Court File and Parties

Court File Nos.: D127/60/09-01 and D127/60/09-02 Date: 2016-09-28 Ontario Superior Court of Justice

Between: E.L.M., Applicant And: S.G.M., Respondent

Counsel: Nicole Matthews, for the Applicant Birkin Culp, for the Respondent

Heard: September 12, 13, 14, 15, 16, 19, 20, 21 and 22, 2016

Before: The Honourable Justice C.D. Braid

Reasons for Judgment

I. Overview

[1] In 2010, this court made a final consent order dealing with joint custody, access, support and divorce. That order was meant to avoid further litigation on these issues. Sadly, that has not been the case.

[2] Since the 2010 order was made, there has been a high level of conflict. The parties have been in court on numerous occasions. In 2013, the parties consented to an order granting sole custody of the son to the father, and sole custody of the two girls to the mother.

[3] In 2014, things came to a head when the mother decided to move with the girls to Eastern Ontario. The father did not wish for the girls to live so far away, and was concerned about maintaining his relationship with his daughters. The court made an interim order that the girls not be moved from their present residence and school. At that time, the court found that there had been a material change in circumstances.

[4] The Office of the Children’s Lawyer (OCL) appointed two clinicians. Investigations were conducted. The clinicians’ reports were provided in 2012 and 2015.

[5] At trial, mobility and custody of the girls were the primary issues. The mother wishes to move with the girls to Northbrook. The father opposes the move, and seeks sole custody of the girls.

[6] The following issues arise in this case:

a) Should the mother be permitted to move the girls to Northbrook?

b) If the girls are not permitted to move to Northbrook, should the mother continue to have sole custody?

c) What are the arrears of child support and s.7 expenses owed by the father to the mother?

II. Background

[1] S.G.M. (“the father”) was born on […], 1977 and is currently 39 years of age.

[2] E.L.M. (“the mother”) was born on […], 1978 currently 37 years of age.

[3] The father and mother were married on April 17, 1999. They separated in July 2008.

[4] There are three children of the marriage:

a) The brother, born […], 1999 (he will be 17 years of age in October);

b) E.M.M., born […], 2003 (currently 13 years of age); and

c) J.I.M., born […], 2005 (currently 11 years of age).

I shall refer to E.M.M. and J.I.M. collectively as “the girls”. I will refer to N.S.M. as “the brother”.

[5] The brother lives in Brantford with the father in a five-bedroom townhouse. Four other people reside in that household:

a) E.L.W., the father’s common-law partner. E.L.W. and the father have been in a relationship since 2011. She is at home full-time with the children. I shall refer to E.L.W. as “the stepmother”;

b) H.M.W., the stepmother’s daughter, who is 16 years of age. I shall refer to H.M.W. as “the stepsister”; and

c) The half-brothers, J.D.M. and E.C.M., the biological children of the father and the stepmother, who are 4 and 3 years old.

[6] The girls live in Hamilton with the mother. The mother’s partner, N.J.H., has been in a relationship with the mother since 2008 and has resided with her for periods of time. I shall refer to N.J.H. as “the stepfather.”

[7] The stepfather currently resides in Northbrook, Ontario, and is employed as a correctional officer in Napanee at the Quinte Detention Centre. The stepfather’s son from a previous marriage is N.C.H., who is now 13 years of age. N.C.H. lives with his mother and sees the stepfather one weekend per month.

III. Health Issues

[8] The following is a summary of the mental and physical health issues of the extended family members:

a) The father suffers from anxiety and depression. At the time of the marriage breakdown in 2008, the father was suicidal. He was hospitalized and under the care of a psychiatrist. Despite his mental health issues, the father continued to see the children religiously, after separation. He completed counselling and remains stable on antidepressant medication. He is no longer under the care of a psychiatrist.

b) The mother struggles with depression and suffers from cirrhotic arthritis, which is an autoimmune disorder.

c) E.M.M. was born with constitutional growth delay, which appears to have resolved itself. Her current diagnoses are Social Anxiety Disorder, Attention Deficit Hyperactivity Disorder, Obsessive Compulsive Disorder and Specific Learning Disability. She has been receiving counselling and medication through CPRI since 2010. Dr. Mitchell at CPRI has confirmed that she will continue to follow up with E.M.M. on a regular basis, whether E.M.M. resides in Brantford or in Eastern Ontario.

d) The stepmother suffers from depression and takes medication. Her biggest issue is how to manage her various challenges and stressors.

e) The stepsister suffers from severe anxiety and has been diagnosed with Asperger’s syndrome.

f) The half-brother E.C.M. has been diagnosed with autism spectrum disorder.

g) The stepfather has been prescribed antidepressants.

h) N.C.H. (the son of the stepfather) has Asperger’s syndrome.

J.I.M., the brother, and the half-brother J.D.M. do not have any diagnosed health concerns.

IV. Chronology of Events

[9] The following is a summary of the relevant portions of previous court orders and significant events since separation:

a) Residence of the Children 2008 - 2012

[10] During the marriage, the parties resided in Brantford. After separation, the mother lived in the former matrimonial home with the three children until October 2009, when she moved into subsidized housing in Brantford with the children. The father had generous access.

b) The mother’s new partner, the Stepfather

[11] The mother began a relationship with the stepfather in the latter months of 2008. The stepfather accepted a secondment to the Brantford jail, and resided with the mother in Brantford for a portion of the time between 2009 and 2012.

[12] The stepfather was previously convicted of two domestic assaults on his ex-wife. He was on probation for three years following those convictions. At the time of the first OCL report, the children reported significant conflict between the mother and the stepfather. The children stated that they were scared when the two of them are arguing.

[13] At trial, the stepfather testified about arguments that he has with the mother. He agreed that he raises his voice and there is name-calling. He also acknowledged that, sometimes, he just needs to get away from her when they are arguing so he will jump on his motorcycle and leave for a time. It is his position that this is a normal part of every healthy relationship.

c) Divorce Order 2010

[14] On January 20, 2010 the court made a final order on consent of the parties. This order specified joint custody of the three children with the mother maintaining primary residence. The father had the three children alternate weekends, twice during the week and on holidays.

[15] The order stated that the father was entitled to receive information from third party caregivers, such as schools, doctors, dentists, and daycare providers. Paragraph 10 of that order prohibited the mother from relocating more than 50 km from Brantford without the written consent of the father or a court order.

d) CAS involvement in 2010

[16] In February 2010, E.M.M. told a teacher at school that the stepfather had kicked her against the wall and the wall had broken. She stated that he threw her on the bed after carrying her upstairs. The stepfather was advised by CAS to follow a hands-off policy in the residence and have no physical contact with any of the children until regular discipline tactics were agreed to amongst the adults.

[17] At trial, the stepfather was asked about this incident. He stated that E.M.M. was being unmanageable, so he picked her up and put her on the bed in her room. He stated that she may have hit the wall after he put her on the bed. He closed the door behind him and left her there to calm down.

e) Other Physical Incidents Between the Stepfather and the Children

[18] At some point when the brother lived with the mother, there was an incident when the stepfather elbowed the brother roughly. The mother acknowledged that the stepfather plays rough and stated “[the stepfather] being the adult should have been able to recognized N.S.M.’s feelings and stop the situation from escalating.”

[19] On another occasion, the mother, the stepfather and the children were at Boston Pizza. The brother was being disrespectful towards the mother. The mother asked the stepfather to pick the brother up and carry him out to the truck. The stepfather picked him up and carried him a few steps; the brother was very embarrassed and asked to be put down.

[20] During the summer of 2011, the mother, the stepfather and the children were at the beach. The stepfather and E.M.M. had been throwing sand at one another. The stepfather told E.M.M. to stop doing this. She threw some sand again and the stepfather retaliated and threw some back at her, hurting her. The mother and the stepfather separated after this incident for a period of time. They reunited with the understanding that she would be responsible for any discipline regarding E.M.M..

f) June 30, 2011 Order re: Access

[21] In June 2011, the parties entered into an order on consent providing further direction regarding specified access between the parties. This included summer vacation plans with the parties and the childrens’ grandparents.

g) The Brother’s Change of Residence and the Mother’s Move to Hamilton

[22] In 2012, the brother decided that he wished to live with the father. The brother did not like the stepfather and asked his mother to keep the stepfather away from him. The brother stated that it was usual for there to be a lot of yelling and swearing if the mother did not do what the stepfather wanted. The brother was particularly concerned about the incident when the stepfather threw sand at E.M.M. and hurt her; and with the incident at Boston Pizza when the stepfather picked up the brother to carry him out of the restaurant.

[23] In April of 2012, the mother moved to Hamilton with the girls. This was still within the 50 km radius of Brantford, so the move did not require the consent of the father. The stepfather lived down the hall from the mother for approximately one year, and then they moved into an apartment together with the girls, where they resided for approximately one year. During this time, the mother and the stepfather attended individual and couples counselling. At one point in 2013, a neighbour called CAS regarding heightened level of verbal conflict with the stepfather, the mother and the children. That investigation was resolved without any finding of wrongdoing.

h) 2012 Order Re: the Brother’s Change of Residence

[24] On August 3, 2012, the Court made a temporary order, on consent but “totally with prejudice”. This order stated that the brother was to primarily reside with the father pending receipt of the first OCL report.

i) 2012 Letter from the Mother to the Brother

[25] After the brother moved to his father’s residence, the mother sent him a letter. She stated that she was quite ill with an autoimmune disease that the doctors thought was lupus. In that letter, the mother vividly described her health difficulties:

• I am always tired; my heart is doing weird beats and thumps; my ears hurt; I can’t walk straight and look like I walk drunk; my tops of my feet really hurt; my hips are sore; I have a sore throat all the time; my hands hurt; fingers swell up and split into sores; my memory has declined…and the list goes on
• I am sick with a disease with no cure. I am already on a bunch of pills.
• If I leave the lupus untreated it will continue to kill my organs. I will go deaf soon and die. With treatment they say I could live more than 10 years. 10 years isn’t long enough for me so I’m gonna try and fight as best I can…

j) 2013 Order Re: Change in Custody Arrangements

[26] On July 3, 2013, the parties returned to court and a new final order was made on consent. This order stated that the father had sole custody of the brother and the mother had sole custody of the girls. The order stated that the mother’s access to the brother shall be at his discretion. This order did not modify paragraph 10 of the 2010 order, which restricted the mother’s ability to move more than 50 km from Brantford.

[27] The 2013 order stated that the father would enjoy alternate weekend access that would extend to Monday, if Monday was a PD day, and the holiday schedule would continue as previously ordered.

[28] Since 2012, there have been struggles with access visits to all three children. The father typically only had access visits with the girls once a month, rather than every second weekend. Some of the reasons that access was cancelled were sleepovers, movie nights, or visits with the stepfather’s relatives. The father was concerned that the mother had been adversely influencing both the visits and his relationships with the girls. The father was hesitant to exercise the police enforcement clause as it would have had a negative emotional impact on the girls.

k) January 2014 Writing on Clothes

[29] In January 2014, the girls went to the father’s house for an access visit. The father expressed frustration that the girls arrived in clothes that were too small. The father directed the stepmother to write the words “too small” on the clothing. They did not put the clothing on the girls after they had been written on.

[30] When the girls returned from the visit, the mother was very upset about the writing. She dressed one of the girls in the clothes, took a photo, and then posted the photo on Facebook.

[31] Both the father and the stepmother acknowledged that they should not have written on the clothing. The mother did not feel that she had done anything wrong by taking the photo and posting it on Facebook.

[32] The father did not see the girls for one month after this incident.

l) Spring of 2014 Change in Exchange Arrangements

[33] In the spring of 2014, the parties agreed that the father could pick up the girls up at 3 pm on Fridays after school. Instead of exchanging the girls at the police station, the father picked up the girls at the mother’s apartment.

m) The Mother’s Plans to Move to Shannonville

[34] In May 2014, the stepfather submitted a request to be transferred to another custodial facility. The detention centre in Toronto where he worked was closing. One possible option was a transfer to the Quinte Detention Centre in Napanee. In early August 2014, the stepfather learned that he was being transferred to Quinte. The mother and the stepfather began discussions regarding moving with the girls to that area. She did not inform the father of these plans.

[35] In mid-August, the mother and the stepfather took the brother to look at houses in Shannonville, which is close to Napanee.

[36] The father learned that the mother was planning to move to Eastern Ontario with the girls. On September 4, 2014, the father sent an email to the mother in an attempt to verify her plans. He received no real information in response.

[37] Around this time or shortly after, the mother told the girls about the planned move to Shannonville. She told them that they would have a horse, chickens, and rabbits.

[38] On September 6, 2014, the mother emailed the father to provide the address in Shannonville. She stated that they will take possession on September 12 and will be fully moved in for October 1. She also provided the name of the girls’ school.

[39] In September 2014, the mother ended the lease on her Hamilton apartment. When the court refused to allow the girls to move to Eastern Ontario, the mother moved with the girls to a shelter, to wait for second-stage housing.

n) Labour Day Weekend 2014

[40] The parties had a disagreement about when the girls were to be returned during the Labour Day weekend in 2014. The mother insisted that they be returned on Sunday at 8 pm in accordance with the 2010 court order. However, the father kept them until Monday at 4 pm. At trial, the father testified that he believed the parties were following the OCL recommendations that extended his weekend access to holiday Mondays. However, in hindsight, he agreed that the 2013 order required the return of the girls on the Sunday of Labour Day weekend.

o) Urgent Motion on September 5, 2014

[41] On September 5, 2014, the father brought an urgent motion dealing with mobility. The Court made a temporary order directing that the girls not be removed from their present residence and school pending further determination of the matter. If the mother chose to move, then custody of the girls would transfer to the father. The court also ordered that the OCL prepare an updated report. The matter was adjourned to a date for a long motion to be argued.

p) Mother’s Allegations of Stalking and Attempting to Steal the Girls

[42] On September 4, 2014, the father attended at the mother’s residence to serve her with the urgent motion dealing with the move to Shannonville. On the advice of counsel, the father attended at the residence when the girls were getting off the bus. The stepfather came out of the apartment building to speak to the father. The stepfather stated that the mother was in British Columbia. He refused to accept service of the documents on behalf of the mother. The documents were later served by email.

[43] On September 12, 2014, the father attended at the mother’s residence at 3 pm. The father testified that he thought the parties were continuing the access routine that had been established before the summer, and that he would pick up the girls at 3 pm on Fridays at the mother’s residence. On this date, the mother refused to send the girls with the father and stated that he could have access at 6 pm at the police station. The father stated that he had nowhere to go, so he sat in his car outside the residence. The mother emailed him and told him to stop stalking her.

[44] While the father waited in his car outside her residence, the mother was helping the stepfather move furniture into a U-Haul truck. The girls were being watched by a neighbour and having a play date with the neighbour’s child.

[45] During the days leading up to September 25, 2014, the father was attempting to confirm that the girls were still attending school in Hamilton. He telephoned the school but was advised that they could not give him any information as the non-custodial parent. The father decided to attend personally at the school to provide the principal with a copy of the court order that granted him access to third party records relating to the children.

[46] On September 25, 2014, the mother learned that the father had been at the girls’ school. She took the girls out of school early. The mother felt “frazzled” and was crying. She telephoned her lawyer from the car, permitting the girls to hear her side of the conversation regarding her fears of the father attempting to steal the girls. She was advised to take the girls to a hotel for the night.

[47] The mother stated that the girls did not want to go back home because they believe the father had been “stalking” them. The mother told the girls that they would be safe from their father at a hotel.

[48] The principal later advised the OCL clinician that he had no concerns or reports about the father trying to remove the girls from the school.

[49] A short time after these events, the girls attended domestic violence counselling at Catholic Family Services. The mother told the counsellor that the father was stalking her and trying to steal the girls, which justified the development of a safety plan. The mother did not tell Catholic Family Services about the father’s explanation for his attendance at the school and apartment.

[50] The girls’ counselling at Catholic Family Services focused on their feelings of anxiety, being “mad at dad” and “feeling hate, anger and wanting to punish dad.” The girls seemed confused, yet remained worried that their father was “not safe” given their reports of his “threats to take them away.” Given E.M.M.’s psychiatric history, she had an individual session to help her deal with feeling overwhelmed with “anger and sadness.”

[51] The mother told the OCL clinician that both girls were afraid that their father would steal them, and that E.M.M. particular has a “major hate-on” for the father. The mother also stated that the girls were very upset with the father for not allowing them to move to Shannonville.

[52] The father denied any attempts or intention to take the girls from their school or the mother’s apartment other than for normal access visits. He stated that he went to the school on two occasions: once when he took homework that had been left behind and once to meet with the principal. He attended outside the apartment on September 4 as directed by counsel in an attempt to serve the mother with an urgent motion; and on September 12 to pick up the girls, as the parties had previously agreed and implemented this arrangement prior to the summer break. The father also denied saying that he wanted to “steal” the girls.

q) September 26, 2014 Motion

[53] On September 26, 2014, the issue of mobility was argued before Justice Harper. The court reserved and issued a written decision a short time later.

[54] In that decision, the court ordered that the girls' residence shall not be changed. If the mother chose to move to the Ottawa area with her common law husband, the father would have immediate custody of all three children.

r) Police Involvement on September 26, 2014

[55] Two hours after court was finished on September 26, 2014, the mother took the girls into the Hamilton police station. The police were advised that the stepmother had slapped J.D.M. and that both girls were fearful that the stepmother would do the same to them. The matter was referred to the Children’s Aid Society.

[56] It is notable that the stepmother’s Facebook post regarding the slap was made was seen by E.M.M. and the mother on or prior to September 1, 2014, but the police report was made four weeks later. According to the OCL report, the girls did not appear to be afraid of being physically harmed. For reasons that are unclear, these concerns about possible abuse and/or fear by the girls were not raised before the presiding judge at the time that the long motion was argued.

[57] At trial, the father and the stepmother acknowledged that they had both slapped the half-brother J.D.M.’s hand. Both characterized the slaps as isolated incidents, and have put into place alternate and more appropriate forms of discipline. The half-brothers J.D.M. and E.C.M. were not removed from the father’s care. CAS did not verify allegations of physical harm.

[58] CAS did not direct the parties to stop the father’s access during the investigation. However, the father did not see the girls for the next four months.

s) Father’s Motion in October 2014

[59] On October 31, 2014, the parties were back before the court. On consent, an order was made that the father have access to the girls on alternate weekends with exchanges to take place at the Hamilton police station. Despite this order, the father did not have access to the girls.

t) Father’s Motion in November 2014

[60] On November 14, 2014, the parties were back before the court once again. On consent, an order was made allowing for access exchanges to occur at Dalhousie Place Access Centre in Brantford.

[61] Unfortunately, Dalhousie Place stated that they were not able to assist until the completion of the CAS investigation. Because of a delay in transferring the CAS file between Hamilton and Brantford, that investigation was not closed until January of 2015. The father’s access to the girls recommenced on January 30, 2015.

u) Summer 2016 Access

[62] On July 8, 2016, the father was to begin his summer access, but the access exchange centre did not have a copy of the court order. The mother would not agree to an alternate location for exchange of the girls, even though they had previously arranged for the father to pick up one of the girls at a pool party.

[63] On July 15, 2016, the father brought a motion to enforce the summer access. The parties consented to an order that allowed the summer access to proceed and granting the father some makeup time.

[64] During the extended summer visit with the father, E.M.M. and J.I.M. had a fight. The stepmother intervened and tried to get E.M.M. to calm down. She had E.M.M. go to her room and took E.M.M.’s cellphone until she calmed down. The stepmother and the father spoke to the girls at length and resolved the issues.

[65] J.I.M. later messaged the mother and said that E.M.M. was hurt. The mother spoke to E.M.M. and asked if she wanted CAS to be called. E.M.M. replied “yes”. Without receiving much further detail, the mother called CAS. No concerns were verified.

V. OCL Reports

a) First OCL report of November 21, 2012

[66] The girls clearly love both of the parents and enjoy the time they spend with each of them.

[67] The girls told the first OCL clinician that the mother and the stepfather fight a lot, use bad words and slam doors. J.I.M. stated that they use bad words towards her when they are mad. They stated that the mother says mean things about the father. E.M.M. stated that the fighting between the stepfather and the mother was better “now that they don’t live all together.”

[68] Both girls stated that the father and the stepmother are happy; there is no fighting at the father’s house and bad words are not used. The girls described their father as being lovable and playful. The father never says bad things about the mother; he will say good things about her.

[69] All three children reported a calmer and more stable environment at their father’s residence. They stated that his home is free from conflict and “everyone is happy there.” All three children reported missing spending time with one another, and that the environment at the father’s residence was more settled and soothing.

[70] The following excerpts from the first OCL report reflect significant concerns with respect to the children (at page 12-13):

All three children have been exposed to a lifetime of adult conflict between their parents. Brantford Children’s Aid Society highlighted the issue of conflict between the parties on several occasions and reported having cautioned both parents about the emotional impact this conflict is having on the children. CPRI, Dr. Manning and Child and Adolescent Services all raised the concern of there being significant parenting conflict between the two parties. CPRI stated that it is difficult to speculate on the origin of [E.M.M.]’s emotional and behavioural difficulties given the level of conflict between [E.M.M.]’s parents. All three children showed signs of emotional and social harm due to this ongoing conflict.

[E.L.M.] has chosen a partner whose behaviour and presence appear to have caused a rupture in her relationship with her son to the point where he does not want to see her. [E.M.M.] and [J.I.M.] have also voiced concerns regarding their mother’s relationship with [N.H.] that there is a great deal of conflict between their mother and [N.H.].

[71] The girls stated that they wanted to remain with their mother. The mother committed to pursuing counselling for herself and the stepfather. Notably, the OCL clinician stated that the recommendation that the girls remain in the mother’s residence was “made with caution… [If the mother is] unable to reduce the level of conflict in her home, a change in residence may be necessary for the girls’ social and emotional well-being.”

[72] The clinician questioned the mother’s reported reasons for moving from Brantford to Hamilton, which she said was for financial reasons. The clinician stated that these reasons are suspect, given that the mother moved into an apartment in the same building as the stepfather. This move made weekday access impossible for the father and the girls, which limited the amount of time that they could spend with their brother in a conflict-free environment.

b) Second OCL report of May 6, 2015

[73] John Butt was engaged by the OCL to conduct an investigation. Mr. Butt has been a clinical investigator for 20 years and has completed approximately 400 investigations for the OCL. He has written approximately 300 reports and has been qualified as an expert in court on 12 occasions. He has a great deal of expertise in this area. At this trial, Mr. Butt was qualified as an expert.

[74] Mr. Butt obtained records from the police, the CAS and medical professionals. He met or spoke with members of the family, the CAS, the police, the family therapist and the family doctor. He spoke to or reviewed 54 different sources of information. His investigation was conducted over 7 months. His report was 42 pages long. He met with each child to get their preferences and observed them with each parent. I am satisfied that his investigation was extremely thorough. The parties concede that his report is fair.

[75] Mr. Butt commented on the complexity of this case: in his view, this case presents an extremely complex and challenging set of family circumstances. When one considers the parents, step-parents, siblings, half-siblings and step-siblings on both sides of this family, eight of the eleven individuals have diagnosed mental health conditions or disability-causing medical health conditions. Of the 400 investigations that Mr. Butt has conducted, this case was in his “top 10” in terms of complexity.

[76] Mr. Butt expressed concerns about E.M.M.’s history of psychiatric treatment, the contributing family stressors, and the need for consistency and stability in her life. Despite this need, the girls remained in limbo at a women’s shelter at the time of the report, pending the resolution of these proceedings. Together with their mother, the girls were involved in a range of anti-violence programs. Such involvement framed the girls’ perception of their father and his home environment. Mr. Butt questioned the cause for concern about domestic violence and the subsequent need for treatment. The mother’s perceptions and fears about the father have influenced the girls’ fears and apprehensions.

VI. Income of the Parties

[77] The father has worked at various places of employment during the relevant periods of time, mainly within the trucking industry. Shortly after separation, he went back to school to upgrade and become a welder, but this did not work out for various reasons. He also suffered a back injury and was off work for a period of time. He is now employed as a truck driver running short trips in southern Ontario.

[78] The father’s income has fluctuated since separation. The following is a summary of his income in recent years:

a) 2012: $24,420.81

b) 2013: $44,280.25

c) 2014: $39,946.38

d) 2015: $32,268.12

[79] The mother was employed as a nurse. Because of health concerns in 2012, she began receiving disability benefits. Her income for 2015 was $16,164. At trial, the mother testified that she is seeking employment in Northbrook, and intends to work in a nursing home if the College of Nurses reinstates her.

VII. Positions of the Parties

[80] The father requests that the girls not be allowed to move. He also submits that custody and primary residence of the girls should be transferred to him. The father initially asked for the mother to have supervised access, but retracted that request at trial. He proposes that the mother have access on alternate weekends with the exchanges taking place at a supervised access centre in Burlington and at a police station.

[81] The mother seeks the Court’s approval to move to Northbrook with the girls. The mother also seeks payment of child support arrears and s. 7 expenses.

VIII. Analysis

A. General Principles Regarding Mobility

[82] In considering any mobility issue in the context of a child, the overriding factor is the child’s best interests.

[83] The leading case on the issue of mobility is the Supreme Court of Canada decision in Gordon v. Goertz, [1996] 2 S.C.R. 27. The person applying for a change in the custody or access order must meet the threshold requirement of demonstrating a material change in the circumstances affecting the child. The parties agree that there has been a material change in circumstances in this case.

[84] If the threshold is met, the judge on the application must embark on a fresh inquiry into the best interests of the child, having regard to all the relevant circumstances relating to the child's needs and ability of the respective parents to satisfy them. The focus of the inquiry is not the interests and rights of the parents.

[85] The inquiry does not begin with a legal presumption in favor of the custodial parent, although the custodial parent's views are entitled to great respect. Once the threshold of material change has been met, both parents bear the evidentiary burden of demonstrating where the best interests of the child lie. In considering the best interests the court must consider, among other things (Gordon v. Goertz):

a) the existence of custody arrangements and relationship between the child and custodial parent;

b) the existing access arrangements and the relationship between the child and the access parent;

c) the desirability of maximum contact between the child and both parents;

d) the views of the child;

e) the custodial parent's reason for moving, only in the exceptional case where it is relevant to the parents ability to meet the needs of the child;

f) disruption to the child of a change in custody; and

g) disruption to the child consequent on removal from family, school, and the community he or she has come to know.

B. General Principles Regarding Custody and Access Claims

[86] Section 24(2) of the Children’s Law Reform Act sets out the factors to be considered in determining the best interests of the child:

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

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

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

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

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

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

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

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

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

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

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

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

[87] This is not an exhaustive list of the relevant considerations in carrying out an analysis on the best interests of the child. The best interests determination is based on a multiplicity of factors that must be tailored to the unique facts and dynamics of each case. The court is not required to specifically enumerate and analyze the specific criteria set out in s. 24(2) of the Act, but rather must consider all of the factors that are relevant to the analysis in the particular case that it is called upon to decide: see Walsh v. Walsh, [1998] O.J. No. 2969, 39 R.F.L. (4th) 416 (C.A.). The overarching principle is that the child’s best interests must be ascertained from the perspective of the child rather than the parents; parental preferences and rights do not play a role in the analysis except to the extent that they are necessary to ensure the best interests of the child: see Gordon v. Goertz, [1996] 2 S.C.R. 27; Young v. Young (1993), 49 R.F.L. (3d) 117 (S.C.C.).

C. Best Interests of the Children in this Case

a) Love, Affection and Emotional Ties

[88] The girls have close ties with their mother, father and brother. According to the girls, they feel more connected to their mother than to their father. This is understandable because they have lived in the primary care of their mother since they relocated to Hamilton in 2012.

[89] The girls talk positively of past visits with their father. Despite their participation in domestic violence counselling, they do not report having any actual fear of their father or visiting him. The girls also clearly miss their brother and struggle with their lack of contact with him. The brother also misses his sisters.

[90] The girls have also established ties with the stepfather, which are stronger than the ties they have with the stepmother. Mr. Butt observed that this likely comes from the stepmother’s struggle to manage the multitude of parenting demands placed on her with six children in the townhouse during access visits, three of whom have diagnosed mental health conditions.

[91] Despite concerns about the mother’s influence, the information suggests that the girls’ emotional ties rest more predominantly with their mother.

b) The Children’s Views and Preferences

[92] The girls stated that they wanted to be with the mother. However, Mr. Butt believed that the girl’s views and preferences were not independently formed. The girls expressed a wish to have a horse in Shannonville, and to live in a nice house with a big backyard where there are wolves and other wildlife. The mother had told E.M.M. that the stepfather was transferred for work and that they would not be able to see him if they did not move.

[93] E.M.M. also had perceptions regarding the negative side of living with her father. In September 2014, the mother “told [the girls] the bad things that have been happening in the past few years”. E.M.M. gave examples of “what my dad has been trying to do to us, how he tried to kill himself, how he tried to take us away in court, and why CAS is involved.” E.M.M. also said that her father has “anger issues” and said that her mother reminded her of a time that her father forgot to pick the girls up at school “and we were crying.” E.M.M. stated “I’m glad I know the truth but I don’t like how he did all that. I worry I might be like he is and I don’t want to be like that.”

[94] E.M.M. believed that the father convinced the brother to live with him, and stated “we all think that. Me, J.I.M., and my mom”; and then she added “just like he is trying to do with us”. E.M.M. also described how her mother talks of “how she feels and how she is worried we will live with real dad”, and that her mother cries about it. E.M.M. described how the mother picked the girls up at school one day and took them to a hotel. She said her mother “was crying and she said she was afraid dad was trying to take us away.” E.M.M. said this “made me worry about him doing that. I wasn’t worried before, now I only kind of worry.”

[95] E.M.M. described how she had seen the stepmother slap the half-brother J.D.M.’s hand when he was misbehaving and how she had seen the Facebook post in relation to that incident. E.M.M. expressed how she felt unsafe as a result because she was worried she might also be hit. E.M.M. stated that the stepmother had slapped her once, some time ago, after she had covered the half-brother J.D.M.’s mouth with her hand to get him to stop crying. E.M.M. described how they had developed a safety plan in counselling in case “anything bad goes wrong at dad’s” and how she thought that CAS had stopped the visits as a result of this incident.

[96] E.M.M. stated that the father and the stepmother never talk about the whole idea of moving, and says that the father and the stepmother “are very secret” about court matters.

[97] J.I.M. stated that her mother told the girls that it was their choice whether or not to visit their father. During the four-month period at the end of 2014 when access visits were suspended, J.I.M. believed that they had been stopped because the father had lied about how he, the stepmother and E.M.M. all have special needs, and how he had told E.M.M. that he wanted to “steal us”. J.I.M. said that she was afraid her father “might steal me and never give me back” to her mom.” She explained that she felt this way because, in the summer of 2014, he brought the girls back on Labour Day Monday instead of Sunday. She said that this felt “normal at the time” but “mom told us it was supposed to be the day before”.

[98] J.I.M. also thought the father would try to take the girls because “he took my brother, although [the brother] chose to go”. J.I.M. was also aware of the reports that the father tried to pick the girls up at the school and the bus stop. Regarding the bus stop incident, J.I.M. said she just assumed her father was there to pick them up because it was a visit day, but then the stepfather told them the father was not supposed to pick them up that early. J.I.M. stated “I did not think it was a big issue” and was not afraid or concerned. She stated that, at the time, she was unaware that “he was trying to take us”.

[99] The girls both spoke about how the access visits would continue after they moved in a manner that was “fair”, as they would be exchanged at a midpoint on the east side of Toronto.

[100] E.M.M. is aware that the father is seeking to “take them away in court.” In addition, E.M.M. told a counsellor that “the judge told my mom” that the children could decide to go on visits or not when they were 12.

[101] I find that the information that the mother has shared with the girls regarding the father has reasonably cause them to be apprehensive of being in his care and presence. I further find that the views of the girls have been influenced by promises made to them by the mother regarding life at a new home in Eastern Ontario. Both girls anticipate being able to have a horse, chickens, and to see the stepfather and their dog. They are intrigued with having a large home and yard in a rural setting.

[102] Knowing all of these benefits of the move, and having been told that the father prevented them from being able to move, the girls predictably began to struggle with feelings of anger and hatred towards the father. These feelings have been compounded by feelings of fear and apprehension associated with the perceived risk of being taken by their father. These feelings have been reinforced by domestic violence counselling and the development of a safety plan for implementation during access visits.

[103] I agree with the comments of the OCL investigator, Mr. Butt, when he stated that the slap incident became one of at least three factors that seem to have taken on a life of their own. These factors have been used by the mother to justify the girls’ involvement in domestic violence counselling.

[104] Despite all of these external pressures, the girls maintain a desire to visit their father and report feeling “confused” about such contrasting information relative to their experience from prior visits.

[105] I find that, although the girls’ views and preferences are consistent, they have not been independently formed.

[106] At the time of the OCL investigation and at trial, the mother maintained her view that the father had attempted to take the girls and had been stalking her.

[107] I find that the mother’s reactions were completely irrational. Although Mr. Butt did not conclude that the mother intentionally interfered with the girls’ views about the father, the events described in his report and subsequent events lead me to conclude that, at the very least, the mother’s actions were not in the best interests of the children. The mother has failed to act reasonably in accommodating court-ordered access to the father.

[108] This finding is not based on an adverse finding of credibility in relation to the mother. I accept that she believed that the father was stalking her and attempting to take the girls. However, I have heard no evidence that she was subject to any physical violence during the marriage. Even when confronted at trial with the legitimate explanations for the father’s attendance at the school and apartment building, she still maintains her beliefs. I conclude that the mother lacks insight into her irrational behaviour, which causes me concern.

[109] The events of September 12, 2014, are demonstrative of the mother’s attitude toward the father’s access to the girls. On that date, the father showed up at the mother’s apartment in accordance with a routine arrangement that had been in place prior to the summer access. Instead of sending the girls with their father for weekend access, the mother left the girls in the care of a neighbour in the apartment building. At trial, she sought to justify her behaviour by stating that it was important to foster friendships. It is clear that the mother was willing to prioritize a play date with a neighbour over the girls having quality time with their father. The refusal to send the girls with the father, combined with the accusation that he was stalking her, demonstrate that the mother is not capable of putting the best interests of the girls ahead of her animosity toward her ex-husband.

[110] The events of July 8, 2016, are also demonstrative of the mother’s attitude toward the father’s access. Although arrangements were made in advance for the father to pick up one of the girls at a pool party, the mother refused to allow the father to pick up either of them. Instead of allowing the father to retrieve the girls and sorting out the court order with the access centre during the month that the girls were in the care of their father, the mother simply refused to allow the father to pick up the girls. This was an irrational response, and indicative of the mother’s attitude throughout these proceedings.

[111] I find that the mother has interfered with the views of the girls. As a result, I give little weight to their views.

c) The Length of Time the Girls Have Lived in a Stable Home Environment

[112] The girls have lived in the primary care of their mother since 2012. The girls have remained at the same school since 2012, and are reasonably well-adjusted into the school. This stability has been tempered by the stepfather’s relocation to the Napanee area and the mother’s attempt to relocate there with the girls. This stability of the school environment has also been impacted by promises of a move to a school in Eastern Ontario.

[113] In 2014, the mother failed to obtain the father’s consent to move and/or court approval of a move prior to making arrangements for the move. When the court ordered that the girls not be moved from Hamilton, the mother moved the girls into a shelter. The girls were subsequently moved to second stage housing. Since 2014, the girls have made numerous trips to Eastern Ontario to visit the stepfather at his two residences. While the girls have remained in the primary care of their mother, they did so with limited amounts of stability.

d) Ability And Willingness of Each Parent to Provide Guidance, Education, Necessities of Life and Meet Special Needs and Corresponding Plans Of Care

[114] The needs of the girls will reasonably be attended to in either home. Both parents have the medical, psychological, academic and recreational interests of the girls in mind.

[115] I have grave concerns about the mother’s plan of care to relocate with the girls to Northbrook. The four hour drive between Northbrook and Brantford will be unpredictable and difficult, given that it would necessitate travel across the greater Toronto area during high-volume travel times, such as Friday and Sunday evenings. When this is considered in the context of the mother historically giving the girls the choice whether to go on visits with their father and/or prioritizing play dates with friends over time with their father, the plan to relocate the girls creates a real risk that regular contact with their father and their brother will cease.

[116] Unfortunately, very little evidence was called at trial regarding the mother’s plan of care, should the court refuse to allow the girls to move. The mother clearly has not put much thought into this possibility. I assume that the mother would remain in Hamilton with the girls, which would permit them to continue at their current school and under the same medical care. However, in the absence of evidence, it is difficult to assess the mother’s plan of care if the move to Northbrook is not allowed.

[117] The father plans to send the girls to the Catholic elementary school and high school in Brantford. They would be enrolled with their previous family doctor. E.M.M. would continue her treatment at CPRI. The father intends to enroll the children in counselling at Woodview, with a focus on helping them deal with fear and confusion associated with the separation and court-related conflict. He also plans on enrolling them in extracurricular activities, including gymnastics or other activities of interest to them.

e) The Permanence and Stability of the Family Units

[118] The girls have experienced significant instability in the mother’s home since 2012. The mother has acted irrationally toward the father and has negatively influenced the girls’ relationship with the father. The mother’s reactions also led to the father being deprived access to the girls for four months, in the fall of 2014 and during the summer of 2016. The father was frequently required to seek the Court’s assistance in enforcing access, which increased the conflict and tension between the parties.

[119] The relationship between the mother and the stepfather has included numerous separations; conflict over discipline of the children; and yelling and name-calling, which continues today. The stepfather stated that the marriage to the mother is on hold until she moves to Northbrook. He was not able to confirm that the relationship would continue if the court does not allow the girls to move. Their relationship is uncertain.

[120] The mother was unable to confirm whether she would remain in Hamilton if the girls were not permitted to move. This was a significant admission. The mother was unable to confirm that she would put the best interests of her children above her desire to live with the stepfather.

[121] On the other hand, the father has been in the stable relationship with the stepmother since 2011. Although it is a crowded household with eight children when the girls are present, the father and the stepmother have an excellent support network. The stepmother has taken early childhood education and other courses in order to equip her to handle the childrens’ various mental health. The girls would benefit from seeing the brother on a more regular basis.

[122] The father has a plan to permit maximum contact between the girls and the mother. The father has a history of encouraging the brother to see his mother. Although the initial access visits were rocky, I find that the father encouraged the brother to visit with his mother. The father has spoken positively about the mother and has been “secretive” about the court processes with the children. Given his past behaviour, I find that the father would be better suited to encourage a positive relationship between the girls and their mother.

f) The Ability of the Parents and Step-Parents to Act as a Parent

[123] I find that the mother has influenced the girls’ views and preferences and their relationships with their father, and has influenced how they feel about access visits. The mother has also sought to influence the views about the father held by the principal, E.M.M.’s psychiatrist, and the girls’ counsellor, despite contradictory collateral information. The impact of the mother’s influence on the girls has been significant, especially in light of E.M.M.’s diagnosed anxiety.

[124] I further find that the mother’s influence occurred in the past with the brother as well. The brother stated that the mother and the stepfather had a tendency to speak poorly about the father. This was a contributing factor in the brother’s decision to leave the mother’s house. The letter to the brother about the mother’s medical condition contained adult information that was inappropriate to share with a child. This is further evidence of the mother’s inability to filter information presented to the children.

[125] After the mother moved to Hamilton, the father had frequent difficulties with access. On average, he only saw the girls for one weekend per month. The mother gave the girls the right to choose whether to go on access visits with the father. I find that the mother also told E.M.M. that, according to the judge, she will have the right to choose whether to go on access visits when she is 12. The mother has shown a willingness to permit the children to override the court order.

[126] I find that the mother’s interference with the father-daughter relationships was deliberate. Her conduct is clearly contrary to the girls’ best interests. The mother has failed to take responsibility for any of this behaviour, which leads me to believe that this conduct will continue into the future. Given her lack of insight into her destructive behaviour, the conflict present during the last four years will continue to occur.

[127] Mr. Butt believed that removing the girls from their mother’s primary care would compromise the girls’ sensitive emotional state. However, their emotional fragility has been compromised for years by the mother’s irrational behaviour.

[128] Although the father’s household will be a busy one, it will offer stability that the girls have not had since separation. The adults in the household are loving and supportive. They speak positively of the mother, and will foster the relationship between the mother and the girls.

IX. Conclusions

a) Should the Mother Be Permitted to Move the Girls to Northbrook?

[129] I accept that the mother wishes to move to be with her new partner, whose employment was transferred to Eastern Ontario. She requires the stepfather’s financial support, although I am not satisfied that the move is necessary to meet the needs of the girls.

[130] The mother should have brought a motion to change the 2010 order. The mother took matters into her own hands by not properly informing the father of any details regarding her pending move until forced to do so because of court proceedings. She did not consult with the father in any way.

[131] At the time of the first OCL report, the clinician expressed concerns about the amount of adult conflict that the children have been exposed to. Recommendations were made to ensure that the children see healthy relationships with new partners. The parties were encouraged to refrain from exposing the children to their problems and work towards supporting one another.

[132] I find that the father has followed these recommendations. He has a healthy relationship with the stepmother; he refrains from exposing the children to the problems between the parties; and he is supportive of the children’s relationship with their mother. Although the writing on the clothing incident was an act of poor judgment that understandably caused conflict between the parties, the father and the stepmother have taken responsibility for these actions and understand that they were wrong.

[133] I further find that the mother has failed to follow these recommendations. Although she has attended counselling with the stepfather, they continue to have a relationship where angry words are exchanged. The mother has not resided with the stepfather for any lengthy period of time, and the instability of this relationship may have a negative impact on the children. The mother has also negatively influenced the girls’ views of their father and has caused unnecessary conflict between the parties.

[134] It is desirable to have maximum contact between the child and both parents, which is the most significant factor in this case. Allowing the girls to move to Northbrook would be a significant threat to the girls’ relationship with their father and brother. In light of the mother’s negative influence on the relationship between the girls and their father, the significant distance from the father will lead to further issues with access. Their relationships with their father and brother are important to the girls. It is in their best interests to maintain them.

[135] I therefore conclude that the mother should not be permitted to move the girls to Northbrook.

b) Should The Mother Continue To Have Sole Custody of the Girls?

[136] Mr. Butt was firm in his belief that the mother should not be permitted to move to Shannonville. However, he struggled with the issue of whether to place the girls in the care of their father. He was concerned about the stresses of the father’s household if the girls were added to that household. In his view, the information marginally favoured the girls remaining in the care of their mother.

[137] The sole custody recommendation in favour of the mother was made with some misgivings. The following quote from the second OCL report sent an important warning message to the mother:

The mother must realize that the childrens’ relationship with their father and brother are important to their well-being and must be nurtured and sustained. Unjustified failure by her to do so and maintain whatever court-ordered time is implemented should constitute grounds for a further consideration of a change in custody.

[138] Despite that warning from the OCL, the mother continued to interfere with the girls’ access visits and their relationship with their father. In the summer of 2016, the mother would not allow the girls to be picked up by the father, necessitating yet another motion to enforce access. When the father suggested a reasonable option for exchanging the girls, the mother simply replied “definitely not.” The mother’s poor behaviour has continued throughout these proceedings and is likely to continue in the future.

[139] It is desirable to maximize contact with both parents: Berry v. Berry, 2011 ONCA 705. In this case, the mother has impeded access and interfered with the girls’ relationship with their father and brother.

[140] Mr. Butt identified a pattern of what he called “gate closing” by the mother. This phrase was used to describe the mother’s interference with the relationship between the girls and their father. There are numerous examples of gate closing by the mother, including:

i. Planning to relocate to Eastern Ontario without advising the father.

ii. The girls being given the choice as to whether they wanted to attend court-ordered access visits.

iii. Telling the girls that it is “their choice” if they want to go for access visits when they are 12 years of age because “the judge said so”.

iv. Allowing the girls to overhear negative comments about their father.

v. Telling [E.M.M.] that her father has tried to harm himself during the marriage.

vi. Telling the girls that their father is trying to take them away from her.

vii. Telling the girls that, when they move, they will have a horse, chickens and rabbits. The mother made offers of inducements before the court order was made. The girls believe that their father was preventing them from having these things that they were promised.

viii. Crying in the presence of the girls and discussing aspects of the court case.

ix. Removing the girls from school and driving to a hotel because of an irrational fear of abduction.

x. Discussing concerns of the girls being abducted by their father via telephone to her lawyer while the girls were in the motor vehicle with her.

xi. The irrational fear of abduction and stalking leading to the mother putting the girls in counselling for domestic violence and safety planning. The theme of that counselling was that it was not safe to be around their father.

xii. Failing to give the counsellor the father’s side of the story, which included reasonable explanations for his presence at the girls’ school and the apartment.

xiii. Advising three different external sources regarding unsubstantiated allegations of physical violence by the father.

xiv. Failing to abide by the terms of the access order, which caused the father to miss a significant number of access visits with the girls.

xv. Proposing to move to a location that is a four hour drive from the father’s residence. Given the mother’s history, this plan is completely unworkable.

xvi. On September 12, 2014 the mother insisted that the girls go for a play date instead of go on and access visit with their father, who arrived early to pick them up.

xvii. Pushing a version of events concerning the stepmother’s slap of the half-brother J.D.M.’s hand, to the point that E.M.M. refused to go for a visit on September 26, 2014. Although the Facebook post was likely seen by E.M.M. in August 2014, there was no fear of going to her father’s house until immediately after court when the mother had been denied the right to move with the girls. The father did not see the girls for the next four months.

xviii. Refusing to allow the girls to go with the father from the pool party on July 8, 2016.

[141] On the other hand, the father and the stepmother support the relationship between the mother and the children. They speak positively of the mother and do not discuss adult conflict with the children. I find that the father wants the children to have a strong and loving relationship with their mother.

[142] I conclude that an order for sole custody of the children in favour of the father is in the children’s best interests. In reaching this decision, I have given considerable weight to the evidence regarding the nature of the parties’ relationship over the past several years. I find that there has been significant conflict, and the parties’ ability to work together in a collaborative manner to meet the needs of the children has been minimal. Much of the conflict has been caused by the mother’s irrational reactions, which have negatively impacted the girls’ views about their father.

[143] I share Mr. Butt’s concerns about the stressors of managing numerous children with mental health issues at the father’s home. However, I am impressed by the level-headed and calm approach of the stepmother and the father. They acknowledge and take responsibility for past mistakes, and are determined to learn from them. They have educated themselves about the children’s special needs. They have developed plans for appropriate discipline tactics, including talking things out. They work well as a team and have a solid plan that includes external supports in the form of family and agencies.

[144] I accept the mother’s evidence that she truly loves her children. However, the decision respecting custody of the children does not turn on the amount of love which she has for them. While this is an important factor, the other considerations which I have discussed above satisfy me that transferring sole custody to the father is in the children’s best interests, and tips the balance in favour of that order.

c) What Are the Arrears of Child Support and s.7 Expenses?

[145] The object of the child support provisions is to ensure, as reasonably as possible, that children are not disadvantaged by the separation of their parents, through providing fair and predictable standards of support, facilitating the calculation of support, and rendering the legal process for addressing child support issues more efficient: see Hiemstra v. Hiemstra, 2006 SCC 37.

[146] As of August 2, 2016, the father owed arrears of child support in the amount of $11,199.30. The Family Responsibility Office currently garnishes 50% of the father’s wages. FRO has also garnished any payments made by the government, including tax refunds.

[147] The father is of limited means and will now be supporting a family of eight. Since I have ordered that the father have sole custody of the girls, he will be unable to make any payments of arrears of child support.

[148] In the circumstances, I find that it is in the best interests of the children to extinguish the child support arrears, and I make that order. Although the mother is legally responsible to pay child support, she will not be required to do so unless she is employed.

[149] In addition to child support, the court has previously ordered the father to pay a portion of s.7 special and extraordinary expenses. Before making an order for payment of these expenses, the court must consider the reasonableness of the expense in relation to the means of the parents or spouses and those of the child.

[150] A list of s.7 expenses was included in the mother’s Response to Motion to Change. No evidence regarding s. 7 expenses was provided at trial, other than a passing reference to them. The mother did not explain why these expenses were reasonable. In the circumstances, I am not prepared to make an order requiring the father to pay a proportion of any s. 7 expenses.

X. Terms of Order to Issue

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

All previous temporary or final orders concerning custody, access, ancillary matters, child support, extraordinary expenses and support arrears payment for the two girls are terminated, deleted and/or varied with the following substituted paragraphs:

Custody

1. Custody of the children E.L.M.M. D.O.B. […], 2003 and J.I.M. D.O.B. […], 2005 shall be immediately transferred to the father.

2. The transfer of custody shall occur at on Friday, September 30, 2016 with the father attending St. A[…] C[…]c School Hamilton, ON to retrieve the children from the school at the end of their school day.

3. A copy of the court’s written decision shall be faxed to St. A[…] C[…]c School at (xxx) xxx-xxxx by the Superior Court of Justice to inform the school officials that custody has been transferred and that the father is authorized to retrieve the children from school at the end of their school day.

4. Principal P. and staff shall ensure the children are not released to the mother and that the children do not board the school bus so that there is no confusion as to who has custody of the children effective September 30, 2016.

5. Counsel for the mother shall obtain from the mother the children’s personal identification, including Health Cards and Birth Certificates and all medications. Counsel for the father shall arrange to retrieve these items from the office of the lawyer for the mother.

6. The mother shall refrain from discussing the transfer of the children to the father with E.M.M. and J.I.M.

7. The father shall enroll the children in counselling through Woodview for the purposes of supporting the children through the process of transference of custody. This counselling should also concentrate on fostering and improving family relationships. Such counselling should ensure the children have a balanced an appropriate understanding as to decisions reached and the reasons for them. A copy of the OCL reports and this decision shall be provided to the counsellor to aid in his or her understanding of the family context.

8. Neither party shall speak negatively to and or in the presence of the children about the other party and/or their spouse or extended family and shall encourage their spouse and/or extended family to abide by this term.

9. In the event of an emergency involving any of the children, a party with the child shall, as soon as reasonably practicable, contact the other parent and notify them of the emergency and inform them of where the child can be located.

10. Neither parent shall allow their spouses and/or extended family to use physical discipline and/or any form of restraint, including but not limited to lifting, wrestling and/or pushing when dealing with any of the childrens’ behaviours.

11. The father shall provide written authority to all professionals involved with the children to permit the mother to give input and obtain information from those professionals.

12. The parents are directed to use a web-based parent communication site to help ensure they share child-specific information.

Access

13. The mother shall have access with the regular exchanges occurring at the Thrive Counseling, an approved Ministry Access Centre through the Family Visiting Program, located at 460 Brant Street, Suite 200 Burlington, ON L7R 4B6. This shall take place every other Saturday at the earliest possible hour the facility is open until the latest possible hour the facility is open on Sunday.

14. Both parties shall cooperate in registering with Thrive Counselling by contacting the supervised access facility at 905-637-5256.

15. In addition to the regular access outlined above, the children shall be in the care of the mother at the following times for holidays and special events and the regular residency schedule is suspended:

a. The second full week of Christmas holidays each year starting on the seventh evening prior to the return to school at 6 pm until the day before the commencement of school at 6 pm;

b. Family Day long weekend each year from Friday at 6 pm until Monday at 6 pm;

c. March Break each year from the Friday the children leave school at 6 pm until the Friday prior to the commencement of school at 6 pm;

d. Easter weekend each year from the Thursday at 6 pm until the Monday at 6 pm;

e. July 1st of each year at 6 pm until July 31st of each year at 6 pm;

f. Thanksgiving weekend each year from Friday at 6 pm until Monday at 6 pm

with all exchanges occurring at the Hamilton Police Station, King Street detachment.

16. The children shall be in the care of the father at the following times for holidays and special events and the regular residency and access schedule is suspended:

a. The first full week of Christmas holidays from the time the children leave school until the seventh evening prior to the return of school at 6 pm;

b. August 1st of each year until the Friday after the first week of school each year at which time the regular timesharing schedule shall continue;

c. For purposes of clarity, each Labour Day weekend each year.

17. For the first year, if the father is receiving the children from the mother on any of the dates above, the exchange shall occur at the Hamilton Police Station, King Street detachment. Commencing in October of 2017, the police station exchanges will occur at the Tim Hortons, 8501 Regional Road 25, Milton, ON. Any 6 pm police station exchanges shall occur at 6:30 pm at this Milton Tim Hortons.

Support

18. The father’s obligation to pay child support, extraordinary expenses and arrears of support shall be terminated and there are no child support monies owing by the father to the mother. Any arrears of child support shall be rescinded.

19. The mother shall have no obligation to pay child support to the father for so long as she is in receipt of ODSP.

20. Both parties shall maintain the children on their extended medical and dental package available to them through employment or through government program for so long as the children remain entitled to support.

21. The mother shall provide a copy of her Tax Return and Notice of Assessment on an annual basis by July 31st of each year, by registered mail to the address of the father. It is the father’s obligation to notify of a change of address by email at the last known email of the mother.

Braid, J. Released: September 28, 2016