas. The father also has an appropriate home and bedrooms for the children, and the support of his mother and sister. I have concerns, however, regarding his sister, Ms. Izyuk, given the Respondent’s uncontroverted evidence that Ms. Izyuk has only supervised access to her son due to concerns that she intended to abduct the child. Given this evidence, I consider it necessary in the best interests of the children to include a term in the order that she not be left alone with either child at any time.

Part V: Child Support Issues

I. Positions of the Parties

[69] As already noted in these Reasons, the temporary order dated November 12, 2013 requires the Applicant to pay child support to the Respondent in the amount of $300.00 per month commencing November 1, 2013, based on an estimated annual income for the Applicant of $19,600.00. The Applicant spent a significant amount of time during his testimony discussing the contributions which he stated he made to the support of the Respondent, Nicholas and Aubree prior to the fall of 2013. He provided many receipts which he alleged related to purchases which he had made on their behalf. The Respondent argued that many of those purchases were not for her or the children. She acknowledged that the Applicant purchased some items for her and the children prior to the commencement of this Application in September 2013, but stated that those voluntary contributions fell far short of what his legal child support obligation would have been. In any event, the Respondent does not seek support for the period prior to December 2013. She seeks an order commencing December 1, 2013 requiring the Applicant to pay the Table amount of child support under the Guidelines based on the Applicant’s actual income. Her position is that the Applicant’s true income is approximately $29,300.00, and she seeks the Table amount of $428.00 per month based on that income. Counsel for the Respondent derived this figure from the Applicant’s income from Sheprott, the WSIB benefits which he received, which must be grossed up to take into account their non-taxable status, and rental income which the Applicant received from his sister in the amount of $400.00 per month.

[70] The Applicant stated that he is willing to pay what he can for child support if the court grants the Respondent primary residence of the children. However, he argued that his actual annual income is less than $10,000.00, and that he is therefore under no legal obligation to pay child support.

[71] For the reasons that follow, I find that the Applicant’s 2013 income was approximately $31,384.00, and that his 2014 income was approximately $31,102.00. I find that the Applicant’s income in 2015 is within the same general range as his 2014 income. Based on these findings, I have ordered the Applicant to pay child support in the amount of $458.00 for the month of December, 2013, and in the amount of $454.00 per month commencing January 1, 2014.

II. The Law

A. Relevant Statutory Provisions and General Principles Regarding Child Support

[72] The applicable legislation with respect to child support in this case is the Family Law Act (R.S.O. 1990, c. F.3, as amended)(the “FLA”). Section 33 of the FLA provides that a court may, on application, order a person to provide support for his or her dependants and determine the amount of support. “Dependant” is defined in section 29 of the FLA as a person to whom another has an obligation to provide support under the Act. Section 31 of the FLA establishes the obligation of a parent to support a child, as follows:

31. (1) Every parent has an obligation to provide support for his or her unmarried child who is a minor or is enrolled in a full time program of education, to the extent that the parent is capable of doing so.

(2) The obligation under subsection (1) does not extend to a child who is sixteen years of age or older and has withdrawn from parental control.

[73] The purposes of an order for child support as set out in section 33(7) of the FLA are to recognize that each parent has an obligation to support the child, and to apportion the obligation according to the Guidelines. Section 1 of the Guidelines elaborates on the purpose of an order for child support as follows:

Objectives

1. The objectives of this Regulation are,

(a) to establish a fair standard of support for children that ensures that they benefit from the financial means of their parents and, in the case of divorce, from the financial means of both spouses after separation;

(b) to reduce conflict and tension between parents or spouses by making the calculation of child support more objective;

(c) to improve the efficiency of the legal process by giving courts, and parents and spouses, guidance in setting the levels of child support and encouraging settlement; and

(d) to ensure consistent treatment of parents or spouses and their children who are in similar circumstances. O. Reg. 391/97, s. 1; O. Reg. 25/10, s. 1.

[74] The case-law has described the object of the child support provisions set out in the FLA and the Guidelines as being to ensure as reasonably as possible that children are not disadvantaged by the separation of their parents, by providing fair and predictable standards of support, facilitating the calculation of support, and rendering the legal process for addressing child support issues more efficient (D.B.S. v. S.R.G.; L.J.W. v. T.A.R; Henry v. Henry; Hiemstra v. Hiemstra, 2006 SCC 37, [2006] S.C.J. No. 37 (S.C.C.) (“D.B.S.”); Ethier v. Skrudland, 2011 SKCA 17 (C.A.); Geran v. Geran, 2011 SKCA 55, 2011 CarswellSask 33397 (C.A.)).

[75] Section 33(11) of the FLA reiterates that a court making an order for child support shall do so in accordance with the Guidelines. There are two exceptions to this rule set out in section 33 of the FLA. First, section 33(12), allows for a deviation from the Guidelines where special provisions in an order or written agreement are in place which directly or indirectly benefit the child, or special provisions have otherwise been made for the benefit of the child, and the application of the Guidelines would result in an amount of child support that is inequitable given those special provisions. The second exception is outlined in section 33(14), in relation to consent orders, where the court is satisfied that the terms of the consent order set out reasonable arrangements for the support of the child.

[76] The starting point for the determination of the amount of child support under the Guidelines is section 3, which establishes the following presumptive rules respecting the amount of child support, depending on whether the child in question is under or over the age of majority:

Presumptive rule

3. (1) Unless otherwise provided under these guidelines, the amount of an order for the support of a child for children under the age of majority is,

(a) the amount set out in the applicable table, according to the number of children under the age of majority to whom the order relates and the income of the parent or spouse against whom the order is sought; and

(b) the amount, if any, determined under section 7.

Child the age of majority or over

(2) Unless otherwise provided under these guidelines, where a child to whom an order for the support of a child relates is the age of majority or over, the amount of an order for the support of a child is,

(a) the amount determined by applying these guidelines as if the child were under the age of majority; or

(b) if the court considers that approach to be inappropriate, the amount that it considers appropriate, having regard to the condition, means, needs and other circumstances of the child and the financial ability of each parent or spouse to contribute to the support of the child.

[77] Section 3(1) refers to section 7, which deals with special and extraordinary expenses as follows:

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:

(a) child care expenses incurred as a result of the custodial parent’s employment, illness, disability or education or training for employment;

(b) that portion of the medical and dental insurance premiums attributable to the child;

(c) health-related expenses that exceed insurance reimbursement by at least $100 annually, including orthodontic treatment, professional counselling provided by a psychologist, social worker, psychiatrist or any other person, physiotherapy, occupational therapy, speech therapy, prescription drugs, hearing aids, glasses and contact lenses;

(d) extraordinary expenses for primary or secondary school education or for any other educational programs that meet the child’s particular needs;

(e) expenses for post-secondary education; and

(f) extraordinary expenses for extracurricular activities.

[78] Section 7(2) of the Guidelines provides that the guiding principle in determining the amount of an expense set out in section 7(1) is that it is shared by the parents in proportion to their respective incomes after deducting from the expense the contribution, if any, from the child. In determining the amount of an expense referred to in section 7(1), the court must also pursuant to section 7(3) take into account any subsidies, benefits or income tax deductions or credits relating to the expense, and any eligibility to claim a subsidy, benefit or income tax deduction or credit. This principle is subject to section 7(4), which provides that in determining the amount of an expense, the court shall not take into account any universal child care benefit or any eligibility to claim that benefit.

B. Income Determination

1. General Principles

[79] Sections 15 to 20 of the Guidelines are the starting point for the calculation of a party’s income for child support purposes. Section 15(1) provides that subject to section 15(2), a party’s annual income is determined by the court in accordance with sections 16 to 20 of the Guidelines. Section 15(2) stipulates that where both parties agree in writing on the annual income of a party, the court may consider that amount to be the party’s income for the purposes of the Guidelines if it thinks that the amount is reasonable.

[80] Section 16 of the Guidelines provides that subject to sections 17 to 20, a party’s annual income is determined using the sources of income set out under the heading “total income” (line 150) in the T1 General Form issued by the Canada Revenue Agency, and by then making the adjustments provided for in Schedule III to the Guidelines. Federal Child Tax Benefits and GST/HST Tax Credits for children are not included in the calculation of income for the purposes of child support (Guidelines, Schedule I, para. 6). In addition, in calculating income for the purposes of determining the Table amount of child support, it is necessary to deduct any universal child care benefit amount that is included to determine the payor parent or spouse’s total income in their T1 General Income Tax form (Guidelines, Schedule III, section 3(b)). However, in calculating income for the purposes of determining an amount under section 7, it is necessary to include the amount of any universal child care benefits that are not included in determining the party’s income and that are for a child for whom section 7 expenses are requested. Any such amounts that relate to a child for whom s. 7 expenses are not being requested must be deducted from income (Guidelines, Schedule III, section 3.1).

[81] Section 16 of the Guidelines does not require the court to use the previous year’s total income as reported by the party in the T1 General Form for the previous year as a basis for determining ongoing child support. Rather, the goal is generally to ascertain current income based on the sources set out in the T1 form (Coghill v. Coghill, 2006 21778 (ON SC), [2006] O.J. No. 1489 (S.C.J.)). By virtue of section 2(3) of the Guidelines, the court is required to determine issues relating to income based on the most current information available. Where a party’s prior year’s income is not predictive of what they are likely to earn in the upcoming year, the court generally determines the party’s Guidelines income for the upcoming twelve months from when child support will be paid (Nelson v. Nelson, 2005 CarswellNS 18 (N.S.S.C.); Kimla v. Golds, 2005 CarswellOnt 1000 (S.C.J.); Bonthron v. Bonthron, 2004 CarswellOnt 96 (S.C.J.); Lemmon v. Lemmon, 2004 CarswellOnt 771 (S.C.J.), additional reasons at 2004 CarswellOnt 1541 (S.C.J.)). The exception to this principle is where there is an agreement or order in effect that stipulates that income for the purposes of prospective child support should be based on the annual income for the previous year.

2. Imputation of Income

[82] The Applicant has received rental income from his sister since at least January 2013. He claimed significant expenses against this income in his 2013 Income Tax Return, resulting in a net rental income loss of $4,253.00. The Respondent argues that these expenses are unreasonable and that the amount of the expenses should be imputed back into the Applicant’s income for child support purposes.

[83] Section 19 of the Guidelines authorizes the court to impute income to a party if the court considers it appropriate to do so based on the particular circumstances of the case. Of particular relevance to this case are sections 19(1)(g) and 19(2), which provides as follows:

Imputing income

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,

(g) the parent or spouse unreasonably deducts expenses from income

Reasonableness of expenses

(2) For the purpose of clause (1) (g), the reasonableness of an expense deduction is not solely governed by whether the deduction is permitted under the Income Tax Act (Canada). O. Reg. 391/97, s. 19 (2).

[84] The onus is on the party requesting the court to impute income to establish the grounds for this request (Homsi v. Zaya, 2009 ONCA 322, 2009 CarswellOnt 2068 (C.A.), additional reasons 2009 Carswell Ont 3112 (C.A.); Drygala v. Pauli, 2002 41868 (ON CA), 2002 CarswellOnt 3228 (C.A.), additional reasons 2003 48241 (ON CA), 2003 CarswellOnt17 (C.A.)). However, this principle pre-supposes that the person against whom it is sought to impute income has satisfied their obligation to provide full financial disclosure respecting their income. A payor parent has a duty to provide full and frank disclosure of all information required to properly assess their income. Furthermore, where it is alleged that income should be imputed to them, the payor parent cannot simply make bald assertions regarding their financial circumstances and hope that the recipient parent will not uncover evidence to support an imputation of income argument. Rather, the payor has a positive obligation to produce evidence within their possession, power or control that is relevant to the imputation of income issue.

[85] It follows from the foregoing general comments that a party who claims that business expenses are being unreasonably deducted from income has the burden of proving that the expenses are unreasonable (Szitas v. Szitas, 2012 ONSC 1548, 2012 CarswellOnt 3501 (S.C.J.); Desormeaux v. Beauchamp, 2009 CarswellOnt 747 (S.C.J.); Bekkers v.Bekkers, 2008 CarswellOnt 173 (S.C.J.); Joy v. Mullins, 2010 CarswellOnt 7477 (S.C.J.)). However, the parent who seeks to deduct business expenses from their income for child support purposes has an obligation to explain the reasons for the expenses and how they were calculated, and must provide documentary proof of significant expenses in an organized manner so that the court can make a proper determination as to the reasonableness of the expense from the standpoint of the child support calculation (Szitas, ibid; MacGillivray v. Ross, 2008 CarswellNS 631 (S.C.); R.(P.C.J.) v. R. (D.C.), 2003 CarswellBC 788 (C.A.); Manchester v. Zajac, 2011 CarswellOnt 13546 (S.C.J.); Joy v. Mullins, supra.; Williams v. Williams, 2011 CarswellOnt 6588 (S.C.J.); Wilson v. Wilson, 2011 ONCJ 103, 2011 CarswellOnt 1630 (O.C.J.).; Meade v. Meade, 2002 2806 (ON SC), 2002 CarswellOnt 2670 (S.C.J.); Wilcox v. Snow, 1999 NSCA 163 (C.A)). If the party seeking to deduct business expenses from income fails to provide meaningful supporting documentation or other evidence in respect of those deductions, an adverse inference may be drawn by the court in making the income determination (Orser v. Grant, 2000 CarswellOnt 1354 (S.C.J.)).

[86] In order to impute claimed business expenses back into a parent’s income pursuant to section 19(1)(g) of the Guidelines, it is not necessary to establish that the party who has claimed the deductions has acted improperly or outside the norm for claiming expenses in the income tax context. Rather, the issue is whether the full deduction of the expense results in a fair representation of the actual disposable income that is available to the party for personal expenses (Hauger v. Hauger, 2000 CarswellAlta 958 (Q.B.); Williams, supra.). In determining whether business expenses claimed by a party are unreasonable, the court must balance the business necessity of the expense against the alternative of using those monies for the purposes of child support (Osmar v. Osmar, 2000 22530 (ON SC), 2000 CarswellOnt 1928 (S.C.J.)). In carrying out this analysis, the court must keep in mind that principle which the Supreme Court of Canada established in D.B.S., supra., that payor parents should not be permitted to manipulate their financial affairs so as to prefer their own interests over those of their children.

[87] As I noted in the case of Szitas, supra., a review of the case-law respecting business deduction claims reveals a general theme that in determining whether expenses should be added back into a parent’s income for child support purposes, an important consideration is whether there is a benefit derived from the business expenses that employed people would have to cover from their personal income (see Szitas, supra.; Sobiegraj v. Sobiegraj, 2014 ONSC 2030 (S.C.J.); Durakovic v. Durakovic, 2008 CarswellOnt 5329 (S.C.J.); Wawin v. Wawin, 2008 CarswellNS 589 (S.C.); Kardash v. Kardash, 2008 CarswellSask 582 (Q.B.); Lemmon, supra.; R.(P.C.J.) v. R. (D.C.), supra.; Manchester, supra.; Cook v. Cook, 2011 CarswellOnt 10276 (S.C.J.); Osmar, supra. In Wilson, supra., the court added the amount claimed for work-space-in-the-home expenses back into the party’s income, since the party did not adduce any evidence showing that he needed a larger home to carry out his work as a commissioned salesman. The court concluded that the party would have likely incurred these same household expenses even if he did not require a home office.

III. Analysis

[88] The custody and access order which I am making grants the Respondent primary residence of the children. Accordingly, the Respondent is entitled to the Table amount of child support for two children. As previously noted, the Respondent seeks an adjustment to the child support payable by the Applicant effective December 1, 2013, based on the Applicant’s actual income since 2013. I make the findings set out below respecting the Applicant’s income since January 2012.

2012

[89] The Applicant worked on a full time basis as a Security Patrol Supervisor at Sheprott in 2012. His 2012 Income Tax Return indicates that he earned a total income of $31,214.00 that year.

2013

[90] The Applicant continued to work at Sheprott in 2013. However, as already noted, he suffered an injury to his ankle while on the job in February 2013. He continued to work at Sheprott until approximately mid-April 2013 doing modified duties. As noted above, those duties were mainly administrative in nature. The Applicant continued to receive his full pay from Sheprott until he stopped working in approximately mid- April 2013, and he has been collecting WSIB benefits since that time.

[91] The Applicant’s 2013 Income Tax Return shows that the Applicant received total WSIB benefits of $14,076.36 in 2013. This income must be grossed up taking into consideration the Applicant’s marginal tax rate to account for the fact that it is non-taxable in the Applicant’s hands. The Applicant also earned income of $400.00 per month from his sister, who rented space in his home, for a total rental income of $4,800.00 in 2013. However, as discussed in further depth below, he claimed expenses against this rental income totalling $9,053.53, resulting in a claim for a net rental income loss of $4.253.50. As already noted earlier in these Reasons, the Applicant’s 2013 Income Tax Return did not include his income from Sheprott for the period from January until mid-April, 2013. Accordingly, the total income noted on his 2013 Income Tax Return was $9,822.86.

[92] The Applicant was uncertain about how much he earned from Sheprott from January until mid-April 2013. I find that his weekly WSIB benefits were approximately $374.28, and based on his total WSIB earnings as noted on his Income Tax Return, I conclude that he received WSIB benefits for approximately 38 weeks in 2013. Accordingly, he worked at Sheprott for approximately 14 weeks. Using his total 2012 income from Sheprott as a guide, I find that his total weekly income from Sheprott was in the range of approximately $600.00. Accordingly, I conclude that his total income from Sheprott in 2013 was approximately $8,400.00 ($600.00 X 14 weeks= $8,400.00).

[93] Turning to the Applicant’s 2013 rental income, it is necessary to determine whether the expenses of $9,053.50 which he claimed against his total rental income of $4,800.00 should be imputed back into his income. The expenses which the Applicant claimed represented 50% of total house insurance expenses, interest on the mortgage, legal accounting and professional fees, maintenance and repairs, property taxes and utilities. As noted earlier in these Reasons, on November 21, 2014, I ordered the Applicant to produce documentary evidence to support all of these expenses. He failed to do so. He did not provide any reasonable explanation for his failure to comply with my disclosure order, other than to state that the he paid cash for the repairs and maintenance expenses and therefore did not have receipts. His failure to provide documentary evidence to support the expenses leads me to conclude that it is appropriate to add the total amount of these expenses back into his total income.

[94] Quite apart from his noncompliance with the disclosure order, however, I am satisfied that the rental expenses which he claimed are unreasonable. The Applicant testified that his sister has a bed in the attic, but that this room also serves as a playroom and storage area for the children. The tiny area of the attic which the Applicant’s sister occupies falls far short of 50% of the entire residence. Furthermore, the Applicant would have incurred the expenses in relation to this small area of the home regardless of the rental arrangement, since the room is also used for his children. With respect specifically to the claim for maintenance and repair expenses, the Applicant claimed $3,776.00 as against the rental income. He testified that this sum represents 50% of expenses which he incurred to cut trees on the property and to fix piping in the basement of the home. However, he stated that he paid cash for these jobs and that he could therefore not provide any proof of the expenses. Assuming that he in fact incurred these expenses, it is problematic that he claimed them to reduce his total income for tax purposes. Put simply, the Applicant is attempting to have his cake and eat it too: he wishes to obtain the benefit of a reduced fee for paying cash for home improvements so that the recipient of the fees can avoid paying tax, yet he also wants to realy on these expenses to reduce his own income. This court cannot condone these types of financial machinations. In any event, as already noted in these Reasons, I have serious concerns regarding the validity of these alleged home maintenance and repair expenses given that the Applicant did not include them in his Financial Statement sworn September 6, 2013.

[95] Based on the foregoing, and including the gross up on the Applicant’s 2013 WSIB benefits, I conclude that the Applicant’s total 2013 income was approximately $31,384.00. The Table amount of child support for two children based on this income is $458.00 per month. An order shall issue requiring the Applicant to pay this amount for the month of December 2013.

2014 and 2015

[96] The Applicant continued to receive WSIB benefits of approximately $421.65 per week in 2014. His annual income from WSIB benefits was therefore approximately $21,925.80. He also received rental income from his sister. I have already reviewed the inconsistencies in his evidence respecting this rental income. At trial, he stated that his sister only paid him rent until August 2014. I do not accept this evidence, given that his sister continues to live with him and he declared rental income in his Financial Statement sworn December 16, 2014. Although he only declared rental income of $300.00 per month in that Financial Statement, the numerous inconsistencies in his evidence on this and other financial matters cast a very dark cloud over the credibility of that evidence. Based on all of the evidence, filtered through my general assessment of the Applicant’s credibility, I find that the Applicant continued to receive rental income of $400.00 per month from his sister in 2014, for total rental income of $4,800.00.

[97] The Applicant did not produce any documentary evidence in support of expenses which he intends to claim as against his 2014 rental income. He testified that he paid approximately $7,000.00 to $8,000.00 to construct a shack in the backyard of his home, and that he may be able to find receipts for the supplies that he used. He provided no explanation whatsoever as to why he had not tried to locate those receipts so as to comply with my November 21, 2014 disclosure order. Furthermore, I am not satisfied that the construction of this shed was in any way connected with the Applicant’s ability to earn rental income from his sister. There is no evidence that the rental arrangement included the right to have storage space, or that his sister used this shed for any purpose. Accordingly, I conclude that it would be unreasonable for the Applicant to claim any portion of this alleged expense as against total rental income for 2014. For these reasons, I find that rental income of $4,800.00 should be included in the calculation of the Applicant’s total 2014 income.

[98] Based on the foregoing, and taking into account the gross up respecting WSIB benefits, I conclude that the Applicant’s total 2014 income was approximately $31,102.00. I find that the Applicant’s sources of income for 2015 have continued to be WSIB benefits and rental income in the same amount from his sister. Accordingly, ongoing child support should be based on the figure of $31,102.00. The Table amount of child support for two children based on this income is $454.00 per month. Accordingly, I am ordering that the Applicant pay the Respondent this amount commencing January 1, 2014.

[99] I recognize that the child support order which I am making will result in the Applicant owing the Respondent arrears of child support just short of $3,000.00. I have considered whether it is appropriate to order a monthly payment plan with respect to these arrears. I am not satisfied that such an order is appropriate in the circumstances of this case. Based on the Applicant’s Financial Statement sworn December 16, 2014, I find that the Applicant owns the home he lives in and has a net worth of at least $146,400.00. This does not include a significant debt which a friend, Jerry Kopr, owes him and which he neglected to mention in the Financial Statement. By contrast, the Respondent and the children live with the Respondent’s mother and stepfather, and the Respondent has a negative net worth of -$10,893.89. Having regard for the overall discrepancy in the parties’ financial circumstances, I conclude that the Applicant should be required to pay any arrears of child support arising as a result of this Judgment forthwith.

[100] The Respondent included a request in her Answer and Claim for contribution from the Applicant towards section 7 expenses relating to the children. There are no such expenses at this time. However, given the young ages of the children, it can reasonably be anticipated that there will be section 7 expenses in the foreseeable future. Accordingly, I am making an order requiring the parties to contribute to any section 7 expenses relating to the children on a proportionate-to-income basis.

Part VI: Terms of Order to Issue

[101] Based on the foregoing, a final order shall issue as follows:

a. The Respondent shall have sole custody of the children Nicholas Richard Henry Langley, born January 26, 2012 and Aubree Terri Lynn Langley, born August 9, 2013 (“the children”). This right shall include but not be limited to the right to make medical and other professional appointments for the children and to attend those appointments on her own.

b. The primary residence of the children shall be with the Respondent.

c. The Applicant shall have regular access to the children as follows:

i. Commencing the week of April 20, 2015, every Tuesday and Thursday from 3:00 p.m. until 7:00 p.m., and every Saturday from 10:00 a.m. until 6:00 p.m.

ii. Commencing the week of May 18, 2015, access shall be in accordance with the following rotating, two week schedule:

Week One:

From Tuesday at 3:00 p.m. overnight until Wednesday at 9:00 a.m. and on Thursday from 3:00 p.m. until 7:00 p.m.

Week Two:

On Thursday from 3:00 p.m. until 7:00 p.m. and a weekend visit from Saturday at 10:00 a.m. until Sunday at 6:00 p.m.

iii. Commencing the week of June 15, 2015, access shall be in accordance with the following rotating, two week schedule:

Week One:

From Tuesday at 3:00 p.m. until Wednesday at 9:00 a.m. and on Thursday from 3:00 p.m. until 7:00 p.m.

Week Two:

From Tuesday at 3:00 p.m. until Wednesday at 9:00 a.m., and from Friday at 5:00 p.m. until Sunday at 7:00 p.m.

d. The access terms of this order shall be subject to the holiday time-sharing provisions set out in the final Order dated November 17, 2014.

e. The Applicant’s access shall also be subject to the condition that any contact between the children and Applicant’s sister, Lyubov Izyuk, shall be supervised by another responsible adult.

f. All access exchanges shall occur at the Terryberry Public Library in Hamilton, unless otherwise agreed upon in advance in writing by both parties.

g. Commencing December 1, 2013, the Applicant shall pay the Respondent child support for the children in the amount of $458.00 per month based on his estimated 2013 income of $31,384.00.

h. Commencing January 1, 2014 and continuing on the first day of each month that follows, the Applicant shall pay the Respondent child support for the children in the amount of $454.00 per month, based on his estimated annual income of $31,102.00.

i. Arrears of child support owed by the Applicant to the Respondent shall be recalculated based on the terms of this order. In calculating these arrears, the Applicant shall be credited any amounts of child support that have been enforced against him pursuant to the temporary order of Brown, J. dated November 12, 2013. The arrears shall be payable to the Respondent forthwith.

j. Commencing May 1, 2015, the Applicant and the Respondent shall contribute to the children’s section 7 expenses in proportion to their respective incomes.

k. A party requesting contribution towards any section 7 expense shall provide the other party with a written request for contribution and documentary proof of the total expense being claimed within 30 days of the expense being incurred, or in the event that they have not yet incurred their share, within thirty days of deciding that the expense should be incurred. The other party shall then pay the requesting party their share of the expense within fourteen days of receiving said proof.

l. In the event that a party disputes a request by the other party for contribution towards a section 7 expense, the party disputing the request for contribution shall bring a motion no later than 60 days after the request has been made, on at least 7 days’ notice to the other party, for an order of the court to resolve the dispute. If the party disputing the request fails to bring this motion, they shall be deemed to have accepted the claim for contribution and the claim may be enforced by the Family Responsibility Office.

m. In the event that a section 7 expense ends for any reason, the party who requested contribution for the expense shall advise the other party forthwith of this fact and shall take all necessary steps to ensure that enforcement of the expense ceases at the appropriate time.

n. For so long as child support is paid, the Applicant and the Respondent shall provide updated income disclosure to each other each year in writing within 30 days of the anniversary of this Order, in accordance with section 24.1 of the Child Support Guidelines (Ontario), and again by June 1st each year. The income disclosure required by June 1st each year shall consist of the documentary financial disclosure set out in section 21 of the Child Support Guidelines (Ontario).

o. The Applicant shall advise the Family Responsibility Office in writing of any change in his employment within seven days of securing new employment, and he shall also within this time frame provide that office with all of the details regarding his new employment which the office requires for the purposes of enforcing the child support terms of this order.

p. The Table amount of child support shall be adjusted upward forthwith in the event of any increase in the Applicant’s income. If it becomes apparent when annual income disclosure is made by June 1st each year that the Applicant’s income increased during the previous calendar year and/or during the current calendar year, and that the Applicant accordingly underpaid the Table amount of child support for the previous calendar year and/or the period from January 1st to June 1st of the current year, the Applicant shall pay the Respondent the full amount of the underpayment up to and including June 1st by June 30th of the current calendar year. Furthermore, the Applicant shall begin to pay the adjusted Table amount based on his most current estimated annual income on a monthly basis commencing July 1st of the current calendar year.

q. The Applicant shall designate and maintain the children as beneficiaries under any dental, medical and extended health benefits plans available to him through his current or future employment. He shall within 30 days from the date of this order, or within 30 days of becoming eligible for coverage under any future benefits plans, provide the Respondent with a copy of the designation and proof that the designation has been filed with the appropriate benefits provider.

r. The Applicant shall execute any documentation required to authorize the Respondent to make claims on behalf of the children directly to his benefits provider. If the benefits provider does not allow the Respondent to deal directly with the provider, the Applicant shall forthwith endorse and forward to the Respondent any reimbursement cheques which he receives on account of claims which the Respondent has submitted on behalf of the children.

s. The Applicant shall irrevocably designate the children as beneficiaries, in equal shares, of any life insurance policies which he has or may later acquire through his employment, and shall name the Respondent as trustee of said policies on behalf of the children. With respect to life insurance policies in effect at the time of this order, he shall provide the Respondent with copies of the irrevocable designations and proof that they have been filed with the insurance provider within 30 days from the date of this order. With respect to policies acquired after the date of this order, he shall provide the Respondent with copies of the designations and proof that they have been filed with the insurance provider within thirty days from the date when the Applicant acquires the policies.

t. Unless the support order herein is withdrawn from the Office of the Director, Family Responsibility 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.

u. A Support Deduction Order shall issue.

v. This order bears post-judgment interest at the rate of 3% 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.

w. If either party wishes to pursue a claim for costs in connection with this matter, they shall serve and file written submissions, relevant case-law, a detailed Bill of Costs and copies of any Offers to Settle by May 8, 2015. Any responding submissions shall be served and filed by May 15, 2015. Reply submissions shall be served and filed by May 20, 2015. There shall be no extensions to these deadlines. If a party does not submit submissions respecting costs in accordance with these deadlines, there shall be no costs payable to that party.

The Honourable Madam Justice Deborah L. Chappel

Released: April 22, 2015