Court File and Parties

COURT FILE NO.: 854-13 DATE: 20160429 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Susan Jennifer Spry, Applicant – and – Ronnie Berty Esteves, Respondent

Counsel: Todd Jenney, counsel for the Applicant Steven Benmore, counsel for the Respondent

HEARD: February 8, 9, 10, 11, March 1 & 2, 2016

Justice Lemon

Judgment

The Issues

[1] I have been asked to solve three problems. The parties agree that the interim order should stay in place subject to three potential changes.

[2] First, Ms. Spry says the order should simply be made into a final order. Mr. Esteves says that the word “custody” is unnecessary and should not be used. He suggests that I should use “joint custody or parenting or caregiving or some other term that does not promote one parent and demote the other.”

[3] Second, Mr. Esteves says that he should have his access to the children extended to Thursday night from the present plan. Ms. Spry says that it should stay as it is.

[4] Third, if that increased access is granted, Mr. Esteves submits that the children will be with him 50% of the time and his child support obligations should be varied from the present order to account for that change.

Background

[5] The parties were married September 9, 2000. They have twin boys, now 7 years of age.

[6] Although there was a dispute about the date of separation, the parties’ interim separation agreement acknowledges that they separated June 29, 2013. Mr. Esteves left the home in March of 2014. The interim separation agreement was dated May 26, 2014.

[7] The parties made an effort to resolve their issues and a mediation retainer agreement was signed on November 10, 2014.

[8] Problems continued and, on an interim basis, Snowie J. ordered specific terms of custody, access and support on March 30, 2015. I will deal with those terms according to each question that I am to resolve.

[9] Neither party requested a voir dire with respect to hearsay statements of the children regarding their wishes or preferences. The parties made a joint request to the Office of the Children’s Lawyer but the OCL declined to be involved. Accordingly, there is no direct evidence of the children’s wishes in this trial.

Custody

[10] Justice Snowie ordered that Ms. Spry have sole custody of the children on a temporary basis. Further terms included:

(xiii) Both parents should be entitled to attend the children’s school events, sports events, extracurricular activities and any other activities the children are involved in and/or enrolled in. In addition, they may individually arrange parent-teacher meetings.

(xiv) The parent having care of the children each day shall make daily decisions regard their welfare.

(xviii) Alternate Dispute Resolution – In the event that the parents are unable to reach an agreement regarding the terms of this Parenting Plan, or any other matter related to the children, they shall utilize the services of either a mediator and/or parenting coordinator to assist them. The parents will also authorise this person to have the right to arbitrate the situation if resolution is not reached.

[11] Justice Snowie’s handwritten endorsement does not refer to these terms. There is no explanation in the order of the “Parenting Plan” as set out in subparagraph (xviii). I take it that these terms must have been included on consent.

Positions of the Parties

[12] Ms. Spry submits that, on the evidence, custody should remain with her. Mr. Esteves seeks an order that grants joint custody, shared parenting, or principal residence of the children to Ms. Spry. He seeks any arrangement other than one in which Ms. Spry will have sole custody. He asks: “Why is custody, as requested by Ms. Spry, necessary in these circumstances?

[13] Mr. Esteves relies upon the Ontario Court of Appeal decision in M. v. F., 2015 ONCA 277, [2015] O.J. No. 2048 (Ontario Court of Appeal). There, Benotto J. said:

[38] The Ontario legislation does not require the trial judge to make an order for custody. Section 28(1) (a) of the CLRA is permissive, not mandatory: The court … by order may grant the custody of or access to the child to one or more persons (emphasis added).

[39] For over twenty years, multi-disciplinary professionals have been urging the courts to move away from the highly charged terminology of “custody” and “access.” These words denote that there are winners and losers when it comes to children. They promote an adversarial approach to parenting and do little to benefit the child. The danger of this “winner/loser syndrome” in child custody battles has long been recognized.

[40] It was therefore open to the trial judge to adopt the “parenting plan” proposed by the assessor without awarding “custody.” It was also in keeping with the well-recognized view that the word “custody” denotes “winner” so consequently the other parent is the “loser” and this syndrome is not in the best interests of the child.

The Evidence

[14] Counsel wisely agreed that all witnesses’ evidence in chief was to be by affidavit, supplemented by brief questioning in chief and then each witness was cross-examined. This is good practice and should be encouraged.

[15] I have summarized the evidence of the parties under what appears to be the areas of greatest dispute: their history of co-operation, Mr. Esteves’ challenges with alcohol and Mr. Esteves’ anger management.

[16] The affidavits are detailed and lengthy; they refer to prior affidavits which are equally lengthy and detailed. I have reviewed them and the cross-examinations. I have summarized the larger issues here.

[17] Mr. Esteves points out that while he acknowledges the good qualities of Ms. Spry, her material does not acknowledge any positives in him. That may well be. The judge in any trial only needs the evidence relevant to the issues to be determined. Ms. Spry has complained about several matters. I can presume that, other than those issues, Mr. Esteves is a competent father. If family litigants were required to set out everything upon which they agree along with everything they disagree, litigation will be even lengthier and more costly than it is already.

Evidence of Ms. Spry

Family History of Co-operation

[18] While the parties were together, Ms. Spry says that Mr. Esteves rarely saw the children. Rather, he left for work at six in the morning and did not return home until evening. He often went an entire day or sometimes several days in a row without seeing the children. He was not involved in the care of the children while they were together. If the children were sick at school, she was the parent that went to the school to pick them up. She worked about 20 minutes away from the school while he worked about an hour away.

[19] Since separation, Ms. Spry says that Mr. Esteves has been uncooperative arranging a doctor for the children, assisting with homework, and arranging for speech therapists. He has not been forthcoming about the children while they are in his care. Their parenting coordinator has required that they meet with her separately, since they have been unable to work together.

[20] They have been required to use their parenting coordinator for section 7 expenses, the location of the children’s soccer, the division of household contents, 2016 summer access and the children's first communions. Mr. Esteves has refused to pay for the babysitter arising out of an agreement relating to a weekend in September of 2015.

[21] Ms. Spry needed to involve the lawyers to get the children’s passports returned from him.

[22] Ms. Spry lives with the children in Erin. Since separation, Mr. Esteves has been living in Rockwood; approximately a 20 minute drive away. Despite the order of Snowie J., Mr. Esteves almost immediately enrolled the children in soccer in Rockwood without consulting with Ms. Spry. They were already enrolled in soccer, by an earlier agreement, in Erin. He was the coach for soccer in Erin. However, when he moved to Rockwood, he signed them up there without notice to Ms. Spry.

[23] He has deducted expenses from child support without her consent.

[24] She does not see one or the other to be a “winner” or “loser” as a result of the trial. She understands that he does not want a hierarchy in parenting but she does not see it that way. They are equal parents but she should have custody and he should not.

[25] The parties had agreed upon an interim agreement that did not include the word “custody”. Rather, it referred to a temporary care arrangement. She understood the agreement and signed it without fear, threats or compulsion. She understood that the agreement was an interim agreement and "without prejudice". It was not to remain the same forever but was rather a start or a basis to go forward. Although the agreement was not the final agreement, she wants no changes from it now.

[26] Her initial ex parte motion in March of 2014 asked for temporary custody and exclusive possession of the home. She withdrew her claim for custody when he agreed to her having exclusive possession of the home. She thought that the request for custody was in the alternative and when he moved out, she withdrew her custody claim. In any event, all he agreed to was interim exclusive possession.

[27] That was the same for a mediated agreement. The agreement was to be in place until there was a final order but there was no reference to holiday access in the agreement. The mediation came to an end when they could not agree on the word “custody”, the summer schedule or other access terms.

[28] He brought his motion March 30, 2015 to add Thursday night access. She denied that request and brought her own motion which resulted in the order of Justice Snowie.

[29] She wishes to use the term “custody” so that she can take care of the boys and have decision-making authority to pursue their best interests.

[30] When they lived together, decisions were made after they talked together. From 2013 to May 2014, they discussed and made decisions together. From May 2014 to March 2015 they were separated but were still able to make some joint decisions.

[31] They then went to mediation with Ms. Mackenzie for child and parenting issues. They were not successful with Ms. Mackenzie and that led to the Snowie J. order. Even afterwards, they were able to make parenting decisions by way of the parenting coordinator. However, even using the parenting coordinator, they have not been able to agree on summer access for 2016, and terms of the boys’ first communions. Mr. Esteves raised all of the issues to go to the parenting coordinator except summer access in 2015.

[32] The parenting coordinator is also to assist them in improving their communication. They are all working towards communicating better together and more time will hopefully improve that.

[33] She agrees that the children have not suffered as a result of their inability to make decisions. In the last 11 months, there have been no problems for the children. However, they could still use the parenting coordinator going into the future. She agrees that they still need the parenting coordinator.

[34] She knows about the family Wizard and agrees to use it. That, too, can provide for better communication.

[35] The boys love their parents equally and have a strong emotional tie with their father. They enjoy their relationship with him and his family. The boys appear to spend less time with members of her family.

[36] Mr. Esteves lives with his mother in a three-bedroom bungalow. She has no concerns with respect to any danger to the children in that home. She believes that it is good for them to see their grandmother.

[37] However, Ms. Spry does not believe that Mr. Esteves can provide a healthy emotional environment for the children because of his demeanor, anger, stress and body language. He has behaved badly in front of the children even as late as July, 2015.

[38] She believes that there is greater consistency with respect to routines and homework in her house. She has not written out a schedule for him because he should already know it. She does not know the children’s schedule at his residence.

[39] She agrees that he has no physical limitations.

[40] The parenting coordinator agreement is a two-year contract signed July 16, 2015. She says that the parties cannot cancel the contract. Although there is an arbitration term, there has been no award to date.

[41] She confirmed that he showed no interest in the children until after separation and was not involved in their routines before separation. Since separation, however, he has been forced to be a parent. He still does not read to the children, or help them with their homework; rather, they spend time with their cousins. Although she does not know what goes on at his house, she has seen the incomplete homework.

Alcohol

[42] Although Mr. Esteves now admits his difficulties with alcohol, he has denied that in the past.

[43] Ms. Spry has filed a letter from Mr. Esteves acknowledging his drinking problems in 2004. As far back as 2010, he was impaired while taking care of the children. She says that he attended Alcoholics Anonymous in September to December 2012 but then returned to drinking.

[44] One of the issues at the interim motion in March of 2015 was Mr. Esteves’ abuse of alcohol. He denied having any problems. However, on June 16, 2015, he crashed his motor vehicle, was arrested and was charged with impaired driving.

[45] She agrees that one can learn from their mistakes but she has not seen any change or improvement from him to date. She believes that if he is not making good decisions for himself, he cannot make good decisions for the children.

[46] He has had problems with alcohol since early in the relationship but has denied that he had a drinking problem. Although he wrote a letter to her in September 2004 about his problems, he did nothing about it until after separation. The children have made no complaints about his conduct that suggest that he is drinking with them.

[47] Her greatest concerns come from an event in August of 2014. She is certain that he was drunk when he drove into his driveway and met her as she dropped off the children.

[48] There have been no other examples of alcohol problems in the last 10 months. There have been no complaints from teachers, the police or Children's Aid.

Anger Management

[49] Mr. Esteves was charged with public mischief in 1993 when he damaged an ex-girlfriend’s boyfriend’s car.

[50] When she raised the possibility of separation, he “ransacked” the house looking for the children’s passports. The police were called and Mr. Esteves was asked to leave. She had family friends stay with her for the night.

[51] When he received a letter from her lawyer about their separation, Mr. Esteves punched a hole in the wall of their kitchen.

[52] He attacked her the night of March 9/10, 2014 and that led to her emergency motion on an ex parte basis to obtain exclusive possession of the house.

[53] She has complained about the number of text messages that he has sent to her. She refers to them as "bully tactics". Although she complains of his texting and emails, she has provided very few of those to support her case.

[54] She says that he has sworn at her in front of the children. He has been verbally abusive to her in a public arena when the children were playing hockey.

Evidence of Mr. Esteves

Family History of Co-operation

[55] Mr. Esteves denies that they are unable to co-operate. To the extent that there have been problems, he sees that as the result of Ms. Spry’s unreasonableness and her wish to thwart his relationship with the children.

[56] With respect to soccer in Erin, they had started to talk about soccer there but they did not agree. At no time did he consent to soccer in Erin. When he took the boys to the library in Rockwood, he saw a poster for soccer. Since he was living there, he wanted the boys to be part of the community but she refused.

[57] When they discussed soccer in Rockwood, it was not a good conversation. He tried to explain that that was where he lived. But they did not agree. The end result was the children played in both places.

[58] Ms. Spry’s home is about a 10 to 15 minute drive from their old home and about 20 minutes from his mother's home. They played soccer in Rockwood on Saturdays [on his weekends] and in Erin on Wednesdays. On his Wednesday night access, he picked them up from school in Erin, drove them to Rockwood for dinner and a change and then back to Erin for soccer.

[59] He was then shown the text messages between them on March 9, 2015. He wrote to Ms. Spry:

1. Can you please send me the website for soccer as I would like to coach the boys this year.
2. Both [boys] will be playing soccer so you can sign them up please send me a receipt.

[60] On April 2, two days after she was granted interim custody, he wrote:

I registered the boys for soccer up here.

[61] He agreed to pay his share of Erin hockey. He bought the hockey equipment because he knows what to buy and she agreed with that. She agreed to pay her share. Rather than have her pay him for the equipment and him pay the support, he deducted that from the support. She agreed with that and did not complain about it over any emails. However, she did complain over the phone.

[62] He agreed that she has made efforts to make sure he is notified with respect to the children’s activities.

[63] The parenting coordinator, Ms. Murie, has assisted both of them on how to communicate better.

[64] Although he could not explain what first communion was, he wants the boys to celebrate it as both he and his nieces and nephews have. Ms. Spry is not of the same faith. He raised it with her and asked what her feelings were. She said that if it occurred on his weekend, that was fine but if it occurred on her weekend, that was too bad. It had not been resolved as of the trial.

[65] The children go to a Catholic school and were provided with a booklet by one of the teachers. He has been going through that booklet with them. Neither of the children like going to church. One of the children has ADHD and is now on medication. He finds that one hour in church is too long. He has trouble in school and with structure.

[66] The boys have a counselor and they have gone to her three times. He has asked to change the counselor but Ms. Spry will not agree.

[67] He was aware that the children’s doctor was changing practice and they needed a new doctor. His doctor was familiar with both of them and had also seen both of the children. He suggested that they use that doctor but Ms. Spry said no. She would not even speak with him about that.

[68] He does help the children with their homework as best he can. On one occasion, he was not sure how a homework form was to be filled out. He read with the children as required but just did not fill out the form.

[69] He denies that he was minimally involved during the marriage.

[70] He agrees that after the birth of the children, he went back to work a week later. Ms. Spry remained on maternity leave for 13 months.

[71] He agrees that he did side jobs at work to provide for the family. He worked long hours and overtime. However, he pointed out that when he was working in Mississauga, he might still be home by five. He normally worked until four and could do odd jobs after that. When he returned, he helped out with the children.

[72] When Ms. Spry went back to work, the mothers looked after the children for a year and then a babysitter took over.

[73] He agrees that Ms. Spry is a good person, a “great mother” and he has nothing critical to say about her. She researched daycare. She did the research about ADHD. But they both made medical appointments and took the children to daycare. He sometimes questions her decisions.

[74] When he was an inpatient in alcohol rehab, she agreed to access.

[75] They need to have an equal partnership. Historically, they made decisions together and he wants that brought back. He does not want to be the first or second parent but to parent together. When they have a conflict, they need to communicate better. They need to set aside the court proceeding. The status quo is not good for either of them.

[76] He sees the term “sole custody” as generating a hierarchy between the parents. He says that she is using the sole custody title to make decisions. He is concerned that the boys will see their parents as winners or losers.

[77] He does not know why she wants sole custody. He remembers only first hearing of that when they were speaking with Ms. McKenzie. He was surprised, flabbergasted and cried.

[78] He agrees, however, that there are no winners or losers here. He agreed that she does not use the terms “winners” or “losers” and neither have the children. He agreed that children will still see them as mother and father.

Alcohol

[79] He agreed that he did downplay his alcohol use but he was a “functioning alcoholic.” He drank every day but he was very good at hiding his alcohol use. Ms. Spry knew and his family physician, Dr. Goyal, knew but no one else did.

[80] When he was charged with impaired driving in 2015, he realized that he had an addiction. That was “an eye-opener” to him. He then finally asked for help. On October 2, 2015, he entered Homewood for treatment. He has been supported by family and friends. He sees Dr. Goyal on a regular basis along with doctors from his employer. He sees an aftercare worker on Mondays. He realizes that he cannot have another drink and is now more forthcoming about his addiction.

[81] He denied that he had a problem with alcohol before 2012. He agreed that he wrote the 2004 note to Ms. Spry about his drinking. Having been provided with his letter to Ms. Spry, he agreed that he promised to slow down but did not. He did not think that he needed to. He did not see it as a problem. He agreed that he made promises before that; however, as he says “that’s what alcoholics do” – “they cover-up and say things that are not true”.

[82] From September 2012 to December 2012, he was dry. He was sober for four months until his father passed away. He only went to AA to help his marriage but does not believe that he was an alcoholic in 2012.

[83] He did not deny his charge of impaired driving to their parent coordinator, Ms. Murie. Rather, when she brought it up, he sighed and told her about it. He was afraid that Ms. Spry would use that to take the children away from him.

[84] He was upset at Ms. Spry for not helping him find a rehab center; he should have received more support from her.

[85] He denied that he was drinking and driving when she dropped off the children. She had texted and asked him where he was. He was not drunk and did not drink that day. The following day was his birthday and he was to have the children for his birthday. He was happy about that and the children were playing with him on the lawn.

[86] After he was charged, he was not legally able to drive and took that order seriously. He did not text Ms. Spry that he was driving while suspended.

[87] He agrees that his affidavit of March 18, 2015 was false when he said that he was not, nor ever had been, addicted to drugs or alcohol. He said that was not the truth but he was in denial. He knew that the court would rely on that affidavit for the motion on March 30, 2015. He agrees that he said that he was not an alcoholic when he was.

[88] He agreed that in 2013, he told his doctor that he was struggling with alcohol. They looked at rehab facilities and other coping mechanisms but Dr. Goyal did not refer him to rehab.

[89] He agreed that he did not disclose in his affidavits that he was on prescription medication for depression and lied about his addiction: “That’s what alcoholics do”.

Anger Management

[90] Mr. Esteves says that he has never verbally abused Ms. Spry and never called her names. He has never raised his voice to her and never touched or assaulted her.

[91] With respect to the altercation in March 2013, he explained that they had planned for him to take the children to his sister's so that Ms. Spry could have a night at the house with her girlfriends. The night before that, she said that she wanted a separation. When she said that, he packed his things and went to his friend’s. He then called the next day but she did not say much and he went home to talk with her. They had just moved to Erin into a bigger house with a bigger mortgage. He said that he was taking the boys for the evening and she said no. He knew that one of her girlfriends had recently separated and an issue of passports had come up. He therefore asked where the boys’ passports were. They both got upset. He went through the closet looking for the passport and threw the clothes on the floor. She called the police and they came. The police spoke with both of them and suggested that he leave and so he went to his mother's for the night.

[92] The next day he came back and the door was unlocked. She was sleeping and he got into bed with her. He said “I love you” and she said “I know”. The boys knew nothing about the altercation. He did not touch her or push her. He made no threats and no effort to scare her. They never spoke about the incident again and life went along as usual. They were intimate and discussed the boys without incident.

[93] He denied that he was abusive or harassing with his email. He remembered that when he was discharged from Homewood, although he had called every night to speak with the children, he had been out of communication with Ms. Spry. He wanted to know what was going on with the boys. He only emailed her a few times; at least that's all that he can remember. It was not 21 or 33 times. He has seen no record of it. He never bullied her. He denies being a bully or a controller.

[94] At first, he said that he never raised his voice to Ms. Spry but then admitted that he had done so while meeting with both Ms. Murie, their parenting coordinator and Ms. Mackenzie, their mediator. He says that this is not characteristic of him.

[95] He is dealing with his stress and alcohol addiction with a psychologist, AA, aftercare, prayer, meditation and going to the gym.

[96] He does agree that he committed public mischief to his ex-fiancée’s boyfriend’s car.

[97] He agrees that he punched a hole in the wall of the kitchen.

[98] He agreed that she could have exclusive possession of the home because he did not want to spend money on a lawyer. He denies that he assaulted her that night but did not file a responding affidavit. She threatened him with court proceedings and she started the whole process.

Evidence of Friends and Family

[99] Both parties filed affidavits from friends and family. As one would expect, they are supportive of the parent on whose behalf they are filed. As one would not expect, they are full of hearsay. If a family member filed an affidavit, they were cross-examined as to bias. If a family member did not file an affidavit, I was asked to draw an adverse inference that they would not have given favorable evidence. Damned if you do; damned if you don’t. They were, by and large of little benefit to me but I will give a sense of what they were supposed to tell me.

Ms. Spry’s Witnesses

Joanne Amoroso

[100] Ms. Amoroso was the family daycare provider from April 2010 until November 2011. The children were 19 months to three years of age. The children were with her from 7:45 a.m. until approximately 5:00 p.m. Ms. Spry picked up the children and dropped them off 99% of the time. She also picked them up when the children were sick. All of the daycare payments were made by Ms. Spry.

[101] She only knew Ms. Spry as a customer at the daycare. They have not had a social relationship and she has not seen her for more than four years. She has not seen the children or spoken to them since then. She knows nothing of their relationship with their father since that time.

[102] She did not have any contact with Mr. Esteves except on a handful of occasions when he picked up the children. He seemed to be fine, he was not erratic, she had no concerns about alcohol and the children went with him. They were not hesitant, afraid or upset. She had no concerns about his parenting.

[103] While this gives some support for Ms. Spry’s suggestion that she was primarily responsible for the children, this does not seem to be rigidly disputed and this is very old evidence in any event.

Marina Booton

[104] Ms. Booton was a co-worker of Ms. Spry. She agreed that most of her affidavit is based on what she was told by Ms. Spry. Only events that she recounted of August 29, 2013 and September 7, 2013 are from her own observations.

[105] With respect to August 29, 2013, Mr. Esteves called her at home about the letter that he received from Ms. Spry’s lawyer. He did not appear drunk and was not yelling or screaming. She was not afraid of him. He told her that he was working on the marriage.

[106] On September 7, 2013, he came to her house to talk about the lawyer’s letter. He was not yelling and there were no threats. He appeared to be angry and sad. He appeared to be irrational in approaching her to help him fix the marriage. She was sufficiently concerned about his behavior that she contacted her employer's counseling service.

[107] She saw him at a soccer game and his behavior was angry and hostile. This showed from his “body language and glares he was directing at us”.

[108] From this, I can be satisfied that Mr. Esteves was upset about the separation and was not dealing well with it, two and one-half years ago. That does not help me much with the present problems with which I am left to deal.

Jennifer Lively

[109] Ms. Lively has known Ms. Spry since they were in grade 1. She is a good friend to her, cares about her and supports her. She admits that most of her affidavit is hearsay.

[110] The fight on March 19, 2013, was the only one that she was aware of. This was three years ago. She did not think that it should characterize Mr. Esteves for all time.

[111] This is of little use to me.

Shelley Small

[112] Ms. Small has been Ms. Spry's friend for over 30 years; she describes herself as her best friend. She came to court to tell the truth and support Ms. Spry. She wants the best for the two children and, to her, that means sole custody to Ms. Spry. She does not know whether an extra night of access would hinder or help.

[113] She agreed that much of her affidavit was information that was provided to her by Ms. Spry.

[114] She did see Mr. Esteves drinking in his garage about 12 times over five years.

[115] She is sure that Mr. Esteves has done some good for the children but she could think nothing positive to say about him.

[116] This evidence does not assist.

Evidence of Mr. Esteves’ Witnesses

Paul DaCruz

[117] Mr. DaCruz is Mr. Esteves’ brother-in-law. He is married to Mr. Esteves’ sister. They have been married 20 years. He came to support his brother-in-law and to tell the truth.

[118] He describes Mr. Esteves as a loving father with a good relationship with his children. The children are healthy, happy and well-adjusted. He has seen his brother-in-law every week since separation and 2 to 3 times per month before that.

[119] He was not aware of Mr. Esteves’ problems with alcohol until last year. He found out that Mr. Esteves was an alcoholic at the time of Mr. Esteves’ arrest for impaired driving in June 2015. Before that, he had never seen an occasion when Mr. Esteves was intoxicated. Mr. DaCruz is uncomfortable around people who are drunk and he has never been uncomfortable with Mr. Esteves. He agrees that Mr. Esteves hid his alcohol use. He did not know that he had a problem back in 2012 and did not know that his doctor recommended rehab in 2013.

Gianni Fregona

[120] Mr. Fregona came to court as a friend to Mr. Esteves and wanted to support him. He too described Mr. Esteves as a loving father to his boys. The children are doing well and are well cared for. Only after separation did he spend time with Mr. Esteves. Mr. Fregona is now aware of Mr. Esteves’ struggles with alcohol. He had no concerns if he left his own sons with Mr. Esteves.

[121] It has been a long time since he has seen Ms. Spry. Between the time of marriage and separation he was once at their house and they were once at his house.

[122] He said that he was fully aware of Mr. Esteves struggle with alcohol but only since June 2015. It would surprise him that Mr. Esteves admitted to alcohol use in 2004. It would not surprise him that a doctor may have referred him to rehab in 2013. It would not surprise him that Mr. Esteves would have denied the use of alcohol. In February 2015, he would have said that Mr. Esteves was not an alcoholic. Mr. Esteves kept that from him.

Genny DaCruz

[123] Ms. DaCruz is Mr. Esteves’ sister. She was there to support her brother. She wishes the best for both him and the boys. She described him as a loving and attentive father. The children are thriving and happy with him. She describes his problems with alcohol as his “only blemish”. He is now taking responsibility for his actions and is “clean and healthy”. She and the family are assisting him with his rehabilitation.

[124] On June 29, 2013, Ms. Spry phoned her and asked her to come over to the house. When she arrived it was "obvious that he had a couple of drinks". He was upset, loud and using foul language. She could not remember exactly what he said. He asked her to leave but she did not remember whether he said “shut up”. They had tea together while Ms. Spry sat in the living room. She then spoke with Mr. Esteves in the garage for some time.

[125] She only realized that Mr. Esteves had problems with alcohol at the time of the accident in June 2015. She agreed that Mr. Esteves kept his alcohol problem from both her and her family.

Esmeralda Esteves

[126] Ms. Esteves is Mr. Esteves’ mother. Mr. Esteves has lived with her since separation. She agreed that she came to court to provide the truth and has the best interest of her grandchildren and son in mind. She described Mr. Esteves as a loyal, hard-working and committed individual. He is attentive to the boys. The children are doing well and are happy and well cared for. She is aware of his problems with alcohol and is supportive of his recovery.

[127] When the children are at her house, she does some of the bathing and makes meals and he helps her. He sets the table when he comes home. She does assist with the children but he does “everything”. Since she is at home and retired, she helps out.

[128] Although she knows Mr. Esteves well, she did not know that he was an alcoholic. She had no idea in 2013 or 2014.

The Professional/Independent Witnesses

Evidence of Wendy MacKenzie

[129] Ms. MacKenzie was asked by both parties to be involved as a mediator with respect to parenting issues. She met with Mr. Esteves on December 5, 2014 and Ms. Spry on December 22, 2014. She also met both children with each parent. She then met with both parents jointly on one occasion. She said that both were cooperative with her.

[130] Ms. MacKenzie’s open mediation report was filed as an exhibit. At trial, she said:

Q. (Mr. Benmor): In the second page, first full paragraph, you say, Mr. Esteves feels that they are able to communicate on matters involving the children. Ms. Spry does not feel that they communicate. What are your independent observations about their ability to communicate?

A. They had great deal of challenge communicating with each other.

Q. And why?

A. They seem to shut each other down and not listen.

Q. You say “they”, was -- are -- are you really meaning one person didn’t listen or are they each equally didn’t listen?

A. No, I think both of them have that problem as Mr. Esteves becomes more emotional and he’s not able to communicate, he raises his voice and then Ms. Spry backs down and she won’t communicate and whereas when Ms. Spry puts forward an idea, Mr. Esteves is very set in what he wants and doesn’t open up to hearing other options, and that’s where I had made the recommendation of a Parenting Coordinator to help try to -- we try to get clients to see the other areas. Okay, this -- you’re doing this -- you’re acting like that -- you’re not looking at these factors when you’re making that decision so that you could get a better picture to make that decision.

Q. Would you say that the obstacle to better communication presides with one parent or with both parents?

A. I think both parents could improve on their communication.

[131] Prior to the mediation, Ms. MacKenzie conducted an initial assessment for domestic violence and power imbalance screening. She was aware that there was some power imbalance but thought that she could manage those issues. In answer to my question, she thought that Mr. Esteves had more power than Ms. Spry because she expressed concerns of fear, intimidation and control. She could not make a finding of that but that was the perception of Ms. Spry.

[132] Mr. Esteves was emotional about his drinking, his ruined marriage and the fact that he still loved Ms. Spry. His emotional reactions included crying about those issues.

[133] He was quite loud and assertive towards Ms. Spry. She agreed with Ms. Spry that she should wait in the parking lot to avoid a confrontation with Mr. Esteves. He said that he felt that he was fighting to obtain recognition as a parent from her.

[134] They could not communicate without third parties.

[135] Mr. Esteves wanted a 50-50 arrangement for custody and access because he could not afford to buy a house if he was required to pay child support.

[136] They worked well together with a lot of direction but they were also strongly opposed on a number of issues and could not make any headway without their lawyers. They were not able to resolve custody or a final access arrangement.

[137] She was hoping to move the parties to the middle and to consider the best interests of the children rather than their own interests.

[138] She believes that there is a huge value to a parenting coordinator. She charges $200 per hour as a parenting coordinator.

[139] Their agreement was filed as an exhibit. It sets out 18 points that were agreed upon and three points that they did not agree upon. This was worked out over four months. Ms. Spry did not agree to more access; she discussed flexibility but not a change in the terms.

[140] They agreed on a process of alternate dispute resolution if they could not agree. She agreed that by the terms of this agreement, neither had greater control in decision-making.

[141] Mr. Esteves was not violent or aggressive and did not raise his voice or not appear to be angry to her. However, later in her evidence, she confirmed that he was angry with Ms. Spry and raised his voice with her.

[142] He did not hide his problems with alcohol and was forthcoming about his drinking. He thought that he only had a drink or two and never missed work because of it but did acknowledge that alcohol ruined his marriage.

[143] She said that neither could agree to change or budge on their positions but, in her view, both needed to move.

Evidence of Angela Murie

[144] Ms. Murie has been the parenting coordinator for the parties since July 16, 2015. Their written agreement is dated that day and is to last for two years. She charges $175 per hour. She has no present intention to withdraw as their parenting coordinator.

[145] She has seen the parties twice together, four times individually with Ms. Spry and six times individually with Mr. Esteves. The first joint session was only informational.

[146] Although she has the power to arbitrate, she has not done so.

[147] They did not really start to work until January, 2016. She had considered arbitrating an issue around Thanksgiving access but they were able to resolve that on their own. They had a subsequent joint session but that was put off until after Mr. Esteves attended at Homewood.

[148] She became aware of the impaired driving charge because it was in the local newspaper. She spoke to him immediately after and challenged him on it. He was initially avoiding it but then admitted to his problems. In separate sessions, he has been more forthcoming. He says that he has been sober since attending at Homewood. It is her intention to keep monitoring that issue.

[149] She is aware of her duty to report if a child is at risk. She has made no reports to the Children's Aid, the police, or the Ministry of Transportation. She has no concerns about him parenting alone.

[150] Mr. Esteves has expressed a willingness to change .She can only educate. She prefers to educate jointly but there have only been individual sessions to date.

[151] From her observations, the two cannot work together and she is hoping that changes. She does not expect to have joint meetings for another six months.

[152] Summer access for 2016 is presently being mediated. They have agreed on one week on and one week off but they still need to resolve whether there will be access time on the off week and whether there will be two weeks of separate summer holidays. They have also not agreed upon what is to happen for the boys’ first communion.

[153] She has no concerns about the children's physical or emotional care.

[154] The agenda of things to be resolved include future summer access, section 7 expenses; communication is constantly an issue. Both have been willing to work on their communication. She could instruct them to use Family Wizard but has not done so yet.

[155] She always has concerns about alcohol abuse but she has no current issues raised by either party.

[156] The term “custody” would not influence her work but it does influence the power balance. Mr. Esteves thinks that Ms. Spry has more say. However, here, the power balance goes both ways because both parents think that the other has the power. Neither will listen to the other.

[157] She sees no evidence of alienation by Ms. Spry. She refers to that as “gate keeping”.

[158] She confirmed Ms. Spry's view of what occurred at the July 30, 2015 meeting. Mr. Esteves did interrupt Ms. Spry and shouted over her. Both were interrupting but he was yelling. This occurred about halfway through a one-hour meeting. He shouted for 5 to 6 minutes and rose out of his chair. She sent Ms. Spry out for 10 minutes and then she came back to complete the meeting over the next 15 minutes. Although the shouting stopped, neither was listening to the other. From her observations, Ms. Spry appeared to be intimidated by Mr. Esteves’ rising and yelling.

[159] Although Mr. Esteves did not shout at Ms. Murie during their individual meetings, he was heated, crying and emotional. He was calm with her until he talked about difficult issues and then he became heated and emotional. Ms. Spry is calm with her but is frustrated and reluctant to communicate.

[160] Both have difficulties with conflict management. He avoids conflict and then becomes competitive. She starts by being cooperative and then becomes competitive. Ms. Murie has not started with communication skills yet and is keeping them apart for now.

[161] Ms. Murie says that Ms. Spry is frustrated with the time it takes on the minor issues that have been raised by Mr. Esteves. To date, they have not been able to discuss sole custody. She does not see that he is intentionally raising issues for delay. Rather, he raises issues because he does not know what to do.

[162] Her plan is to educate them so that she can “work herself out of the job”.

[163] With respect to medical decisions, Ms. Spry made the decision as to who the new doctor would be. Mr. Esteves felt that he was left out of the decision. In Ms. Murie’s view, a lack of communication was the problem. This occurred in mid-October 2015 when he was at Homewood. She had no concerns herself about Ms. Spry’s choice of doctor.

[164] If there was no term as to custody, they would have to talk to each other. She would try to assist them to reach an agreement and, if not, she would arbitrate. However, she prefers not to arbitrate.

Evidence of Dr. Sohal Goyal

[165] Dr. Goyal is a specialist in family medicine. He has dealt with Mr. Esteves since 2008 when Mr. Esteves came to the walk-in clinic. Mr. Esteves has been his patient since July 2011.

[166] He met Ms. Spry with both children in May of 2015. Mr. Esteves brought the boys in on May 17, 2015 and he met with both parents on May 19, 2015.

[167] From July 2011, he met with Mr. Esteves "pretty regularly". Since July 2013, it has been once a month or once every two months. Although Mr. Esteves’ physical health is normal, he has been treating Mr. Esteves for depression and alcohol abuse. He has also referred Mr. Esteves to counseling.

[168] As of his appointment of January 20, 2016, Dr. Goyal had no present concerns for Mr. Esteves’ mental health. However, in 2015, he was concerned about Mr. Esteves mental health as a result of his depression and alcohol abuse. He encouraged him to enter rehab and when Mr. Esteves agreed, Dr. Goyal helped him to find a rehab center online in his office.

[169] He received a discharge note from Homewood dated November 5, 2015. That report had eight recommendations. He has helped Mr. Esteves with those recommendations. Mr. Esteves has a risk of abuse of other medications, needs medical advice before taking over-the-counter drugs, needs repeat blood work and requires further reassessment. He has seen Mr. Esteves three times since that report.

[170] Although he has asked Mr. Esteves about his compliance with those recommendations, he has done no blood testing since and none are scheduled. Based on his clinical observations and Mr. Esteves’ history at the office, Dr. Goyal is of the opinion that Mr. Esteves is following the recommendations. Going forward, he will monitor Mr. Esteves and continue to see him regularly. He did not see that Mr. Esteves was attempting to deceive him.

[171] Over the last year, Mr. Esteves’ health has improved because he entered rehab. In 2015, he was greatly concerned about Mr. Esteves’ alcohol abuse. He continues to have concerns about Mr. Esteves slipping back after rehabilitation. Mr. Esteves has been a generally compliant patient but did not listen to his earlier recommendation for rehab. Although Dr. Goyal recommended rehab on July 17, 2013, Mr. Esteves did not do so and did not give reasons for not following Dr. Goyal’s recommendation.

[172] Mr. Esteves has been calm and outgoing. He has been frustrated but not agitated. He is not been hostile or aggressive.

[173] He only saw Mr. Esteves with his children in May 2015. He made no note of any abnormal interaction between him and the children. On May 19, 2015 he saw both parents. They were both concerned about one child’s pneumonia. He had prescribed antibiotics for the child when Mr. Esteves brought him in on May 17 and wanted to follow-up in 48 hours. On May 19, both parents attended at his office. He does not recall any problems or hostility between them. Both of them were appropriate or he would have made notes to that effect. He had no concerns other than the pneumonia.

[174] He knows that he has a duty to report to the Children's Aid Society if the child is in danger and he has made no such report about Mr. Esteves He knows that he has a duty to report someone who should not be driving and he has made no such report Mr. Esteves.

[175] He has no concerns about Mr. Esteves’ parenting as long as he does not drink alcohol.

Findings of Credibility

[176] As was said in R. v. Ghomeshi, 2016 ONCJ 155, “the active suppression of the truth will be as damaging to [a witness’] reliability as a direct lie under oath”.

[177] Mr. Esteves’ complains about his hearing before Justice Snowie. He complains that the decision was based on wrong information and a poor hearing. He does not seem to see the hypocrisy of that in view of his failure to admit his alcohol problems or, at the very least, his failure to report his ongoing care with Dr. Goyal. Again, from Ghomeshi: “Navigating” this sort of proceeding is really quite simple: tell the truth, the whole truth and nothing but the truth.”

[178] As will be set out below, Mr. Esteves’ alcohol problem is not a big factor in my decision. That appears to be managed to the satisfaction of all involved. His lying, however, is a big factor in my decision.

[179] Mr. Esteves now admits to his problems and his lying in the past. He hid his problem from his family and lied about it to the court. He acknowledges that he wanted to hide his alcoholism from Ms. Spry to avoid damage to his case.

[180] Mr. Esteves’ counsel refers me to Mr. Esteves’ affidavit of January 27, 2016 where he says:

I did not appreciate that I had a serious problem with alcoholism. Then this past summer, I was charged with drinking and driving.

[181] Counsel says that he was not untruthful in his earlier affidavits; he was in denial.

[182] However, in his March 2015 affidavit, Mr. Esteves said:

What my wife says about me in paragraphs 16 to 40 is so hurtful. It is firstly untrue. She has exaggerated, stretched and distorted the truth. . . . I am not an alcoholic . . . I am 100% healthy, loving and committed to the boys.

[183] That is inconsistent with Dr. Goyal’s evidence. Dr. Goyal testified that he had been treating Mr. Esteves for substance abuse and alcohol addiction since July of 2013. At times, it is true, Mr. Esteves testified that he was in denial, but at other times, he was more forthcoming and acknowledged that he lied.

[184] Ms. Murie became aware of the impaired driving charge because it was in the local newspaper. She spoke to him immediately after and challenged him on it. He initially avoided it but then admitted to his problems. Ms. Murie was described as an independent witness and I accept her evidence on this point. She said that Mr. Esteves was afraid that Ms. Spry would take the children away from him. The difficulty with that evidence is it clearly shows that he will lie to assist his case.

[185] He denied that he had a problem with alcohol until 2012. However, having been provided with his letter to Ms. Spry dated September 2004, he agreed that he promised to slow down but did not. He agreed that he made promises before that however, as he says, alcoholics “cover-up and say things that are not true”.

[186] He agreed that in 2013 he told his doctor that he was struggling with alcohol. He denied that Dr. Goyal referred him to rehab. Dr. Goyal says that he did. Both counsel described Dr. Goyal as an independent witness but he was also called as part of Mr. Esteves’ case. I have no reason to reject Dr. Goyal’s evidence and accept it over Mr. Esteves’ testimony on this point.

[187] Mr. Esteves is to be commended for finally being truthful about those issues. That takes courage. But he has still lied to this court within the last year to further his own interests. What else has he left out that could hurt his case? I am not satisfied that I can rely on his evidence where it conflicts with other evidence that I have.

Analysis

Legal Parameters

[188] I agree that it is often unfortunate that litigants see “custody” as winning or losing rather than a determination of the children’s best interests. But no one, in this case, other than Mr. Esteves sees it that way. Not Ms. Spry. Not the children. M. v. F., 2015 ONCA 277 was a case about whether the trial judge could avoid making a custody order with that terminology. The paragraph just above the quote relied on by Mr. Esteves says:

The appellant submits that the trial judge was required to make a finding of custody and that his failure to do so constitutes an error of law.

[189] Saying that the trial judge was not required to make a custody order is not the same as saying a trial judge should not make a custody order. It will depend on the facts as found by the trial judge.

[190] I agree with Benotto J.’s comments; however, the use of terms is for the parties to overcome if they proceed to trial. Lawyers, mediators, conference judges and all others in the family law system should make every effort to avoid custody litigation. By the time it comes to a trial, however, on the basis of positions taken and decisions made, there will be winners and losers. Given the narrow issues that I am asked to answer, if Mr. Esteves is successful on his view of the issues, he will be the “winner”, at least for the purposes of costs at the end of the trial.

[191] If the “winner” gloats and attempts to abuse the other in some fashion based on the trial judge’s decision, there will, of course, continue to be losers – and likely more litigation. If the “loser” fails to accept the determination of the trial judge and fails to makes the best of the new terms in the best interests of the children, there will continue to be losers. That is for the parties to determine. It seems to me that a trial judge can only hope that his or her decision is correct and is presented to the litigants in a fashion that is understandable and acceptable to the extent that it can be. It is not for the trial judge to do something other than apply the law to the facts as found simply because someone may take it badly.

[192] In Jackson v. Jackson, Murray J. dealt with the issue of parent conflict and its effect on children. While somewhat dated, his comments are worth repeating for these parents:

The Impact of High Conflict Separation and Divorce on Children

[12] Too many parents in high conflict matrimonial disputes are or appear to be totally oblivious to the potential adverse impact on children of high conflict. Too many parents in high conflict matrimonial disputes are so self-absorbed and so absorbed in conflict that the best interests of their children are effectively ignored. Of course, they do not always perceive that this is the case. Sometimes, they simply may not care.

[13] Often the war between the parents is waged in the name of the children and - according to the parents - war is waged for the best interests of their children. Winning is said to be equated with the children’s best interest. But since “winning” is about the parents winning against each other, usually winning is not the same as the children’s best interests. Winning is the objective of war. It is the war that is the most hurtful to children.

[14] The amount of research in this area is remarkable. It is neither possible nor practical for most of us to endeavour to acquire the knowledge and expertise of professional counsellors, psychiatrists and psychologists and other family and child care professionals who are best suited to give advice in a particular case. However, as members of the judicial system, we can attempt to help parents see the potential adverse impact on children of their often selfish, self-indulgent, unbridled, hurtful and relentless parental conflict. Then we might be more successful in having such parents become more aware of the implications of their conduct and in having them understand the benefits of seeking trained, professional help.

[15] In his paper, High-Conflict Separation and Divorce: Options for Consideration, prepared for the Department of Justice, Canada, Glenn A. Gilmour, in summarizing some of the research on the impact of parental conflict on children, states:

Raschke and Raschke (1979) compared 289 grade school children from intact and single-parent families to test whether family structure made a difference in children’s self-concept (i.e. the child’s own attitude or feeling about himself or herself) and whether children who perceived greater conflict in their families would have a poorer self-concept. The authors found support for their proposition that while children are not adversely affected by family structure, such as living in a single parent family, family conflict can be detrimental to their self-concept.

[16] Emery (1982) reviewed the connections between marital turmoil and behavioural problems in children…. Conflict that is openly hostile exposes the child to more, presumably problematic, parental interactions, as does conflict that lasts for a long period of time. Emery concluded, in part, that marital turmoil is more strongly related to boys’ than girls’ maladaptive behaviour, with the caveat that girls are likely to be just as troubled by marital turmoil as boys, but may demonstrate their feelings in a manner more appropriate to their sex role, by becoming withdrawn, for example. The age of a child did not appear to be an important determinant of the effects of marital turmoil. …. Emery summarized that parents involved in conflict with each other are probably poorer models, are more inconsistent in their discipline, and place more stress on their children.

[17] Morrison and Coiro (1999) ….found that … high levels of marital conflict had a large and statistically significant adverse effect on children’s behavioural problems.

[18] Jekielek (1998) used data from a longitudinal study (the National Longitudinal Surveys of Youth) involving a sample of 1,640 children to examine the effects of marital conflict and marital disruption on children. The results suggested that both parental conflict and marital disruption are critical predictors of children’s emotional well-being. … Parental conflict had a consistently significant negative impact on child anxiety and depression four years later, suggesting that parental conflict has enduring effects on child well-being.

[19] Shaw and Emery (1987), in a study … concluded that the level of parental acrimony was related to children’s behavioural problems. … Parental acrimony was found to be significantly related to children’s perceived cognitive competence.

[20] Mr. Gilmour concludes, based on his review of numerous studies on parental conflict, that: “ the literature indicates that parental conflict is a major source of harm to children, whether the children are in intact families or their parents have separated or divorced.” His conclusion mirrors that of others in the field. In High Conflict Family Court Cases: Working for the Child's Best Interests, published in Australian and New Zealand Journal of Family Therapy, v.24, no.2 Jun 2003 at pp. 95-101, Read, L. concludes: “High levels of parental conflict in separated families can have a devastating impact on children and their development.”

[21] In an article in Science Daily (May 9, 2005), Dr Gordon Harold of Cardiff University's School of Psychology and the Director of the South Wales Family Study reported that recent findings suggest that the quality of relations between parents not only affects children's long-term emotional and behavioural development but also may affect their long-term academic achievement. Dr. Harold said:

The study shows what many have long suspected - family factors exert a real influence on children's emotional and behavioural problems, as well as their academic achievement … In particular, children living in a family environment marked by frequent, intense and poorly resolved conflicts between parents are at greater risk for deficits in academic achievement than children living in more positive family environments.

[22] In the University of Notre Dame Newsletter of Feb 10, 2006, William G. Gilroy reported on two new studies that confirm the adverse impact of parental conflict on children's futures. Gilroy reported as follows:

Two new studies lend further support to research by E. Mark Cummings, a University of Notre Dame professor of psychology, on the impact of parental conflict behaviour on their children's future behaviour. Cummings, the Notre Dame Professor of Psychology, and researchers from Rochester University and the Catholic University of America, found that the manner in which parents handle everyday marital conflicts has a significant effect on how secure their children feel, and, in turn, significantly affects their future emotional adjustment. "A useful analogy is to think about emotional security as a bridge between the child and the world," Cummings said. "When the marital relationship is functioning well, it serves as a secure base, a structurally sound bridge to support the child's exploration and relationships with others. ”When destructive marital conflict erodes the bridge, children may lack confidence and become hesitant to move forward, or may move forward in a dysregulated way, unable to find appropriate footing within themselves or in interaction with others."

In the first study, the researchers examined the effect of marital conflict on the 9- to-18-year-old children of 226 parents for three years. They discovered that destructive forms of marital conflict ─ such as personal insults, defensiveness, marital withdrawal, sadness or fear ─ set in motion events that later led to emotional insecurity and maladjustment in children, including depression, anxiety and behavioural problems.

The second study also examined the connection between marital conflict and emotional problems over a three-year period, with a different group of 232 parents and kindergarten-aged children. The researchers again found that destructive marital conflict led to similar problems.

In both studies researchers controlled for any initial adjustment problems, thus further supporting the conclusion that destructive marital conflict was related to children's emotional insecurity and adjustment problems.

Because both studies involved representative community samples, the researchers believe that their findings likely can be generalized to most American families….

"These studies are a warning to strongly encourage parents to learn how to handle conflicts constructively for the sake of both their children and themselves," Cummings said.

[23] Research around the world underscores again and again that parental conflict can have multiple adverse impacts on children - both in the short and long term.

[24] I can do no better than repeat Mr. Gilmour's conclusion that: “parental conflict is a major source of harm to children, whether the children are in intact families or their parents have separated or divorced.”

[193] The legislation that applies is the Divorce Act and the Children’s Law Reform Act.

[194] The relevant parts of S. 16 of the Divorce Act read:

Order for custody

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

Joint custody or access

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

Access

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

Terms and conditions

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

Factors

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

Past conduct

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

Maximum contact

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

[195] Section 24 of the Children’s Law Reform Act stipulates:

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).

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.

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.

[196] In Khairzad v. McFarlane, 2015 ONSC 2015, Chappel J. discussed the considerations in deciding sole custody and joint custody:

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

[28] The Ontario Court of Appeal’s approach to joint custody has evolved over the years. In Kruger, and Baker v. Baker, the court held that joint custody is an exceptional remedy that should only be granted in circumstances where the parties demonstrate co-operation and appropriate communication, and are willing to try a joint custodial arrangement. Since that time, the court has dropped the requirement of consent to a joint custody order, but has maintained that in order to grant joint custody, there must be some evidence before the court that despite their differences, the parties are able to communicate effectively with each other. The rationale for this principle is that the best interests of the child will not be advanced if the parties are unable to make important decisions regarding the child under a joint custody regime.

[29] While some measure of communication and cooperation between the parties is necessary to support a joint custody order, the court is not required to apply a standard of perfection in assessing the parents’ ability to work together. As Quinn, J. remarked in Brook v. Brook, “the cooperation needed is workable, not blissful; adequate, not perfect.” A mere statement by one party that there is an inability to communicate will not be sufficient to preclude a joint custody order. The court must carefully consider the parties’ past and current parenting relationship and reach its own conclusions respecting the parties’ ability to communicate, rather than simply relying on allegations of conflict by one or both of the parties. Furthermore, the existence of conflict and strife between the parties from time to time, and at the time of trial, will not necessarily preclude the court from making an order for joint custody. The question to be determined is whether the nature, extent and frequency of the conflict between the parties are such that the conflict is impacting or likely to impact on the well-being of the child. If the evidence indicates that the parties have been able to shelter the child from the conflict reasonably well and put the child’s interests ahead of their own when necessary, an order for joint custody may be appropriate. The question for the court to determine is “whether a reasonable measure of communication and cooperation is in place, and is achievable in the future, so that the best interests of the child can be ensured on an ongoing basis”.

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

[31] In analyzing the ability of the parties to communicate, the court must delve below the surface and consider the source of the conflict. The Ontario Court of Appeal has clearly stated that one parent cannot create conflict and problems with the other parent by engaging in unreasonable conduct, impeding access, marginalizing the other parent, or by any other means and then claim sole custody on the basis of lack of cooperation and communication.

[32] There has been an increasing willingness in recent years to order joint custody rather than sole custody where necessary in order to preserve the balance of power between the parties, particularly in cases where both parties are caring and competent parents but one party has been primarily responsible for the conflict between the parties.

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

Findings

[197] The evidence of the family and friends is not of much help in the analysis. Besides the failing set out in my summary, most of what they give me, I already have from the parties.

[198] Both parents are competent and loving parents. If they thought otherwise, the terms that are agreed upon would not be agreed upon. The issues that I am asked to decide do not suggest that the parents pose any risk to their children on a day to day basis. Mr. Esteves raises no concerns about Ms. Spry. Ms. Spry only raises the concerns that I have to consider here. She acknowledges, albeit under cross-examination, that besides these issues, Mr. Esteves is a good father and his children love him.

[199] Mr. Esteves had an alcohol problem that he hid from everyone but his wife and doctor.

[200] These witnesses effectively tell me only that.

History of Co-operation

[201] There appears to have been a workable arrangement when the parties resided together. The children were young. Ms. Spry was primarily involved with the children along with help from the two grandmothers and a babysitter. When he was not at work, Mr. Esteves assisted to the extent he could, or at least, without complaint by Ms. Spry regarding a lack of involvement. Some of his time was obviously taken from his child care duties to drink.

[202] After separation, problems arose. Ms. Murie’s evidence is not disputed that, in order to come an agreement, they now need a third party to assist them at the rate of $175 per hour.

[203] Mr. Esteves’ emails show that despite Snowie J’s order, he immediately reneged on his agreement to have the children play soccer in Erin. Without further notice, he did as he wished. The effect was that the 6 year olds spent more time in the car and have lived the confusion of being on two soccer teams. That may have been to Mr. Esteves’ benefit but was not in the best interests of the children.

[204] Although he could not explain what first communion was, Mr. Esteves wants the boys to celebrate it as both he and his nieces and nephews have. He only recently returned to his faith. Neither of the children like going to church and one has ADHD. Mr. Esteves volunteered that his son finds that one hour in church to be too long. He already has trouble in school and with structure.

[205] I certainly agree that religion is important but in the midst of all of the other turmoil in their lives, I fail to see why this issue needs to be resolved at this time. I see no benefit, at this time, for the children. They are both in counselling. Surely the time and money spent on Ms. Murie is better spent on the children. Again, this dispute seems to be more about Mr. Esteves’ interests than those of the children.

[206] Some text messages between the parties were entered as exhibits. One communication resulted from events of September 16/17, 2015. The children were with Mr. Esteves that evening. One of the children was sick. Ms. Spry sent a text at 10:12pm asking how he was. No response. She asked again at 6:44 am and 7:28 am. At 7:33 am, he responded, “sick”.

[207] Mr. Esteves responds in two ways to this evidence. One, he says it shows that he did respond. Two, he faults Ms. Spry for failing to call rather than text.

[208] In my view, this shows the parties’ inability to properly communicate. Even if Mr. Esteves was asleep for those nine hours while his son was sick, his one word response is unhelpful to the point of rudeness. If Ms. Spry is unable to phone to get information, then that demonstrates a failing by both parties to civilly communicate even when their child is sick.

[209] Mr. Esteves complains that he was left out of the decision of which doctor is suitable for the children. He acknowledges that he was aware that the children’s doctor was changing practice and they needed a new doctor. This arose while Mr. Esteves was in rehabilitation. His doctor was familiar with both of them and had also seen both of the children. He suggested that they use his doctor and Ms. Spry disagreed. But his doctor is in Mississauga and had only seen one of the children for one problem with pneumonia. Again, Mr. Esteves’s preference affords no benefit except to meet his demand that he gets to be the one to decide. Even their parenting coordinator did not have concerns with Ms. Spry’s decision. In Ms. Murie’s evidence, she said that she was worried about bias to either one of them. This suggests that she is trying not to take sides. I can be assured that her evidence is as objective as she can provide.

[210] These are only some examples of their failure to agree on even small issues with the best interests of the children in mind.

[211] Ms. Murie says that she does not believe that she can have them work together in the same room for at least six months. I find that they cannot now and will not likely in the foreseeable future be able to communicate successfully without a third party.

[212] Mr. Esteves points to his evidence that they were able to work out decisions when they resided together as evidence that they will be able to do so now. As set out above, where his evidence conflicts with Ms. Spry, I accept hers. Even if I accepted his evidence, how they worked together while the children were less than five years old is not a reliable indicator of their ability to cooperate as the children get older and greater decisions are required. Their more recent experience has greater weight.

[213] Mr. Esteves points out that the “without prejudice” agreement that the parties worked out did not use of the term “custody”. That may be, but it certainly had the term “without prejudice”. To put weight on that document now would make it “with prejudice”. I am not persuaded that I should do that.

[214] Mr. Esteves says that Ms. Spry was “emboldened” by the order of Snowie J. He says that she has shown “overt distain” for him. But the evidence is entirely to the contrary. She is complying with the parenting co-ordination agreement. She has not hindered access even after he finally admitted to others that he had a drinking problem. He was discharged on November 5 from Homewood. He had called every night to speak with the children. Obviously she was not getting in the way of access here. This, despite his lies about his alcohol in the past.

[215] She allowed ample access even when she knew he had a drinking problem and was lying about it. Despite his lies about alcohol, she still co-operates with him. Despite the order of Snowie J, she is still co-operating with him.

[216] There is no suggestion by Ms. Murie that Ms. Spry is "gate keeping"

[217] Even with Mr. Esteves’ history of alcohol problems and a heated separation, Ms. Spry agreed upon an alternate dispute resolution process. Even with an interim custody order, she did not hinder the mediation process. Despite being yelled at during sessions with both the mediator and parenting co-coordinator, she has continued with the process. This is not showing disdain for either Mr. Esteves or the process. Ms. Spry did not boldly stand on her rights on the basis of that interim custody order; she continued in the process despite his conduct.

[218] Mr. Esteves points to the various issues he has asked to address and that Ms. Spry has refused to consider or accept his position. He says that this shows that she is unfairly refusing to co-operate. As set out above, where she has disagreed with Mr. Esteves, she has been the reasonable one. Failure to agree cannot be placed on only one side.

[219] This also confirms that Mr. Esteves should not take all of the blame for their failure to come to agreement. The evidence is clear from Ms. MacKenzie and Ms. Murie that there is fault on Ms. Spry’s part as well. I will come to that later in these reasons. For now, I simply make these findings on some of the disputed evidence. On this evidence, the parties cannot cooperate and communicate in the best interests of the children.

Alcohol

[220] Given the amount of access time that is agreed upon, Mr. Esteves’ abuse of alcohol is not a significant issue. If Ms. Spry was significantly concerned about Mr. Esteves' alcohol use, she would not have agreed to the access that she has. None of the independent witnesses have concerns about Mr. Esteves' present use of alcohol.

[221] Mr. Esteves is functioning and while Ms. Spry may have concerns, there have been no problems to date. The children are doing well. From everyone's observations, they are close to him. They apparently have no fear of him.

[222] Mr. Esteves’ family shows no signs of hiding his problems – now that they know of them. I am confident that they will do what is necessary to ensure the safety of the children.

[223] There has been no suggestion that the parties’ failure to communicate with respect to the children has been affected by his drinking.

[224] As I have set out above, the issue of alcohol has more to do with credibility but Mr. Esteves’ evidence here raises other concerns. He acknowledges that he was upset at Ms. Spry for not helping him find a rehab center, and says that he should have received more support from her. This shows that he is, at least partly, blaming her for his problems. This is not a healthy sign that he is taking responsibility for his own failings.

Anger Management

[225] Mr. Esteves agrees that he committed public mischief to his fiancée’s boyfriend’s car. This is a long time ago and, standing alone, would have no effect on my analysis. But the evidence goes on.

[226] Mr. Esteves’ sister agrees that on June 29, 2013, Ms. Spry phoned her and asked her to come over to the house. When she arrived it was "obvious that he had a couple of drinks". He was upset, loud and using foul language. He asked his sister to leave but she did not remember whether he said shut up. They had tea together while Ms. Spry sat in the living room. She then spoke with Mr. Esteves in the garage for some time.

[227] I can find that Ms. DaCruz downplayed this event but, in any event, it supports Ms. Spry’s description of that evening. He was clearly angry, upset, and needed a third party to calm him down.

[228] Mr. Esteves admits that he punched a hole in the kitchen wall after receiving a letter from Ms. Spry’s lawyer. That letter was, as lawyer’s letters go, decidedly benign.

[229] He admits that he was upset and went looking for the children's passports, throwing the clothes on the floor.

[230] He raised his voice with the mediator and parenting co-coordinator in attendance.

[231] Ms. Murie will not have them meet together.

[232] Ms. MacKenzie had Ms. Spry wait outside in order to calm Mr. Esteves.

[233] I can find that much of the problem with communication comes from Mr. Esteves’ anger control issues.

Summary

[234] To this point, I can find that Mr. Esteves’ evidence is unreliable and he is unable to properly communicate due to anger management issues. Ms. Spry shares some of the responsibility in their failure to communicate. Mr. Esteves’ alcohol addiction, however, does not play into the issues that I need to decide.

Findings and Law

[235] Looking at the legislation, I can analyze this issue as follows.

Love, affection and emotional ties.

[236] Clearly there are significant ties between the children and both parents. There is evidence of a significant tie to Mr. Esteves’ family. While I have no evidence of their ties to Ms. Spry’s family, Mr. Esteves does not raise any concerns about her family or her parenting related to her family. Since no concerns are raised, I can presume that there are none.

The child’s views and preferences.

[237] The parties agreed that there was no evidence on this topic to be lead at this trial. The children are 7 years of age. Given the ties described above, I can find little relevance of this factor in my decision here. I can presume that the children are happy with both parents.

The length of time the child has lived in a stable home environment.

[238] The children have resided with Ms. Spry since separation. I do not find that the interim order creates a status quo but the reality of the children’s residence with Ms. Spry since March of 2014 certainly does. Their school and some of their sports are there. I ought not to move them from that residence without good cause.

The ability and willingness of each person to provide the child with guidance and education, the necessaries of life and any special needs of the child.

[239] Given my findings about Mr. Esteves’ credibility and temper, Ms. Spry is the better option. Mr. Esteves is still in the early stages of dealing with his alcohol addiction. His unreasonable demands as set out above, do not suggest that he is the better option. That is not to say that Mr. Esteves is a bad father – the evidence is clear that he is. But here I am asked to consider both parents and consider who is best for the children. He does not deny Ms. Spry’s abilities but fears that she is thwarting his access. As set out above, I have found no evidence to support that.

The plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing.

[240] And here is the real issue that includes the remaining two issues of access and child support.

[241] Ms. Spry’s plan is to leave the status quo in place. She agrees that they both need assistance with communication and she is committed to that process – despite its frustrations. But ultimately, she believes that someone needs to be able to have the final say. And that should be her.

[242] Mr. Esteves’ plan is to continue the process with no one having the final say except Ms. Murie with her arbitral powers. Both parents will have an equal say but ultimately Ms. Murie will decide if they cannot. He then wishes to have equal time so that he will not have to pay support. In that way, he will have funds to buy a new house so that the children will have equally satisfactory places to reside.

[243] Mr. Esteves’ plan has many difficulties, the greatest of which is uncertainty. When will he move? Where will he move? Who will provide the help that his mother now provides when he is at work? If support is stopped, can Ms. Spry continue where she is? How much time and money will be needed to work through these issues with the parenting co-ordinator? Without answers to those questions, I cannot tell whether his plan is in the children’s best interests.

[244] If find that Ms. Spry’s plan is more appropriate.

The permanence and stability of the family unit with which it is proposed that the child will live.

[245] There is no issue with respect to the permanence and stability of the families. Both are stable family units.

The ability of each person applying for custody of or access to the child to act as a parent.

[246] Given what I have found, both are good parents.

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

[247] This is not an issue.

Past conduct

[248] A person’s past conduct shall be considered only if the person has at any time committed violence or abuse against his or her spouse or if the court is satisfied that the conduct is otherwise relevant to the person’s ability to act as a parent.

[249] Based on my findings, Mr. Esteves has been abusive to Ms. Spry. He has yelled at her in front of others, thrown clothing, punched walls. But this only relates to whether they can communicate. Most of this conduct occurred during the time that the parties were separating. It was at a time that he was not coming to grips with his alcoholism; he appears to be overcoming that now. It is not conduct which should be condoned or seen as appropriate at any time. However, I do not see it as relevant to his parenting at this time. There has been no admissible evidence that Mr. Esteves has been anything other than attentive to the children’s needs. I do not find his conduct toward Ms. Spry as a significant factor in this analysis.

[250] Taking all of those factors into consideration, I have no hesitation in awarding custody to Ms. Spry. The question then focuses on whether there should be joint custody. In my view, there should not be joint custody.

[251] There is no evidence that the parties can communicate effectively. The evidence is entirely the opposite. The parties can only communicate through Ms. Murie and she does not see that changing within 6 months of the trial date.

[252] To use but one example from the evidence, if there were no custody order in place, the parties would have been unable to agree upon a doctor for the children in an efficient fashion. At this age, there needs to be certain and regular attendance at a doctor. Without that, the children are at risk.

[253] Mr. Esteves has shown that he is unable to put the children’s needs ahead of his. On one occasion, he inexplicably failed to attend for a therapist’s appointment for the children. He has been found to have lied to the court to advance his needs.

[254] Without the certainty of a custody order, the conflict will continue and the children will continue to be caught in those power struggles. It has to be remembered that, at this point, the parties have not been able to resolve these issues through the court processes, the mediator and the parenting coordinator. Someone has to make the decision. They do not have unlimited means. The children will be better served with a cheaper and more efficient process. Joint custody will not be in the children’s best interests.

[255] To this point, I have been focussing on Mr. Esteves weaknesses. I am well aware that the evidence outlines Ms. Spry’s weaknesses as well. Based on the order as requested, she will still need to participate and cooperate with the parenting coordinator. She, like Mr. Esteves, needs to work on her ability to communicate. Both Ms. MacKenzie and Ms. Murie say that Ms. Spry is part of the problem. Should she, as Mr. Esteves fears, simply fall back on the word “custody” without involving Mr. Esteves in the process, the entire family will be harmed. On the evidence that I have before me, however, I do not believe that Mr. Esteves’ fears are well founded. I believe that she will continue to abide by the order.

The Parenting Agreement and Order

[256] Both parties agree that the interim order can be made final as it presently stands. While I considered this ruling, I had concerns about whether that was possible. No submissions were made on this issue. Justice Snowie granted custody to Ms. Spry but the consent terms included an arbitral power to the parenting coordinator. That seemed to give two different people the final determination. On a closer reading of the parenting agreement, I am satisfied that the areas of the parental coordinator’s authority are sufficiently clear that I need not concern myself further.

Access

[257] The issue here is whether Thursday night access should be added? Mr. Esteves agreed that one of the factors in his request is child support. He cannot provide the things that she can and he wants to provide the same environment for the children.

[258] The parties agree that the present order shall remain in place. The issue is whether the children should be with Mr. Esteves an extra night, particularly, Thursday.

[259] At present, the agreed upon terms are set out in the interim order. They are:

The Respondent, Ronnie Berty Esteves, shall have access to the children as follows:

i. Every other weekend from Friday after school until Monday morning at school.

ii. Every Wednesday after school until Thursday morning at school.

Holiday access to the children shall be as follows:

i. Right of first refusal – when one parent cannot be available to care for the children during their usual and/or holiday scheduled time for more than 12 hours, the other parent shall be given the “right of first refusal” to care for the children. This notice should be provided as soon as the parent is aware they will not be available. If the other parent cannot accommodate the request, the parent requesting the children be cared for is responsible for arranging alternate childcare and will inform the other parent of who will be caring for the children. Make up time shall not be utilized during this period.

ii. Travel – when travelling, an itinerary of plans for travel with emergency contact information shall be provided to the other party. Each party will not withhold consent to the other once this is provided. The parent travelling with the children shall be responsible to have the children contact the other parent by telephone a minimum of twice per week during the holiday period if at all possible. In addition, if a parent is travelling and will be unavailable to attend for emergency circumstances, they should be advising the other parent of travel plans and emergency contact information prior to leaving on their trip. This notice should be provided a minimum of 48 hours prior to travel if at all possible.

iii. Vacation – request for vacation periods longer than 7 days, but not more than 10, shall be made in writing to the other parent a minimum of one month prior. This can occur no more than once during the school year period. Any vacation periods over 10 days should be requested for approval of the other parent and make up days for additional periods over 10 days will be picked by the parent losing access time.

iv. Mother’s Day and Father’s Day – the children shall be with the applicant, Susan Jennifer Esteves from the Saturday at 7 p.m. until school start on the Monday of the Mother’s Day weekend. The children shall be with the respondent, Ronnie Berty Esteves, from the Saturday at the 7 p.m. until school start on the Monday of the Father’s Day weekend.

v. Thanksgiving – whichever parent has the children for access the weekend of the Thanksgiving break shall keep them until 12 p.m. on the Monday and the other parent shall have them until school start on the Tuesday.

vi. Easter – whichever parent has the children for access the weekend of the Easter break shall keep them until 12 p.m. on the Monday and the other parent shall have them until school start on the Tuesday.

vii. Halloween – the parents shall alternate Halloween yearly, with the applicant, Susan Jennifer Esteves having Halloween in odd numbered years, and the Respondent, Ronnie Berty Esteves in the even numbered years. The access period should start from after school if a weekday, or 4 p.m. if a weekend, until the following day at school start or 10 a.m. The costume shall be arranged by the parent who is responsible for Halloween that year.

viii. All statutory holidays not covered above shall be taken by whichever parent has the children that weekend, extending their weekend until the Tuesday at school start or 10 a.m.

ix. Children’s Birthday – each parent shall permit a phone call between the children and the parent who is not with the children the day of the children’s birthday.

x. Christmas School Break – during the school Christmas holiday period, the applicant Susan Jennifer Esteves shall have the children in odd numbered years from December 24 at 12 p.m. until December 25 at 12 p.m. and the Respondent, Ronnie Berty Esteves shall have this period in even numbered years. The remainder of the school Christmas holidays shall be shared equally with the applicant, Susan Jennifer Esteves having her pick of the remaining days in even numbered years and the respondent, Ronnie Berty Esteves having first pick of the days in dd numbered years. These dates shall be selected by November 1 of each year and sent to the other parent in writing. The parties will do their best to minimize one-day transitions when they make their selections and attempt to permit at least one weekend period for the other parent. The school Christmas holiday period shall be defined as occurring from the last day of school before Christmas break, starting at school end or 4 p.m. until the start of school in January or 9 a.m. The regular access schedule ends when school closes for the break and resumes when school starts.

xi. March School Break – whoever has access with the children on the regularly scheduled weekend of March break shall keep them until the Wednesday of March Break at 5 p.m. until school start on the Monday. The parent with the second part of the access will provide dinner to the children on the Wednesday night.

xii. Changes to Schedule – changes to the schedule can be made to any section as agreed upon by both parties and confirmed in writing and the other party shall reply within 48 hours to any request from the other parent. This shall not apply during emergency situations.

xiii. Both parents should be entitled to attend the children’s school events, sports events, extra-curricular activities and any other activities the children are involved in and/or enrolled in. In addition, they may individually arrange parent-teacher meetings.

xiv. The parent having care of the children each day shall make daily decisions regarding their welfare.

xv. In the event of emergency medical care while with one parent, that parent will promptly notify the other parent.

xvi. Each parent will have access to, be entitled to make inquiries and receive information about the children from school staff, medical professionals, and extra-curricular programming staff. Each parent shall sign all consents necessary to permit this exchange of information.

xvii. The parents will alternate attendance on school field trips. If one parent is unable to attend, he or she will notify the other immediately.

xviii. Alternate Dispute Resolution – in the event that the parents are unable to reach an agreement regarding the terms of this parenting plan, or any other matter related to the children, they shall utilize the services of either a mediator and/or parenting coordinator to assist them. The parents will also authorize this person to have the right to arbitrate the situation if resolution is not reached.

Positions of the Parties

[260] As set out above, Ms. Spry says that the order should not change. It is not in the best interests of the children to make a change at present.

[261] Mr. Esteves says that it is in their best interests to add Thursday access, particularly since he could then stop paying support and this would allow him to have a more appropriate residence for them.

The Evidence

[262] Again, I have no evidence of the views and preferences of the children on this issue.

Evidence of Ms. Spry

[263] Ms. Spry does not believe that the extra night that will be in the best interests of the boys. She believes that the schedule can change when Mr. Esteves shows that would be best for the children.

[264] The present access schedule was changed because there was too much conflict at pickup and drop-off under an earlier schedule. The children have adjusted to this schedule. Because of that certainty, she does not want a reduction to the access schedule either.

[265] There is no specific schedule problem with the proposed Thursday night access. However, it seems to her that they are not put to bed on time and appear very tired on Monday after school. .Another night would add to this problem.

Evidence of Mr. Esteves

[266] Mr. Esteves believes that the children are not thriving under the current arrangement. Their time with each parent should be as close as possible to how they were during the marriage. Instead, they do not see him for six days at a time.

[267] Mr. Esteves does not hide that if he were to get this extra time, he will submit that his support should be varied.

Evidence of Ms. McKenzie

[268] When Ms. McKenzie met with the children they showed no fear or ambivalence towards their father. Ms. Spry did not agree with more access. Mr. Esteves said he wanted more frequent contact and she discussed that with both of them. Ms. Spry understood the seven-day window as a long period of time for the children but did not wish to reduce the time because it was too much time on the road, including time to school.

Analysis

[269] The Divorce Act refers to “as much contact with each spouse as is consistent with the best interest of the child”. It does not say that time with the children will be presumptively equal.

[270] The status quo has been in place for more than two years. I should be hesitant to change that without good reason.

[271] Both parties are good parents.

[272] I can see that the change will add somewhat to the driving for school but the distances are not long.

[273] Both counsel agree that if I grant the access change, the support should be reduced to zero. For the reasons below, I cannot make that order. Even if I were prepared to do that on counsel’s say so, I do not know what the effect might be on the children. Where will they reside? Where will they go to school? What effect will that have on their activities? Without that information, I am not prepared to add this extra time. I can see no advantage to the children to sleep at a different residence during a school night but I can foresee much change and uncertainty for them. That is not in their best interests. This request is denied.

Child Support

Positions of the Parties

[274] Both parties have agreed that the interim order should be finalized. Mr. Esteves asks that if he is successful with the custody and access issues, he should be allowed to vary support. He submits that he cannot afford to pay support and establish his own home.

[275] Counsel have agreed that if I were to grant the extra night of access, support could simply be reduced to nil.

The Evidence

[276] I do not have Ms. Spry’s Financial Statement in evidence.

[277] Although Mr. Esteves’ Financial Statement was filed as an exhibit, there was no discussion of this issue until final argument. Mr. Esteves’ counsel argues that since Mr. Esteves was not cross-examined on his Financial Statement, that evidence is unchallenged.

Analysis

[278] Given that I have dismissed Mr. Esteves’ claim for increased access, I could simply dismiss this request without more. However, from what I received at trial, further comment is necessary here.

[279] In Contino v. Leonelli-Contino, 2005 SCC 63, the Supreme Court explained that s. 9 of the Federal Child Support Guidelines requires an exercise of the court's discretion, based on the factors set out in the section, and not simply the application of a mathematical formula.

[280] Again, in Khairzad v. McFarlane, 2015 ONSC 2015, Chappel J. summarized the case law that has commented on this issue since Contino.

[281] The onus is on the parent who is relying on s. 9 to establish that the 40% threshold has been met. The Ontario Court of Appeal has said that there is no universally accepted method of deciding the 40% threshold, rigid calculations are not necessarily appropriate. However, the weight of authority since that time is that the 40% threshold is met if the parent has the child in their care for 3504 hours per year. And “care” is determined on a case by case basis.

[282] The wording of the section requires the s. 9 analysis once the 40% threshold is met. However, a finding that a shared patenting arrangement exists does not automatically dictate a deviation from the Guideline amount.

[283] A judge making such a determination must carefully consider the table amounts, the increased costs of the shared custody arrangement and the condition, means, needs and other circumstances of each party and the children for whom support is requested. None of the three factors set out in section prevail over the others. The weight to be given to each of the factors will vary according to the particular facts of the case.

[284] The simple set-off of one support obligation against the other has no presumptive value in the calculation, particularly where a careful examination of the respective household standards of living raise concerns of a drastic reduction in child support.

[285] A court must consider whether one parent is actually incurring a higher share of the child’s costs than the other.

[286] Financial Statements and child expense budgets are necessary to carry out the analysis. A court should not make assumptions regarding costs in the absence of evidence relating to this issue.

[287] As can be seen, this issue is much more involved than simply setting off incomes. Although Mr. Esteves set out in his affidavit that he makes $62,000 per year and Ms. Spry earns $74,000, I do not have Ms. Spry’s Financial Statement to know her complete circumstances.

[288] I cannot determine whether Mr. Esteves has met the 40% threshold by simply looking at the terms of the present order. I need to know what is actually happening in the two homes.

[289] Even with counsels’ suggestion that I simply order no support, I must still do the analysis. The children deserve that and the Supreme Court requires it. I simply do not have the tools to apply s. 9. Contino may be difficult to apply, but it is still the law that I must apply. Even if I were persuaded that Mr. Esteves should have the extra night of access, I would have to dismiss this claim.

[290] Mr. Esteves’ Financial Statement has attached his statement of earnings for 2015 and the year to come as $63,281. The Guideline support for that income is $940.00 per month. He shall pay that amount effective June 1, 2016.

[291] The parties shall share the section 7 extraordinary expenses of the children in proportion to their respective incomes. At the present time, these include daycare and some sports costs.

Result

[292] The applicant, Susan Jennifer Esteves, shall have sole custody of the children of the marriage.

[293] Mr. Esteves’ request to increase the access from the interim order is dismissed.

[294] Mr. Esteves shall pay child support for the two children to Ms. Spry in the amount of $940 per month, commencing June 1, 2016, and on the first day of each and every month thereafter, in accordance with the Federal Child Support Guidelines.

[295] The interim order of Snowie J. dated March 30, 2015 is otherwise made into a final order.

Costs

[296] If the parties cannot agree upon costs, written submissions shall be made. Ms. Spry shall provide her submissions within the next 15 days. Ms. Esteves shall provide his within 15 days thereafter. No reply submissions will be made unless requested. Each submission shall be no more than 5 pages not including any offers to settle or bills of costs.

“Justice Lemon”

Justice Lemon

Released: April 29, 2016