CITATION: Mitchell v. Mitchell, 2016 ONSC 8083

NEWMARKET COURT FILE NO.: FC-13-043349-00

DATE: 20161222

CORRECTED DATE: 20170413

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Anne Millison Mitchell Applicant

– and –

Duff Gregory Mitchell Respondent

Cheryl Suann Williams and Farnaz Mirshahi, for the Applicant

Helen Kurgatnikov Miller, for the Respondent

HEARD: November 16-19, 23-27, 30, and December 1-4, 2015, and May 16-20, 24-27, 30, 31, and June 2, 3, and November 24, 2016

Corrected decision: The text of the original judgment was corrected on April 13, 2017 and the description of the correction is appended

REASONS FOR DECISION

F. GRAHAM J.:

Introduction and Issues

[1] The parties starting living together in June of 1995, they married on June 13, 1998, and separated on March 8, 2013. The total period of their cohabitation was 17 years and 9 months.

[2] Ms. Mitchell is 44 years old. Mr. Mitchell is 52 years old.

[3] The parties have one child, R, born on […], 2006. She is nine years old.

[4] During the trial, the parties resolved their property issues, and the issue of base child support from separation until the end of 2015.

[5] The issues remaining to be determined by the court are custody, parenting schedule, base child support from January 1, 2016 onward, special expenses, spousal support, and costs reserved for a pre-trial motion.

Assessment of Witnesses (Credibility and Reliability)

Anne Mitchell

[6] Ms. Mitchell is a party to the proceeding and, for that reason, likely has at least some bias, whether conscious or not, in favour of her own position on the issues.

[7] Ms. Mitchell’s demeanour while testifying was generally straightforward, but her repeated insistence on precise accuracy before responding to questions posed by Mr. Mitchell’s counsel was pervasive to the degree that, without being advertently so in any particular instance, her testimony seemed evasive at times. Also, while being cross-examined very closely, her tone of voice, at times, indicated frustration and, sometimes, anger toward the cross-examiner.

[8] Her testimony that the marriage was not in bad shape and that she had not complained about the state of her marriage prior to Mr. Mitchell’s move to Vancouver, was externally inconsistent with letters she wrote to Mr. Mitchell in 2010 and in early 2011 (Exhibit 138) and the testimony of Krista South.

[9] Also externally inconsistent, was her testimony that none of her evening phone calls to R, while R was in her father’s care, after September of 2014, lasted longer than ten minutes. Mr. Mitchell’s phone bills showed that there was a 21 minute call on December 6, 2014, a 27 minute call on January 3, 2015, and a 42 minute call on February 21, 2015 (Exhibit 111).

[10] Further, her testimony that Mr. Mitchell was with Ms. Mitchell and R around 10 percent of the time while Mr. Mitchell was living in Vancouver was internally inconsistent with her more detailed testimony indicating that he spent about 60 days with them during 2012 and about 20 days with them during the first two months of 2013.

[11] Otherwise, her lengthy testimony was generally consistent and not inherently incredible.

[12] Overall, the court finds that some caution should be exercised with respect to the weight to be given to her testimony.

Duff Mitchell

[13] Mr. Mitchell is a party to the proceeding and, for that reason, likely has at least some bias, whether conscious or not, in favour of his own position on the issues.

[14] Mr. Mitchell’s demeanour, while testifying, was straightforward at times, but, at other times, he exhibited, through his tone of voice and expression, a significant and palpable underlying anger toward, and a sense of frustration with, Ms. Mitchell, that indicated a strong bias against her.

[15] He demonstrated a pervasive animus toward Ms. Mitchell, for example, when he testified, on the last day of the trial in December of 2015, that he returned R significantly late to Ms. Mitchell sometimes because he unilaterally decided that it was in R’s best interests to be returned late, and that he did not seek Ms. Mitchell’s consent to the late returns because, in his view, it was not possible to get her support given that, “three years into this, it [i.e. support from Ms. Mitchell] has never once happened”. Yet, literally a few minutes earlier, Ms. Mitchell abandoned her position that R should spend Christmas Eve and Christmas morning in 2015 with her, and consented to R being with Mr. Mitchell and his family instead, as sought by Mr. Mitchell, despite independent testimony from Ms. Ambrozic that it would be in R’s best interests for R to be with Ms. Mitchell.

[16] Mr. Mitchell was evasive at times.

[17] When asked whether he informed Ms. Mitchell promptly about his moves to different residences in Ontario after separation, he replied, “Anne knows where I live”, and then, “Anne has known exactly where I live every time I’ve lived there”, and next, “there’s never been a night where I lived in a home that she did not know where that was”. He finally answered the question directly by stating that he told Ms. Mitchell about his moves a couple of weeks in advance and did not tell her sooner because, in his view, she always raises objections when he gives her information. He added that it was possible that she found out about his final move through R.

[18] When asked how he would have been able to give effect to the equal parenting time regime he sought in 2013, given the number of visits with R he missed in 2013 due to work-related travel, he initially replied, “at that time there wasn’t a consistent access schedule for me”, and then, “2013, I don’t think is representative of where we are today”, and then, “these were missed dinners as opposed to missed overnights”, and then, “in 2013, I was still travelling much more than I am”, and next, “my plan is not based on my job of 2013 – my plan now is based on my current role”, and then, “the plan at the time with the [Office of the Children’s Lawyer] was to transition to overnights every other weekend – this travel did not interrupt that at all”, and next, “the time I had with R was six hours per week”, and, finally, “my plan was shared parenting with a transition for a period”.

[19] He was then asked what his 2013 transition plan was and he replied, “it was never fully identified because Ms. Mitchell at that point was not granting access”, and then, “it was hard to have a defined plan given that I wasn’t allowed any overnight access”, and next, “I was able to see R on one day per alternating weekends which I typically did”, and then, “ I was looking, at best case scenario, three to six hours per week time with R”, and then, “I worked to accommodate the time I was given”, and then, “I can’t answer because I didn’t have time with R”, and next, “when I was with R on the weekends, I was with R on the weekends, I was not travelling”, and then, “I didn’t have time with R to plan to have”, and then, “my hope back then was that there would be an expansion of the access that I had and then I would plan accordingly to make sure that I was available for that access…I did have travel as a requirement of my job back then from time to time”, and then, “I’d need to know when I was travelling”, and then, “for the most part I would be available”, and, finally, “I guess, in a nutshell, my plan was to be R’s dad with a role that required a bit of travel”.

[20] When asked whether Ms. Mitchell’s contribution to the family had allowed Mr. Mitchell to travel for business, he replied, “I was away from the matrimonial home for periods of time”. When the question was repeated, he stated, “She was definitely contributing to the family”. Eventually, he answered both parts of the question together when he conceded that Ms. Mitchell’s contribution to the family allowed him to relocate to Vancouver for work while she and R remained in Ontario.

[21] When asked whether he was the parent who attended to R most of the time before separation, he responded, “I attended to R a lot of the time”. When reminded that he had been asked about most of the time, he asked whether “most” meant “60/40” and added, “Most is a pretty vague amount”. The cross-examiner then stipulated that “most” meant more than 51 percent of the time and asked him whether Ms. Mitchell took care of R most of the time. After a pause, he conceded that Ms. Mitchell took care of R, “more than 50 percent” of the time.

[22] Mr. Mitchell also gave testimony that was internally inconsistent.

[23] He stated that before separation, he went to the cottage without Ms. Mitchell and R “infrequently” and not “often” or “routinely”. When it was pointed out to him that in his Answer he had stated that he went to the cottage alone before separation “routinely”, he agreed that his memory would have been better when he signed his Answer, but added that “routinely” did not mean that he went to the cottage alone “frequently”. Subsequently, he testified that he went to the cottage alone “often”.

[24] He stated that Ms. Mitchell’s testimony that when he visited Ontario from Vancouver, he worked and saw very little of R, was not correct, because, “my business at that time was solely in British Columbia, my customers were in BC, when I came back to Ontario, other than…off-site meetings…I had no clients in Ontario to go out to have dinners with, so when I came back it was to spend time with Anne and R”. Yet, he also testified that he worked 25 days at the corporate office in Vaughn and 12 days at his home office while he lived in Vancouver.

[25] He also said that he spent more than 30 percent of his time with R when he lived in Vancouver, varying from 31 percent to 33 percent depending on the year, but his more detailed testimony showed that he was with R less than 30 percent of the time after his move to Vancouver in each of 2011, 2012, and 2013 (prior to separation).

[26] He also stated that he was in Ontario at least monthly, with one exception, while he lived in Vancouver, but his more detailed testimony indicated that he was not in Ontario during November of 2011, March of 2012, or May of 2012.

[27] He also testified that he was in Ontario more than 130 days per year while he lived in Vancouver, but his more detailed testimony indicated that he was in Ontario around 95 days during 2012.

[28] He also testified that when Ms. Mitchell asked him about enrolling R in soccer for the summer of 2015, his reply was, “No, because I [have] made arrangements for R to swim on Wednesdays and Thursdays”. He also advised the court, “I did not want R enrolled in soccer on my access day because arrangements had already been made for swimming with R”. His answers gave Ms. Mitchell and the court the impression that he had enrolled R in swimming lessons on those days. Later, however, he conceded that the “arrangement” was that he intended to teach R swimming in his backyard pool.

[29] He testified that he never told Ms. Mitchell that she should seek a raise from her employer. He also testified that he suggested that she should seek more income from her employer.

[30] Mr. Mitchell testified that, if he had custody, he would remove R from French Immersion, because he does not believe that French Immersion has long-term value for learning, because it is a burden to learn material in French, particularly for R, because she spends a lot of time in hockey-related activities. When it was pointed out to him that removing her from French Immersion would mean she would have to change schools, he claimed that he had not testified that he wanted to take R out of French Immersion and that he had only said that he had concerns about French Immersion. He stated later that if he had custody, he might change R’s school in order to remove her from French Immersion.

[31] His testimony was externally inconsistent when he said that he was “punctual to a fault” in returning R to Ms. Mitchell and that he was never more than 10 minutes late. During cross-examination, he was presented with a number of emails and texts that he sent to Ms. Mitchell about returning R late (Exhibit 145), as discussed below.

[32] On May 24, 2014, he said he would be an hour late. On May 28, 2014, he said he would be a half hour late and later revised his estimate to 40 minutes. On July 1, 2014, he informed Ms. Mitchell, “Not sure what time we’ll be out of here but wanted to let you know we are running late”. Ms. Mitchell replied that she had plans with R that evening and that there were people waiting for them. Mr. Mitchell testified that he did not take into consideration whether Ms. Mitchell might have plans upon R’s return, because, “it was my day”, and because, “R didn’t want to leave and I was focused on R”. On July 16, 2014, he was 15 minutes late. On July 26, 2014, he told Ms. Mitchell, just before 7 p.m., that he was just leaving Haliburton which meant that he would be about an hour late. On August 6, 2014, he said he would be about an hour late.

[33] At this point, during cross-examination, he testified that these were predominantly summer dates and that he was late because R was having fun. He said that, for that reason, and because he was not having overnights with R at that time, the late returns were appropriate. He added that he is not late as often now that he has R overnight.

[34] On August 7, 2014, he was an hour and a half late. He explained that R was getting a tour of Bernie Nicholls’ hockey memorabilia so Mr. Mitchell unilaterally decided that it was not in R’s best interests to return her on time. He admitted that he would feel very frustrated if Ms. Mitchell ever made a unilateral decision like that. On October 12, 2014, he was 20 minutes late. On November 13, 2014 (after overnights started), he emailed Ms. Mitchell at 9:50 p.m. to tell her that he was en route with R. He was already almost two hours late. On March 9, 2015, he was about two hours late. On April 14, 2015, he was almost 13 hours late – he returned R the next morning.

[35] At this point, during continued cross-examination, he testified, with an angry expression and tone of voice, that in these instances he decided that it was in R’s best interests to be late, because she was engaged in special activities and that Ms. Mitchell should have been supportive of R doing something special instead of being upset about R being returned late. He said that given that R was in a child-focused activity and given his limited time with R, Ms. Mitchell should have supported him being late. He said that he did not ask for Ms. Mitchell’s consent to be late for these special activities, because it was never possible to get her support. He said he never apologized for being late on any of these occasions because he was focused on R’s best interests.

[36] Also externally inconsistent was Mr. Mitchell’s testimony that he was never an on-ice helper with R’s hockey team during the 2016/17 season and that Ms. Mitchell’s testimony to the contrary was “false”. Mr. Knuff initially testified that Mr. Mitchell had not been an on-ice helper that season, but when he was asked, during cross-examination, specifically about March 26, 2016, he conceded that Mr. Mitchell was an on-ice helper that day.

[37] Finally, Mr. Mitchell’s testimony was not credible when he claimed that, in the summer of 2014, after telling Ms. Mitchell that he was taking R to visit his parents in Haliburton, he took R to Ms. Bridge’s family reunion in Gilford (where R met virtually all of Ms. Bridge’s extended family, including Ms. Bridge’s cousin, Bernie Nicholls, whom Mr. Mitchell apparently holds in very high regard because Mr. Nicholls is a former professional hockey player), but did not tell Ms. Mitchell about taking R to the reunion, because, when he arrived at his parents’ home, he discovered that his mother was ill as a result of chemotherapy, which meant, he said, that he and R could not stay in Haliburton for long, so he decided, at that point, to take R to Ms. Bridge’s family reunion instead.

[38] For several reasons, the court finds that Mr. Mitchell always intended to take R to Ms. Bridge’s family reunion without telling Ms. Mitchell. First, Mr. Mitchell had already ignored Ms. Ambrozic’s advice that he should not introduce R to Ms. Bridge until Ms. Mitchell agreed; he made the introduction without telling Ms. Mitchell or Ms. Ambrozic. Second, given Ms. Ambrozic’s advice, Mr. Mitchell must have known that Ms. Mitchell would be upset by, and would object to, R attending Ms. Bridge’s family reunion (particularly since Mr. Mitchell had not informed her that he had already introduced R to Ms. Bridge). Third, it was apparent from Mr. Mitchell’s testimony, and his demeanour while giving testimony, about Mr. Nicholls’ “invitation” for R to attend a hockey camp where Mr. Nicholls was a participant, and about intentionally returning R late to her mother because R was invited to view hockey memorabilia in Mr. Nicholls’ home, that Mr. Mitchell would have been excited about R meeting Mr. Nicholls at the reunion.

[39] Overall, the court finds that Mr. Mitchell was neither a credible nor reliable witness and, as a result, his testimony will be given little weight by the court, except for evidence he gave that was against his own interest or evidence he gave that is corroborated by another witness other than Mr. Knuff.

Brian Knuff

[40] Mr. Knuff was R’s head hockey coach for the 2015/16 season.

[41] His testimony was rife with internal inconsistencies.

[42] He testified, twice, that the only interaction he saw between Ms. Mitchell and R outside the change room was Ms. Mitchell fixing R’s equipment. Yet, he later testified that Ms. Mitchell would pull R aside and hug and kiss her outside the change room and, as a result, he told one of his assistant coaches to speak to Ms. Mitchell about her conduct.

[43] He testified that Mr. Mitchell assisted R’s hockey team during the most recent season as a videographer but he never assisted the team on ice. Later, during cross-examination, he agreed that, at Mr. Knuff’s request, Mr. Mitchell helped the team on ice on March 26, 2016, because Mr. Knuff was ill. When asked if Mr. Mitchell had, in fact, assisted the team more than once on ice that season, Mr. Knuff’s reply was much less certain than his original testimony; he said, “I think” it happened only once and, “I don’t think” it happened again, because, “I’ve been pretty healthy this year”. Ms. Mitchell testified that Mr. Mitchell assisted on ice a couple of times.

[44] Mr. Knuff testified that it is dangerous for children of R’s age to be on ice all year and that they should not skate on ice between hockey seasons. This evidence was intended to show that Ms. Mitchell’s enrollment of R in a hockey skills programme and summer hockey camp this year was inappropriate. Yet, he agreed, during cross-examination, that he sent an email to all of the parents of the children on R’s team, promoting the league’s summer hockey clinics this year, and he also admitted that he signed up his daughter, who plays on R’s team, for hockey camp in August of this year.

[45] He testified that he always speaks to both parents of any child on his team if he has any concerns, but conceded that he did not do so when he sent an assistant coach to speak with Ms. Mitchell about an aspect of her behaviour that concerned him.

[46] He testified that it was unacceptable for any of the players to leave the change room to see a parent, but that R constantly slipped out of the change room to find her mother while the coaching staff were not looking, and that this happened so often that the coaching staff referred to R as “little Ninja”. He later admitted, during cross-examination, that he sent an email to all of the parents at the beginning of the season saying that the players were welcome to leave the change room at any time to see a parent (Exhibit 177).

[47] He demonstrated bias against Ms. Mitchell when he volunteered, without having been asked, that R’s demeanour was different at games depending upon which of her parents brought her to the arena. He said that if Ms. Mitchell brought her she was less focused, but if Mr. Mitchell brought her she was more focused. He admitted during cross-examination, however, that he did not know R’s parenting schedule.

[48] Further, he testified that he never saw his wife sit in the stands with Mr. Mitchell and Mr. Mitchell’s girlfriend, Ms. Bridge. He also testified that he could see and recognize parents in the stands and, as a result, he knew which parents were present in the stands. Ms. Bridge, however, testified that she and Mr. Mitchell usually sat with Mr. Knuff’s wife in the stands and that the three of them talked about Ms. Mitchell’s behaviour. This aspect of Mr. Knuff’s testimony was externally inconsistent.

[49] The court also noted that Mr. Knuff was very committed to promoting independence amongst the players on R’s team, who were eight or nine years old at the beginning of the season. He has been a high school teacher and high school team coach for 23 years and, more than once, he erroneously referred to the children on R’s hockey team as “students”. The court was left with the impression that his views about independence were more appropriate in relation to high school students than young children. The court’s view was strengthened when Mr. Knuff admitted, during cross-examination, that he had disagreements with a number of parents during the past season and that the league did not ask him to return as a coach for the 2016/17 season.

[50] Overall, the court finds that Mr. Knuff was not a credible or reliable witness and, as a result, his testimony will be given no weight by the court, except for his reluctant admission, during cross-examination, that Mr. Mitchell was an on-ice helper with R’s team on March 26, 2016.

Ruth Mitchell

[51] Ruth Mitchell is the mother of a party to the proceeding and, for that reason, likely has at least some bias, whether conscious or not, in favour of her son.

[52] She demonstrated some bias when she told Anne Mitchell, in 2013, that she was not willing to hear Anne Mitchell’s explanation about why the marriage ended. Further, her decision not to return a phone call from Anne Mitchell’s counsel indicated some bias.

[53] Ruth Mitchell was non-responsive to some questions and appeared to be pursuing her own agenda, rather than simply listening to, and directly answering, questions from counsel.

[54] For example, when asked when she met Anne Mitchell, her reply was that Anne Mitchell was totally accepted into the Mitchell family and that she and Anne Mitchell started out as good friends.

[55] Then, when asked how often she saw Anne Mitchell after her marriage to Duff Mitchell and before the birth of R, her response was that Anne, Duff and R often came to Haliburton for the Morrison hockey tournament.

[56] Further, she initially testified that she “guessed” that R slept at her home a half dozen times during the period of 2007 to 2011, but later added that her guess might have been “a little bit high”, but “my point was” that R was accustomed to sleeping at her grandparents’ home.

[57] Later, during an objection to part of her testimony, Ruth Mitchell asked whether she could tell the court how she felt about R not going on stage at camp during the summer of 2015. Examining counsel told her that she could do that after the objection was resolved. After the court ruled against the objection, examining counsel invited Ms. R. Mitchell to tell the court about her thoughts when R did not go on stage. Before she could answer, however, the court intervened and reminded examining counsel that the trial was not about the witness’ feelings and asked counsel whether the witness’ feelings at the camp were relevant. Counsel replied, “probably not – that’s fine”, and proceeded to ask a very different and specific question. Ruth. Mitchell answered the specific question, and then added that R not going on stage that summer was the saddest thing Ruth Mitchell had ever seen, which caused Ms. Mitchell to cry at the camp.

[58] Overall, the court finds that significant caution should be exercised about her testimony.

Krista South

[59] Ms. South is Mr. Mitchell’s sister and, for that reason, likely has at least some bias, whether conscious or not, in favour of her brother.

[60] She declined to return Ms. Mitchell’s counsel’s phone call. She also demonstrated some bias when she told Ms. Mitchell, in 2011, that she was not willing to listen any longer to Ms. Mitchell’s marital concerns. Further, she testified that she has an allegiance to her brother.

[61] Her testimony, however, was not inconsistent, evasive, non-responsive, or inherently incredible, and she testified in a straightforward manner.

[62] Overall, the court finds that only a slight degree of caution should be exercised about her testimony.

Sue Bridge

[63] Ms. Bridge is Mr. Mitchell’s intimate partner and, for that reason, likely has at least some bias, whether conscious or not, in favour of Mr. Mitchell’s position on the issues.

[64] The only other concern the court had about her testimony was that she testified that she was generally sympathetic to Ms. Mitchell, but she also complained, at a different point in her testimony, that everyone, including her, Mr. Mitchell, and Mr, Knuff, always had to try to manage Ms. Mitchell’s feelings – which did not sound sympathetic.

[65] Her testimony, however, was not otherwise inconsistent, nor was she evasive, non-responsive, or inherently incredible, and she testified in a straightforward manner.

[66] Overall, the court finds that only a slight degree of caution should be exercised about her testimony.

Adrienne Ambrozic

[67] Ms. Ambrozic is a therapist for high conflict separation and divorce and an integration counsellor. She has an M.S.W. and is a member of the College of Social Workers and the Ontario Association of Social Workers.

[68] She was first retained by the parties, in early 2014, to help R move towards spending overnights with her father, and to provide related open family counselling. She first met with the parties and R in March of 2014. She provided services pursuant to the first retainer until late 2014. In April of 2015, Bennett J. ordered an increase in R’s time with her father, with a further increase to take effect in September of 2015 unless Ms. Ambrozic, or another qualified professional, contended that a further increase would be contrary to R’s best interests. Following the ruling, the parties retained Ms. Ambrozic again, this time to address the proviso in Bennett J.’s order and to provide closed individual counselling to R. Ms. Ambrozic provided services to R pursuant to the second retainer in August and September of 2015.

[69] Ms. Ambrozic gave her testimony in a thoughtful and straightforward manner. Her testimony was consistent, internally and externally, and she demonstrated no bias or evasiveness. No part of her testimony was inconsistent with common sense or incredible.

[70] The court finds no reason to be cautious about her testimony.

Karen Guthrie-Douse

[71] Ms. Guthrie-Douse is a clinical investigator for the Office of the Children’s Lawyer (OCL). She has an M.S.W. and is a registered social worker.

[72] She prepared a comprehensive OCL report on January 13, 2014 (Exhibit 6).

[73] At the court’s request, Ms. Guthrie-Douse also provided a Voice of the Child Report during the trial (Exhibit 182).

[74] Ms. Guthrie-Douse gave her testimony in a thoughtful and straightforward manner. Her testimony was consistent, internally and externally, and she demonstrated no bias or evasiveness. No part of her testimony was inconsistent with common sense or incredible.

[75] The court finds no reason to be cautious about her testimony.

Custody and Parenting Schedule

Law in Relation to Custody and Parenting Schedule

[76] Section 16(8) of the Divorce Act stipulates that a court must consider only the best interests of the child, as determined by reference to the conditions, means, needs and other circumstances of the child, when deciding custody or access.

[77] Section 16(9) of the Divorce Act stipulates that the court shall not consider the past conduct of any person unless the conduct is relevant to the ability of that person to act as a parent.

[78] Section 16(10) of the Divorce Act stipulates that a court must give effect to the principle that a child should have as much contact with each parent as is consistent with the best interests of the child, and the court shall consider, for that purpose, the willingness of each parent for whom custody is sought to facilitate such contact.

[79] Section 16(5) of the Divorce Act stipulates that a parent who is granted access to a child has the right to make inquiries, and to be given information, as to the health, education and welfare of the child, unless the court orders otherwise.

[80] Provincial legislation provides additional guidance about determining the best interests of a child.

[81] Section 24(1) of the Ontario Children’s Law Reform Act (CLRA) requires that applications in respect of custody and access to a child shall be determined on the basis of the best interests of the child in accordance with the balance of section 24.

[82] Section 24(2) of the CLRA stipulates that the court shall consider all the child’s needs and circumstances, including, relevant to this case:

• the love, affection and emotional ties between the child and each person entitled to or claiming custody of or access to the child;

• the love, affection and emotional ties between the child and persons involved in the child’s care and upbringing;

• the child’s views and preferences, if they can be reasonably ascertained;

• the length of time the child has lived in a stable home environment;

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

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

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

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

• the relationship by blood between the child and each person who is a party to the application.

[83] Section 24(3) stipulates that a person’s past conduct shall be considered only if the court is satisfied that the conduct is otherwise relevant to the person’s ability to act as a parent.

[84] Section 21(1) of the CLRA stipulates that except as provided otherwise in that Act, the father and mother of a child are equally entitled to custody of the child.

[85] Some additional guidance is provided by section 37(3) of the Ontario Child and Family Services Act (CFSA) which stipulates that when a person is directed under that legislation to make a determination in the best interests of a child, the person shall take into consideration the following circumstances relevant to this case:

• the child’s physical, mental and emotional needs, and the appropriate care or treatment to meet those needs;

• the child’s physical, mental and emotional level of development;

• the child’s cultural background;

• the importance for the child’s development of a positive relationship with a parent and a secure place as a member of a family;

• the child’s relationships and ties to a parent, relative, other member of the child’s extended family or member of the child’s community;

• the importance of continuity in the child’s care and the possible effect on the child of disruption of that continuity;

• the child’s views and wishes, if they can be reasonably ascertained;

• the risk that the child may suffer harm through being removed from, kept away from, returned to or allowed to remain in the care of a parent; and

• any other relevant circumstance.

Positions of the Parties in Relation to Custody and Parenting Schedule

[86] At the commencement of the trial, the parties informed the court that they agreed to joint custody of R, but, because they could not agree about R’s involvement in extracurricular activities or counselling, they wanted the court to decide those issues, as well as R’s parenting schedule.

[87] After the first three weeks of evidence, the trial was adjourned to continue months later.

[88] During the adjournment period, the court advised the parties that, based on the evidence heard to that point, the court had concerns whether joint custody would be in R’s best interests, and invited the parties to reconsider their positions about custody if they wished to do so, and invited the parties to lead additional evidence about custody when the trial resumed, if they wished to do so.

[89] At the resumption of the trial, Ms. Mitchell advised the court that she continued to seek joint custody, but she also sought a stipulation that if the parties were unable to make a major decision about extracurricular activities or counselling jointly, then Ms. Mitchell would make the final decision.

[90] Ms. Mitchell testified that she and Mr. Mitchell have been able to make major decisions about R, including about religion and education, jointly, with the exception that they are unable to agree about extracurricular activities and counselling.

[91] Ms. Mitchell sought a continuation of the current regular parenting schedule with adjustments for certain holidays. She submitted that the current schedule works well for R. She submitted that it would be contrary to R’s best interests to spend any overnights with her father during the school week.

[92] Ms. Mitchell suggested leaving the regular alternate weekends in place around March break and dividing Monday through Friday. She suggested dividing Easter weekend or treating Easter weekend like a regular weekend but extending it to include Easter Friday. Because Easter Monday is not a statutory holiday, she suggested treating it like an ordinary Monday. She suggested no special treatment for Family Day, Victoria Day, Canada Day, Civic Holiday, Labour Day, Thanksgiving Day, or school PA days.

[93] She suggested that R should have two weeks, consecutive or non-consecutive, with each parent in the summer. She said (in November of 2015) that more than two weeks with Mr. Mitchell would not be in R’s best interests because he works during the summer – whereas (at that point) Ms. Mitchell had very flexible hours. She said that Mr. Mitchell would delegate his care of R to someone else if he was working. She testified that she would not be agreeable to R spending a week with Mr. Mitchell’s family and/or girlfriend. She also testified that she was agreeable to R being with Mr. Mitchell for two consecutive weeks, even though she did not believe that was in R’s best interests, so that R could possibly go on a trip with him during his summer vacation, but more than two weeks would be too long for R. She said that R’s summer interests were hockey camp and sports camp.

[94] She suggested that R should spend equal time with each parent during the Christmas school vacation, but R should always be with Ms. Mitchell from Christmas Eve until Christmas Day and with Mr. Mitchell from Christmas Day until Boxing Day. She suggested that R should be with Ms. Mitchell on Mother’s Day until school the next day and with Mr. Mitchell on Father’s Day until school the next day. She also suggested that R’s birthday should not be an exception to the regular schedule.

[95] Mr. Mitchell advised the court that he is seeking sole custody, unless and until Ms. Mitchell can demonstrate that she will make decisions in R’s best interests, although he would consult with Ms. Mitchell prior to making final decisions.

[96] He stated that he had demonstrated that he makes decisions in R’s best interests.

[97] Mr. Mitchell testified that joint decision-making would not work, because Ms. Mitchell acts as though she has sole custody by making major decisions without consulting him, and because some of her decisions are contrary to R’s best interests. He testified that Ms. Mitchell acts against R’s best interests and creates “danger” for R by unilaterally enrolling R in hockey, by being on the hockey staff and isolating R (which has a negative effect on R), and by having R play hockey in the summer.

[98] Mr. Mitchell sought equal time with R throughout the year. To accomplish this goal, he would like her to be with him overnight on Wednesdays and Thursdays. He said that if that change is made, he will try harder not to travel overnight for work on those days. He noted that he missed a Wednesday, in February of 2016, because of his work, but added that he did not expect to have a conflict between his travel schedule and his time with R for, “the majority of the time”, although a, “one off”, such as in February, might occur. He added that if he had to travel, Ms. Bridge or a member of his family could take care of R, but, in his current position, there was only one week a year that he would not be home every night.

[99] Mr. Mitchell testified that Ms. Mitchell should be prevented from going to R’s hockey practices when R is in his care, because it upsets R to see her mother and interferes with his time with R who always goes to her mother. He testified that Ms. Mitchell interferes when she helps R with her hockey equipment and gives her a hug and kisses on her helmet. He says that it is against R’s best interests to be hugged and kissed by her mother because she is being pampered, coddled, and isolated from her team.

[100] When asked whether there should be a restriction on him attending R’s extracurricular activities while R is in her mother’s care, he replied that he did not want that, but he wanted Ms. Mitchell to be restricted from attending R’s activities unless, “she just act[s] like a normal parent”, and that she could, “come and watch if she behaves”, rather than, “hurting” R, and that he ought to be the person who determines whether Ms. Mitchell’s behaviour is normal.

[101] He added that he did not seek to exclude Ms. Mitchell from all events when R was with him, but he believes that Ms. Mitchell is hurting R by attending all of her hockey practices. He added that Ms. Mitchell should be required to sit in the opposite stands during hockey games during his time with R, and she should not have any direct contact with R. He said that Ms. Mitchell could also attend track meets on his time with R as long as she is, “just there just like a normal parent to cheer her on”, but if she does more than that she should not be present. He also said that Ms. Mitchell should not attend any soccer practices during his time with R.

[102] He would like to alternate March school break, Easter, and Halloween to reduce exchanges. He suggested extending the regular weekend schedule to include holiday Mondays on Family Day, Victoria Day, Civic Holiday, Labour Day, Thanksgiving, and to include Canada Day as part of a weekend when it falls on a Friday or Monday. He suggested splitting the Christmas school vacation equally, and annually alternating the periods of Christmas Eve until Christmas Day and Christmas Day until Boxing Day. He agreed with Ms. Mitchell’s position about R’s birthday, Mother’s Day, and Father’s Day.

[103] Mr. Mitchell suggested that R should be with each parent for four weeks, including two consecutive weeks, during the summer. In view of the fact that Ms. Mitchell’s working schedule changed during 2016, however, he suggested reversing last summer’s schedule. He suggested that R should be with her mother on Wednesday and Thursday evenings and alternate weekends and that the rest of the time R could visit his family in Haliburton. He said that he could take four of his five weeks of annual vacation in the summer to be available for R, and that if he had to take a meeting or phone call, Ms. Bridge could be with R who, “doesn’t need me to holding her hand 24/7”. He said that it would be better for R to play around his house than to be in daycare or hockey camp.

Additional Evidence and Timeline in Relation to Custody and Parenting Schedule

[104] The court has carefully reviewed and considered all of the evidence. The parties raised many issues that may seem significant when considered in isolation, but lose significance when considered in the context of all of the evidence. It would serve no useful purpose to repeat all of the evidence. Instead, the court will set out the most salient aspects of the evidence that provide a factual context for the court’s analysis.

[105] Ms. Mitchell’s mother and uncle live in Ontario. Her father died when she was a child. Ms. Mitchell and R have a positive relationship with Ms. Mitchell’s mother and uncle.

[106] Mr. Mitchell’s parents, three of his four siblings, and two nieces live in Ontario. Mr. Mitchell and R have a positive relationship with all of them. Before separation, Mr. Mitchell’s parents stayed with Mr. Mitchell, Ms. Mitchell, and R from Christmas Eve to Christmas morning, in alternate years.

[107] Both of the parties were working full-time when R was born at the end of 2006. Ms. Mitchell was a manager with a mining company, where she remained employed at the time of trial, and Mr. Mitchell was a marketing product manager with a large company.

[108] Ms. Mitchell took maternity leave for one year. When she returned to work, she worked, on average, one or two days a week at home and the rest of the week at her office, with occasional business travel. Commencing in 2012, she worked at home full-time, subject to occasional business travel. Her work at home hours have been flexible, so she has been able to work while R was at school or in bed. In April of 2016, however, in anticipation of a possible winding up of her employer due to a corporate take-over, she started a second job as an executive assistant which requires her to commute to work.

[109] When Ms. Mitchell returned to work after her maternity leave, R was enrolled in a daycare that was between the parties’ home and Ms. Mitchell’s office. Ms. Mitchell took R to daycare and picked her up from daycare when she worked at her office, and, occasionally, when she worked at home.

[110] Ms. Mitchell has always been responsible for R’s regular medical and dental care.

[111] Prior to separation, Ms. Mitchell was almost exclusively responsible for all other aspects of R’s care. She cooked and generally performed the other traditional home-maker roles for the family.

[112] Since Ms. Mitchell started her second job in April of 2016, she takes R to daycare at R’s school each morning (except alternate Mondays) and is currently responsible to pick her up after work on Mondays, Tuesdays, and alternate Fridays during the school year. Mr. Mitchell is currently responsible to pick R up on Wednesdays, Thursdays, and alternate Fridays during the school year. He takes her to the daycare alternate Mondays.

[113] Mr. Mitchell worked full-time at his office from R’s birth until 2010. From 2006 until 2008, he travelled a great deal for business – as much as two or three weeks per month. In 2010, he joined his current employer as regional sales director for Ontario. During the next year and a half, he worked at home three days per week on average, and away from home, in the field, about two days per week on average. In 2011, he accepted a promotion to regional vice-president for Western Canada that required him to live in Vancouver for an indefinite period of time, informally anticipated to be between two to five years. The position required frequent travel to Ontario. He moved to Vancouver in August of 2011 and was still living in Vancouver when the parties formally separated on March 8, 2013.

[114] Ms. Mitchell and R did not move to Vancouver with Mr. Mitchell because Ms. Mitchell felt that R’s social network was in Ontario, and because Ms. Mitchell was expecting to receive some valuable options from her employment.

[115] The parties agreed that Ms. Mitchell and R would remain in Ontario, but have daily communication with Mr. Mitchell who would return to Ontario often for visits. Mr. Mitchell viewed the relationship as an “informal separation” and stated on his 2012 income tax return that his marital status was “separated”.

[116] Mr. Mitchell testified that before he moved to Vancouver, he would start work at home at 6 a.m. and he would temporarily stop working to help with R’s breakfast. He said that sometimes Ms. Mitchell gave R her cereal and sometimes he did. He also said that he often dressed R. He stated that it would have been easy for him to get R ready for school, but Ms. Mitchell wanted to do this herself.

[117] Mr. Mitchell also stated that Ms. Mitchell wanted to take R to school, pick her up, and make dinner, because Ms. Mitchell was “controlling”. He said that he offered to pick up R at school, but Ms. Mitchell would not allow him. He also said that Ms. Mitchell would drive R to and from daycare and school because it was on her way to work. He said that his work was usually done by the time Ms. Mitchell returned home with R in the evening and that he helped R with her homework and/or watched television with R while Ms. Mitchell made dinner. He testified that he was a “regular father” who was “present” during mornings, evenings, and weekends rather than, “leaving to do stuff on my own”. He also said that he ate dinner with R “most” of the time.

[118] Ms. Mitchell testified that Mr. Mitchell did not help get R ready for school, because he was already working in his home office when R got up. She also testified that the three of them never had breakfast together on weekdays for the same reason. She added that she and R often had breakfast in the car.

[119] Ms. Mitchell said that she also took R to and from school, appointments, and extracurricular activities, helped with her homework, made her meals, bathed her, and put her to bed. Ms. Mitchell added that sometimes Mr. Mitchell helped by reading to R, doing homework with her, playing with her, bathing her, and getting R ready for bed, and he attended most school conferences and some of R’s extracurricular activities, prior to his move to Vancouver.

[120] Ms. South testified that Ms. Mitchell did everything for R, even before Mr. Mitchell moved to Vancouver. She said that Ms. Mitchell was involved with every aspect of R’s day to care and activities, when she was not travelling for work.

[121] Mr. Mitchell also testified in chief that he was never alone with R prior to separation (R was six years old on the date of separation). He stated that there was always someone else present when he was with R. He noted that whenever Ms. Mitchell was away on business trips, his parents would move in with him to take care of R. He said that his mother would take R to school and cook meals and that either he or his mother would bathe R and get her ready for school. When asked why he did not take R to school when Ms. Mitchell was away, he said that his parents wanted to take her and, unlike him, they were not working.

[122] When asked, during cross-examination, whether when Ms. Mitchell was away was a perfect opportunity for him to have one on one time with R, he replied, “I’m not understanding why one on one time is so important”, and, “I’m not under the impression that being a father requires you to exclude other people”. He also testified that he still does not spend any time alone with R, because he has people around R who love and care for her, and he expects that situation to continue into the future. He added that he was not raised to seek alone time with his father, because he had four siblings, and then he stated, in a sarcastic tone, that when he was a child he did not say to his father, “Daddy, please take me away for the weekend, I just want to be with you”.

[123] The court accepts Ms. Mitchell’s and Ms. South’s testimony about who cared for R. The court does not accept Mr. Mitchell’s testimony that Ms. Mitchell was controlling in this regard.

[124] The court finds that Mr. Mitchell’s main focus prior to formal separation was his employment and leisure activities, including weekend leisure activities with Ms. Mitchell and R when he was in Ontario, although, as noted earlier, he testified that he “often” went to the cottage alone to work.

[125] While in Vancouver, Mr. Mitchell had daily communication with R by telephone, FaceTime or Skype, facilitated by Ms. Mitchell, at about 8 p.m. Ontario time.

[126] In September of 2011, R began attending the French Immersion programme in her current school.

[127] In the fall of 2011, Mr. Mitchell’s parents took care of R while Ms. Mitchell was on business trips.

[128] The parties purchased Ms. Mitchell’s current home in September of 2012. It is about 10 minutes by car from R’s school and within 15 minutes of three arenas where R plays hockey.

[129] Mr. Mitchell travelled to Ontario fairly regularly while he lived in Vancouver. His detailed testimony indicates that he was in Ontario at least 57 days during the last five months of 2011, at least 94 days during 2012, and at least 31 days during the first two months of 2013.

[130] His detailed testimony also indicates that he was with Ms. Mitchell and R for about 30 days during the last five months of 2011, about 40 days during 2012, and about 20 days during the first two months of 2013, not counting an unquantified number of evenings he saw R at home after working during the day.

[131] In February of 2013, Mr. Mitchell, Ms. Mitchell, and R crossed paths with Ms. Bridge, a former neighbour of Mr. Mitchell’s, at a hockey tournament in Haliburton.

[132] As indicated earlier, the parties formally separated on March 8, 2013. R continued to have daily contact with her father when he was in Vancouver.

[133] Mr. Mitchell testified that his initial post-separation parenting plan, while he was living in Vancouver was to see R about two weekends per month plus, on a flexible basis, any additional time that he was available in Ontario.

[134] Over the next almost four months, R was with Mr. Mitchell on Easter weekend and Victoria Day weekend in Ontario. On both occasions, she stayed with him overnight and, on both occasions, R became upset and cried during telephone contact with her mother.

[135] Without any input from Mr. Mitchell, his employer decided, in May of 2013, to return him to in Ontario.

[136] The parties informed R about their separation in June of 2013.

[137] Mr. Mitchell drove back to Ontario at the end of June. En route, he did not receive phone calls from R. When he called R upon his return, Ms. Mitchell informed him that R did not want to talk to him.

[138] Mr. Mitchell recommenced working full-time at his office in Ontario in July of 2013, as vice-president for Ontario and Western Canada, with travel required from time to time.

[139] He rented a townhouse that was about a half kilometre from R’s school.

[140] Mr. Mitchell’s position about a parenting schedule for R, once he was back in Ontario, was that R should be with him half the time, subject to a brief transition period over a few weeks or a couple of months.

[141] Ms. Mitchell, however, only agreed, initially, to R being with her father once per week, on different days, depending on their schedules, for up to six hours.

[142] She was concerned that additional time with Mr. Mitchell would not be in R’s best interests at that point given Mr. Mitchell’s limited involvement in R’s care from birth, the length of time Mr. Mitchell had been living in Vancouver with limited physical contact with R, and given that R was upset on Easter weekend and Victoria Day weekend when she was first in her father’s care post-separation.

[143] In August of 2013, Mr. Mitchell sought the involvement of the OCL because he believed that Ms. Mitchell was negatively influencing R not to spend more time, including overnights, with him.

[144] Ms. Mitchell was the manager with R’s house league hockey team during the 2013/14 season.

[145] Mr. Mitchell and Ms. Bridge started dating in the fall of 2013. Ms. Bridge testified that they have been a couple since then.

[146] By the time Ms. Guthrie-Douse, the OCL social worker assigned to this matter, first interviewed that parties in October of 2013, R was in Mr. Mitchell’s care, on consent, every Wednesday, from 5 p.m. to 8 p.m., and alternate Saturdays, from 9 a.m. to 8 p.m., and alternate Sundays from 9 a.m. to 6 p.m.

[147] Ms. Mitchell told Ms. Guthrie-Douse that she had had primary care of R for R’s entire life and that R needed time to build up trust in her father before she would be comfortable staying with him overnight, because R had been quite affected by Mr. Mitchell’s absence while living in Vancouver. She also told her that R did not like sleeping overnight away from her mother.

[148] Mr. Mitchell agreed that Ms. Mitchell had had primary care of R to that point, but alleged that Ms. Mitchell had been “controlling” , had limited his opportunity to do things with R, and had “empowered” R to make decisions about not staying overnight with him.

[149] Both parties told Ms. Guthrie-Douse that R had difficulty leaving her mother at exchanges, but this was getting better over time.

[150] R told Ms. Guthrie-Douse that she was not ready to sleep over at her father’s house, but she might be ready after the school Christmas vacation.

[151] Ms. Guthrie-Douse observed R to have an affectionate and positive relationship with both parents.

[152] In her report of January 13, 2014 (Exhibit 6), Ms. Guthrie-Douse recommended that R should remain in the primary care of Ms. Mitchell, but Mr. R should have parenting time with her father every Wednesday and Thursday from after school until 8 p.m., and on alternate Saturdays and Sundays from 9 a.m. until 8 p.m.

[153] Ms. Guthrie-Douse also recommended that the parties should make major decisions about R’s care jointly, use a mediator or parenting co-ordinator to resolve any differences, make day to day parenting decisions when with R, consult with a mental health professional experienced in the area of separated and divorced families to help with the transition of R sleeping over at her father’s home during access weekends with her father, and enroll in the “1 Family, 2 Homes” programme through Jewish Family and Child Services.

[154] Ms. Guthrie-Douse also stated in her report that it would be premature to introduce Ms. Bridge to R.

[155] Both parties accepted Ms. Guthrie-Douse’s recommendation about the parenting schedule and put the recommended schedule into effect immediately.

[156] Further, the parties’ counsel at the time quickly contacted Ms. Ambrozic and arranged for her to start family therapy in March of 2014.

[157] At that time, Mr. Mitchell believed that overnights would start almost immediately once Ms. Ambrozic was involved.

[158] On March 10, 2014, R, while her mother was absent, told Ms. Ambrozic that she was not ready to sleep overnight at her father’s home, because he yelled at her when she made mistakes like dropping a plate of vegetables, and because she was more comfortable with her mother, because her father had lived in Vancouver for some time. She agreed to have a sleepover at his house if her two cousins, Emma and Georgia (Ms. South’s daughters), were there as well.

[159] After Ms. Mitchell joined R and Ms. Ambrozic, Ms. Mitchell became less talkative when informed that R was agreeable to having a sleepover with her cousins at her father’s home.

[160] The next day, in R’s absence, Ms. Mitchell told Ms. Ambrozic that she was surprised that R wanted to have a sleepover and that she did not think she (Ms. Mitchell) would ever be comfortable with R sleeping overnight away from Ms. Mitchell’s home, but she would go along with that if R was comfortable. She mentioned that the sleepovers with Mr. Mitchell on the Easter and Victoria Day weekends did not go well and that she did not trust Mr. Mitchell, because he had a temper.

[161] Soon thereafter, R became reluctant to visit Mr. Mitchell at all. As a result, Mr. Mitchell told Ms. Ambrozic that he decided to postpone seeking overnights with R, because he was concerned that she had started refusing to spend time with him during the day. He testified that he thought, at that time, Ms. Ambrozic could remedy the issue within one or two weeks.

[162] Ms. Ambrozic felt that R’s reluctance in relation to overnights was due, at least in part, to a negative influence upon her by Ms. Mitchell who did not trust Mr. Mitchell. She believed that Ms. Mitchell tried to prevent negative emotional transfers to R, but Ms. Mitchell could have tried harder.

[163] In April of 2014, R told Ms. Ambrozic that Mr. Mitchell was constantly asking her about staying with him overnight and she did not like him doing that. She also said that it was boring sometimes when she was with her father because he did not have a bike helmet for her, so she could not go biking, and because he would take her to watch him play hockey, which she did not enjoy. She said that she had more fun with her mother. She also said that she had changed her mind about a sleepover with her cousins because the idea made her nervous. R liked Ms. Ambrozic’s suggestion that Mr. Mitchell should not ask more than once each Saturday whether R would like to stay overnight. At the same meeting, Ms. Mitchell told R that it would be okay for R to stay overnight at her father’s if she wanted to do that.

[164] Ms. Ambrozic suggested to Mr. Mitchell that he should not re-introduce R to Ms. Bridge before Ms. Mitchell agreed it was appropriate to do so. Mr. Mitchell testified that he did not understand why Ms. Ambrozic made that suggestion and that he disagreed - although he did not tell her.

[165] He observed that Ms. Guthrie-Douse’s report only stated that he should not re-introduce R to Ms. Bridge at the time the report was released, but it said nothing about later.

[166] He said that he decided, unilaterally, to introduce R to Ms. Bridge during Easter of 2014, because he felt it would be beneficial to R, and because Ms. Bridge is a loving person, so further delay made no sense to him.

[167] Mr. Mitchell re-introduced R to Ms. Bridge without informing Ms. Mitchell or Ms. Ambrozic.

[168] Mr. Mitchell said that he did not wait for Ms. Mitchell to feel comfortable before re-introducing R to Ms. Bridge, because he felt that Ms. Mitchell was raising concerns for the sole purpose of blocking and preventing overnights. He testified that the only person upset by the introduction was Ms. Mitchell.

[169] Mr. Mitchell also testified that he believes that Ms. Ambrozic is biased against him, because she “panders” to Ms. Mitchell’s concerns and asked him to make adjustments to make Ms. Mitchell feel more comfortable.

[170] Mr. Mitchell testified that, in May of 2014, he could not understand why overnights had not started.

[171] On May 28, 2014, immediately after a meeting involving R, both parents, and Ms. Ambrozic, during R’s parenting time with her father, R refused to leave with her father, for about 20 minutes in the parking lot. She was crying while her mother tried to talk her into going with Mr. Mitchell. Ms. Mitchell was almost forcing R into Mr. Mitchell’s car until Ms. Ambrozic suggested that Ms. Mitchell should leave. Ms. Ambrozic apologized to R for not appreciating that it would be hard for R to see her mother while R was with her father, and said that she would not set up any more meetings involving both parents and R, while R was in her father’s care - to which R agreed.

[172] In June of 2014, a corporate reorganization eliminated Mr. Mitchell’s position. As a result, in August of 2014, he returned to his former home-based position as regional sales director for Ontario, with regular work in the field.

[173] On June 12, 2014, R told Ms. Ambrozic that Mr. Mitchell was asking her about staying overnight once each Saturday and that Ms. Mitchell was telling her that staying over was okay. She also said that she was comfortable with her father who was not getting angry anymore if she spilled something.

[174] As mentioned previously, in early July of 2014, Mr. Mitchell took R to Ms. Bridge’s family reunion without informing Ms. Mitchell. He told her that he was taking R to visit his parents in Haliburton.

[175] On July 4, 2014, Mr. Mitchell told Ms. Ambrozic that if overnights did not start soon, he would likely go to court to start overnights, because, in his view, Ms. Mitchell was “gatekeeping”.

[176] On July 16, 2014, R told Ms. Ambrozic that she had not wanted to leave her father at the end of the day on several occasions – once at the family cottage, once at Ms. Bridge’s cottage, and once at her father’s home. She said that it was fun to be with Ms. Bridge when she was with her father.

[177] Mr. Mitchell decided that he would like R to go to hockey day camp in Haliburton for five days commencing August 4, 2014. Ms. Mitchell decided that she and R would go to British Columbia to visit extended family for about a week until August 4, 2014. As a result, there was conflict between the parties about where R would be on August 4th. Ms. Mitchell told Mr. Mitchell that she had plans for August 4th but did not tell him that she intended to travel. She asked R to keep the travel plan secret. When Mr. Mitchell discovered that Ms. Mitchell intended to travel with R, he told her that he would not consent to R travelling. Eventually, the parties settled the issue by agreeing that R would go to British Columbia until August 4th with her mother, and then she would go to the hockey day camp commencing August 5th.

[178] Mr. Mitchell agreed that he put R into hockey day camp during the only week he had R with him during the summer of 2014. When asked why he would do that rather than have some alone time with R, he replied that it is more fun for a child to be with other children rather than be alone with a parent – and that was his view when he was a child. He also testified that he did not ask to have R with him for another week that summer because he felt that he could not really have a vacation with her without overnights.

[179] Mr. Mitchell testified that taking R to the hockey day camp that week was a challenge, because she missed her mother.

[180] As mentioned earlier, on August 7, 2014, Mr. Mitchell returned R an hour and half late. He explained that he and R dropped by Bernie Nicholls’ home and Bernie started showing R some hockey memorabilia so Mr. Mitchell unilaterally decided that it was not in R’s best interests to return her to her mother on time. After admitting that he would feel frustrated if Ms. Mitchell did the same thing, he added that Ms. Mitchell was angry when he returned R, which meant to him that Ms. Mitchell’s focus was on her own happiness rather than on a, “once in a lifetime experience” for R. He said, “I knew R wasn’t missing out anything at Anne’s. It was just a matter of getting her home so she could go to bed”, and that, in his view, “it was sad to think…[R] can’t stay and enjoy this exciting thing for [her] benefit…the suggestion was…ruin R’s good time but make sure we get home in time for Anne, so that Anne’s happy”, which meant to him, “the focus wasn’t in the right spot”, because if the question was framed purely in terms of what was in R’s best interests, “it becomes an easy answer…let her enjoy what’s she’s doing…and then take her home and she can go to bed then”.

[181] On August 14, 2014, R told Ms. Ambrozic that she had never liked sleepovers and that she was not comfortable with overnights with her father, even if both parents were supportive. She said that, at times, she does not tell her parents what she really thinks or feels, because she is concerned about hurting their feelings and their reaction.

[182] In September of 2014, Mr. Mitchell moved to a new residence about 20 minutes by car from R’s school.

[183] Ms. Mitchell was the manager and trainer for R’s hockey team for the 2014/15 season.

[184] In September of 2014, Ms. Mitchell’s counsel informed Ms. Ambrozic and Mr. Mitchell’s counsel that Ms. Mitchell was agreeable to R staying overnight on alternate weekends with her father. The parties agreed that overnights should start in October.

[185] Ms. Ambrozic testified at trial that she did not realize, in September of 2014, that R had hockey events every Saturday and Sunday and that, as a result, Saturday overnights with Mr. Mitchell would not provide R with an uninterrupted day and a half with her father each alternate weekend.

[186] On October 6, 2014, in the presence of R’s parents, Ms. Ambrozic informed R about her parents’ decision. R agreed to one overnight per weekend.

[187] Ms. Guthrie-Douse testified that she was not surprised to learn at trial that R did not start overnights with her father until October of 2014, because sometimes that sort of progression takes time, and it was clear, when she did her initial investigation, that some time would be required for R.

[188] On October 15, 2014, following the first overnight, R told Ms. Ambrozic that she missed her mother and cried on the phone Saturday night. She said that she did not want her father to know that she was nervous about another overnight, because she thought he would want another. She told Ms. Ambrozic that she would prefer to stay at the family cottage, rather than her father’s home, because the cottage was familiar. She also told her that she would like a night light on all night, her bedroom door left open, and she would like to fall asleep on the couch with her father, rather than in bed alone.

[189] On October 20, 2014, Mr. Mitchell told Ms. Ambrozic that he was concerned about R’s attendance at hockey events during his time with R, because her mother was always present. Ms. Ambrozic encouraged him to be child-focused, including taking R to her hockey events, because R had had extensive hockey involvement for years.

[190] On October 30, 2014, after R had been upset about leaving hockey events with her father on several occasions, lasting 45 minutes on one occasion and 15 minutes on another, it was agreed, between the parents and Ms. Ambrozic, that R would wait in the change room with her mother until the other children were gone and that her mother would take her to her father, and stay for up to five minutes if necessary, to help R adjust.

[191] Mr. Mitchell complained at trial that his time with R was always reduced by her involvement in hockey on weekends, because it took three to four hours out of his day with R to drive her to and from the arena, be at the arena an hour ahead of the game, and because R was always the last out of the change room after the game.

[192] On November 10, 2014, Ms. Ambrozic told Ms. Mitchell that her evening phone calls with R, when R was with her father overnight, were to be limited to five to ten minutes, because Mr. Mitchell had complained to Ms. Ambrozic that the calls were too long and caused R to become upset and cry.

[193] On Sunday, November 23, 2014, Ms. Ambrozic did a home visit at Mr. Mitchell’s home to see how R was managing with him on a weekend. She found that R seemed happy to be with her father and Ms. Bridge.

[194] In December of 2014, there was a flurry of letters and phone calls between the parents’ counsel and Ms. Ambrozic about the appropriate schedule for the upcoming Christmas school vacation.

[195] On December 9, 2014, R told Ms. Ambrozic that she wanted to spend Christmas Eve and Christmas morning with her mother. She said that she had felt “weird” the previous Christmas Day when she had dinner with her father’s family, because her mother was not present. She also said that she was not enjoying the Saturday overnights with her father, because she missed her mother, she would never like being away from her mother overnight, and that she was not ready for two consecutive overnights.

[196] Ms. Ambrozic testified that she was not surprised by R’s slow adjustment to overnights with her father, because a lot of children complain about the same thing.

[197] On December 16, 2014, Ms. Ambrozic suggested a Christmas school vacation schedule to the parents’ counsel which meant R would be with Mr. Mitchell for five overnights, including the usual alternate Saturday overnight scheduled for December 20th, as well as December 25th and 26th, and a further two overnights the following week, either consecutive or non-consecutive at Mr. Mitchell’s option. Ms. Ambrozic also suggested that eventually, in about two months, a transition to two overnights per alternate weekend might be possible.

[198] Two days later, Ms. Mitchell responded by telling Ms. Ambrozic that R would not be comfortable with consecutive overnights. Nevertheless, Ms. Mitchell’s counsel responded the same day with a proposal that was consistent with Ms. Ambrozic’s proposal.

[199] The same day, Mr. Mitchell responded by proposing a schedule with six overnights. His proposal would also mean that R would miss a day of a hockey tournament.

[200] Eventually, Mr. Mitchell brought a motion seeking more overnights during the Christmas school vacation than recommended by Ms. Ambrozic. The motion was settled at court, on consent, on December 23, 2014, upon the terms recommended by Ms. Ambrozic, as proposed by Ms. Mitchell’s counsel.

[201] Ms. Ambrozic testified that, in December of 2014, she was concerned that Ms. Mitchell still had not resolved some emotional issues from the marriage.

[202] She also testified that Ms. Mitchell’s emotional difficulty, which was obvious to R, along with a continuing emotional effect upon R resulting from Mr. Mitchell not living with her on a daily basis for almost two years, while R was between four and six years old, which is a long time for a child of that age, were affecting R’s adjustment to overnights.

[203] On January 21, 2015, Mr. Mitchell’s counsel at the time wrote to Ms. Ambrozic and Ms. Mitchell’s counsel seeking an immediate start to two overnights per weekend “consistent with your comments”. This proposal, however, was not consistent with Ms. Ambrozic’s previously stated position.

[204] In February of 2015, Ms. Mitchell asked Mr. Mitchell about signing up R for soccer on Monday and Wednesdays for the upcoming summer. Mr. Mitchell said no, because he, “had made arrangements for R to swim on Wednesdays”. Ms. Mitchell signed R up for soccer anyway and volunteered to be a coach.

[205] At about this time, Ms. Mitchell took the position that R should have individual closed counselling with Ms. Ambrozic to determine why she was resistant to overnights with Mr. Mitchell, before moving to consecutive overnights. Mr. Mitchell, on the other hand, took the position that R did not need counselling, and that Ms. Mitchell was attempting to delay the commencement of consecutive overnights.

[206] As a result, Mr. Mitchell brought a motion returnable on April 21, 2015, seeking an increase in overnights and other relief. He was partially successful. Bennett J. amended the regular parenting schedule to include Friday nights on alternate weekends and to include Sunday nights commencing in September of 2015, unless Ms. Ambrozic, or another health professional, was of the view that Sunday overnights would be contrary to R’s best interests. Bennett J. also ordered that R would spend two weeks in the summer in the care of her father.

[207] At about this time, Mr. Mitchell attended the “1 Family, 2 Homes” programme with R.

[208] Ms. Mitchell did not attend that programme, because she believed that R is best served by individual counselling with Ms. Ambrozic.

[209] Also, at about this time, Mr. Mitchell took R to two tryouts for level “B” rep hockey. R made the team. Both parents were very pleased. Ms. Mitchell registered R to play rep starting in the fall of 2015.

[210] Ms. Mitchell was the team manager and a back-up trainer for 2015/16.

[211] In May of 2015, Mr. Mitchell was transitioned to his current home-based position as a service and solutions representative, which is a new business focus for his employer. It is unclear from the evidence how much work in the field and/or travel is required in his current position. He testified that his current work schedule is flexible, although he would require at least several weeks’ notice to make a change that would allow him to attend a medical appointment or other event involving R.

[212] In the summer, Ms. Mitchell took R to soccer practices on Mondays. She told Mr. Mitchell that it was up to him whether to take R to soccer games on Wednesdays. He offered to switch his parenting time from Wednesdays to Tuesdays, but Ms. Mitchell would not agree – apparently because she believed that he had an ulterior motive for switching days, because he had attempted to make the same switch previously. Mr. Mitchell then chose not take R to soccer games on Wednesdays, but instead taught R swimming in his backyard pool.

[213] Ms. Ambrozic testified that it was not appropriate for Ms. Mitchell to register R for soccer given that Mr. Mitchell had other plans for Wednesdays. She also testified, however, that it would have been in R’s best interests for Mr. Mitchell to take R to the soccer games on Wednesdays.

[214] R was in her father’s care for two weeks during the summer of 2015. The first week he put her into a day camp from Monday to Friday, which she enjoyed. He saw her daily after camp. The second week, they spent some time at his home and went camping with Ms. Bridge and some of her family members.

[215] In August of 2015, Mr. Mitchell moved to his current home which is about 30 to 40 minutes by car from R’s school. The home is on roughly two acres and has a pool, a basketball net, and a trampoline. There is a community centre very close by with a baseball diamond, tennis courts, trails, and a library.

[216] During August and September of 2015, R had some closed individual counselling sessions with Ms. Ambrozic.

[217] Ms. Ambrozic decided that extending weekends to include Sunday overnights with Mr. Mitchell was not contrary to R’s best interests. Neither Ms. Mitchell nor her counsel suggested otherwise to Ms. Ambrozic.

[218] In October of 2015, Mr. Mitchell travelled for work during three consecutive weeks and, as a result, one of his weekday parenting times with R had to be postponed.

[219] During the first week of the trial in November of 2015, it was Mr. Mitchell’s responsibility to get R to her hockey practice 5:15 p.m. Ms. Mitchell asked him what arrangements he had made and he replied that he had not given it any thought.

[220] Ms. Ambrozic testified (in November of 2015) that she felt that both parents were putting emotional pressure on R.

[221] She stated that, based on R’s emotional sensitivities, she did not recommend any change to the current parenting schedule, including weekday overnights, because the current schedule provides an appropriate balance between Mr. Mitchell’s need for time with R free from Ms. Mitchell’s influence, and R’s dislike of overnights, because the number of overnights that R has with Mr. Mitchell, “has been a bit of a struggle for her to manage”, even though she enjoys spending time with her father. Ms. Ambrozic noted that R doesn’t like to spend overnights away from her mother’s home with anyone, including friends.

[222] She suggested that R should probably be with Mr. Mitchell for half the Christmas school vacation in 2015.

[223] She stated that fairness to Mr. Mitchell would suggest that R should spend Christmas Eve and Christmas morning with him in 2015, but if R’s needs were to given priority, R should spend that time with her mother, in accordance with R’s preference. R told Ms. Ambrozic that her Christmas tradition with her father’s family is Christmas Day dinner.

[224] Ms. Ambrozic also suggested that time with a parent on a long holiday weekend should be extended to include the Monday holiday so that R could be returned to school on Tuesday morning, rather than having an exchange on Monday morning.

[225] Ms. Ambrozic also said that it might be better to eliminate R’s evening phone calls, because they appear to be disruptive to her time with Mr. Mitchell.

[226] Ms. Ambrozic also testified that R identifies Ms. Mitchell as her primary caregiver.

[227] She also stated that R is in the middle of her parents’ conflict which is difficult for her to navigate because of her age, and because she cannot understand the dynamics of the conflict. As a result, she would benefit from some counselling to better understand that it is “okay” for her parents to have different perspectives. She added that her individual counselling with R had not gone long enough to fully address the emotional health problems R is experiencing. She added that her determination that R needs further counselling, from herself or someone else with experience in high conflict separation and divorce, is based on consideration of various factors such as R’s level of distress, her emotional presentation, including what she does not show outwardly in the community, the effect of her parents’ conflict, and unpredictability resulting from her parents’ dysfunctional lack of co-operation.

[228] Ms. Ambrozic stated that she hoped that both parents would support further counselling for R and that she would be concerned if a parent did not support counselling. She added that the involvement of both parents with R’s counselling would be necessary because many issues affecting R’s emotional health stem from activities planned for her by her parents.

[229] She also said that, in her view, Ms. Mitchell needed some individual counselling, and both parents would benefit from joint counselling about joint parenting.

[230] As mentioned earlier, on the last day of the trial in December of 2015, the parties worked out a parenting schedule for R’s Christmas school vacation. A consent court order was issued accordingly. As a result, R was with her father on her birthday, Christmas Eve, and Christmas morning.

[231] Part of the consent order was that R was to be returned to her mother’s care at 8 p.m. on January 2, 2016. On R’s birthday, December 23, 2015, however, Mr. Mitchell gave R tickets to a show on the evening of January 2, 2016. Mr. Mitchell did not mention the tickets to Ms. Mitchell before giving the tickets to R even though it would be impossible for R to attend the show and be returned to her mother on time. A couple of days before the show, Mr. Mitchell told Ms. Mitchell that he had given the tickets to R and that she would be returned to Ms. Mitchell around 9 p.m. He testified, “I called Anne to let her know what the game plan was”. Ms. Mitchell testified that she told him, “no problem” when he called, because he had already given R the tickets and she would have agreed if Mr. Mitchell had asked in advance. Nevertheless, she felt that she should have been asked, rather than told, about R coming home after the time mandated by a court order.

[232] In 2016, Mr. Mitchell added Ms. Bridge to the list of approved persons to pick up R – without informing Ms. Mitchell. He said that he felt he could add Ms. Bridge, because Ms. Mitchell put her friend, Ms. Dewar, on the list. He admitted later, however, that he knew that Ms. Dewar had been approved to pick up R from daycare since before separation and he was fine with that. He added that he did not think he should have discussed adding Ms. Bridge with Ms. Mitchell because Ms. Mitchell would have tried to block Ms. Bridge from being added and that made no sense to him, because Ms. Mitchell had known about his relationship with Ms. Bridge for over two years. He said that the reason Ms. Mitchell objected to him adding Ms. Bridge without consultation was that Ms. Mitchell wants control over R’s time and does not want to recognize Ms. Bridge’s current role with R.

[233] Ms. Mitchell believes that Mr. Mitchell should pick up R during her time with him.

[234] When Ms. Mitchell cannot pick up R, she asks Ms. Dewar to help out. Ms. Dewar has been an emergency contact for R since R’s birth.

[235] Ms. Mitchell started personal counselling with York Family Services in March of 2016, pursuant to Ms. Ambrozic’s suggestion.

[236] In April of 2016, Ms. Mitchell started a new job as an executive assistant. The new job requires her to commute to work on weekdays.

[237] In April of 2016, Mr. Mitchell took R to two tryouts for “A” or “AA” rep hockey. Both parents attended the second tryout. R made the team.

[238] Mr. Mitchell quickly went online to register R for the team but the registration process was not open yet. A couple of days after registration opened, he asked Ms. Mitchell how they should handle hockey registration and she informed him that she had already registered R online, as she had done in all previous years. She also applied to be part of the team staff. Ms. Mitchell testified that Mr. Mitchell also applied to be part of the team staff, but Mr. Mitchell denied that.

[239] Six days later, upon finding out that Ms. Mitchell was to be a trainer for the team, Mr. Mitchell emailed the president of the hockey association informing her that Ms. Mitchell did not have the authority to register R without his consent and that he was not consenting, because he was concerned about Ms. Mitchell being part of the team staff. Mr. Mitchell also contacted the team coach and informed him that if Ms. Mitchell was made part of the team staff, he would not consent to R playing with the team, and he would pull R out of the league and have her play somewhere else.

[240] Ms. Mitchell responded to Mr. Mitchell’s actions by telling the coach that she would be fine with not being part of the team staff, because her focus is on R having fun.

[241] She also testified that she had no objection to Mr. Mitchell being part of the team staff, because it would be in R’s best interests.

[242] Ms. Mitchell testified that R would be very upset to be pulled from the team, because she has played in the same league for five years, has many friends in the league, and has friends on the new team. Five of the players were on her team last year, two were on her team in a previous year, and two go to her school.

[243] Mr. Mitchell stated that he was concerned, because Ms. Mitchell enrolled R in a skating skills programme one night per week near the end of the school year in 2016 on nights that R was with her mother. He said that he was concerned that R was skating too much. He also does not like the fact that hockey practices fall on his Thursday evenings with R, which prevent him from deciding what to do with R that evening. He said that R skates so much that it would probably be good for her to miss a practice on his time.

[244] During the second half of the trial, Ms. Guthrie-Douse testified that R should have some counselling. Her reason was that R shows some symptoms of anxiety with respect to the conflicted relationship between her parents. She suggested that Ms. Ambrozic would be an appropriate counsellor. She stated that both parents should be involved in the intake process. Her recommendation was independent of Ms. Ambrozic’s recommendation. She has never spoken to Ms. Ambrozic about the Mitchells.

[245] Ms. Guthrie-Douse also testified that it is not surprising that R refers to her mother’s residence as her “home” given that her primary residence has always been with her mother.

[246] Mr. Mitchell testified that he did not agree that R needed counselling. He also testified that he did not agree with various other recommendations made by Ms. Ambrozic. He expressed the view, with noticeable frustration and anger in his tone of voice and expression, that Ms. Ambrozic’s involvement with the family has enabled Ms. Mitchell to continue to delay an increase of his parenting time with R. He added that he did not think Ms. Ambrozic helped R much by “so-called counselling”.

[247] He also testified that even though R does not need counselling, he would consent to R having counselling once an equal time parenting plan is in place. He said that R is well-adjusted and all of the problems are a result of how Ms. Mitchell treats him and R. He also said that counselling might help R after the “root cause” is addressed - which is Ms. Mitchell’s controlling behaviour. He said, “until we get that part fixed”, R does not need counselling. He also said that Ms. Mitchell would not consent to counselling for R, but when it was pointed out that Ms. Mitchell had been in favour of counselling for R for over a year, he re-iterated that he did not think R needs counselling. He added that he was not saying that R would not benefit from counselling, but rather that she would not benefit while living with Ms. Mitchell whose behaviour causes the problem. He added that Ms. Mitchell needs to stop make R feel bad about being with him.

[248] Mr. Mitchell testified that at the end of the first half of the trial, he was optimistic that Ms. Mitchell would change her behaviour. As a result, he felt that exchanges would be better, R would no longer be isolated by her mother, and his time with R would be his time. He stated that it was not necessary for his own behaviour to change, because he does not do things to hurt Ms. Mitchell.

[249] Mr. Mitchell testified that Ms. Bridge is present “one hundred percent” of the time R is with him because R really wants Ms. Bridge to be present. He stated that Ms. Bridge makes R’s meals, including breakfast and lunch for school, but he is “around” and that he tucks R into bed and gets her up in the morning. When asked later who makes R breakfast most mornings, he testified that it could be Ms. Bridge or it could be him.

[250] In re-examination, he was asked, in a leading fashion, to detail when he was alone with R. He replied that he is currently alone with R when he picks her up at school, when he puts her to bed (although Ms. Bridge is in the house), when they do chores and shopping (although Ms. Bridge is around), and when they play catch or basketball at the community centre and park across the street from his house (although Ms. Bridge is around or at the house). He also said that he has “lots” of one on one time with R, one on one time with a parent is good, he enjoys one on one time with R, and that the reason he never had any time alone with R pre-separation was that Ms. Mitchell was always with R and would not leave her. He also stated that he had a lot of time with R before separation, but then added, “it was predominantly the three of us”.

[251] Ms. Bridge testified that since about the spring or fall of 2015, she is always present when R is with her father, because R insists on her being present. She stated that R tells her friends that Ms. Bridge is like her stepmom “but not really”. She said that she and R get along very well together.

[252] She said that, although she is always present, Mr. Mitchell and R do lots of sports-related activities “alone” while Ms. Bridge watches them or plays goalie. She added that the weekend before she testified, during the second half of the trial, Mr. Mitchell and R went biking by themselves for several hours.

[253] She stated that R always brings a suitcase with her which, Ms. Bridge stated, indicates that she is a “guest” rather than at her “other home”. Mr. Mitchell gave similar testimony. He said that R always brings a backpack with her that contains clothing for three days, toiletries, hair ties, and a picture of her mother sometimes, which indicates to him that she is a “visitor” rather than coming to her “home” so he puts the backpack in a closet, without unpacking it, for the duration of her stay.

[254] Ms. Bridge added that the weekend before she testified there was only limited clothing in R’s backpack for the first time, which indicated to Ms. Bridge that R might have “weighed in” on what was packed – so Ms. Bridge and Mr. Mitchell were “happy”.

[255] Ms. Mitchell testified that she does not help R pack or check her backpack when she goes to her father’s home.

[256] Ms. Bridge testified that Mr. Mitchell requires R to have her nightly phone call with her mother in the presence of Mr. Mitchell and Ms. Bridge who can hear everything R says. She said, “the pattern of the phone calls almost seems scripted”, because R always hunches her shoulders, curls up on the couch, lowers her voice and, at the end, she says good night and tells her mother that she loves her. Ms. Bridge said that calls used to be lengthy but have been short since R has been required to be in the presence of Mr. Mitchell and Ms. Bridge.

[257] Ms. Bridge testified that on the Friday of the weekend before she testified, both she and Mr. Mitchell forgot about R’s nightly phone call to her mother, and that it was close to 10 p.m. when R remembered. She said that Mr. Mitchell tried to talk R out of calling, because it was late, but R insisted on calling, and, eventually, cried during the call. She said that they also forgot the next night, but R remembered at about 9:30 p.m. She said that R made her call at the usual time Sunday night, and it was short and went well.

[258] Ms. Bridge testified that R keeps four night lights and the radio on in her bedroom, which is across the hall from Mr. Mitchell’s bedroom. Ms. Bridge sleeps in the spare bedroom so that R knows she has unfettered access to her father’s bedroom.

[259] Ms. Bridge testified that all exchanges are stressful and difficult for R because of the level of hostility between her parents.

[260] She said that most interactions involving R and both of her parents occur at a hockey arena and that when R arrives with her father, she lets go of his hand and runs to and clings to her mother – often until someone comes to take her away. And when it is time for R and her father to leave the arena, R wants to go with her mother and cries sometimes. She said that Ms. Mitchell tries to convince R to go with Mr. Mitchell. She added that once or twice Ms. Mitchell left first which made it easier for R to leave with Mr. Mitchell. She said that once R is out of her mother’s presence, she is fine.

[261] She said that she has been at some exchanges when R is returned to her mother’s home, and has seen Ms. Mitchell take clothes off R at the doorway and return them to Mr. Mitchell. Mr. Mitchell gave the same evidence, but neither of them said whether Mr. Mitchell ever told Ms. Mitchell that there was no need to return the clothes at that time.

[262] Ms. Bridge testified that sometimes Ms. Mitchell makes R take uneaten food to school again the next day, so, for a period of time, Mr. Mitchell and R laughingly threw uneaten food out of the car window, until Ms. Bridge told R that they should not do that, because her mother would think that she likes the food and would give her the same thing again.

[263] She said that R was not comfortable using the toaster, because her mother told her not to touch it, but Mr. Mitchell told her recently, “don’t be silly – surely you can make your own toast”.

[264] Ms. Bridge also said that Mr. Mitchell’s mother makes everything fun for her grandchildren, his father likes to read to R, R is close to Mr. Mitchell’s sister, R loves playing with Mr. Mitchell’s brothers, and she is close to her cousins (Ms. South’s daughters).

[265] Ms. Bridge testified that she and R talk a lot, and R chooses to have sensitive conversations with her, rather than with her father.

[266] Ms. Bridge testified that R is close to, and is considered to be a part of, Ms. Bridge’s family. Ms. Bridge has around 40 cousins. Her brother and his wife have a blended family with seven children. Mr. Mitchell and R have gone to many of Ms. Bridge’s family functions including several family picnics. Road hockey is a big part of their culture. In the summer of 2015, R and Mr. Mitchell went camping with Ms. Bridge and three of Ms. Bridge’s cousins, and another time with Ms. Bridge’s parents.

[267] In May of 2016, Ms. Bridge texted R’s track meet results to Ms. Mitchell who texted back a thank you. Ms. Bridge then sent Ms. Mitchell more texts as the day progressed. This was their first interaction. Ms. Bridge described it as cordial.

[268] Ms. Mitchell testified that Mr. Mitchell is usually late returning R.

[269] As detailed earlier, Mr. Mitchell initially testified that he was never more than 10 minutes late, and then took the position that he was justified each time he was later than that. He was asked what he would do in the future if he was going to be late. His reply was that, ideally, he would give Ms. Mitchell as much advance notice as possible.

[270] Mr. Mitchell stated that he seeks a parenting plan that will have R staying with him overnight every Wednesday and Thursday so that she will have an equal amount of time with each parent. He conceded that R might have a greater bond with Ms. Mitchell but stated that he should have a strong role. He said that Ms. Mitchell is currently R’s primary parent, because she spends more time with Ms. Mitchell, but if she spent equal time with him, he would be a primary parent as well.

[271] He testified that if he has sole custody of R, he will remove her from her current hockey team and will register her with the “B” rep team in a different town and league where he has already spoken to the coach who is familiar with R. He said that he will tell Ms. Mitchell that neither of them may attend practices or games with the new team during R’s time with the other parent. He also said that whether Ms. Mitchell could attend games on his days with R would depend on whether Ms. Mitchell continued her “controlling” behaviours like isolating, hovering, and pulling R from the team, rather than just sitting in the stands. He said that he told the other team’s coach that he would like to be part of the on-ice team staff, but also told the coach that he would not apply, because it would not make sense for him to be on the team staff for the same reasons that Ms. Mitchell should not be on the team staff. He said that he wants R to play in another league, because Ms. Mitchell would not be on the team staff.

[272] Mr. Mitchell said that Ms. Mitchell coddles R by waiting inside the arena lobby so that R will stay with her until the coach tells her to go into the change room with the rest of the team, by hovering outside the change room door so that R can “sneak out” to see her, by doing up R’s skates, by “sneaking” into the change room, by stopping R en route to the ice and giving her a hug and a kiss and checking her helmet while the other kids go on the ice, and by waiting at the door when R comes off ice to greet her. He said that he, on the other hand, believes in independence for R, so he stays off to the side during practices and does not greet her when the practice ends. He said that when R sees Ms. Mitchell at the arena, “she switches to mommy mode”, and then switches back to normal when they leave the arena. He complained that R acts as her mother is the only parent at the arena and Ms. Mitchell acts the same way. He says that the result of Ms. Mitchell’s attention to R at arenas is that R is not developing like a normal nine year old.

[273] He also said that he wants R to play at the hockey level she wants.

[274] When asked what level she would be at with the other team, he replied, “the highest level at [the other town]”. When the question was repeated, he said, “B or BB”. He agreed that “B” was a lower level than her current team, but said that it does not matter to R whether she is playing “A” or “B” level hockey, because she does not know the difference. He added that R would not want to play at the higher level, because previously in rep, she was yelled at by the coach, she sat on the bench and cried a couple of times, she is not ultra-competitive, and she does not care who wins.

[275] He added that he did not think that R cares what hockey level she plays at.

[276] He testified that, even though Ms. Mitchell denies it, he believes that she is in a relationship with one of the assistant coaches on R’s current hockey team and, as a result, even if Ms. Mitchell is not on the team staff, she would be able to influence R at hockey through her boyfriend, and that R should be on a team without Ms. Mitchell being involved before, during, or after the game, to ensure that R will not be “coddled”. He said, “It’s not like they just take her to the rink and let R be a kid with all the other kids – she’s isolated and pulled away from the group and coddled and pampered”. He was unable to give any particulars about anything the assistant coach did or did not do during the past season that was inappropriate. He maintained, nevertheless, that it would be better for R to have no contact with the assistant coach – R should just have contact with her parent who is at the rink.

[277] He also testified that he does not go to all of R’s hockey practices, because it would be hard on R.

[278] He also testified that Ms. Mitchell “blatantly” prevented R from being on the ice with him during the pre-skate at a father-daughter game by taping R’s hockey stick in the parking lot during the first 20 minutes of the pre-skate, when the stick did not need to be taped. He did not explain how he knew that the stick did not need to be taped, given that it was already re-taped when he saw it.

[279] As mentioned earlier, Mr. Mitchell also testified that he will (or might) remove R from French Immersion if he has sole custody, because he does not believe that French Immersion has long-term value for learning, because it is a burden to learn material in French, particularly for R, because she spends a lot of time in hockey-related activities. He agreed that R’s teachers have never suggested that she should not be in French Immersion. He also testified that she is a “solid B student”.

[280] Mr. Mitchell agreed that changing R’s hockey team and school would be a lot of change at once, so he would change the hockey team first, because that is his biggest concern.

[281] During the trial, R told Ms. Guthrie-Douse that she would prefer a three day rotation between her parents during the summer, rather than a longer rotation.

[282] She also said that she loves hockey and would play more if she could, she was not interested in signing up for soccer this year, and she had no interest in organized baseball, lacrosse, or tennis. She also stated that a full week of hockey camp in a previous summer was too much.

[283] She also stated that she would like to be with her mother from her birthday on December 23rd until the afternoon of Christmas Day, and with her father from early Christmas afternoon until Boxing Day. Ms. Guthrie-Douse stated that R likely meant in 2016.

[284] R stated that she would like to evenly divide Christmas school vacation and March break between her parents, but she would prefer to alternate Easter with her parents.

[285] She volunteered to Ms. Guthrie-Douse that she is doing well in French Immersion.

[286] She also mentioned that she avoids petting the cat at her father’s home, because she is allergic to cats.

Factors in Relation to Custody and Parenting Schedule

Love, Affection, and Emotional Ties with her Parents

[287] The evidence is clear that R loves and has emotional ties with both of her parents.

[288] That being said, the evidence is also clear that she has a much closer emotional tie with her mother.

[289] Ms. Bridge’s evidence, for example, establishes that, currently, when R arrives at an arena with her father, when she sees her mother, she lets go of his hand and runs to and clings to her mother – often until someone comes to take her away. And when it is time for R and her father to leave the arena, R wants to go with her mother and cries sometimes. She said that Ms. Mitchell has to try to convince R to go with Mr. Mitchell. She added that if Ms. Mitchell leaves first, it is much easier for R to leave with Mr. Mitchell.

[290] It is not surprising that R has a closer bond with her mother, given that her mother has been her primary parent for R’s entire life. R has always lived with her mother and quite naturally refers to her mother’s home as her “home”.

[291] Importantly, Ms. Mitchell has always been very active in R’s life. She has been responsible to take R to daycare, school, medical appointments, and dental appointments. She performed traditional home-maker roles for the family prior to separation. Ms. Mitchell got R ready for school, gave her breakfast, took her to school, returned her from school, and made her dinner. She bathed her and put her to bed (except when she asked Mr. Mitchell to help).

[292] As Ms. South testified, Ms. Mitchell did everything for R, even before Mr. Mitchell moved to Vancouver. And, as Ms. South elaborated, Ms. Mitchell was involved with every aspect of R’s day to care and activities, except when Ms. Mitchell was travelling for work.

[293] Although Mr. Mitchell had some limited involvement in R’s care prior to separation, it is evident that Ms. Mitchell was very much more involved – before and while Mr. Mitchell resided in Vancouver.

[294] Further, prior to separation, unlike Ms. Mitchell, Mr. Mitchell was, remarkably, never alone with R.

[295] Perhaps that is not surprising given that he testified, “I’m not understanding why one on one time is so important”, and perhaps that testimony is not surprising given that he grew up in a family of five children. R, on the other hand, is an only child. When Mr. Mitchell said, sarcastically, that he never said to his father, “Daddy, please take me away for the weekend, I just want to be with you”, drawing from his own background to indicate that one on one time was not important, he demonstrated a lack of sensitivity to the fact that R has no siblings. Perhaps, Ms. Mitchell has a better understanding of R’s needs, in part, because she was an only child as well.

[296] In any event, Mr. Mitchell was never alone with R during the first six years of her life, whether or not Ms. Mitchell was around. When Ms. Mitchell travelled for work, Mr. Mitchell’s parents moved in to take care of R, while Mr. Mitchell continued to focus on his work. The court notes that this evidence, given by both parties and Mr. Mitchell’s mother, contradicts Mr. Mitchell’s contention and complaint that the reason he was never alone with R was that Ms. Mitchell was “controlling” and would not let him be alone with R. Obviously, that was not the case when Ms. Mitchell was away on business trips.

[297] Mr. Mitchell, himself, described his parental role as being a “regular father” who was “present” and not, “leaving to do stuff on [his] own”. It is evident that Ms. Mitchell had a considerably expanded view of her role as a parent, and, as a result, their child developed, over many years, a much closer bond with her.

[298] While Mr. Mitchell has gradually become more involved with caring for R since he returned from Vancouver, R continues to prefer to be at her mother’s home overnight and, as Ms. Bridge’s evidence indicates, she misses her mother very much, even when enjoying time with her father.

[299] The evidence also established that Ms. Mitchell is very affectionate toward and very protective of R.

[300] As Mr. Mitchell testified, for example, she waits outside the hockey change room so that R can come to her to have her skates tied properly, she checks that R’s helmet is secure, she gives R a hug and kisses her helmet before R goes on the ice, and she is waiting by the door to greet R when she comes off the ice.

[301] In Mr. Mitchell’s view, this behaviour is inappropriate coddling. He said that he believes in promoting R’s independence, so he stays off to the side and does not greet her when she comes off the ice.

[302] The court does not share Mr. Mitchell’s view that Ms. Mitchell’s affectionate behaviour is inappropriate, indeed the court finds that it was quite appropriate, given that R was only eight years old during the first half of her most recent hockey season. In any event, Ms. Mitchell’s conduct at the hockey arena is consistent with a closer bond with R.

Love, Affection, and Emotional Ties with her Paternal Grandparents

[303] In addition to regular visits with R pre-separation, Mr. Mitchell’s parents took care of R when Ms. Mitchell travelled for work. The evidence indicates that R has natural love, affection, and emotional ties with her paternal grandparents.

The Child’s Views and Preferences

[304] R is now nine years old and is doing well in school and athletics. She is mature enough to have a meaningful preference.

[305] It is clear from the evidence that she enjoys spending time with both parents, but she prefers being with her mother – particularly overnight. She also prefers to be with her mother on her birthday, Christmas Eve, and Christmas morning, at least in 2016.

[306] Further, she would like to divide the Christmas school vacation and March break evenly between her parents, and she would like Easter to alternate.

[307] Also, she would prefer a three day rotation, rather than longer, between her parents during the summer, with the exception of a week at Camp Medeba, and she thinks that a full week of summer hockey camp is too much.

[308] She also was not interested in playing soccer this summer and had no interest in organized baseball, lacrosse, or tennis.

Length of Time the Child has Lived in a Stable Home Environment

[309] R has lived with her mother her entire life in a stable home environment. She considers her mother’s home to be her “home”. Her mother has always been her primary parent and has always cared for her, been affectionate toward her, and protective of her. Ms. Mitchell also made a significant financial contribution to support a stable home environment.

[310] Mr. Mitchell has also played a role in providing a stable home environment for R. As he said, he was present, and, as Ms. Mitchell described, he had some involvement in R’s care, and he regularly participated in her leisure activities on weekends before he moved to Vancouver. He also made a significant financial contribution to the family. While he lived in Vancouver, however, he was not as directly involved in R’s home environment. Even before he moved to Vancouver, however, his role was less than Ms. Mitchell’s.

[311] Since his return to Ontario, Mr. Mitchell has tried to provide R with a stable home environment, and he has had some success, even though he has moved twice, each time further from R’s school. Nevertheless, the evidence establishes that R remains more comfortable in her mother’s home environment than in her father’s home environment – although both are stable.

Ability and Willingness to Provide Guidance and Education, the Necessaries of Life and any Special Needs of the Child

[312] The evidence establishes that Ms. Mitchell is completely capable and willing to provide sensitive and appropriate guidance, appropriate education, the necessaries of life, and address any special needs R may have from time to time.

[313] She has appropriately cared for R during R’s entire life.

[314] She enrolled R in the French Immersion programme where R is doing well and is proud of her progress.

[315] She is completely supportive of R’s very strong interest in hockey and has been a team staff member for the past several years.

[316] She recognizes that R currently requires some individual counselling – as recommended by Ms. Ambrozic and Ms. Guthrie-Douse.

[317] The reasons given for their recommendations are rational and reasonable. The evidence shows that R is in the middle of her parents’ conflict and is consequently at risk of emotional harm. The court accepts that R needs some professional assistance in her current circumstances. Ms. Ambrozic is an appropriate resource for R given that she is very familiar with the interpersonal dynamics involved and has always taken a neutral, careful, and reasonable approach. The court does not accept Mr. Mitchell’s view that Ms. Ambrozic has demonstrated bias or has enabled Ms. Mitchell to inappropriately stall increases in his parenting time with R. The evidence establishes that Ms. Ambrozic has consistently demonstrated high degree of sensitivity to the needs of R and both parents.

[318] Mr. Mitchell, on the other hand, does not agree that R currently needs counselling.

[319] As just noted, he believes that Ms. Ambrozic is biased and has enabled Ms. Mitchell to delay increases to his parenting time.

[320] The likely cause of his distorted view of Ms. Ambrozic’s involvement is that he had an unrealistic expectation about a parenting schedule upon his return to Ontario. His expectation was that R would transition to living with him half of the time within a few weeks or a couple of months. Yet, before he moved to Vancouver, he had very limited involvement caring for R during the first four and a half years of her life, including never being alone with her, and, after he moved to Vancouver, he had an even more limited involvement caring for her, including never being alone with her, for almost two years, until she was six and a half years old.

[321] The court accepts Ms. Ambrozic’s and Ms. Guthrie-Douse’s testimony that there was nothing unusual about R not starting overnights until October of 2014. Mr. Mitchell, however, sees this as a clear indication that he is not being treated fairly. As a result, he has experienced frustration, anger, and impatience since he returned from Vancouver, as was evident from his testimony and demeanour in the courtroom at times.

[322] His unrealistic expectation has, unfortunately, negatively affected his judgment and coloured his perception of both Ms. Ambrozic and Ms. Mitchell.

[323] Further, for no good reason, he wishes to remove R from French Immersion where she has been doing well for years and is proud of her progress. When he was informed, during cross-examination, that removal from the programme would entail a change of school, an important fact that he had apparently not considered, he was temporarily taken aback, and attempted to deny his earlier testimony. Later, however, he indicated that if he becomes the decision-maker, a change of school is a real possibility.

[324] Further, he wishes to remove R from her “A” level hockey team, where she is familiar with a number of her team-mates, and from the league where she has been playing well and enjoying herself for years. Making a change to R’s hockey environment is significant, because she loves hockey. The court does not accept Mr. Mitchell’s uncorroborated testimony that R does not enjoy rep hockey, because it is too competitive, or that she cried as a result of being yelled at and being benched. Nor does the court accept that she does not care what level she plays at – after all she tried out for the “A” level team. Further, Mr. Mitchell took her to both try-outs and when she made the team, he tried to register her immediately before online registration was open. Given his rush to register R for the “A” level team, the court has difficulty understanding his objection to Ms. Mitchell registering R online a few days after he tried to do the same thing. The evidence leads the court to conclude that Mr. Mitchell’s intention to switch R to a “B” level team in another town and league is chiefly motivated by his needs and wishes, rather than hers.

[325] Finally, Ms. Bridge testified that R chooses to have sensitive conversations with her rather than with Mr. Mitchell.

Plan Proposed for the Child’s Care and Upbringing

[326] As just discussed, Ms. Mitchell intends to continue the status quo for R, whereas Mr. Mitchell plans to remove R from her hockey team and, perhaps, remove her from her school. He also plans to restrict Ms. Mitchell’s attendance at R’s extracurricular activities.

[327] The evidence indicates that Ms. Bridge plays a significant role caring for R when R is with her father. It seems clear that, for as long as she is in a close relationship with Mr. Mitchell, that role will continue. Her involvement is positive for R.

Permanence of the Family Unit with which it is Proposed that the Child will Live

[328] Ms. Mitchell’s family unit consists of herself and R and is stable. Ms. Mitchell is a relatively young woman and it would not be surprising if she eventually forms a new adult relationship. The evidence causes the court to be confident, however, that she would ensure that any such relationship would be beneficial to R.

[329] Mr. Mitchell’s family unit formally consists of himself and R and is stable in the sense that he is strongly committed to having a long-term relationship with R. He has been in a significant adult relationship with Ms. Bridge for three years, which is beneficial to R.

Ability to Act as a Parent

[330] Ms. Mitchell has demonstrated, throughout R’s life, that she is a capable, responsible, child-focused, and active parent, and R has thrived in her care. Ms. Mitchell has readily accepted the views of the involved professionals about R’s parenting schedule, even when their views have differed from her own; she gives R’s best interests priority over her own views and feelings.

[331] On the other hand, she should not have registered R for soccer when she believed that R would be in swimming lessons on game nights and, as a result, could only go to practices. That experience might explain R’s subsequent lack of interest in continuing in soccer. Further, Ms. Mitchell should not have refused to switch Mr. Mitchell’s parenting time from Wednesday to Tuesday to accommodate soccer on Wednesdays simply because she believed he had an ulterior motive for the switch. It would have been in R’s best interests to play soccer on Wednesdays, and given that Ms. Mitchell had signed R up for soccer, it was incumbent on Ms. Mitchell to make the switch unless a switch would be contrary to R’s best interests.

[332] The evidence also indicates that Ms. Mitchell has caused unnecessary distress to R by her handling of their daily evening phone calls when R is with Mr. Mitchell overnight. To reduce the likelihood of distress to R, it is important that the calls be no longer than 10 minutes in length, as recommended by Ms. Ambrozic, but Ms. Mitchell has permitted calls to last longer and, occasionally, much longer, in part by not taking responsibility, as the adult, to terminate the call. Further, her reference to treats or surprises for R when she returns to Ms. Mitchell’s care tends to undermine the importance of the time R is spending with her father. It would be better for R for Ms. Mitchell to supportively focus the phone conversations on the fun R is having with her father and Ms. Bridge.

[333] Further, Ms. Mitchell should have made a stronger effort, earlier on, to address her emotional distrust of Mr. Mitchell to avoid a transfer of her feelings to R. She should not have, for example, told R not to tell Mr. Mitchell that she and R were going on a trip in the summer of 2014. Although the court does not find that Ms. Mitchell intended to transfer her negative feelings to R, the court does find that she should have sought individual counselling sooner to prevent this from occurring. That being said, her commencement of individual counselling during the hiatus in the trial was a positive development and showed a commitment toward improving her parenting.

[334] Mr. Mitchell has had a more limited involvement with R as a parent and has been less child-focused. Recently, however, he taught R how to swim and he has nurtured her positive relationship with Ms. Bridge. Further, since separation, he is the only parent nurturing R’s positive relationship with his parents and extended family.

[335] On the other hand, the pressure Mr. Mitchell put upon R to spend overnights with him was excessive and contrary to her best interests. Given that he had been living in Vancouver for almost two years, his limited involvement in R’s care before separation, and that R had never been alone with him prior to separation, he should have been much more patient about her transition to spending overnights with him.

[336] As well, his intention to remove R from her hockey team is ill considered and seems more related to his feelings than her best interests. Further, his view that Ms. Mitchell “hurts” R and inappropriately “coddles” her by checking her equipment and giving her affectionate gestures at hockey arenas shows a lack of understanding about R’s age and stage of development.

[337] Similarly, his interest in removing R from French Immersion, where she is doing well, and, as a result, removing her from her school, which she has been attending for years, seems more related to his feelings than her best interests.

[338] Further his refusal to agree to signing R up for soccer after she had been playing for years, on the basis of a misleading statement to Ms. Mitchell implying that he had R in swimming lessons on Wednesdays, and his subsequent refusal to take R to soccer games on Wednesdays, were unreasonable and contrary to R’s best interests, and might have led to her current lack of interest in soccer. He should have agreed to R playing soccer on Wednesdays and taught her to swim on Thursdays and/or weekends given that she did not have any hockey commitments on weekends in the summer.

[339] Further, his history of occasionally returning R significantly late to Ms. Mitchell’s care, as well as misleading Ms. Mitchell the first time he took R to Ms. Bridge’s family reunion, showed a lack of responsibility as a parent by undermining the parenting schedule and exposing R to unnecessary conflict.

[340] His explanation that he was prioritizing R’s best interests over Ms. Mitchell’s self-interest is not accepted by the court. Ms. Mitchell was naturally, and had every right to be, upset by Mr. Mitchell’s unilateral changes to the parenting schedule. His conduct was inconsiderate and inappropriate. It is remarkable, for example, that he attempted to justify intentionally returning R late on the occasion that R toured Bernie Nicholls’ home, on the basis that it was a “once in a lifetime” opportunity. It is of concern that Mr. Mitchell apparently did not realize, at or since that time, that he could simply take R to visit Bernie Nicholls’ home, to see the rest of his collection, on another occasion. After all, Mr. Mitchell and R just dropped by Mr. Nicholls’ home on that occasion and, presumably, they can do so again given that Mr. Nicholls is Ms. Bridge’s cousin. Mr. Mitchell’s complete dismissal and, in fact, criticism of Ms. Mitchell’s justifiable anger about him blithely ignoring the parenting schedule is disturbing. Similarly, it was irresponsible, disrespectful to Ms. Mitchell, controlling, and improper for him to intentionally give R a show ticket as a birthday present that would require non-compliance with the court-ordered parenting schedule, established on consent less than three weeks earlier, and then contact Ms. Mitchell after the fact, “to let her know what the game plan was”.

[341] As well, Mr. Mitchell misses some of his parenting times with R due to work. He said that he will try harder to avoid missing mid-week parenting times if R is with him overnight mid-week. The court is left to puzzle over whether he will try harder in the future, which means that he is not trying his best now, or whether he is trying his best now, and is attempting to mislead the court by saying that he will try harder in the future.

[342] Further, Mr. Mitchell should have informed Ms. Mitchell of his wish to add Ms. Bridge as an approved person to pick up R at school. Part of being a responsible parent in a separated family is treating the other parent with respect in order to reduce parental conflict that can negatively affect a child. Even if Mr. Mitchell thought that Ms. Mitchell would object, he should have discussed this with her in advance. The same is true with respect to introducing R to Ms. Bridge. He was disrespectful toward Ms. Mitchell by introducing R to Ms. Bridge without discussing this with Ms. Mitchell in advance. And it was disrespectful to mislead her when he planned on taking R to Ms. Bridge’s family reunion.

[343] Similarly, Mr. Mitchell’s practice of laughingly throwing R’s lunch leftovers out the car window, and encouraging R to do the same, after he picked R up from school, was clearly disrespectful towards Ms. Mitchell and undermined her parental authority. There was no evidence that Ms. Mitchell packed unhealthy or inappropriate items in R’s lunch or that returning the uneaten items to R’s lunch the next day was inappropriate. The court can think of no reason, other than attempting to engender disrespect by R toward Ms. Mitchell, for Mr. Mitchell to engage in such childish and inappropriate behaviour, which also modelled wastefulness. Similarly, Mr. Mitchell could have permitted R to use the toaster at his home without implying that Ms. Mitchell’s rule at her home was “silly”.

[344] Further, Mr. Mitchell’s resistance to R having individual counselling is of considerable concern.

[345] Ms. Ambrozic gave thoughtful and considered testimony that R needs individual counselling to be able to navigate the dysfunctional and conflicted relationship between her parents. Ms. Guthrie-Douse gave equally thoughtful and considered testimony that R needs counselling to address anxiety caused by conflict between her parents. Mr. Mitchell, however, rejects their objective professional opinions. Mr. Mitchell, in effect, has decided that Ms. Ambrozic is biased because she is sensitive to R’s needs and Ms. Mitchell’s needs. In his view, she “panders” to Ms. Mitchell’s needs. He fails to consider, however, that Ms. Ambrozic is also sensitive to his needs. For example, she focused on fairness to Mr. Mitchell, rather than just R’s preferences, with respect to R’s Christmas schedule in 2015. In family therapy, focusing on the needs of the entire family is appropriate – not a sign of bias. Mr. Mitchell’s inability to appreciate this fundamental point is concerning.

Relationship by Blood

[346] Ms. Mitchell and Mr. Mitchell are R’s natural parents.

The Child’s Physical, Mental, and Emotional Needs and the Appropriate Care or Treatment to meet those Needs

[347] The court is concerned that there is a cat at Mr. Mitchell’s home if R is allergic to cats. Otherwise, these issues have already been addressed.

The Child’s Physical, Mental, and Emotional Level of Development

[348] The court does not accept Mr. Mitchell’s uncorroborated suggestion that R is skating too much. Otherwise, these issues have already been addressed.

The Child’s Cultural Background

[349] R has been raised by both her parents to love hockey.

[350] The evidence leads the court to infer that hockey is important in Mr. Mitchell’s family background. He plays hockey regularly and is committed to support an annual charity tournament in his home town. He seemed thrilled that Mr. Nicholls was willing to give R some individual attention at a hockey camp and show her his hockey memorabilia. Ms. Bridge, who grew up in the same area as Mr. Mitchell, mentioned that road hockey is part of her family’s culture.

[351] As discussed previously, Ms. Mitchell has continuously and strongly supported R’s involvement in hockey – for example, by repeatedly being a member of the team staff, assiduously attending her practices as well as her games, and by helping to make the experience enjoyable for R by providing her with signs of affection and ensuring that her equipment is properly adjusted.

[352] Mr. Mitchell has also supported R’s involvement in hockey but he has been resentful about having to take R to hockey activities while she is with him on weekends, because it is a significant time commitment, and because Ms. Mitchell is present at the arena.

[353] While it is true that R has difficulty leaving her mother after hockey, the issue can and should be addressed directly by Ms. Mitchell leaving the arena reasonably quickly when R is in her father’s care. This concern is not a good reason for Mr. Mitchell to resent or seek to change R’s on-going involvement in the sport she loves and has been raised to love.

[354] Nor is Mr. Mitchell’s complaint about hockey taking a lot of his parenting time reasonable – this is an activity that is very important to R (and to him), and, as a result, he should be supportive of R’s extensive involvement in hockey, regardless of the time commitment, if he is willing to prioritize her best interests.

Importance for the Child’s Development of a Positive Relationship with a Parent and a Secure Place as a Member of a Family

[355] It is clearly important for R’s development to have a positive relationship and a secure place as a member of the family of both her parents. As noted earlier, she loves, has affection for, and has emotional ties with both parents. As a result, she needs a significant amount of time with each of them.

The Child’s Relationships and Ties to a Parent, Relative, Other Member of the Child’s Extended Family or Member of the Child’s Community

[356] R’s connection to her parents and paternal grandparents has been addressed.

[357] She also has a relationship with her maternal grandmother that is supported by Ms. Mitchell.

[358] She also has a positive relationship with her paternal aunt and uncles and their families that is supported by Mr. Mitchell.

[359] Further, she is familiar with a number of players on her current hockey team and Ms. Mitchell supports R’s continued involvement with the team.

[360] Additionally, positive relationships with Ms. Bridge and her extended family have been supported by Mr. Mitchell.

Importance of Continuity in the Child’s Care and the Possible Effect on the Child of Disruption of that Continuity

[361] R has a very strong attachment to her mother and disruptions to her mother’s care, for example, by spending overnights elsewhere, or extended periods without seeing her mother, are difficult for her, because she misses her mother and likes to be with her.

[362] R also has an attachment to her father that has strengthened since his return to Ontario, and she likes to spend time with him and Ms. Bridge. It is reasonable to infer that extended periods without seeing her father, or Ms. Bridge, would be difficult for R.

The Child’s Views and Wishes

[363] In addition to the observations above about R’s preferences, she wants Ms. Bridge to be present when she is in her father’s care.

Risk that the Child may Suffer Harm through being Removed from, Kept away from, Returned to, or Allowed to Remain in the Care of a Parent

[364] It would be emotionally harmful for R to be removed from, or kept away from, either parent. She requires significant contact with, and care from, both her parents, ideally free from parental conflict.

Willingness of Each Parent to Facilitate Contact with the Other Parent

[365] Ms. Mitchell is concerned that Mr. Mitchell has not complied with the parenting schedule return time when it suits his wishes.

[366] The court is concerned that Mr. Mitchell has, intentionally and unilaterally, changed parenting schedule return times when he thinks he is justified. As noted earlier, not surprisingly, this leads to parental conflict that is emotionally harmful to R. It is also disrespectful toward Ms. Mitchell, which is inappropriate modelling behaviour for R.

[367] Mr. Mitchell is concerned that Ms. Mitchell transfers her emotional distrust toward him to R and that Ms. Mitchell has, in bad faith, intentionally delayed increasing R’s parenting time with him.

[368] The court is concerned that Ms. Mitchell has, unintentionally, transferred some of her emotional distrust of Mr. Mitchell to R. Not surprisingly, this leads to parental conflict that is emotionally harmful to R.

[369] The court does not accept, however, that Ms. Mitchell has, in bad faith, intentionally delayed increasing Mr. Mitchell’s parenting time. She has taken an incremental approach and she has accepted the views of the professionals involved with the family. She agreed to a significant increase in R’s time with Mr. Mitchell within the first few months of Mr. Mitchell’s return to Ontario, prior to any professional involvement, and has abided by the views of professionals since.

Any Other Relevant Circumstance

[370] The court finds that it is inappropriate for R to be required to have her phone calls with her mother in the presence of Mr. Mitchell and Ms. Bridge. It is not surprising that she sits hunched over, curled up on the couch, and keeps her voice low, given that Mr. Mitchell and Ms. Bridge are both listening to her conversation.

Analysis – Custody and Parenting Schedule

[371] Custody has evolved to mean final decision-making authority about serious matters affecting a child. The usual major areas of decision-making authority have been distilled to religion, health, and education, although there may be other areas in any specific case.

[372] Generally, joint custody may be appropriate where it is in a child’s best interests for more than one person to have custody and all persons with custody are able to communicate appropriately with each other and make decisions together based on the best interests of the child.

[373] The court’s role in a custody case is to decide what is in the child’s best interests at that time. While historical information may be of assistance, it is the present time that matters, with an eye to the future, but keeping in mind that the future cannot be predicted with certainty. If circumstances change in a material way over time, then a motion to change is available to bring the issue of the child’s best interests back before the court.

[374] R’s parents fundamentally disagree about the appropriate degree of involvement of Ms. Mitchell in R’s hockey. Ms. Mitchell supports R by being on the team staff, attending every game and almost every practice, checking her equipment, and giving her signs of affection and support. Mr. Mitchell, on the other hand, believes that Ms. Mitchell is unduly interfering when she engages in this conduct on his parenting time and that she is inappropriately coddling R. Mr. Mitchell feels so strongly about this that he refused to consent to R playing with her rep team and, if he could, he would inappropriately remove R from her current team and league and put her into another league in an effort to control Ms. Mitchell’s access to R at hockey arenas. Thus, the parties are at a stand-off about hockey.

[375] Similarly, the parties were unable to resolve the issue of soccer for R. A stand-off resulted, where Ms. Mitchell, inappropriately, registered R for soccer on Mondays and Wednesdays, refused to switch Mr. Mitchell’s parenting time from Wednesday to Tuesday, and took R to the soccer practices on Mondays, and Mr. Mitchell, inappropriately, refused to take R to the soccer games on Wednesdays. This result was obviously not in R’s best interests and was the outcome of her parents’ inability to communicate with each other and make decisions co-operatively.

[376] Mr. Mitchell would, if he could, inappropriately remove R from French Immersion, a programme in which she does well and is proud of her progress. Ms. Mitchell enrolled her into the programme. Removing R from the programme would mean changing R’s school, despite the fact that her current school is very close to Ms. Mitchell’s home. A stand-off is predictable. For that reason, the court made a temporary order about R’s schooling pending final judgment.

[377] Mr. Mitchell has a history of occasionally, intentionally, and inappropriately disregarding parenting schedule return times and returning R to Ms. Mitchell late when he unilaterally decides that R’s activity is more important than returning her on time to Ms. Mitchell – thus, creating unnecessary conflict with Ms. Mitchell.

[378] Mr. Mitchell unreasonably believes that R does not need continuing counselling to cope with the conflict caused by her parents’ dysfunctional relationship. He refuses to accept the independent opinions of Ms. Ambrozic and Ms. Guthrie-Douse that R requires counselling. Ms. Mitchell, on the other hand, completely accepts their opinions. The parties are at a stand-off on this issue and, as a result, R was not getting the counselling she required before the court made a temporary order pending final judgment.

[379] Mr. Mitchell unreasonably believes that Ms. Ambrozic is biased and has enabled Ms. Mitchell to inappropriately delay increasing R’s parenting time with him, whereas the court finds that Ms. Ambrozic is entirely neutral and that Ms. Mitchell has not inappropriately delayed increases in his parenting time. Mr. Mitchell feels so strongly about this that it is unlikely that the court’s determination will persuade him otherwise. His strongly held belief and his related sense of frustration with, and anger toward, Ms. Mitchell create a very significant barrier to co-operative communication between him and Ms. Mitchell.

[380] For these reasons, the court is satisfied, on a balance of probabilities, that Ms. Mitchell and Mr. Mitchell cannot make decisions together based exclusively on R’s best interests or communicate appropriately with each other about R’s best interests. The court finds that joint custody, even with parallel parenting, would expose R to continuing parental conflict that would be harmful to her.

[381] It remains, therefore, for the court to determine which sole custodial arrangement is in R’s best interests.

[382] The court has considered: the greater emotional bond between R and her mother and the reasons why that bond is stronger than R’s bond with her father; the fact that Ms. Mitchell has always been R’s primary parent; the minimal time R has been alone with Mr. Mitchell; Mr. Mitchell’s conflicting evidence about the importance of alone time with his daughter; Mr. Mitchell’s lack of sensitivity about the amount of time required after separation for R to adjust to staying with him overnight; Mr. Mitchell’s occasional undermining of Ms. Mitchell’s parental authority; Mr. Mitchell’s occasional unilateral changes to the parenting schedule return times; Mr. Mitchell’s high level of anger and frustration toward Ms. Mitchell; Mr. Mitchell’s desire to restrict R’s contact with, and emotional support from, Ms. Mitchell at sports events; Mr. Mitchell’s apparent lack of insight about the likely negative emotional consequences to R that would result from removing her from her hockey team, hockey league, education programme, and school; Mr. Mitchell’s lack of understanding that R requires counselling as a result of the dysfunctional lack of co-operation and conflict between her parents; Ms. Mitchell telling R to keep their summer trip a secret; Ms. Mitchell’s positive involvement in individual counselling; Ms. Mitchell’s occasional long phone calls with R; Mr. Mitchell’s listening in on the phone calls; the fact that R prefers to have sensitive discussions with Ms. Bridge rather than with her father; the other evidence about each parent’s ability to act as a parent and to provide for the guidance, education and special needs of R; and the rest of the evidence.

[383] Based on the evidence and the conditions means, needs, and other circumstances of R, the court finds on a balance of probabilities that it is in R’s best interests to be in the custody of Ms. Mitchell.

[384] That is not to say that Ms. Mitchell is a perfect parent – no one is. It is always possible to criticize some aspects of anyone’s parenting. But, having considered all of the relevant factors and evidence, the court finds that Ms. Mitchell is the parent best suited to have custody of R.

[385] Amongst other major decisions, Ms. Mitchell will determine R’s school and education path, whether R continues in counselling, and what extracurricular activities R is involved in – except that the court will stipulate that R shall attend Camp Medeba during Mr. Mitchell’s parenting time in accordance with R’s wishes, and Ms. Mitchell shall not schedule extracurricular activities other than hockey, or school-related activities, during R’s time with Mr. Mitchell unless Mr. Mitchell consents in advance and in writing.

[386] It is obvious to the court that both parents love R very much. Keeping that in mind, the court finds that it is in R’s best interests for Ms. Mitchell to consult with Mr. Mitchell, in writing and in advance, about major decisions about R, because Mr. Mitchell may have valid perspectives that Ms. Mitchell has not considered. By “major” decisions, the court does not mean a narrow range of decisions that are life altering for R. If Ms. Mitchell is not sure whether a decision is major or not, or if she thinks that Mr. Mitchell might consider the decision to be major, then she must consult with Mr. Mitchell. It would be contrary to R’s best interests for Ms. Mitchell to take a restricted view about which decisions are major decisions – because that approach will likely lead to conflict.

[387] As noted earlier, Mr. Mitchell seeks equal parenting time, and, specifically, he seeks an order that R be with him overnight on Wednesday and Thursdays, at least during the school year, in addition to the time she is with him pursuant to the current temporary parenting schedule. Ms. Mitchell essentially seeks a continuation of the current temporary parenting schedule.

[388] The court must, therefore, decide, on a balance of probabilities, what parenting time R should have with her parents, and upon what terms, that will maximize R’s contact with her parents in accordance with her best interests, as determined by reference to the conditions, means, needs, and other circumstances of R, and the willingness of each of her parents to facilitate access.

[389] The evidence indicates that Ms. Mitchell is receptive to advice from professionals about R’s best interests and that she will comply with whatever parenting schedule the court orders, even though she has inadvertently been a bit late for several exchanges.

[390] Mr. Mitchell, on the other hand, is much less receptive to the views of professionals about R’s best interests and prefers to rely upon his own, at times, inappropriate views. Further, he has intentionally been significantly late for exchanges on a number of occasions, and he has intentionally breached the court-ordered parenting schedule. As well, he fails to understand that this misconduct on his part is inappropriate, disrespectful towards Ms. Mitchell, and poor modelling for R.

[391] The court accepts Ms. Ambrozic’s assessment that it would be contrary to R’s best interests to increase her time with her father from the current schedule. R already has difficulty being away from her mother overnight pursuant to the current schedule. It would be contrary to her interests to require her to spend overnights away from her mother’s home during the school week as it is likely that her emotional health and school work would be negatively affected.

[392] The court has also considered whether the temporary extension of R’s alternate weekends with her father to include Sunday overnights, effective in September of 2015, should be discontinued for the same reason, given that Sunday is a school night. Ms. Ambrozic supported a continuation of the current schedule, because she thought it was a reasonable balance between R’s needs and Mr. Mitchell’s needs. The court’s duty, however, is to determine what is R’s best interests – not what is in Mr. Mitchell’s best interests. After considering the evidence and the maximum contact principle, nevertheless, the court is not satisfied that a change would likely be in her best interests.

[393] The court has also considered whether it is in R’s best interests to continue to be in her father’s care after school on Wednesdays and Thursdays, in particular, given that R may have a hockey practice on one or both of those days and given that Mr. Mitchell testified that he would prefer not to take R to mid-week hockey practices, it would be good for R to do something else on occasion, and he would like to determine her activities during his parenting time. Further, he and Ms. Bridge testified that R can be upset when saying goodbye to her mother at hockey arenas while she is in her father’s care.

[394] The evidence is clear, however, that R loves hockey and wants to play as much hockey as possible. She tried out for and became a member of a competitive “A” level rep team. The court finds that it is likely that she would be disappointed to miss a mid-week hockey practice, and it is also likely that she would feel guilty about letting down her team-mates by missing a practice. Also, as noted earlier, a practical solution for prolonged and emotional goodbyes at hockey arenas, when R is in Mr. Mitchell’s care, is for Ms. Mitchell to leave the arena reasonably quickly.

[395] In addition, given Mr. Mitchell’s clear resentment about R spending time with her mother at hockey arenas during his parenting time, in part because, in his view, R “switches into Mommy mode” and Ms. Mitchell inappropriately “coddles” R, the court finds that it is likely, given Mr. Mitchell’s demeanour at times during the trial, that he feels frustrated and angry while at the arenas, while R is in his care, and it is likely that R, at least to some extent, senses her father’s negative mood and, as a result, experiences conflicting emotions at the arenas where she should simply be having fun and enjoying unconditional support from both her parents. R’s sensitivity to her parents’ emotions is shown by her statement to Ms. Ambrozic that, at times, she does not tell her parents what she really thinks or feels, because she is concerned about hurting their feelings and their reaction.

[396] The court has also considered Mr. Mitchell’s suggestion that Ms. Mitchell should be barred from attending hockey practices or be required to sit in the opposite stands and have no interaction with R at hockey events during R’s time with her father, but the court finds that the positive benefits to R from her mother’s continuing involvement with her hockey teams and her mother’s demonstration of concern and affection at the arena are likely in R’s best interests at her current age and stage of development.

[397] Based on these considerations, the court finds that it would likely be in R’s best interests for Mr. Mitchell’s mid-week parenting times not to be on the same day(s) as a hockey practices whenever possible.

[398] The court has also considered whether R’s mid-week time with her father should be reduced from two days to one day per week in order to reduce the likelihood of conflict with hockey practices and because it may be disruptive to R to spend two afternoons and evenings with her father during the school week. As noted earlier, however, Ms. Ambrozic supported a continuation of the current schedule because she thought it was a reasonable balance between R’s needs and Mr. Mitchell’s needs. After considering the evidence and the maximum contact principle, the court is not satisfied that a change would likely be in her best interests.

[399] The parties, Ms. Ambrozic, and R all agree that the Christmas school vacation should be divided in half each year.

[400] Ms. Ambrozic testified that R would prefer to spend the period from her birthday on December 23rd to Christmas Day afternoon with her mother every year, and the period of Christmas Day afternoon until Boxing Day afternoon with her father every year. R told Ms. Ambrozic that it was her tradition to spend Christmas Day dinner with her father. Ms. Ambrozic testified that such an arrangement would be in R’s best interests but it might be unfair to Mr. Mitchell who would prefer an alternating annual arrangement.

[401] Ms. Guthrie-Douse stated that R would prefer to spend Christmas Eve and Christmas Day morning with her mother, but agreed that R was likely expressing her preference about 2016.

[402] Ms. Mitchell seeks care of R from Christmas Eve to Christmas Day afternoon every year, and suggests that R should be with her father from Christmas Day afternoon until Boxing Day afternoon every year. She suggests that R’s birthday should be governed by the regular parenting schedule.

[403] Mr. Mitchell seeks an alternating annual arrangement for the periods of Christmas Eve Day to Christmas Day afternoon and Christmas Day afternoon until Boxing Day afternoon. He agrees with Ms. Mitchell’s suggestion that R’s birthday should be governed by the regular parenting schedule.

[404] The court accepts the parties’ shared view that it is in R’s best interests for her birthday to be governed by the regular parenting schedule.

[405] Although the court would have ordered R to spend Christmas Eve to Christmas Day afternoon with her mother in 2015, in accordance with R’s preference and previous experience, no evidence was led indicating that R did not enjoy herself with her father’s family on Christmas Eve and Christmas Day morning in 2015.

[406] For that reason, the court finds that Mr. Mitchell’s proposal for Christmas Eve, Christmas Day, and Boxing Day is likely in R’s best interests.

[407] Accordingly, R will be with her mother from Christmas Eve Day afternoon until Christmas Day afternoon and with her father from Christmas Day afternoon until Boxing Day afternoon in even years, and the opposite shall occur in odd years.

[408] The rest of the Christmas school vacation, by which the court means the period that commences immediately following the end of school in December and ends upon the commencement of school in January, shall be equally divided between the parties every year. R shall spend the first half of the Christmas school vacation with her mother and the second half with her father in even years, and the opposite shall occur in odd years, subject only to the special schedule for Christmas Eve Day afternoon to Boxing Day afternoon.

[409] In determining the half-way exchange point of the Christmas school vacation each year, the time spent with each parent during the Christmas Eve Day afternoon until Boxing Day afternoon period shall be considered as one day spent with each parent. In other words, time spent during that period with the parent who will care for R during the second half of the school break, will not count as part of the first half of the school break.

[410] To avoid the possibility that the effect of the division of the Christmas school vacation may result in R not spending a weekend with one of her parents for longer than usual when school resumes in January, the court finds that it is in her best interests for her to spend the first weekend after the Christmas school vacation with the parent with whom she did not spend the final weekend of the Christmas school vacation; and the alternate weekend school year schedule shall be adjusted accordingly; subject to an exception, pursuant to an oral agreement between the parties, that R shall be with her father the first and second weekends immediately following the upcoming Christmas school vacation, and alternate weekends after the second weekend.

[411] R and Mr. Mitchell suggested annually alternating Easter weekend, although the evidence indicated that R may be under a misapprehension that she spent all of Easter weekend with her father in 2016.

[412] Mr. Mitchell suggested that Easter weekend should be extended to include Good Friday and Easter Monday.

[413] Ms. Mitchell suggested that the regular schedule should apply to Easter weekend but the weekend should be extended to include Good Friday, but not Easter Monday because Easter Monday is not a statutory holiday – even though it is a school holiday. That means, however, that R would always be in Ms. Mitchell’s care on Easter Monday, which the court finds is contrary to the maximum contact principle.

[414] The court finds that a combination of these alternatives is likely in R’s best interests.

[415] Accordingly, on Easter weekend, R will be in the care of the parent indicated by the regular schedule, except that Easter weekend will be extended from after school on the Thursday immediately before Good Friday until school starts on the Tuesday immediately after Easter Monday.

[416] R and Ms. Mitchell suggested splitting the March school break. Mr. Mitchell suggested annually alternating the March school break.

[417] The court finds that it is in R’s best interests, given her age and her particular sensitivities, to spend half the March school break with each parent. Accordingly, she shall spend the weekends of the March school break with her parents in accordance with the regular schedule. If the Friday before the break is a school holiday or PA day, the weekend and break will be extended to commence Thursday after school. The exchange time will be Wednesday at 11 a.m. unless the break was extended to commence Thursday after school, in which case the exchange time will be Tuesday at 6 p.m.

[418] The parents agree that R should spend Mother’s Day with her mother and Father’s Day with her father from 9 a.m. on Sunday until school commences Monday morning. The court is satisfied that is in R’s best interests.

[419] Ms. Mitchell suggested no special treatment for Canada Day. Mr. Mitchell suggested that the regularly scheduled weekend should be extended to include Canada Day if it falls on a Friday or Monday and that Canada Day should be alternated annually if falls on a Tuesday, Wednesday, or Thursday. The court is not satisfied that a special rule for Canada Day is in R’s best interests.

[420] Ms. Mitchell suggested no special treatment for Family Day, Victoria Day, Civic Holiday, Labour Day, or Thanksgiving. Mr. Mitchell suggested that those weekends be extended to include the holidays.

[421] The court finds that Mr. Mitchell’s suggestion is in R’s best interests with respect to Family Day, Victoria Day, and Thanksgiving, because they fall during the school year. Otherwise R would always spend those holidays with Ms. Mitchell, which would be contrary to the maximum contact principle.

[422] Mr. Mitchell suggested that Halloween be alternated annually and include an overnight. Ms. Mitchell’s draft order did not mention Halloween. The court is not satisfied that an exception to the regular schedule for Halloween is in R’s best interests.

[423] Ms. Mitchell suggested that school PA days should not be given special treatment. Mr. Mitchell’s draft order is silent about PA days. The court finds that it is in R’s best interests to extend weekends for PA days on Fridays or Mondays. Otherwise, those days would all fall on R’s time with Ms. Mitchell, which is contrary to the maximum contact principle.

[424] R suggested a rotating maximum of three consecutive days with each parent during the summer school vacation except for the week she goes to Camp Medeba.

[425] Ms. Mitchell suggested the regular schedule should continue during the summer subject to R being in the care of each parent for two weeks, consecutive or non-consecutive. She said that she did not think that consecutive weeks was in R’s best interests but she was trying to be fair to Mr. Mitchell in case he wanted to go on a trip with R.

[426] Mr. Mitchell’s draft schedule suggested that R spend four weeks with each parent, with up to two consecutive weeks at a time, with a requirement that the schedule must permit R to attend Camp Medeba and hockey camp for a week each. He testified, however, that he would like the current regular schedule reversed in the summer (i.e. R would be with her mother on Wednesdays and Thursdays, from about 5 p.m. until 8 p.m., and on alternate weekends, and at all other times R would be with Mr. Mitchell, Ms. Bridge, or Mr. Mitchell’s extended family).

[427] The court finds that two consecutive weeks is too long for R to be away from either parent – particularly her mother. The court finds that at her age, given her particular sensitivities, she should not be away from either parent more than nine consecutive days (i.e. 216 consecutive hours).

[428] The court agrees with Mr. Mitchell that the summer schedule should be crafted to ensure that R can attend Camp Medeba and hockey camp for a week – while those activities are important for her.

[429] The court finds that it is currently in R’s best interests to spend two non-consecutive periods of between seven to nine days each (i.e. 168 to 216 consecutive hours), with each parent in the summer given R’s age and her particular sensitivities, as long as R is in the care of Mr. Mitchell during the Camp Medeba week and in the care of Ms. Mitchell during the hockey camp week.

[430] The court finds that R’s best interests during the summer are met by her spending additional shorter periods of time with her father, his extended family, and/or Ms. Bridge’s extended family, even if Mr. Mitchell is working during part of that time, and additional shorter periods of time with her mother, at daycare, and/or with anyone else stipulated by Ms. Mitchell, even if Ms. Mitchell is working during part of that time.

[431] The court finds that, overall, it is in R’s best interests to be in the care of her mother at least 55 percent of the time during the summer school vacation, because Ms. Mitchell is R’s primary parent and R has a stronger bond with her, and R should be in the care of her father at least 40 percent of the time, which is a higher percentage than she is with Mr. Mitchell during the regular school year schedule, to maximize her time with him in a manner that is consistent with her best interests.

[432] The court established the summer schedule for 2016 based on the principles outlined above.

[433] Ms. Mitchell will have first choice of two non-consecutive school summer vacation weeks with R in odd years and Mr. Mitchell will have first choice of two non-consecutive school summer vacation weeks with R in even years, provided that their choices do not interfere with R attending Camp Medeba or hockey camp as stipulated above.

[434] If it had been possible for the court to receive enough information to establish future summer schedules, the court would have done so because the court is concerned that the parties will likely have difficulty establishing summer schedules in the future. But the court does not have the required information, so the parties will have to do their best to co-operate to establish future summer schedules for R. They should start working on the next summer schedule, by email, by mid-January each year. That will give them time to seek assistance from a parenting co-ordinator, Ms. Ambrozic, or another qualified person, early on, if they have difficulty.

[435] Ms. Mitchell shall have final decision-making authority about when, and from whom, the parties seek assistance in establishing a summer schedule. Any fees charged by the person consulted shall be considered a special or extraordinary child-related expense and shall be paid by the parties in proportion to their incomes.

[436] Ms. Mitchell shall have final decision-making authority about the summer schedule if the parties are unable to agree after seeking assistance from a qualified person. Her final decision must be reasonable and she must provide reasons for her decision in writing. If her decision is not reasonable, Mr. Mitchell may seek a different summer schedule in court.

[437] Ms. Mitchell’s final decision about the summer schedule must be made in a timely manner that will allow Mr. Mitchell an adequate amount of time to seek a judicial review of her schedule well before the end of the school year. If Ms. Mitchell does not provide a final decision in a timely manner, Mr. Mitchell may seek a summer schedule in court.

[438] It is definitely not the court’s intention to encourage litigation about summer schedules. It is the parental duty of both parties to make a very strong effort each year to establish a summer schedule that is in R’s best interests without going to court.

[439] Neither party addressed the evidence that R avoids petting the cat at her father’s home because she is allergic to cats. The court is concerned that regular exposure to the cat may be contrary to R’s best interests. Accordingly, the court will require Mr. Mitchell to comply with the written recommendation of any duly qualified medical practitioner with respect to (the) cat(s) – including removing the cat(s) from the residence if recommended.

Support

The Parties’ Annual Incomes

[440] The parties agreed that Ms. Mitchell’s income for support purposes was $77,255 in 2013, $83,455 in 2014, $83,313 in 2015, and $121,145 in 2016. Her 2016 income is comprised of $82,848 from the mining company and $38,297 from other employment.

[441] The parties agreed that Mr. Mitchell’s income for support purposes was $243,000 in 2013, $288,037 in 2014, $305,927 in 2015, and $270,652 in 2016. His income is comprised of a salary, an annual bonus in the fall, an annual vesting of restricted stock units in the fall, and some personal use in relation to a car allowance. He has unexercised options that will be income when exercised.

Table Child Support

[442] The parties settled the issue of table child support prior to 2016 based on the table amount for Mr. Mitchell’s annual income pursuant to section 3 of the Child Support Guidelines (CSG).[^1]

[443] Mr. Mitchell suggested during his testimony that if R is with him for at least 40 percent of the time during the summer then regular child support should be calculated pursuant to section 9 of the CSG (shared parenting) for the summer. The court does not agree. Even if R is with Mr. Mitchell for 40 percent of the time or more during the summer vacation, child support should continue to be calculated pursuant to section 3 as long as R is with Mr. Mitchell for less than forty percent of the time throughout the entire year. Mr. Mitchell did not pursue his suggestion during closing submissions.

[444] The CSG table amount for one child based on Mr. Mitchell’s 2016 income is $2,156 per month.

[445] Mr. Mitchell paid child support in the amount of $1,458 per month during 2016 pursuant to a temporary order. Thus, Mr. Mitchell underpaid child support during 2016 in the amount of $698 per month. As a result, he owes Ms. Mitchell regular child support arrears of $8,376 for 2016.

Spousal Support

Law in Relation to Spousal Support

[446] The court is guided by section 15.2 of the Divorce Act with respect to spousal support. Subsections 15.2 (4), (5), and (6) provide:

(4) FACTORS – In making an order [for spousal support] the court shall take into consideration the condition, means, needs and other circumstances of each spouse, including

(a) the length of time the spouses cohabited;

(b) the functions performed by each spouse during cohabitation; and

(c) any order, agreement or arrangement relating to the support of either spouse.

(5) SPOUSAL MISCONDUCT –In making an order [for spousal support] the court shall not take into consideration any misconduct of a spouse in relation to the marriage.

(6) OBJECTIVES OF SPOUSAL SUPPORT ORDER – An order that provides for the support of a spouse should

(a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;

(b) apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;

(c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and

(d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.

[447] These provisions speak to three different types of entitlement to spousal support: compensatory, contractual, and non-compensatory, as elucidated by the Supreme Court in Bracklow v. Bracklow.[^2]

Positions of the Parties in Relation to Spousal Support

[448] Ms. Mitchell submitted that she is entitled to spousal support on a compensatory and non-compensatory basis.

[449] In relation to compensatory support, she testified that she has always been the family’s home-maker, managed the family’s finances, been the primary caregiver for R, and managed the rental bookings for the parties’ cottage. As a result of her efforts, she submitted, Mr. Mitchell was at liberty to focus entirely on advancing his career, including by means of extensive business travel at times and eventually living and working in Vancouver for almost two years.

[450] She also submits that she has a non-compensatory entitlement based upon the disparity between the parties’ incomes.

[451] She suggests that because she has a compensatory entitlement, spousal support should be within the medium to high range indicated by the Spousal Support Advisory Guidelines (SSAG).

[452] Ms. Mitchell did not suggest a fixed end date for spousal support.

[453] Mr. Mitchell, on the other hand, submits that Ms. Mitchell has never had a compensatory entitlement to spousal support, and she has no non-compensatory entitlement for 2016.

[454] In relation to compensatory support, he testified that Ms. Mitchell’s contribution to the family did not entitle her to support, because he was solely responsible for his success in his career. As noted earlier, however, he was evasive when asked whether Ms. Mitchell’s contribution to the family enabled him to travel for business, and he was evasive when asked which parent cared for R most of the time.

[455] In relation to non-compensatory support for 2016, he testified that the parties’ incomes and cash flow were not disparate after the payment and receipt of child support. He conceded, however, that he had not analyzed the parties’ net disposable income (NDI).

[456] Mr. Mitchell submits that spousal support for Ms. Mitchell should be at the low end of the SSAG range because her entitlement is non-compensatory, she was only forty years old on the date of separation, she never left the work force except for maternity leave, her income has increased since the date of separation, managing the cottage rental and family finances was simple, there are some errors on her financial statements, she locked Mr. Mitchell out of the matrimonial home after separation, and she did not allow him to remove furniture from the matrimonial home for more than two years.

[457] He also testified that spousal support should be at the low end of the SSAG range because Ms. Mitchell sought an unreasonably high amount of spousal support shortly after separation, she delayed financial disclosure for a period of time after separation, her living expenses are low, and she currently has a positive cash flow whereas he has a negative cash flow, because if he receives an annual bonus, it is received as a lump sum in the fall, and his RSUs vest in the fall.

[458] He testified that spousal support for eight years from the date of separation would allow Ms. Mitchell to re-establish her career and become self-sufficient, because she is young.

Additional Evidence in Relation to Spousal Support

[459] In addition to the evidence mentioned above, according to Ms. Mitchell’s most recent financial statement, sworn shortly before the trial commenced, her main assets at that time were her half interest in the jointly owned matrimonial home where she was residing, her half interest in a jointly owned time share, her half interest in the net proceeds of sale of jointly owned cottage being held in trust, a 2011 Mazda 3 worth about $9,000, a spousal RRSP worth about $10,000 after notional tax, a LIRA worth about $8,000 after notional tax, and an RRSP worth about $35,000 after notional tax. Her share of the net cottage proceeds and the equity in the matrimonial home were worth roughly $250,000. Her main debts at that time were the joint mortgage on the matrimonial home, a line of credit balance of about $18,000, credit card balances of about $18,000, a car loan balance of about $2,000, and taxes owing to CRA in the amount of about $9,000. Her individual net worth was roughly $265,000 at that time. On the date of separation, her individual net worth was roughly $75,000 higher.

[460] According to Mr. Mitchell’s latest financial statement, sworn shortly before the trial commenced, his main assets at that time were his half interest in the jointly owned matrimonial home, his half interest in a jointly owned timeshare, his half interest in the net proceeds of sale of jointly owned cottage being held in trust, about $12,000 in cash, an RRSP worth about $3,000 after notional tax, an RRSP worth about $141,000 after notional tax, a LIRA worth about $69,000 after notional tax, a LIRA worth about $7,000 after notional tax, and a defined contribution pension plan worth about $91,000. His share of the net proceeds of the cottage and the equity in the matrimonial home was roughly $250,000. He also had unvested RSUs and unexercised options of significant value received after separation. His main debts at that time were the joint mortgage on the matrimonial home and a line of credit balance of $20,000 due to legal fees. His individual net worth was significantly more than $650,000 at that time. On the date of separation, his individual net worth, by rough calculation, was about $165,000 lower.

[461] During the trial, the parties settled equalization and post-separation adjustments by Mr. Mitchell paying Ms. Mitchell $71,980. Also during the trial, Ms. Mitchell purchased Mr. Mitchell’s share of the matrimonial home.

[462] Both parties claim substantial monthly expenses in their financial statements. Mr. Mitchell’s claimed expenses exceed Ms. Mitchell’s claimed expenses by about $10,500 per month. The biggest differences are that Mr. Mitchell has been paying about $5,000 per month more in income tax, about $2,000 per month more in debt payments, about $2,800 per month for child and spousal support payments, and about $1,000 per month more for accommodation.

[463] Mr. Mitchell testified that, before separation, he and Ms. Mitchell typically went on a two-week timeshare vacation every second year. He said they had vacations in Scotland, Ireland, Portugal, and Spain, and they vacationed in Hawaii about six times. They also vacationed at Whistler with R.

[464] Ms. Mitchell believes that her income may change significantly in 2017, but she is uncertain whether the change will occur, and if it does, how much the change will be. Given that she had the same belief in relation to 2016, the possibility of a future change in Ms. Mitchell’s income is too uncertain to be considered in depth in this judgment.

Analysis – Spousal Support

[465] The court finds that Ms. Mitchell significantly contributed to Mr. Mitchell’s career advancement by being the family home-maker, managing the family finances, managing the cottage rentals, and being R’s primary caregiver in relation to all of R’s needs. As a result of Ms. Mitchell’s contribution to the family unit, before and after R was born, Mr. Mitchell was able to devote himself exclusively to work and leisure activities. He was able to work long hours and travel for work, and he was able to accept a promotion that required him to live and work in Vancouver for almost two years, with no child care or financial responsibilities, because Ms. Mitchell was caring for R and managing the family’s financial affairs.

[466] In short, Mr. Mitchell gained a significant specific calculable economic advantage as a result of the marriage.

[467] On a balance of probabilities, the court finds that Ms. Mitchell has a compensatory entitlement to spousal support.

[468] Ms. Mitchell’s income is substantially lower than Mr. Mitchell’s income, and she can no longer afford the elevated lifestyle the parties enjoyed during the marriage, including multiple trips to Hawaii and Europe and ownership of a cottage.

[469] In short, the breakdown of the marriage has caused Ms. Mitchell significant economic disadvantage.

[470] On a balance of probabilities, the court finds that Ms. Mitchell also has a non-compensatory entitlement to spousal support.

[471] Given that spousal support is based on both compensatory and non-compensatory entitlement, and considering all of the evidence about the condition, needs, means, and other circumstances of the parties, the court finds that the appropriate amount of spousal support payable for 2013 is $3,700 per month. According to the SSAG, that means Ms. Mitchell would have 52 percent of the parties’ NDI which is appropriate given that R was in the care of Ms. Mitchell for the vast majority of the time, post-separation, in 2013. That also means that Mr. Mitchell would have about 57 percent of the individual NDI (INDI). This monthly amount is very close to the mid-range of the SSAG.

[472] Mr. Mitchell shall pay this amount for nine months in 2013 commencing on April 1, 2013. Accordingly, he owes Ms. Mitchell $33,300 in spousal support arrears for 2013, subject to a notional discount for tax purposes discussed below.

[473] Mr. Mitchell asks the court to reduce the amount of spousal support arrears he owes for 2013 by 43 percent to reflect the effect of income tax deductibility and inclusion that would have applied if he had paid periodic spousal support during 2013. This suggestion seems fair given that the court’s analysis includes reference to NDI and INDI based on SSAG calculations which assume tax deductibility and inclusion. On the other hand, the suggestion is unfair to Ms. Mitchell, because her marginal tax rate is lower than Mr. Mitchell’s marginal rate, and because the 2013 support payments have been in arrears for a significant period of time. The court finds that Mr. Mitchell knew that his income was much higher than Ms. Mitchell’s income in 2013 and it is highly likely that he realized that he had a spousal support obligation. Yet, he paid no spousal support during that year, or since in relation to 2013. He has had the use of the funds that he should have paid as spousal support, while Ms. Mitchell has had to manage without. Further, Ms. Mitchell’s draft order (Exhibit P) does not seek prejudgment interest for spousal support. Balancing these considerations, the court will permit a 30 percent notional tax discount if the 2013 arrears are paid promptly.

[474] Accordingly, the arrears owed for spousal support for 2013 will be reduced from $33,300 to $23,310, payable on or before January 31, 2017.

[475] Given that spousal support is based on both compensatory and non-compensatory entitlement, and considering all of the evidence about the condition, needs, means, and other circumstances of the parties, the court finds that the appropriate amount of spousal support payable for 2014 is $4,500 per month. According to the SSAG, that means that Ms. Mitchell would have 51.5 percent of the NDI, which is appropriate given that R was spending more time with Mr. Mitchell, although she was still with Ms. Mitchell the vast majority of the time during the year. That also means that Mr. Mitchell would have about 57 percent of the INDI. This monthly amount is very close to the mid-range of the SSAG.

[476] Mr. Mitchell shall pay this amount for twelve months in 2014 less a credit for a lump sum spousal support payment of $27,567 he made for 2014 in December of 2014. Accordingly, he owes Ms. Mitchell $54,000 less $27,567, which equals $26,433, in spousal support arrears for 2014, subject to a notional discount for tax purposes discussed below.

[477] Mr. Mitchell asks the court to reduce the amount of spousal support arrears he owes for 2014 by 43 percent to reflect the effect of income tax deductibility and inclusion that would have applied if he had paid periodic spousal support during 2013. As noted earlier, this suggestion seems fair given that the court’s analysis includes reference to NDI and INDI based on SSAG calculations that assume tax deductibility and inclusion. Again, however, the court finds that the suggestion would be unfair to Ms. Mitchell, because her marginal tax rate is lower than Mr. Mitchell’s marginal tax rate, and because the outstanding funds have been unavailable to her for a significant period of time. The court finds that Mr. Mitchell knew that his income was much higher than Ms. Mitchell’s income in 2014, and it is highly likely that he realized that he had a spousal support obligation. Nevertheless, he paid no spousal support during the first eleven months of 2014. In December of 2014 he made a lump sum underpayment for 2014. During the first eleven months of 2014, Mr. Mitchell had the use of funds that he should have paid as spousal support during those months and since then he has had the use of funds still owing for spousal support for 2014, while Ms. Mitchell has had to manage without. Further, Ms. Mitchell’s draft order does not seek prejudgment interest for spousal support. Balancing these considerations, the court will permit a 30 percent notional tax discount if the 2014 arrears are paid promptly.

[478] Accordingly, the arrears owed for spousal support for 2014 will be reduced from $26,433 to $18,503 if paid to Ms. Mitchell on or before January 31, 2017.

[479] Given that spousal support is based on both compensatory and non-compensatory entitlement, and considering all of the evidence about the condition, needs, means, and other circumstances of the parties, the court finds that the appropriate amount of spousal support payable for 2015 is $4,700 per month. According to the SSAG, that means that Ms. Mitchell would have 51 percent of the NDI, which is appropriate given that R was spending more time with Mr. Mitchell, although she was still with Ms. Mitchell the vast majority of the time during the year. That also means that Mr. Mitchell would have about 58 percent of the INDI. This amount is between the low and mid-range of the SSAG.

[480] Mr. Mitchell shall pay this amount for twelve months in 2015 less a credit for periodic spousal support paid in the amount of $1,397 per month during 2015. Accordingly, he owes Ms. Mitchell $56,500 less $16,756, which equals $39,644, in spousal support arrears for 2015, subject to a notional discount for tax purposes discussed below.

[481] Mr. Mitchell’s draft order (Exhibit Q) seems to suggest that the court should order that any additional spousal support payments for 2015 are to be tax deductible to Mr. Mitchell and taxable as income to Ms. Mitchell. No authority was provided indicating that such an order is permitted by the Income Tax Act.[^3] In the absence of such authority, the court is not satisfied that it should make such an order. In fairness to Mr. Mitchell, however, the court has considered the suggestion he made for 2013 and 2014, in relation to 2015. As noted earlier, the suggestion seems fair given that the court’s analysis includes reference to NDI and INDI based on SSAG calculations that assume tax deductibility and inclusion. Again, nevertheless, the court finds that the suggestion would be unfair to Ms. Mitchell, because her marginal tax rate is lower than Mr. Mitchell’s marginal tax rate, and because the outstanding funds have been unavailable to her for a significant period of time. The court finds that Mr. Mitchell knew that his income was much higher than Ms. Mitchell’s income in 2015, and it is highly likely that he realized that he had a significantly greater spousal support obligation than the monthly amount he paid during 2015. During 2015 and since, Mr. Mitchell has had the use of funds still owing for spousal support for 2015, while Ms. Mitchell has had to manage without. Further, Ms. Mitchell’s draft order does not seek prejudgment interest for spousal support. Balancing these considerations, the court will permit a 30 percent notional tax discount if the 2015 arrears are paid promptly.

[482] Accordingly, the arrears owed for spousal support for 2015 will be reduced from $39,644 to $27,750 if paid to Ms. Mitchell on or before January 31, 2017.

[483] Given that spousal support is based on both compensatory and non-compensatory entitlement, and considering all of the evidence about the condition, needs, means, and other circumstances of the parties, the court finds that the appropriate amount of spousal support payable commencing January 1, 2016 is $1,900 per month. According to the SSAG, that means that Ms. Mitchell will have 50.5 percent of the NDI, which is appropriate because R is spending more time with Mr. Mitchell, but is still with Ms. Mitchell more than 60 percent of the time during the year. That also means Mr. Mitchell will have about 58.5 percent of the INDI. This amount is about mid-way between the low and mid-range of the SSAG.

[484] Mr. Mitchell shall pay this amount for twelve months in 2016 less a credit for periodic spousal support paid in the amount of $1,397 per month during 2016. Accordingly, he owes Ms. Mitchell $22,800 less $16,764, which equals $6,036, in spousal support arrears for 2016. This amount is tax deductible for Mr. Mitchell and taxable as income to Ms. Mitchell if it is paid to Ms. Mitchell on or before December 31, 2016.

[485] On-going spousal support is tax deductible so Mr. Mitchell can arrange to have his net pay adjusted in the future in order to assist his cash flow. Although his bonus is paid as a lump sum and he is attributed with RSU vesting income in the fall, the court finds that he has sufficient income, assets, and liquidity to meet his monthly child and spousal support obligations throughout the year.

[486] If Ms. Mitchell’s position with the mining company terminates, she may or may not receive severance pay. If she does not receive severance pay then her annual income will be reduced to around $59,000. If she does receive severance pay then, depending on the amount, her annual income may be higher or lower than her income in 2016. Any of these events would likely be a material change of circumstances with respect to the appropriate amount of spousal support. In an effort to assist the parties in the future, the court finds that the appropriate quantum of spousal support in the future should be about mid-way between the low and mid-range of the SSAG.

[487] The SSAG suggests that, in the circumstances of this case, spousal support should be paid for a minimum of 9.38 years and a maximum of 18.75 years from the date of separation.

[488] The court finds that spousal support should continue at least until R finishes secondary school given the significant disparity between the parties’ incomes. Otherwise, it is likely that R will be going back and forth between parental homes with very different standards of living, which would be contrary to her best interests. Assuming that R continues to do well in school, she will finish secondary school in 2024 or 2025, depending on whether she completes grade twelve over one or two years.

[489] If R proceeds to post-secondary education, it is likely that there will be change in the amount of regular table child support at that point, which may lead to a change to the monthly amount of spousal support.

[490] Given that spousal support is based on both compensatory and non-compensatory entitlement and upon a consideration of the condition, needs, means and other circumstances of the parties, the court finds that on each April 1st, commencing in 2026, the amount of spousal support payable per month should be reduced 30 percent from the amount paid the immediately previous March 1st, and that spousal support should terminate on March 31, 2029.

Special or Extraordinary Expenses – Section 7 CSG

[491] Ms. Mitchell seeks $9,965 from Mr. Mitchell for his proportionate share of section 7 expenses (daycare and hockey) paid by Ms. Mitchell to the end of 2015.

[492] Mr. Mitchell suggests that he should pay Ms. Mitchell $6,352 for his proportionate share of section 7 expenses (daycare and hockey) paid by Ms. Mitchell to the end of 2015.

[493] Based on the parties’ incomes, after the payment and receipt of spousal support, the court finds that Mr. Mitchell should pay 62 percent of the section 7 expenses in 2013, 63 percent in 2014, and 64 percent in 2015. These percentages slightly exceed the percentages suggested by Ms. Mitchell because the parties agreed to an upward adjustment to Mr. Mitchell’s incomes for these years on the last day of the trial.

[494] On the other hand, Ms. Mitchell’s calculations did not take into account the tax deduction she received for daycare. She did not receive significant tax credit for hockey.

[495] Taking these considerations into account, the court finds that Mr. Mitchell owes Ms. Mitchell $2,268 for 2013, $2,610 for 2014, and $2,610 for 2015, for a total of $7,488.

[496] Using the same analysis, based on the parties’ 2016 incomes, the court finds that Mr. Mitchell should pay 64 percent of the after tax cost of R’s daycare, and 64 percent of the cost of R’s hockey and other special or extraordinary expenses, commencing January 1, 2016.

Motion Costs

[497] Ms. Mitchell seeks costs of $9,570.76 in relation to a Christmas school vacation parenting schedule motion, brought by Mr. Mitchell, which settled at court in December of 2014. As noted earlier, costs were reserved.

[498] The settlement was upon the terms sought by Ms. Mitchell in the motion. She sought the schedule recommended by Ms. Ambrozic.

[499] Mr. Mitchell testified that there should be no costs for the motion, because the position taken by Ms. Mitchell was unreasonable.

[500] The court finds that the position taken by Ms. Mitchell was entirely reasonable.

[501] The flurry of emails between counsel and Ms. Ambrozic entered into evidence was reviewed by the court. Considerable billable time was spent unnecessarily.

[502] The court finds that Mr. Mitchell should pay costs to Ms. Mitchell for the motion in the amount of $4,000, all inclusive.

Costs

[503] Ms. Mitchell may serve and file written submissions as to costs within 30 days. Mr. Mitchell may serve and file a written response within 30 days of receiving Ms. Mitchell’s submissions. Ms. Mitchell may serve and file a written reply within 15 days of receiving Mr. Mitchell’s response.

Orders

[504] Final order to go as follows:

1. Ms. Mitchell shall have sole custody of R.

2. Ms. Mitchell shall consult with Mr. Mitchell, in writing and in advance, before making major decisions about R. By major decisions, the court does not mean that the decision must be life altering for R. If Ms. Mitchell is not sure whether a decision is major or not, or if she thinks that Mr. Mitchell might consider the decision to be major, then she must consult with Mr. Mitchell.

3. Mr. Mitchell may obtain any and all information concerning R directly from any of her education, health care, religious, or extracurricular activity service providers. If required by a service provider, Ms. Mitchell shall forthwith, upon written request by Mr. Mitchell, provide her written consent and/or authorization, in the required form, for Mr. Mitchell to obtain such information.

4. R’s name shall not be changed without the advance written consent of Mr. Mitchell.

5. During the school year, R shall be in Mr. Mitchell’s care on alternate weekends from after school on Friday until school starts on Monday and during two mid-week periods per week from after school until 8 p.m. R shall be in the care of Ms. Mitchell at all other times, subject to the following stipulations and exceptions:

a. If R is not in Mr. Mitchell’s care during Labour Day weekend, she shall be in his care the weekend immediately following Labour Day and every alternate weekend thereafter. If R is in Mr. Mitchell’s care during Labour Day weekend, she shall be in his care the second weekend after Labour Day and every alternate weekend thereafter.

b. If R is not in Mr. Mitchell’s care during the final weekend of the Christmas school vacation, she shall be in his care the weekend immediately following the final weekend of the Christmas school vacation and every alternate weekend thereafter. If R is in Mr. Mitchell’s care during the final weekend of the Christmas school vacation, she shall be in his care the second weekend after the final weekend of the Christmas school vacation and every alternate weekend thereafter.

c. If the Friday immediately before a weekend that R is in Mr. Mitchell’s care is a day that R’s school is closed to students, R shall be in Mr. Mitchell’s care commencing the immediately preceding Thursday after school.

d. If the Monday immediately following a weekend that R is in Mr. Mitchell’s care is a day that the school is closed to students, R shall be in Mr. Mitchell’s care until school starts on the immediately following Tuesday.

e. The two mid-week periods that R is in Mr. Mitchell’s care from after school until 8 p.m. shall be on Tuesday, Wednesday, or Thursday as follows:

i. If R has a regular weekly hockey practice scheduled for only one of those days, her mid-week time in Mr. Mitchell’s care shall be on the other two days.

ii. If R has regular hockey practices scheduled for only two of those days, her mid-week time in Mr. Mitchell’s care shall be on the day she does not have a regular hockey practice and on one of the other two days, to be selected by Ms. Mitchell, and will remain the same unless and until there is a change in the regular hockey practice schedule. Ms. Mitchell shall inform Mr. Mitchell of her selection in writing.

iii. If R has regular hockey practices scheduled for all three of those days, or none of those days, then her mid-week time in Mr. Mitchell’s care shall be on two of those days, to be selected by Ms. Mitchell, and will remain the same unless and until there is a change in the regular hockey practice schedule. Ms. Mitchell shall inform Mr. Mitchell of her selection in writing.

f. Regardless of any other parenting schedule, R shall be in Ms. Mitchell’s care from December 24th from after school (or from 1 p.m. if December 24th is not a school day) until Christmas Day at 1 p.m. and R shall be in the care of Mr. Mitchell from Christmas Day at 1 p.m. until Boxing Day at 1 p.m. in even years. The reverse schedule applies in odd years.

g. Regardless of the school year parenting schedule, during the Christmas school vacation, which means the period that commences immediately following the end of school in December, and ends upon the resumption of school in January, R’s time in the care of each of her parents shall be divided equally in accordance with the following stipulations and exceptions:

i. R shall spend the first half of the Christmas school vacation in the care of the parent in whose care R normally would be, in accordance with the regular school year schedule, during the first weekend of the Christmas school vacation, and she shall spend the second half of the Christmas school vacation with the other parent, subject only to the special schedule for December 24th to Boxing Day set out above.

ii. To determine the half-way exchange point of the Christmas school vacation each year, the time spent with each parent during the special schedule for December 24th to Boxing Day shall count as one day spent with each parent.

iii. For greater certainty, R’s Christmas school vacation schedule for the current school year shall be as follows:

1. R shall be with Mr. Mitchell from after school on December 23, 2016 until 1 p.m. on December 24, 2016.

2. R shall be with Ms. Mitchell from December 24, 2016 at 1 p.m. until 1 p.m. on December 25, 2016.

3. R shall be with Mr. Mitchell from December 25, 2016 at 1 p.m. until 8 p.m. on January 1, 2017.

4. R shall be with Ms. Mitchell from January 1, 2017 at 8 p.m. until the start of school on January 9, 2017.

h. R shall spend the weekend of January 13 to 16, 2017 with Mr. Mitchell in accordance with the stipulations above, but, pursuant to an oral agreement between the parties, instead of spending alternate weekends thereafter with Mr. Mitchell, she shall spend the weekend of January 20 to 23, 2017 with Mr. Mitchell and alternate weekends thereafter.

i. For greater certainty, R’s regular mid-week time in the care of Mr. Mitchell during the current school year shall recommence during the week of January 9, 2017, subject to the stipulations above governing on which two days mid-week visits shall occur. As a result, R’s first mid-week time in the care of Mr. Mitchell in 2017 will be on January 10 or 11, 2017.

j. Easter weekend shall be treated as a regular school year parenting schedule weekend except that it will be extended from Thursday after school until Tuesday at the commencement of school.

k. The parent who, in accordance with the regular school year parenting schedule, has care of R for the first weekend of the March school vacation shall have care of R until 1 p.m. on the Wednesday of the March school vacation and the other parent shall have care of R from 1 p.m. on that Wednesday until the commencement of school on Monday immediately following the March school vacation, unless the Friday immediately before the vacation is a day that R’s school is closed to students, in which case the exchange will occur on Tuesday at 6 p.m.

l. Regardless of the regular school year parenting schedule R shall be in Ms. Mitchell’s care on Mother’s Day from 9 a.m. until school commences the immediately following Monday.

m. Regardless of the regular school year parenting schedule, R shall be in Mr. Mitchell’s care on Father’s Day from 9 a.m. until school commences the immediately following Monday.

6. During the school summer vacation, which means the period commencing immediately after school on the last day of school and ending at the start of school on the first day of school, the following stipulations and principles apply:

a. R shall be in Ms. Mitchell’s care at least 55 percent of the time.

b. R shall be in Mr. Mitchell’s care at least 40 percent of the time.

c. R shall be in the care of each parent for two non-consecutive lengthy periods of between seven to nine days each (i.e. 168 to 216 consecutive hours).

d. During one of R’s two non-consecutive lengthy periods in Mr. Mitchell’s care, R shall attend Camp Medeba if she wishes to do so.

e. During one of R’s two non-consecutive lengthy periods in Ms. Mitchell’s care, R shall attend hockey camp if she wishes to do so.

f. During the balance of the summer, R shall spend shorter periods of time with Mr. Mitchell, his extended family and/or Ms. Bridge’s extended family, even if Mr. Mitchell is working during part of that time, and R shall spend shorter periods of time with Ms. Mitchell and/or with anyone she stipulates, even if Ms. Mitchell is working during part of that time.

g. Ms. Mitchell shall have first choice of the two non-consecutive lengthy periods R is in her care in odd years, provided that her choices do not interfere with R attending Camp Medeba if R wishes to do so, and Mr. Mitchell shall have first choice of the two non-consecutive periods R is in his care in even years, provided that his choices do not interfere with R attending hockey camp if she wishes to do so.

h. The parties shall start working on a school summer vacation schedule, by email, by January 15th each year. The parties shall apply the stipulations set out above and try to establish a school summer vacation schedule similar in nature to the schedule established by the court’s temporary order of June 16, 2016. The parties shall try to schedule R to be in the care of one parent or the other parent for the entire Civic Holiday long weekend and Labour Day long weekend if that is reasonably possible. If the parties are unable to agree to a summer schedule by February 15th, Ms. Mitchell may seek assistance from a parenting co-ordinator, Ms. Ambrozic, and/or another qualified person. Ms. Mitchell shall decide when and from whom the parties seek assistance. Any fees charged by the person(s) selected shall be deemed a special or extraordinary expense within the meaning of section 7 of the CSG. Both parties shall fully co-operate with any person retained for assistance. If the parties remain unable to agree to a summer schedule after seeking assistance, Ms. Mitchell may unilaterally establish a summer schedule in accordance with the stipulations set out above. Her decision must be reasonable and must be supported by reasons in writing provided to Mr. Mitchell on or before April 15th. Mr. Mitchell may seek to have a different summer schedule established in motions court if Ms. Mitchell unilaterally establishes a summer schedule that is unreasonable.

7. Exchanges of R shall occur at Ms. Mitchell’s residence unless Ms. Mitchell advises Mr. Mitchell otherwise in writing and in advance.

8. R shall not be required to return any personal article, including clothing, at an exchange to the parent who provided the article unless the parent who provided the article makes an advance written request to the other parent for the return at the exchange.

9. Mr. Mitchell shall ensure that while he has care of R, she attends all school-related extracurricular activities including, without limiting the generality of the foregoing, sports, practices, concerts, plays, games, events, and tournaments.

10. Mr. Mitchell shall ensure that while he has care of R, she attends all of her hockey-related activities including, without limiting the generality of the foregoing, practices, games, events, and tournaments.

11. Ms. Mitchell shall not enroll R in an extracurricular activity that is not mentioned prior to this paragraph, specifically or generally, unless the entire activity is scheduled exclusively during R’s time with Ms. Mitchell, or unless Mr. Mitchell consents in writing and in advance to R being enrolled in the activity. If Ms. Mitchell enrolls R in an extracurricular activity that will take place exclusively during R’s time with Ms. Mitchell, Ms. Mitchell shall advise Mr. Mitchell of the enrollment and the schedule for the activity in writing and in advance. If Mr. Mitchell consents in writing and in advance to the enrollment of R in an extracurricular activity that is not mentioned prior to this paragraph, then each parent shall ensure that R attends the activity during R’s time with that parent.

12. If R will be in the care of Mr. Mitchell immediately following an extracurricular activity involving R, then Ms. Mitchell, if in attendance, shall leave the scene of the activity as soon as reasonably practicable when the activity ends, subject to any responsibilities Ms. Mitchell has in relation to the activity, in which case she shall leave as soon as reasonably practicable upon the completion of those responsibilities, unless Mr. Mitchell advises otherwise in advance and in writing.

13. Mr. Mitchell shall ensure that R telephones Ms. Mitchell between 7 p.m. and 8 p.m. each night that R is in Mr. Mitchell’s care overnight unless Ms. Mitchell advises him, in writing and in advance, that such a call is not necessary, or unless R is at a location where telephone communication is not reasonably practicable (e.g. camping in an area without any telephone service). Mr. Mitchell shall inform Ms. Mitchell in writing and at least two days in advance if R will, or may be, at such a location. Mr. Mitchell shall ensure that R’s telephone conversations with Ms. Mitchell are held in private.

14. Ms. Mitchell shall ensure that each of her telephone calls with R, while R is in the care of Mr. Mitchell, does not exceed 10 minutes and Ms. Mitchell shall terminate each call. Ms. Mitchell shall make her best efforts to ensure that the conversation during each of these telephone calls is positive, and not upsetting, for R. As part of those best efforts, Ms. Mitchell shall focus on discussing positive experiences R has had, is having, and may have, in her father’s care; Ms. Mitchell shall not advise R that she misses R, ask R whether she misses Ms. Mitchell, or promise positive experiences or rewards upon R’s return to Ms. Mitchell’s care.

15. Mr. Mitchell may telephone R each night that R is in Ms. Mitchell’s care overnight between 7 p.m. and 8 p.m. Mr. Mitchell shall ensure that each such call with R does not exceed 10 minutes and Mr. Mitchell shall terminate each call. Ms. Mitchell shall make her best efforts to facilitate any such telephone calls from Mr. Mitchell and she shall inform Mr. Mitchell in writing and at least two days in advance if R will, or may be, in a location where telephone communication is not reasonably practical. Ms. Mitchell shall ensure that R’s telephone conversations with Mr. Mitchell are held in private.

16. Ms. Mitchell shall inform Mr. Mitchell, in writing and in advance, if she enrolls R in counselling, the reason for the counselling, the identity and qualifications of the counsellor, and the schedule for the counselling. Ms. Mitchell shall not schedule counselling during R’s time with Mr. Mitchell unless Mr. Mitchell consents in writing and in advance. Both parties shall attend and fully participate in counselling in relation to R as recommended by R’s counsellor(s). The cost of R’s counselling, including the involvement of either or both parties, shall be deemed a special or extraordinary expense pursuant to section 7 of the CSG.

17. In the event of a medical or dental emergency for R, the parent who has care of R at the time the emergency arises shall exercise best efforts to contact the other parent without delay. If Mr. Mitchell has care of R at the time the emergency arises and he is unable to contact Ms. Mitchell within a reasonable time, or if Ms. Mitchell gives him advance written permission, then he may make any decision necessary for emergency care for R without consulting Ms. Mitchell, and he shall provide reasons for making any such decision to Ms. Mitchell orally, as soon as possible, and he shall, within two days, provide written reasons for making any such decision to Ms. Mitchell. If Mr. Mitchell is able to contact Ms. Mitchell then she shall make any decision necessary for emergency care of R after consulting with Mr. Mitchell, or she may provide Mr. Mitchell with advance written permission to make such decisions. If Ms. Mitchell has care of R at the time the emergency arises and she is unable to contact Mr. Mitchell within a reasonable time, she may make any decision necessary for emergency care for R without consulting Mr. Mitchell. Any advance written permission given by Ms. Mitchell pursuant to this paragraph is revocable by Ms. Mitchell, in writing, at any time.

18. In this order, “written” and “in writing” includes by email or text message.

19. Ms. Mitchell may obtain a Canadian passport and Nexus card for R.

20. Upon written request from Ms. Mitchell, Mr. Mitchell shall, within 21 days, provide her with his consent and/or authorization in writing, in the form required by the government, for Ms. Mitchell to obtain a Canadian passport and Nexus card for R.

21. Ms. Mitchell shall have possession of R’s passport and Nexus card except while R is travelling outside of Canada with Mr. Mitchell.

22. Ms. Mitchell shall have possession of R’s health card except while R is in the care of Mr. Mitchell or his delegate.

23. R may travel outside Ontario or outside Canada with either parent in compliance with the applicable parenting schedule provided that the parent with whom R is travelling has provided the other parent with a written detailed itinerary, including any flight numbers, dates, times, and places of accommodation, and contact information, at least seven days in advance of departure.

24. Each parent shall forthwith provide written consent or authorization, as may be required, for R to travel outside Canada with the other parent, upon written request and upon compliance with the immediately preceding paragraph.

25. Each party shall provide the other party with at least 90 days written notice in advance of any permanent change of address.

26. Each party shall ensure that the other party has the first party’s current contact telephone number and email address at all times.

27. Mr. Mitchell shall immediately comply with the written recommendation of any duly qualified medical practitioner with respect to R being exposed to (a) cat(s).

28. Mr. Mitchell shall pay child support for one child to Ms. Mitchell in the amount of $2,156 per month commencing January 1, 2016 based on his 2016 income of $270,652 and in accordance with the CSG.

29. Arrears of child support for 2016 are fixed at $8,376. Mr. Mitchell shall pay these arrears on or before December 31, 2016.

30. Mr. Mitchell shall maintain or immediately obtain and maintain insurance on his life in the amount of $250,000 payable to Ms. Mitchell, in trust for R, as security for his child support obligation. He shall provide Ms. Mitchell with written proof that such insurance is in place within 90 days, and on April 1, 2018, and each year thereafter, for as long as he is required to pay child support for R. If Mr. Mitchell fails to obtain and maintain such insurance, payment of child support for R shall be a first charge upon his estate.

31. Mr. Mitchell shall pay spousal support to Ms. Mitchell in the amount of $3,700 per month, before a notional discount for tax, commencing April 1, 2013 and ending December 31, 2013.

32. Arrears of spousal support for 2013 are fixed at $23,310 provided that Mr. Mitchell pays these arrears on or before January 31, 2017. If he fails to do so, spousal support arrears for 2013 are fixed at $33,300.

33. Mr. Mitchell shall pay spousal support to Ms. Mitchell in the amount of $4,500 per month, before a credit for spousal support paid and before a notional discount for tax, commencing January 1, 2014 and ending December 31, 2014.

34. Arrears of spousal support for 2014 are fixed at $18,503 provided that Mr. Mitchell pays these arrears on or before January 31, 2017. If he fails to do so, spousal support arrears for 2014 are fixed at $26,433.

35. Mr. Mitchell shall pay spousal support to Ms. Mitchell in the amount of $4,700 per month, before a credit for spousal support paid and before a notional discount for tax, commencing January 1, 2015 and ending December 31, 2015.

36. Arrears of spousal support for 2015 are fixed at $27,750 provided that Mr. Mitchell pays these arrears on or before January 31, 2017. If he fails to do so, spousal support arrears for 2015 are fixed at $39,644.

37. Mr. Mitchell shall pay spousal support to Ms. Mitchell in the amount of $1,900 per month, before a credit for spousal support paid, commencing January 1, 2016.

38. Arrears of spousal support for 2016 are fixed at $6,036. This amount is tax deductible for Mr. Mitchell and taxable as income to Ms. Mitchell in 2016 if Mr. Mitchell pays these arrears on or before December 31, 2016.

39. On each April 1st, commencing in 2026, the amount of spousal support payable per month shall be reduced by 30 percent from the amount paid the immediately previous March 1st.

40. Spousal support shall terminate on March 31, 2029.

41. Mr. Mitchell shall maintain or immediately obtain and maintain insurance on his life in the amount of $400,000 payable to Ms. Mitchell as security for his spousal support obligation. He shall provide Ms. Mitchell with written proof that such insurance is in place within ninety days, and on April 1, 2018, and each year thereafter, for as long as he is required to pay spousal support to Ms. Mitchell. If Mr. Mitchell fails to obtain and maintain such insurance, payment of spousal support for Ms. Mitchell shall be a first charge upon his estate.

42. Mr. Mitchell shall pay Ms. Mitchell $7,488 for his proportionate share of daycare and hockey expenses for R for the period of 2013 to 2015. Payment is due on or before January 31, 2017.

43. Commencing January 1, 2016, based on the parties’ 2016 incomes after payment of spousal support, Mr. Mitchell shall pay Ms. Mitchell 64 percent of the after tax cost of daycare. He shall pay his share to Ms. Mitchell within 21 days of Ms. Mitchell providing him with a copy of (a) receipt(s) with a written explanation of her after tax cost.

44. Commencing January 1, 2016, based on the parties’ 2016 incomes after the payment of spousal support, Mr. Mitchell shall pay Ms. Mitchell 64 percent of the cost of any special or extraordinary expenses for R, including, for example, without limiting the generality of the foregoing, hockey-related activities, the uninsured portion of any medical and/or dental expenses, any counselling provided by R’s counsellor(s) (including the involvement of either parent or both parents), and the cost of extracurricular activities for R (whether consented to or not by Mr. Mitchell). He shall pay his share to Ms. Mitchell within 21 days of Ms. Mitchell providing him with a copy of (a) receipt(s) for the expense.

45. Mr. Mitchell shall maintain or immediately obtain and maintain full medical and dental extended health benefits for R through his employment while R is eligible for child support.

46. Mr. Mitchell shall provide written consent and/or authorization to his employer and/or his insurer through his employment, in the required form, to allow Ms. Mitchell to make claims for medical and dental extended health benefits for R directly to the insurer, and for Ms. Mitchell to be paid the benefit directly by the insurer, if that option is available. He shall also provide Ms. Mitchell with written proof from the insurer and/or his employer whether that option is available. If that option is available, he shall ensure that Ms. Mitchell is provided with all information and forms she requires to submit such claims directly to the insurer. Mr. Mitchell shall comply with all of the requirements of this paragraph within 120 days.

47. If Ms. Mitchell is unable to make medical and/or dental extended health claims for R directly to Mr. Mitchell’s insurer through his employment and to be paid the benefit directly by the insurer, then she may provide (a) receipt(s) for such expenses to Mr. Mitchell who shall, within 14 days of receiving such receipt(s), submit the receipt(s) to the insurer for payment and upon receipt of payment from the insurer, shall, within 14 days, pay the same amount to Ms. Mitchell and provide her with a copy of the related detailed claim and/or benefit statement from the insurer.

48. Each party shall provide the other party with a copy of their complete income tax return, with all attachments, for the previous calendar year, on or before May 31st, commencing in 2017 with respect to 2016.

49. Each party shall provide the other party with a copy of their Notice of Assessment and Notice(s) of Re-assessment for the previous calendar year, within 15 days of receipt from CRA, commencing in 2017 with respect to 2016.

50. Each party shall provide the other party with a detailed list of all options or restricted stock units granted, vested, and/or exercised, including the price in Canadian dollars, during the previous calendar year, on or before January 31st, commencing in 2017 with respect to 2016.

51. Mr. Mitchell shall pay Ms. Mitchell $4,000 in costs for the motion settled in December of 2014, on or before January 31, 2017.

52. A support deduction order shall issue.

F. Graham J.

Released: April 13, 2017

1. Paragraph 504 (22) corrected to now read “Ms. Mitchell shall have possession of R’s health card…”

[^1]: Child Support Guidelines, SOR/97 – 175, as am.

[^2]: Bracklow v. Bracklow, 1999 715 (S.C.C.)

[^3]: Income Tax Act, 1985, c.1 (5th Supp.)