Court File and Parties

KINGSTON COURT FILE NO.: 374/09 DATE: 20160930

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Julie Patricia Simms Mark Petty, for the Applicant Applicant

• and -

Jeffrey Douglas Brown Self-represented Respondent

HEARD: August 22-26, 29-31, 2016

ROBERTSON J.

Reasons for Judgment

What the Parties Want

Applicant Mother:

[1] The Applicant mother, Julie Simms, seeks sole custody of two children, Dante Douglas Brown, born June 18, 2005 and Danica Helen Brown, born August 30, 2007. She asks for access to the Respondent father, Jeffrey Brown, every other weekend from Friday after school until Monday morning at the start of school. The request is brought by motion to change my Order dated July 5, 2011 which confirmed an earlier order for joint custody.

[2] She seeks to specify the S. 7 expenses, ongoing table child support and for arrears to be paid at the rate of $500 per month. Two relevant support orders are considered: Justice Ken Pedlar on November 4, 2013 fixed arrears, set S. 7 expenses and ongoing support and my order of September 23, 2015 which particularized those S. 7 expenses and ordered ongoing support.

[3] She asks for some ancillary orders:

(a) authority to administer the children’s RESPs;

(b) to set the total arrears;

(c) for a specific flat amount Order of extraordinary costs to be paid by Mr. Brown so that it can be managed by FRO; and

(d) for an Order that the Respondent withdraw his application for child tax benefits with Canada Revenue Agency pursuant to the Order of July, 2011. This has already been ordered.

[4] The trial proceeded for eight days by viva voce evidence from the parties and their current spouses. They agreed to file many documents. There were 100 exhibits.

Mother’s Family Constellation

[5] In addition to the subject children, Dante and Danica, now ages 11 and 9, the Applicant mother has two teenagers from a prior marriage: Tia, age 18 and Krista, age 17. They reside in the mother’s household. They have regular access with their biological father in Quebec. This trial between the parties is about their biological children, Dante and Danica. The mother has now remarried Dan Simms, a retired soldier working a civilian position at CFB Kingston. Mr. Simms has two children from prior marriages and his 16 year old daughter, Emily, lives in the Simms household. Mrs. Simms is now 44 years old and she is also employed in a civilian position at CFB Kingston.

Respondent Father:

[6] The Respondent father, Jeffrey Brown, opposes the variation of custody. In his opening statement he asked to dismiss her motion and for costs to him. He asked to find her rental property was not included in her 2015 income. On his Form 15B: Response to Motion to Change, he asked to “remove arrears of child support from Justice Pedlar’s November 2013 Order and also to remove claims for child care” with each party paying their own. He noted his retirement from Correctional Services due to a medical disability and stated his annual income is now below the Applicant’s family income. He asked the Court to retain the 50% equal residential time share and remove “final say in medical matters” from the mother to place with him.

[7] He did not bring a cross-motion but the endorsement from the trial management meeting dated February 16, 2016 notes the Respondent [Mr. Brown] is also claiming sole custody. At the beginning of trial, I tried to confirm Mr. Brown’s position. He disputed there had been a material change in circumstance. During the trial he asked for an Order for sole custody of the children to himself with alternate weekend access with Ms. Simms. I confirmed with him that he had neither appealed Justice Pedlar’s Order about support arrears nor brought a motion to amend or change it on the ground of some error. I confirmed that the Order of Justice Pedlar was now almost three years old and I would not go behind it.

Father’s Family Constellation

[8] At the time of his marriage to Ms. Simms, Mr. Brown was divorced without children from prior relationships. He is 54 years old. He is living in a common law relationship with Angela Lemus Quijano. She works part time at Sears and contributes $400 to Mr. Brown’s household. Ms. Quijano has three children from a previous union. Two are now independent, sharing an apartment in Kingston. Her youngest teenager, Rebecca, lives with the Brown household. I do not know if Ms. Quijano received spousal/child support or another source of revenue for her three children over the years or even if the older two were part of the household since the 2013 order of Justice Pedlar.

[9] Happily, all of the children in both households get along. The new partners, Ms. Quijano and Mr. Simms keep a respectful distance from the conflict. The conflict is deeply rooted between the parties.

[10] There are no real complaints about Mr. Simms or Ms. Quijano by the parties. I should clarify that some time ago, tempers flared between Mr. Brown and Mr. Simms at a court appearance before me. I remember the day clearly. My task that day was to determine the matters on my list and not to referee a budding knuckle scuff in the hallway and have it spill into my courtroom. For lack of a better description, I kicked Mr. Simms out of my courtroom and would not hear about the circumstances. I was very direct about it. At this trial, in response to cross examination questions by Mr. Brown, Mr. Simms testified about that day. He explained Mr. Brown insulted Mrs. Simms, called him a name and they argued. Mr. Brown did not dispute the facts set out by Mr. Simms. They are both big men. Mr. Brown is a former corrections employee, former parole officer with martial arts expertise. Mr. Simms is a hockey-playing soldier from Newfoundland who was not about to have his wife publicly insulted, or be browbeat by the likes of Mr. Brown. Fair to say, he was not afraid of a fight with Mr. Brown, either. I find Mr. Brown was wrong to bully Mr. Simms at court. I expected Mr. Brown to exhibit his best “church” behaviour and Mr. Simms to act as if he was standing before his commanding officer. Neither would have carried on like this in those venues and I require no less. Fortunately for all, things have calmed down. Everyone behaved in the trial. Both Ms. Quijano and Mr. Simms testified at trial. I find they both love the children and would like the conflict to end.

Background and Litigation History

[11] The parties were married for about four years. They met online, and after a short courtship married on October 9, 2004. Dante was born June 18, 2005, followed by Danica on August 30, 2007. They separated April 2008. Danica was still a baby and Dante a preschooler. The parents have been in conflict or litigation since. Essentially, the children have been the casualties of their parents discord for their whole lives. The themes of disagreement are poor communication, dissimilar parenting styles, clash of values and distrust of parental judgment.

[12] The family has often frequented the judicial toolbox for help. They had plenty of conferences, emergency motions, temporary motions, trial management meetings and administrative appearances. They were made aware of alternative dispute resources in the community to no avail. Both parties testified about their settlement attempts directly and each is out of suggestions to fix things. Current and past counsel has tried to help. There have been several comprehensive final orders about children or money. A variety of judges have had a hand in making decisions and in trying to assist this family to settle their legal issues.

[13] Mr. Brown described the court file as filling a filing cabinet and I agree. He submitted I should conclude this volume of documents demonstrated Mrs. Simms pattern of poor co-parenting. I reject his conclusion.

[14] I cannot imagine how many hours each parent has spent preparing documents, emails, being angry, going to court or otherwise distracting them from the needs of their two children. Both parents testified they have done their best to be co-operative and co-parent their two children. Both acknowledge the children are damaged. Eight years passage of time and many court orders have not reduced their level of conflict to allow the children’s interests to flourish. Both parents are fed up and frustrated with each other and the court process. Each sees profound dysfunction and risks to their children. Plainly stated, litigation and court resources have been maxed out without a peaceful and permanent resolution for Dante and Danica. A judge can only decide legal dilemmas and is not a substitute for ongoing parenting. Sometimes, court cannot fix people’s problems.

[15] The significant litigation history is:

• Final order of Justice Helen MacLeod-Beliveau dated May 9, 2009 for joint custody on the written consent signed by both parties. The order provided for child support, S. 7 expenses, medical expenses not covered by insurance to be paid proportion to their incomes, resolution of property. This outcome followed intense litigation and some emergency motions.

• Parental discord continued. Each party brought motions to change custody about a year later. One was withdrawn shortly before a scheduled hearing. That brought more dissatisfaction.

• The Office of the Children’s lawyer undertook a thorough S. 112 report. Although it was not a custody access assessment provided for under the CLRA, the parties accepted it and both still referenced it in the current proceeding. Ms. Lousanne Rode identified the issues and interview the collaterals. Dante was having troubles at school. There were lots of recommendations including counselling for the parents, a parent conciliator, and a short term communication journal until they established a relationship with a parent conciliator. It was an unflattering report card for each parent. Both parents realized the negative effect of conflict on their children and wanted to get along better. They worried for their children. They never saw a parent conciliator. Ms. Simms went to counselling. Dante has had plenty of services including a short time with a psychologist.

• On July 5, 2011, I granted a final order dismissing the mother’s claim for sole custody and confirming joint custody. This is the order the parties now wish to vary. I found there was material change in circumstances warranting a different time share since the original final order of Justice MacLeod-Beliveau of May 9, 2009. The parties each raised concerns about ongoing high conflict parenting disputes. The July 5, 2011 order allocated specific and detailed decision making. I found the best interests for the children were served by entering into a comprehensive parenting plan. In the order, I divided final education and medical decision making between the parties. In my view, a parenting plan would minimize conflict by micro detailing arrangements. It was my expectation that clarity would reduce the opportunities for misinterpretation and minimize the need for much cooperation and joint decision making until they could develop better skills. I validated the Children’s Lawyer’s report recommendations numbers 1-6. It was my view that a highly predictable parenting plan could build a foundation for greater collaboration later on. Most of the exchanges happened at school or daycare to reduce the number of face to face parental encounters. Child support issues remained contentious so I varied the earlier order, revisited the daycare costs and indicated it could be returned before me if further support issued needed adjustment.

• FRO became involved in 2012 and a new motion to change regarding child support followed. Things ramped up between the parties. On September 12, 2012, Justice Trousdale dismissed Mr. Brown’s motion for a stay of enforcement and ordered him to pay costs to FRO of $750. In November, 2012, Justice MacLeod-Beliveau set aside that order, confirmed the costs to FRO and made a child support order was set referring back to my order of July 5, 2011.

• On November 4, 2013, Justice Ken Pedlar presided over Mr. Brown’s motion to change. Justice Pedlar released exhaustive written reasons for judgment with his Order. He found Mr. Brown owed child support to Ms. Simms and fixed the arrears at $13,103.87 payable at $400 per month. He determined Mr. Brown should pay $37 per month to Ms. Simms as a child support set-off based on their joint custody arrangement. He ordered the parties to share extraordinary expenses including daycare and extracurricular activities on a pro-rated basis in accordance with their disclosed incomes. This is the support order in place at the commencement of the present motion to change.

• Justice Pedlar’s decision warned the parents to be less combative and voiced his concern about Mr. Brown’s destructive conduct and his bitter emails to the mother. He explained his finding of worrisome behavior citing specific examples of the father’s failures regarding hockey and transportation issues. He found the father moved to Lansdowne after the last order and created distance. He made significant commentary about the “toxic” conflict and at paragraph 20 wrote:

  With regards to the custody and access issues, I have a number of concerns. It is obvious from reading the affidavits, together with the attached copies of emails, plus listening to the parties at the time the motion was argued, that there is a significant failure to communicate and cooperate in a manner that is appropriate for parenting these children. In my view, it will, in the long term, be destructive to the children to continue to share equal time with them until the issue of cooperation and communication between the parents is solved. The children are left in a world of parallel parenting, rather than joint parenting. Some of the issues raised by the applicant mother give me great concern about whether the children’s best interests are in fact being addressed adequately.

• Two different orders by two different judges in the current litigation round asked the Office of the Children’s Lawyer, [OCL], for an updated report. Both parties consented. I endorsed that in my opinion, the court would be greatly assisted by the OCL and noted this was a high conflict matter. Justice Minnema later endorsed: The self-represented father feels he has no choice but to attempt to call the 10 and 8 year old children at trial to get their views and preferences. The OCL’S assistance re representation would be of great assistance. Both pleas were rejected by the Children’s Lawyer.

• On June 23, 2014, at an urgent motion, the parties agreed to meet with Dr. Yates. I ordered Mr. Brown to administer Dante’s medication in compliance with the direction of Dr. Yates. Mr. Brown indicated he would retain a parent co-ordinator and the mother agreed to participate and so the motion was dismissed without prejudice. The costs endorsement included: $50 for a medical note. She [the mother] needed to do so because the father was unwilling to commit to her that he would administer the medicine.

• On June 3, 2015 I heard another motion mostly about disclosure, choice of school and dealt with confirmation of Dante’s diagnosis of ADHD.

• On June 30, 2015 Justice Trousdale, on motion, ordered a summer time share adjustment, ordered Mr. Brown to give his phone number and dealt with telephone access while the children were in the care of the other parent.

• Justice Minnema made an order clarifying the nature of an appearance on July 15, 2015 and fixed some costs against Mr. Brown. They were back in court September 9 th . Justice Trousdale dealt with matters and set a litigation schedule, some financial issues and a temporary custody motion.

• On September 23, 2015, I presided over the contested child support motion with respect to S. 7 expenses. At that time, I found the S. 7 expenses to be $2,959 for the children, being $2,064 for childcare and the balance to be hockey, literacy and skating. Further, for the purposes of the Guidelines , I found the parties were to share the expenses equally. For purposes of appeal, I detailed my findings of Mr. Brown’s income in 2014 at $69,972, found his then current financial statement showed an income of $58,449.96. I found Ms. Simms’s income in to be $51,633 and ordered him to pay child support on a set off basis. I found on the evidence Ms. Simms’s income was $61,643 for tax purposes but deducted the split pension credit amount from her line 116 notice of assessment pursuant to the Child Support Guidelines, Schedule III, S. 14 and so for Guideline purposes determined her income to be $51,633.

• On December 9, 2015, I made an order about holiday access.

• None of the Orders were appealed.

[16] Since 2011, communication between the parties about the children has been mostly via email or text as the “temporary” solution. A large number of email exchanges were filed as exhibits at this trial. I find Ms. Simms approached matters in a businesslike manner providing information and keeping Mr. Brown informed of relevant, child focused information. She testified she had undertaken counselling to develop a more professional approach. No report was tendered but I find that since the order of Justice Pedlar, her emails have been more child/issue centric. I find she now rarely reacts to his negative emails. I find some of Mr. Brown’s emails show a capacity to be business-like and child focused. Many of his emails at times also were unnecessarily critical of her, argumentative, insulting, demeaning, evasive or plain rude. He shows disrespect for her decision making. A communication journal is not an excuse to hurl abuse. His emails are exhausting to read and often just sidestepped issues. He testified he has tried to police himself about derogatory emails and to use less combative language. It is insufficient.

[17] His frustrating indirect message style is illustrated when he would not commit to Dante attending a hockey tournament because it was too far in advance. Mrs. Simms needed to confirm Dante’s participation and to pay the cost. A serious example is that despite many emails, he would not confirm to Ms. Simms if he was actually administering Dante’s medication for his ADHD this past summer. She was legitimately worried for Dante and concerned of the potential health consequences if the medication was suddenly discontinued. Exhibit 59 for instance shows the mother asking him point blank if he was administering Dante’s medication since July 1, 2016. It was in the context of plenty of evidence he was not doing so. His response was “I have replied to your e-mail in great detail, I will not repeat myself again please act accordingly!”

[18] I find he did not answer her. I find even after cross-examination at this trial, he has evaded the answer.

Issues for Determination

[19] I find the issues for determination are as follows:

• Has there been a material change of circumstances to permit variation of my Order of July 5, 2011?
• If so, what parenting arrangements are in the children’s best interests?
• What are the incomes of the parties since the Order of Justice Pedlar of November 4, 2013?
• What are the table amounts to be paid and by whom?
• What are the proper S. 7 expenses and the proportionate sharing between the parties?

Material Changes in Circumstances

[20] At the start of this trial, Mr. Brown submitted that was no material change of circumstances that would allow the order to be varied. The trial management endorsement of Justice Minnema identified his request for custody and also, mid trial, he asked for sole custody which presumes his acquiescence to the threshold material change since the order. For purposes of appeal, I find on the evidence there are material changes of circumstances since the last orders. They include: problematic parent behavior including ongoing chronic conflict, distrust and communication problems that negatively affect the children. The early orders anticipated parental counselling and negotiation of a comprehensive parenting plan to parallel their development of better communication to jointly parent effectively. This did not occur. I find material changes in circumstances in Dante’s behavioral challenges including his diagnosis and treatment of ADHD, Danica’s medical issues, their age, development and the needs of the children with the passage of time.

Legal Principles

[21] The Divorce Act, R.S.C. 1985, c. 3, s. 17(5) states that:

Before the Court makes a variation order in respect of a custody order, the Court shall satisfy itself that there has been a change in the condition, means, needs or other circumstances of the child of the marriage occurring since the making of the custody order or the last variation order made in respect of that order, as the case may be, and, in making the variation order, the Court shall take into consideration only the best interests of the child as determined by reference to that change.

[22] Upon finding a material change of circumstances, the Court must embark on a fresh inquiry to determine what is in the child’s best interests. Gordon v. Goertz, [1996] S.C.R. 27.

[23] The fundamental principles for determining custody and access have remained the same for years as enunciated by the Supreme Court of Canada [1] . The facts determine the outcome [2] . Decisions are decided on proof, not feelings or historical perceptions. The judge finds the facts based on properly tendered evidence, weighs competing plans, applies the law and makes a decision about the future care of children. The test is the best interests of the child from the child’s vantage point.

[24] The standard of proof in this trial is the ordinary civil standard of balance of probabilities. Finding a fact is proven on a balance of probabilities means that it is more likely than not to have occurred. The burden of proof in a civil matter lies on the party asserting the claim. Both parents seek orders for the custodial arrangement they proclaim is in the best interests of the children. For this reason, I find both parents bear an evidentiary burden in establishing the best interests. For purposes of appeal, I find the burden of proof lies upon the party endeavoring to establish a given allegation of fact.

[25] Credibility is a function of truthfulness and reliability. Most of the evidence was un-contradicted. When assessing credibility in custody/access cases, I look at what the parents did and not just what they now say they will do. This helps determine reliability. I find the mother is credible. Her claim, plan, story and actions match. She followed through. The mother did not exaggerate when she had the chance in her testimony. For example, she admitted several parenting mistakes including Dante playing a teen video game called “Five Nights at Freddies” at her home in the care of an older sibling.

[26] Custody and access cases require the judge to evaluate short-term and long-term plans. This explains why the earlier order could be made on the expectation the parties conflict would subside. There was a short term acceptance of this behavior but it was not a long term expectation that high conflict would cloud the entire childhood of Dante and Danica. Best interests entails more than parental love and a vow to act as a parent thinks is best during their exclusive time with the children. Best interests involve considerations of human behavior, family relationships and good judgment. The pleadings, initial affidavit of custody/access and parenting plans are valuable tools to measure a parent’s ability to identify, assess, execute and adapt a strategy to meet the needs of their child. The Divorce Act promotes maximum contact with both parents only if it is consistent with the best interests of a child . [3] There is no guarantee.

[27] I find Mrs. Simms has presented a thorough and reasonable parenting plan where she addresses the children’s needs. She gave a specific plan for access. I find she is willing to facilitate contact with Mr. Brown and his family. She testified she would support the children participating in Mr. Brown’s religious beliefs. I find she has done so in the past. She has a positive relationship with medical and school authorities and has acted as the children’s advocate for services. She gave examples where she had accessed help for the children as needs arose including Pathways when Dante was younger, a psychologist and even a vision test for Danica when she had reading troubles. She has demonstrated a pattern of identifying problems, and taking action to find solutions. She has done so in a way to include Mr. Brown although I note she has improved over time with the help of a counsellor to focus her communications. I urge her to continue. She commits to keep Mr. Brown advised of children’s issues. I find she has done so. She acknowledged Dante’s need for close supervision. She said she would support the children celebrating different traditions in both homes to address some of the religious controversy. Her plan includes strategies to support the children’s biracial culture, extended paternal family connections, counselling, and an action plan for Danica’s orthodontics needs and her bladder problem. She was trying to support Danica academically. She indicated she would still go to a conciliator or parent co-ordinator to try to work with Mr. Brown.

[28] I find Mr. Brown has missed key features in his plan such as decision making, a plan to remedy their communication shortfalls, a specific plan for access, counselling for Dante, or even a simple concrete plan to address his concern about the children’s hair care. He did not address their relationship with their siblings or maternal extended family. I find he has not gone to counselling, and declined to complete the mediation intake despite his explanation otherwise. He has not followed through with a parent co-ordinator as undertaken or counselling as recommended by the OCL report and Judges. While he loves his children dearly, I find his love is overshadowed by his distaste for the mother. I find he undermines her authority and Dante is a child who cannot afford to set his own boundaries. I find Mr. Brown has overtly influenced Dante to question the mother about financial matters in an order. I find Dante resisted counselling and hockey in consequence of influence by the father but I do not find he did this on purpose. He continues to lack insight. The problem with a lack of insight is you cannot see it. Justice Pedlar’s reasons were clear. Mr. Brown needed to change his attitude and I find he has failed to do so. I find his approach to joint custody is adverse to his children’s wellbeing.

[29] I find on the evidence that he has renounced joint custody. These parents clash values, lack trust and do not communicate well. Their children are not able to successfully endure their disconnected parenting styles. Mr. Brown has demonstrated he is not inclined to change his views to fit into a compatible regime for them. I find the children cannot be expected to adjust to their parent’s different views of their world. Their needs require me to make a choice between the competing plans. I find their best interests are served with an order for sole custody to Mrs. Simms.

[30] An example of Mr. Brown’s rejection of joint custody is his management of a sexualized picture drawn by Dante. There was much testimony was about this. Dante is now 11 years old. Without hesitation, I can say he is a talented and detailed artist and I appreciate the parents’ concern about Dante’s level of sexual interest.

[31] Danica found a picture at Mr. Brown’s house. She brought it to Ms. Quijano who testified Dante told her he was drawing what he had seen at Mom’s house. [There was no objection to this evidence]. Ms. Quijano said there is no opportunity to see pornography at her home as they do not have internet. She testified there was internet at her children’s apartment. For clarity, there is no suggestion her children are a negative influence on the children. She showed the drawing to Mr. Brown. He chose not to advise Mrs. Simms about the serious problem so they could jointly address the issue as parents. Instead, he made an appointment with Dr. Hefferon to discuss it. Mr. Brown concluded the children were exposed to graphic pornography or inappropriate conduct at Mrs. Simms’ home. He brought his concern to the court’s attention. Mrs. Simms had to obtain disclosure of the picture through the court. There was delay. She was correctly upset about the picture and Mr. Brown’s action. She testified that Dante was punished at Mr. Brown’s home for the picture and described him weeping all night. She worried Dante would be scarred by Mr. Brown’s approach to the issue. She also testified that Dante had told her he had seen something awry at Mr. Brown’s home. She made the comment in the context that her son blamed the other parent and not out of any suggestion that Mr. Brown was encouraging Dante to act badly. I find there is no credible evidence that either parent exposed Dante to sexualized material. I find Mr. Brown mishandled this situation and should have discussed it with Mrs. Simms as a joint parent so they could deal with it.

[32] Perhaps the most disturbing aspect of the picture incident is that it foreshadows potential problems. The detail in the picture is significant. Dante has a history of poor impulse control and trouble focusing his attention. The picture took time to draw and clearly indicates an early interest in sexual acts. This is not a typical 11 year old boy’s interest in seeing a naked lady. He needs boundaries and the parents need a joint action plan. Both parents want him to have strong morals. The parents need to prepare for his teen years. Where he learned about sex is less critical than how they can assist him with appropriate development. Mr. Brown, even is his opening statement, after the benefit of a report by Dr. Hefferon, contested argued motions about the drawing and conferences, continues to accuse the mother of “repugnant exposure of our son to graphic pornography at her household (as told by Dante himself)”. The evidence does not support his submission. His unilateral approach to problems is unhealthy for the children.

[33] The Divorce Act does not define best interests. The considerations are unlimited and individualized for each child’s needs. [4] It is hard to pinpoint every reflection encompassing best interests but in reaching my determination, I have considered:

• the relationship between Dante and Danica to their parents, siblings, step-parents and extended families;
• the status quo - success, duration and history of current arrangement;
• current orders;
• current and proposed custody/access arrangements along with the benefits and risks to the children of the order requested;
• the conduct of the parents only as it impacts their ability to parent Dante and Danica;
• the willingness and sensitivity of both parents facilitate each child’s relationship with the other parent and/or other persons (grandparents, for example);
• race, religion, psycho-socio educational issues raised;
• which arrangement will minimize conflict for the children;
• the age, maturity and level of development of each child;
• each child’s views and preferences;
• the details and feasibility of the parenting plans promoted by each parent;
• the emotional wellbeing, mental and physical health of each child and each parent along with the plans to address shortcomings;
• the needs of each child and ways for the parents to address plans for education, socialization and medical matters of each child over the long and short term, including each parents history of involvement in decision making and action plan;
• the tools available to the family to enable access;
• the experience of each parent including ability to communicate and cooperate;
• the prognosis the parents will obey rules in an order;
• the commitment of each parent to change where needed;
• whether maximizing contact to each parent is desirable or presents concerns for the children: Divorce Act, s.17(9):In making a variation order varying a custody order, 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 and, for that purpose, where the variation order would grant custody of the child to a person who does not currently have custody, the Court shall take into consideration the willingness of that person to facilitate such contact.

[34] I find the children’s prognosis for a functional life outcome will be enhanced by minimizing parental conflict and having one parent as the decision maker. The parties have different parenting styles and disagree on some big and some small parenting issues such as:

• Hair care, hygiene,
• sharing of clothing - are the children transferred in unsuitable attire?
• sleepovers – Mrs. Simms promoted them; Mr. Brown disapproved of them. While his decision is understandable because he did not know the parents, he made no effort to investigate the propriety of the event.
• Social opportunities on another parent’s time—could Dante attend the hockey team banquet on a Sunday scheduled to be with Mr. Brown
• counseling
• bedwetting
• exercise and mandatory participation in extracurricular activities such as hockey after the child commits to a team
• participation in certain school events at such as Halloween
• medical treatment

Children’s Needs

[35] At the time of the 2011 order, the report of the Children’s lawyer identified problematic parent behaviors and made recommendations. The family history, bad parental dynamics and children’s needs were outlined. It warned that high levels of conflict and ill feeling between parents increased risks of poor adjustment in the children.

[36] In short, it identified that the couple were vested in attributing the cause of the dispute to the other and they demonstrated very little ability to find solutions in a child friendly way. It cautioned that the arrangements for joint custody required negotiation about the week and therefore good communication was essential. Dante was already having struggles in school and slept poorly. Danica was still in preschool.

[37] The report fairly noted flaws in each parent’s approach. It specifically stated Mr. Brown was sarcastic and used derogatory terminology to Ms. Simms, including a reference to her as a “Jungle Jumper”. The parties are a biracial family. Mrs. Simms has two other children from her previous marriage who are also biracial. The report identified Mr. Brown’s lack of insight: “It is of critical importance that Mr. Brown examines his communication practices and obtains help of a third party in developing effective communication strategies.

[38] He advanced issues about raising biracial children. The report addressed this. Mr. Brown’s mother and sister were interviewed. Both women were very supportive of the children and also of the mother. For instance, they said Ms. Simms asked them for advice about tending the children’s “black” hair. They saw this as information seeking, not as racially motivated.

[39] Since the last order, the mother has undertaken counseling, upgraded and improved her communication strategy. She testified she had tried to approach Ms. Quijano as a bridge between them. Mr. Brown has not taken the advice of the OCL clinician or Justice Pedlar to seek professional help. He is stuck.

[40] At the trial, he presented as angry, evasive, argumentative and frequently tried to over speak the witnesses or me. He ignorantly referred to Mr. Petty as a “shyster” by email and in court. He tried to re-litigate old issues. He was described as distrustful and suspicious by doctors. He presented as difficult to the school and professional community. This is a theme in the medical and psychological records. Dr. Buchanan’s notes were quite unflattering about his presentation to her.

[41] Since the order, Dante has faced many problems. He was diagnosed with ADHD in 2013 by Dr. Yates. Mr. Brown questioned the diagnosis. Specialist Dr. Hefferon confirmed the diagnosis. The doctors met with Mr. Brown and reviewed the diagnosis and plan. In his report of October 7, 2013 at [exhibit 27], Dr. Yates wrote: “Although both parents are quite concerned about their son’s well-being, the issue in the future is initiating treatment with one or the other parents not being aware of, or giving informed consent for treatment.” Dr. Yates reviewed details of his earlier assessment. He wrote: “since the parents have joint custody but are unable to communicate with each other directly, there is an issue with timely treatment of the children unless one or the other parent is able to make treatment decisions on behalf of both parents.

[42] So, even though Ms. Simms had that ultimate power for medical decisions clearly enumerated in an order, it was not enough. Dr. Yates was not comfortable to simply take direction from Mrs. Simms. There was ongoing conflict through emails and actions about treatment, drug therapy and even about what Dr. Yates had recommended.

[43] In his June 2014 report, [exhibit 30] Dr. Yates raised concern that Dante’s treatment plan was in jeopardy indicating the father was not administering the medication. Dr. Yates recommended the drug, Concerta, and noted the terrible insomnia Dante was suffering. To satisfy Mr. Brown, he made a referral to Dr. Hefferon, a child behavioral pediatric specialist for a second opinion. To ensure compliance, the school ultimately administered the medication to Dante. This had its own set of issues because there was a delay between administering the drug and its effectiveness. The school and Dante had to deal with this. He had a terrible school year. Much later, Dante did receive the Concerta and responded well. Dr. Hefferon confirmed its propriety. Dante cannot get that school year back.

[44] Numerous experts, school officials, doctors and service providers in his life have played an instrumental role in supporting Dante’s development. He had a psycho educational assessment [Exhibit 52]. He now has an individual education plan (IEP) which notes in spite of medication he is easily distracted and unfocussed. A number of recommendations were made including counselling to help with peer relationships. The parties agreed to file medical reports, notes and clinical observations.

[45] Dr. Hefferon identified the presenting issues in his April 14, 2015 letter as ADHD, Insomnia and parental discord. He noted Mr. Brown was suspicious and critical of the diagnosis and use of medications. He described the father as initially refusing to give Dante his medication.

[46] Dante is a challenging child who needs clear direction and a firm set of expectations and limits. He has already suffered some social and educational consequences of his behavior and ADHD. He is described as “at risk for developing oppositional defiance disorder”. He was suspended several times from school with risk of expulsion. Reasons for suspension included persistent defiance, disruption and inappropriate behavior. He challenged authority and at times was uncontrollable. The circumstances were serious and disturbing. The teachers and school officials tried to help him. Both parents were worried. He is now on the cusp of his teen years when a child’s job is to challenge parental authority as independence is asserted. He cannot afford to have parental authority diminished in any way.

[47] I find Dante’s interests are best served in a peaceful environment where his academic and social skills can be nurtured. He needs strategies to overcome behavior barriers and the parents have not been able to do this jointly. Their battle is destructive to him. He continues to need medical, educational and community resources. I find Dante requires a parent who can advocate for him in a positive way to maximize availability of help in a timely way. He is currently doing relatively well at school. Mrs. Simms described the current regime as the children living in two separate silos and testified they are discouraged from sharing what goes on the Brown household with her. She testified: “Children are not deigned to keep secrets”. I agree. Their worlds seem completely independent except for intersections of conflict.

[48] As a former guard and parole officer, Mr. Brown testified he has a broad knowledge of individuals with poor coping strategies who ended up as his clients. There was some evidence he was presenting himself as an expert or “know it all”. I do find he is well read about ADHD and other issues. His experience with inmates has given him a legitimate fear of what can go wrong. He also worried about physical side effects such as heart problems from Dante’s medication. While his concerns were legitimate, given his own family history and working knowledge, I find he inhibited the timely treatment of Dante. Literally hundreds of emails passed between the parties about treatment and medication. Orders issued yet concerns abounded that Mr. Brown interfered with the medication. Doctors Yates and Hefferon both confirmed it.

[49] Although the father was entrusted with final say in educational matters, the mother has taken a more positive and active role at school. She arranged for Dante’s medication to be administered by the school. I am very impressed with the efforts of the teachers and principal to accommodate Dante and his parents. The father is also interested in the children’s education but he communicates mostly through emails. The mother has taken on the main role of problem solver.

[50] The mother organized exercise and extra-curricular activities like hockey for the children. Dante has a lot of energy and needs physical outlets. He enjoyed hockey with success, even getting a “hat trick”. She and Mr. Simms embraced Dante’s hockey participation and got involved in team management. I find this was wise because it allowed a purpose for them to be on site to deal with issues as they arose. Mr. Brown rarely participated. He testified hockey wasn’t his sport. He was interested in martial arts, Dante had tried it but didn’t embrace it as a sport.

[51] On the evidence, I find Mr. Brown required the Simms household to effect transportation and pay for the activity as a condition of him allowing Dante to join. Although Mr. Brown denied this was a condition, I find his emails and actions confirm otherwise. I find he created a barrier to Dante’s participation and that Mrs. Simms overcame it at personal and fanatical cost to assist Dante. For instance, Mrs. Simms dislikes driving on the 401. This was true, even in their marriage where Mr. Brown would drive her first set of children to access with their biological father in Gatineau. For a while Mr. Brown moved down the 401 to Lansdowne. This created a transportation impediment, intensified by her driving fear. So, stepfather Mr. Simms, got up Saturday morning before the crack of dawn on Mr. Brown’s weekends, drove from Kingston to Lansdowne [40 minutes] and back to have Dante at the rink by 6:30 a.m. so he could make the team. When Mr. Brown did attend hockey on an infrequent occasion, I accept the evidence of Mr. Simms that he offered to step out of the change room so Mr. Brown could dress Dante for the game and Mr. Brown declined. I found Mr. Simms to be polite, respectful, and that he did not usurp the role of father. Mr. Brown testified he shared the transportation because he stayed in town late on a Thursday to accommodate Dante’s hockey practice at the inconvenience of his family. I do not equate the two commitments.

[52] As identified in Justice Pedlar’s reasons, paragraphs 21-23, Mr. Brown took the position that hockey was for Mrs. Simms own benefit, not Dante. Justice Pedlar found that the issue of hockey became a power struggle between Mr. Brown and Ms. Simms and found Mr. Brown uncooperative. I heard evidence from the parties and spouses. I find Mr. Brown discouraged Dante. Mr. Brown repeated he was not an impediment but I find that is not enough. Eventually, Dante chose to quit mid-season. Mrs. Simms wanted him to finish out his team commitment for the season but Mr. Brown’s philosophy was not to require Dante to do something he did not have to do. Their parenting styles conflicted. This became a sore spot. The parents were not able to work it out. Again, this evidences Dante paying the price for the different parenting philosophies. As a child with behavior issues, he needed to be encouraged where he excelled.

[53] There is a dispute about who attended all the football games practices but I find is that the mother organized the extracurricular activities including football and hockey for Dante and gymnastics for Danica. I find Mr. Brown did support the track and field event and did attend football. I accept the mother’s evidence that on occasions, he brought Dante late for a practice or game.

[54] Dante suffers from sleep disturbance. The father attributed this to Dante watching the movie “Nightmare on Elm Street” at Mrs. Simms’s home. The original report of the OCL [exhibit 22] notes sleep pattern issues even in 2011. The doctors have reviewed the connection with Dante’s ADHD medication and made suggestions and connected medication to sleep. I find Dante did not watch the movie as told by Mr. Brown to Dr. Hefferon. I do find Dante played a teen video game with a sibling. The video game scared Dante and did further interfere with his sleep.

[55] Certainly, an exhausted child will not perform well in school. I find the father minimized the history and seized any chance to further condemn Mrs. Simms.

[56] Danica has reading/literacy issues. Both parents supported her in a summer camp for the French immersion stream to help her. She has been re-streamed to the English program. They both agreed to this. There was very little evidence about Danica.

[57] Much of the evidence related to the identification, diagnosis and treatment of Dante’s ADHD. I find the mother made appropriate inquiries, followed advice and struggled to assist him. Both parents were sad to see him flounder at school. Mr. Brown had carriage of the education issues but I find he did not undertake this duty. For instance, while he said he preferred to find a non-medicated route for treatment, he made no proposals for a smaller class or a private school as he preferred and did not investigate the options for cost. He criticized Ms. Simms and deflected the daily issues they had managing Dante. Mr. Brown’s material indicated he had fewer problems with Dante than Mrs. Simms or the school. If that was the case, he should have shared his techniques for managing Dante. The school was having a tough time coping with him.

[58] Mr. Brown is a hard to serve client. He presents as rights oriented and not interests based. He raised Charter issues at trial when no one disputed his right to his belief. Although I confirmed his right to secure a second opinion at an earlier motion, no one was stopping him. He was suspicious, difficult and entrenched. In the meantime, he made the road for Dante much harder and longer than it should have been. For example, Dante was referred to a psychologist to help him with behavior strategies. His behavior towards the other classmates was worrisome. Mr. Brown was dissatisfied with Dr. Buchanan. I find he discouraged Dante from continuing. He made no other arrangement or even a suggestion for whatever counselling he thought would be better.

[59] Mr. Brown explained he complained about the professionalism of Dr. Sue Buchanan, the psychologist and he made a big deal of Ms. Simms emailing Dr. Buchanan expressing her embarrassment about the pending complaint. I find Ms. Simms did nothing wrong in emailing the doctor.

[60] She was entitled to ask for the notes about her child. This is not only because she is a joint custodian but because Justice Pedlar had addressed disclosure in paragraph 26 of his decision. At the time of the note disclosure, she had serious and legitimate concerns that Mr. Brown was not administering Dante’s medication and was thwarting Dante’s counseling. In other words, she believed Mr. Brown’s conduct was adversely affecting Dante’s health. At the time, Dante was spiraling down in school. Mr. Brown’s emails to her at the time were intimidating, angry and without concrete suggestions for alternative approaches. I find that when the notes revealed an uncomplimentary statement about the Brown household from Dante to the doctor, Mr. Brown overreacted. This was information recorded contemporaneously by her in her clinical notes, not a finding or diagnosis in a report. She is entitled to document the file as she sees fit. Mr. Brown made a professional complaint to her professional board and then appealed it when the dismissal of it was not to his liking. In the meantime Dante’s attitude towards counselling suddenly changed. He was discouraged from accessing professional help at a time he was drowning in behavior issues at school. Dante reported to the mother that he felt he was being “manipulated by her and Dr. Sue”. I find Mr. Brown discouraged Dante’s counseling with Dr. Buchanan, and undermined Mrs. Simms parental decision making, adverse to Dante’s interests.

[61] Danica is 9 years old. She still wets the bed. Ms. Simms approach was to take her for a medical checkup, seek expert advice and purchase a recommended device which will wake her up. I find she advised Mr. Brown of the issue, her plan and her remedy.

[62] She consulted him. Mr. Brown has not followed through and did not suggest alternatives except use of pull ups and time. Ms. Simms has arranged orthodontic treatment for Danica. Mr. Brown denied being aware of it but I find the exhibits confirm otherwise. Mrs. Simms took Danica to the eye doctor to determine if her vision interfered with her reading. She is the parent who has tended to administrative appointments such as dental checkups. I find she is attuned to their needs and takes appropriate steps to solve issues.

[63] Between now and adulthood the children’s social, medical and academic needs must be the priority to maximize a good life outcome. Negative influences must be curtailed. The children both need to develop superior dispute resolution skills and they are not doing so in the current joint custody arrangement.

[64] Gordon v. Goertz, p. 61 requires the Court to examine the existing custody arrangement and relationship between the child and the custodial parent . The parties have a week on/week off schedule. They agree the children’s best interests are served by reducing the other parent’s time to every second weekend plus holiday sharing. They disagree about which parent’s time should be reduced. They each confirm the chronic ongoing conflict and litigation fatigue. Neither suggests additional time will change the conflict.

[65] There is no doubt that the children are connected to parents, the step-parents and step-siblings. They are loved by both extended families and have a particularly good relationship with paternal Aunt Tracy and Grandmother Helen Brown who reside in Windsor. They enjoy vacations in Windsor with the Brown family. These positive relationships must be encouraged.

[66] The children are also connected with Ms. Simms’ parents who live locally. A theme in the proceedings has been the allegation by Mr. Brown that Mrs. Simms’ family is racist. I find there is no credible evidence of racism by the Simms family. They were not called as witnesses by either party.

[67] Although not on the original witness list, I accepted an affidavit by the paternal grandmother, Mrs. Brown senior because it was not opposed, there was no dispute about its contents and she had health/travel issues. Essentially, it is a two paragraph letter sworn as an affidavit. Ms. Simms testified she had a good relationship with Mr. Brown’s extended family, gave examples and planned to continue the children’s relationship with them should she be granted sole custody. She viewed them as also important role models to assist her raising biracial children.

[68] I find Mrs. Brown Senior credible and even handed in her short affidavit as she had been described during her interview with the OCL clinician. She essentially noted the unfortunate dilemma. At the time of the original order, the OCL report indicated Mrs. Brown Senior had no issues with [Mrs. Simms] parents and went to their home for dinner. She stated her experience with Mrs. Simms’ parents were that they were not racist. Mr. Brown had a chance to observe Mrs. Simms parenting of biracial children before he married her, let alone father two children because she already had two biracial children. There is no evidence her parenting views about racial issues has eroded.

[69] The very short affidavit of Mrs. Brown Senior is relevant for what it did not say. It was an opportunity to confirm Mr. Brown gave her Dante’s medicine this summer and that she administered it during Dante’s vacation there. There was no hint that Mrs. Brown would fail to responsibly to follow instructions for Dante’s needs. That was the crucial issue she could address. She is a doting grandmother, loved by her grandchildren, respected and trusted by her former daughter-in-law. Mr. Brown also wished to file an affidavit of his sister, Tracy. She exchanged emails with Ms. Simms regarding the administration of Dante’s medicine and it was apparent from reading them that Tracy Brown was unaware of the medication requirement. I declined to accept her affidavit at trial because there was no good reason to. The affiant was not listed on the witness list approved by Justice Minnema. A witness at trial must be available for cross examination even if the evidence is provided by affidavit. I offered Mr. Brown the option to allow her to attend later in the trial and I even explained it was possible to seek an order to give evidence by phone but Mr. Brown did not pursue it. I did not read the affidavit.

[70] Mr. Brown attempted to tender Ms. Quijano’s evidence by affidavit. She was scheduled for a full day of evidence on Mr. Brown’s trial management form. Justice Minnema addressed her potential need for an interpreter as raised by Mr. Brown. He noted the arrangements must be made by Mr. Brown. Instead, Mr. Brown tried to file an affidavit by Ms. Quijano in the course of his own evidence in chief. I refused. He next tried to have one of Ms. Quijano’s children attend to serve as interpreter. I declined.

[71] Ms. Quijano testified. Mr. Brown confirmed she works in English and speaks English but stated she would be more comfortable testifying in Spanish. She testified she read some of the email exchanges, all of which I note were in English. She also sees his texts. I found no trouble understanding her. Her communication was easily followed. Mr. Petty argued that the affidavit attempt was just a ploy to control Ms. Quijano’s evidence and avoid challenge through cross-examination. I decline to make a determination of this because no one asked her if indeed that was a plan.

[72] She presented as a caring woman of deep faith. She was polite and seemed kind. She described their household as happy and harmonious. The Brown children are close to her three children. They have friends at their church. She outlined their home policy about Christmas and Halloween. She said Halloween was against her faith describing “witches getting together, worship the devil and do sacrifice”. In that sense, she corroborated Mr. Brown’s view of Halloween as a pagan event. He objects to their participation in Halloween events. He did not challenge Mrs. Simms testimony that their divergent religious views were discussed before their marriage. Mr. Brown knew her two older children participated in Halloween, Santa, Easter Bunny, tooth fairy etc. because he lived with them. He had a preview of her parenting style before his marriage to her.

[73] Mrs. Simms described Halloween as a chance for children to scavenge candy from their neighbors and dress up. I found her to be respectful of Mr. Brown’s belief system. It appears that the children participate in school Halloween events alternate years. Her complaint was that when Mr. Brown unilaterally chose to tell Danica at age seven, for instance, there was no Santa Claus, he took away an element of magic. She was not challenging his belief in the birth of Jesus Christ. Ms. Quijano corroborated telling the children that there was no Santa Claus. She testified they [she and Mr. Brown] explained the real truth about Jesus so they would know the difference. Ms. Quijano confirmed they celebrate Christmas with the exchange of gifts. When Mr. Brown told Dante there was no Easter Bunny, the child returned to Mrs. Simms claiming it was the worst Easter ever. The parents should have developed a joint policy to address their beliefs to minimize any confusion or disappointment for the children. Their differing systems of beliefs were plainly obvious from the start. The court is not going to pick one for their children. That is not a legal issue.

[74] Ms. Quijano disputed the children are dirty when they go to school from her home. She stated she is the one who tends to Danica’s hair and at age 9, Danica does not do a good job of her own hair care.

[75] Ms. Quijano said there had been 10 years of litigation and she had been in the relationship for 8 years. She said Mr. Brown had tried to co-parent but Ms. Simms was not receptive. She said there was conflict all the time.

[76] She gave her opinion [again no objection and her evidence were unchallenged] that the litigation and conflict were not healthy for the children and this was the reason for all of their problems. She is strongly aligned with Mr. Brown. For example, she described Mr. Brown’s attendance at the hockey games and practices far more frequently than all of the other witnesses, including Mr. Brown. It was clear she wanted to present him in good light.

[77] Ms. Quijano also testified about Mrs. Simms leaving the children with a sixteen year old while Mrs. Simms went away for a weekend. Ms. Quijano’s testimony is that Mr. Brown talked with Ms. Simms and then called the CAS. This contradicts the evidence of Mrs. Simms and Mr. Brown. He contacted CAS and did not contact Mrs. Simms or her mother to verify who was minding the children. His erroneous conclusion prompted a child protection investigation. This could easily have been avoided for the children. It was unfounded. His failure to communicate with Ms. Simms to confirm the arrangements before he contacted authorities is a further example of his rejection of a joint parenting regime.

[78] Mrs. Simms has also overreacted in the communication disputes. She reasonably believed she had a holiday sharing arrangement with Mr. Brown for Thanksgiving 2015. She told the children of the plan. Her belief was in writing as evidenced by her testimony and corroborated by an exchange of clear emails with Mr. Brown [Exhibit 68]. Mr. Brown took the children contrary to her expectation in the arrangement. She called police who interviewed the children to check on their wellbeing. Mr. Brown gave no contrary explanation in his testimony. I accept her evidence on this issue. While I find her resort to police was unfortunate and upsetting for the children, I find Mr. Brown knew she expected to have the children as per her written acknowledgment. I find this to be an example where she tried to co-parent and negotiate reasonably with him in advance. I find he thwarted her and demonstrated disinterest in negotiation with her. The children suffered.

[79] The Divorce Act is actually silent about the children’s views and preferences. The court considers the child’s wishes in determining the child’s best interests about decisions that affect them. It is only one factor in the equation and not determinative of best interest regardless of age. Generally, the older the child, the greater the weight. The children are susceptible to influence. Both parents described the children as happy in their homes.

[80] Two different judges requested re-involvement from the Office of the Children’s Lawyer in this round of litigation. They declined. The children have been interviewed by a variety of professionals including doctors, a psychologist, teachers, educational assessor, police officer, child protection worker, and family members. This provides a glimpse into their world. Additionally, both parents gave their impression of the children’s wishes. In general, they enjoy both homes.

[81] The professional, clinical misgivings relate to parental conflict and needs of the children. In this context I am unsatisfied that additional evidence of the children’s independent wishes and preferences is required. This is a case less about what they want and more about what they need and how those needs can be met. Dante has voiced modest concerns to each parent about life in the other’s home. There was little information about Danica’s independent views. The evidence is that the children have fun in both homes. Each parent has made commentary about something negative a child described in the other’s home. The bigger issues such as being left by Mrs. Simms with inappropriate caregiver or her enabling Dante to access graphic pornography have been vetted by the CAS personnel, doctors or police. On the balance of probabilities, I find these complaints to be without evidentiary foundation. The smaller complaints are normal. The young age and embroilment by the children in the conflict concern me.

[82] A transition from week about to alternate weekend as requested by each parent will be a disruption to the children. Ms. Quijano described some current difficulties for the children transitioning between the two homes. When they return to the Brown home, they are different, quiet, and forget their manners. She stated they need time to unwind and be themselves. Both parents have complained about the quality of clothing the children wear on transition day. Mrs. Simms said the children go to school in dirty clothes and unbathed on the transition day from Mr. Brown’s residence. She said they were upset by this and showered as soon as they come home. Ms. Quijano and Mr. Brown complained about the state of Danica’s hair upon transition and criticized Ms. Simms ability to cope with “black hair”. Dante is an 11 year old athletic child and Danica at 9 still wets the bed. She uses pull-ups at Mr. Brown’s home. These are children who need to go to school clean. Mr. Brown and Ms. Quijano deny the children go to school dirty from their home. I accept as corroboration of Mrs. Simms position the email sent by Mr. Brown where he indicates he will not do her laundry.

[83] I find an arrangement where the children rarely go to school as a form of transition will alleviate the opportunity for hygiene to be a tool of irritation. There seemed to be no dispute about clothing on the other days. The transition should therefore occur on a Sunday evening and not directly to school on a Monday morning. The parents can help them through this. The time sharing routine has been the norm for their lives. Although the time share has been consistent and predictable, I find it has not been stable. I accept the evidence of Ms. Quijano that the children struggle with transition. The parental conflict has been continuous.

[84] Although a man of strong religious faith, I find Mr. Brown dishonors his children’s mother whenever he can without mercy or forgiveness towards her for whatever slight he sees. The parties differing parenting styles seem to be growing broader. As the children get older, I find they require one set of rules. Dante, in particular needs structure and certainty.

[85] The mother made the appointments for dentists, most of the doctors and undertook the executive management role of a parent. The father resisted some appointments and she was left to organize non-emergency appointments on her time. She was working full time, had a small business and the care of two other children. The father was on a medical pension, seemingly available by day yet gave no explanation why he did not undertake the routine parental chores. He was very critical of the mother’s hair care for the children. There was considerable evidence about “black hair” and his opinion about poor resources for quality black hair care in Kingston. Several emails were filed about this too. The father was of the view the children should be taken to Watertown or Syracuse where better stylists were available. For part of the time, he lived near Lansdowne, close to the border. So, why didn’t he do it? Ms. Quijano testified she accessed YouTube videos on black hairstyles, was self-taught and explained the positive effect on Danica of a cute hairdo. Why didn’t Mr. Brown take on the leadership role in this minor issue as a joint custodian? He did take Danica for a hairdo in Detroit at times but if he didn’t like the way Mrs. Simms dealt with it on a regular basis or the resources available here, he should have stepped up.

[86] For purposes of appeal, I find joint legal custody is where parents share the legal authority over the major decision making for the child. This works where the parents share the same beliefs, and a good history of co-operation. The evidence of historical communication between these parents is miscommunication. Modified orders for joint custody and recommendations for professional supports to enhance co-parenting and communication have not worked. The OCL report, my prior order and the reasons of Justice Pedlar stressed the need and expectation for improvement in communication. It has not happened. The children cannot wait any longer.

[87] Sole custody is where one parent has the legal authority to make the major decisions for the child. When parents disagree, after consulting each other, the parent with legal custody makes the big decisions regarding education, religion and non-emergency health care. I find sole custody to the mother will assist the children in accessing third party agencies such as schools or doctors who need clear direction from one parent. She will still consult Mr. Brown. I find she has done so in a reasonable way through emails. He will still be able to access information directly from the third party providers.

[88] I cannot craft a custody regime that repairs the poor partner choice and bad dynamics between the parties and the ensuing consequences to their children. Mr. Brown described them as a bad match. That may be true but it is no comfort to Dante and Danica. Years of their childhood have been affected. Earlier orders have tried to support a joint custody regime without success. Any order short of “no access” allows the children’s world view to be destabilized. Whether custody is joint or sole, good communication, trust and similar values are keys to success. The access parent is a valued member of the parenting team. I find Mr. Brown has failed to do the necessary work to curb his animosity. I urge him to do so now so he can positively influence the children without devaluing the mother.

[89] I find the current time share is untenable for the children. Justice Pedlar described the parenting arrangement as parallel parenting. It is often used in high conflict cases where parents are competent but just don’t get along. To be effective, a detailed micro managed plan is necessary. They did not follow through with a parent co-ordinator or mediator. I find the mother approached the mediator as recommended and she participated in the intake. The father did not follow up. Similarly, he undertook to organize a parent co-ordinator. He did not. He explained in his testimony how this was Ms. Simms fault as she would not agree to define all of the issues for either professional avenue to be accessed. I reject his explanation.

[90] They are living in tangential worlds compartmentalized in two different households. The earlier order expected the parents to develop a detailed parenting plan to articulate how their children would be raised right down to how the children will be exchanged, educated, activities, etc. They anticipated conflict from the beginning. He is a devout Baptist and she is an atheist. They didn’t do the work to sort their beliefs out for their children. Then I reiterated their need to address their differences and also granted authority over specific issues of education and medical care. They again chose not to do the work their children needed. They did not hire a lawyer or social worker to act like a mediator/arbitrator on little parenting decisions such as holidays, activities, money. I have no expectation that they will do so now but I did reconsider it.

[91] I find that the parties’ ability to communicate is limited with no change in sight. This trial has been taxing on both. Both parents have flaws. The arrangement I find is best for Dante and Danica leaves one parent in charge of decision making with consultation with the other parent. I find Mrs. Simms to be the parent who is most even handed, fair and mindful of the needs of the children. She has demonstrated her skill as executive manager who will access and negotiate with local service providers in a positive way. I find she will promote an environment where the children can maximize a relationship with both parents, their step families, extended families, friends and community.

[92] Custody is a responsibility and not a right. She will have to encourage the children to explore both family beliefs. For example, Danica likes going to church. Ms. Quijano confirmed Danica has friends there. Mrs. Simms needs to support Danica’s interest regardless of whose weekend is on the schedule. This does not mean she must convert. I am certain Mr. Brown would be pleased to have her for a couple hours for Sunday school if she wants to go. If the parties have trouble co-operating, I have every confidence Ms. Quijano and Mr. Simms could work out the details. For clarity, I am not suggesting an all-day event every Sunday.

[93] Mr. Brown through access will continue to have influence over the children, particularly Dante. As noted in the OCL report, Dante needs a role model and Mr. Brown, as an African-American Canadian, as he self-identified, has a particularly solemn role to help Dante reach manhood. I am concerned his lack of insight, bitterness and disappointment will be transferred to Dante. I urge him to seek the counselling that has been recommended previously. To be clear, just going to counselling is not a material change in circumstance warranting an increase in access. If he consistently engages in counselling, benefits from it and is able to contain his distaste for Mrs. Simms, then she should increase access to include mid-week.

[94] An example of his influence over Dante relates to money issues. Mr. Brown did not dispute the mother’s evidence that he told Dante about the support arrangements and made comments to the effect Ms. Simms was taking his family’s money. While I agree financial literacy is an important life lesson, Mr. Simms failed to tell Dante the reason he owed so much was because a judge determined he underpaid. The ongoing order of Justice Pedlar was only $37 per month. The $400 monthly payment was towards fixed arrears owing by Mr. Brown as a result of his pattern of underpaying child support based on his actual income. Justice Pedlar found that Mr. Brown reported his 2011 income for support purposes as $76,000 when it was $106,260. Essentially he took an unauthorized loan from the children. On top of this, Mrs. Simms was fronting the S 7 expenses. It is wrong for Mr. Brown to tell Dante that Mrs. Simms is taking money from his family. It is the contrary. He has a self-induced cash flow problem. Sharing misinformation with Dante is unhealthy and undermines his relationship with his mother. The child cannot control the guidelines. I find Mr. Brown used Dante as a messenger of his dissatisfaction.

[95] Access is more than an absence of harm. It must positively align with best interests. These children are not only biracial and bi-religion. I find they are being “bi-parented” in two separate mind sets. Mr. Brown is intolerant to the mother. Devaluing her diminishes the children. They are “half” her. He picked her to be the mother of his children. I did not assign her as their mother. It is too late to complain about it now. I find he underestimates the damage he causes. Similarly, Mrs. Simms found herself a man with very strong views. Neither hid their faith. Now they have to make it work. It is not too late for the parties to make important and necessary personal modifications to help their children.

Child Support: Legal Principles

[96] Mrs. Simms seeks to set child support pursuant to the Guidelines as a set off from 2013 to the present, fix the arrears and adjust S. 7 expenses. Justice Pedlar reviewed the S. 7 expenses and determined sharing proportionate to incomes. The 2013-2016 expenses are daycare, and modest activities. In 2015, I determined the parties should share the S. 7 expenses equally. The parties could not agree on the math. FRO needed hard numbers. The parties had even more conflict. I find that although Mr. Brown currently earns more than Mrs. Simms, the S. 7 expenses should be equally shared for 2014-2016.

[97] Upon the change to sole custody for Mrs. Simms, Mr. Brown shall pay the full guideline table support. His ability to contribute to S. 7 thereafter is somewhat limited although the expenses are reasonable, necessary and in the children’s interests. Upcoming S. 7 expenses include orthodontic costs not covered through insurance. This was agreed upon in the earliest order of Justice MacLeod-Beliveau. Given Dante’s behavior issues, I find he will require before and after school supervision for years to come. Daycare costs for him are reasonable even at his age even if there is no tax benefit.

[98] Mr. Brown disputes Ms. Simms’ income. His position is line 150 of her tax return should be used without deduction for the split pension income she claims on her return arising from Mr. Simms election to share his military pension. There is no dispute Mr. Simms earned this military pension before their marriage although this is of little relevance at law. Mr. Brown also alleges she has failed to properly include rental income and professional business income. He denies she has met her disclosure obligations under the rules and court orders.

[99] Mr. Brown seeks a reduction of his support from the set off approach as shared custodians and relies on Contino v. Leonelli-Contino, 2005 SCC 63, [2005] 3 S.C.R. 217 for relief. He mentioned the case but did not explain how it would result in a different order than a set off in his financial circumstances.

[100] Both want the Guidelines applied if they are successful in an order for sole custody.

[101] Neither filed a current statement from FRO which would have clarified the obligations and arrears. For this reason, I cannot fix and amalgamate current arrears on the basis of prior orders with credits for payments received through FRO. I can find the incomes, S. 7 expenses and percentage of contribution.

[102] Section 15.1 of the Divorce Act provides that a Court may make an order requiring a spouse to pay for the support of a child of the marriage. The proportionate sharing of S. 7 expenses was determined in several earlier orders.

[103] Section 16 of the Child Support Guidelines establishes the process to calculate annual incomes subject to adjustments under Schedule III.

[104] I find the following incomes for child support calculations:

Mr. Brown: 2013: $74,440; 2014: $69,972—as found by me at the motion in 2015. I confirm it again; 2015: $55,817

[105] Until his 2016 Notice of Assessment is available, I calculate his obligation to pay ongoing child support for two children based on his 2015 income. He shall serve his full tax return, attachments, notice of assessment and any reassessment upon Mrs. Simms by mail and by email. He shall adjust the quantum if required, based on his line 150 income subject to any proper adjustments in the schedule. If he underpaid, he will owe the difference. Any overpayments will be credited to outstanding arrears and if the arrears are paid in full, then to outstanding costs orders.

[106] I find Mrs. Simms’ income:

For 2013, $54,694; For 2014, $51,633; For 2015, $53,491

[107] At the motion in 2015, I found Mrs. Simms’ 2014 income in to be $51,633 after adjustment by deducting the split pension credit amount from her line 116 notice of assessment pursuant to the Child Support Guidelines, Schedule III, S. 14. I ordered Mr. Brown to pay child support on a set off basis. The order was not appealed.

[108] Both parties filed Divorce Mate calculations which should provide a more precise calculation of the after tax consequences of child care and fitness credit. I find they each produced calculations that were at odds with their evidence and neither could explain to me why. Additionally, Mr. Brown provided a separate supplemental calculation asking me to take Mrs. Simms’ gross rental income and has calculated a separate payment she owes to him. I reject his calculation.

[109] The 2013 order of Justice Pedlar required Mr. Brown to pay $37 per month to Ms. Simms for the support of their two children plus a proportionate share of S. 7 expenses This was based on their line 150 income tax returns from 2012 and a simple set off. There was no order requiring Mr. Brown to pay any child support for step children Tia and Krista who lived with them during their marriage. The order relates only to Dante and Danica.

[110] My order of September 23, 2015, determined the 2014 S. 7 expenses to be $2,959 for the children. Although Mr. Brown’s income was higher than Mrs. Simms, I ordered the parties to share the S. 7 expenses equally. For purposes of appeal, I found Mr. Brown’s income in 2014 was $69,972 and that his then current financial statement showed an income of $58,449.96. I found Ms. Simms’ income to be $51,633 and ordered him to pay child support on a set off basis.

[111] I found on the evidence Ms. Simms’ income was $61,643 for tax purposes but deducted the split pension credit amount from her line 116 Notice of Assessment pursuant to the Child Support Guidelines, Schedule III, S. 14. For Guideline purposes I determined her 2014 income to be $51,633 per Exhibit 18. I find her 2015 income for child support calculations is $53,491.

[112] The Child Support Guidelines promotes a fair and consistent approach for child support. The Brown children shared time equally between the parents. S. 9 of the Guidelines applies.

[113] S. 9 recognizes that the total cost of raising children may be greater in shared custody situations than in sole custody situations so authorizes the court to examine the budgets and actual expenditures of both parents in addressing the needs of children. This helps to determine whether shared custody has resulted in increased costs globally.

[114] There was no challenge about the actual S. 7 expenses consisting of child care, and activities. I have reviewed the exhibits, orders and evidence. I find Mr. Brown’s share of S. 7 expenses for the two children are:

2013: $1,292 as ordered by proportionate share, per order of Pedlar, J 2014: $1,479.50 per order of September 23, 2015 2015: $1,659 2016: total expenses estimated at $3,874 for daycare, football, gymnastics, any reading camp, any orthodontic expenses not covered by insurance. Mr. Brown’s estimated share is $1,937

I find he should make an ongoing S. 7 contribution at $160 per month in 2016 to be adjusted if he overpays or underpays.

[115] The quantum of child support is determined by taking into account: (a) the amounts set out in the applicable tables for each spouse; (b) the increased costs of shared custody; and (c) the conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought.

[116] A simple set-off between the table amounts payable by each parent is the starting point under paragraph 9(a). The three factors set out in section 9 all factor into the exercise of judicial discretion; no single factor prevails. There is no presumption in favoring the full table amount of child support or a reduction. The weight given to each of the three factors is fact driven.

[117] In Contino v. Leonelli-Contino, 2005 SCC 63, [2005] 3 S.C.R. 217, at paras. 40-51, the Court is required under s. 9, to take the financial situations of both parents into account, determine the table amounts and commence with the simple set-off amount. It must be followed by an examination of the continuing ability of parents to meet the needs of a child, especially in light of the fact that many costs are fixed. There is broad discretion to modify the set-off amount under paragraph 9(c) to consider “other circumstances”.

[118] Exercising discretion still means considering evidence about the resources and needs of both the parents and the children and not just picking a number. Financial statements and/or child expense budgets are needed for a proper evaluation of paragraph 9(c). I have examined the budgets and actual expenditures of both parents in addressing the needs of the children to determine whether shared custody has resulted in increased costs globally. I have reviewed each party’s evidence about the standard of living of the children in each household and their ability to cover the costs. I have considered which parent has paid for extra child expenses that perhaps do not qualify as S. 7 expenses. The guidelines anticipate both parents spend money on the children. I have specifically considered the objectives of the Guidelines that require a fair standard of support for children and fair contributions from both parents.

[119] The combined income in the Simms household is more than the combined income in the Brown household. Mr. Brown only filed a current financial statement mid-trial at my insistence. I ruled I would not hear evidence of his household standard without a current financial statement. He did not provide any separate budget for the children or evidence of unmet expenses for the children’s needs. His statement lists a $400 monthly contribution by Ms. Quijano but his tax return, which lists her total income, indicates her contribution is only a portion of her income.

[120] Mr. Brown’s contribution to the support of Ms. Quijano and his step-child is unclear. When he and Mrs. Simms separated, Mr. Brown did not pay child support for her two older children whom he step-parented.

[121] The parties’ incomes are relatively even. The main household differentiators are the incomes of their spouses, family debts and Mr. Brown’s monthly payment towards child support arrears fixed by Justice Pedlar. Mr. Brown stated these are very recently paid but the evidence on that point was confusing. Hopefully he is correct as this will assist his cash flow. Use of Mr. Brown’s discretionary income was an issue identified way back in the OCL report as a source of friction between the parties. Their lifestyle choices including his decision not to pay proper guideline support historically when the cash flow was available to him and their current partner’s income and work patterns continue to yield different financial consequences in the households.

[122] He appears to have more income and less debt this year than last year. Since the last order, Mr. Brown has filed a Consumer Proposal [Exhibit 96] to assist him with his debt obligations. His signed and attached a financial statement to the Consumer proposal shows a monthly income of $4,383 child support payments of $400 for total monthly expenses of $4,002 with a monthly deficit of $62.

[123] The sworn financial statement in the trial, exhibit 98, sworn August 26, 2016 shows a monthly income of $4,737.29 and monthly expenses of $4,832.23. He also notes his common law spouse earns $400 month at Sears. He gave no evidence how her financial contribution was assessed. He includes proof of his truck payment for his 2010 Ford F150 purchased showing a total advance to him of $44,641.46. He notes outstanding court costs of $2,500 and “alleged arrears” of $7,000 a small income tax balance and a $300 MasterCard debt. His income and expenses have risen since last year.

[124] As child related expenses, he notes $100 monthly for lunches/ field trips etc., a modest expense for gifts and entertainment and $100 for children’s clothing and activities. I am not sure if this includes a contribution for Ms. Quijano’s daughter living with them. His assets are mainly his truck and 2 other unlicensed vehicles, namely a 1969 Mustang and a 1969 GMC pickup valued at $100 each. There was no dispute about his financial statement and no cross-examination on his debts or assets. I accept his statement.

[125] I find no special child related budget issues that warrant an award of child support different that than the table guidelines set off. I have looked at all the factors in S. 9. The details of Ms. Quijano’s income, expenses and even the number of children within that household in the years since my last child support review were not provided. The Legislation objective is maintenance of children and not household property equalization or back door spousal support.

[126] Justice Pedlar’s 2013 order resulted in Mr. Brown paying $37 per month. There is insufficient evidence that Mr. Brown’s financial problems are at all related to raising the children or meeting their needs. He did not file a financial budget for the children. There was no evidence about why his partner only works part-time. The reason the court prefers child budgets, although not a formal requirement is to better appreciate how parents manage their children’s financial needs. For instance, if one parent buys all the big kit items and winter gear, this is relevant. It matters who makes actual expenditures. Mr. Brown tendered very little evidence about his family spending habits for the children. Mrs. Simms paid the S. 7 expenses up front. She is not a bank. Mr. Brown is in chronic arrears of contributing to S. 7 expenses, even statutory ones such as daycare after Justice Pedlar specifically addressed it and after I specifically dealt with S. 7 particularizations in 2015.

[127] I find Ms. Simms has a part-time second job as a photographer. Section 16 and the Schedule III adjustments indicates that the Court should look to net business income but can impute additional income if the obligor unreasonably deducts expenses from income. I find that Ms. Simms’ deductions of her business expense are reasonable and should be deducted from her professional income. I accept her financial statement and tax returns. Her business statement was unchallenged in cross examination. She explained the details in her testimony and Mr. Brown was not successful in convincing me that any of her rental or business expenses should be added back to her income. She testified that essentially she turned a hobby into a small business and works to earn money to buy camera equipment. I find she claimed her professional income on her tax return.

[128] Similarly, I find her net property rental income was included in her financial statement and calculation of income for tax purposes. Mr. Brown’s position is that the gross rent and gross professional income should be added to her income. This is wrong. It is possible for a court to add back expenses but I find her filings to be balanced and reasonable. For example, in exhibit 18, part 5, she shows her gross annual photography business income to be $3,772.50 and clearly shows the expenses resulting in the modest net income claimed of $1,269.63 She claimed no meals, entertainment, business fees, trips, conventions, rent, salaries, phone, or car expenses. Her rental income summary is similar and reasonable. I find she has met the onus as a self-employed person to clearly demonstrate that her deductions from her gross income are reasonable to reach a net that was included in her tax return.

[129] Mr. Brown did not testify whether he makes any similar efforts to supplement his income or if he is even eligible to do so given the nature of his income as a disability payment. I make no negative finding about this.

Split Pension Deductions

[130] Schedule III of the Federal Child Support Guidelines outlines adjustments to income. Adjusting a split pension between spouses is a specific adjustment enumerated in the legislation. S plit - pension amounts deemed to have been received from a spouse under paragraph 60.03(2)(b) of the Income Tax Act should be deducted pursuant to section 14 of Schedule III to determine income for child support calculations. [5]

[131] The Pension Income Splitting Program allows tax payers to share up to one half of their eligible pension income with their spouse or common law partner for tax purposes. The net result of this benefit reduces a family’s household tax liability and creates more money within the family. The by-product of this program artificially increases the gross income of the recipient spouse without an actual transfer of funds. This must be backed out when calculating income for child support. For example, Mr. Brown elected to split his pension income with Ms. Quijano. The 2015 tax return Notice of Assessment for Mr. Brown found at Exhibit 17 accepts his line 150 income as $55,817 with deductions from total income of $12,997 for a net income of $42,820 for tax purposes. He elected to split his pension in the amount of $12,898 with Ms. Quijano. I find the proper income for Mr. Brown in 2015 for child support is $55,817. The legislation was amended in 2007 to specifically address the calculation of child support where a person is splitting a pension with a spouse. The section was drawn to the attention of Mr. Brown. Further, my order of 2015 specifically addressed this. Despite this, he continues to submit Ms. Simms has failed to include income. I find he is wrong.

[132] By deducting the split pension income from Mrs. Simms per the Schedule , the net effect is to make it tax neutral. I accept the submission by Mr. Petty with respect to the income of Ms. Simms.

Result

[133] The Applicant mother, Julie Simms, is granted sole custody of Dante Douglas Brown, born June 18, 2005 and Danica Helen Brown, born August 30, 2007.

[134] The Respondent father, Jeffrey Brown shall have access to the children every other weekend from Friday after school until Sunday at 7:00 p.m.

[135] The weekends shall be congruent to current schedule enjoyed by Tia and Krista to allow the siblings weekends together.

[136] The Respondent shall pick up the children at school on his access Friday and he shall deliver them to the home of the mother Sunday evening at 7:00 p.m.

[137] If his weekend falls on a PA Monday, he may extend his weekend until Monday at 7:00.

[138] For clarification, the Applicant, Julie Simms, shall have the right to make decisions relating to the children’s health care, treatment, assessment and education. These rights and responsibilities shall include and not be limited to the following:

a) The right to decide which medical and other health care professionals will be involved with the children;

b) The right to make and take the children to all appointments respecting the children’s medical and health care treatment and assessment;

c) The right to decide all issues and sign all consents relating to children’s medical health, treatment and assessment and medication. This shall include the right to sign all consents required to carry out school related psycho-educational assessments.

d) The Applicant mother shall have the right to decide the extracurricular activities that the children will be involved in, taking into consideration the views and preferences of the children and of the Respondent. The consent of the father to the children’s participation in activities chosen by the mother shall not be required.

e) Neither party shall discuss with the children or with another party in the presence or earshot of the children, any child support issues related to the parties or the children.

f) The parties’ communications through email shall not be read by the children. Each party will promptly respond by return email to the email of the other. The parties shall exchange information regarding the children’s care, developmental milestones, activities, appointments, medical or otherwise, and any requests to access. The parents shall share any documents pertaining to the children by scanning the document and then sending it to the other parent. The parents shall not rely on the children to transport documents or messages through the parents.

g) The Respondent is encouraged to engage in a counselling program to improve his communication skills with respect to the Applicant. Should he do so for a period of six months, at least biweekly, and provide to the mother proof of his attendance and participation in counselling, then in addition to alternate weekend access, his access may be extended to include each Wednesday from after school until return to school on Thursday.

h) The children may travel outside of Canada for vacation, hair care or shopping purposes with either parent. Should a passport be required for the children, the parties shall cooperate with each other in providing the necessary information and consents to make the application. The mother shall keep the passports at her residence and make them available to the father as required, whereupon he shall return them to the mother.

[139] Holiday access is an exception to the regularly scheduled access.

[140] For Thanksgiving 2016, regardless of the schedule, the Applicant mother shall have the children for Thanksgiving from Friday after school for the entire Thanksgiving weekend.

[141] The parties are encouraged to negotiate holiday sharing and special occasions. If the parties do not come to an agreement in writing, the following access shall prevail:

(a) If the Christmas holiday access is not agreed to in writing by November 25th, commencing in 2016, in even years, the Respondent father shall have the children in his care from December 23 at 1 p.m. until 1 p.m. Christmas Day. In odd numbered years, the father shall have Christmas day at 1 p.m. until December 27 until 7 p.m.

(b) March break is that period of time commencing Friday after school until Sunday before the start of school. If the parties do not enter into a written agreement for the division of March break by January 15th of each year, on even numbered years the Respondent father shall have the children from the last day of school until noon on Wednesday and on odd numbered years, he shall have the children from noon on Wednesday until the Sunday before they are scheduled to return to school at 7.

(c) The Respondent father shall have the children for Easter weekend in odd number years commencing Thursday after school to be returned Monday at 7 p.m. The mother shall have the children for the Easter weekend in even numbered years.

(d) Commencing 2018, the father shall have the children for Thanksgiving weekend from Friday after school to Monday at 7 p.m. The mother shall have the children for odd numbered years.

(e) The parents shall advise each other by email within one day of learning of any special activities or events that arise for either child during the time when the children are scheduled to be with the other parent. They shall make reasonable efforts to allow the children to attend these activities or events unless they had previously scheduled other special activities or events. Each party shall use reasonable efforts to accommodate the children’s wishes in these circumstances as expressed directly by the children to the parent with whom the children are scheduled to spend the time in question.

(f) Both parents are at liberty to attend scheduled school events and extracurricular activities whether or not they occur during their parenting time.

(g) There shall be no restrictions placed on the children with respect to personal items, toys, sports items, clothing or gifts that they wish to take with them between the residences of their parents. Should the children wish to take a gift, toy, piece of sports equipment or article of clothing, they shall be permitted to do so without the intervention of the other party.

(h) The Respondent shall have two weeks of summer access with the children. Should he participate in communication counselling as set out in this order, he may enjoy an additional week. The parties shall exchange summer access proposals by April 30 of each year. If they do not reach an agreement by May 10, the Respondent will have July 8-July 22 each year.

[142] I find the following incomes for child support calculations:

Mr. Brown: 2013: $74,440; 2014: $69,972 2015: $55,817

Mrs. Simms: For 2013, $54,694; For 2014, $51,633; For 2015, $53,491

[143] Commencing November 1, 2016, and monthly thereafter, the Respondent, Jeffrey Brown, shall pay to the Applicant, Julie Simms, for the support of their two children, Dante born June 18, 2005 and Danica born August 30, 2007, $829 per month based on his 2015 income of $55,817.

[144] From January 1, 2015 - October 31, 2016, the Respondent Jeffrey Brown shall pay to the Applicant Julie Simms for the support of their two children, Dante born June 18, 2005 and Danica born August 30, 2007, the sum of $35 per month based on an off-set of their 2015 incomes which are found to be $55,817 for Mr. Brown and $53,491 for Ms. Simms.

[145] Upon exchange of notices of assessment and income tax returns for 2016, the quantum of support will be adjusted for 2016 if required.

[146] From January 1, 2013- December 31, 2013, the Respondent Jeffrey Brown shall pay to the Applicant Julie Simms for child support of their two children, Dante born June 18, 2005 and Danica born August 30, 2007, the sum of $285 per month based on an off-set of their incomes which are found to be $74,440 for Mr. Brown and $54,694 for Ms. Simms.

[147] From January 1, 2014- December 31, 2014, the Respondent Jeffrey Brown shall pay to the Applicant Julie Simms for child support of their two children, Dante born June 18, 2005 and Danica born August 30, 2007, the sum of $268 per month based on an off-set of their incomes which are found to be $69,972 for Mr. Brown and $51,633 for Ms. Simms.

[148] The order of Mr. Justice Ken Pedlar dated November 4, 2013, requiring the Respondent, Jeffrey Brown, to pay arrears at the rate of $400 per month continues until all arrears from any order are paid in full. For clarity, any new arrears in consequence of this order shall continue to be paid at the rate of $400 per month until paid in full.

[149] The Parties shall exchange their full income tax returns and notices of assessment or re-assessment each year as of June 30 each year so long as either child is entitled to child support. Exchange shall occur by email and by ordinary prepaid mail. The 2016 quantum of table support and S. 7 expenses will be adjusted if required and annually thereafter. If he underpaid, he will owe the difference. Any overpayments will be credited to outstanding arrears and if the arrears are paid in full, then to outstanding costs orders.

[150] The Respondent, Jeffrey Brown shall pay to the Applicant as S. 7 special and extraordinary expenses the following sums:

a) For 2013, $1,292

b) For 2014: $1,479.50 per order of September 23, 2015

c) For 2015, $1,659

[151] 2016: I estimate the S. 7 expenses to be shared as $3,874 for daycare, football, gymnastics, reading camp, any orthodontic expenses not covered by insurance. Mr. Brown’s estimated share is $1,937.

[152] Commencing January 1, 2016, the Respondent, Jeffrey Brown shall pay to the Applicant 50% of the special or extraordinary expenses related to the children. Commencing January 1, 2016, the Respondent shall pay $160 per month on account of the ongoing S. 7 expenses. These shall be reviewed and adjusted annually as of June 30 th of each year with a credit towards any outstanding arrears being given to him if he overpays and if the arrears are paid in full, then to outstanding costs orders. Any underpayment towards his equal share of S. 7 expenses shall be deemed to be additional arrears.

[153] Effective January 1, 2017, the special and extraordinary expenses shall include day care, dental or orthodontic expenses not covered by insurance, literacy expenses for Danica and other proper S. 7 expenses.

[154] Commencing January 1, 2017, the Respondent, Jeffrey Brown shall pay to the Applicant 50% of the special or extraordinary expenses related to the children. Commencing January 1, 2017, the Respondent shall pay $125 per month on account of the ongoing S. 7 expenses. These shall be reviewed and adjusted annually as of June 30 th of each year with a credit towards any outstanding arrears being given to him if he overpays and if the arrears are paid in full, then to outstanding costs orders. Any underpayment towards his equal share of S. 7 expenses shall be deemed to be additional arrears.

[155] Arrears shall be credited and adjusted for any payments made through FRO.

[156] If any matter ancillary to implementing this order arises within 30 days, I will address them. The parties require leave of the court to bring any other motions.

[157] Unless the order is withdrawn from the office of the Director, Family Responsibility Office, it shall be enforced by the Director, and amounts owing under the order shall be paid to the Director, who shall pay them to the person to whom they are owed.

[158] If the parties are unable to reach an agreement for costs by October 28, 2016, the Applicant shall serve the Respondent by email and ordinary prepaid mail written submissions of no more than 5 pages attaching a Costs outline, Bill of costs and offers to settle per the Rules by November 10, 2016.

[159] The Respondent shall serve the Applicant by email and ordinary prepaid mail his written submissions of no more than 5 pages attaching a Costs outline, Bill of costs and offers to settle per the Rules by December 1, 2016. Reply submissions by the Applicant may be filed within 7 days thereafter, limited to 2 pages in length.

[160] Costs submissions must include a summary of the outstanding orders for costs to date.

Madam Justice Cheryl Robertson

Released: September 30, 2016

[1] Van de Perre v. Edwards, 2001 SCC 60, [2001] 2 S.C.R. 1014 at paragraph 13.

[2] Gordon v. Goertz, [1996] 2 S.C.R. 27, 134 D.L.R.(4th) 321 per McLachlin J. (as she then was) at para 49:

The law can be summarized as follows:

1. The parent 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.

2. If the threshold is met, the judge on the application must embark on a fresh inquiry into what is in the best interests of the child, having regard to all the relevant circumstances relating to the child's needs and the ability of the respective parents to satisfy them.

3. This inquiry is based on the findings of the judge who made the previous order and evidence of the new circumstances.

4. The inquiry does not begin with a legal presumption in favour of the custodial parent, although the custodial parent's views are entitled to great respect.

5. Each case turns on its own unique circumstances. The only issue is the best interest of the child in the particular circumstances of the case.

6. The focus is on the best interests of the child, not the interests and rights of the parents

7. More particularly the judge should consider, inter alia :

   (a) the existing custody arrangement and relationship between the child and the custodial parent;

   (b) the existing access arrangement and the relationship between the child and the access parent;

   (c) the desirability of maximizing 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 that parent’s ability to meet the needs of the child;

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

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

   (h) the existing custody arrangement and relationship between the child and the custodial parent.

[3] McLachlin J. (as she then was) articulated the best interests test in Young v. Young, [1993] 4 S.C.R. 3, 108 D.L.R. (4th) 193 at paragraph 206:

The ultimate test in all cases is the best interests of the child. This is a positive test, encompassing a wide variety of factors. One of the factors which the judge seeking to determine what is in the best interests of the child must have regard to is the desirability of maximizing contact between the child and each parent. But in the final analysis, decisions on access must reflect what is in the best interests of the child.

[4] MacGyver v. Richards, [1995] 22 O.R. (3d) 481 (ONCA) para 27 “Clearly, there is an inherent indeterminacy and elasticity to the “best interests” test which makes it more useful as legal aspiration than as legal analysis. It can be no more than an informed opinion made at a moment in the life of a child about what seems likely to prove to be in that child’s best interests. Deciding what is in a child’s best interests means deciding what, objectively, appears most likely in the circumstances to be conducive to the kind of environment in which a particular child has the best opportunity for receiving the needed care and attention. Because there are stages to childhood, what is in a child’s best interests may vary from child to child, from year to year, and possibly from month to month. This unavoidable fluidity makes it important to attempt to minimize the prospects for stress and instability.”

[5] Federal Child Support Guidelines (SOR/97-175)

14 If a spouse is deemed to have received a split-pension amount under paragraph 60.03(2)(b) of the Income Tax Act that is included in that spouse’s total income in the T1 General form issued by the Canada Revenue Agency, deduct that amount.