COURT FILE NO.: FS-14-5341 DATE: 2017-02-15

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

KATHRYN MARGARET MOYER Gregory J. Welch, Counsel for the Applicant Applicant

• and -

ROBERT WILLIAM DONALD MOYER Stephen R. Lundin, Counsel for the Respondent Respondent

HEARD: December 5-9, 12-16, 2016 at Kenora, Ontario Mr. Justice W.D. Newton

REASONS FOR JUDGMENT

Overview

[1] Ms. Moyer seeks sole custody and primary residency of their two children with access to Mr. Moyer on alternate weekends.

[2] Mr. Moyer sought joint custody with parenting on an alternate weekly sharing arrangement. As a result of evidence heard during the trial, Mr. Moyer amended his claim to seek sole custody with the children primarily residing with him with access to Ms. Moyer.

[3] The parties agree that if an equal sharing of care is ordered then neither would seek child support from the other because their incomes are similar.

[4] For the reasons that follow, I conclude that it is in the best interests of the children that joint custody be ordered with alternate weekly parenting.

The Facts

[5] The parties filed an agreed statement of facts. The relevant facts are as follows:

(i) The parties were married July 27, 2002.

(ii) The parties are the parents of two daughters: Kennedy Margaret Moyer, born December 3, 2007 (now age nine), and Austyn Marie Moyer, born August 8, 2011 (now age five).

(iii) The parties separated on June 6, 2013.

(iv) The parties have been sharing the care of the children on an equal basis on a four day on/four day off schedule since September 2013.

(v) Kathryn Moyer was born January 21, 1979 and is 37 years old. She is employed by the Ontario Provincial Police, (“OPP”) but has been off work since May 11, 2015, receiving disability insurance income.

(vi) Robert Moyer was born September 10, 1976 and is 40 years old. He is employed by the Canadian Pacific Railway as a conductor/engineer.

(vii) Kathryn Moyer is in a relationship with James Neild, a fellow OPP officer, but they do not cohabit. Mr. Neild has two children, Bentley Neild, born September 18, 2010 (now age six), and Cooper Neild, born March 19, 2013 (now age three).

(viii) Kathryn Moyer owns and lives at a home at 800 Park Street in the City of Kenora.

(ix) Robert Moyer is in a common law relationship with Kimberly Elke and they cohabit at Robert Moyer’s home, the former matrimonial home, at 268 Gold Creek Trail, just east of Kenora. Ms. Elke is the mother of one daughter, Logan Elke, born August 6, 2009 (now age seven), who resides primarily with Ms. Elke and Mr. Moyer.

(x) Kathryn Moyer and her mother are the owners of a cottage property at 266 Gold Creek Trail which is next to Robert Moyer’s home at 268 Gold Creek Trail.

Prior Orders

[6] Both Mr. and Ms. Moyer brought interim motions. By reasons dated March 10, 2015, Fregeau J. ordered, on a temporary basis, that the parents were to have joint custody and shared care and control of the children on a four day on/four day off schedule. On consent the involvement of the Office of the Children’s Lawyer was requested.

The Evidence

[7] In addition to the parties, Ms. Moyer’s mother and her new partner testified. Mr. Moyer called the girls’ teachers, his partner, two family friends, and a representative of Firefly, a children’s mental health centre in Kenora. The social worker from the Office of the Children’s Lawyer also testified. Her report was filed and both parties cross-examined her on consent.

Marjorie Matheson – Office of the Children’s Lawyer

[8] Ms. Matheson is a social worker and a supervisor at the Kenora – Rainy River Districts Child and Family Services. Since 2004, she has been a clinical agent with the Office of the Children’s Lawyer (“OCL”) conducting investigations and preparing reports to assist in custody and access matters.

[9] Ms. Matheson interviewed both parents separately between May and August 2015. She had observational visits and interviews with both children lasting for about 90 minutes. She also interviewed each parent’s current partner. She contacted a number of collateral sources including teachers and an inspector with the OPP. She reviewed school and medical records including reports from Ms. Moyer’s psychologist. She also reviewed the affidavits filed to date in these proceedings. Ms. Matheson also received two apparently unsolicited emails from Ms. Moyer on July 9, 2015 and August 8, 2015. The first email appeared to be an attempt by Ms. Moyer to validate her assertion of harassing behaviour by Mr. Moyer. The second email, sent just prior to the conclusion of the investigation, was a repetition of her concerns that Mr. Moyer was not meeting the emotional needs of the children.

[10] Ms. Matheson had a “disclosure meeting” with the parties on August 18, 2015. Her report was disputed by Mr. Moyer by formal dispute dated September 18, 2015.

[11] Ms. Matheson concluded that Ms. Moyer should have sole custody of the children with access to Mr. Moyer every other weekend and on Tuesdays from 3:00 p.m. until 8:00 p.m. In support of that conclusion is Ms. Matheson made the following observations:

Both parents presented as loving, sensitive and competent individuals. Under normal circumstances, the children could thrive and be happy being raised in either household. Unfortunately, the conflict between their parents and the widely differing parenting styles that have developed in the two households, have created an unhealthy and unnatural environment for the children to continue in. The couple have identified few, if any, decisions for the children that they are able to make together without conflict. [Emphasis added]

[12] In her testimony, Ms. Matheson described her impressions as based on a “snapshot in time.” She confirmed that she has not had any contact with any of the parties or the children since August 18, 2015. In her report, she stated that, “Generally, Ms. Moyer’s report of events appear to be more accurate than Mr. Moyer’s.”

[13] Among the concerns reported to Ms. Matheson by Ms. Moyer were:

• that she believed that Mr. Moyer was too harsh and strict with the girls;
• that the children were showing signs of stress and anxiety as result of conflict and tension between the parents;
• that the two households were very different;
• that it is stressful for the girls to move between two very dissimilar parenting routines;
• that Mr. Moyer was undermining her role as a parent; and
• that Mr. Moyer was not informing her with respect to the children’s well-being.

[14] Mr. Moyer disagreed that the children were maladjusted and stated that any maladjustment was only in the mother’s care and the result of her parenting style. He did agree, however, that the four day rotation was too much change and that a week rotation would be better. With respect to undermining Ms. Moyer’s role as a parent Mr. Moyer responded that Ms. Moyer has poor boundaries and has inappropriate contact with Ms. Elke. He disputed the assertion that he does not inform Ms. Moyer of the children’s well-being or interfere with her communication with the children.

[15] Among the concerns reported to Ms. Matheson by Mr. Moyer were:

• that the exchanges were too frequent and did not allow the children to settle into the routines of each household;
• that Ms. Moyer is an indulgent parent and that the children are much more emotionally mature in his care;
• that Ms. Moyer uses the communication book to bully and be critical of him;
• that Ms. Moyer does not share decision-making; and
• that Ms. Moyer approaches the children in public when they are with Mr. Moyer or Ms. Elke when she is in her police uniform and this is awkward and intrudes on their parenting time.

[16] Ms. Moyer responded by saying that the children need to be in her care primarily to have their needs met. She further said that the children were so distraught when they return for Mr. Moyer’s care that they required extra comfort and reassurance from her. She said that Mr. Moyer refused to share in decision making. With respect to contact with the children while she was on duty Ms. Moyer says that she has been told by the police that she is free to speak to the children when she was in uniform.

[17] Ms. Matheson also made the following observation that is relevant:

Ms. Moyer’s parenting style seems to be guided, in large part, by the concern that her children’s emotional needs are not being met while with Mr. Moyer. Children, detecting parental worry, will often present with behaviours that respond to that worry. A pattern of reinforcing interactions, particularly with Austyn, have become established. They are behaviours that have not activated a similar response from her father, so have only continued with Mr. Moyer.

[18] While in Ms. Moyer’s care, Austyn has tantrums and “acts like a puppy, crawling on all fours, barking and begging for food about 60% of the time that she is in her mother’s care.” In testimony, Ms. Matheson said that Ms. Moyer’s parenting style was reinforcing this behaviour and the behaviour was not improving. She thought that Ms. Moyer would need counselling to move forward. She testified that Ms. Moyer seem to have difficulty letting go and recognizing that Mr. Moyer is a good parent.

[19] With respect to approaching Mr. Moyer and or Ms. Elke when the girls were in their care in uniform, Ms. Matheson said that “in the context of this acrimonious situation” this “has been incendiary.”

[20] Ms. Matheson observed that Mr. Moyer has established a family that presented as “cooperative, respectful and responsive to the needs of the children.” She found that the children presented as “well-adjusted and reasonably content in his home.”

[21] Ms. Matheson’s focus was on nurturance, attachment and predictability. She said that “when a strong secure emotional base is established then children respond well to broader socialization and routine.” She concluded that Austyn demonstrated her primary attachment to her mother and noted: “Although that attachment appears to have become stuck in an immature level of nurturing, Ms. Moyer is seeking professional help to work that through. These behaviours may be temporal; a way for her to receive the soothing and emotional support that she needs from her primary caregiver.” With respect to Kennedy, Ms. Matheson said that Ms. Moyer’s “more relaxed parenting style is felt to lend itself to helping Kennedy enter into more normal childhood worries and preoccupations.”

[22] She recommended that the parents use Family Wizard. She recommended that Ms. Moyer participate in any mental health or parenting services recommended to her. She further recommended that Ms. Moyer arrange for counselling for both children as recommended by the mental health counsellor and that play therapy in Winnipeg Manitoba be considered as that service “may not be available in Kenora.”

[23] She summarized her testimony by saying that the issue was decision-making and, since the parties could not agree, to reduce stress, it was better to implement sole custody.

The Family Safety Plan

[24] Shortly after Ms. Matheson completed her report, there was a report from Kenora Rainy River Districts Child and Family Services which resulted in a family safety plan. The interaction getting rise to the safety plan involved the parents at a soccer field. The services organization wrote to both parents following interviews and observations. The agency concluded that the children were not in need of protection.

[25] In writing to Ms. Moyer, the child protection worker noted that she had been diagnosed with mental health concerns but there was “no indication that these conditions have affected your ability to safely parent your daughters.”

[26] In writing to Mr. Moyer, the child protection worker noted that their investigation “revealed no concerns regarding your mental health, substance use, or ability and willingness to access appropriate services for your children.”

[27] The family safety plan recommended the use of a communication book or Family Wizard, reiterated that exchanges should be “brief and positive,” and confirmed that neither parent was to interfere in the parenting time of the other.”

Kathryn Moyer

[28] Generally speaking, Ms. Moyer’s evidence was all negative. Her evidence with respect to Mr. Moyer’s character and past behaviour was negative. She said that he never wanted children and that he played no role in their care. She said that she had never seen Mr. Moyer without a drink in his hand. She testified that he was moody and demeaning and insulting to her. She said that Mr. Moyer was always talking about how it was cheaper to kill your wife than divorce her.

[29] Her evidence with respect to the children and how the children were coping was also negative.

[30] Ms. Moyer was hired in 2005 as an OPP officer. She said that Mr. Moyer was not supportive of her pursuing a career in policing.

[31] Ms. Moyer testified that there were a number of incidents that led to the separation. It began with the death of her father in April 2010. She said that Mr. Moyer was not supportive and that this marked a point in the relationship when she actually began to consider ending it.

[32] Later, in 2010, Ms. Moyer, while on duty, shot a woman who was threatening her with a knife. As a consequence, she was off work for eight weeks while that incident was investigated. She testified that Mr. Moyer was not supportive of her at all.

[33] Austyn was born in August 2011 and she described it as a difficult birth. Again, she said that Mr. Moyer was not supportive.

[34] Shortly after separation in 2013, Ms. Moyer started to see a clinical psychologist. The psychologist diagnosed her as suffering from Post-traumatic Stress Disorder.

[35] Added to this was the fact that Mr. Moyer started to cohabit with Ms. Elke in early 2014.

[36] There was another incident while on duty in 2015 in which Ms. Moyer was assaulted by a prisoner. That led to her decision to stop working. The decision to stop work did not relate to any injury but rather the fact that she felt that the stress she was under as a result of these proceedings impaired her ability to function as a police officer. As a result, she has been on long-term disability since early 2015. She testified that she would be able to return to work once this proceeding was over and a decision was rendered. She testified that she is no longer diagnosed as suffering from Post-traumatic Stress Disorder. She said that she is on long-term disability until November 2017 and that it is approved leave based on the fact that she is dealing with two children that are having high anxiety and high stress. In cross-examination, she said this about her reason for being off of work:

So during my days off that is the only time that I have to care for them. That involves doing the research, meeting psychologists, speaking to play therapists, preparing the home for them. So that means, you know, getting everything ready. It is not easy to go grocery shopping with the girls. It is, there is a lot of legwork I have to do prior to them returning home so that I completely available to them. It is very tiring and would not be of benefit to going to work exhausted.

[37] Ms. Moyer testified that both girls continue to exhibit behavioural problems. Austyn’s problems are described as tantrums and acting like a puppy. She says that Kennedy presents with stress and stress induced gastrointestinal difficulties. Since shortly after separation children have gone back and forth between Mr. and Ms. Moyer on a four day on and four day off cycle. Ms. Moyer testified that Austyn’s behaviour is related to her having a “a buildup of emotions and she goes four days in a home that is more rigid and emotions are not as acceptable at Rob’s home.” Further, she said that Austyn acts this way because she does not have access to Ms. Moyer in the manner she used to.

[38] Ms. Moyer said that Austyn’s puppy behaviour began in January 2015 and that she has been told by the child psychologist that this is Austyn’s way of expressing her emotions because she needs an outlet.

[39] Tantrums continue even up until the date of trial. The weekend before the trial commenced was Kennedy’s birthday party. Ms. Moyer testified that Austyn had a lot of tantrums and large emotional outbursts at the party. Again, Ms. Moyer attributed those tantrums to the buildup of emotions from the four days at Mr. Moyer’s house.

[40] One significant issue for Ms. Moyer was the failure by Mr. Moyer to allow Austyn to continue to use her soother. Ms. Moyer found out about this when Austyn was about two and a half years old. When both parents were at a soccer match Ms. Moyer was particularly upset when, from her perspective, Mr. Moyer tauntingly removed the soother from Austyn’s mouth while she was the on the field. Austyn was three years old at the time.

[41] Through her psychologist, Ms. Moyer accessed a child psychologist with whom she has been discussing concerns about the children since March 2015. The child psychologist did not testify. No report was filed from the psychologist. Ms. Moyer testified that she had discussed the children’s behaviour with this psychologist and that the psychologist was making recommendations to her. She confirmed that she investigated play therapy before Ms. Matheson from the OCL became involved.

[42] Although children’s mental health services are available in Kenora through Firefly, Ms. Moyer was of the opinion that what Firefly offers is not what her daughters require. Further, she expressed concern with privacy and testified that Firefly had breached her confidentiality already and that for these reasons she did not want her daughters to attend Firefly but rather play therapy in Winnipeg which is what she says the psychologist recommended.

[43] Ms. Moyer described the exchanges of the children as extremely difficult and she said that she sought the assistance of her new partner, Mr. Neild, also a police officer, to assist. She says that Mr. Moyer is loud and that she interprets his manner of speech when he attempts pleasantries as sarcasm. She says that both she and the children find the exchanges stressful and that the children do not want to leave her care. She testified that Austyn “would cry all the way to the exchange” and had a very hard time leaving her care. She would cry, scream, kick, and hide in the closet.

[44] Ms. Moyer was particularly bothered by pictures of her children on Facebook with Ms. Elke in the new family setting. Ms. Moyer made deliberate and surreptitious attempts to access Ms. Elke’s Facebook page even though Ms. Moyer is blocked.

[45] In her testimony, Ms. Moyer was adamant that she and Mr. Moyer have never been able to co-parent together in terms of making decisions for the children.

[46] In cross-examination, Ms. Moyer said that she has made a Human Rights Tribunal application against the OPP because the OPP did not follow its procedures when she reported Mr. Moyer’s domestic violence against her. She said that her goal was to have Mr. Moyer stop harassing her. She said that the complaint was made in August 2014 followed by others in December and February 2015. She denied making these complaints because it would help her in her custody case and said that she did not know that a conviction would make a difference. She also said that part of her motivation was the fact that she believed that Mr. Moyer was telling everyone that she had mental health issues and “making everything up.”

[47] When confronted with Ms. Matheson’s observation that the children’s behavioural issues arise from the fact that the children detect her worry and responded to that worry, Ms. Moyer did not agree that the children are detecting worry from her. She said that she was responding to the children’s nurturing needs and did not believe that they are getting the same nurturing with their father. Ms. Moyer repeated her observation that the children never come back happy and well-adjusted from time with their father but they returned with emotional outbursts “every single time.”

[48] When cross-examined about the exchanges, Ms. Moyer confirmed that it is her practice not to speak to Mr. Moyer unless he asks a question. She confirmed that if Mr. Moyer says “hi” or “hello” to her it is her practice not to acknowledge him or say “hi” in return. She says that the girls are so tense going to the exchanges that she seeks to maintain consistency. She denied that her failure to respond to his greetings was disrespectful and that his greetings were, in fact, not respectful to her. Ms. Moyer has always insisted that exchanges occur in a public place such as a Walmart parking lot. This is even so when she is occupying the summer home she owns with her mother adjacent to Mr. Moyer’s property. There is a short path that the girls can travel down to go to either place. Ms. Moyer insists that Mr. Moyer drive the girls approximately 20 minutes into Kenora so that the exchange takes place in public rather than letting the girls walk down the path. In her testimony, Ms. Moyer suggested that she was willing to allow Mr. Moyer to drop off the children in front of her house going forward rather than insisting on public exchanges. She would also insist that he pick up the children there as well, so that she did not have to drive the 20 minutes to his house.

[49] She testified that Austyn has separation anxiety issues on the majority of school days. She said that Austyn’s concern was separating from her. Ms. Moyer continues to pick Austyn up early from school on the days that she is in her care and justifies that, by stating that “A big concern she (Austyn) brings up at school is missing her mom.”

Gwendolyn McRae

[50] Ms. McRae is Ms. Moyer’s mother. She has two other children. Ms. Moyer is the youngest. Including the Moyer children, she has seven grandchildren.

[51] Prior to separation she was a frequent visitor. She echoed her daughter’s testimony that she did not see Mr. Moyer involved in caring for the children. She said that basic care such as feeding and diapering was up to Ms. Moyer.

[52] Since separation, she has observed that the children want to be with their mother. Before, the girls would happily go along with her, but now they want their mother present at all times. She said that the children want their mother to put them to bed.

[53] She related one incident of arguing over Austyn’s soother at an exchange. She said that Mr. Moyer threw the soother at them and told her that Ms. Moyer was incapable of caring for the children.

[54] With respect to Austyn’s behaviour she noted that the tantrums began in 2014 and the “puppy behaviour” began in early 2015 and has continued.

James Neild

[55] Mr. Neild is 45 and the sergeant with the OPP. He has known Ms. Moyer for approximately 10 years and became romantically involved with her in November 2014. At present, they maintain separate homes but intend to move forward with their relationship. He has been separated since April 2014 and has two children, six and three, who are equally parented by him and his former spouse.

[56] He testified that Austyn loves her mother very much that her mother is always there for her. He said that Kennedy has angry outbursts when she does not know where her mother is and sometimes talks in “loops.”

[57] He has been to about 80% of the exchanges and says that the exchanges are “always tense.” He says that Kennedy goes quiet and that Austyn hides her comfort items. He says that Mr. Moyer is loud on the exchanges.

Robert Moyer

[58] In contrast to the evidence of Ms. Moyer, Mr. Moyer’s testimony, particularly about the children, was very positive.

[59] He said that he was shocked when the marriage ended and that he “did not see it coming.”

[60] He said that Ms. Moyer made it difficult for him to parent as his views were not welcome. He denied Ms. Moyer’s assertion that he always had a drink in his hand and that he calls her derogatory names. He confirmed that he did not have a criminal record.

[61] He described Kennedy as a responsible girl who loves to learn and loves being a big sister. He described her as caring and said that she has great deal of empathy. She is athletic. He testified that she loves family time. She is inquisitive and loves to learn stuff from her dad. He believes that she will continue to excel in the future. He said that she is very smart and well-adjusted with friends and lots of love. He says that she has lots of potential.

[62] He described Austyn as a “lot more mischievous.” She is smart – “knows what is going on” and likes to be independent. Of the two girls, she is the more playful of the two with a well-developed sense of humour. He said that she is a “cuddler” who likes closeness. She loves to play games.

[63] At school, Kennedy is doing exceptionally well. She loves to learn and loves to read. She gets along with everyone and this is confirmed by her teachers.

[64] Mr. Moyer testified that when Ms. Moyer made complaints of behavioural problems such “as acting out” or vomiting he would check with the school and would get, what he described as,” strange looks.” He was assured that nothing was amiss and that the children were “doing great.”

[65] When he learned that Ms. Moyer was taking Austyn out of school because of her anxiety and because of her “neediness” he met with the teachers who assured him that there were no issues and that Austyn did not need to be taken from school. However, if a parent wanted extra time with the child, the teachers were not opposed to the child being taken out of school.

[66] He met his current partner, Kim Elke, on a blind date shortly after separation. She moved in with him early January 2014. Ms. Elke’s daughter, Logan, is the middle child in this blended family. Mr. Moyer testified that Kennedy and Austyn get along very well with Logan. Logan’s father has a good relationship with Logan and joins the new blended family for all the celebrations.

[67] Mr. Moyer testified that Ms. Elke, who is a nurse, is a caregiver and has not taken over the role of mother to Kennedy and Austyn. He is concerned that Ms. Moyer has acted aggressively in the past to Ms. Elke when Ms. Elke is with the children. This occurred when Ms. Moyer was on duty and approached Ms. Elke and the children.

[68] He described the activities that the girls are involved in. In the winter there is skiing, skating, and hiking. Ms. Elke is involved in the local cross country skiing community. In the summer, since they live on the lake, the girls spend a lot of lot of time swimming, boating, and fishing. Kennedy is particularly proud of acquiring her boat operator’s licence. Because Mr. Moyer’s home is adjacent to the cottage owned by Ms. Moyer and her mother there are some awkward moments. It is about 20 m from Mr. Moyer’s boat house to Ms. Moyer’s swim deck. When Ms. Moyer is there and the children wave, Ms. Moyer does not wave back. Kennedy has asked him why they cannot simply walk down the path to the cottage on exchanges instead of going to Walmart.

[69] Mr. Moyer’s shifts do not require him to be away from home a great deal. He has about nine trips a month which require him to be away for about 24 hours. Mr. Moyer typically cooks supper. Ms. Elke works part-time at the Canadian Mental Health Association and therefore is always available to assist with the children.

[70] He agrees that the exchanges are awkward. He says that in the last 18 months there is no communication with Ms. Moyer. He says “hi” but never gets a response from Ms. Moyer or Mr. Neild. He tries to be pleasant for the children. He has asked Ms. Moyer to reconsider how they handle exchanges but she has refused.

[71] Mr. Moyer gave his version of the incidents described by Ms. Moyer, including the incident at the soccer field and all the discussions about the soother. Unsurprisingly, his versions are different.

[72] He first learned about the puppy behaviour from Ms. Matheson. This behaviour does not occur in his care. He has investigated counselling for the children and wanted therapy to begin at Firefly in Kenora rather than Winnipeg which would require six hours of travel, but Ms. Moyer would not agree. He testified that he was not aware of the severity of the behaviour until Ms. Moyer testified. He said that that was “not the reality I have been living with.” As a consequence, he is ready to have the children in his care full-time with reasonable access to Ms. Moyer.

[73] Mr. Moyer spoke about his plans for the future including university. He and Ms. Elke have bought a rental property as an investment which will be sold when the girls are ready to go to school to help fund their education.

Kim Elke

[74] Ms. Elke is an RN with a Bachelor of Science in Nursing from the University of Manitoba. She has worked in a number of capacities including pediatric intensive care and public health. Her current employment allows very flexible hours three days per week.

[75] When she and Mr. Moyer were merging their families, she took six months off work to ease the transition. In addition to her employment, she is volunteer staff with the local cross country ski organization and teaches piano at school once a week.

[76] She is on good terms with her prior partner and they share custody and access with their daughter, Logan.

[77] She described her relationship with Mr. Moyer as “solid.” She said that the families blended together easily. She described Mr. Moyer’s children as considerate and happy girls who were involved in crafts. She described Mr. Moyer as “reliable as the day is long” and that his demeanour is described as “crusty on the outside and sweet and soft on the inside.” She has never seen any behaviour from him that could be categorized as abusive. She described Mr. Moyer’s relationship with all the girls, including her daughter, as nothing but positive.

[78] Like Mr. Moyer, Ms. Elke has not seen any suggestion of behavioural problems with Kennedy or Austyn. She did say that Austyn has said that she gets to go to her mom and be a baby because “mommy loves it when I am a baby.”

[79] She described Ms. Moyer’s behaviour initially as “stalking” her while she was in uniform and found that very intimidating. She reported that behaviour to the OPP.

Vanessa Trask

[80] Ms. Trask is a long-time friend of Ms. Elke. She describes the Moyer children as well-adjusted. She testified about being at one exchange when Mr. Moyer was picking up the girls. She saw that they were upset but then settled down almost immediately while they drove back to Mr. Moyer’s residence.

Jenny Ng-Turner

[81] Ms. Ng-Turner is also a long-time friend of Ms. Elke. She is a nurse case manager with the Addiction Foundation of Manitoba. She spends time with Ms. Elke and her new family once or twice per month. She has never witnessed any of the behavioural problems with the girls that were described by Ms. Moyer.

Kim Humphrey

[82] Ms. Humphrey is the senior manager for clinical support and case management at Firefly, the mental health centre in Kenora dealing with children and youth up to 18. She has a Masters of Social Work and is a registered social worker.

[83] She described the services available at Firefly. Any treatment for children under 12 requires the consent of both parents unless there is an order for sole custody. The services available include assistance with parenting to individualized counselling and intervention with children. A broad base of referrals sources are available if necessary with psychologists and psychiatrists at major centers. They have a current partnership with the child psychiatry department at the Hospital for Sick Children in Toronto.

[84] With respect to the type of behaviour problems alleged in this case, she testified that there could be a number of causes which would require review and assessment of the children, the parents, and parenting styles. They have trained counsellors who can deal with this type of problem plus the referral sources discussed.

Communication Between the Parents

[85] Between January 2014 and July 2015 the parties communicated with each other by email and through the communications binder. Starting in July 2015 and continuing to present, the parents communicate using “Our Family Wizard.”

[86] For the most part, a review of the emails, binder, and messages demonstrate that the parents can effectively and appropriately communicate on issues surrounding the children. Some of the troublesome issues related to the use of the soother and other comfort items.

[87] By September 2015, both parents shared the opinion that counselling would be good for the girls but could not agree who would do the counselling and where. Ms. Moyer wanted play therapy in Winnipeg. Mr. Moyer wanted to explore local options first because counselling in Winnipeg would involve a great deal of travel.

[88] Throughout, Ms. Moyer was raising issues with the children’s health and behaviour. She communicated that Austyn was using “baby talk” and would wake up “screaming for me,” for example. Ms. Moyer communicated that Austyn was “struggling” with going to school, crying lots, and wanting to come home. She was of the view that there were no services in Kenora to meet the girl’s needs. She continued to report that Austyn was having tantrums. On November 25, 2015, Ms. Moyer wrote that the girls “both had a lot of emotional expression” with Austyn continuing to the bed wet. Mr. Moyer responded on November 29, 2015 that both girls seemed very happy and content with “no unusual or concerning emotional expression by either of the kids.” He communicated that both girls were sleeping soundly and that Austyn was not having any bedwetting issues. That type of communication was repeated.

[89] Mr. Moyer checked with Austyn’s teachers to see if there is any unusual behaviour or whether she needed time away from school. He was told that she was well-behaved and well-adjusted. He did not become aware until January 2016 that Ms. Moyer was taking Austyn out of school regularly. He was advised by teachers that there was no need for Austyn to be taken out of school.

[90] Ms. Moyer continuously communicated that both girls were showing “large emotional outburst.” The response from Mr. Moyer was always similar to this: “Still no examples or concerns with emotional outbursts from Austyn or Kennedy during our time together and no reports of emotional or behavioural issues or concerns from the school. As I stated in the past, I am open to having the girls seen locally for play-based therapy if you would like, I can contact Firefly and make appointments for consultations?”

[91] The following exchange from July 2016 is typical. On July 21, 2016, Ms. Moyer wrote, “Both girls continued to show large emotions and act out. They both continue to have sleep disturbances.” Mr. Moyer responded on July 25, 2016, “There has been no emotional outburst or behavioural issues. The both slept great through the night and seemed “very happy and well-adjusted.” On July 29, 2016 Ms. Moyer wrote, “Both girls emotional outbursts continued to escalate while here.” Mr. Moyer responded on August 2, 2016, “No emotional outbursts. The girls are happy and healthy. If you like we can revisit Firefly for consult.” The last email from Ms. Moyer prior to trial stated, “Both girls continue to show an increase in emotional outbursts and acting out.”

Collateral Sources

At School

[92] Kennedy’s reports from junior kindergarten to her most recent progress report for grade four dated November 14, 2016 are exemplary. Her grade three teacher, Ms. Keene, described Kennedy as a “role model in our grade three class.” In her testimony, Ms. Keene said that Kennedy was strong academically, a hard worker, and well-rounded socially. At the end of grade three, Kennedy was one of two recipients of an award presented to grade three students. Ms. Keene has never observed any behaviour that was concerning. She was aware that Kennedy was in a shared parenting situation and saw no difficulty in Kennedy’s transition from one home to the other.

[93] Kennedy’s current grade four teacher, Ms. George, described Kennedy as “kind and respectful” with a “positive attitude for learning.” In her testimony, she described Kennedy as hard-working, meticulous, and outgoing. She described her as a “very happy child.” She also did not see any difficulty with Kennedy transitioning between homes.

[94] Similarly, Austyn is progressing well. She was described by her teachers in the reports up to November 14, 2016 as very capable and independent. Ms. Palson, the junior and senior kindergarten teacher, has not noted any anxiety beyond the typical or average for a junior or senior kindergarten student. She noticed no difference in Austyn’s behaviour whether she was coming from her mother’s or her father’s home. In junior kindergarten, there were issues with leaving her mother, but this year Austyn has matured a lot. The teacher describes Austyn as “tiny but mighty” and says that she is a good leader with the other children. No issues were noted on the transition from the father’s home. Ms. Palson has never observed any tantrums or “acting out” situations. From the teacher’s perspective, there is no reason why Austyn cannot be present for the full school day.

[95] The early childhood educator, Ms. Mychalyshyn, testified that Austyn gets along with her peers extremely well and appears happy. She also has never observed any tantrums or “acting out.” From her observations, Austyn is happy going home with either mom or dad.

Medical

[96] Dr. Diamond is the family physician. In 2015, she sent reports to Ms. Matheson. With respect to Kennedy, Dr. Diamond did not have any concerns with Kennedy’s relationship to her parents. She said that the mother reports that Kennedy sometimes gets stressed and will vomit, but that is not something that she had seen. In September 2016, Mr. Moyer brought her in to see Dr. Diamond because Ms. Moyer advised him that Kennedy was sick all the time with recurrent coughing. Dr. Kennedy found her well. Ms. Moyer brought Kennedy in on November 17, 2016 because of some diarrhea. Dr. Diamond noted, “Mom wonders if it is a little bit related to when she returns from being with other parent. Some stress between the parents and the divorce proceedings.” Dr. Diamond elected to observe.

[97] With respect to Austyn, Dr. Diamond noted the minor speech delay. She reported that the mother had some concerns about behaviours and tantrums but Dr. Diamond noted that Austyn seem to be behaving quite normally. In September 2016, Mr. Moyer brought her in to see Dr. Kennedy because Ms. Moyer said that she was unwell and because of a small umbilical hernia. Dr. Kennedy found Austyn well.

[98] In late 2013, Austyn was referred for speech language assessment. After a few months of therapy in the spring of 2014, there was significant improvement. Reassessment in November 2016 through the school noted average language skills with moderate delay in articulation skills. The plan was to continue to monitor her through the school.

Positions of the Parties

[99] Ms. Moyer argues that it is in the children’s best interests to be primarily in her care. She says that she was the primary caregiver until separation and that the equal sharing regime was not put in place until Kennedy was almost six and Austyn was two.

[100] She argues that, while the parties have some ability to make decisions regarding the children, they are unable to agree on important decisions such as Austyn’s use of a soother and blanket, and counselling for the children. However, during argument, Ms. Moyer indicated that should the court order parallel parenting in some form the order should include a term that both parents would sign whatever consents were necessary to have both children assessed at Firefly and thereafter follow any recommendations made by Firefly. This is, in essence, what Mr. Moyer has been seeking to do for several years.

[101] Ms. Moyer argues that there is no change in circumstances from the time of Ms. Matheson’s assessment until present and that, therefore, her recommendations should be given considerable weight.

[102] Ms. Moyer also argued that Mr. Moyer’s past behaviour has been abusive and has an effect upon both his and Ms. Moyer’s ability to parent.

[103] Ms. Moyer’s final submission is that if sole custody is not awarded to her, then a parallel parenting arrangement would be preferable to joint custody.

[104] Mr. Moyer argues that the OCL report is but one piece of the puzzle and is flawed because it is dated and premised on Ms. Matheson’s acceptance of Ms. Moyer’s assertion that she is a victim of abuse during the marriage.

[105] He argues that the evidence is clear that he and Ms. Elke have provided a stable home for over three years and that the children “thrive” in this household. He argues that each of the “best interests” criteria can be checked off in his favour.

The Law

[106] The legal principles applicable to custody and access are succinctly and simply set out in the Divorce Act and the Children’s Law Reform Act.

[107] The Divorce Act, R.S.C., 1985, c. 3, provides:

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

Terms and conditions

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

Factors

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

Past conduct

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

Maximum contact

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

[108] The application of the “best interests” test in the context of access was carefully considered by the Supreme Court of Canada in Young v. Young, [1993] 4 S.C.R. 3. McLachlin J. (as she was then) stated that the “best interests” test is the only test and the test is, necessarily, broad. The only specific factor that the judge must consider is the “maximum contact” principle set out s.16 (10) (para. 201-204).

[109] Section 24(2) of the Children's Law Reform Act, RSO 1990, c. C.12, also provides helpful guidance:

Best interests of child

The court shall consider all the child’s needs and circumstances, including,

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

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

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

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

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

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

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

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

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

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

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

Past conduct

A person’s past conduct shall be considered only,

(a) in accordance with subsection (4); or

(b) if the court is satisfied that the conduct is otherwise relevant to the person’s ability to act as a parent.

Violence and abuse

In assessing a person’s ability to act as a parent, the court shall consider whether the person has at any time committed violence or abuse against,

(a) his or her spouse;

(b) a parent of the child to whom the application relates;

(c) a member of the person’s household; or

(d) any child.

Same

(5) For the purposes of subsection (4), anything done in self-defence or to protect another person shall not be considered violence or abuse.

[110] As was stated by the Court of Appeal in Kaplanis v. Kaplanis, [2005] O.J. No. 275 at para. 11:

The fact that one parent professes an inability to communicate with the other parent does not, in and of itself, mean that a joint custody order cannot be considered. On the other hand, hoping that communication between the parties will improve once the litigation is over does not provide a sufficient basis for the making of an order of joint custody. There must be some evidence before the court that, despite their differences, the parties are able to communicate effectively with one another.

[111] Reports from The Office of the Children’s Lawyer should be considered and weighed along with all the other evidence. They are not determinative. They are only a starting point – a “useful tool” but “merely part of the evidence,” (See for example Rice v. Abbott, [2006] O.J. No. 4889 at paras. 97 and 99). A trial judge is required to conduct an assessment of the issues of custody and access on the evidence heard at trial as that evidence relates to the criteria for determining the best interests of the children, (See for example Ali v. Williams, [2008] O.J. No. 1207 at para 28).

Analysis

[112] While the report from the Office of the Children’s Lawyer was a helpful “starting point,” I do not reach the same conclusion as Ms. Matheson. Her assessment was based on events as at August 2015. I have had the benefit of reviewing the communication logs and hearing from both parties at length during examination-in-chief and cross-examination. I have also had the benefit of hearing directly from the teachers.

[113] Further, I disagree with Ms. Matheson’s assessment that, “Generally, Ms. Moyer’s report of events appeared to be more accurate than Mr. Moyer’s.” I find that Ms. Moyer exaggerated the behavioural problems that she reported. Indeed, if I believed that the children were suffering as much as she suggested, I would seriously have to consider awarding sole custody to Mr. Moyer. Her assertions are directly contradicted by the educators, who noticed no difficulties with the children. Ms. Moyer testified that a “big concern” that Austyn brings up at school is missing her mom. The testimony from the teachers does not support that.

[114] I agree with Ms. Matheson’s assessment that Ms. Moyer’s parenting style is reinforcing any behavioural issues and that Ms. Moyer needs counselling to move forward.

[115] For Ms. Matheson, the inability to make decisions for the children was central.

[116] My review of the My Family Wizard email exchange leads me to conclude that Mr. and Ms. Moyer can make important decisions regarding the children. The only significant area of opposition is with respect to counselling for the children. Ms. Moyer came to the conclusion prior to Ms. Matheson’s involvement that play therapy in Winnipeg was what was required. She was not willing to start with local options for reasons I do not accept. Rather than seek assistance for her children I find that she sought to retain control to their detriment. The concession during argument from Ms. Moyer’s counsel that I should order that both parents consent to assessment at Firefly and follow the recommendations made was a concession that should have been made, in the children’s best interests, by the fall of 2015. Ms. Matheson’s recommendation supporting Ms. Moyers insistence on play therapy did not assist.

[117] Section 24(2) of the Children’s Law Reform Act instructs me to consider all of the children’s needs and circumstances including the following:

1. the love, affection and emotional ties between the children and the parents, other members of the family and persons involved in the children’s care and upbringing

[118] Based on the evidence I am satisfied that there are strong ties between the children and both parents, their extended families and the new blended families. Ms. Elke assists in the children’s care and upbringing and I find that she is a nurturing and positive influence upon the children and that the children have strong ties to her.

2. the children’s views and preferences, if they can reasonably be ascertained

[119] Although I had no direct evidence on the children’s views and preferences, I note that the teachers made observations that assist. Ms. George described Kennedy as a “very happy child” and did not see any difficulty with Kennedy transitioning between homes. Similarly, Ms. Mychalyshyn noted that Austyn is happy going home with either mom or dad. Ms. Palson also noted no difference in behaviour whether Austyn was coming from either home.

3. the length of time the children have lived in a stable home environment

[120] The four-day on/four-day off schedule has been in place since September 2013 and formalized by the temporary order made in March 2015. Shared parenting has worked as indicated by how well the children are doing in school. It is acknowledged that the transitions are difficult. Ms. Moyer finds them stressful, so stressful that she will not even exchange pleasantries with Mr. Moyer. No doubt, the children feel that stress. I conclude that it is in the children’s best interests to have fewer transitions and regularize their movements between the two homes on a one week on one week off schedule. I also conclude that it is appropriate to continue with the current regime until the end of the school year and thereafter move to one week on/one week off as suggested by Mr. Moyer.

4. the ability and willingness of each parent to provide the children with guidance and education, the necessaries of life and any special needs of the children

[121] I am satisfied that each parent is able and willing to provide for the guidance, education, and needs of the children, including counselling, notwithstanding their failure to agree on counselling in the past.

5. the plan proposed by each parent for the children’s care and upbringing

[122] I am satisfied that the plan proposed by Mr. Moyer is in the best interests of the children and is in keeping with the maximum contact principle.

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

[123] Mr. Moyer and Ms. Elke blended their families together three years ago. Ms. Elke took six months off work to ease the transition. They have made plans for the future including purchasing an investment property to fund their children’s education. I conclude that this is a stable and likely permanent family unit.

[124] Ms. Moyer, although in a relationship with Mr. Neild, has not yet “blended” their families. However, it is apparent that Ms. Moyer has support from Mr. Neild and her extended family.

7. the ability of each parent to act as a parent

[125] I am satisfied that Mr. Moyer has the ability to act as a parent. I am also satisfied that Ms. Moyer has the ability to act as a parent although I do note Ms. Matheson’s assessment that Ms. Moyer needs counselling to move forward with her parenting style which is reinforcing some behavioural problems. I also note Ms. Moyer’s assertion that she currently spends her four days off from the children getting ready for the four days on with the children. No doubt, her research needs etc. will be diminished now that the trial has concluded. I accept her statement that she will be able to return to work. I commend her for continuing to see her psychologist.

[126] Notwithstanding the submissions of counsel for Ms. Moyer, there is nothing in the evidence of past conduct which I find is relevant to either parent’s ability to act as a parent other than Ms. Moyer’s parenting style.

[127] As stated in Young v. Young, the only other specific factor beyond “best interests” is “maximum contact.” I am satisfied that it is appropriate in the circumstances that each parent has maximum and equal contact with the children.

Conclusion

[128] For the foregoing reasons, I conclude that it is in the best interests of the children that there be an order for joint custody with shared parenting on a week on/week off rotation as particularized on the following terms:

1. THIS COURT ORDERS THAT: Kathryn Margaret Moyer and Robert William Donald Moyer who were married at Selkirk, Manitoba on July 27, 2002 be divorced and that the divorce take effect 31 days after the date of this order.

2. THIS COURT FURTHER ORDERS THAT: Kathryn Margaret Moyer and Robert William Donald Moyer have joint and shared custody of Kennedy Margaret Moyer, born December 3, 2007, and Austyn Marie Moyer, born August 8, 2011 (hereinafter referred to as “the children”).

3. THIS COURT FURTHER ORDERS THAT: the children be in the care of each of the parties for 50% of the time as follows: a) Until the end of the children’s current school year, four days on/four days off, dovetailing with the current care schedule, with exchanges of the children to take place at the children’s school on school days. On non-school days the parent into whose care the children are coming, or their delegate, will pick up the children at the home of the other parent at 4:00 p.m. b) Commencing at the end of the children’s current school year, week on/week off with exchanges taking place at the end of the school day each Friday. On non-school Fridays the parent into whose care the children are coming, or their delegate, will pick the children up at the home of the other parent at 4:00 p.m.

4. THIS COURT FURTHER ORDERS THAT: the regular care schedule referred to in paragraph 3 above is suspended during the following periods: a) The parties will share evenly the children’s Christmas school break on a schedule to be agreed upon between them from year to year. To permit Kathryn Margaret Moyer to have the children each Boxing Day to celebrate in accordance with her family’s tradition, the children will be in the care of Robert William Donald Moyer each year from 7:00 p.m. on December 23 until 1:00 p.m. on December 25 and in the care of Kathryn Margaret Moyer each year from 1:00 p.m. on December 25 until 7:00 p.m. on December 27, unless otherwise agreed to in writing by the parties. The parent into whose care the children are coming, or their delegate, will pick the children up at the home of the other parent in Kenora. b) The children will be in the care of Kathryn Margaret Moyer for the children’s school March Break in even numbered years and in the care of Robert William Donald Moyer for the children’s school March Break in odd numbered years. The March Break begins at the end of the school day on the Friday before the break and ends on the children being returned to school on the Monday following the break. Should the situation arise that a parent having the children for the March Break would, as a result, have the children in their care for three straight weeks, the other parent will have the children from the end of the school day on the Wednesday before the March Break until the start of the March Break and from the end of the school day on the Monday following the March Break until return to school on the Wednesday following the March Break, so that the children will not be away from either parent for a three week period of time. c) The children will be in the care of each parent for two consecutive weeks each summer, with those weeks to be agreed upon by the parties by May 15 each year. If the parties do not agree on which weeks these will be, in odd numbered years Kathryn Margaret Moyer will have first choice of weeks and in even numbered years Robert William Donald Moyer will have first choice of weeks. d) If it does not already fall on their parenting time, Kathryn Margaret Moyer will have care of the children from 10:00 a.m. on Mother’s Day until return to school the following day and Robert William Donald Moyer will have care of the children from 10:00 a.m. on Father’s Day until return to school the following day. e) Each party will arrange to celebrate the children’s birthdays on that party’s parenting time. The party having care of a child on the child’s birthday will ensure that the child telephones the other parent that day.

5. THIS COURT FURTHER ORDERS THAT: day to day decisions about the children will be made by the parent in whose care the children are at the time.

6. THIS COURT FURTHER ORDERS THAT: the parties use “Our Family Wizard” to exchange information about the children including but not limited to the children’s schedules, events, illnesses, medications, and developmental milestones. The parties will not use this medium, or any other medium, to question or criticize the other party’s parenting.

7. THIS COURT FURTHER ORDERS THAT: each party notify the other party immediately in the event of a serious injury or illness of the child(ren).

8. THIS COURT FURTHER ORDERS THAT: the parties discuss and attempt to agree upon decisions relating to the children regarding health, education and the extracurricular activities in which the children will participate.

9. THIS COURT FURTHER ORDERS THAT: each party is entitled to access information and records about the children directly from the children’s professional providers.

10. THIS COURT FURTHER ORDERS THAT: each party respect the other’s parenting time and not interfere with it. Neither party shall approach the other party in the community. If the children see the other parent in the community, the parent in whose care the children are will encourage the children to gesture a greeting to the other parent.

11. THIS COURT FURTHER ORDERS THAT: the parent in whose care the children are is in charge of the child’s sporting activity, leisure activity or community activity in which the children may be participating. If a child approaches the other parent during this time that parent will greet the child and return them to the care of the custody parent. Both parents may attend all of the children’s activities and events but shall not interfere with the children or the event if it is not their parenting time.

12. THIS COURT FURTHER ORDERS THAT: both parties treat each other civilly and conduct themselves in a manner that places the children’s best interests ahead of the needs or feelings of the parent.

13. THIS COURT FURTHER ORDERS THAT: both parties may take the children out of the country on vacation on their parenting time and other party will sign any and all documentation required to permit the children to cross an international border. The party travelling with the children will be provided with the children’s passports and any other identification or documentation required for the trip. The parent taking the children on the trip will, at least 48 hours before leaving on the trip, provide the other parent with the trip itinerary and a contact telephone number at which the travelling parent can be reached in case of emergency.

14. THIS COURT FURTHER ORDERS THAT: both children attend for assessment and therapy at Firefly in Kenora and that both parents sign all consents required for them to do so. Should the professionals at Firefly recommend more specialized therapy or counselling for the child(ren), the parties will cooperate in seeing that the child(ren) gets those services. Should the professionals providing these services recommend that therapy or counselling is no longer required for a child, the parties will consent to that therapy or counselling ending. The parties will share evenly the cost of therapy or counselling not covered by a parent’s extended health care plan.

15. THIS COURT FUTHER ORDERS THAT: annual income is imputed to Kathryn Margaret Moyer in an amount that is equal to the annual income of Robert William Donald Moyer. Based on equal incomes and an equal sharing of the care of the children, the Guideline child support obligations of the two parties offset and neither party is required to pay child support to the other.

16. THIS COURT FURTHER ORDERS THAT: Kathryn Margaret Moyer and Robert William Donald Moyer contribute equally to the reasonable s. 7 “extraordinary expenses” of the children as and when they arise. Should one parent incur such an expense, the other party will reimburse that parent for their 50% share within seven days of being provided with the receipt for that expense. Neither party will incur such an expense in excess of $100.00 without first discussing the expense with the other party and obtaining that party’s agreement to the expense.

17. THIS COURT FURTHER ORDERS THAT: Kathryn Margaret Moyer and Robert William Donald Moyer contribute equally to the reasonable post-secondary education expenses of the children that the children are not able to pay themselves. The children will be expected to contribute to their own post-secondary education expenses through scholarships, bursaries, summer employment earnings, savings and some student loans.

18. THIS COURT FURTHER ORDERS THAT: Kathryn Margaret Moyer pay the first $12,000.00 of the parents’ responsibility for the children’s post-secondary education expenses to account for the fact that she is retaining the $10,430.00 Registered Education Savings Plan funds that the parties accumulated during the marriage held solely by Kathryn Margaret Moyer in Scotiabank RESP #33402586, and to account for the fact that interest will accumulate on that RESP account before it is utilized.

19. THIS COURT FURTHER ORDERS THAT: Kathryn Margaret Moyer and Robert William Donald Moyer contribute equally to the reasonable extracurricular activity expenses of the children as and when they arise. Should one parent incur such an expense, the other party will reimburse that parent for their 50% share within seven days of being provided with the receipt for that expense. Neither party will incur such an extracurricular activity expense in excess of $100.00 without first discussing the expense with the other party and obtaining that party’s agreement to the expense. Agreement will not be unreasonably withheld.

20. THIS COURT FURTHER ORDERS THAT: on consent, no retroactive child support is owed by either party to the other.

21. THIS COURT FURTHER ORDERS THAT: Kathryn Margaret Moyer maintain a policy of insurance on her life with a face value of at least $200,000.00. Kathryn Margaret Moyer will maintain each child as irrevocable beneficiary of at least $100,000.00 of this policy for so long as each child is a dependant child as defined in the Family Law Act.

22. THIS COURT FURTHER ORDERS THAT: each party maintain extended health and dental care coverage for the children through their employment until the children are no longer dependant as defined in the Family Law Act.

23. THIS COURT FURTHER ORDERS THAT: all other claims of both parties are dismissed.

Costs

[129] Should the parties be unable to agree on costs then counsel are to arrange a teleconference before me to discuss the procedure for fixing costs. If a teleconference is not arranged within 45 days from the release of this decision then costs will be deemed settled.

“Original signed by”____

The Hon. Mr. Justice W.D. Newton

Released: February 15, 2017

COURT FILE NO.: FS-14-5341 DATE: 2017-02-15 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: KATHRYN MARGARET MOYER Applicant - and - ROBERT WILLIAM DONALD MOYER Respondent REASONS FOR JUDGMENT Newton J. Released: February 15, 2017 /lvp