Ruffudeen v. Coutts, 2016 ONSC 3359
COURT FILE NO.: 44872-10 DATE: 2016-05-25 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
ANEESA NADIA ZAMALUDEEN RUFFUDEEN Applicant
– and –
CONRAD MICHAEL COUTTS Respondent
COUNSEL: William R. Clayton and Jennifer K. Howard, for the Applicant Jodi Feldman and Jasmeet Dhaliwal, for the Respondent
HEARD: November 16, 17, 18, 19, 23, 24, 25, 26, 27, 30, December 1, 2, 3, 4 2015 and January 20, 21, and 22, and February 18, 2016
The Honourable Mr. justice d.a.broad
[1] The major issue for determination following this lengthy trial relates to the parenting arrangements for the parties’ only child Ethan, born May 15, 2009 (aged 6 ½ years at the time the trial commenced). The only other issue, that of child support, will follow from the determination of the issues of custody and access. The parties settled the property issues between them, resulting in a consent judgment in respect of those issues. Neither party pursued a claim for spousal support at trial.
[2] The parties separated on either November 23 or December 16, 2010 (the parties being unable to agree on the actual date of separation) when Ethan was just over 1 ½ years old. The parties have been embroiled in protracted, contentious and no doubt cripplingly expensive litigation concerning the parenting of Ethan for over five years.
[3] There is virtually nothing of substance that the parties have been able to agree or cooperate on in relation to the parenting of Ethan since they separated. They communicate only by e-mail and such communication rarely results in consensus or agreement on any issue. Sadly they have been unable, with limited exceptions, to be in the same place to encourage and support Ethan in his activities.
[4] The parties require the assistance of family members to carry out direct access exchanges. At times they have been unable to even share medication that Ethan is prescribed by his doctor. His doctor has been required to issue parallel prescriptions to be filled separately by each parent. It has been necessary for multiple third parties to intervene to attempt to help the parties resolve their ongoing disputes. Over the course of Ethan’s young life the police have been called on a number of occasions, reports have been made to Family and Children’s Services of Waterloo Region, an assessment was carried out under s. 30 of the Children’s Law Reform Act R.S.O. 1990, c. C. 12 (the “CLRA”), numerous temporary court orders have been made by judges experienced in family law, resulting in four different access regimes. The court has been called upon more than once to determine where Ethan should go to school. A parenting coordinator was retained by the parties, at the direction of the court, commencing in February 2015, to attempt to assist them in making decisions respecting Ethan’s care. The services of the parenting coordinator were terminated in August 2015.
[5] None of these third party interventions have helped in achieving any resolution of the parties’ dispute respecting the parenting of Ethan.
[6] The result of all this is that Ethan has been caught, through no fault of his own, in the maelstrom of the ongoing dispute between parents for most of his young life. Although Ethan is currently described by both parents and other witnesses as a happy and loving child, the long-term effect of exposure to the protracted dispute between his parents on his emotional well-being and development is unknown.
[7] The court is tasked with deciding upon a parenting plan for Ethan that will attempt to serve his best interests in the future because his parents, who each know and love him, have been incapable of doing so between themselves.
Statutory Framework
[8] Ms. Ruffudeen’s application was commenced under the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) as amended. The court’s jurisdiction to determine issues of custody and access is therefore governed by s. 16 of the Divorce Act.
[9] Subsection 16(1) provides that the court may make an order respecting the custody of and access to any child of the marriage. Subsection 16(4) provides that the court may make an order for granting custody of, or access to, any child of the marriage to any one or more persons. Under subsection 16(6) the court may impose such terms, conditions or restrictions in connection with custody and access as it thinks fit and just.
[10] Importantly, subsection 16(8) provides that the sole consideration for determining custody and access issues is “the best interest of the child of the marriage as determined by reference to the conditions, means, needs and other circumstances of the child.”
[11] The court is prevented, by subsection 16(9), from taking into consideration the past conduct of any person unless it is relevant to the ability of that person to act as a parent of a child.
[12] Subsection 16(10) requires the court to give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the child’s best interests and, for that purpose, to take into consideration the willingness of the person for whom custody is sought to facilitate such contact.
[13] Since the Divorce Act does not enumerate a detailed list of factors to be considered in determining the best interests of the child, courts have considered the criteria set out in provincial and territorial legislation. In Ontario the relevant provisions are sections 20 and 24 of the CLRA.
[14] Pursuant to subsection 20 of the CLRA, both parents are equally entitled to custody of the child. Where parents live separate and apart and the child resides with one parent with the consent of the other, the entitlement to access continues, along with the right to visit with and be visited by the child, to make inquiries, and to be given information as to the child’s health, education and welfare.
[15] Section 24(1) of the CLRA provides as follows:
(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).
(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.
(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.
(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.
Jurisprudence and Guiding Principles
[16] Chappel, J. provided a very useful discussion on the fundamental concepts of custody and access at paras. 68-69 of K.(V.) v. S.(T.) 2011 ONSC 4305 (S.C.J.) as follows:
The term "custody" refers to parental decision-making and authority respecting a child. As the Supreme Court of Canada stated in Young v. Young, "the custodial parent is responsible for the care and upbringing of the child, including decisions concerning the education, religion, health and well-being of the child." Traditionally, the options respecting custody which the courts have considered have been sole custody or joint custody, which accords both parents full equal parental control over and responsibility for all aspects the care, upbringing and education of the child. In more recent years, a third option has evolved, referred to as ‘parallel parenting.’
An award of sole custody to one parent grants decision-making rights to that parent, generally to the exclusion of the other parent to interfere in carrying out these rights and responsibilities. Where one parent is granted sole custody, the use of terms such as "physical custody" "shared custody" and "shared parenting" are often used to describe time sharing arrangements between the parties. These terms are some examples of terminology that can be confusing to litigants. If the intention is to grant the non-custodial parent visitation rights as well as the right to make inquiries and be given information about the child, the proper term to use is "access" as this term includes "the right to make inquiries, and to be given information, as to the health, education and welfare of the child." The phrases "residence sharing" "parenting time" or "time sharing," or variations on those terms are more appropriate if the intention is for the non-custodial parent to simply have time with the child, without the more expanded consultation and information sharing rights that access encompasses.
[17] In the recent case of Hoffman v. Hoffman 2013 ONSC 395 (S.C.J.) Price, J., at paras. 71-92, discussed the contrasting concepts of “joint custody” on one hand and “”shared custody” or “parallel parenting” on the other and the principles applicable to each of them, as derived from the case-law. Consideration of the principles relating to the concept of “parallel parenting” is called for in this case by reason of the recommendation of Ms. Lourdes Geraldo, in her assessment conducted under s. 30 of the CLRA, that a parallel-parenting regime be implemented for Ethan, as discussed more fully below.
[18] Some of the pertinent principles relating to orders for joint custody, as summarized by Price, J. are as follows:
(a) an order for “joint custody” gives both parents full decision-making authority and responsibility in all areas respecting the child;
(b) there must be evidence that the parties are able to communicate effectively since joint custody entails them making long-term decisions together regarding the child, however, the court does not apply a standard of perfection when it comes to communication and cooperation. It is enough that the level of cooperation be workable and adequate;
(c) a mere statement by one party that there is an inability to communicate will not preclude an order for joint custody. If the parties have been able to communicate when necessary, putting the child’s interests ahead of their own, an order for joint custody may still be appropriate in spite of conflict;
(d) if there has never been an ability to cooperate or communicate effectively or 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. A mere hope that communication between the parties will improve once litigation is over is also not a sufficient basis for an order of joint custody; and
(e) it may be appropriate to order joint custody rather than sole custody in order to preserve the balance of power between the parties, in particular, where both parties are caring and competent parents but one party has been primarily responsible for the conflict between the parties.
[19] “Shared custody” or “parallel parenting”, as observed by Price, J., can take the form of “divided parallel parenting” where each party is given separate, defined areas of parental decision-making, or alternatively, “full parallel parenting” in which both parents are given the right to make major decisions respecting the child in all major areas of parental authority while the child is with them, without the consent of the other parent.
[20] Chappel, J. held in K.(V.) v. S.(T.), that the existence of conflict between parties, while relevant, is only one of many considerations that the court must weigh when determining custody and access issues and that parental conflict is relevant where parallel parenting is requested, but potentially less so than in joint custody situations, given that the purpose of parallel parenting is to disengage the parents by allowing them to operate in independent spheres of decision-making.
[21] The following factors were set out by Justice Chappel in K.(V.) v. S.(T.) as being particularly relevant in determining whether a parallel parenting regime, rather than sole custody, is appropriate:
a) The strength of the parties' ties to the child, and the general level of involvement of each parent in the child's parenting and life. In almost all cases where parallel parenting has been ordered, both parents have consistently played a significant role in the child's life on all levels.
b) The relative parenting abilities of each parent, and their capacity to make decisions that are in the child's best interests. Where one parent is clearly more competent, responsible and attentive than the other, this may support a sole custody arrangement. On the other hand, where there is extensive conflict between the parties, but both are equally competent and loving parents and are able at times to focus jointly on the best interests of the child, a parallel parenting regime may be ordered.
c) Evidence of alienation by one parent. If the alienating parent is otherwise loving, attentive, involved, competent and very important to the child, a parallel parenting arrangement may be considered appropriate as a means of safeguarding the other party's role in the child's life. On the other hand, if the level of alienation is so significant that a parallel parenting order will not be effective in achieving a balance of parental involvement and will be contrary to the child's best interests, a sole custody order may be more appropriate.
d) Where both parties have engaged in alienating behaviour, but the evidence indicates that one of them is more likely to foster an ongoing relationship between the child and the other parent, this finding may tip the scale in favour of a sole custody order.
e) The extent to which each parent is able to place the needs of the child above their own needs and interests. If one of the parties is unable to focus on the child's needs above their own, this may result in a sole custody order, even if that parent is very involved with the child and otherwise able to meet the child's day to day needs.
f) The existence of any form of abuse, including emotional abuse or undermining behaviour, which could impede the objective of achieving a balance of roles and influence through parallel parenting.
[22] In the case of H.(K.) v. R. (T.K.) 2013 ONCJ 418 (O.C.J.), Sherr, J. added, at paras. 51-55, the following considerations where an order providing for parallel parenting is being considered to the list of factors enumerated by Chappel, J.:
The first consideration is for the court to evaluate the likelihood of one category of decision-making conflicting with another (the spillover effect) and the ability of the parents to navigate those conflicts. For instance, it might appear on the surface that there is a clear delineation between medical and educational decisions. However, that might not be the case with two parents determined to fight and perpetuate conflict. If a school recommends speech-language therapy or therapeutic counseling to take place at school, high-conflict parents will likely fight over whether these are medical or educational decisions.
The second consideration is whether the parents have the ability to navigate scheduling conflicts between activities and appointments. Since they are each acting independently in their own sphere of decision making, what happens when both soccer practice and math tutoring are scheduled for the same time? How likely is one parent to schedule a dentist appointment at the same time as a child's playoff hockey game?
It may be possible to anticipate, define and create priorities for many of the potential conflicts regarding both the delineation of decision-making and the scheduling of activities and appointments, but a court needs to carefully consider whether this is really possible given the dynamics of the parents in the case before it. The court might just be developing a new battleground for the parties with a parallel-parenting order - a battleground that will create more conflict and instability for the children.
The third consideration is the geographical distance between the parties. It is one thing to carve off an area of decision-making for the non-residential parent, but the court has to ask whether the residential parent (the parent with whom the children primarily reside) will logistically be able to implement those decisions. Decisions by the non-residential parent are easier to implement if the parties reside close to one another. If the parties live far apart, the residential parent may not be able to take the children to a doctor, tutor, counselor, school or activity (depending on the area of decision-making) chosen by the non-residential parent. If the parents cannot communicate well, the geographic distance between them can create significant conflict and adversely affect the children.
The fourth consideration is about family dynamics. The court must evaluate if a parallel-parenting order is more likely to de-escalate or inflame the parents' conflict.”
[23] At para. 58 of H.(K.) v. R. (T.K.) Sherr, J. sounded a cautionary note about the risks associated with parallel parenting orders, expressing the view that “courts should be very careful before granting parallel-parenting orders in high-conflict cases. They are rife with potential complications that could have the inadvertent effect of escalating conflict and destabilizing children. There is also the risk that important decisions regarding children will not be made in a timely manner if there is a conflict over who is entitled to make that decision. It is not in the best interests of children to paralyze the decision-making process about them.”
[24] Justice Gilmore of the Superior Court of Justice, in the recent case of Nloga v. Ndjouga, 2015 ONSC 5925 (S.C.J.), came to a similar conclusion respecting the risks of a parallel parenting regime in a high-conflict situation, finding, at para. 166, that “the parties have taken such vastly different views of the same set of circumstances relating to a child related issue, that having parallel decision making is only inviting further conflict. The parties are already operating in ‘independent spheres of decision-making’ with respect to the child in their care and that is not working.”
Parenting of Ethan Prior to Separation
[25] Prior to Ethan’s birth the applicant was employed as a senior consultant with Deloitte, a national accounting firm, in Kitchener. The respondent was employed as a manager in the transit department with the City of Guelph. The parties had purchased a home in the City of Kitchener.
[26] The applicant took a maternity leave from her employment for 15 months in order to be with Ethan. The first few months of the leave occurred prior to his birth as the applicant was required to be on bed rest due to complications in the pregnancy. The last two months of the leave was as a result of accrued vacation time.
[27] During the time that the applicant was at home on maternity leave following Ethan’s birth the respondent continued to commute to his work in Guelph, leaving at 6:30 to 7:00 AM and returning the between 5:45 PM and 6:30 PM.
[28] The applicant characterized the respondent’s involvement with Ethan as “very limited” consisting of allowing Ethan to play around him while he was watching TV, or sleeping while Ethan would entertain himself playing. She testified that respondent would only assist with Ethan if she asked him to do so. For his part, the respondent testified that he was a fully engaged parent, looking after Ethan’s care cooperatively with the applicant, although he acknowledged that over time disagreements began to develop between the parties over their parenting styles.
[29] Towards the end of the applicant’s maternity leave in late July, 2010 the applicant’s mother Bibi Ruffudeen retired from her employment and moved from Barrie, Ontario to reside with the applicant and the respondent to assist with the care of Ethan. The parties had discussed this plan prior to Ethan’s birth, deciding that, when they purchased a home and had their first child, Bibi Ruffudeen would retire and move in with them to provide child care.
[30] The respondent testified that the parties had discussed a number of options for child care upon the applicant returning to work. Having Bibi Ruffudeen move in with them was one of the options discussed. Although he expressed reservations about that plan as he had concerns about how it would affect the dynamic in the household, he did ultimately agree with it out of respect for the applicant’s feelings and her anxiety about having a stranger looking after Ethan. He testified that he did have a discussion with Bibi Ruffudeen about an “exit strategy” in case the arrangement did not work out.
[31] The applicant returned to work at Deloitte in August 2010. From this time until the parties’ separation Bibi Ruffudeen provided primary care for Ethan while the applicant and the respondent were working.
Events Leading to Separation
[32] The applicant’s position is that the parties separated on November 23, 2010. She stated that on that day the respondent stormed into the kitchen directing foul language towards her and “basically made it very clear he was moving out of the house because he did not want to be accused of violence.” In the months leading to the separation from August to November 2010 the applicant described the situation in the home as being filled with tension and that the respondent was very bullying and was attempting to isolate her. He would call her a “f…ing bitch”. She testified that the respondent took issue if she wanted to speak to her friends or to her family or visit her relatives.
[33] The applicant testified that on one occasion the respondent became very angry at her and picked up a cup of hot coffee. At one point she testified that respondent threw the cup of coffee at her but at another point testified that she begged him to put the coffee cup down and he eventually did so.
[34] The applicant testified that the episode with the hot coffee was not an isolated incident but rather the respondent would regularly have angry outbursts, swear at her and would go into the basement and punch things. The applicant indicated that she entered the basement on a few of these occasions and observed the respondent punching the insulation.
[35] The applicant testified that on one occasion in May 2010, while they were talking in bed, the respondent got extremely angry and punched a hole in his closet door and left the house. The applicant also described incidents in February and April, 2010 when the respondent engaged in angry outbursts directed at her. She stated that at in May 2010 he threw a lawnmower box at her because she had asked him to cut the grass. The applicant stated that following that incident she attended at the police station to seek advice.
[36] In his testimony the respondent disputed the applicant’s characterization of these incidents. Although he acknowledged damaging the closet door beside the bed, he denied that he punched it to deliberately cause damage, but in his frustration he opened it too aggressively and caused incidental damage to it. Although he acknowledged using profanity from time to time, he denied losing control and calling the applicant the names that she had attributed to him. He also denied throwing a cup of coffee at the applicant. Although he testified that he did go into the basement to diffuse tension during arguments, he said that he did not punch anything. He also denied throwing a lawnmower box at the applicant.
[37] The applicant testified that in June, 2010 the respondent told her that he had consulted a professional to get help with his anger issues, indicating that he attended numerous sessions. The respondent testified that following the incident with the closet door he sought counselling assistance through his Employees Assistance Program offered as part of his employee benefit package. He met with a counsellor who suggested that that the applicant attend with him for joint counselling. When he approached the applicant, she declined to attend with him, maintaining that it was the respondent who had the issues and was up to him to deal with them. The respondent continued to attend counselling on his own.
[38] The respondent testified that the applicant’s mother move into the home increased the level of tension between the parties. He stated that he was pushed out of decision-making about Ethan and about the home, with everything being decided by the applicant and her mother.
[39] The respondent testified that over a one-week period in the fall of 2010 the tension in the home had escalated and he did not want to continue arguing with the applicant, particularly in front of Ethan. For a one week period the respondent came home from work and spent a few hours with Ethan and then he went to stay overnight at a friend’s place in Mississauga, returning to the home in Kitchener each evening after work.
[40] The parties described an incident which took place in the garage towards the end of November, 2010 when the applicant told the respondent that he was not welcome in the home. The respondent testified that he brushed by her in order to enter the home. The applicant maintained that the respondent pushed her. Following this incident the parties continue to live in the home until December 16, 2010, with the respondent sleeping on a futon mattress at the foot of the bed.
Order of Justice Lococo
[41] On December 15, 2010 the applicant filed her application seeking, among other things, custody of Ethan, with supervised access to the respondent on alternate Sundays from 2 PM until 4 PM.
[42] The applicant brought a motion on an urgent basis prior to a case conference, returnable on Wednesday December 22, 2010, seeking interim custody with supervised access to the respondent. The applicant’s motion materials were served on the respondent on the previous Thursday, December 16, 2010. When the matter came on for hearing before Justice Lococo the applicant objected to admission of the respondent’s responding affidavit material on the basis that it had not been served until the evening before the hearing. The respondent’s chosen lawyer was not available on the return date of the motion and another lawyer from the same firm appeared on the matter.
[43] It was evident from the transcript of the proceeding before Justice Lococo that his intention was to make a brief interim order to allow access for the respondent to occur, on a supervised basis, until the matter could come back on for hearing, as soon as possible, on a fuller record. The matter was stood down to allow the parties to attempt to agree upon the terms of an interim access supervised order.
[44] The parties consented to a temporary, without prejudice, order providing for Ethan to have his day-to-day residence with the applicant and for the respondent have access to him on Sundays at 10 AM until 5 PM until further court order, with access to be supervised by the respondent’s brother Daniel Coutts from 10 AM to 1 PM and by the applicant’s brother Zamal Ruffudeen from 1 PM to 5 PM.
[45] Notwithstanding Justice Lococo’s expressed intention that the duration of the “urgent” order be brief and that the matter would come back for a determination as soon as possible based on a fuller record, including responding affidavit material on behalf of the respondent, a case conference could not be arranged until April 15, 2011. In the interim, conflict or disagreement between the applicant’s brother Zamal and the respondent made it impossible, from the respondent’s standpoint, to continue with Zamal as the afternoon access supervisor, with the result that respondent’s access was reduced to three hours each Sunday. When his brother Daniel had scheduling conflicts on May 15 and 22, 2011 and the respondent proposed that his mother Naomi Coutts or his sister Laura Coutts be allowed to take his place, the applicant refused to provide her consent. On cross-examination at trial the applicant acknowledged that “looking back now, [this] was not the right decision to make”.
[46] Ethan began attending Sunshine Montessori School for day care in January 2011, when he was 20 months old, shortly after the order of Justice Lococo.
[47] The respondent filed an Answer on January 21, 2011 claiming an order for joint custody of the child, with the child’s primary residence with the respondent and liberal and generous access to the applicant or in the alternative, with residence of the child to be shared on a one week on - one week off, basis. The respondent brought a motion on March 2, 2011 seeking shared care of the child in equal amounts of time.
[48] It is noted that the respondent’s claim until trial remained for joint custody. He sought and was granted leave to amend his Answer at the commencement of trial to claim custody, with access to the applicant.
Order of Justice Hambly
[49] The respondent’s motion came on for hearing before Justice Hambly on May 31, 2011. After reading the material and hearing submissions, Justice Hambly advised counsel, as related in his Endorsement released June 6, 2011, that it was his view that the primary residence of the child should be with the respondent father and the issue was whether the applicant mother’s involvement with the child should be supervised in a manner that would ensure that she did not attempt to alienate the child from the father, and emphasized that the child was entitled to the involvement and support of the both parents in his life as he grew up.
[50] Following Justice Hambly’s initial comments, counsel asked for time to seek instructions from their clients and the parties eventually consented to a final order for shared custody, with Ethan residing with each parent in alternate weeks, with 12 hours access for each parent on the non-residential week. In his written Endorsement, Justice Hambly added three paragraphs to the order directing that neither party shall criticize the other or speak adversely of the other in the presence of the child, that each party will take care to ensure that anyone assisting him or her in the care of the child shall not criticize or speak adversely of the other party in the presence of the child, and striking the affidavit of the applicant’s brother Zamal and directing that it be removed from the Continuing Record.
Appeal and Motion to Set Aside Order of Justice Hambly
[51] The applicant appealed the terms of the final consent order as set out at paragraphs 1 to 4 of Justice Hambly’s order to the Court of Appeal, claiming that she had entered into the consent under duress. The Court of Appeal denied leave to the applicant to appeal the consent order, without prejudice to the applicant moving for a review of the order in the Superior Court of Justice pursuant to rule 59.06 of the Rules of Civil Procedure.
[52] The applicant subsequently brought a motion to set aside paragraphs 1 to 4 of the Justice Hambly’s order, which was argued before Justice Leitch in September, 2012. Justice Leitch released her decision on December 6, 2012 which set aside paragraphs 1 to 4 of Justice Hambly’s order and ordered the parties to resume the residential schedule for Ethan that was in place prior to the hearing before Justice Hambly. She also ordered that the parties schedule an early case conference. A date for a case conference was ultimately fixed for January 14, 2013 before Justice Campbell.
[53] Following the order of Justice Leitch, the parties implemented a temporary parenting schedule on the terms of the consent endorsement originally placed before Justice Hambly on May 31, 2011 providing for primary residence with the applicant with access to the respondent on alternate weekends from Friday to Sunday.
Order of Justice Sloan March 19, 2013
[54] The respondent brought a motion on February 11, 2013 seeking the reinstatement of a week-about parenting schedule. By order dated March 21, 2013 Justice Sloan ordered that the parties have shared care of Ethan on a week-about basis with exchanges to occur on Fridays at 5:30 p.m. The order of Justice Sloan differed from the regime under Justice Hambly’s order by omitting the midweek access.
[55] The week-about parenting arrangement ordered by Justice Sloan on March 21, 2013 has remained in place since that date.
Parenting Following Separation
(a) Evidence of Applicant
[56] After she left the matrimonial home, the applicant and her mother moved in with her brother Zamal at his home in south Kitchener. Zamal has two children, who are Ethan’s cousins, aged 8 and 7. They attend J.W. Gerth Public School,
[57] In 2012 the applicant moved, with her mother, to a home in south Kitchener located about a two minute drive from Zamal’s home. The applicant’s home is newly built and has four bedrooms. Ethan has his own room.
[58] The applicant stated that her work schedule is extremely flexible. She is able to create her own schedule, depending on what her responsibilities are each day. When Ethan is in her care she is able to adjust her schedule to accommodate dropping him off to school in the morning. She is also able to attend activities of the school, such as field trips and swimming excursions. She stated that she was very rarely in the office, working either from home or at clients’ sites. Most of her clients are in the Kitchener-Waterloo area and accordingly, she is not often required to travel out of town. On those occasions when she does have to travel, she has been allowed to have her mother accompany her, allowing them to bring Ethan along.
[59] The applicant testified that in August 2013, upon picking Ethan up at the access exchange, she was informed by Ethan that he had been on an airplane with the respondent. She indicated that she was quite shocked by this, in light of the order of Justice Lococo stating that Ethan could not leave the Province of Ontario. The applicant called the police to advise that she had reason to believe that Ethan had left the province. A police officer came to her home and spoke with Ethan. The police officer learned that the respondent, the respondent’s mother and father as well as the respondent’s brother and his fiancé had been on the trip with Ethan. The applicant indicated that the officer did some investigation and discovered that Ethan had been on a flight to Calgary during the time that he was in the respondent’s care. She stated that the respondent had not advised her of this. She stated that she called the police because it was her understanding that “if something like this was to ever happen again and you don’t report it, you in turn could get in trouble.”
[60] The applicant testified that during the summer of 2013 she wished to take Ethan on vacation to Barbados and made a request to the respondent, through counsel, to provide a travel consent and consent to renewal of Ethan’s passport. She stated that respondent advised that he would be helpful in this respect but it never happened and she could not take the trip.
[61] The applicant testified that upon implementation of the order of Justice Hambly providing for a week-about arrangement with mid-week access she noticed a drastic change in Ethan. She stated that he came home “very zombie-like” and was extremely sad. He would scream, yell and hit. She said he had severe constipation that he had never experienced before. She described how he was insecure and that he would go into the closet and would stand in the dark closet crying.
[62] The applicant stated that she tried numerous times to communicate with the respondent about Ethan’s diet and she answered any questions posed in his lawyer’s letters. She said that the respondent’s counsel informed her that the respondent would not be responding to any of her requests for information. She sought information if Ethan came home from spending time with the respondent with a bump, scratch or bruise. She also sought information about his diet. She stated that the only time that she received information from the respondent regarding Ethan’s diet was as a result of his pediatrician requesting that information directly from the respondent.
[63] The applicant testified that under the regime established by the order of Justice Hambly the independence that Ethan had previously demonstrated began to diminish. He wanted to have her around constantly and if she was not nearby he would scream for her and go into a panic. She also found that Ethan began having nightmares and would scream out in his sleep. The applicant stated that when she picked him up on transitions Ethan’s eyes were often red as if he had been crying, his voice was extremely hoarse and his ears had scratch marks on them. She stated that Ethan would come home from the respondent’s home and would say “grandma pulled my ear. Aunt Laura pulled my ear, dad pulled my ear”. As he started to become more vocal Ethan would make comments to her such as “daddy hit me, grandma hit me” and would make references to individuals in the respondent’s home who were mean to him.
[64] The applicant testified that during the currency of the order of Justice Hambly she made a request to the respondent through counsel for nightly phone contact with Ethan which was denied. She said that eventually she did receive an email from the respondent indicating that when Ethan was old enough to use the phone he would phone her then.
[65] The applicant testified that, under the order of Justice Hambly, exchanges took place at Walmart at 2 o’clock on Wednesday afternoon and then at 10 AM at Sunshine Montessori, and in the summer months at Walmart.
[66] The applicant stated that on the Friday exchanges she would be in attendance but would always be accompanied by either her mother or her brother. She stated that she was there for the 2 o’clock afternoon exchanges as well as on Thursdays at 10 AM for the drop off at school. She stated that the respondent was rarely in attendance at the midweek exchanges but rather his mother or his sister would handle the transition. The respondent would be in attendance on Fridays and if not, his mother or sister would be there.
[67] Applicant testified that during the currency of the order of Justice Hambly transitions were difficult. She described Ethan as very sad and some points he resisted going to see his father. As he became more verbal he would indicate such things as “Grandma bad, Grandma hit me” and he would say such things as “they were mean.” She perceived that Ethan was anxious about transitions, not knowing who was going to be there. She stated that she would console and encourage Ethan by telling him how much fun he was going to have at his father’s home.
[68] The applicant testified that under the order of Justice Hambly the respondent was inflexible in response to any of her requests for changes to the schedule for special occasions. For example, if Ethan was in the respondent’s care on Mother’s Day, such as in 2013 and 2104, she was not allowed to see him. She stated that she has not seen Ethan on any Thanksgiving Day since separation. However, she did acknowledge that she did not ask to see Ethan on Mother’s Day in 2013 because she knew that the respondent would not be flexible.
[69] The applicant stated that she offered to care for Ethan during times when the respondent was not available but that was refused. She stated that in October, 2011 she learned that the respondent was leaving the country. When she offered to care for Ethan respondent would not budge on the schedule. She indicated that the respondent would leave Ethan with his mother or his sister and she would not find out about it until afterwards. The applicant stated that the respondent never made any requests of her for changes to the schedule under the order of Justice Hambly but did make such requests under the order of Justice Sloan.
[70] The applicant had Ethan on Christmas Day 2011 but the respondent did see him on Boxing Day. In 2012 the order of Justice Leitch was in effect and Ethan was in her primary care. The applicant stated that she acceded to the respondent’s request to speak to Ethan by telephone. The respondent requested holiday access which she acceded to. By 2013 the disclosure meeting with the assessor Ms. Geraldo had been held. Ethan was in the care of the respondent at Christmas and the applicant’s request to see Ethan was denied.
[71] The applicant stated that she had been invited to the Mother’s Day lunch at the Sunshine Montessori School in May 2012. The date fell during the week when Ethan was in the respondent’s care. The applicant attended at the school to see Ethan. The respondent’s mother was in attendance and snatched Ethan from her, telling her that she had not asked for permission to have access to Ethan. The respondent’s mother put Ethan in her car and drove away. She subsequently received an email from the respondent’s lawyer questioning why she was even on school property.
[72] The applicant stated that the Sunshine Montessori School holds a Father’s Day breakfast. In 2013 it fell on her access week with Ethan. The respondent requested through counsel that he be able to attend a Father’s Day breakfast at school, which the applicant facilitated.
[73] The applicant testified that if there were the school functions like field trips that occurred during weeks when Ethan was in the care of the respondent and he was unable to attend she was not asked if she could attend. On those occasions the respondent would send his mother or his then girlfriend Manjit Lalli in his place. [During the trial Ms. Lalli was referred to as “Manny”. For the sake of efficiency and brevity I propose to refer to her hereafter as “Manny”. No disrespect is intended].
[74] The applicant stated that after the making of Justice Hambly’s order she approached the respondent to meet to discuss a transition plan. Originally the respondent agreed but then sent a subsequent email advising that he had spoken to his lawyer who thought it best that they do not have any interaction with each other at that time. Accordingly, no meeting or discussion took place to implement a transition plan dealing with Ethan’s meal schedule, his bedtime routine, telephone access and activity schedules.
[75] The applicant stated that she eventually resigned herself to the respondent’s lack of flexibility with respect to the schedule but found the situation very saddening.
[76] The applicant testified that following the order of Justice Leitch she agreed that it would not be appropriate to revert back to the access regime under the order of Justice Lococo but rather the respondent should have access to Ethan on alternate weekends together with telephone access. This arrangement was endorsed by Justice Campbell at a case conference in January, 2013. Exchanges took place on Fridays at 5:30 PM at Walmart.
[77] The applicant stated that there were times when the respondent has not been home and Ethan has been cared for by others. In the fall of 2015, while the respondent was out of the country on his honeymoon with Manny, Ethan was cared for by the respondent’s mother and sister. The applicant was not offered the opportunity to care for Ethan during this time.
[78] The applicant testified that following the order of Justice Leitch in December 2012 some of Ethan’s anxiety-related behaviours began to calm down. She said that he did not hit and scream as much as he had previously. He still exhibited sadness and crying before transitioning to the respondent’s care but it did not last as long as it had previously. The respondent was having more frequent telephone access to Ethan which helped to improve the situation. She said Ethan had a better understanding that she would return and also felt more comfortable with the respondent being there to pick him up and drop him back off rather than respondent’s mother and sister. The applicant described the transitions as not as significant as they were previously. Although Ethan continued to exhibit crying, screaming and hitting, it was much easier to calm him down and to complete transitions.
[79] The order of Justice Sloan on March 21, 2013 provided for a week-about schedule but with no midweek access. The applicant stated that under this regime she observed Ethan reverting back to his earlier behaviours of screaming, yelling and hitting. Ethan would be very upset before transitions. He would say that he is not going, would cry and kick and hit her.
[80] The transitions under the order of Justice Sloan took place initially at a Walmart but from April to June, 2013 the exchanges took place at the Sunshine Montessori School. The applicant said that Ethan became more vocal and resistant at the school drop off on Friday mornings because he did not know who would be coming to pick him up, as the respondent would not be in attendance. Sometimes the respondent’s mother would do the pick up, sometimes his sister and sometimes his then girlfriend Manny.
[81] The applicant testified that Ethan began to report to her that Manny screamed at him, asked him continuous questions about what he did at the applicant’s home and if he did not tell them he was denied dessert following meals. She stated that Ethan asked her one time “what is a f…ing bitch?” and when she asked him why he was asking this he told her that “daddy says you’re a f…ing bitch.”
[82] The applicant testified that Ethan also related to her that at the respondent’s home he would be told to write letters that his “mother is a liar” and told that he does not “want to grow up like my mommy”. He stated that he would be punished if he talked about anything in regards to the Muslim faith because “dad’s home is just Catholic.” During the currency of the order of Justice Sloan, Ethan would describe to the applicant that Manny’s children picked on him, kicked him down the stairs, pushed and hit him. When the applicant asked him where the respondent was when this was happening, Ethan would say “dad’s not home” or “dad’s watching TV”. The applicant said that Ethan told her that he gets left home alone with Manny’s children. Ethan would tell her that he cannot use the bathroom in private because Navin, Manny’s youngest child, is always in the bathroom watching him. He reported that Navin also helps him take a bath and that Navin would stick his finger up his rectum. When she asked where Manny and the respondent were when this occurred Ethan reported that they were downstairs watching TV.
[83] The applicant stated that Ethan began using the phrase “f… off” and it was even brought to her attention by school personnel that he was teaching other children to use that phrase. Ethan reported to her that Manny tells the children to “go to their f…ing room”. Ethan says that the respondent has told him that that is just the way Manny is. Ethan also indicated that he had been told that he is not to tell her, her mother, her brother, Dr. Bal, or his teachers anything that happens in the respondent’s home and if he does, he will be “kicked out of the house”.
[84] The applicant testified that Ethan related to her that the respondent told him that if he were to tell everyone what was going on in the house he would not be allowed back into the house. Ethan expressed fear to her that if he was not allowed back into the respondent’s house he would not know how to run and find the applicant’s house because it is so far away, and his fear of what would happen if he ran down the street and got hit by a car and if a “bad guy finds me on the road.”
[85] The applicant stated that she did not probe or elicit these statements from Ethan. She indicated that the reports by Ethan came out spontaneously when they were reading a bed-time story or playing an activity and Ethan would remember something that he wanted to tell her.
[86] The applicant testified that she is tried repeatedly to have Ethan receive counselling. She has requested this of the respondent through counsel and the response has always been negative. She stated that Ethan’s doctors had recommended counselling and the s. 30 assessor Ms. Geraldo also recommended it. She indicated that, in the circumstances, the best that she could do to address Ethan’s anxiety and behaviour issues was to take him regularly to see his family doctor Dr. Bal.
[87] The applicant testified that she continues to believe that Ethan would benefit from counselling to help him with his anxiety and to provide him with an outlet where he would be comfortable speaking without fear of punishment.
[88] The applicant also stated that she believes that there needs to be better communication between the respondent and herself and that Ethan needs to be in an environment where he feels nurtured, where he has the consistency and where he is comfortable.
[89] The applicant expressed her belief that she and the respondent have very different parenting styles, based upon what she is read in Ms. Geraldo’s assessment report and in the comments she hears from Ethan. She stated that she strongly believes in a positive parenting relationship in a very nurturing environment that fosters open communication. She believes that a child should have an environment where he can communicate with the parent, understanding that he will not be punished if something does not go a particular way. She expressed the belief that the child should be in an environment where he is able to make choices and where a parent can help him experience different things and encourage him.
[90] The applicant testified that, when she and the respondent were together, the respondent would be very quick to want to smack Ethan’s hand. On numerous occasions she told him that she did not believe in that parenting style. She stated it was important that as parents they communicate with the child and if necessary correct his behaviour through communication. She said that when she tried to point this out to the respondent he would laugh and react sarcastically.
[91] The applicant has formed the belief, based on what Ethan has told her, that the respondent’s parenting style involves instilling fear in Ethan that there will be a consequence if he does not do what he is told.
[92] The applicant testified that her parenting style is different. She does not believe in inflicting fear in a child. She stated that if Ethan stopped listening to her in the home she follows a “one, two, three type of approach” with him. If Ethan is not listening or complying she would tell him that they are going to read three books and he recognizes that once he has finished reading the three books they are going to have a conversation to talk about the issue. She states that Ethan responds very well to this approach.
[93] The applicant says that she has been able to implement flexibility within her work arrangement in order to be able to drop Ethan to school and to participate in field trips and other school activities. Her desire is to be active in terms of taking Ethan to his activities and picking him up from school. She stated that under the order of Justice Sloan that exchanges occur at school commencing September, 2015, the respondent does not attend to pick Ethan up, but rather it is his new wife Manny who does so or, when the respondent and Manny are away, it is the respondent’s mother who attends to pick Ethan up.
[94] The applicant stated that she was not informed by the respondent that he would be marrying Manny. This only came to her attention through comments from Ethan.
[95] The applicant stated that she has seen Manny on exchanges and had also seen her at an event at school. She stated that she understands that Manny attends at the school to pick Ethan up or drop him off and that she attends field trips as well. She has been informed that Manny has taken Ethan to the doctor and actually took him for an immunization shot. She was not informed of this.
[96] The applicant stated that she was also informed through personnel at the Waterloo District School Board that Manny tried to enroll Ethan in Sheppard Public School without her knowledge.
[97] The applicant testified to that in the 2 ½ years that the order of Justice Sloan has been in place Ethan has become more articulate, making it easier for her to understand what is triggering certain of his behaviours. However, the biggest behavioural issue remains that he is very fearful of getting into trouble at the respondent’s home. He has expressed fear that if he does not do what he is told he may be kicked out of the home, may be punished or he may be deprived of something. She did indicate that Ethan’s behaviour has improved in that he does not need to cry, hit and scream. Ethan is now able to use his vocabulary to have a conversation with her about what is bothering him. She stated that she advises Ethan that if, when he is at his father’s home and he finds that he is in a situation that he is not comfortable with, he should communicate that to his father.
[98] The applicant’s view is that the “week on-week off” with no midweek access arrangement which has been in place since March 2013 is not in Ethan’s best interests. She stated that seven days is too long for Ethan to be away from her, as well as from the respondent. He needs to have more consistency in his life. In addition, there needs to be some form of access during the week when Ethan will be able to interact with each of his parents. She stated that the under the existing situation “basically Ethan lives one life with mom and one life with dad.”
[99] The applicant stated that, during the time that the parties utilized a parenting coordinator in 2015, she was permitted by the respondent to have telephone access to Ethan while he was in his care. Since the services of the parenting coordinator were discontinued in September 2015 she no longer receives any phone calls from Ethan. The applicant stated that she continues to facilitate phone calls with respondent because she believes it is important for Ethan to have communication with his father.
[100] The applicant also indicated that, in her view, Ethan needs his parents to be available rather than third parties. She believes that she and the respondent cannot continue under the present arrangement. There is no flexibility to accommodate changes for special occasions such as family functions, holidays and for telephone calls. She is also of the view that there should be a right of first refusal such that if one parent is not available the other parent should have the opportunity to care for Ethan. She also believes that there needs to be communication between the parents, particularly around Ethan’s health, including medical, dental and vision care.
[101] As an example of the lack of communication the applicant pointed to a situation that occurred on October 17, 2014 when Ethan arrived following a week with the respondent with a rash on his torso and face. The respondent provided no information to the applicant respecting the rash. Ethan reported that he felt dizzy and that he had been away from school for three days. Ethan reported that he had been given an orange medication and a purple medication. The applicant emailed the respondent seeking information and did not receive a response. The applicant took Ethan to a walk-in clinic where he was diagnosed with strep throat as well as a scarlet fever. She subsequently found out from the school that they had telephoned the respondent’s home on the Wednesday to pick up Ethan because he was in the respondent’s care that week. The school was not authorized to call her during the respondent’s week if he was unavailable.
[102] The applicant pointed to another example of inflexibility on the part of the respondent in February, 2014 when she approached the respondent to have Ethan on a Friday evening for a family celebration of her mother’s (and Ethan’s grandmother) 65th birthday. She testified that the respondent insisted on what she characterized as “bartering time” which would have resulted in her being apart from Ethan for 10 days. She did not want to put Ethan through that and accordingly Ethan did not participate in the family celebration.
[103] The applicant described Ethan’s relationship with her mother Bibbi Ruffudeen as “beautiful” and “nurturing”. Her mother frequently took Ethan to the library and they spent considerable time reading and playing games together. Ethan expresses his desire that his grandmother attend different activities to watch and support him.
[104] The applicant testified with respect to examples of difficulties she experienced in obtaining basic information from the respondent on Ethan’s well-being. In June and July, 2011 Ethan was suffering from constipation and on the advice of his physician she asked the respondent to provide details of Ethan’s diet while in his care. The applicant wrote three emails to the respondent but did not receive a response. Ultimately counsel need to become involved and although the respondent did provide the information to Ethan’s physician it was not communicated to her.
[105] The applicant testified to examples of her providing information to the respondent respecting Ethan’s well-being. She pointed to an exchange of emails in August, 2011 in which she informed the respondent that Ethan had had an allergic reaction to penicillin and provided details of the pediatrician’s treatment instructions. She also pointed to an email of November 30, 2012 in which she advised the respondent that Ethan was not feeling well and that she had provided him with over-the-counter fever and cold medication. On July 19, 2013 she emailed the respondent to inform him that Ethan had an orthodontist consultation and that, although there were no issues, she provided him with the name of the orthodontist to allow him to follow-up.
[106] The applicant testified that in March, 2013 she went to fill a prescription for Ethan and found that Ethan had been cancelled from the respondent’s benefit plan through his employer. When the applicant inquired, the respondent told her to get her own plan for Ethan. As a result, when the applicant needs a prescription filled for Ethan she for pays it out-of-pocket.
[107] The applicant pointed to an exchange of emails in June, 2011 respecting Ethan’s attendance at swimming lessons. The applicant had enrolled Ethan in the morning session and had informed the respondent on June 8. The respondent did not reply to this e-mail. The applicant subsequently inquired on June 20 as to why the respondent had not taken Ethan to his lesson. The respondent responded by stating that it would have been more appropriate for her to enroll Ethan in the 6:30 PM class and that “until such time as we have worked out a parenting plan through a qualified professional, neither parent should make decisions about the child’s extra-curricular activities without the other parent’s consent, unless that parent intends to attend the classes on his/her alternate week only.” The applicant replied by requesting that the respondent permit Ethan to complete his lessons and that if he is unable to attend then his caregiver should do so. The applicant indicated that in the future she is prepared to work with a parenting coordinator to schedule activities for Ethan.
[108] The applicant testified that the position taken by the respondent in his email respecting the swimming lesson issue represents a “reflection of how Ethan’s life is between two homes.”
[109] The applicant pointed to an incident on February 2, 2012 when she learned that Ethan had not been at school all week while in the respondent’s care and she had not been informed.
[110] The applicant also referred to an incident on December 13, 2013 when she received a prescription bottle with antibiotic from Ethan following an exchange that had a portion of the label cut off. Ethan informed her that he saw the respondent cut the label on the prescription bottle “because he said that mommy doesn’t need that type of information.” The applicant sent an email to the respondent requesting the missing information which was not responded to.
[111] The applicant emphasized that it is important that the parties communicate with each other as parents. If there are issues around medical or dental care or if there are other issues that the other parent should know, it is important that they be communicate to assist both parties to parent the child. She stated that she does not believe in sending information back and forth through Ethan. The parents should be able to readily provide information to each other. As an example of the lack of communication, she indicated that she had called the dentist that the respondent had taken Ethan to and was informed that he had recommended that Ethan attend with an orthodontist but that information had not been provided to her by the respondent. She stated that there was other instance when Ethan was taken by Manny, the respondent’s then girlfriend, to be immunized. The applicant was not aware that this immunization was taking place. On another occasion Ethan received a second immunization and was not informed by the respondent until two or three weeks after the fact.
[112] The applicant testified that Ethan would often come home from being with the respondent with bumps, bruises and cuts for which she would not be provided with any explanation by the respondent. Ethan would sometimes complain that the other children in the home had kicked or hit him. The applicant inquired of the respondent but often received no response.
[113] The applicant stated her belief that it would be beneficial for information respecting injuries to be shared as it would help the parent understand why Ethan feels the way he does. Due to the lack of information from the respondent, the applicant was left to rely upon Ethan to provide the information to her.
[114] Applicant testified that the parties were ordered by Justice Sloan on September 25, 2014 to engage a parenting coordinator. She indicated that the process for arranging for parenting coordination involved many obstacles and hurdles. One of the main issues was that that the respondent felt that she should be paying for the entire cost. Her position was that there was money in trust from the sale of the matrimonial home which was available to use for this purpose. Her proposal was that the cost of parenting coordination should be paid from the joint trust account on an equal basis. The respondent then took the position that the cost should be shared proportionately and did not agree that it be paid out of the funds in trust.
[115] The applicant filled out the intake form of for the parenting coordinator Dr. Kim Harris in December, 2014 however the respondent did not do so.
[116] Ultimately the parties agreed in the spring of 2015 that the cost of the parenting coordinator be paid out of trust on an equal basis. The applicant testified that the parties began working with Dr. Harris in late May, 2015. Her services were terminated in September, 2015.
[117] The applicant, in her testimony, responded to a number of statements contained in Ms. Geraldo’s assessment report. She denied that she ever cried at exchanges. She stated that she would occasionally change Ethan’s clothes upon receiving him following an exchange if he arrived with soiled underwear. She would clean him up and in that process would change his clothes. This occurred during the period that Ethan was potty training. She stated that that this situation no longer exists.
[118] With respect to the comment from Ms. Bradshaw, one of Ethan’s teachers, that the applicant carries Ethan into the classroom holding him tightly, the applicant stated that this happened on only one occasion when Ethan would not let go of her and he was screaming and crying. She indicated that this incident occurred during a time when the Children’s Aid Society was involved and it was an emotional time for him. Ethan was 3 ½ or four years old at the time.
[119] The applicant stated that for the majority of the time Ethan would walk when entering the school. There were occasions when he would cry and would not want to go so she had to get him out of the car. She stated that it was very typical at Sunshine Montessori School that if a child were crying a parent would carry the child into the classroom. She did indicate that Ethan would be clingy on occasion.
[120] With respect to Ethan going with her for lunch, the applicant stated that she had never been informed by the school that it was an issue for her to pick Ethan up for lunch. She indicated that she had flexibility in her job which allowed her to go out for lunch with him. Her mother would also take Ethan out for lunch on occasion. This took place when Ethan was younger. She indicated that Ethan stays for lunch at school now that he is older.
[121] On the issue of coconut allergy, the applicant stated that she did send snacks with Ethan to school because school policy was that, if the child had an allergy, the parent was to send their own snack for that child. Under that policy, while Ethan was in the toddler daycare program, he was required to bring his own snack because the teachers were not in a position to keep track of the children who had allergies and of their severity.
[122] In response to the comment from the teachers that on a school field trip to a pumpkin patch she was observed carrying Ethan, the applicant stated that Ethan had tripped over one of the vines, hurting his leg, was crying and she consoled him. This was at a time when Ethan was 3 ½ to 4 years old. She indicated that she had been on other class trips, for instance to a splash pad, where other parents carried their children and she also observed teachers carrying children. This was not something unusual.
[123] With respect to statements attributed by the teachers to Ethan that “my mom said my dad used to hit my mom” the applicant stated that she does not make these comments and has never made these comments to Ethan.
[124] With respect to the comment in the assessment report that Ethan appears to absorb his mother’s anxiety and sadness at transitions, she stated that, while she may have been anxious about getting to the transition point at Walmart on time, she was not anxious about Ethan leaving. She stated it was important for Ethan to spend time with his father and to have a bond with him. During those times when Ethan did have outbursts she would encourage him, indicating that it was fine to be going to his dad’s house and that he would have a great time with his dad.
[125] The applicant acknowledged that when the order of Justice Hambly was made providing for a week-about schedule she was initially sad but she got over it and recognized that that it was the order that was in place and she needed to find ways to make it work. She indicated that transitions are now different for Ethan. He is happy and moves between the two homes readily. She stated that Ethan now has seamless transitions and he is happy to go to his father’s house.
[126] The applicant stated that now that Ethan is older and can understand who is coming to pick him up the transitions at school make the best sense and she is supportive of it.
[127] The applicant testified that she feels differently towards Sunshine Montessori School than when Ethan was first enrolled there in January 2011. She feels that the school has taken sides in the matrimonial dispute, that there is bullying behaviour towards her as well as unfair application of policy and procedure. Sunshine Montessori School is a for-profit institution. She stated that the school principal prevents her from attending at the school and she has been told by teachers that she is not permitted to observe Ethan in swimming lessons. She believes that all of the parents should have the opportunity to watch their child swim. She stated that other students have been afforded the opportunity to attend the school on an exemption from the requirement to pay tuition for the full year in advance, whereas her request for an exemption was denied. She stated that there were instances when her requests for access to information from the school were denied and when her personal confidential information was shared with the respondent.
[128] The applicant stated that in the spring of 2013 she was not informed that Ethan was continuing to attend Sunshine Montessori. Once she recognized in July 2013 that Ethan had been attending she fulfilled her obligation and made payment, however she maintained that the information had not been provided to her.
[129] The applicant testified that there was an incident when the respondent’s girlfriend at the time, Manny, on the applicant’s access week, attended Ethan’s classroom and removed him from the classroom because she wanted to drop off birthday invitations. The applicant maintained that Manny should not have made it past the office to pull Ethan out of class. The applicant testified that she set up a meeting with Cynthia Bradshaw and the teacher to discuss what had occurred. She stated that Ms. Bradshaw made it clear in that meeting that she thought the applicant was “an extremist,” that she (that is Ms. Bradshaw) sets the policies and procedures and the applicant is to do what she says. This meeting took place in May 2015.
[130] The applicant testified that the situation with Sunshine Montessori School is currently very uncomfortable. There are now protocols that have been put in place that she cannot volunteer nor attend at the school and cannot communicate to the teachers except in writing.
[131] The applicant testified that she did not think that Ethan would be returning to Montessori in September 2015 because neither she nor the respondent had completed the registration package in February 2015. The applicant had filed a complaint with the Human Rights Tribunal about the incident rising from the meeting in May 2015 on the understanding that Ethan would not be returning to the school.
[132] Justice Sloan ordered on September 3, 2015 that Ethan be registered for the year at Sunshine Montessori School and that the application to the Human Rights Tribunal be stayed pending resolution of the family law issues. The order also addressed the terms governing Ethan’s attendance at the school, including that the parents are not allowed to enter the school, there is to be no communication unless it is in writing and neither the applicant nor the respondent shall be permitted to volunteer at the school. Neither of them are permitted to serve as a parental chaperone on any activities. The applicant stated that she has abided by the terms of Justice Sloan’s order in this respect.
[133] The applicant would like to see Ethan registered in a local public school within her school district, being Brigadoon Public School. She feels that Brigadoon would be a very neutral school for Ethan to attend. J.W. Gerth Public School is also a possibility as it is nearby to her home and special permission has been granted for Ethan to attend there because his cousins (Zamal’s children) are enrolled there. The applicant says that she has come to realize that respondent does not want Ethan attending a school where his cousins attend. She therefore believes Brigadoon Public School will be a neutral setting for Ethan. In addition, the applicant stated that she does not have the funds to have Ethan continue to attend a private school. The cost is approximately $15,000 per year and there is no particular special requirement or need for Ethan to be in a private school.
[134] On a going-forward basis, the applicant’s position is that both parents should have free access to all records and information relating to Ethan’s medical issues, his school issues or any other third party involved in his care and that both parents be free to communicate with these parties.
[135] With respect to activities and school events, the applicant expressed an aspiration that both parents should be free to attend. She stated that there have been instances when both parents have attended, citing Ethan’s Christmas concerts in December 2011 and 2012, as well as at Ethan’s CASA (or daycare program) graduation.
[136] The applicant stated that in the past she thought that the parties would need a protocol governing attendance at events because of the conflict that had existed and because of the possibility that Ethan may not understand that, if the other parent showed up, that parent was not there to take him to the other home. She stated that, going forward, the parties need to work on this area and that counselling would help. Her aspiration is that both parents be part of the Ethan’s life in regards to his activities and special functions.
[137] The applicant stated that she feels that it is important that Ethan be given the opportunity to telephone each parent while at the other’s home.
[138] The applicant stated that she is in complete agreement to working with the respondent on achieving flexibility in the parenting arrangements. She does not feel that the arrangement should be as fixed as it has been under the previous orders. She stated that there are opportunities in given weeks when Ethan would need both parents and her aspiration is that the parties would be able to work towards that. She believes that Ethan should be able to participate in activities that he enjoys and that both parents be able to attend those activities.
[139] The applicant stated that she believes that it is important for Ethan to be able to participate in special occasions such as birthday parties and family reunions in both families.
[140] The applicant has observed that Ethan is gaining independence and that he is a caring, loving, fun child who is happy to be with her in her home but she also sees him as a child who needs guidance. He is at a stage where he still needs nurturing. He is involved in playing hockey, enjoys golf, swimming and the two of them attend family yoga together. Ethan also attends kung fu lessons and has an afterschool club on Thursdays. She stated that she tried hockey during the week for Ethan but it was too much for him. Weekends are better for her and Ethan for participating in hockey. He has his practices on Saturday and his games on Sunday. Ethan is also interested in science and math and enjoys running and exploring in the neighbourhood. The applicant works with Ethan on math games. He also enjoys writing about the different adventures that he has experienced.
[141] The applicant stated that it is her hope going forward that she and the respondent would work jointly on an activity schedule that works for both of them.
(b) Evidence of the Respondent
[142] The respondent testified that following the order of Justice Lococo he exercised access with Ethan on Sundays, supervised by his brother in the mornings until 1 PM, with other members of his family in attendance. In the afternoons he was supervised by the applicant’s brother Zamal which the respondent described as very uncomfortable and awkward. He felt that he was constantly being scrutinized and was afraid of making a mistake in his care of Ethan. The respondent received no updates from the applicant regarding Ethan between the Sunday visits notwithstanding periodic emails to Zamal inquiring about him.
[143] Following the order of Justice Hambly, the applicant and the respondent had the care of Ethan on alternate weeks, with mid-week access for each from 2 PM on Wednesday until the following morning during the week when the other had Ethan. The respondent described the Wednesday midweek access arrangement as difficult because Ethan had difficulty adjusting to its short duration.
[144] Transfers between the parties took place at Walmart because it was in a public setting. The respondent described this as not ideal but it was what was agreed to.
[145] At the time of commencement of the week-about arrangement by the order of Justice Hambly, the respondent was residing in a three-bedroom apartment. The respondent initiated sending emails to the applicant as a communication log, describing his week with Ethan and sharing information with her along with any observations, concerns or issues that he thought she should be aware of. The respondent testified that emails which he received from the applicant in response were not directed towards cooperation and information sharing, but rather were pointed back at him, accusing and judging him on his parenting.
[146] The respondent testified that the different approach to communication taken by the two parties was exemplified by an exchange of emails initiated by him on June 11, 2011. In his email of June 15, 2011 the respondent explained that the parties should want the best for Ethan and should work together for him, that he had not had Ethan for over five months and he asked her to provide insight into his schedule including his activities, mealtimes, sleep times etc., and he was hoping that she could provide this information so that he could help Ethan adjust seamlessly. The applicant responded curtly on June 17, 2011 that the respondent had requested the information and the responses had been earlier provided by her counsel. The respondent testified that the applicant’s approach had the effect of destroying the type of dialogue which would be for Ethan’s benefit.
[147] The respondent continued to attempt to communicate with the applicant by email under the subject heading “communication log” respecting Ethan’s progress and well-being, but he eventually discontinued this due to the applicant’s lack of response. The applicant never responded to the respondent’s attempt to maintain a regular communication log.
[148] The respondent stated that the parties did not reinitiate the exchange of information by means of a communication log until a written communication protocol was introduced by the parenting coordinator Dr. Harris in 2015.
[149] The respondent testified that the issue of allergies has been a source of controversy between himself and the applicant from early on in Ethan’s life. While the parties were living together, Ethan had a reaction which the parties thought was possibly related to strawberries. During the currency of the order of Justice Lococo the applicant set up an appointment to have Ethan tested for allergies at the Firestone Clinic in June 2011. The order of Justice Hambly intervened and, as it happened, the appointment date for the testing coincided with a week when Ethan was in the care of the respondent. When he contacted the clinic to confirm the appointment the respondent was advised that it had been cancelled by the applicant. However, the respondent was able to rebook the appointment and attended the clinic with Ethan. The Firestone Clinic provided a report to Dr. Bal indicating that Ethan had tested negative to all of the allergens tested.
[150] The applicant subsequently took Ethan for further allergy testing at a different clinic without informing the respondent. The respondent did not find out about it until receipt of an email from the applicant on September 7, 2011 stating “please be advised that Ethan has a borderline “coconut” allergy. You can follow up with Dr. Rajguru [Ethan’s then paediatrician].”
[151] The respondent testified that when he attended at Sunshine Montessori School he was told that Ethan could not participate in the group snack because the school had been informed by the applicant that Ethan had a borderline coconut allergy. The respondent followed up with Dr. Rajguru who referred him to Dr. Moyo, the doctor who had conducted the allergy test. The respondent received a letter from Dr. Moyo clarifying that Ethan had a borderline coconut allergy of no significance. The respondent provided the letter to Sunshine Montessori School with the result that he was able to resume participating in the group snack during the weeks when he was in the respondent’s care. The respondent testified that Ethan has never, to his knowledge, had an allergic reaction to food.
[152] The respondent testified that he did not find out until December, 2011 that the applicant had commenced taking Ethan to Dr. Bal for medical appointments in June, 2011, shortly after the order of Justice Hambly. The applicant did not inform him nor consult with him with respect to the change of medical practitioner. The respondent found out about the change when he attempted to book an appointment with Dr. Rajguru and was informed that Ethan was no longer a patient of her office. He was directed to Dr. Bal.
[153] The respondent testified that he was never contacted by Dr. Bal nor her office with respect to the applicant’s complaints about Ethan being hit or injured. He stated that he contacted Dr. Bal’s office on a couple of occasions, seeking information and never received a response. He stated that he did take Ethan to Dr. Ball whenever he needed care. He testified that he usually took Ethan to the optometrist for routine eye tests and communicated that he had done so to the applicant.
[154] In August, 2012 the respondent learned that the applicant had taken Ethan to the optometrist for a checkup. He indicated that he had no issue with this but asked the applicant to inform him of such visits and of the results. The respondent followed up with a further email on August 16, 2012, and August 20, 2012 the applicant responded by referencing two emails that she had sent almost one year previously regarding what she characterized as a gash around Ethan’s eye but she never did respond to the respondent’s inquiry about the eye checkup. The respondent testified that the applicant never provided him with simple responses to his request for information, with the exception of information regarding administering medication. He stated that information regarding Ethan’s activities was never provided by the applicant easily.
[155] The respondent testified that as Ethan got older he was interested in getting him involved in organized sports. He stated that he was willing to reach out to the applicant to try to cooperate in enrolling Ethan in activities that both of them could take him to. However, he was not able to obtain a favourable response from the applicant to any of his suggestions.
[156] The respondent testified that shortly after the order of Justice Hambly the applicant signed Ethan up for swimming lessons on a weekday at 11 AM. It was not possible for the respondent to take Ethan to the swimming lesson during his week at that time due to his work obligations. He inquired of the swimming facility and was told that they had the same swimming class at 6:30 PM. However, the applicant was unwilling to adjust the time to allow him to take Ethan during the weeks when Ethan was with him.
[157] The respondent testified that on August 23, 2012 he sent an email to the applicant inquiring whether she had plans for signing Ethan up for any activities in the fall/winter because he would like to put him in gymnastics and skiing. He wanted to know what her plans were so that they could make arrangements on timing and cost sharing and to determine if they were both in full agreement. The applicant did not respond until after a follow-up email from the respondent. The applicant quoted back an email or letter sent by the respondent or his lawyer over a year previously that “neither parent should make decisions about the child’s extra-curricular activities without the parents’ consent unless, that parent intends on attending the class on his/her alternate week only.” The respondent indicated that that correspondence was sent after the applicant had enrolled Ethan in swimming at 11 AM in June, 2011, shortly after the order of Justice Hambly, without consulting him.
[158] The respondent testified that he and the applicant have been unable to jointly sign Ethan up for any extracurricular activity to date.
[159] The respondent testified that he learned from Ethan that the applicant had signed him up to play in a hockey program at the Cambridge Centre Mall. Ethan asked the respondent to come and watch him play. Respondent sent an email to the applicant to clarify and inquire as to when Ethan would be playing. He received a response from the applicant’s counsel telling him that he should not come to watch Ethan play hockey. The respondent made inquiries with the mall to find out the time and attended with his then girlfriend Manny and her daughter. During the game he observed the applicant with a video camera pointed at him from across the ice. He was then approached by security guards of the mall who told him that there was a restraining order in place and that he should not be there. He responded that he was just there to see his son play hockey, was not causing any issues and was not aware of any restraining order and asked the security guards to show him what they were referring to. The security guard went back to the applicant and returned with a copy of the letter from the applicant’s counsel. The security guard informed him that the police would be called and to wait for them to arrive. When the police did not arrive before the respondent had to leave, the respondent gave the security guard his name, phone number and address to provide to the police. He received a call from the police at 9:30 PM that night. The police investigated and did not pursue the matter further.
[160] The respondent testified that after the incident at the Cambridge Mall he contacted the owner of a hockey organization called Hockey Loft to inquire as to whether he could bring Ethan on his week and he proceeded to sign him up to take him every Saturday during his time with Ethan. He was then informed that Ethan was pulled out of the program. The respondent signed him up again and emailed the applicant about signing him up during her week. Ethan was enrolled by the applicant in a different hockey league on Saturdays, but the respondent has never been advised of the details.
[161] In 2015, during the time that the parties were utilizing the parenting coordinator, the respondent sent an email to the applicant indicating that he would like to sign Ethan up for soccer and hockey or just hockey. Each time the respondent provided the applicant with the details of the dates, times and locations the applicant responded that they were busy.
[162] On September 4, 2012 the respondent sent an email to the applicant asking whether she was in agreement to take Ethan to a gymnastics class on Saturdays. The applicant responded by quoting the same letter from the respondent as she had previously dating from June, 2011.
[163] The respondent testified that he and the applicant attended an appointment together with a paediatrician Dr. Martinez. The applicant had set up and attended the first appointment with Dr. Martinez who indicated that he would like to meet with the respondent to understand what was going on. The respondent attended the joint appointment with the applicant.
[164] The respondent called Dr. Martinez’ office to book a follow-up appointment and was informed that it had already been booked by the applicant for November 27, 2012. When the respondent attended on that date he found that the appointment had been cancelled by the applicant. The respondent sent an email to the applicant advising that he thought it was very inappropriate for her to have cancelled the appointment without notifying him and requesting that she inform him in advance of any future appointments and cancellations. The applicant responded by email simply referencing an earlier email dated November 7, 2012 in which she stated that the appointment for November 27 was a personal appointment that she had with the doctor. The respondent confirmed with Dr. Martinez staff that it had not been a “personal appointment”.
[165] The respondent testified that the applicant failed to notify him that Dr. Martinez had declined to continue as Ethan’s primary physician.
[166] The respondent testified that, upon release of Justice Leitch’s order, his access was reduced from week on/a week off to alternate weekends from Friday at 5:30 PM to Sunday at 6 PM. He was not permitted to mid-week phone calls or other times of access. That situation remained until Justice Sloan’s order of April 8, 2013.
[167] The respondent stated that, following Justice Sloan’s order, the parties agreed that exchanges would take place at the Sunshine Montessori School which made the transitions more seamless.
[168] The respondent testified that in August 2013, during a week when he had care of Ethan, he took him to visit his father and mother in Calgary. The respondent’s father was working on assignment in Calgary and his mother was visiting there as well. The respondent’s brother and his fiancée also visited at the same time. He dropped Ethan off with the applicant on Friday following his return and later that day he received a phone call from the police asking about his trip to Calgary and he also received a letter from the applicant’s counsel regarding the trip. He stated that he was of the understanding that, following the making of the orders of Justices Hambly and Sloan, the original order of Justice Lococo restricting the parties from taking Ethan out of the Province of Ontario was no longer in effect.
[169] The respondent testified that following Justice Sloan’s order which required the applicant to cover the fees of Sunshine Montessori school, she failed to make the payments and the school notified the respondent that unless the fees were paid Ethan would have to be withdrawn from the school. The respondent arranged for his mother to cover the tuition. The fees were not reimbursed by the applicant until July.
[170] In the spring of 2013, following the order of Justice Sloan, Ethan was not attending Sunshine Montessori School during the weeks when he was with the applicant. The respondent was not informed of this but only learned of it eventually from Ethan.
[171] In August, 2013 Justice Reilly ordered that Ethan continue to attend Sunshine Montessori School commencing in September 2013, with the tuition to be paid by the applicant.
[172] The respondent testified that he began a relationship with Manny in October 2013. Manny has three children from a previous relationship, Sarina, age 12, Jasmine, age 10 and Navin, age 8.
[173] The respondent and Manny moved in together in Kitchener in August 2014 and married in October, 2015. They purchased a new home located in the same school catchment area as the applicant’s and the respondent’s former matrimonial home. It has six bedrooms. Ethan is provided with his own bedroom located in the loft. Navin’s bedroom is also in the loft and Ethan and Navin share a bathroom.
[174] The respondent testified that Ethan is very happy in his and Manny’s home and that he has an excellent relationship with Manny and her children.
[175] Ethan continued to attend Sunshine Montessori School for the academic year commencing September 2015. It was agreed between the parties that the tuition for the current year would be paid from the money in trust, being the proceeds of sale of the former matrimonial home. The parties agreed to resume Friday afternoon transitions at Sunshine Montesorri School.
[176] The respondent testified that he and the applicant had in April, 2014 agreed to change the transition location from Walmart to the school which continued for the balance of that academic year. In September, 2014 the applicant insisted that the transitions take place at Walmart. In an email exchange the respondent proposed that the transitions continue at the school however he ultimately relented to the applicant’s position and transitions began to take place again at Walmart and continued until April 12, 2015 when the parties agreed to revert to the school for transitions.
[177] The respondent testified that on the exchanges at Walmart, when Ethan was being transferred from the applicant to him, the applicant would remain in the vehicle and her mother Bibi Ruffudeen would walk Ethan from the vehicle to approximately 10 metres from the respondent and Ethan would run the rest of the way. Mrs. Ruffudeen would not exchange any words with the respondent. On the exchanges from the respondent to the applicant the respondent would take Ethan from his vehicle and walk him to the applicant’s mother at the applicant’s vehicle and exchange him directly to her.
[178] The respondent testified that the transfers at Walmart were “not ideal” as it would take Ethan a couple of hours to warm to the exchange. In contrast he described the exchanges at the school as seamless, and a “natural smooth transition”.
[179] The respondent testified regarding an incident involving the applicant not bringing Ethan to the Sunshine Montessori School Christmas program in December 2014. Ethan had practiced for the concert with his teachers and classmates and was looking forward to it. The concert was scheduled for a Friday evening, after the transfer to the applicant. The respondent had purchased a ticket to be in attendance. On the day following the concert the respondent emailed the applicant to advise her that Ethan’s teachers were quite disappointed that he was not there, having practiced so hard to be part of the concert. He indicated that “for Ethan’s sake and his childhood memories it would have been nice for him to be part of this school event.” He went on to say “I’m not attacking you or trying to hurt you in any form. I’m only speaking on Ethan’s behalf. Ethan is only a child and doesn’t have the ability to decide what’s best for him; it is up to us to motivate, encourage and support him in participating in school and or recreational activities.” He received no response from the applicant to this email.
[180] The respondent responded to the evidence of the applicant that Ethan had told her about being kicked and pushed by Manny’s children causing bruises, He testified that the children play soccer and hockey in the basement and sometimes the children get slashed with a hockey stick by accident. The children do not argue or fight and Ethan has not come to him reporting that the other children were hitting him.
[181] The respondent testified that he was disturbed to hear the applicant’s evidence respecting Navin putting his finger in Ethan’s rectum. He indicated that the children respect each other’s privacy, including things like changing clothes or showering. He stated that Ethan showers and changes on his own. He has his own bedroom and is responsible for keeping it tidy. He is taught self-hygiene and to clean up after himself in the kitchen.
[182] The respondent testified to two occasions when he approached the applicant to cooperate in allowing him to attend at special occasions with Ethan. One involved an opportunity to take Ethan to a NHL hockey game in Buffalo. Ethan’s passport needed to be renewed for him to attend however the applicant refused to cooperate, citing a previous occasion when she said he refused to cooperate for a planned trip with Ethan to Barbados. The other occasion involved attending the birthday party of a playmate for two or three hours during the applicant’s week.
[183] The respondent testified that he has tried to reach out several times to the applicant to attempt to discuss and resolve the issues between them, without success. He indicated that he proposed marriage counselling prior to separation. Following separation he proposed mediation through counsel. Following the order of Justice Hambly the parties began the process of engaging a parenting coordinator, John Thompson. After the respondent signed Mr. Thompson’s retainer agreement, the applicant advised by email that she no longer intended to be engaged in that process.
[184] On April 30, 2014 the respondent e-mailed the applicant to ask if she would be interested in meeting, without their lawyers, to discuss and hopefully resolve some or all of the issues between them. The parties did meet in June, 2014, but no issues were resolved.
[185] On Thursday November 13, 2014 the respondent approached the applicant by e-mail asking her to take Ethan to an indoor soccer program on Friday evenings at 6:00 p.m. that Ethan was excited to play in, as the Saturday program was full. He suggested alternatively that he would take him and they could make the exchange after the game. The applicant responded negatively, citing previously scheduled plans on Fridays.
[186] The respondent testified that if Ethan injured or bumped himself while playing and went to him and the mark still showed on his body he would let the applicant know so she would know what happened. However sometimes Ethan might get a bump or scrape while playing and would not bring it to his attention. He indicated that if anything required medication or antibiotics, or of Ethan was ill, he communicated with the applicant about it.
[187] The respondent testified that commencing in 2013, if Ethan was prescribed medication while in the applicant’s care, the applicant would pass on a duplicate prescription from his doctor rather than the actual medication. This would be done through Ethan rather than by direct transfer from the applicant or her mother. The respondent stated that it would be preferable to have the prescription handed to him, rather than through Ethan, so that they could communicate about it, adult to adult. He indicated that placing the responsibility on transferring the prescription on Ethan places unnecessary pressure and anxiety on him.
[188] The respondent testified that his mother had never hit Ethan in his presence. He stated that she loves Ethan and would never do so.
[189] The respondent stated that similarly, Manny does not use corporal punishment on Ethan or on her own children. With the older children who are able to write and articulate, in order to discipline them, the respondent and Manny get them to write a letter of apology or a letter of acknowledgement of what they did wrong. With the younger ones, he and Manny get them to draw a picture to express their feelings.
[190] The respondent also denied that Manny has ever withheld food, including dessert, from Ethan as a form of punishment.
[191] The respondent testified that there are no special rituals or protocols that Ethan has to go through when he comes to his home after being at the applicant’s home. The only thing that he and Manny request is that he empty out his backpack and lunch bag so that the food containers may be a washed and made ready for school on Monday. He did testify that in the past Ethan had told him that when he arrived at the applicant’s home following a transfer he was required to take a shower “to get daddy’s smell off.”
[192] The respondent testified that, prior to Manny and him blending their families, they had a discussion with all four children about what they would like to call them. Manny’s children were comfortable calling him “dad” as they called their biological father “daddy”. Ethan responded that he was comfortable calling Manny “mom” as he called the applicant “mommy”. The respondent characterized it as very comfortable and natural. More recently Ethan has begun calling the applicant “mommy number one”.
[193] The respondent testified that while the “week on-week off” schedule may suit the parents by affording them equal time with Ethan, and may have the advantage of limiting transfers, it is not in Ethan’s best interests. He described Ethan as a child living two lives in two homes. While he is resilient and happy, doing well in school and has no major medical issues, the respondent’s long-term worry is about the psychological effect that the arrangement will have on him as he gets older. In the respondent’s view, Ethan needs the kind of structure and routine which is not afforded by the “week on-week off” model. He would also like to see a time when both he and the applicant could attend Ethan’s activities as the same time which would make Ethan feel good that he is supported by both of his parents.
(c) Evidence of Dr. Sharon Bal
[194] Dr. Sharon Bal was called to by the applicant to give evidence. She stated that she has been the applicant’s and Ethan’s primary care physician since June, 2011. Ethan was just over two years old at that time. Her clinical notes and records from June 8, 2011 to November 2, 2015 were entered into evidence as an exhibit.
[195] In her testimony Dr. Bal was asked to review the notes she took on her various examinations of Ethan. In recording her clinical notes Dr. Bal most often utilized the “SOAP” system, noting “subjective-what the patient relates,” “objective-physician observations,” “assessment-assessment or diagnosis,” and “plan.”
[196] On the initial visits in June, 2011 the applicant related behaviours in Ethan which were concerning to her, including aggressive behaviour, loud screaming, scratching and hitting. Dr. Bal referred Ethan to a pediatrician Dr. Manjulata Rajguru who examined Ethan and submitted a report to Dr. Bal on June 30, 2011. Dr, Rajguru noted that Ethan was presenting with constipation due to poor dietary habits and made recommendations to the applicant in that respect and stressed the need for communication and consistency in both the houses in terms of food and bedtime routines. Dr. Rajguru also recommended counselling regarding Ethan’s behaviours which would help with making a plan for both homes.
[197] On March 14, 2012 Dr. Bal noted that Ethan said “Conrad hit me, grandma hit me, aunt Laura hit me.” A note was made that Ethan had screamed during nightmares “don’t hit me”. She noted “patient endorses being hit on the head by Conrad whom I understand is patient’s father.” She made a note with respect to a small abrasion on Ethan’s cheek. Ethan stated “Conrad did it” and when asked how, he said “with scissors”. Dr. Bal made a referral to another pediatrician Dr. Martinez. She also testified that she ended up making a report to the Children’s Aid Society, she believed in early April, 2012.
[198] Dr. Bal noted on April 25, 2012 that Ethan reported to the applicant that “grandma hit his face on cheek”.
[199] On May 11, 2012 Dr. Bal met for the first time with the respondent and his mother (Ethan’s paternal grandmother). Dr. Bal noted that the respondent denied any issues. When asked about the abrasion he denied doing it and said it was sustained during skating.
[200] On May 17, 2012 Dr. Bal noted that the applicant reported that Ethan says he’s very sad and when she asked him why Ethan responded that “Conrad” was mean to him. She discussed the issue of therapy and counselling with the applicant.
[201] Dr. Martinez submitted his report to Dr. Bal on July 16, 2012. In his report Dr. Martinez noted that, in his opinion, Ethan’s behavioural problems related, at least in part, to the significant disruption in the stability in his life. Dr. Martinez stated that it would be beneficial for him to meet with the respondent and Ethan to see how Ethan interacts with his father and to advise the respondent on how the differences in the parents’ perceptions are affecting their son’s behaviour. He noted that the applicant had been requesting some counselling. He also noted that there were no clinical signs of physical abuse.
[202] On December 4, 2012 Dr. Bal noted that respondent brought Ethan in, along with the paternal grandmother, in relation to a complaint of ear ache and fever.
[203] On April 11, 2013 Dr. Bal noted that Ethan reported that he was hit on his head by his paternal grandmother and that when his grandmother is upset she hits him on the back of the head. When asked if anyone was there when this happens he said sometimes his dad who does nothing but his dad does not hit.
[204] On April 24, 2013 Ethan was brought in by his maternal grandmother. Ethan reported to her that the paternal grandmother hits him and says that the paternal grandmother is “not nice” and hits him on his head and his eye to which “I just go hide”. He reports that his father does not hit him.
[205] On May 23, 2013 Dr. Bal reported that Ethan stated that his paternal grandmother makes him sad, that she puts him in the closet and locks the door. The applicant reported that Ethan keeps talking about Manny. Ethan reported that “someone make me sad” and when asked why, he said “he hit me” and when asked to show how, he slammed his hand down on his thigh. Dr. Bal noted under “O – objective” that Ethan answered questions and was more spontaneous and was very convincing regarding hitting that occurs from the paternal grandmother, reporting that it hurts and he feels bad. Under “A – assessment” she noted “concerns about safety, physical abuse” and under “P – plan” she noted that the Children’s Aid Society is to be contacted.
[206] Dr. Bal reported that on June 3, 2013 Ethan reported that the paternal grandmother “hits me and puts me in a time out” which causes a “big ouch”.
[207] On June 17, 2013 Dr. Bal noted that Ethan reported that the paternal grandmother “hits me when I’m not listening; hits on back”. Ethan reported that this upset him and it hurt. The applicant reported to Dr. Bal that when Ethan perceives that she is not listening Ethan hits her as well as the maternal grandmother. Dr. Bal noted that Ethan has a consistent story with respect to the hitting and that Ethan was upset and acting out. Dr. Bal noted that she called Children’s Aid Society again and reported her suspicions of abuse/hitting by the paternal grandmother.
[208] On July 17, 2013 Dr. Bal noted that Ethan again reported being hit by the paternal grandmother and that the applicant reported that Ethan hits her and her mother (Ethan’s maternal grandmother) when he feels he is not being paid attention to. Dr. Bal noted “seems definite physical punishment at father’s home by paternal grandmother and child affected significantly by it-hitting, acting out, talks about it, gets upset.”
[209] On July 27, 2013 Dr. Bal noted that Ethan reported that the paternal grandmother hit him in the eye “because I wasn’t listening”.
[210] On September 9, 2014 Ethan was brought in by the maternal grandmother. Ethan reported that he was upset about Manny asking him to call him “mom” and that the respondent and his girlfriend told him not to hug or kiss the applicant.
[211] On September 23, 2014 Dr. Bal noted that Ethan reported that Manny says that the other three children can telephonel their dad but Ethan is not allowed to call his mother. He reported that respondent wants him to call Manny “mom” and Manny says “call me mom” or he gets a timeout. Dr. Bal noted that Ethan was speaking with a hoarse voice and she referred him to an ear nose and throat specialist.
[212] On October 22, 2014 Dr. Bal noted that the applicant brought Ethan in reporting that on the previous Friday Ethan had come home sick. She learned that he had not been in school since Wednesday. He had a rash around his eyes and on his chest and his head was itchy. She took Ethan to a walk-in clinic and was told that he had strep throat and was given antibiotics. She questioned Ethan about his home life and Ethan reported that Manny “doesn’t give me dessert if I don’t tell the truth about mommy”. If the children are loud Manny says “shut your damn voice”. Ethan reported that Manny gave him medicine. When asked where dad was he said he was sleeping and denied that his dad had given him any medicine.
[213] On March 11, 2015 Dr. Bal noted that the applicant reported that Ethan tells her that he is left alone with the other children when Manny and the respondent are not home. He reported to her that Manny says “get to your f…ing room”. He reported that he is told to write letters that say when he grows up he does not want to grow up to be like his mommy. Ethan reported to Dr. Bal that his father “gets angry” at him if he complains.
[214] On March 31, 2015 the respondent brought Ethan to the appointment along with his fiancée Manny. The respondent updated the situation from his point of view.
[215] On April 16, 2015 Ethan was brought in by Manny for an immunization.
[216] On October 7, 2015 Dr. Bal noted that Ethan reported that Manny was yelling at him in the car and he was scared to tell his father. Dr. Bal noted that Ethan was feeling “caught in the middle” and that it is hard to know exactly what the impact will be that he may benefit from counselling. She noted that Ethan feels tension between the parents.
(d) Evidence of Manjit Coutts
[217] Manjit Coutts (“Manny”) was born in Brampton and is trained as a registered nurse, qualifying in 2014. She is 31 years of age and has three children from a previous relationship Sarina born May 11, 2003, Jasmine born October 6, 2005 and Navin born May 29, 2007. She was in a common-law relationship with the father of her children Roshan Galpaya commencing when she was 17 years of age, separating from him in May 2008 when she was 24. She met the respondent on an on-line dating site in October 2012. When they met she was living in Brampton in a condominium which she owned.
[218] Her children’s father Mr. Galpaya has access to the children on alternate weekends from Friday evening until Sunday evening. She receives child support from Mr. Galpaya. She testified in chief that she is engaged in on-going litigation with Mr. Galpaya in respect of s. 7 expenses and arrears of child support. She said that there are no remaining parenting issues before the court. She is self-represented in the litigation.
[219] Manny testified that she and the respondent dated three or four times before she met Ethan towards the end of November, 2012. She first met Ethan in a public play facility “Balls of Fun”. She said that they connected right away. She met Ethan twice before introducing him to her own children. The first introduction to her children involved 2 to 3 hours of playing and a snack, after which they returned to her home in Brampton.
[220] Manny stated that while she and the respondent were dating they got together with their children every other weekend. They wanted their children to get to know each other. Although Ethan was very anxious and shy at first he became comfortable staying with her and her children. Her condominium in Mississauga had three bedrooms. Each of the her children had their own beds and one room, Ethan and the respondent slept in a bedroom together and she slept in the spare bedroom.
[221] Manny and respondent purchased a home in Kitchener in August 2014. She moved from Mississauga and the two of them moved into the home.
[222] Manny testified that she and the respondent became engaged in early 2015 and married in October 2015. They discussed their plans to marry with the children. She testified that the children jumped for joy and were excited to be together. Ethan was excited to have an older brother.
[223] Manny testified that Ethan was very independent with respect to his toileting and bathing from the beginning of her and the respondent living together. She said that she never supervised him in the bathroom and the two of them respect the children’s privacy. The only role that Navin had in supervising Ethan was to turn the faucet on and run the bathwater when Ethan was younger.
[224] Manny described Ethan as quite independent.
[225] She stated that the she and the respondent provide transportation for Ethan to and from school, the respondent taking the children to school and her doing pickups. She indicated that the respondent leaves at 8 AM to take the children to their respective schools. She has taken over making lunches for the children although the respondent sometimes prepares lunches the previous night. She stated that Ethan packs his own lunch.
[226] Manny stated that she is currently not working outside the home.
[227] Manny testified that when she attended a medical appointment with Ethan Dr. Bal brought to her attention that he was behind on two immunizations, one being two years overdue. Dr. Bal suggested that Ethan be immunized while he was there. She stated that Dr. Bal is okay with her bringing Ethan in.
[228] Manny testified that when picking Ethan up from school she has never bumped into the applicant however she does see her and the applicant’s mother on transitions on professional development days.
[229] Many testified that on transitions the applicant always videotapes her while her mother brings Ethan to her, calling her names. She testified that this upsets Ethan. She stated that the applicant never comes over to her personally and refuses to make eye contact with her.
[230] I would give no weight to this evidence of the behaviour of the applicant and her mother Bibi Ruffudeen on transitions as it offends the rule in Browne v. Dunn. This evidence was not put to the applicant nor to Bibi Ruffudeen on cross examination to permit them to respond to it.
[231] Manny testified that in the home discipline is applied equally between the children. She never withdraws anything such as dessert, in order to discipline. Occasionally she would withhold a treat from a child who is misbehaving.
[232] Many testified that Ethan has mentioned to him that he feels he cannot open up with his mother. He calls her “mommy number two” or “mom”. She says that he is comfortable calling her these names.
[233] She stated that Ethan has told her that the applicant asks some questions after transitions, which annoys him. She also testified that Ethan told her that “mommy doesn’t like daddy’s smell” and that he has to be bathed right away by the applicant.
[234] Manny stated that she found the reference in evidence to Navin putting his thumb up Ethan’s rectum very disturbing. She said that Navin has never seen Ethan naked. All of the children want their privacy. The children get on so well that if there was something wrong she would see some behavioural change.
[235] Manny denied that she ever struck or assaulted Ethan. She also denied that the respondent ever hit him.
[236] Manny responded to the suggestion about Ethan being forced to write notes as punishment. She stated that while she lived in the condominium she would get her children to write notes about what they were sorry about and how to improve, however the note-taking is not done anymore as the children no longer need this method of discipline. She and the respondent correct the children by just speaking to them.
[237] Manny testified that the children play ball hockey in the basement.
[238] Many testified that she attended with the respondent at Ethan’s school Christmas concert in 2013. Ethan was very excited about participating but he did not attend with the applicant. She stated that the respondent was very upset and tearful about it.
[239] Manny stated that she attended with the respondent at Ethan’s CASA (daycare) graduation at Sunshine Montessori School where she saw the applicant. She was hoping that she could make eye contact with the applicant however that did not happen and there was no communication with her. Ethan appeared quite anxious and uncomfortable.
[240] Manny testified that during the weeks when Ethan is in the respondent’s care the family goes to watch him in his hockey games on Mondays and the respondent takes him to his hockey practice on Thursdays. She does not know what activities Ethan is in during the weeks that he is in the applicant’s care.
[241] Manny stated that the applicant used to take Ethan for swimming to the Lyle Hallman pool but she pulled him out when she found out that she and the respondent took him and her children there. As a result Ethan was unable to pass his swimming level because he only is able to attend on alternate weeks.
[242] On cross-examination Manny was directed to an affidavit sworn by her in August, 2015 in the family law proceeding between herself and the father of her children. The affidavit indicated that in January 2015 there was an issue respecting the sleeping arrangements of the children on access visits to their father in Mississauga, triggered by a report by Jasmine to her pediatrician that she was uncomfortable sleeping in the same bed as her father. Manny maintained that the issue has now been resolved. There was a reference in her affidavit to previous issues respecting telephone access between her children and their father. Again she maintained that this is no longer an issue and that the only remaining issues in the litigation are the questions of the sharing of s. 7 expenses for the children and arrears of child support.
[243] Manny responded to the evidence of the applicant respecting her attendance at Sunshine Montessori School in May, 2015 to deliver invitations to Ethan’s classmates to his birthday party. She stated that she gave the invitations to Ethan’s teacher Mrs. Westfall and that Ethan never came to the door.
[244] Manny testified that she has not met the applicant, indicating that the applicant will not acknowledge her nor make eye contact with her. Manny stated that she would like to meet the applicant.
[245] Manny stated that in May 2015 she went to Sheppard Public School to enroll Ethan in order to hold a spot for him on the waiting list for French immersion. She indicated that she attended at the respondent’s request and as his agent. She indicated that the school staff asked if they could contact the applicant to which he agreed and she provided her phone number to the school principal. She was not aware that the applicant was seeking to enroll Ethan at J.W. Gerth Public School.
[246] Manny maintained that Ethan is very comfortable calling her “mom” in the home and this is not forced on him in any way.
Evidence of Bibi Ruffudeen
[247] Bibi Ruffudeen’s (referred to as “Bibi” for convenience with no disrespect intended) testimony largely centred on events prior to the separation of the applicant and the respondent, and in particular on her involvement in the five months prior to separation is a caregiver for Ethan in the parties’ home, and her observations of the deterioration in their relationship.
[248] Bibi testified that subsequent to the separation in December, 2010, she moved with the applicant and Ethan to reside with her son Zamal. In early 2011 she and the applicant moved to the home where they now reside. Following the order of Justice Sloan in March 2013 she has been with Ethan together with the applicant in alternate weeks. She indicated that she takes Ethan walking, to the library where she introduced him to the computer, shopping after the library, to the mosque and to swimming. Ethan calls her “Mom-Mom”.
[249] Bibi testified that when Ethan was in the CASA program at Sunshine Montessori School she would take him out for lunch one or two times per week. She said that Ethan loved this.
[250] Bibi confirmed that the applicant is Ethan’s primary care-giving during the weeks when he is with her. She stated that she is only there in case the applicant needs her, for example when she is required to attend a meeting for her work, which she described as very seldom.
[251] With respect to Ethan’s behaviour following separation, Bibi testified that in the period following the order of Justice Lococo he was very happy. After the week-about arrangement was instituted Ethan would sometimes come home from being with the respondent and would cry and hit. She stated that the applicant could not be away from him as Ethan always wanted to know where she was. She described Ethan as confused. She indicated that even presently Ethan still always wants the applicant to be around him and to know where she is.
Evidence of Naomi Coutts
[252] The respondent’s mother Naomi Coutts (referred to as “Naomi,” no disrespect intended) testified that at the time of the parties’ separation in December 2010 she was staying in Calgary with her husband who was working there temporarily. Their permanent home was in Ancaster, Ontario. She flew from Calgary to attend court with the respondent before Justice Lococo. Following the order of Justice Lococo she attended, along with her husband and her two other children Daniel and Laura, to visit with the respondent and Ethan on the exercise of his 4 hour Sunday morning supervised access. Following the order of Justice Hambly she stayed with the respondent during the weeks that he had Ethan in order to provide childcare for Ethan while the respondent was at work. The respondent took Ethan to Sunshine Montessori School at 8 AM and picked him up at 11:30 AM. During the summer the respondent stayed with her in Ancaster during the weeks when Ethan was in his care.
[253] Naomi testified that the respondent looked after Ethan’s needs, attending on medical appointments and school events. She stated that she attended school open houses, play days and Christmas concerts. She said that most of the time the respondent would attend on exchanges by himself, but occasionally she would accompany the respondent along with her daughter Laura.
[254] Naomi stated that she met with Ethan’s teachers because she felt it was important that they knew who she was as Ethan’s caregiver. When Ethan entered the CASA program at Sunshine Montessori School picked him up at 3:30 PM.
[255] Naomi testified that she attended with respondent on Ethan’s allergy testing in June 2011. She also testified that she also accompanied the respondent on attendances with Dr. Bal.
[256] Naomi responded to the applicant’s testimony concerning an altercation at Sunshine Montessori School at the Mother’s Day event in May, 2012. She testified that she went to the school to pick up Ethan to take him to see Dr. Bal, as the respondent had arranged an appointment because Ethan’s ears were hurting. When the applicant suddenly showed up she told her that she had to take Ethan to a doctor’s appointment. When the applicant said “I’m his mother” Ms. Coutts took him from her arms, informing the applicant that she had to take him to the doctor. She stated that no one from the school had communicated to her that Ethan had to remain there. She denied telling the applicant that she should have asked her permission to come to the school during a week when Ethan was in the respondent’s care.
[257] Naomi testified that she went into Dr. Bal’s examination room along with the respondent and Ethan because she felt that it was important that Dr. Bal see who she was. All of Dr. Bal’s questions were directed to the respondent. She testified that she had also attended with Dr. Rajgaru in 2011. She said she has also taken Ethan to walk-in clinics on a couple of occasions, including once in Hamilton when Ethan had a fever and the respondent was at work.
[258] Naomi characterized exchanges between Ethan’s parents as traumatizing to him. She stated that the applicant was inconsistent with respect to who was coming for the transfer. She described Ethan as “in a daze” and upset on the transfers at Walmart. However after 15 to 20 minutes he would be back to his normal self. She said there were no issues on the midweek exchanges between herself and Ethan’s other grandmother Bibi.
[259] Naomi testified that her role in providing child care for Ethan changed in August 2014 when the respondent and Manny moved in together in Kitchener. Since that time she is in frequent telephone contact with Ethan. Ethan and the respondent also attend family visits.
[260] Naomi testified that during the currency of the order of Justice Hambly from May 31, 2011 to December 6, 2012 Ethan did very well under the care of the respondent and her. He never had any nightmares, nor did he bite or scratch and he never had temper tantrums. She said that Ethan never hit her and she never hit Ethan. She stated that there was no need to discipline him. She would pick up on his cues and there was no discipline or correction required. She ever raised a hand to or physically punished Ethan and never restrained him in a closet.
[261] Naomi testified that when she was bringing up her three children she would do “time-outs” as the method of discipline. On very rare occasions when her two boys were fighting she would use a wooden spoon to hit them on the arm. This took place when the respondent was between the ages of 10 and 13. She described corporal punishment as having been more acceptable in those days than it is presently.
[262] Naomi described her relationship with Manny as “fabulous”, describing her as a very thoughtful and caring. She has accompanied Manny on day trips with Ethan and Manny’s children and has observed Ethan interacting with Manny and her children. She indicated that Manny took Ethan in right away “as her own child.” She described Ethan as more self-assured with siblings to play with. He has learned how to share and to become independent.
[263] Naomi denied telling Ms. Geraldo that the respondent “would have liked to have married a more traditional woman who cooked and looked after him” and stated that that does not represent her view.
[264] Naomi stated that she wants what is best for Ethan and, more than anything else, wants closure for him.
Testimony of Teachers at Sunshine Montessori School
[265] Two teachers at Sunshine Montessori School were called by the respondent to testify. Jennifer Westfall was Ethan’s teacher in the CASA program (primarily a day-care program) for the three year period ending June, 2015. Andrea Clark is Ethan’s current grade one teacher.
[266] I did not find the testimony of Ms. Westfall or Ms. Clark to be helpful to the court’s determination of an appropriate parenting plan which will serve Ethan’s current and future best interests. The subject-matter of Ms. Westfall’s testimony was largely historical, relating to the first two academic years that she had Ethan in her class. Although she described Ethan as having been very insecure and in need of reassurance during the first two years, she described him as more settled in the third year, being a year when he attended for full days. She described him as “totally fine” with routines in the most recent academic year. Drop-offs and pick-up’s at the school were satisfactory and unremarkable and Ethan appeared to be happy. Ms. Westfall observed that Ethan had matured during the third year in her class.
[267] For her part, Ms. Clark described Ethan’s performance as satisfactory and she has no concerns with him. He is happy, is liked by the other children, is friendly and cheerful, and does everything that he should be doing.
[268] As noted below, neither of the parties, in their respective proposed parenting plans, proposes to enroll Ethan in Sunshine Montessori School for the academic year commencing in September, 2016.
Section 30 Assessment
[269] The parties consented to an order dated February 20, 2013 providing for an assessment to be conducted under section 30 of the CLRA.
[270] Subsection 30(1) provides that the court may appoint a person who has technical or professional skill to assess and report to the court on the needs of the child and the ability and willingness of the parents or any of them to satisfy the needs of the child. Subsection 30(7) provides that the person appointed to conduct the assessment shall file his or her report with the clerk of the court and, pursuant to subsection 30(9), such report is admissible in evidence in the application. Subsection 30(10) provides that any of the parties, and counsel, if any, representing the child, may require the assessor to attend as a witness at the hearing of the application.
[271] The parties agreed to the appointment of Ms. Lourdes Geraldo M.S.W., R.S.W., Acc. F.M. as the s. 30 assessor and entered into a retainer agreement with her on April 3, 2013 for that purpose. The mandate provided to Ms. Geraldo in the retainer agreement went beyond the strict terms of subsection 30(1) of the CLRA and directed her to provide recommendations regarding certain issues relating to the child’s parenting arrangements, namely 1) how information regarding the child should be shared between the parents; 2) how decisions affecting the child shall be made; and 3) the nature and schedule of the child’s living arrangements, including the time spent by the child with each parent.
[272] In the course of carrying out her assessment Ms. Geraldo conducted five office interviews with the applicant from April 3, 2013 to December 12, 2013 and four office interviews with the respondent from March 28, 2013 to December 5, 2013. She carried out two interviews with Ethan and with the applicant on August 15 and August 29, 2013 and one interview with Ethan with the respondent on October 27, 2013.
[273] Ms. Geraldo also conducted five observation visits with Ethan and his parents as follows:
a) July 5, 2013 observation of Ethan in the applicant’s care with his maternal grandmother present followed by observation of Ethan transitioning into the respondent’s care with his paternal grandmother and paternal aunt and uncle present;
b) July 26, 2013 observation of Ethan in the respondent’s care and transitioning into the applicant’s care (direct observation of transition when Ethan entered the applicant’s home was not made);
c) August 2, 2013 observation of Ethan in the applicant’s care outside of the transition experience;
d) August 9, 2013 observation of the Ethan at transfer point at Walmart, and transitioning from the respondent’s care into the applicant’s care and observations carried out at the applicant’s residence; and
e) October 27, 2013 observation of Ethan in the respondent’s care while at the respondent’s girlfriend’s (Manjit Galpaya) [note: this reference is to Manny] residence. Ms. Galpaya and her three children were present during this observation.
[274] Ms. Geraldo also gathered certain professional collateral information, including an interview with a child protection worker with Family and Children’s Services of Waterloo Region, interviews with the director and two teachers at Sunshine Montessori School, review of the clinical file of Dr. Pham, the family physician of the applicant and the respondent, review of the clinical file of Dr. Manjulata Rajgaru, pediatrician, review of clinical file of Dr. Martinez, consultant pediatrician and a telephone interview with him, review of clinical file of Dr. Sharon Bal, Ethan’s family physician and a telephone interview with her, and review of Waterloo Region Police Service occurrence reports.
[275] Ms. Geraldo also conducted interviews with personal collaterals of the parties including the following:
(a) Naomi Coutts, paternal grandmother;
(b) Laura Coutts and Daniel Coutts, siblings of the respondent and Hubert Coutts, paternal grandfather;
(c) Bibi Ruffudeen, maternal grandmother;
(d) Manjit Galpaya [Manny], girlfriend of the respondent;
(e) Lisa Martin, friend of the applicant; and
(f) Mr. Sattar, friend and community religious support for the applicant.
[276] Ms. Geraldo also retained a psychologist Robin Holloway, Ph.D., C. Psych. to conduct psychological testing and assessment of personality functioning of each of the parties. Dr. Holloway provided a written psychological assessment report documenting the results of his testing and assessment in respect of each of the parties, which were appended to Ms. Geraldo’s assessment report as appendices. Ms. Geraldo’s treatment of Dr. Holloway’s psychological assessments reports in her assessment report was brief – stating only “neither report revealed any significant concerns with respect to either parent’s personality, functioning and thinking which would impair their ability to parent Ethan appropriately and safely.”
[277] It is noted that Dr. Holloway was called to testify at the trial and was examined by counsel for both sides at length. I did not find Dr. Holloway’s evidence to be instructive or helpful on the core determination to be made by the court – namely what parenting plan should be adopted to meet Ethan’s best interests. I attach no significance to Dr. Holloway’s reports or evidence beyond the brief observation made by Ms. Geraldo that his reports raised no significant concerns which would affect the parenting abilities of either party.
[278] Ms. Geraldo delivered her findings and recommendations to the applicant and the respondent and their counsel in a disclosure meeting on December 16, 2013 and released her written report on January 20, 2014.
[279] Ms. Geraldo’s final recommendations, as set forth in her written report, may be summarized as follows:
(a) the applicant and the respondent shall make decisions for Ethan in accordance with a parallel parenting model, by which each parent shall have the right and responsibility of making final decisions in a different domain. The applicant shall be responsible to make final decisions regarding education and the respondent shall be responsible for medical and dental appointments and decision-making. Each parent will consult with the other prior to making the final decision within their respective parenting realms;
(b) Ethan should reside with the applicant on Monday and Tuesday and with respondent on Wednesday and Thursday and the parents shall alternate care of Ethan on weekends, from after school on Friday to return to school on Monday morning;
(c) the parents should retain a parenting coordinator to assist them in their communication with one another and in implementing and monitoring one another’s compliance with the court order;
(d) the parents should work with an individual therapist to assist them to move beyond the events of the separation towards developing more balanced views of one another. The therapist will also work with Ethan towards assisting him to maintain balanced views of each of his parents and to address emerging issues; and
(e) the parents should accept the detailed parenting plan set forth in Ms. Geraldo’s report.
[280] The detailed parenting plan in the report included a set of guidelines and principles, including the following:
(a) in relation to any dispute, conflict or concern, the needs of the child shall be paramount;
(b) each parent shall recognize Ethan’s need for positive and ongoing relationships with both parents and his extended family;
(c) each parent shall refrain from any subtle or open denigration of the other parent and/or members of the extended family in any communication with the child or in his presence;
(d) the parents shall not speak with the child, directly or indirectly, about parental differences and disagreements;
(e) when the child asks questions, the parent shall reassure him that the parents are working on the problems taking into account his feelings and thoughts;
(f) parent shall refrain from any manner of conflict in the presence of the child and shall relate to one another in a reasonable and cordial manner in all instances in which the child is present or nearby;
(g) the parents shall not ask the child to relay information from parent to parent and the child shall not be used to deliver written communications between the parents;
(h) the parents shall respect each other’s privacy and shall refrain from engaging the child in a discussion or questioning about the other parent’s personal life or activities;
(i) the parents shall not interfere either directly or indirectly into the life, activities or routines of the other parent and neither parent shall schedule activities for the child requiring involvement by the other parent during periods in which the child is in the care of the other parent, without prior consultation and the consent of the other parent;
(j) the parents shall make all practical efforts to ensure the child’s attendance at structured activities or special occasions involving peers or extended family;
(k) “make-up time” is discouraged generally, except in special circumstances in order to ensure structure, continuity of routines and predictability of the child’s contact with both parents; and
(l) the parents shall refrain from utilizing physical forms of discipline with the child
[281] The parenting plan in the report recommended that all communication take place primarily in writing (i.e. by email, fax, or utilization of software programs designed for that purpose such as “Our Family Wizard”). All communication shall be respectful and businesslike. The parent shall make efforts to ensure consistency between the two homes in respect to basic routines such as bedtime, and they shall support each other’s routines with the child even if they do not rely upon the same approach. Concerns pertaining to Day to day care and child management issues may be raised with the other parent, with the assistance of a parenting coordinator. The parent shall not communicate about parenting issues or other non-emergency issues during transition times, activities or at special events.
[282] Ms. Geraldo’s parenting plan provided that the pick-up and drop-offs shall be from school by the resident parent or a person of their choosing who is familiar with the children. During the summer months, transitions may take place in the community.
[283] The parenting plan in the report set forth a detailed routine with respect to holidays including Ethan’s birthday celebrations with family and with peers, Mother’s Day/Father’s Day, Thanksgiving and Easter long weekends, Christmas Eve, day and Christmas school break, the celebration of Eid with the applicant and her extended family, Family Day, March school break, additional long weekends, summer school break and vacation, Halloween and professional activity days.
[284] The parenting plan provided for each parent to have the right of first refusal to care for Ethan if the other parent is unable to care for him during the usual or holiday schedule time for two or more overnights, prior to the resident parent calling for a third party to provide child-care assistance.
[285] The parenting plan provided a protocol for changes to the schedule for special occasions, for Ethan to attend a friend’s birthday party, and delays for drop-offs and pick-ups caused by traffic or inclement weather.
[286] The parenting plan proposed by Ms. Geraldo recommended that the parents continue to use the services of the current family physician; and that neither parent shall take the child to any healthcare professionals except those agreed-upon and if the parents are unable to agree, the respondent shall make the final decision after seeking the applicant’s input. It also provided that the parents shall keep one another informed of the outcome of any medical appointment and the respondent shall be responsible for making the child’s routine medical and dental appointments and for taking the child to those appointments. If the respondent is unable to attend an appointment, he shall give the applicant the first option to take the child. With respect to major medical decisions, the parenting plan provided that each parent shall notify the other as soon as feasible of an emergency child visit to a physician, specialist or hospital and that both parents may attend. Both parents shall make emergency decisions in consultation with expert third parties. The parents shall arrive at major medical decisions mutually in accordance with consensus professional opinion. In the event that there is no consensus, the respondent shall make the final decision.
[287] On the issue of religious instruction and observance, the parenting plan provided that it is the resident parent’s option of whether or not to take the child to religious services and which services they will attend. Neither parent will make major decisions related to formal ceremonies without discussing this with the other parent and resolving any disputes through the parenting coordinator.
[288] On the issue of educational decision-making, the parenting plan proposed by Ms. Geraldo provided that any changes in schools shall be determined by the applicant following email consultation with the respondent and that the parents shall attend routine parent-teacher meetings separately. Additional individual meetings with the school or teacher may be arranged by either parent and the parent shall advise each other if the school calls regarding a significant child -related matter. Both parents and their families may attend school functions and the parents shall remain cordial during these occasions and not discussed child-related arrangements and issues. The plan provided for the parents to notify each other of any potential major educational decisions and provide each other with the names and numbers of the attending educational professionals. In consultation with the professionals, the parents together will reach a consensus of major decisions, but if the parents are unable to reach a mutually agreeable decision, the applicant shall make the final decision.
[289] Regarding extra-curricular activities, the parenting plan provided that mutual consent of both parents is required for enrolment in any future activities that overlap both parents’ time with the child, with such consent not to be unreasonably withheld. Both parents and their families may attend the special events associated with lessons and activities and both parents and their families may also attend the child’s sports practices and games.
[290] The parenting plan provided that the child may telephone or email the non-resident parent and both parents shall provide the child with privacy during telephone access.
[291] With respect to travel the parenting plan provided that the child may travel with his parent outside of Canada according to the usual one and holiday schedules, with written notice to the other parent as soon as knowledge of travel is available and at least 30 days in advance and a full itinerary shall be supplied. The written notarized consent and the necessary documentation required for travel shall be provided to the other parent no less than seven days prior to departure.
[292] Additional recommendations in the parenting plan provided that both parents will retain a parenting coordinator and that each of the parties shall attend therapy with regard to how to improve their co-parenting relationship with the other and that the family will work with a therapist who specializes in working with families in conflict to assist the child to develop a balanced view and relationship with both parents.
[293] In formulating her concluding recommendations, Ms. Geraldo made a number of observations, including the following:
(a) Ethan is acutely aware of his parents’ feelings towards one another and appears to present differently in each home in reaction to how he perceives his parent’s needs and he is also aware of, and exposed to, tension between his parents during transfers of access in the community;
(b) it would be natural for Ethan to seek to reduce his perceived worry about his mother by seeking to remain with her, aligning with her and drawing closer to her emotionally and to resist the transition into his father’s care. This dynamic could prevent Ethan from enjoying a balanced relationship with both parents in the future;
(c) one of the most significant concerns is the lack of trust between the parties. The parents are not able to communicate cooperatively together despite their individual personal and professional attributes and notwithstanding that they are each motivated to meet Ethan’s needs and to love and attend to his needs and development;
(d) the level of conflict between the parents appears to be impacting Ethan. He is distressed when he must contend with transitions and has difficulty separating from his mother at school, prior to transfers of access and after transfers of access back into his mother’s care;
(e) Ethan appears to absorb his mother’s anxiety and sadness at transition points. Both parents must work with a neutral professional such as a parenting coordinator and therapist to better manage transitions so that Ethan is not triggered and absorbing/responding to parents’ emotional needs, specifically his mother’s needs;
(f) both parents should work with a parenting coordinator who can assist them to boundary their relationship sufficiently to communicate about Ethan and to make decisions on his behalf. The parents are not able to co-parent effectively without support and it would certainly be described as a high conflict family;
(g) assigning final decision-making to one parent would further entrench the conflict and would possibly undermine each parent’s ability to have maximum involvement with respect to decision-making. Another approach that is available is that of a parallel parenting model;
(h) given the level of acrimony, providing one parent with final decision-making in all areas may reinforce the view that one parent is less competent to care for the child and the child may then come to see the non-decision-making parent as less legitimate;
(i) given that the applicant’s residential situation appeared more permanent at the time of the assessment, it is recommended that Ethan attend a school in the mother’s residential area. Registering Ethan in a Catholic school would place him in a difficult situation and it was therefore recommended that Ethan attend J.W. Gerth Public School and that the applicant be responsible for making final decisions in the educational realm after consulting with the respondent and seeking his input with respect to major educational decisions.
(j) the respondent has demonstrated he is able to appropriately attend to Ethan’s medical needs and he should therefore assume this role with him and should be responsible for scheduling regular medical appointments and dental appointments for Ethan;
(k) in terms of the parenting schedule, it is important that both parents have an opportunity to participate in important routines with Ethan during the school week and on weekends and it is important that the parenting schedule also minimize transitions for Ethan, especially during the school week. Given the conflict between the parents, it is important that the transitions take place in a neutral place, such as the school;
(l) the parenting schedule should provide each parent with significant time with Ethan, allow them to participate in extra-curricular activities, minimize the gaps in contact and provide consistency during the school week;
(m) it is important that Ethan participate in play therapy in order to have a neutral for him within which to express and deal with confusing and conflicting emotions;
(n) both parents present as capable individuals and competent and loving parents, however, neither is able to see these qualities in the other. Ethan has been exposed to tension and hostile non-verbal communication and given the level of conflict between the parents, it is important that each parent be able to carry out their respective parenting responsibilities without the need to obtain the other parent’s agreement on a significant parenting matter.
[294] It is noted that Ms. Geraldo’s assessment was carried out between April 3 and December 15, 2013. Ethan was 4 ½ years old when the assessment was concluded. He is now 7. The applicant brought a motion on April 15, 2015 for an order that the assessment report to be updated. At the time that the motion was brought, the trial of the matter had been scheduled to commence on June 8, 2015. Justice Skarica dismissed the applicant’s motion on the basis that leave to bring it had not been sought as required by rule 48.04 of the Rules of Civil Procedure and that it was not in Ethan’s best interest to relax the rule but rather it was in his best interest to have the trial take place as soon as possible so that he can continue on with his life with a firm and predictable custody and support arrangement.
Analysis
Principles Respecting Best Interests
[295] As indicated above, Parliament, by subsection 16(8) of the Divorce Act, has mandated that the sole consideration in assessing custody and access issues is the best interests of the child. The needs and desires of the parents are not considerations in the court’s determination. A perceived objective to be “balanced,” “fair,” or “even-handed” from the point of view of the parents, and their needs and desires, is not a consideration.
[296] Chief Justice McLachlin in the case of Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27 offered the following observations at para. 20 respecting how the best interests of the child test may be characterized:
The best interests of the child test has been characterized as "indeterminate" and "more useful as legal aspiration than as legal analysis": per Abella J.A. in MacGyver v. Richards (1995), 1995 CanLII 8886 (ON CA), 11 R.F.L. (4th) 432 (Ont. C.A.), at p. 443. Nevertheless, it stands as an eloquent expression of Parliament's view that the ultimate and only issue when it comes to custody and access is the welfare of the child whose future is at stake. The multitude of factors that may impinge on the child's best interest make a measure of indeterminacy inevitable. A more precise test would risk sacrificing the child's best interests to expediency and certainty. Moreover, Parliament has offered assistance by providing two specific directions -- one relating to the conduct of the parents, the other to the ideal of maximizing beneficial contact between the child and both parents.
[297] With respect to the first specific direction provided by Parliament, Chief Justice McLachlin stated as follows at para. 21:
In s. 16(9), Parliament has stipulated that the judge "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". This instruction is effectively incorporated into a variation proceeding by virtue of s. 17(6). Parental conduct, however meritorious or however reprehensible, does not enter the analysis unless it relates to the ability of the parent to meet the needs of the child.
[298] With respect to the second specific direction, Chief Justice McLachlin stated as follows at para. 24:
The second factor which Parliament specifically chose to mention in assessing the best interests of the child is maximum contact between the child and both parents. Both ss. 16(10) and 17(9) of the Act require that "the court shall give effect to the principle that a child of the marriage should have as much contact with each former spouse as is consistent with the best interests of the child". The sections go on to say that for this purpose, the court "shall take into consideration the willingness of [the applicant] to facilitate" the child's contact with the non-custodial parent. The "maximum contact" principle, as it has been called, is mandatory, but not absolute. The Act only obliges the judge to respect it to the extent that such contact is consistent with the child's best interests; if other factors show that it would not be in the child's best interests, the court can and should restrict contact: Young v. Young, 1993 CanLII 34 (SCC), [1993] 4 S.C.R. 3, at pp. 117-18, per McLachlin J.
[299] From the foregoing it can be observed that:
a) the test for what constitutes “best interests of the child” is indeterminate and adaptable, and will depend on the unique circumstances, needs, and attributes of the particular child under consideration;
b) the conduct of the parents, whether it be praiseworthy or unacceptable, is irrelevant, unless it relates to their respective abilities to meet the needs of the child;
c) the principle that the child should have “maximum contact” with each parent is an ideal but must give way to the child’s best interests where they conflict with the maximum contact principle; and
d) the court is required to take into consideration the willingness of each parent seeking custody to facilitate contact between the child and the other parent. Such contact is to be assessed not only quantitatively, but more importantly, qualitatively. In a case where joint custody or “parallel-parenting” are not under consideration, an important, and often determinative, factor for resolving custody disputes is to assess which parent is best equipped, by character and inclination, to facilitate the development and maintenance of a healthy and loving relationship between the child and the other parent.
[300] What are the most important factors to be considered in determining what are in Ethan’s best interests in developing a parenting plan in his unique circumstances? In my view, there are two factors, based on the whole of the evidence, which stand out as most important. The first is that Ethan needs to feel secure in the love and support of both of his parents and needs to be absolutely confident that the love and support of each parent will be validated, and not undermined or discounted, by the other parent. He needs to understand that he does not have to figure out where his allegiance should lie. The second important factor is that Ethan needs to feel rooted. He must feel and understand that he belongs somewhere - that there is some place he can call home and feel secure, nurtured and encouraged.
[301] Neither party seeks a joint custody order. Although at the commencement of trial the applicant advanced a claim for a “parallel-parenting” custodial regime as an alternative claim for relief, that alternative claim was not pursued in final submissions. Although the respondent initially sought an order for joint custody, his claim was amended at the commencement of trial to sole custody. Each parent now seeks an order of sole custody in her/his favour.
[302] As observed by Justice Pazaratz in the recent case of Jackson v. Mayerle 2016 ONSC 72 at para. 619, the court is not bound by the mutual request of the parties that one of them should be awarded sole custody. Moreover, he confirmed that the court is not required to make a custody designation at all, citing the Court of Appeal decision in M. v. F., 2015 ONCA 277.
[303] Justice Pazaratz in Jackson at para. 621 also confirmed that, although a custody designation will typically entail a combination of both “decision-making authority” and “primary residence,” they are separate concepts and in many cases the child’s best interests are best served by treating them as separate issues.
[304] Although I am not bound by the parties’ common request that I make a sole custody determination, I agree that such an order is in Ethan’s best interests. The demonstrated inability of the parties to communicate on issues affecting Ethan’s care and well-being is detrimental to his best interests and rules out any consideration of joint custody.
[305] Although parallel-parenting has been developed as an option for consideration where the parties cannot communicate but it is nevertheless feasible to disengage the parents and allow them to operate in independent spheres of decision-making, it is not a viable option in this case, notwithstanding that it formed the basis of Ms. Geraldo’s recommendation in her s. 30 assessment report. The conflict between the parties is so entrenched, and their inability to communicate is so intractable, that any attempt to impose a parallel-parenting regime will run a real and substantial risk of prolonging and escalating the conflict and destabilizing Ethan’s best interests.
[306] One of the fundamental components of Ms. Geraldo’s recommendation in favour parallel-parenting is that the parties engage the services of a parenting coordinator to assist them in resolving conflicts in decision-making. Approximately one and a half years after the disclosure meeting with Ms. Geraldo’s and the subsequent release of her report the parties did engage the services of a parenting coordinator, without any apparent lasting benefit. The court has no power to order that the parties engage a parenting coordinator absent their consent. For these reasons I find that a parallel-parenting regime is not feasible in this case and is not in Ethan’s best interests.
[307] It is indeed unfortunate that the parties are incapable of making decisions respecting Ethan’s care and well-being cooperatively. In this situation, Ethan’s best interests clearly call for an assignment of sole decision-making responsibility and authority to one parent. The court’s decision in this respect is a weighty and a difficult one. Decisions of this nature are among the most difficult the court is called upon to make. No doubt the party to whom custody is not awarded will be greatly disappointed by the decision that must be made in this case. It is emphasized that the decision is based only on a consideration of Ethan’s best interests, and is in no way a reflection of the relative degrees of love and devotion that each parent has for him nor on their individual worth and abilities as a parent.
Out-of-Court Statements Attributed to Ethan
[308] There is an important evidentiary issue, not addressed by counsel during the trial or in final submissions, which it is incumbent upon the court to address. There was evidence led, primarily through the testimony and the clinical notes and records of Dr. Bal respecting reports made by Ethan of corporal and other forms of punishment that he experienced in the home of the respondent. Many of the statements attributed to Ethan respecting hitting focused on his paternal grandmother Naomi Coutts, although some of them related to the respondent himself, to some degree to his sister Laura and later to Manny. Evidence was also led with respect to reports by Ethan of threatened punishment which could be characterized as attempts to alienate him from the applicant. There was also evidence of Ethan being exposed to profanity in the respondent’s home, sometimes from the respondent but more often from his wife Manny. There was also evidence led, through the testimony of Manny Coutts, of statements ascribed to Ethan respecting things that the applicant had said to him.
[309] No objection was taken by either counsel when evidence of statements made by Ethan was introduced, and no request was made by counsel that a voir dire should be conducted to determine the admissibility of these statements.
[310] In the case of Children's Aid Society of Ottawa-Carleton v. L. (L.) (2001), 2001 CanLII 28153 (ON SC), 22 R.F.L. (5th) 24 (Ont. S.C.J.), Blishen, J. stated the following at paragraphs 16 to 23 respecting the proper treatment of out-of-court statements of children:
• in dealing with the criterion of reliability, a voir dire must be held as to the factual foundation and the circumstances that could establish the statements' reliability. The court must have evidence as to the "circumstantial guarantees of trustworthiness" in order to determine reliability.
• on the authority of R. v. Khan, 1990 CanLII 77 (SCC), [1990] 2 S.C.R. 531 (S.C.C.) many considerations may be relevant to reliability, including such considerations as: timing, demeanour, the personality of the child, the intelligence and understanding of the child, the absence of any reason to expect fabrication, corroboration, and the child's having knowledge of matters that he or she would not otherwise have.
• although there are numerous potential considerations for the trial judge in assessing reliability, the test at the voir dire is only a threshold test. The trial judge is not to make a determination as to the ultimate reliability and weight to be given to the statement on the voir dire. That is a matter for the trier of fact (see R. v. K.G.B. (1990), 1990 CanLII 7308 (SCC), 56 C.C.C. (3d) 200).
• the requirement of reliability will be satisfied where the hearsay statement is made in circumstances which provide sufficient guarantees of its trustworthiness (see R. v. Hawkins, 1996 CanLII 154 (SCC), [1996] 3 S.C.R. 1043).
• in R. v. Khan, supra, the three-and-one-half-year-old girl's allegation of sexual abuse was found to meet the threshold of reliability as the child had no motive to fabricate or falsify her story which emerged naturally and without prompting; she could not otherwise be expected to have knowledge of such acts; and her statement was corroborated by real evidence, a mixture of semen and saliva on her sleeve; and
• on the threshold test of reliability, it is not necessary that the judge be satisfied on each and every potential indicator of reliability. Weaknesses in some areas may be compensated for by strengths in others.
[311] In the case of Brown v. Pulley 2015 ONCJ 186 Sherr, J. stated, at para. 99:
The court must employ a functional approach by first identifying the particular dangers posed by the proffered hearsay and then considering whether those dangers may be adequately overcome so that the hearsay may be considered sufficiently reliable to be admitted for consideration by the trier of fact. At paragraphs 61-63 of R. v. Khelawon, supra, Charron J. observes that the reliability requirement will generally be met in one of two ways:
(1) that there is no real concern about whether the statement is true or not because of the circumstance in which it came about; or
(2) that no real concern arises from the fact that the statement is presented in a hearsay form because, in the circumstances, its truth and accuracy can nonetheless be sufficiently tested by means other than contemporaneous cross-examination.
[312] Justice Sherr concluded in Brown v. Pulley, at paras. 109-110 as follows:
It would be dangerous, not only for this case, but for other cases involving child statements, to lower the threshold reliability standard to the degree that child statements made in such flawed circumstances would be admissible. It would make the threshold reliability test virtually meaningless. There would be a real risk that cases could be incorrectly decided on highly unreliable evidence.
This court has to make a critical decision for these children. It is important that it base this decision on reliable evidence. [The witness’] evidence about the children's statements is found to be inadmissible.
[313] In the present case since no objection was taken to the admission of statements attributed to Ethan by the applicant and to Dr. Bal respecting the use of corporal and other forms of punishment towards him and things said to him in the respondent’s household as well as statements attributed to him about things said to him by the applicant, the question is not so much that of threshold reliability, but rather what ultimate reliability should be attributed to those statements. I adopt the observation of Justice Sherr in Brown v. Pulley that the importance of the decision in this case is such that it must be based on reliable evidence. I find that, although the test of necessity is met, given Ethan’s young age and the undesirability of exposing him to the stress of participating in the trial process, sufficient guarantees of trustworthiness do not exist in respect of his statements to satisfy the test of reliability. I therefore ascribe no weight to the statements attributed to Ethan proffered for the truth of their contents. However, statements made by Ethan offered into evidence, not for the truth of their content, but rather as proof that he made them, are admissible. These include Ethan’s use of profanity at one point, indicating that he may have been exposed to profanity in the respondent’s household. Similarly, evidence of certain of Ethan’s behaviours indicating that he may have been exposed to hitting and violence in the respondent’s household is also admissible, as well as observations of his behaviour by the respondent and Manny.
[314] Similarly, I would ascribe no weight to the double hearsay statement in Ms. Geraldo’s report that a teacher at the Sunshine Montessori School reported that Ethan had related that “when mommy and daddy met, daddy hit mommy”.
Application of Criteria in [s. 24](https://www.canlii.org/en/on/laws/stat/rso-1990-c-c12/latest/rso-1990-c-c12.html) of the [CLRA](https://www.canlii.org/en/on/laws/stat/rso-1990-c-c12/latest/rso-1990-c-c12.html)
[315] As indicated above, courts have considered the criteria set out in section 24 of the CLRA in applying the best interests test to the determination of custody and access issues.
[316] Subsection 24(2) of the CLRA calls for the court consider all the child’s needs and circumstances including the matters listed at paragraphs (a) to (h). I propose to deal with each of these paragraphs as follows:
Paragraph 24(2)(a)
[317] Paragraph (a) refers to the love, affection and emotional ties between the child and each person entitled to or claiming custody of or access to the child, other members of the child’s family who reside with the child, and persons involved in the child’s care and upbringing.
[318] There is no question on the evidence that the love, affection and emotional ties between Ethan and each of the applicant and the respondent are strong and deep and are equally so. Although the respondent, Manny and Naomi Coutts testified with respect to the affection that has developed between Ethan and Manny and her children, I am not satisfied that there has been sufficient time or opportunity for love, affection and emotional ties to develop between Ethan and Manny and between Ethan and Manny’s children to such an extent as to make them relevant for consideration under this factor. Ethan has been introduced, through the respondent’s decision to re-partner with Manny, into a new family situation with new and challenging dynamics. This is not meant as a criticism of the respondent’s decision to re-partner. However, the court’s sole focus must be on Ethan and his best interests, and there is no doubt that the respondent’s decision to re-partner with Manny has had consequences for Ethan.
[319] It can be observed that children are generally resilient and it is evident that Ethan has had to learn to adapt and cope with the new reality in the respondent’s home. Manny presents as a capable caregiver, but there are lingering concerns related to Ethan’s adoption of the use of profanity at a very young age from apparent exposure in the respondent’s home and his exhibiting of hitting behaviour when he perceives that he is not being listened to by the applicant and his maternal grandmother after returning from the respondent’s home. There is also evidence of a level of coercion in the attempt to establish a bond between Ethan and Manny, as exemplified by the discomfort expressed by Ethan to Dr. Bal regarding his perception of being forced to call Manny “Mom”. This evidence is admissible for the fact that Ethan shared this discomfort with Dr. Bal, not for the truth of the statement that Manny and/or the respondent said this to him.
[320] Moreover, I am satisfied that the relationship between Ethan and his maternal grandmother Bibi Ruffudeen, who remains involved with his care and upbringing, is one of deep love, affection and emotional connection. On the evidence, Ethan’s relationship with his paternal grandparents, although no doubt important to him, is less profound due to the distance and relative infrequency of contact. Although Naomi Coutts was involved in Ethan’s care and upbringing in the period following the parties’ separation, upon the forming of the relationship between the respondent and Manny, resulting in Manny assuming the care-giving role, Naomi Coutts has withdrawn from the role she previously played.
Paragraph 24(2)(b)
[321] Paragraph (b) has to do with the child’s views and preferences, if they can reasonably be ascertained. I am not satisfied that Ethan’s views and preferences respecting the arrangements for his parenting can be reasonably ascertained. The s. 30 assessment is dated, having been completed over two years ago, prior to the respondent and Manny establishing their household, and Ethan was not represented by counsel at trial. Ethan’s young age would make any expression of his views and preferences unreliable and of little value to the determination of his best interests.
Paragraph 24(2)(c)
[322] Paragraph (c) makes reference to the length of time the child has lived in a stable home environment. Ethan has lived with the effects of the separation of his parents for virtually all of his young life. Except for brief periods following the orders of Justice Lococo from December 2010 to May 2011, and of Justice Leitch from December 2012 until March 2013, he has been subject to being transferred back and forth between his parents on a “week-about” arrangement. One of the only things that his parents have been able to agree upon is that this has resulted in Ethan living essentially two separate lives in two separate homes.
Paragraph 24(2)(d)
[323] Paragraph (d) makes reference to the ability and willingness of each party to provide the child with guidance and education, the necessaries of life and any special needs of the child.
[324] There is no question on the evidence that the applicant and the respondent are each loving and capable parents. They are both willing to provide for Ethan’s needs. Viewed individually, there would be no cause for concern with respect to the ability of either of them to care for and parent Ethan responsibly and capably. However, the court is called upon to make an assessment of what would be in Ethan’s best interests now and in the future until he reaches adulthood and is no longer dependent on his parents. The court must look forward in attempt to envision what Ethan’s life will be like, based upon a parenting plan to be determined. In doing so the court is met with the reality of being able to look only to what has happened in the past in order to provide a glimpse into Ethan’s future.
[325] Each of the parties have the ability and willingness to provide Ethan with the necessaries of life and the evidence did not disclose that he has any special needs, of a clinical nature, other than anxieties that he has exhibited in the past and for which he has been assessed by physicians, resulting from the effects of his parents’ separation.
[326] I am of the view, based upon the evidence, that the applicant is in a better position to provide Ethan with multidimensional guidance and education that will serve him well in the future. By multidimensional I mean emotional, academic, social and religious guidance and education.
[327] By reason of the applicant’s ability to structure her work commitments so as to give priority to Ethan’s needs, the applicant is in a position to devote the necessary time to offer guidance and education to Ethan in all of these areas. The applicant, in her evidence, demonstrated a real commitment to helping Ethan grow and develop in a well-rounded and balanced way – not only offering him exposure to sports activities and opportunities for social engagement, but also devoting time with him for more quiet activities such as reading, writing, doing math games, and helping him to develop interests in science and nature. The applicant expressed a sensitively to the need to avoid over-involving Ethan in extra-curricular activities.
[328] The reality is that the respondent does not enjoy the same flexibility in his work responsibilities. He has largely delegated significant aspects of his parenting role with Ethan to other significant persons in his life – first to his mother and more recently to Manny. Manny has taken Ethan, at the respondent’s request, to medical appointments. Manny has attended, also at the respondent’s request, to enroll Ethan in a new school, without consulting with or informing the applicant.
[329] I find that the respondent’s delegation of aspects of his parenting role is not only a result of the respondent’s work commitments but also fits with the respondent’s own inclinations. He views his parenting role as largely involving accompanying Ethan to activities such as sports and to similar activities of Manny’s children. There was much evidence about family life in the respondent’s home and Ethan and Manny’s children interacting and playing independently together, such as ball hockey in the basement, which is of course to be encouraged. There was also much evidence about Ethan’s involvements in sports activities, the respondent’s desire to sign Ethan up for more activities and the difficulties he has experienced in securing the agreement and cooperation of the applicant to this. However little evidence was heard of the respondent spending one-on-one time with Ethan, reading with him or guiding him in non-sport pursuits such literature, math and science.
Paragraph 24(2)(e)
[330] Paragraph (e) addresses the plan proposed by each party for the child’s care and upbringing. I will discuss the parties’ respective plans for timesharing below. With respect to their plans for decision-making, each of the parties propose that sole custody be awarded in their own favour. In his testimony, the respondent proposed that Ethan be enrolled at a local Roman Catholic separate school commencing in September, 2016. The applicant proposes that Ethan be enrolled in a local public school. The respondent proposes to find an alternate primary care physician who will accept Ethan as a patient and to discontinue having him treated by Dr. Bal, as he is of the view that Dr. Bal is aligned with the applicant. He proposes that he have the right to select other health care providers and provide consent for treatment, and to keep the applicant informed of the names and contact information of those providing medical services and treatment to Ethan. The applicant proposes that Ethan remain in the care of Dr. Bal as his primary care physician.
[331] Neither party, in their respective summaries of requested relief, proposed explicit measures for consultation with the other on educational and medical decision-making. Neither party proposed specific provisions respecting decision-making on religious instruction, observance and ceremonies, aside from making provision for timesharing for religious holidays such as Eid, Christmas, Good Friday and Easter.
[332] In my view, the respondent’s proposal to enroll Ethan in a Roman Catholic separate school is not in his best interest. The fact is that the parties come from different religious backgrounds and to date Ethan has been exposed to and instructed in both Roman Catholicism and Islam. To enroll Ethan in a Roman Catholic school would run the risk of marginalizing Ethan’s Muslim heritage which he has received from the applicant and her family. No evidence was led that Ethan would benefit in an identifiable way from a Catholic-based education. It simply represents the respondent’s own preference. Enrolling Ethan in a public school would provide a neutral school environment in terms of religious instruction, which, in the circumstances, would be appropriate for Ethan.
[333] I am not satisfied that it is necessary nor desirable to make a change from Dr. Bal as Ethan’s primary care provider. No issue was taken by the respondent to the quality of medical care which Dr. Bal has provided to Ethan to date. The only issue is the respondent’s perception that Dr. Bal is aligned with the applicant against him. I found nothing in Dr. Bal’s testimony, nor in her approach to Ethan’s care, to support this. I am satisfied that she has discharged her professional responsibilities responsibly and has not shown any animus or antipathy towards the respondent. There is no evidence that Dr. Bal has treated the respondent or his wife Manny in an unprofessional or disrespectful fashion. I am satisfied that, on the occasions when she made reports to Family and Children’s Services, she reasonably felt obliged to do so in accordance with her statutory obligations based on the information that she had received. The respondent’s plan to seek to replace Dr. Bal with a new primary care provider is not based on what is in Ethan’s best interests from a medical point of view, but rather on the respondent’s own needs and desires.
Paragraph 24(2)(f)
[334] Paragraph (f) focusses on the permanence and stability of the family unit in which it is proposed that the child will live.
[335] In spite of the turmoil associated with Ethan being transferred back and forth between his two separate lives in the two separate homes, I find that the applicant has nevertheless been able to establish a stable, safe and nurturing environment for Ethan during the time that he is in her care. The respondent has also made a concerted effort, within his circumstances, to try to provide a stable home environment for Ethan. The respondent’s new blended family lives in a comfortable home where Ethan has the use of his own bedroom with access to ample play areas. However, the reality is that Ethan has not only been impacted by the breakdown in his own family, but is now exposed to the effects of the breakdown in the family of Manny and her children. Manny remains engaged in litigation with the father of her children over support issues and there was, during the period from January to August 2015, evidence of unresolved issues between them respecting the parenting of her children as disclosed in her affidavit filed in that litigation. These lingering issues have at least the potential for impacting family life, including that of Ethan, within the respondent’s home. As Manny’s children move into their teenage years it would not be unexpected for parenting issues between Manny and her children’s father to again come to the fore and even become more pronounced.
Paragraph 24(2)(g)
[336] Paragraph (g) relates to the ability of each party to act as a parent to the child. As indicated above, each of the parties is capable of acting as a parent to Ethan.
Paragraph 24(2)(h)
[337] Paragraph (h) has no application as it refers to the relationship by blood or through an adoption order between the child and each party. Each of the parties is a biological parent of Ethan.
The Parties’ Behaviour
[338] On the evidence it is clear that both parties have contributed to the lack of effective communication regarding Ethan’s well-being including, sadly on occasion, his healthcare, a mistrust of one another’s motives, and a lack of flexibility and cooperation in adjusting the schedule to accommodate special occasions in each other’s families, travel plans and to facilitate Ethan’s enrolment in extra-curricular activities. Both parties have been guilty of jealously guarding “their time” with Ethan, even when it would have been better for Ethan to have demonstrated flexibility. Both parties have acted unreasonably on many occasions and they have become embroiled in a cycle of overreacting to perceived wrongs and dwelling on past wrongs rather than engaging in constructive problem-solving by putting Ethan’s needs above their own need to be “right”.
[339] It is not helpful, in this case, to engage in a detailed assessment of which party behaved more badly towards the other, when and how often. As indicated above, both subsection 16(9) of the Divorce Act and subsection 24(3) of the CLRA direct the court to refrain from taking into consideration the past conduct of a party unless it is relevant to the ability of that person to act as a parent of a child. As observed by Justice Pazaratz in Jackson v. Mayerle at para. 611, “Custody trials are not about attributing blame or commendation. Not about punishment or reward.” Despite the submissions of the parties I am not prepared to make a determination on a parenting plan for Ethan on the basis of a determination of the relative blameworthiness of the parties in relation to their behavior towards each other. The sole focus must remain on Ethan’s best interests.
Observations re Ethan’s Best Interests
[340] As indicated above, a fundamental aspect of Ethan’s best interests and his need to be confident that the love and support he experiences and enjoys from each parent will be validated, and not undermined or discounted, by the other parent. As the respondent has become more focused on his new blended family with Manny and has delegated important caregiving roles for Ethan to her, there has been a tendency for the applicant’s parenting role to be marginalized by the respondent and Manny, consciously or unconsciously. Recent examples of this include Manny enrolling Ethan in a new school without prior consultation with the applicant and the respondent leaving Ethan in the care of family members while away on his honeymoon with Manny, rather than offering the applicant the opportunity to care for him during that time. In my view, should the respondent be granted custody, there is a risk of this continuing and becoming more problematic, which would not be in Ethan’s best interests.
[341] It is not my intention to be at all pejorative respecting the respondent’s decision to re-partner with Manny. It is of course quite common and natural for separated or divorced parents to re-partner. The respondent’s re-partnering with Manny has been presumably beneficial to him, and it is arguable that Ethan’s social development and coping skills have been enriched by the experience of being exposed to and interacting with Manny’s children. However, what is in Ethan’s best interests must be assessed within the reality of his life as it now exists, including his recent insertion into a new and more complicated family situation, and on how it might reasonably be expected to unfold into the future. Moreover, the social and other benefits to Ethan of interacting with Manny’s children in the respondent’s household will continue regardless of the court’s determination respecting decision-making authority, as each parent will, regardless of that determination, retain significant parenting time with Ethan.
Conclusions re Determination of Custody (Final Decision-making)
[342] I have concluded that Ethan’s best interests will be best served by granting custody, that is responsibility and authority for final decision-making for Ethan, to the applicant. Although this was not always evident for a considerable period following separation for either party, I am satisfied that the applicant currently has the capability and motivation to promote the maintenance of a healthy relationship between Ethan and the respondent. She recognizes the importance of Ethan spending quality time with his father and maintaining a close relationship with him.
[343] The parties’ respective religious faiths and upbringing are important to each of them, the applicant being Muslim and the respondent being Roman Catholic. I find that the applicant is more inclined to be understanding of, and supportive of, Ethan’s exposure to and participation in the respondent’s religious experience than the respondent is of his participation in the applicant’s religious adherence. The respondent, in his testimony, emphasized the parties’ early decision to bring Ethan up in the Roman Catholic faith (which was not acknowledged by the applicant) and sought to downplay the depth of the applicant’s Muslim adherence.
[344] Furthermore, as indicated above, I have concluded that the applicant is, on balance, in a better position to provide Ethan with a stable and secure home environment and also to provide him with well-rounded guidance and education. She has been able to organize her life in a way that permits her to put Ethan’s needs first and to devote time to him. In contrast, the reality is that the respondent lacks the same flexibility in his work schedule and has, to a large extent, delegated his primary care role for Ethan to others, first to his mother in the period following separation and then to his wife Manny when they commenced living together and later married. The respondent has largely adopted the role of engaging with Ethan in activities such as sports and extra-curricular activities, and to a significant degree has delegated the everyday tasks associated with of Ethan’s care to Manny. If final decision-making were assigned to the respondent, the reality is that it would likely be Manny who would be attending with Ethan on many, if not most, of his medical and other health-care appointments. Involvement in most day-time school activities, such as attendance on field trips, meetings with teachers, and volunteering would likely be taken on by Manny. Regardless of Manny’s capabilities as a care-giver, it is more appropriate that these roles be assumed by a parent, unless there is no reasonable alternative that would be consistent with Ethan’s best interests.
[345] Although I have determined that final decision making for Ethan should rest with the applicant, it is important that measures be implemented in the final judgment for the respondent to participate meaningfully in decisions regarding Ethan’s life by being afforded the opportunity to make inquiries and to provide feedback and suggestions. The respondent has and will continue to have valuable insights into Ethan’s life and well-being and his feedback and suggestions may ultimately contribute to more optimal decision-making for Ethan. Providing for the respondent to be consulted may also contribute to the development over time of a more cooperative and civil relationship between the parties concerning the care and well-being of Ethan, which will be for his ultimate benefit.
Timesharing
[346] As indicated above, although a custody designation will typically entail a combination of both “decision-making authority” and “primary residence,” they are separate concepts.
[347] The parties have each provided a proposal with respect to timesharing, based upon primary residence for Ethan being granted to her or him.
[348] The applicant proposed that Ethan be in her primary care with secondary residence with the respondent on alternate weekends from Friday at 5:30 PM to Monday return to school and each Wednesday from 5:30 PM to Thursday return to school.
[349] For his part, the respondent proposed that Ethan have his primary residence with him each week from Monday to Thursday and on alternate weekends from Friday to Monday and his secondary residence with the applicant on alternate weekends from Thursday to Monday and on each Thursday overnight return to school on Friday. If either the Friday or the Monday is a holiday, the respondent proposed that Ethan shall remain in the secondary residence until a return to school the following day.
[350] I have determined that primary residence should be with the applicant as the custodial parent. It is in Ethan’s best interests that he have a home base and that it be with the applicant. The parties are agreed that the week-about arrangement has not been beneficial to Ethan and should be discontinued. Moreover, to strive for equality in timesharing would simply be to place the parents’ interests above Ethan’s.
[351] In my view, the arrangement for division of Ethan’s time between primary and secondary residences as proposed by the respondent has more to commend it by reducing transitions. In a 30 day month without any statutory holidays, and setting aside special events such as Mother’s Day or Father’s Day, taking the month of June, 2016 as an example, each proposal would provide for 19 nights at the primary residence and 11 at the secondary residence. However under the applicant’s proposal, providing for midweek access on Wednesdays, there would be 13 transitions, whereas under the respondent’s proposal providing for midweek access on Thursdays, there would be only 9 transitions. The longest period between stays at the secondary residence would be equivalent under both proposals at 6 nights.
Child Support Issues
[352] In my view there is no reason to depart from the principle that child support be paid by the respondent in accordance with the child support guidelines. Based upon his line 150 income for 2014 of $92,534, the respondent’s obligation for child support is $821 per month.
[353] The respondent’s child support obligation shall be adjusted each year, based upon his line 150 income as disclosed by his notice of assessment for the previous taxation year. The first notice of assessment shall be disclosed by the respondent by June 30, 2016 and by June 30 in each subsequent year.
[354] The applicant claims reimbursement of an alleged overpayment of child support for the 2013, 2014 and 2015 years (as well as presumably 2016 to date). The amount she claims for 2013, 2014 and 2015 is the sum of $4,534 in the aggregate, calculated on the difference between the offset table amounts she should have paid for those years and the amount that she paid. Section 9 of the Child Support Guidelines provides that where a spouse exercises a right of access to, or has physical custody of, a child for not less than 40 per cent of the time over the course of a years, the amount of the child support order must be determined by (a) taking into account the table amounts for each of the spouses, (b) the increased costs of shared custody arrangements and (c) the conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought.
[355] In the case of Contino v. Leonelli-Contino, 2005 SCC 63 (S.C.C.) it was held that the framework of s. 9 provides that when the 40 per cent threshold has been met determining the amount of support is done by taking into account the financial situations of both parents. A court will depart from the set-off amount or make adjustments to it if it is inappropriate in light of the factors considered under ss. 9(b) and 9(c). The court will generally be called upon to examine the budgets and actual expenditures of both parents in addressing the needs of the children and to determine whether shared custody has in effect resulted in increased costs globally.
[356] In the present case no evidence was led to permit the court to carry out the analysis suggested by Contino. Section 9 calls for the application of the principles of flexibility and fairness. Under all of the circumstances I am not prepared to order that the respondent reimburse the applicant for the claimed overpayment of set-off child support.
[357] Similarly, I would not give effect to the claim advanced by the respondent that the applicant reimburse him for an alleged overpayment of child support in 2011, nor that he be credited for 50% of the tuition fees deducted from his share of the net trust proceeds commencing with the order of Justice Reilly of August 30, 2013 and the order of Justice Sloan made September 3, 2015.
Extra-curricular activities
[358] A significant area of dispute between the parties concerned the enrolment of Ethan in sports and other activities. Notwithstanding this, neither party in their proposed outlines for the final order addressed this area specifically. The evidence has indicated that participation in sports and other activities is a very important component of the relationship and bond between Ethan and the respondent. The final order must be structured so that each parent has an equal opportunity to enroll Ethan in extra-curricular activities of their choice without overburdening Ethan, that each parent respect the choices made by the other parent and that each parent shall have the opportunity to attend all activities to share in the experiences with Ethan and to support him.
The Order
[359] To give effect to the foregoing, the following detailed order is made. It is noted that there are a number of provisions which go beyond the outlines provided by counsel for the parties,a number of which have been adapted from the decision of Justice Pazaratz in the case of Jackson v. Mayerle, which shared some of the attributes of this case in terms of the length of the trial and the high conflict nature of the dispute between the parties. These provisions are inserted in the interest of avoiding future disputes between the parties, the cost of further litigation and the associated burden on the court system. It is ordered as follows:
The applicant shall have sole custody of the child Ethan Michael Coutts born May 15, 2009 (the “child”).
Subject to the following, the applicant shall have sole and final decision making authority with respect to all issues in the child's life. The applicant shall notify the respondent of all decisions as soon as they are made.
Neither party shall interfere with religious observance of the other with the child. Neither party shall place the child in formal religious education without the consent of the other, which shall not be unreasonably withheld.
The applicant shall have the authority to select the child's school and educational program. She shall have the right to determine whether the child requires academic assistance and support and to determine the professional(s) who will provide this assistance and support. She shall have the right to sign consents relating to the child’s academic education.
The applicant shall have the authority to select any professionals or service providers to be involved in the child's life including his doctor, dentist, vision care professional, and any counsellors, tutors or other like service providers. She shall have sole authority to determine the need for such professional involvement. Except for emergency medical treatment, the respondent shall not be permitted to take the child, on his own in the absence of the applicant, or by his designate, to any other health care provider or counsellor, without the consent of the applicant.
If any counselling is arranged for the child, both parents shall be equally involved in the process, subject to any determination by the counsellor.
The applicant shall keep the respondent informed in writing as to the particulars of any professionals and educational institutions involved in the child's life.
The applicant shall notify the respondent in writing prior to any medical or professional appointment for the child (as soon as the appointment is booked) and provide full particulars immediately after the child has attended for the appointment.
Both parties shall be entitled to receive copies of all medical, dental, vision care, other health care, school and other reports related to the child. Both parties shall be entitled to communicate directly with the child's teachers, caregivers, physicians, dentists, and other health care providers concerning the general well-being of the child. Both parties shall be listed on all documents pertaining to the child and shall be entitled to attend any of the child's scheduled appointments. Both parties shall execute consents or authorizations to all persons, including teachers, doctors, dentists, vision care providers and others involved with the child to speak fully and openly with both parties.
The applicant shall consult with the respondent prior to implementing any non-emergency decisions in the child's life. The consultation shall occur as soon as the Applicant becomes aware of the issue and if possible at least 30 days prior to the date on which a decision has to be made. The respondent shall be entitled to make inquiries and provide feedback and suggestions. However, after consultation has occurred, the applicant shall have the final decision making authority.
Both parents shall be listed as contact persons with all medical, educational, recreational and social agencies involved with the child.
In the event of a serious illness, accident or other misfortune involving the child, the party then having the child in their care shall immediately and promptly notify the other party.
The applicant and the respondent shall each have authority to arrange emergency medical treatment for the child. If such an emergency situation arises, the party with care of the child shall make all reasonable efforts to contact the other party immediately, to allow that party to attend the emergency medical treatment facility.
During any period of illness by the child or recovery, each party shall have generous and reasonable contact with the child, consistent with the conditions of this order and the welfare and happiness of the child.
If the child is sick, the transition from one parent's care to the other parent's care is to proceed unless the child is too sick to travel between the parties' homes as per the determination of the child's doctor.
The parties shall keep one another informed of their residential telephone numbers, their residential address, and their e-mail addresses.
The applicant shall provide the respondent with 90 days advance notice of any intention to relocate the ordinary residence of the child outside of the Region of Waterloo.
The parties shall communicate primarily by way of e-mail. They may also agree to subscribe to a mutually agreeable computer-based program designed to facilitate and track communication between separated and divorced parents, the costs of which shall be borne equally, unless otherwise agreed. For anything of a time sensitive or urgent nature, the parties shall call or text and a response shall be provided as soon as the parent receives that communication. Each party shall check their e-mail account at least once a day. Each party shall respond to e-mailed inquiries within 24 hours of receipt (except during vacations). E-mail communications shall be brief, civil and relate only to parenting or financial issues. Neither party shall allow the child to see any e-mails exchanged between the parties.
Insofar as the child has been negatively impacted by the high level of conflict between the parties, both parties shall ensure that he is shielded from any negativity, conflict, or excessive displays of emotion by the parent.
Neither party shall allow any person to make negative or disparaging comments to the child about the other parent or members of their family or household. They shall at all times encourage the child to have a positive and respectful relationship with the other parent.
The parents shall not communicate about issues or non-emergency arrangements when the child is present or nearby. They shall not convey messages or documents using the child as an intermediary. They shall not encourage the child to make requests or proposals on their behalf.
The parties shall not question the child or comment to the child about the other parent's personal life and activities.
Neither party shall video or audio record the child for the purpose of recording statements or discussions about the other parent, or parenting issues.
Subject to specific provisions for vacations or special occasions, the Respondent shall have access to the child on the following core schedule:
(a) The respondent shall have access to the child on alternate weekends, with the transition to take place on Thursday at the close of school to the opening of school on Monday and on each Thursday in the opposite week from the close of school to the opening of school on Friday. When school is not in session, the transition shall take place on Thursday at 5:30 p.m., and on Friday and Monday, as applicable, at 8:30 a.m. at a location in a public setting selected by the applicant, acting reasonably;
(b) Subject to the following, the schedule set forth above shall take effect on Thursday June 2, 2016;
(c)The respondent shall select the first weekend for commencement of the alternating weekend schedule set forth above to suit his family circumstances and shall notify the applicant of his choice in that respect by 5:00 p.m. on May 30, 2016.
- The core access schedule shall be subject to the following specific provisions:
(a) Child’s Birthday
(i) The child's birthdays will fall as per the usual schedule.
(ii) Each party will plan the child's family parties during their own time.
(iii) Responsibility for scheduling and arranging the child's peer birthday parties shall alternate every other year. In even years, the respondent shall plan the child's peer birthday parties and in odd years, the applicant shall plan the child's peer birthday party. Others may attend by invitation extended from the party who is hosting the party.
(b) Mother’s Day (Applicant) /Father’s Day (Respondent)
The child shall spend time with the respective party from Sunday morning at 10:00 am for the remainder of the weekend until school reconvenes on Monday morning.
(c) Thanksgiving Long weekend
The child shall spend Thanksgiving Monday with the non-weekend party starting at 10:00 a.m. and this party shall return the child to school the following day for the start of school.
(d) Easter Long Weekend
The child shall spend Good Friday, Saturday and Sunday until 9:30 a.m. with the party in whose care he would normally be and he shall spend starting Sunday at 10:00 a.m. and Monday with the other party, until his return to school on Tuesday morning for the start of school.
(e) Christmas Eve, Day & Christmas School Break
(i) The break shall be shared equally.
(ii) The break will be defined as 14 days with each party having an opportunity to have alternate Christmas Eve from 2:00 pm until Christmas Day at 12:00 noon, with the Applicant spending time with the child during this period in even years and the Respondent spending time with the child during this period in odd years.
(iii) The parties shall alternate New Year's Eve from 2:00 pm until New Year’s Day at 12:00 noon with the Applicant spending time with the child during this period in odd numbered years and the Respondent spending time with child during this period in even numbered years.
(iv) In even numbered years, the Applicant shall spend time with the child for the first block of time of the Christmas holiday period and in odd numbered years the Respondent shall spend time with the child during the first block of time of this holiday period.
(f) EID
The child shall celebrate Eid with the applicant. The applicant shall provide the Respondent with 20 days’ notice of the scheduling of her family tradition/celebration of this holiday.
(g) Family Day
This holiday shall fall in accordance with the usual schedule, with the weekend extended to include Family Day with the drop off at school on Tuesday morning for the start of school.
(h) March School Break
(i) The child shall reside with the applicant in odd years, from Monday to Friday and with the Respondent in even years from Monday to Friday.
(ii) If either party chooses to travel during their March Break with the child, notice shall be given to the other party no less than 30 days in advance. As vacation packages may extend from Saturday to Saturday or Sunday to Sunday, the parties shall be flexible with respect to making the necessary accommodation to allow travel for the child.
(i) Victoria Day, Canada Day, August Civic Day, and Labour Day
The Victoria day, Canada day, August Civic day, and Labour day long weekends shall fall in accordance with the regular schedule and shall be attached to the weekend residential party’s time with the child.
(j) Summer Break and Vacation
(i) The summer holiday period begins at the end of school on the Friday following the last day of school and ends the morning of the first day back at school.
(ii) Commencing in 2016, each party shall have the child in his care for one-half of the summer vacation period, in a cycle that rotates between their residences in two week cycles, until it becomes mathematically impossible to do so. In that event, in order to ensure equal time between the parties, any remaining time after the two week cycles have been exhausted shall be shared equally between the parties. The child shall not spend more than a continuous two week period of time with each party. The applicant shall have the first choice to select whether to have the child in the first or the second two week cycle of the summer in even numbered years and the respondent shall have such choice in odd numbered years. Notice of this choice shall be given by the 30th day of April in each year.
(k) Halloween
This day shall alternate yearly, such that in even numbered years, the Applicant shall have the child in her care and in odd numbered years, the Respondent shall have the child in his care. The resident party shall be responsible for the cost of the child's costume.
(l) Professional Activity Days
Professional development days shall fall in accordance with the regular schedule.
(m) Right of First Refusal
If one party cannot be available to care for the child during the usual or holiday scheduled time for two overnights or more, the other party shall be given "the right of first refusal" to care for the child in his or her own home, prior to the resident party calling a third party for child-care assistance. It is the responsibility of the party seeking childcare assistance to transport the child to the other party's home or local community transfer. If the other party cannot accommodate the request to care for the child, the resident party is responsible for arranging alternate childcare. The parties will not seek make up time for the missed parenting time. The parties may call on each other for childcare assistance whenever they wish for periods of less than one overnight.
During any access exchange which does not occur at the child’s school the parties shall have minimal interaction with one another; they shall not use the occasion to communicate about parenting issues; they shall facilitate the exchange quickly and in a positive manner; they shall not photograph or record one another or the child; and during the period following the access exchange they shall respect one another's privacy and avoid contact with one another.
Each party shall encourage and facilitate the child to initiate regular contact with the other parent, by telephone or electronically. As a minimum (and not including vacations spent away from home) if one of the parties will have the child in their care for two or more overnights in a row, that parent shall ensure that the child initiates a telephone call to the other parent on the evening of every second overnight at 7:00 p.m.
The parent who had care of the child prior to the commencement of a school day shall continue to have authority over the child until the end of the school day. This shall determine which parent should first be contacted by the school, in the event of an issue arising at school on that day.
Neither party shall attend at the school at a time when the other parent is known to be dropping-off or picking-up the child. Both parties may attend school events open to the public. But the parent, who would otherwise have care of the child at the time, shall continue to have responsibility for the child during the school event. If either party is personally unavailable, other adult members of his or her family and household may assist with transporting the child.
The parties shall share selection of extra-curricular activities in the following manner.
(a) Each year commencing in 2017 the applicant and the respondent shall take turns selecting activities.
(b) In even numbered years the applicant shall select first, and make a selection by January 30th. The respondent shall select second by March 31. The applicant third by May 31. And the respondent fourth by July 31. If a party misses a deadline for selection of an activity, the other party may proceed with their selection (but unless the parties agree otherwise, neither party shall be entitled to select more than two activities per year).
(c) In odd numbered years the pattern shall be reversed.
(d) Selections may be for an activity which takes place during any portion of the year. A selection may not overlap or conflict with the schedule for a previously selected activity.
(e) The party selecting the activity shall pay two-thirds of the cost; the other party shall pay one-third.
(f) Both parents may attend any event. The parent who has the child in their physical care shall be responsible for preparation of the child for the activity.
(g) Both parents shall make their best efforts to ensure that the child attends most activity commitments during the time the child is in their care. If the parent has difficulty arranging transportation in relation to the event, but does not otherwise have plans involving the child, that parent shall offer the other parent the opportunity to transport the child to the activity.
(h) These terms set out a basic framework for extracurricular activities. The parties may agree to make other arrangements.
(i) Apart from these provisions, neither party shall make any scheduling commitments for the child which encroaches on the other party's time with the child.
(j) For the current year (2016) the child shall continue to participate in extra-curricular activities in which he is currently enrolled or registered and the parties shall cooperate with respect to enrolling him in such activities for the balance of the year. In the event of disagreement, the determination of what activities the child shall participate in shall be made by the applicant, acting reasonably.
The child may travel within Canada for vacation purposes with either parent, which travel will not require the consent of the other party. However, the parents shall notify one another in advance, in writing, whenever the child will be sleeping away from that party's ordinary residence for more than two nights in a row.
Either party proposing international travel involving the child shall provide the other party with full particulars at least 45 days prior to the intended travel, including the exact itinerary, destinations, accommodations, and methods of communication.
The parent travelling with the child shall ensure that the child initiates a telephone call (or call by video link such as Skype or Facetime) to the non-travelling parent at a pre-arranged time, at least once every three days of the trip.
If either parent plans a vacation without the child, that parent will give the other parent a telephone number where he or she can be reached in case of emergency or if the child wishes to contact the travelling parent.
Both parties shall cooperate in obtaining a passport and any other documents required by the child.
Subject to the following, the applicant shall maintain possession of all relevant child related documents such as the passport, OHIP card, birth certificate, SIN documents, etc. The applicant shall provide the respondent with copies of all such documents. Any party travelling out of Canada with the child (as provided for herein) shall be entitled to have the child's original documents for the duration of the trip.
To minimize what the child must travel with, both parents shall have sufficient clothing for him and these items shall not travel back and forth. However, outer wear such as winter coats and boots shall travel back and forth between households.
The child shall be allowed to take his preferred belongings between households.
For purposes of determining child the respondent's income is determined as $92,534.00 effective January 1, 2016.
Commencing June 1, 2016 the Respondent shall pay to the Applicant child support in the sum of $ 821.00 per month. This amount shall be adjusted annually in accordance with the Child Support Guidelines based upon the respondent’s line 150 income for the previous taxation year.
The respondent shall provide the applicant with copies of his tax returns (as filed) and notices of assessment (as received) by June 30th annually.
The Applicant and the Respondent shall both maintain for the child such health care coverage as may be available to them through employment, and they shall provide full particulars of any coverage available or in place.
The respondent shall designate the child as the sole beneficiary of a policy of life insurance on his life in the face amount of $250,000.00 for so long as he remains a dependent child.
The parties shall provide one another with written confirmation of compliance with the health care coverage and life insurance provisions herein, annually by June 30th.
Support Deduction Order to issue.
[360] If any issues or clarifications other than costs need to be addressed, counsel should arrange a time to see me in court.
Costs
[361] If the parties cannot agree on costs, the applicant may make written submissions as to costs within 21 days of the release of this endorsement. The respondent shall have 14 days after receipt of the applicant’s submissions to respond and the applicant has 7 days thereafter to deliver any reply submissions. The initial submissions of the applicant and the submissions of the respondent shall not exceed 7 double-spaced typed pages, exclusive of Bills of Costs or Costs Outlines, offers to settle and authorities. The applicant’s reply submissions, if any, shall not exceed 4 such pages. All such written submissions are to be forwarded to me at my chambers at 85 Frederick Street, Kitchener, Ontario N2H 0A7. If no submissions are received within this timeframe, the parties will be deemed to have settled the issue of costs as between themselves.
D.A. Broad J.
Released: May 25, 2016