CITATION: Lamb v. Copeland, 2015 ONSC 3547

BARRIE COURT FILE NO.: FC-13-362-00

DATE: 2015-06-15

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Duane Eric Lamb

Applicant

– and –

Tanya Copeland

Respondent

COUNSEL:

J. David Harris-Lowe, for the Applicant

Donna Macfarlane, for the Respondent

HEARD: May 19, 20, 21, 22, 25, 2015

REASONS FOR DECISION

BENNETT J.:

Overview

[1] The parties are the parents of Carter Duane Copeland-Lamb who is three years of age. The Respondent has another child, Sydney Copeland currently five and a half years of age.

[2] The parties had a brief dating relationship which had terminated prior to or at about the time the Respondent learned that she was pregnant.

[3] The parties attempted to reconcile their relationship and the Respondent and Sydney moved into a home/farm owned by the Applicant shortly before Carter’s birth. The parties agree that they separated within the home nine months later but continued to reside under the same roof for a further four months.

[4] The Respondent left with the children and moved to a woman’s shelter. The Applicant was advised of the same within a few hours of her having done so.

[5] Applications were commenced by each of the parties and it was agreed that the Applicant’s application would continue. An urgent motion was brought by the Applicant three weeks after the Respondent moved from the residence. The parties attended mediation that day (in the absence of counsel). As a result, a temporary arrangement was then agreed upon. Carter has since been spending essentially equal amounts of time with each parent.

[6] There was a minor modification made on consent to allow the Respondent to have alternate weekend time with Carter and to provide that the Applicant would pay $100 per month for child support for Carter.

[7] The Applicant resides in Woodville and the Respondent resides in Midland. The commuting distance between their two residences is about 90 minutes.

[8] A five day trial was held between May 19, 2015 and May 25, 2015 which addressed the issues set out below.

Issues

[9] The main issues to be decided at trial were as follows:

(a) custody of Carter Duane Copeland-Lamb;

(b) residency of the said child;

(c) child support payable for the said child;

(d) life insurance to be in place as security for child support;

(e) whether or not the Applicant has an obligation to pay child support for Sydney and;

(f) there were some other issues raised which are set out in detail in the following paragraphs enumerating the orders sought by the Applicant and the Respondent.

Order Sought by Applicant

[10] The Applicant, in his opening statement indicated that he was seeking the following order:

(a) The parties will have joint custody of Carter Copeland-Lamb, born April 3, 2012.

(b) Carter’s primary residence shall be with the Applicant father.

(c) The shared parenting arrangement shall continue until September 2015.

(d) Thereafter, the Respondent mother will have access with Carter, to be coordinated with Sydney Copeland’s time with the Respondent mother, as follows:

(i) Alternate weekends from Friday at 5:00 p.m. until Sunday at 5:00 p.m., extended to a Thursday or Monday on long weekends.

(ii) Mid-week visits from 3:00 p.m. until 6:30 p.m.

(iii) Regular telephone calls or facetime calls with Carter.

(e) Carter will stay with the parties for holidays and special occasions on a shared basis and to coordinate with Sydney Copeland’s time spend with the Respondent as follows:

(i) The parties will share the school March Break holiday, when applicable, each year equally. The access exchange will occur Wednesday of March Break as arranged by the parties. If either party has a trip scheduled with Carter then he may be able to spend the entire March Break with one party as arranged.

(ii) Carter shall reside with the parties for Easter and Thanksgiving according to the normal residency schedule subject to the parties’ ability to arrange for a visit with the other parent on those weekends.

(iii) During the school summer vacation, or July and August of each year, Carter will reside with the parties on a week about basis.

(iv) With regard to Christmas, Carter will stay with the Respondent mother at least from December 24th at 4:00 p.m. until December 26th at 4:00 p.m. and then with the Applicant father until December 28th at 4:00 p.m. The opposite schedule will apply in odd numbered years. When Carter is in school, the parties will adjust the schedule such that he spends equal time with his parents over the Christmas school vacation.

(f) The parties will equally share in the transportation arrangements with respect to Carter.

(g) The Respondent will not consume alcohol to the point of intoxication while in a caregiving capacity for Carter nor will she expose Carter to any second hand smoke.

(h) Neither party may be allowed to remove Carter from the Province of Ontario without the other party’s prior written consent, which will not be unreasonably withheld.

(i) The parties shall keep each other apprised as to their addresses, telephone numbers and other contact information.

(j) The Respondent mother shall be entitled to have direct contact with Carter’s physicians, teachers, day care providers.

(k) The parties shall exchange their income tax returns and notices of assessment each year by June 1st along with proof of any section 7 Guideline expenses.

(l) The Respondent will pay the Applicant child support in the amount of $333.00 per month commencing October 1st, 2015 and on the first of each month thereafter. This is in accordance with the Child Support Guidelines based upon the Respondent’s 2014 annual income of $37,736.00 for the support of one child.

(m) The Respondent will pay 43% of the s. 7 of the Child Support Guideline expenses in relation to Carter. Presently this includes only his daycare expenses payable to Emily Reitvelt from which the Applicant’s tax deductions will be taken into consideration.

(n) The Respondent shall maintain all dental, health and medical coverage available to her through her employment for the benefit of Carter so long as he is entitled to be supported by the Respondent.

(o) The Respondent shall maintain a policy of insurance on her own life with a face amount of not less than $150,000.00, or to half of the extent made available by her employer, and to designate the Applicant as irrevocable beneficiary in trust for Carter.

(p) Costs of this Application in an amount to be determined.

Order Sought by Respondent

[11] The Respondent in her opening statement indicated that she was seeking the following Order:

1. An Order that Tanya Copeland shall have custody of the child, Carter Duane Copeland, born April 3, 2012.

2. An Order that the Applicant shall maintain all dental, health and medical coverage available to him through his employment for the benefit of Carter so long as he is entitled to be supported by the Applicant.

3. An Order requiring the Applicant to maintain a policy of insurance on his own life with a face amount of not less than $150,000 and to designate the Respondent as irrevocable beneficiary, in trust, for Carter.

4. An Order that the Applicant shall have specified access to the child, consisting of one week per month until Carter commences school, and thereafter, during the school year, alternate weekends with a mid-week visit. Holiday access to be arranged to coincide with the access schedule of Sydney Copeland.

5. An Order that the Applicant shall pay to Tanya Copeland, child support in accordance with the Child Support Guidelines based on his income from all sources, for two children.

6. An Order that the Applicant shall pay to Tanya Copeland special and extraordinary expenses of the child.

7. Such further and other Order as this honourable court deems just.

8. Costs on a substantial indemnity basis payable by the Applicant to Tanya Copeland.

Facts Agreed to by the Parties

[12] The parties submitted an Agreed Statement of Facts at the outset of trial. A copy of that Agreed Statement of Facts is attached to this decision.

[13] The following represents a summary of those facts as they relate to the issues that were before the court:

[14] The Applicant is 40 years of age and the Respondent is 42 years of age.

[15] They began an on-again/off-again relationship in approximately May 2011. Although the Agreed Statement of Facts indicates that they had already terminated that relationship when the Respondent learned that she was pregnant, the evidence of the Respondent was that they were aware that she was approximately one month pregnant when they terminated the relationship. I do not believe anything turns on that discrepancy.

[16] After terminating the relationship they attempted to reconcile and the Respondent and her then two and a half year old daughter moved into the Applicant’s residence in February 2012. They had not previously cohabited.

[17] Carter was born April 3, 2012. The Respondent had some physical problems immediately following the birth and was hospitalized for a short period of time following Carter’s birth.

[18] The Respondent suffered from post-partum depression.

[19] The parties agree that a separation occurred in November, 2012. The Respondent and the children remained living in the Applicant’s house until she made a unilateral decision to leave the house with the children on March 5, 2013.

[20] The Respondent and the children moved from the Applicant’s house to a woman’s shelter in Midland. Although the Agreed Statement of Facts indicates that she stayed there until March 29, 2013, her evidence is that she stayed there for “a month and a half.” I do not believe that anything turns on the actual amount of time that she spent in the shelter.

[21] The Applicant was advised within hours of her departure that the Respondent and children were safe. There was a supervised access visit arranged wherein he saw Carter for a few hours prior to the urgent motion.

[22] Carter had some health issues, including Macrocephaly relating to a relatively larger head size and Plagiocephaly which is sometimes referred to as “Flat Head Syndrome.”

[23] Carter was seen by the following healthcare professionals:

(a) Jocelyn O’Leary being a nurse practitioner who saw him on two occasions.

(b) Doctors Reinhard Loiskandl and Barb Loiskandl (the Respondent’s long time family physicians).

(c) Dr. Colpitts, a specialist to whom Dr. Loiskandl referred Carter for his Plagiocephaly (Flat Head Syndrome).

(i) Dr. Colpitts first saw Carter at eight months of age and encouraged “tummy time.” Conservative management was recommended regarding the Plagiocephaly. She did not recommend a referral to a helmet clinic at that time and planned to see Carter in follow-up in two months’ time.

(ii) Dr. Colpitts next saw Carter when he was nine and a half months old. At that time she provided reassurance to the parties regarding the Macrocephaly. The issue of his gross motor delays were discussed and it was agreed by the parties to hold off on a physiotherapy referral which the doctor felt was reasonable. Dr. Colpitts provided reassurance regarding the Plagiocephaly and based on the parties wishing to pursue treatment with a helmet, a referral was made to the Hospital for Sick Children (“SickKids”).

(iii) Dr. Colpitts next saw Carter at 13 months of age. At that time she provided further reassurance regarding the Macrocephaly. She noted some improvement regarding the Plagiocephaly. By that time, the parties had engaged a physiotherapist to work with Carter regarding mild gross motor delay and Dr. Colpitts encouraged the family to continue that as long as recommended by the physiotherapist. However, she noted that Carter seemed to be meeting his expected milestones.

(d) Trevor Da Silva. He was a technician at the Hospital for Sick Children (SickKids) who fitted Carter for a helmet to treat his Plagiocephaly. Carter successfully completed this treatment and is no longer a patient at SickKids.

(e) David Howell. He is a physiotherapist who saw Carter for 10 sessions between April 18 and June 27, 2013 to provide physiotherapy to assist Carter with delayed gross motor milestones.

[24] The Applicant successfully completed a Triple P Parenting Program in April 2013.

[25] The Respondent and her daughter Sydney took part in the Healthy Babies, Healthy Children Program offered by Simcoe County Health Services Division.

[26] The Applicant is a self-employed general contractor and has been since 2003. His work focuses on home renovations including kitchens, bathrooms and basements. He has no employees working for him. In addition, he operates a hobby farm where he resides. It was agreed for the purposes of this trial, that the Applicant’s income be deemed to be $50,000 annually.

[27] The Respondent is employed by a company known as Elcan. Her employment income for 2014 was $37,736.

[28] On consent, the Office of the Children’s Lawyer (“OCL”) was requested to conduct an investigation. This was conducted by Maureen Carrell.

[29] The Applicant obtained a drug test on February 28, 2013, which confirmed that he had not used any illegal drugs during the previous three months.

[30] The Respondent smokes approximately one half pack of cigarettes per day. She does not smoke in her home and smokes in her car only if the children are not with her.

Carter

[31] Although Carter had some health issues in his infancy as set out above, all of the evidence at trial indicates that Carter is now a healthy child who his meeting all of his expected milestones. Carter is described by all witnesses as a happy child who is well-mannered and bright.

[32] I find that Carter has a close relationship with the Applicant. Ena Lamb, the Applicant’s mother, describes Carter as a “shadow” to his father.

[33] I also find that Carter has a close relationship with the Respondent. Christine Magnus, (Carter’s daycare provider while he is residing with the Respondent mother) testified as to how excited Carter is to see his mother when she returns to pick him up. She describes Carter as “funny, outgoing and inquisitive.”

Parenting Styles

[34] All of the evidence points to the fact that the Applicant is very structured in his parenting style. His testimony and that of others is that he sets a routine for Carter. An example is that Carter has a specific bed time. The evidence referred to the structure with respect to the morning routine of Carter and his father doing chores, with Carter participating to the extent that he can, given his age.

[35] All of the evidence would indicate that the Respondent’s parenting style is far less structured than that of the Applicant.

[36] All of the evidence given on behalf of the Applicant points to a loving and close relationship between he and Carter.

[37] All of the evidence given on behalf of the Respondent points to a loving and close relationship between she and Carter.

[38] While the parties’ parenting styles may be different, I find that Carter is a healthy happy child in both homes and that it is not necessarily the case that one parenting style is to be preferred over the other.

Sydney

[39] All of the evidence points to Sydney having a very close relationship with Carter. According to the evidence of the Respondent, in some cases Sydney is more like a mother to him than an older sister. The Respondent describes Sydney as “my mini me.”

[40] Christine Magnus, the Respondent’s daycare provider, testified as to how close Carter and Sydney are and confirmed their love for one another. She went on to testify about how Carter was upset when Sydney was not there and that he was upset when Sydney started school.

[41] Barbara Charlebois, the next-door neighbour of the Respondent who has known her for two and a half years described that Sydney had “an amazing relationship with Carter.”

[42] Based on all of the evidence, I find that Carter has a very close relationship with his sister.

Ena Lamb

[43] Ena Lamb is the mother of the Applicant and the paternal grandmother of Carter. Based on all of the evidence, she has been a support to the Applicant and Carter since the separation. As well, I find that she was a support to the family while it was intact.

[44] Her evidence, and that of the Applicant, is that currently she typically visits on weekends when Carter is with the Applicant. She testified not only as to the close relationship between the Applicant and Carter, but also the close relationship that she has with Carter.

[45] She also testified as to Sydney seeming to be “protective” of Carter. Ena testified that Sydney had an affection for her as well. While the parties were residing together, Ena would have seen Sydney regularly and testified that she cared for Sydney when the Respondent went to the hospital to give birth to Carter.

[46] Given that she is self-employed, Ena can make herself available when necessary to come and assist with the care of Carter during the week. This is only done on an “as necessary” basis.

[47] Ena resides near Shelburne which is approximately a 90 minute commute from the Applicant’s residence.

Bruce Lamb

[48] The Applicant testified that his father, Bruce Lamb, lives near his residence and visits regularly with him. Given the current residency schedule, the paternal grandfather sees Carter during the week as well and on the weekends that Carter is with the Applicant.

[49] The evidence is that Bruce Lamb suffers from MS and walks with a walker. There is no evidence that he is able to be a caregiver for Carter.

[50] Bruce Lamb did not give evidence at trial.

Circumstances Leading to the Separation

[51] A great deal of evidence was led with respect to this issue. I will be sub-categorizing the issues raised by the parties.

(a) Post-partum depression

(i) It is acknowledged by the Respondent that she suffered from post-partum depression. Her evidence was that she had suffered this following the birth of Sydney and therefore she, and her physician, felt it was likely that she would suffer it again.

(ii) She testified, however, that the post-partum depression that she suffered following the birth of Carter was far worse than it had been with Sydney.

(iii) The evidence discloses that this resulted in the Respondent sleeping a great deal and having difficulty coping with two children and housekeeping chores. Her evidence is that she “felt overwhelmed having the children 24/7.”

(iv) At one point the Respondent entertained thoughts of suicide.

(v) I find that each party dealt with this issue in an appropriate manner.

(vi) The Respondent, immediately upon having suicidal thoughts, sought medical help. Ena Lamb testified that she brought this issue to the Applicant’s attention based on a conversation with the Respondent. She testified that the Respondent was upset with her due to a perceived breach of confidentiality. The Respondent’s evidence is that she, on her own initiative, realized that she needed help and sought it out. I do not believe that anything turns on whether it was as a result of the Respondent speaking to Ena Lamb, or doing so on her own, but the evidence is that the Respondent was under treatment for this condition shortly after it came to light.

(vii) The Applicant, to his credit, sought assistance with childcare to help deal with the Respondent’s post-partum depression. The parties retained Sandra Southwell, a neighbour, to care for the children while the Applicant worked, thus providing a break for the Respondent.

(viii) Ena Lamb also assisted by attending regularly, typically on weekends, and assisting with housecleaning, meal preparation and child care.

(ix) The evidence is that currently the Respondent is not suffering from depression and there is no evidence before the court to indicate that her previous bouts with post-partum depression will in any way impact on her future care of Carter.

(b) “Safety” issues with respect to the Applicant’s residence

(i) There is evidence that following the separation, and shortly before the Respondent actually left the Applicant’s home, safety issues were brought to the attention of the Applicant and his counsel. The Respondent’s evidence is that she had raised these issues with the Applicant shortly after the time she moved in to his residence. Whether or not she did, does not in my view, impact on the issues in this case.

(ii) The concerns included: electrical outlets without covers; and stonework around a fireplace that could be a hazard for young children.

(iii) I find that the Applicant acted immediately to rectify these issues once his counsel was aware of the same.

(iv) In addition, there was a sewage backup on one occasion into the bathtub. I find that the Applicant acted immediately to rectify this situation.

(v) The evidence indicates that the Applicant has done some other renovations to his home since the separation including work in a bathroom.

(vi) I find that there are no issues with the state of the Applicant’s residence currently that would impact on the issues before me.

(c) Alleged abuse and “control issues” by the Applicant

(i) The Respondent’s evidence is that she felt the Applicant’s behaviour was becoming increasingly “emotionally abusive” and “controlling” prior to her departure from the Applicant’s residence.

(ii) She acknowledges that there was no name-calling and the parties both testified that there was not a lot of arguing prior to the separation. The Applicant’s evidence is that he is non-confrontational and if the Respondent wanted to engage in an argument, he would simply walk away.

(iii) The Respondent’s evidence was that the Applicant was controlling. She cites as examples that he insisted on going to all of her doctor appointments and being actively involved in the same.

(iv) As a further example of the Applicant’s “controlling nature,” she testified that he questioned her regarding two sets of tracks in the snow in the driveway and was unwilling, without a great deal of persuasion, to accept that she had gone out on two occasions and that the tracks did not mean that someone had been visiting her.

(v) The Respondent acknowledges that the Applicant was never physically abusive to her or to Carter or Sydney.

(vi) The only evidence of anything remotely related to “violent behaviour” was an incident involving the family dog. The Applicant’s evidence is the dog used to bolt for the door and he stuck his foot out to prevent that, with the dog then running into his foot. The Respondent’s evidence is that the Applicant, while wearing work boots, actually kicked the dog on that occasion.

(vii) Leading up to the Respondent’s departure from the Applicant’s home, there was correspondence from the Applicant’s lawyer to the Respondent and her then counsel. The Applicant’s lawyer was attempting to engage the Respondent and her then counsel in negotiations or mediation.

(viii) The Respondent’s evidence is that she perceived the actions of the Applicant and his counsel as “bullying.” What constitutes perception of “abuse” is a subjective rather than an on objective test. There are some instances which would be viewed by most people as clearly “abuse.” Based on the evidence before me, I do not find that the circumstances leading up to the separation and the Applicant’s actions at that time would fit into that category.

(ix) Having said that, taking into account the Respondent’s post-partum depression, the breakdown of the relationship, the correspondence from the Applicant’s lawyer and the conversation that he had directly with the Respondent, I accept the Respondent’s evidence that she felt “bullied.”

(x) Maureen Carrel testified that she did not believe that the Respondent raised allegations of abuse to manipulate her view of matters.

(xi) I find the Respondent’s evidence on this point quite believable and accept that she felt that she had “no way out.” Her evidence, that even her then lawyer was telling her that she should not take the children from the Applicant’s residence, no doubt contributed to this feeling by the Respondent as well.

(d) The Respondent’s departure from the Applicant’s residence

(i) There is no dispute between the parties, and it is common ground, that the Respondent left the Applicant’s residence with the children on March 5, 2013.

(ii) The Respondent’s version of the circumstances leading up to her departure are as follows. She testified that on that day she contacted the Children’s Aid Society (“CAS”) and reported that she was in a psychologically abusive relationship. Further, she testified that the CAS advised her that in such circumstances she should leave with the children. She testified that the CAS advised her that there was no room for her and the children at the Orillia women’s shelter. According to her evidence, they advised her that the next closest available shelter with room for them was in Midland.

(iii) The Respondent’s evidence is that it is mere coincidence that Midland happened to be the location where she grew up and her family was from. Her evidence on that point is that she, and her family, had always lived in the Midland, Port McNicoll Victoria Harbour area.

(iv) Shortly after the Respondent arrived at the woman’s shelter, she made contact with the Ontario Provincial Police through shelter staff and requested that they advise the Applicant that she and the children were safe. The Applicant acknowledges that later in the day on March 5, 2013, he was contacted by the Kawartha detachment of the Ontario Provincial Police and so advised.

(v) This court cannot and does not condone parties seeking self-help to gain a “leg up” in a court proceeding particularly involving the removal of children from their home.

(vi) I find that the following factors mitigate against concluding that the Respondent left the residence with the children for that purpose.

(1) She arranged for the police to telephone the Applicant within hours of her departure to advise him the children were safe.

(2) She had indicated previously, in text messages to the Applicant, sent before her departure that if he was not prepared to agree to a “50/50” arrangement with the children that he should hurry up and start court action. I find this text message (Exhibit 17) corroborative of her testimony about her increasing anxiety over the situation and her evidence that she felt “trapped.”

“I got your letter from the lawyer. Tell them to hurry the hell up and start the court proceedings. I’m sick of the threats. Just do it. UNTIL then, we split Carter 50/50 and that is NOT unreasonable according to my lawyer. That is fair to BOTH of us.”

(3) There is no corroborative evidence offered with respect to the claim by the Respondent that she contacted the CAS on the morning of March 5, 2013. Even without corroboration, I find that such action is consistent with the evidence presented by the Respondent that she was feeling overwhelmed at the time and felt that she “had to get out.” Any advice that the CAS would have given obviously would have been based on the information provided by the Respondent. I do not find that whether or not the Respondent made that call or the advice that she may have been given, impacts on the current issues before the court.

(4) Prior to the first court appearance, the Respondent had consented to the Applicant having a brief access visit with Carter, even though it was a supervised access visit. I accept her evidence on this point that the reason she wanted the access visit to be supervised was to ensure that the Applicant did not simply retain Carter. There was no evidence before me to suggest that the Applicant would have done so, but given the Respondent’s state of mind at that time and that she had engaged in “self-help,” it was reasonable for her to have that “fear.”

(5) At the first court appearance, which was approximately three weeks after her departure from the home, the Applicant and Respondent attended mediation at court and came to an agreement which essentially resulted in a 50/50 time sharing arrangement between them with Carter.

(6) The Applicant through counsel, during the trial, submitted that the Respondent’s willingness to participate in mediation “one on one” with the Applicant at the first court appearance is inconsistent with her evidence that she felt “psychologically abused” while in the Applicant’s residence.

(7) I do not find this to be the case and see no inconsistency in the Respondent’s behaviour by feeling overwhelmed while in the Applicant’s residence and as soon as she was out of the Applicant’s residence being willing to negotiate an arrangement that she had proposed while in his residence.

Legal Determination of Custody and Residence

[52] Custody and residence of child in these circumstances is governed by the Children’s Law Reform Act and specifically by section 24 thereof.

[53] That section provides as follows:

Merits of application for custody or access

24. (1) The merits of an application under this Part in respect of custody of or access to a child shall be determined on the basis of the best interests of the child, in accordance with subsections (2), (3) and (4). 2006, c. 1, s. 3 (1).

Best interests of child

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

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

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

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

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

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

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

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

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

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

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

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

Past conduct

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

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

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

Violence and abuse

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

(a) his or her spouse;

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

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

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

Same

(5) For the purposes of subsection (4), anything done in self-defence or to protect another person shall not be considered violence or abuse. 2006, c. 1, s. 3 (1).

[54] Clearly the prevailing factor to be taken into consideration is “the best interests of the child” to be determined in accordance with the subsections of section 24 of the Children’s Law Reform Act.

Subsection 24(4)

[55] I will address these subsections in reverse order, dealing firstly with subsection 4.

[56] Much time was spent addressing this issue, given that the Respondent alleged that she had been “psychologically abused” by the Applicant. Her testimony was that she feared in the latter stages, prior to her leaving the Applicant’s residence, that he would become physical. She testified that the kitchen window was broken and that the Applicant had told her that he had broken it just prior to separating from his previous common-law spouse. The Applicant denies this and denies having said that to the Respondent. He sought to introduce a letter from his former common-law spouse purportedly to corroborate his evidence that he was not “violent” in that previous relationship. I ruled that the introduction of this letter was inadmissible on the grounds of hearsay.

[57] I find that there was no evidence led, and in fact an acknowledgement by the Respondent, that the Applicant had never been physically violent towards her, Carter or Sydney. There is no evidence to suggest that there was any likelihood that the Applicant would have become physically violent towards the Respondent, Carter or Sydney.

[58] The Respondent alleged that the Applicant was psychologically abusive, particularly as she described him as being “controlling.” She testified that this behaviour was throughout the relationship but escalated towards the end and that in the time immediately prior to her departure from the Applicant’s residence she felt that she “had to get out.”

[59] The wording of subsection 4 does not preclude a court finding that psychological abuse rather than “violence” could be considered in making a finding pursuant to that subsection. Even if her testimony was accepted in its entirety on this point, I do not find that the “abuse” alleged by the Respondent was of such a magnitude that it should affect my decision based on subsection 24(4).

[60] I therefore, do not find this subsection to be a factor in the determination of the issues before me.

Subsection 24(3)

[61] The Applicant raises the issues of the Respondent’s past behaviour in support of his submissions with respect to custody and residence of Carter. In particular, he raises the following allegations of “past behaviour” by the Respondent.

(a) the Respondent’s drinking;

(b) the Respondent’s demeanour and care, or lack thereof, for the children while the parties were cohabiting;

(c) the Respondent’s actions in taking the children from the Applicant’s residence and moving to a woman’s shelter while he and his counsel were attempting to negotiate matters.

[62] He asks that I consider all of the above in his submission with respect to seeking primary residence of Carter.

Allegations of Respondent’s Drinking

[63] Regarding the issue of the Respondent’s alleged drinking, the Applicant cites the following:

(a) An incident when the parties were together and the Respondent was away at her girlfriend’s for the weekend. His evidence is that the Respondent called him the night before she was scheduled to come home under the influence of alcohol and asked that he come get her. He submits that since he had to wake Carter up to take him along to retrieve the Respondent, this should be taken into account with respect to the current issue of primary residence. I do not see this incident as having any impact on the decision before me as to where Carter should reside at this time. I take into account the fact that the incident occurred when the parties were together and at a time when the Respondent was suffering post-partum depression. Even if it resulted in inconvenience to the Applicant and having to wake Carter up to go to pick up the Respondent (both of which I accept), I do not find that this has any bearing on the decision as to the current situation.

(b) The Applicant cites another incident following the separation, when he was returning Carter to the Respondent’s current residence. He testified that she asked him to drive her to pick up her car, since she had been drinking at a friend’s home the previous night, and did not feel that she could drive home. This incident has even less impact on Carter, given that it simply resulted in him being in the car for a slightly longer period of time.

(c) In my view, both of these incidents demonstrate that when the Respondent does drink alcohol, she acts responsibly and does not drive while under the influence.

(d) There was no evidence before me that on any occasion the Respondent had been drinking to the point of intoxication while caring for the children without there being a responsible adult present to ensure that the children were properly supervised. I therefore find that even if the Respondent did, or even currently does, drink alcohol occasionally to excess, that this behaviour does not impact on the issue of custody or residence.

Allegations of Respondent’s childcare/housekeeping during cohabitation

[64] The parties lived under the same roof for 13 months, four of which were after they had decided to separate. There is an acknowledgement that (likely for all of that time), the Respondent was suffering post-partum depression. When asked, the witnesses for the Applicant indicated that they did not see any improvement in the Respondent’s behaviour between the time she sought help for post-partum depression and the time she left the Respondent’s residence.

[65] I find that any incidents of the Respondent’s sleeping excessively, not engaging in good housekeeping habits, being overwhelmed with childcare to the point where it was necessary to have a daycare provider retained even though the Respondent was then off work on maternity leave, can all be attributed to the condition that she was in at the time.

[66] Given that there is no evidence that the Respondent now suffers from depression, I do not believe that any such allegations should impact on the decision relating to the current custody and residence of Carter.

Circumstances Surrounding the Respondent Leaving the Applicant’s Home

[67] For reasons that I have set out earlier, I do not find that the Respondent departing from the home in the circumstances that she did impacts on the current issue of custody or primary residence of Carter.

Subsection 24(2)

[68] I find that subsection 24(2) is the subsection that needs to be taken into account in determining the best interests of Carter.

(2)(a)(i) The evidence from all sources is overwhelming that Carter is loved by and has clear affection and emotional ties to both the Applicant and the Respondent. In fact, each of the parties would acknowledge this about the other. I find that there is no preference to be shown in this regard for either the Applicant or the Respondent and that each of them should be considered “equal” on this basis.

(2)(a)(ii) This subsection requires me to take into consideration other members of the child’s family who reside with the child.

(a) The evidence is that the Applicant lives on his own, other than when Carter is with him, and therefore this subsection does not apply to him.

(b) The Respondent has an older child Sydney who resides primarily with her and visits with her biological father. When Carter is with the Respondent, for the most part of that time, Sydney is also present.

(c) I have earlier set out the evidence with respect to the close bond that there is between Sydney and Carter. They are siblings who are two and a half years apart in age. I find the evidence overwhelming that there is a close connection between the two of them, which clearly I find, needs to be taken into account with respect to issues of custody and residence of Carter.

(2)(a)(iii) This subsection requires that I consider other persons involved in the child’s care and upbringing.

(a) The Applicant made strong submissions that I should take into account the close relationship between Carter and his paternal grandparents in making a determination relating to custody and residence of Carter.

(b) The evidence is that Carter’s paternal grandmother typically visits with the Applicant on weekends when Carter is with him and that she does at least, to some extent, provide care for Carter. There is some evidence that this care is provided while the Applicant does work on an investment property. I have no doubt from the evidence put forward that Carter has a close relationship with his paternal grandmother.

(c) However, she testified that typically she visits on weekends as she works during the week and resides near Shelburne, which is approximately a 90 minute commute from the Applicant’s current residence. Therefore, I do not find that any relationship that Carter may have with his paternal grandmother would be significant in the Applicant’s argument that Carter should primarily reside with the Applicant. Regardless of primary residence, Carter will be spending alternate weekends with the Applicant and the Respondent.

(d) The Applicant testified that his father lives in close proximity to the Applicant and that he visits with the Applicant and Carter on a regular basis. However, in all likelihood due to his health issues, the paternal grandfather is not involved in Carter’s care.

(e) Further, even though the paternal grandparents are separated, the evidence is that they have improved their relationship since the birth of Carter, largely as a result of his birth. I therefore find that the relationship with his paternal grandfather is not determinative or influential on the issue of whether or not Carter should primarily reside with the Applicant as that relationship could continue were Carter not to be primarily with the Applicant. Maureen Carrel, the OCL investigator testified that she did not believe that if Carter were to primarily reside with the Respondent it would jeopardize his relationship with his paternal grandparents.

(f) Both parties’ daycare providers gave evidence. I found that each of them was a very good witness. I also found that each provides more than adequate care for Carter while he is under their supervision. I do not find that there is any reason to prefer one daycare provider over the other. If either parent had primary residence of Carter, I have no doubt that their current daycare providers would provide more than adequate supervision and care for Carter while he was with them.

(2)(b) Given Carter’s age, no evidence was led with respect to his views and preferences. However, given the evidence that was led, I find that Carter appears to have a very good relationship and a strong bond with each parent.

(2)(c) The Applicant, in support of his position, asked that I take into account the stability of his home environment. The Applicant has resided in his current residence/hobby farm since 2003 and has, if awarded primary residence of Carter, plans to continue to stay in that residence for the indefinite future.

(a) Further, the Applicant asks me to find that the Respondent has instability in her residential arrangements in that she moved from the Midland area to take up residence with the Applicant, then moved to a woman’s shelter and subsequently to a rented home where she currently resides. Given that her evidence was that she is considering purchasing a home once she receives money from her father’s inheritance, he asked me to find that this is evidence of further instability.

(b) The Respondent testified that save and except the brief time that she resided with the Applicant, she has for her entire life lived in the Midland, Port McNicoll Victoria Harbour area. I do not find that this is a factor that needs to be given any weight. Further, the Respondent has worked at the same job for more than 17 years, being evidence of occupational stability. Even though she testified that it is not a job that she finds rewarding from a career perspective, she has maintained that employment as it provides financial stability for her and her children.

2(d) The Applicant led evidence and made submissions with respect to an assertion that he should be preferred to the Respondent given that his evidence was that he was involved in more doctor’s visits than that was the Respondent. Further, his evidence was attempting to demonstrate that he was more proactive in Carter’s care than was the Respondent. The evidence led by him on this point was that he was more proactive in dealing with Carter’s Plagiocephaly. Although both parents advocated on behalf of Carter with respect to having him fitted with a helmet to deal with the situation, I find that it was the Applicant who was more “insistent” on this point and that the Respondent “went along with” his insistence.

(a) However, evidence was led that the Respondent’s insurer concluded that the fitting of the helmet was for cosmetic and not for medical reasons. There is no evidence that Carter’s health would have been negatively impacted had he not been fitted with this helmet. Further, the Respondent did agree and was not in any way objecting to Carter being fitted with a helmet.

(b) In addition, the Applicant cites the fact that he attended more doctors and healthcare provider visits than did the Respondent. I find that even if this is the case, the Respondent’s explanation for not attending some visits is plausible and I do not find this as a factor in this case.

(c) Based on the evidence before me, it would appear that Carter currently has no “special needs” that need to be taken into account with respect to the determination of the issues before me.

(d) As earlier set out, I find that the Applicant is clearly “the more structured” parent. I do not find however, that the fact that the Respondent may be less structured, impacts negatively on her ability to parent. The reality is that the Applicant and Respondent are different people but it is not the case that one style necessarily is better than the other so far as Carter’s development is concerned.

(2)(e) The Applicant asked me to take into consideration the fact that he lives on a 37 acre hobby farm and that Carter enjoys doing “chores” on the farm. The Applicant’s submission is that this is a major benefit to Carter which should be taken into consideration.

(a) The Respondent acknowledged “what kid wouldn’t want to live on a farm?” The Applicant’s submission is that if primary residence of Carter is to be with the Respondent, then he would sell the farm and move closer to the Respondent’s residence. Further, evidence was led by both the Applicant and the Respondent that it is unlikely, that for a similar price, the Applicant could purchase a farm in the area of the Respondent’s residence. The Applicant therefore submits that this would be something contrary to Carter’s best interests as, if primary residence were awarded to the Respondent, Carter would lose the benefit of the farm.

(b) I have no doubt that Carter enjoys his time on the farm. However, I do not see this as a determinative factor. It is one factor that needs to be taken into consideration.

(c) There was evidence before me which was acknowledged by the Applicant, as to the fact that the Respondent enjoys doing crafts and does crafts with the children. The pictures of the Respondent’s home and in particular the decorating of Carter’s room, Sydney’s room and the bathroom demonstrate the Respondent’s ability in this area.

(d) If I were to find that Carter’s primary residence was to be with the Applicant, he indicates that it is likely he would enroll Carter in school in Beaverton. As well, he indicated that he has investigated and may investigate further enrolling him in a Montessori school. The evidence is the closest Montessori school from his current residence would be in Lindsay which would result in a significant commuting distance from the Applicant’s current residence.

(e) The Respondent’s evidence is that if I were to find that Carter’s primary residence should be with her, she would enroll Carter in the Roman Catholic Separate School being Sacred Heart Catholic School, the same school where Sydney currently attends.

(f) Both parties indicated that in their respective jurisdictions, Carter would commence Junior Kindergarten in September, 2016 and that in each jurisdiction it is “all day Kindergarten.”

(2)(f) With a minor modification that was made to the schedule, Carter has essentially resided in a 50/50 time-sharing arrangement with the parties since the first court appearance in March, 2013.

(a) I take into account the fact that all of the evidence points to Carter being a healthy, happy well-adjusted child and there is no evidence before me that Carter is suffering in either the Applicant’s care or in the Respondent’s care.

Office of the Children’s Lawyer

[69] Pursuant to the Order of the Honourable Justice Eberhard dated March 21, 2013, an investigation was conducted by the Office of the Children’s Lawyer (OCL) and a report was prepared by Maureen Carrel which report is dated November 7, 2013. A dispute of the OCL report dated March 26, 2014, was submitted by the Applicant.

[70] The recommendations of the OCL are set out at page 10 of her report. Those recommendations are as follows:

1. Ms. Copeland and Mr. Lamb should have joint custody of the child, Carter Copeland-Lamb.

2. The access arrangements should remain status quo until Carter attends school on a full time basis. Once Carter attends school, Mr. Lamb should have access three weekends a month and every Wednesday evening from after school until 7:30 p.m. The weekend access should occur from after school on Friday returning Carter to school on Monday morning. If the Monday is a PD day or holiday Carter should remain with Mr. Lamb and be returned to school on Tuesday morning.

3. Each party should have the right of first refusal should the other parent be away for more than 24 hours during their scheduled time with the child, Carter Copeland-Lamb.

4. Holidays, including Christmas, Easter, Thanksgiving and March Break should be shared or alternated between the parties with a schedule that is mutually agreeable to all. Ms. Copeland should have access on Mother’s Day. Mr. Lamb should have access on Father’s Day.

5. Once Carter attends school, the summer months of July and August should be divided on a one week about rotation. The week should begin on Friday at 5:00 p.m. returning the child the following Friday at 5:00 p.m., thereby accommodating any daytime programming that Carter may be involved in.

6. When the child, Carter, is with the other parent, the non-caregiving parent should have liberal telephone access with the child.

7. Transportation of Carter should be shared by both parties.

[71] Ms. Carrel testified at trial and was cross-examined by each party.

[72] The essence of the Applicant’s main dispute with the OCL report was that Ms. Carrel was not “thorough enough” in her investigation. The Applicant asserts that a two-hour interview with each party followed by a one hour opportunity to observe each party while caring for Carter was insufficient on which to base recommendations. Further, the Applicant asserts that the investigation was not thorough enough in that the collateral parties with whom Ms. Carrel spoke were not interviewed by her “face-to-face” but all such interviews were telephone interviews.

[73] There is no evidence before me that Ms. Carrel, in conducting her investigation, acted outside the parameters recommended by the OCL. In fact, when challenged, she testified that she did operate within those guidelines. She further testified that as a result of the dispute filed by the Applicant, her report and the methodology thereof was further reviewed by her supervisor and that no “fault” was found by the supervisor. Her evidence is that when her report was reviewed by her supervisor, there were no changes made to it, other than some minor inconsequential changes.

[74] Ms. Carrel testified that she had 32 years experience with the CAS prior to becoming employed as a clinical investigator for the OCL. She earned degrees being a Bachelor of Arts and an Honours Bachelor of Social Work. In considering her recommendations, I do take into account the fact that her report is dated November 7, 2013 and that there has been no follow-up since that time. Given that Carter was born April 3, 2012, he would have been 19 months of age at the time her report was delivered. At the time of trial, he was 37 months of age and therefore he was approximately half of his current age at the time that the report was delivered.

[75] In support of his argument that the OCL report was flawed given the brevity of the OCL observation visits and given the fact that the OCL conducted telephone interviews with “collaterals” rather than face-to-face interviews, the Applicant’s counsel directed me to the case of Takis v. Takis,[^1] a 2003 decision of Justice Gordon of the Ontario Superior Court of Justice. I find that Ms. Carrel, unlike the finding made by Mr. Justice Gordon with respect to the OCL investigator in that case, was aware of all of the relevant issues and did engage in an investigation which was adequate in order to base her recommendations.

[76] Certain changes have taken place since the time of the OCL report. For example she cites on page 9 that the Respondent resides in the same community as her father, who unfortunately has since passed away since that time. As well, she indicates that the Respondent’s brother lives in Port McNicoll. The Respondent has given evidence that due to issues arising between her and her brother relating to their father’s estate, she currently is estranged from her brother. During her evidence at trial, Ms. Carrel did not indicate that either of these factors would have changed her recommendation.

[77] I note the following comments that Ms. Carrel made following her investigation,

“Carter is a happy, healthy boy…”

“He is openly affectionate with both of his parents.”

“Carter loves to spend time with his half-sister, Sydney. He constantly follows her around and laughs at everything she does.”(On this point the Applicant’s counsel quite properly pointed out that this conclusion was difficult to reach simply based on a one hour observation visit and that it was to some extent an acceptance of information provided to her by others).

“Ms. Copeland indicates that she believed Mr. Lamb to be controlling and verbally abusive. She did not feel that he provided her a great deal of support in the home. Mr. Lamb indicates he believed that Ms. Copeland was not adequately meeting the needs of the children and that he was expected to do the bulk of the child care and household chores when he returned home from work.”(This is consistent with the Respondent’s evidence given at trial and it is noted that Ms. Carrel took these factors into account in her investigation.)

“in terms, of home environments, both homes are very suitable for the care of Carter. Carter is very much loved by both parents.”

“while they had some initial difficulties with communication in regards to Carter, the parties are now able to communicate effectively. They were able to communicate with each other in terms of the access and Carter’s physical needs. Both parties have a history of being able to make decisions together post separation, as evidenced by their being flexible regarding Carter’s access time and transportation. The parties do not deal with issues in front of Carter. Mr. Lamb has continued to assist Ms. Copeland with repairs to her home. The parties should have shared custody of Carter.”

“Carter is young and should have frequent contact with both parents in order to enhance his connection to both of them. At the present time the current access arrangement should continue until Carter attends school on a full time basis. Due to the distance between the parties, it is not possible for the parties to have shared parenting of Carter once school begins. When Carter begins school, it will be important for him to reside in the area where he attends school. Both parents have proven to be good parents to Carter. Carter has a half sister, Sydney, to whom he is very connected. It is important to continue to nurture this relationship and for the two children to live together, therefore Carter should live primarily with Ms. Copeland once he begins school on a full-time basis.”

[78] Ms. Carrel then went on to recommend that the parties have joint custody of Carter. While she recommended that the access arrangements remain status quo until Carter attends school on a full-time basis, she then recommended that once he was in school, Mr. Lamb should have access three weekends a month and every Wednesday evening from after school until 7:30 p.m.

[79] At the conclusion of her evidence, in response to a question raised by the court, Ms. Carrel indicated that her recommendation would have been different if the parties lived closer to one another and that in that case, she would have recommended an equal time sharing/parenting of Carter.

Sole Custody versus Joint Custody

[80] In their court documents, each party was seeking custody of Carter. At trial, the Applicant submitted and requested an order for joint custody. The Respondent still seeks sole custody. In response to a question from the court, the Applicant believes that he and the Respondent would be able to work out any impasse through alternative dispute resolution methods (my words not his). The Respondent is less optimistic and is concerned about the Applicant’s “controlling” behaviour with respect to any impasses that may arise, should I find in favour of joint custody.

[81] The Respondent gave evidence that she and Sydney’s father have been able to work cooperatively with respect to Sydney. Her evidence, which was not contradicted by the Applicant, was that she and Sydney’s father had few disagreements relating to the time that Sydney would spend with each of them and Sydney’s care. She testified that when she became ill in the fall of 2014 and was hospitalized she needed care for both Sydney and Carter. Her evidence is that Sydney’s father cooperated and took care of Sydney while she recuperated. The Applicant as well, cooperated and provided care for Carter during this time. This history bodes well for the future in terms of the likelihood that the Applicant and the Respondent would be able to work cooperatively.

[82] There are numerous examples of cooperation being shown by the parties towards one another.

[83] It is common ground that Carter has spent over 30 additional times with the Applicant over and above the time that he would have spent with him if the consent court Orders had been strictly adhered to. Many of these times, it would appear, were agreed to for the best interests of Carter, such as a time when Carter was sick and the Respondent suggested that he remain with his father for additional time.

[84] There are other examples of the Applicant assisting the Respondent. Following the separation, when the Respondent was returning home from the Applicant’s residence and slid into the ditch, she called the Applicant who came to her assistance. This type of cooperation is often not very common between separated parents, and I believe demonstrates they will be able to jointly parent Carter.

[85] Following the separation, the Respondent recommended the Applicant as a contractor to one of her close friends. She said that she did so because he did good work and she wanted her friend to have work done properly. Again, this demonstrates that even though the parties are separated, they work together for the benefit of the other.

[86] Following the separation, Carter was still involved with physiotherapy and other healthcare and the evidence is the parties worked cooperatively with respect to the same.

[87] I found it refreshing that each of the parties did speak well of the other party. Each was quite forthright in giving some praise to the other party for attributes that they saw.

[88] I see no reason why the parties should not be able to work cooperatively and make major decisions with respect to Carter in the future.

[89] I find, therefore, that the Applicant and Respondent shall have joint custody of Carter.

[90] I find that it is in Carter’s best interest to attend school with his sister Sydney and therefore when Carter commences school, expected to be in September 2016, he shall be enrolled in Sacred Heart Catholic School in Midland, unless the parties jointly agree in writing otherwise.

Residence of Carter

[91] Carter has thrived with sharing virtually equal time with each of the parties for the last two years. Having said that, I do find that the current arrangement, given the 90 minute commute between the parties’ residences, is it not in Carter’s best interest.

[92] I totally concur with Maureen Carrell that if the parties were living in close proximity to one another, there would be no reason for them not to share equal time with Carter. The reality, however, is that there is a 90 minute commute between their respective residences. I do not find that the current arrangement which involves a great deal of “back and forth” is in Carter’s best interest particularly given the distance geographically between the parties.

[93] Currently twice each week, Carter is travelling back and forth between the parties respective residences. As well, on most occasions when the Respondent is driving, Sydney would be required to make the trip in two directions thus being in a vehicle for approximately three hours.

[94] The current residency arrangement with respect to Carter shall continue until August 31, 2015.

[95] Thereafter, until Carter begins school (September 2016), Carter shall be resident primarily with the Respondent and shall be resident with the Applicant at the following times:

(a) Alternate weekends from Wednesday at 5:00 p.m. until Sunday at 5:00 p.m. When the Monday following the Applicant’s time with Carter is a statutory holiday then the return time shall be Monday at 5:00 p.m.

(b) The party receiving Carter will be responsible for picking him up.

[96] Commencing September 1, 2016, (subject to the Holiday Schedule set out herein) Carter shall primarily reside with the Respondent and shall reside with the Applicant alternate weekends from Friday after school until Monday return to school.

Holiday Schedule

[97] Carter will stay with the parties for holidays and special occasions on a shared basis and to coordinate with Sydney Copeland’s time spent with the Respondent as follows:

(a) The parties will share the school March Break holiday, each year equally. The access exchange will occur Wednesday of March Break as arranged by the parties. If either party has a trip scheduled with Carter then he may be able to spend the entire March Break with one party as arranged provided that the following year, Carter shall spend the entire March Break with the other party.

(b) Carter shall reside with the parties for Easter and Thanksgiving according to the normal residency schedule.

(c) For the school summer vacation, being July and August of each year, Carter will reside with the parties on a week about basis.

(d) Carter will stay with the Respondent mother in even numbered years from December 24 at 4:00 p.m. until December 26 at 4:00 p.m. and then with the Applicant father from December 26 at 4:00 p.m. until December 28 at 4:00 p.m. The opposite schedule will apply in odd numbered years. When Carter is in school, the parties will adjust the schedule such that he spends equal time with his parents during the balance of the Christmas School Vacation.

(e) The parties will equally share in the transportation arrangements with respect to Carter with the party receiving Carter being responsible for picking him up.

[98] Neither party will consume alcohol to the point of intoxication while in a caregiving capacity for Carter.

[99] Neither party will smoke in a car while Carter is present with him or her. Neither party will smoke, or allow anyone else to smoke in his or her home while Carter is present.

[100] Neither party will remove Carter from the Province of Ontario without the other party’s prior written consent, which will not be unreasonably withheld.

[101] Each party shall be entitled to have direct contact with Carter’s physicians, teachers, day care providers.

[102] The parties shall exchange their income tax returns and notices of assessment each year by June 1 along with proof of any section 7 Guideline expenses.

[103] I find that Carter’s relationship with Sydney is a very important one and that the time that he spends with Sydney or is away from Sydney is a major factor that needs to be taken into account.

[104] I have deliberately not set out the exact date when the alternate weekend residency should commence. The schedule should be such that it coincides with Sydney’s schedule so that Carter and Sydney (and the Respondent) have an opportunity to spend alternate weekends together.

[105] Should the Applicant move to a location such that he is within a 30 minute commute of Carter’s school and able to transport Carter to and from school in Midland from his new residence, this would be considered a material change in circumstances.

[106] Had the Applicant currently been residing within a 30 minute commute of Midland, I would have made an Order that the parties share parenting time with Carter and that he spend a week on/week off with each of them.

The Applicant’s Position with Respect to Sydney

[107] One of the issues before me relates to the Applicant’s relationship with Sydney. In particular, under section 1(1) of the Family Law Act is Sydney a “child” of the Applicant? “Child” includes a person whom “a parent has demonstrated a settled intention to treat as a child of his or her family…”

[108] The leading case with respect to the determination of this issue appears to be that of Chartier v. Chartier,[^2] a 1999 decision of the Supreme Court of Canada. That case was decided under the Divorce Act where the definition of child is not identical to that of the Family Law Act of Ontario. Paragraphs 38 through 42 of that decision set out the test and includes factors to be considered in determining that issue. Included in these factors are:

(a) Whether the “stepparent treats the child is a member of his or her family.”

(b) “Whether the child participates in the extended family in the same way as would a biological child.”

(c) Whether the person “provides financially for the child.”

(d) Whether the person “disciplines the child as a parent.”

(e) Whether the person “represents to the child, the family, the world, either explicitly or implicitly that he or she is responsible as a parent to the child.”

(f) “The nature or existence of the child’s relationship with the absent biological parent.”

(g) “The manifestation of the intention of the stepparent cannot be qualified as to duration.”

[109] In this particular case, the actual time that the parties resided under the same roof was approximately 13 months and the actual duration of their cohabitation prior to their decision to separate was approximately nine months. They did have a relationship prior to cohabitation.

[110] There was evidence before me that prior to Carter’s birth, Sydney was included as “part of the family” and would be present when the Applicant and Respondent were together (when Sydney was not with her biological father). There is further evidence that prior to Carter’s birth, the Applicant travelled to the Respondent’s residence to install baby gates for the benefit of Sydney.

[111] While the parties were together, there is no evidence that the Applicant financially provided for Carter in a manner that was different to the manner in which he provided for Sydney, save and except swimming lessons to which I will subsequently refer.

[112] While the parties were together, there is evidence, including evidence from Ena Lamb, that Sydney had developed a close bond with the Applicant and that the Applicant had developed a close bond with Sydney.

[113] It is unfortunate that the impact of a separation of parties has a “ripple effect” to create serious and major implications for people other than the parties and their biological child or children. Following the time that the Respondent left the Applicant’s residence, the evidence clearly demonstrates that the Applicant changed his relationship with Sydney. The Respondent’s evidence is that Sydney wanted to continue this relationship but the Applicant shunned that relationship.

[114] Further, there is evidence that when Sydney’s biological father ceased making contribution to Sydney’s swimming lessons, the Respondent asked the Applicant to financially assist her and the Applicant declined to do so. His rationale was that he was not the biological father of Sydney. Virtually immediately thereafter, however, the Applicant enrolled Carter in swimming lessons which undoubtedly was upsetting to Sydney as was testified by the Respondent.

[115] I find that the Applicant had demonstrated a settled intention to treat Sydney as his child while dating the Respondent and during the time that the Applicant and Respondent cohabited.

[116] The Applicant clearly attempted to sever this relationship. It is a reasonable conclusion to draw that the Applicant did not do this out of any change in the relationship with Sydney nor out of any actions taken by Sydney. The only reasonable and logical conclusion to draw is that the Applicant was fearful that if he continued a relationship with Sydney it may result in a court finding that he had financial obligations towards Sydney. There is in my opinion, no other logical inference to draw than the Applicant attempting to change his relationship with Sydney solely for financial reasons.

[117] I agree with the finding of Justice Ferrier in the decision of (D.R.) v. M. (R.) M.[^3] where he states in paragraph 9 “the onus is on the party alleging that the person is a parent to prove on the balance of probabilities that the alleged parent demonstrated a settled intention to treat the child as a member of his or her family.” I further agree with Justice Ferrier where he goes on at paragraph 12 indicating “once a settled intention has been demonstrated, a parent cannot unilaterally terminate the relationship… In other words, a subsequent change in that intention does not remove the support obligation.” He quoted with approval the cases of Siddall v. Siddall,[^4] a 1994 Ontario Gen. Division case and the case of Spring v. Spring,[^5] a 1987 UFC case.

[118] In this particular case, as I mentioned, I find that the Applicant attempted to terminate the relationship as set out. I find for the reasons set out above that he had demonstrated a “settled intention” with respect to Sydney, and having done so he cannot unilaterally terminate that relationship.

[119] Having made the finding that I have, the next question is what child support obligation, if any, does the Applicant have to Sydney? I believe that the analysis done by the court in the case of H (U.V.) v. H (M.W.),[^6] sets out the reasoning to be applied and specifically refers to sections 3 and 5 of the Child Support Guidelines.

[120] The evidence at trial disclosed that Sydney does have an ongoing relationship with her biological father, Scott Evans. Further, there is evidence that there is a court Order in place which requires her biological father to pay $462 per month child support for Sydney.

[121] The Respondent gave evidence that Scott Evans lost his job and for a period of time, stopped paying child support and is now paying child support in the amount of $188 per month. Her further evidence is that she has not pursued collection of the court ordered child support through FRO due to the time and money invested by her in this action. She testified that Scott Evans had worked as a general contractor (similar to that work done by the Applicant). I found her evidence forthright when she said that he was not very good at it and it was for that reason that she asked the Applicant rather than Sydney’s father to install baby gates in her home at a time even though Scott Evans was living in close proximity geographically to the Applicant and of course is Sydney’s biological father.

[122] In my view, the brevity of the relationship of the parties, the fact that Sydney does have an ongoing relationship with her biological father; and the fact that her biological father has a legal obligation to provide child support for Sydney, all need to be taken into account in this case. I find that as a result of a combination of all of these factors, the Applicant should not be required to pay “full up” child support for Sydney in accordance with the Guidelines.

[123] I do, however, find that the Applicant has a financial obligation towards Sydney. The case law clearly demonstrates that there is no set formula for determining that obligation. As was set out by Justice Bondy in the case of Boivin v. Smith,[^7] “courts have employed techniques of apportionment, percentages and top ups in relation to the obligation of stepparents.” (Paragraph 88).

[124] Even though some courts have chosen to time limit stepparent support obligations, I do not find that that would be appropriate in this case.

[125] I have not addressed the issue of access by the Applicant to Sydney, as that issue is not before me. I do, however, believe it would be in Sydney’s best interests (and Carter’s) if Sydney spent some time with the Applicant. Hopefully, the parties will be able to agree on that matter.

Child Support

[126] In their Agreed Statement of Facts, the parties agreed that for purposes of this trial the Applicant’s income would be deemed to be $50,000. Given that I have decided that Carter would primarily reside with the Respondent, the Applicant would have an obligation to pay child support in accordance with the Child Support Guidelines based on that level of income. The Applicant would therefore have an obligation to pay child support for Carter in the amount of $450 per month based on that income.

[127] If the Applicant were required to pay child support pursuant to the Guidelines for two children, he would have an obligation to pay child support of $743 per month.

[128] For reasons set out above, I do not find that the Applicant should have an obligation to pay “full-up” child support for Sydney. I find that in the circumstances, the Applicant should pay child support for Sydney in the amount of 1/3 of the increment between the child support payable for one child and the child support payable for two children. That amount would result in an increase of $98 per month, being 1/3 of ($743-450), which results in a total child support obligation of $548 per month.

[129] Given that Carter will be residing week on/week off with the parties during the months of July and August, child support will commence as set out above September 1, 2015 and on the first day of each month thereafter. Until that time, the Applicant shall pay, as he has been paying, $100 per month child support.

[130] Any section 7/extraordinary expenses payable for Carter, subject to changes in the parties’ incomes shall be based on a ratio of their current incomes $50,000 for the Applicant and $37,736 for the Respondent and therefore the Applicant shall pay 57% thereof and the Respondent shall pay 43% thereof.

[131] The Respondent shall not have any obligation to contribute to Sydney’s section 7/extraordinary expenses.

Order To Go

1. The Applicant and Respondent shall have joint custody of Carter Duane Copeland-Lamb born April 3, 2012 (“Carter”).

2. In September, 2016, Carter shall be enrolled in Sacred Heart Catholic School in Midland, unless the parties jointly agree in writing otherwise.

3. The current residency arrangement with respect to Carter shall continue until August 31, 2015.

4. Commencing September 1, 2015 and until Carter begins school (September 2016), Carter shall be resident primarily with the Respondent and shall be resident with the Applicant at the following times:

(a) Alternate weekends from Wednesday at 5:00 p.m. until Sunday at 5:00 p.m. When the Monday following the Applicant’s time with Carter is a statutory holiday then the return time shall be Monday at 5:00 p.m.

(b) The party receiving Carter will be responsible for picking him up.

5. Commencing September 1, 2016, Carter shall primarily reside with the Respondent and shall reside with the Applicant alternate weekends from Friday after school until Monday return to school. When the Monday following the Applicant’s time with Carter is a Statutory Holiday, then the return shall be Tuesday return to school.

6. The following holiday schedule shall take precedence over the regular schedule. Carter will stay with the parties for holidays and special occasions on a shared basis and to coordinate with Sydney Copeland’s time spent with the Respondent as follows:

a. The parties will share the school March Break holiday, each year equally. The access exchange will occur Wednesday at 5:00 p.m. of March Break as arranged by the parties. If either party has a trip scheduled with Carter then he may be able to spend the entire March Break with one party as arranged provided that the following year, Carter shall spend the entire March Break with the other party. Notice of any planned trip shall be given in writing by January 15. If both give such notice then the Applicant shall be entitled in even numbered years and the Respondent in odd numbered years.

b. Carter shall reside with the parties for Easter and Thanksgiving according to the normal residency schedule.

c. For the school summer vacation, being July and August of each year, Carter will reside with the parties on a week about basis, with the changeover to take place Fridays at 5:00 p.m.

d. Carter will stay with the Respondent mother in even numbered years from December 24 at 4:00 p.m. until December 26 at 4:00 p.m. and then with the Applicant father from December 26 at 4:00 p.m. until December 28 at 4:00 p.m. The opposite schedule will apply in odd numbered years. When Carter is in school, he will spend equal time with his parents during the balance of the Christmas Holiday Schedule.

e. The parties will equally share in the transportation arrangements with respect to Carter with the party receiving Carter being responsible for picking him up.

7. Neither party will consume alcohol to the point of intoxication while in a caregiving capacity for Carter.

8. Neither party will smoke in a car while Carter is present with him or her. Neither party will smoke, or allow anyone else to smoke in his or her home while Carter is present.

9. Each party shall be entitled to have direct contact with Carter’s physicians, teachers, day care providers.

10. Based on the Applicant’s income of $50,000, commencing September 1, 2015 and on the first day of each month thereafter, the Applicant shall pay child support to the Respondent for Carter and Sydney Copeland in the amount of 1/3 of the increment between the child support payable for one child and the child support payable for two children. That currently results in an increase of $98 per month, from the amount payable for one child, being 1/3 of ($743-450), which results in a total child support obligation of $548 per month for the two children.

11. From May 1, 2015 to August 1, 2015, the Applicant shall pay to the Respondent $100 per month child support.

12. Any section 7/extraordinary expenses payable for Carter, subject to changes in the parties’ incomes shall be based on a ratio of their current incomes $50,000 for the Applicant and $37,736 for the Respondent and therefore the Applicant shall pay 57% thereof and the Respondent shall pay 43% thereof. The parties shall not incur a section 7 expense for Carter, for which they will be seeking contribution from the other party, without first seeking the written approval of the other party, such consent not to be unreasonably withheld.

13. The Respondent shall not have any obligation to contribute to Sydney’s section 7/extraordinary expenses.

14. The Applicant shall maintain a policy of insurance on his life with a face amount of not less than $150,000 and designate either the Respondent or another individual as irrevocable beneficiary of that policy in trust for Carter.

15. The Respondent shall maintain her current life insurance through her employer which provides $250,000 in death benefits and shall designate either the Applicant or another individual as irrevocable beneficiary of 50% of the death benefits payable under that policy in trust for Carter. Should the Respondent no longer have life insurance available through her employment, she shall maintain a minimum of $100,000 life insurance in trust for Carter.

16. The Respondent shall maintain her current health, medical and dental benefits available through her employment for Carter. Should the Applicant have such benefits available, he shall maintain benefits for Carter. Any health, medical or dental expenses for Carter not covered by insurance shall be a section 7/extraordinary expense.

17. The parties shall exchange Income Tax Returns and Notices of Assessment ( and the disclosure required pursuant to section 21 of the Child Support Guidelines, if self-employed) each year by June 1 commencing June 1, 2016 and the quantum of child support and sharing of section 7 expenses shall be adjusted each July 1 (commencing 2016) based on the respective incomes of the parties for the previous year.

18. Neither party shall remove Carter from the Province of Ontario without the express written consent of the other party. Should either party wish to take a vacation out of the Province of Ontario with Carter, they shall provide a minimum of 14 days’ notice to the other party including an itinerary as to their travel plans which shall include the particulars of any airline travel, hotel accommodation and a telephone number and contact information while away. Assuming that this information is provided, the other party shall provide their consent for this travel.

19. Both parties shall sign the necessary Passport application (or renewal) for Carter and the Passport shall be maintained by the Respondent and delivered to the Applicant for travel when necessary being returned by him to her upon his return.

20. Should the Applicant move to a location such that he is within a 30 minute commute of Carter’s school and able to transport Carter to and from school in Midland from his new residence, this would be considered a material change in circumstances.

21. Support Deduction Order to issue.

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

23. This order bears post-judgment interest at the rate of 3% per year 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.

24. Unless this order is withdrawn from the Director’s Office, at the 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. Where sufficient deductions are not being made by support deduction order, payments may be remitted to the Director, Family Responsibility Office, P. O. Box 2204, Station P, Toronto, Ont. M5S 3E9.

25. The parties may submit cost submissions not exceeding three pages in length. In addition the parties may submit any Offers to Settle and Bills of Costs. The Respondent shall submit by June 30, 2015, the Applicant by July 15, 2015 and any reply submissions for the Respondent by July 31, 2015.

Justice R.T. Bennett

Released: June 15, 2015

[^1]: 2003 2354 (ON SC), 2003 CarswellOnt 2358, [2003] W.D.F.L. 417, [2003] O.J. No. 2658, [2003] O.T.C. 594, 123 A.C.W.S. (3d) 822, 38 R.F.L. (5th) 422.

[^2]: 1999 707 (SCC), [1999] 1 S.C.R. 242 [1998] S.C.J. no. 79

[^3]: 1997 12246 (ON SC), 1997 CarswellOnt 2662, [1997] O.J. No. 6365, 30 R.F.L. (4th) 269, 32 O.T.C. 151, 72 A.C.W.S. (3d) 121.

[^4]: (1994), 1994 18384 (ON SC), 11 R.F.L. (4th) 325 (Ont. Gen. Div.)

[^5]: (1987), 1987 4379 (ON SC), 61 O.R. (2d) 743 (Ont. U.F.C.)

[^6]: (2008), 292 D.L.R. (4th) 433, 2008 BCCA 177, 2008 CarswellBC 798, 426 W.A.C. 183, 254 B.C.A.C. 183, 59 R.F.L. (6th) 25, 86 B.C.L.R. (4th) 199, [2009] 2 W.W.R. 63 (B.C.C.A.)

[^7]: 2013 CarswellOnt 11005, 2013 ONCJ 426, [2013] W.D.F.L. 5123, [2013] W.D.F.L. 5201, [2013] W.D.F.L. 5210, 231 A.C.W.S. (3d) 1073.