ORILLIA COURT FILE NO.: FC-10-109-01

DATE: 20151203

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

ASHELY CALLAGHAN

Applicant

– and –

ERVIN JACKSON

Respondent

David M. Winnitoy, for the Applicant

Brian D. Kinnear, for the Respondent

HEARD: November 16, 17, 18, 19 and 20, 2015

EBERHARD J.

[1] The Respondent Father, Ervin Jackson, is the moving party in this Motion to Change. He seeks primary care of five year old Draven Alexander Callaghan born February 6, 2010 who is in senior kindergarten in Orillia where he resides with the Applicant Mother, Ashley Callaghan, the responding party.

[2] Draven’s parents never lived together. He has lived first with his mother in Orillia for 16 months, then until he was 4½, week about in London and Orillia with father and mother for 39 months, then, when it came time to start school in 2014, these proceedings began, a temporary agreement put Draven in his mother’s care with 3 of 5 weekends with his father and a share of holiday periods. This temporary arrangement has lasted 15 months to trial which is calculated by counsel as a total of 31 months of mother’s primary care in Orillia compared to 39 months of week about care (during which she had him half the time).

[3] Draven’s father has married Samantha Donaldson and her daughter Arya, age seven, is with them in week about care in London.

[4] Although the question for adjudication in this case is a simple one: - should the child be in the primary care of the father in London or the mother in Orillia, the context that has brought us to this question is fascinating and modern. By “modern” I mean it is framed in the societal changes over the past several decades that have inspired change in family law and the approach of the courts in a mature case management family court milieu.

[5] Briefly described, this is a contest between two people who did not know each other well and had interaction for no more than a month. Mom discovered she was pregnant. Whether he was told during the pregnancy or not until after the child was born, dad responded by doubting he was the biological father. This was consistent with mom then being in relationship with an individual with whom she had on and off relationship over the years, who attended at the birth and with the child bearing the name of that other man. After the father’s expression of doubt, the pregnant mother did not contact him again, nor intend to.

[6] However, in modern society, a mother on social assistance is required by the welfare authorities to identify the father and pursue support. This mom did. Consistent with modern court intervention, a DNA paternity test was agreed and ordered. As often happens, upon hearing that he is the biological father, the man pursued for child support now wants relationship with the child.

[7] In recent years, the court intervention in such circumstances is to recognize the interest both mother and father may have in the child and, where safe and possible, to create a level playing field upon which either or both of the parents has equal opportunity to build relationship and participate in parenting the child. This sensibility arises not only from a notion of fairness to both genders, a notion about which reasonable people sometimes disagree, but predominantly from the shared wisdom that a child should have opportunity to know and benefit from love and contribution to their well-being from both parents. To that end, it has become customary in circumstances of a biological father who is not in relationship with the mother but seeks relationship with the child, for the case management court to facilitate the gradual introduction of access to find out whether participation in the parenting of the child is indeed safe, possible and in the child’s best interests.

[8] I pause here to observe that a segment of fathers who are disappointed in their parental aspirations join to complain that the court is biased in favour of mothers. To the contrary, time after time it is the insistence of the case management court that children be introduced to fathers (or re-familiarized) to find out if participation is safe and possible that has created an opportunity that might not otherwise exist, for those fathers to demonstrate that it is in the best interest of their child to know them, build relationship with them and even, in cases such as the one now before me for adjudication, assume their primary care instead of the mother.

[9] To that end the tools of the court, developed by statute and from the practices of case management, are invoked to help assess whether these once estranged fathers ought to assume primary care just as much as for separated fathers and mothers who had lived in family with the child. Suffice it to say, once the father is successfully reintroduced into the child’s life, the parents have equal opportunity to demonstrate whose primary care of the child would best address the child’s best interests where it is not practical for there to be a more balanced parenting schedule.

[10] In the present case, by September 7, 2011 there was a consent order for week about care of Draven. I have evidence of the conduct of the parties up to this point which I consider as part of the total evidence as to their attitudes and capacities, but the impact of that history on ability to parent and their respective demonstration of parenting strengths and weaknesses is spent once week about is achieved. There is no value in returning to the particulars of the child’s conception and reaction to the unexpected pregnancy. By September 2011 enough evolution had occurred to give both parents opportunity to demonstrate they could meet the child’s best interests.

[11] Although between 2011 and 2014 the child was in care of both parents through the agreed week about order, it was not practical for the balanced parenting schedule to continue because the father lives in London and the mother lives in Orillia. As the child approached registration into junior kindergarten in September 2014 the parties could not agree where the child would be registered, so the father, quite properly, brought this Motion to Change.

[12] Although the parties returned to court in a timely way, absent settlement, the issue could not get to adjudication before school commenced in September 2014. The child had to be one place or the other. By agreement, the week about was interrupted and the child remained in the care of mom to attend school in Orillia and was with dad 3 of 5 weekends with holiday times split. Dad has provided all the transportation as mom has no driver’s license or vehicle.

[13] Here, an unfortunate reality about modern courts impacts. In the Central East Region we have trial sittings in November and May each year. For systemic and reasons particular to the trial participants the adjudication of where the child should primarily reside is not brought to trial until the child has already been in his mother’s primary care since 2014, a full school year and part of the next. By fairness, the passage of time should not play to the advantage of one or the other, but status quo is a significant fact when considering best interests. Systemic passage of time also deprives the father of the opportunity to demonstrate how he manages the child being involved in the education world, while also exposing the strengths and deficits of the mother as she tries. The uneven comparison shifts the adjudication slightly to an examination of capacity to parent instead of how they are actually parenting because time has passed since both were parenting on a week about basis.

[14] In the time between bringing the problem back to court and the opportunity to have a trial, the parties in this case sought out one of the most reliable tools available in the modern court milieu by privately, jointly, retaining an experienced social worker to perform an assessment similar in kind to those he often does on behalf of the OCL(Ontario Children’s Lawyer) or those statutorily defined as a section 30 assessment. It was neither in this case because of the private retainer, but the assessment benefitted from similar technique and engaged the considerable experience of a recognized local practitioner.

[15] The assessor recommended that the father assume primary care. This is in spite of the status quo that the child is currently going to school in Orillia and living in a household with his mom, his older brother Logan and younger brother Robbie such that both maternal and sibling relationships would be disrupted. Rather, the assessor recommends primary care in London with his father, father’s wife Samantha and her daughter Arya who lives with them week about.

[16] At trial the assessor was robustly cross examined about refusing the mother’s late arriving list of collateral contacts. Taking the mother’s explanation at face value, I am not led to the conclusion that she was refused because of bias. Family law cases are in continuous evolution and it is not improper to set an end point for completion of an issue as of some date. It would be impossible to achieve finality otherwise. But taking mom’s explanation about when she thought the list was due, I am put to a consideration of those collaterals without the benefit of the assessor’s consideration of their input and without adverse inference from their absence from the assessor’s consideration because of confusion about process.

[17] Mom’s aunt, a close neighbour, a life-long friend and her friend’s mother who has assumed a grandparent role for mom’s kids because she regards Ashley as a daughter, all testified. Each supported mom’s devotion and prioritizing of her children, each described efficient handling of typical children’s behaviour, each identified Draven as a happy child in her care. They each have and would provide continuing support for mom’s efforts as needed.

[18] At trial the assessor was robustly cross examined about process. I am not persuaded that any prejudging, any bias, any irritation over scheduling, any omission in process was exposed to reduce my reliance on the report. The argued deficits are typical, non-determinative and within the reasonable expectation that there should be a skilled and structured assessment, not a perfect one. This is so particularly because its greatest assistance to the court is the assessor’s opportunity to observe the two households and the success or weakness of parenting style and strategy. The observation by this individual whose experience is directly focussed on custody/access determinants is consistent with his discussion and recommendations. I accept his report as a reliable piece of evidence.

[19] In one other respect (besides absence of mom’s collaterals) the assessor lacked significant information. On this I wish to comment because of the reason for the omission. He tried to access information from the child’s school. His explanation of what he was told is 100% consistent with what the teacher said when she later testified under summons. The assessor contacts the principal who will do no more than relay the request to the teacher. The teacher contacts her union and is told to defer it to the principal to deal with it. There it ends.

[20] I would have suspected that the fact that this was a private retainer without the usual terms contained in a court ordered Ontario Children’s Lawyer assessment might have created some additional impediment. However this assessor frequently does those OCL assessments and has found the same educator reluctance. He says it is particularly so in Simcoe County which he can fairly comment as his work extends to a wider area than that. The reluctance is extremely disappointing. The assessment was a joint retainer by both parents. It must be inferred that they both wanted the assessor to have the best information available.

[21] I can empathize, I suppose, with a concern that educators may have a worry that they may be liable in some way or, more charitably, that it may impair parent/teacher or student/teacher relations. Such reluctance was not always so. In the early years of OCL child representation (Official Guardian as it then was), I recall considerable cooperation in the effort to assist the child. If a teacher was uncomfortable talking to a lawyer or social worker about the child’s needs, the principal would inform him/herself and communicate the educators’ insights on the child’s best interests. It is regrettable that as the court system strives to improve its tools for discerning the best result for children, a significant element in the child’s world makes itself unavailable. Instead the teacher is summonsed by the litigant disputing the assessor’s conclusions and the effort to discern the child’s best interest is drawn back into the adversarial realm.

[22] The Simcoe County Boards of Education (there are of course more than one) are not present in this case to explain the heightened reluctance from the educators’ point of view, so my comments do not rise to the level of rebuke. Nevertheless I hope my remarks will contribute to a change of attitude. The family court, like educators, is engaged in effort to better the lives of children. We are not at odds. In our milieu, decisions about parental care of the child are made in the context of disputed points of view on the best interests of that child. We are presented with both sides of the story to lead us to a wise and fair resolution. That is our mandate. If educators, who are also passionate about the well-being of their students, are reluctant to assist because they are not confident in the courts or do not trust our process, their leadership should engage us in dialogue as to what would enhance that trust. I hope their leadership will recognize that meaningful input from educators into an assessment of best interests of a child, ordered by the court or requested by both parents, is immeasurably more helpful than requiring teachers to attend court on the summons of one party or the other in an adversarial context.

[23] Nevertheless, in the present case the teacher’s testimony was heard and, with the child’s report cards and IEP (Individual Educational Plan), this court has important evidence of Draven’s experience at school.

[24] I found the teacher sunny and encouraging as one would hope of a kindergarten teacher. She acknowledged the behavioural concerns documented in the reports and responded to by the IEP and reward/sanction support the school is providing to help Draven self-regulate his feelings and behaviours. However, in her sunny, encouraging way she repeatedly minimized the concerns, stating they were typical of a student moving through junior and senior kindergarten. The consistent “EM” (emerging) noted in Draven’s reports for academic and personal development in the first term evolved to consistent “DV” (developing) by the final report last spring. She praised this progress and suggested it was typical. Reading the definitions, it represents progress from Draven achieving “a few of the expectations” to achieving “some of the expectations”. In no category did he achieve the scoring for “most of the expectations” or “all of the expectations”. Of the 27 students in her class 3 have IEPs. I am not persuaded that Draven is typical. Although his misbehaviours seem somewhat benign, the educators have identified his need for special support.

[25] The identified behavioural need dovetails with acknowledged occasions of non-compliance with mom. Again, the individual behaviours are rather benign. Anyone who has parented knows that perfection is impossible and both kids and parents will have bad days. So too, accidents with tea and cutting melon do happen without negligent parenting. Mom was not negligent. But it must be said that both incidents occurred after she had directed Draven. He did not comply and hurt himself.

[26] I find the identified individual occurrences don’t tell much about parenting. Any parent with active children will have a long list of incidents. Most parents can demonstrate vigilance on most occasions. Mom’s collateral witnesses testify she is vigilant. By the absence of multiple occurrences I find that mom is most often sufficiently vigilant and dad’s concerns are exaggerated by the contest for primary care. The assessor identified that nothing reported or observed amounted to a protection concern.

[27] What you can’t fake for an assessment is pattern of interaction, not when the participants are children. Even coached, they are unable to maintain complicity in a staged performance to impress an assessor. The expectations set out for the parents by the assessor are equally demanding and potentially out of the norm for the household. Both parties being assessed are nervous by the enormity of the occasion. The requirements of the expected interaction create a stress on the group so the assessor can observe how it is managed. Patterns of interaction will emerge.

[28] It is quite true to complain that an unevenness arises when two adults interact with two similar aged children compared to one adult interacting with three children of different ages. These differences are the realities of the two options being assessed. Mom always has to cope herself with three children. Dad always has the support of his wife to manage their two children when together. Those are the plans presented by the parties. It would be unrealistic to assess a comparison contrived to be more equal. It simply wouldn’t help determine if mom or dad can manage in their own circumstances.

[29] It does not assist mom to explain that the paint Robbie put in his mouth was non-toxic or that Logan wasn’t used to being confined to one room or that the state of the premises was the result of moving recently and not having had opportunity to provide more suitable furniture. What clearly emerged was a frenetic effort to keep three kids engaged in a manner they weren’t accustomed to, ineffectiveness in controlling Logan or following through on noncompliance. The pattern of ignoring her wasn’t new to that day. Mom acknowledged that Draven has smacked her when he doesn’t get his way. The assessor testified that mom ‘didn't follow through on directions they didn't follow – a hallmark of parenting – numerous times throughout the observation.’ Children need parenting, not acquiescence in non-compliance.

[30] Nor was the state of the residence under control, even on a day when she expected to be observed. The furnishings were not the problem, it was the chaos. It must be concluded that there was no pattern of keeping things orderly. That the apartment can be tidied and furnished better for exhibit 5 and 6 pictures does not in any way refute the observation that mom’s control of circumstances in her household is slight.

[31] Relatively speaking, the home visit established that she is ineffective in achieving compliance from her kids or mastery of her circumstances. I also found that in other efforts she is relatively ineffective. Whatever the contribution of others in not accomplishing the requirements of various initiatives, she has a lot of self-reported difficulty filing change of name documentation and daycare financial information.

[32] That is not to say the children should not be in her care. She is not unfit. She has provided for their shelter, nutrition, school attendance and some activities. She is loving and they return that love. Her parenting does not attract protection concerns.

[33] Moreover she appears to be a very nice person. Her texts to the father are nice in tone, contain courteous information and honour the view that he is important in Draven’s life. She is and should be praised for this. However, in a sense, her niceness is a component in her ineffectiveness. She does not pursue Child Support Guidelines level support from the Respondent even though his income has gone up. She is content with the voluntary $250/month the father of Robbie pays voluntarily. I have no evidence whether that is remotely in compliance with Child Support Guidelines requirements. I infer that life experience, much of it quite cruel, has trained her to absorb difficulties herself rather than speak up. She is a sympathetic individual who does not deserve to be treated shabbily as she has several times been. She does not deserve to have a child removed from her care. I accept the evidence from the four witnesses, family and friends, that mom is caring, responsible and devoted in her parenting among friends and at family occasions. She is not unfit. Nevertheless in this determination as between two not unfit parents, the question is which of them can better meet their child Draven’s best interests.

[34] I accept that Draven and Logan have affection for one another, familiar intimacy as shown in their sleepy embrace in the photo at exhibit 7 and have lots of play interaction with typical spats. I make no finding that Logan is dangerous to Draven. Interventions responding to Logan’s aggressiveness at school are appropriate and even if I have only mom’s word for improvements since Logan has received new medication for his diagnosis of ADHD, I have no evidence of a pattern of aggression by Logan towards Draven that has not been managed by mom. I have little evidence specific to two year old Robbie but his mere presence is enough to infer that he is significant in Draven’s life.

[35] Taking these positives into account I turn to the father’s circumstances.

[36] Dad comes into this trial with the significant advantage of the recommendation from the assessor. It is not the recommendation itself that attracts my attention. It is the assessment that when observed in the home visit that he parents well. The manner of interaction observed cannot, as I said before, be faked. The consistency of the parenting on the day was clearly what the two children were accustomed to. Behaviour met expectations. The atmosphere was calm and natural. Dad’s direction and follow through was successful. I find this evidence compelling.

[37] As with mother’s collaterals, dad’s friend, wife and mother provided evidence of dad’s devotion, parenting style and Draven’s good behaviour in dad’s care. Their observations were consistent with what the assessor observed.

[38] Dad’s wife Samantha is an important component in the plan to have Draven switch to dad’s primary care. There is no evidence of Samantha contributing to any problem. She presented as an experienced mother. She has relationship with Draven as she was in the household through the 3 years of week about care. Her similar aged daughter, who attends French immersion, has relationship with Draven. Her mother helps out with daycare when it is needed.

[39] The paternal Grandma Sheila has been involved with Draven as long as dad has. She has been helpful to mom in the past when she lived in Orillia herself and mom felt comfortable relaying information through her to dad. The positive relationship was destroyed in the adversarial context of these proceedings as mom perceived things she told Sheila were turned against her. Nevertheless, Sheila is and has been part of Draven’s life and she now resides in London.

[40] The recommended change in primary care, thus supported, is viable.

[41] However my accepting the recommendation of the assessor to switch primary care was put to the test by dad himself. As he testified I noted several tendencies that gave me concern:

[42] I find by content, not just demeanour, that dad lacks flexibility. He is a concrete thinker who believes that things should be a certain way. On the positive side this has led him to be devoted to family, loyal to his parents, a good dad to his biological issue, responsible in establishing security and stability and making very positive changes in his own life and sticking to his resolve. However, he tends to regard anything outside his worldview as inferior. Valuing family, steady work and pedigree as he does, he dismisses Draven’s mother as inferior. He ignores the name choice she made for their child and chooses to refer to Draven as Alex because that fits his worldview. He seems unable, even after court intervention, to consider the effect this might have on Draven, this being the rejection of his name and the underlying disparagement of his mother. I find this demonstrates that dad is unlikely to be governed by court direction on parenting issues and that he will be prone to sabotage plans made to promote ongoing parental relationship between Draven and his mom.

[43] A related concern is dad’s presentation as a man from the 1950s. I saw no evidence of evolving sensibilities. He believes in “Father Knows Best” in an era of “Modern Family”. Lack of give in his brick wall personality predicts challenges that will arise when the inevitable imperfections of parenting arise. His proposed confrontation of school officials in dealing with an incident when he had built no relationship nor pursued basic and necessary insight into his child’s progress, demonstrates poor strategies for promoting Draven’s best interests.

[44] Further to that, the complete failure to learn of, engage in or ask about Draven’s experience at school while at the same time declaring his intention to enrol him in French Immersion demonstrates remarkable naivety about educational issues. Again, I find dad’s concrete worldview of how things should be blinds him to consideration of the factors relevant to the decision.

[45] Because he dismisses mom as inferior and irrelevant he has not communicated meaningfully. I am not particularly worried about uncourteous remarks he has texted. They are unnecessary but the level of conflict is quite muted. Rather, it is a concern that he does not respect the mother’s importance in Draven’s life sufficiently to provide her with information about Draven’s well-being in his home. Such information would have the dual benefits of allowing both parents to contribute to Draven’s needs and not be ignorant of them as he is of Draven’s school situation. It also promotes some consistency of parental approach whether in the care of mom or dad. A parenting schedule is part of both proposals before me, yet dad demonstrates a continuing unwillingness to make the ease of that possible and beneficial to Draven by coordinating efforts.

[46] As to joint custody and decision-making for the child, mom inquired about baptising Draven and respected dad’s refusal. I suspect dad would have no such courtesy or respect for mom’s opinion on any significant decision relating to Draven’s wellbeing. Has he asked her what she thinks of French Immersion? Not that I heard about.

[47] These personality traits argue against placing Draven in dad’s primary care because it puts at risk the continuity of relationships important to Draven with his mother and brothers. Any order placing Draven with dad would have to be very concrete as to his responsibility to facilitate those relationships, like it or not, with concrete consequences for failure to do so.

[48] Whether Draven should be placed in his father’s primary care, as recommended by the assessor comes down to weighing the advantages of that to Draven’s best interests against the risk of loss of relationship with his mother and brothers which would, I find, be contrary to his best interests.

[49] Counsel for the mother has provided ample case law supporting the principle that siblings should be raised together absent compelling reasons not to do so. Nioga v. Ndjouga [2015] ONSC 5925 para 163. This is so even when the siblings are brought together from blended origins. Wilson v Wilson [1997] CarswellNB46. Wardell v. Perreault 2011 ONCJ 288. The sort of compelling reasons that may justify splitting them are recognized by Professor Julian Payne as: 436: sibling hostilities, wide age differentials in the ages of the children, the special needs of particular child, undue financial and emotional stress that would result from placing all the children in one home, or the inability of a parent to discipline some of the children. L(ME) v H(PR) [2010]CarswellNB678.

[50] Moreover, the court needs no stare decisis precedent to cleave to the idea that siblings are significant to best interests having my own enduring sibling relationships and raising siblings who continue to take joy in one another. Mom knows the value of family bonds because of the sorrow of losing it. Dad knows because of the joy of having it. I remind myself that for a considerable portion of his life Draven was in the week about care of his mother and his father. He has sibling relationship in both places. Nevertheless, there is no doubt that the recommendation to place Draven away from his brothers engages a difficult choice between that potential loss as compared to the benefits to the child of primary care from his father.

[51] Both parties asserted pros and cons of the respective parenting plans based in the criteria set out in section 24 of the CLRA:

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).

[52] This section is not a checklist but a valuable reflection of the gathered insight of courts, legislators and multi-discipline insight into factors that impact on a child’s well-being. They are fully internalized components in every parenting adjudication.

[53] In the present case both of these parents are fit and the factors are neutral as between them except as discussed earlier. The mother struggles to effectively control circumstances that impact on her life and is ineffective in follow through when her children do not comply with her direction. But she has provided adequate primary care over the last year and a half and interrupting that carries potential loss of important attachments between Draven and his mother and brothers.

[54] The father provides consistent parenting, though inflexible in his attitudes such that he has not demonstrated that he would protect Draven’s relationship with his mother and brothers.

[55] Draven’s views and preferences cannot be reliably ascertained and even if they were, at 5 he would have no insight into his need for consistency in parenting.

[56] And there it is. Draven has demonstrated need for support in self-regulating his feelings and conduct. Without consistent support, not just at school but most especially at home, the behavioural difficulties already apparent though rather benign in a 5 year old, may become unmanageable by others and by himself. He may be deprived of opportunity to develop necessary self-discipline if deprived of consistent discipline now.

[57] Discipline is a strong word. Neither parent here is harsh. By “discipline” I mean a clear set of expectations, direction to assist a child in meeting those expectations and follow through if by non-compliance the child is unable to benefit from the direction. I mean parenting, not acquiescence or mere reaction to misbehaviours as they inevitably occur because the child has not developed patterns of self-regulation. Good discipline is obvious when observed though difficult to describe. It is a seamless, consistent celebration of compliance and correction of non-compliance. After a while you observe nothing at all because the child has benefitted from the consistency and requires very little re-direction.

[58] I find that in the hierarchy of needs for Draven, as a particular individual child, the one difference between the benefits each of his parents has to offer which will be of greatest significance to his development, is the ability to provide discipline as I have just described it. Without parental support in that aspect of his development his future may be bleak. His mother and his father sharing a parenting schedule that gives Draven time with each can, I find, meet his other needs. Continuing in the primary care of his mother who struggles with effectiveness generally and discipline (as described) particularly, could result in Draven’s inability to self-regulate his feelings and behaviour. That is not in his best interests.

[59] I have therefore determined that the parenting schedule shall put Draven in the primary care of his father.

[60] Because of the inflexibility of the father’s attitudes and my misgivings that he may fail to honour the imperative that Draven spend ample time with his mother and brothers, I have prepared, as part of this judgment, a detailed three year calendar that can only be altered by AGREEMENT, IN ADVANCE, IN WRITING. My purpose is that failure to adhere to the schedule can be police enforced. I order police enforcement rarely because police involvement sends a damaging message to children. However, in this instance the father must recognize that if police must become involved, to the emotional detriment of Draven, the father bears the responsibility.

[61] I order that the father provide all the transportation (through himself, his wife or an agreed list of adult drivers) as the mother has no means participate in transportation.

[62] Recognizing not only the heavy burden this duty to provide transportation places on the father but also the toll of frequent travel on a child, I am setting the parenting schedule for alternate weekend exchanges. This has the further advantage of allowing each parent to schedule activities for Draven, including group/team activities that may be available for alternate weekend participation. PD days are to be added to the contiguous weekends.

[63] The fixed schedule attached at Schedule A to my reasons allows for planning far in advance including coordination with the parenting schedule for Arya in dad’s home and Robbie and Logan in mom’s home.

[64] A careful read of the schedule demonstrates only a small reduction of time compared to the 3 of 5 weekend regime they have had in place most recently.

[65] A telephone call (or Skype if available) shall be placed for the child to communicate with the other parent every Wednesday night between 7pm and 8pm. (or such other fixed time as the parties determine by AGREEMENT, IN ADVANCE, IN WRITING).

[66] A photograph of Draven shall be sent electronically to the other parent by each parent no less than once a month and for all special occasions while the child is in their care including Christmas celebration, birthday celebration, performances at school or other organized activities, team photos.

[67] Copies of all written reports received by either parent about Draven’s welling shall be sent (on paper or electronically), including school reports, health assessments or directions, activity participation reports.

[68] Each parent shall provide the name and contact information for all Draven’s education, health and activity providers and inform such resources, in writing, of the name and contact information of the other parent and provide such authorization as may be required by the resource to share information with the other parent upon request by that parent.

[69] The parents shall consult each other on significant issues relating to Draven’s well-being, including elective health procedures, school placement/programming, counselling, and religious observance.

[70] In the event of disagreement the father shall have the final decision making on elective health procedures, school placement/programming, and counselling. Specifically he may enrol Draven in French emersion if, after consulting with the mother as to Draven’s experience with school, he decides that Draven can manage in French emersion.

[71] In the event of disagreement the mother shall have final decision making on religion. She has already consulted the father on the issue of baptism. They disagree. She may proceed if she decides to do so.

[72] The schedule includes shared summers. I find that for the mother to offer care and activities that are not disproportionately impoverished compared to the father’s household, child support payable by the father to the mother is required. It must be received in time for the mother to plan and use the support so my order for support is for the father to pay monthly child support in June and July of each year. I fix it in accordance with his 2014 income of $86,130 and the Contino principles at $771/month . Because of the disparity of income a set off is inappropriate. Support Deduction Order to issue.

[73] I inquired about a standard of living calculation at trial to consider whether s10 hardship impacts the child support obligation of the mother. It was conceded that if child support were claimed from her as payor, the standard of living calculation would demonstrate her household has a lower standard of living. Her income 2014 was $18,457. If full table support were fixed according to the Child Support Guidelines her monthly requirement would be $146. Bearing in mind that she supports two other children, the hardship is palpable. Furthermore the father has underpaid child support as his income rose such that her obligation would be set against that claim. I make no order that the mother pay child support. She will be expected however to pay for Draven’s extracurricular expenses when he is in her care.

[74] I make no order what name the child will be called informally by either parent. That has shown itself to be a useless exercise. Either parent may apply for a formal name change to Draven Alexander Callaghan. He shall be registered in school, medical procedures, counselling and religious institutions by his full name. It is hoped, thinking optimistically, that Draven will enjoy his pet name in each household as a sign of the affection of the adults in each home environment.

[75] Parties may address the issue of costs by written submissions of no more than two pages together with Offers and a Bill of Costs. Respondent Father by December 11, 2015 and the Respondent Mother by December 16, 2015; Reply December 18, 2015 to Hilda Van Beek, Judicial Secretary in Barrie.

EBERHARD J.

Released: December 3, 2015

SCHEDULE “A”